Prosecution of a murderous female slave, Mukden (Qing China), 1796

Claude Chevaleyre <>, CNRS (France)

The Chinese judiciary was organized along a vertical chain of transmission. Judicial cases were investigated at the local level and, depending on their gravity, transmitted upward to the prefecture, the province, then to the Board of Punishments (or Ministry of Justice) and, ultimately, to the emperor. The higher the punishment corresponding to the proposed incrimination, the higher the trying instance. For instance, a district magistrate could only close minor cases (liable to beating). In cases liable to banishment, the Board of Punishments was the last decision-making body. Crimes punishable by death were always submitted to the emperor for final decision, either for immediate execution (when the sentence proposed was “immediate death”), or for revision during the annual Autumn Assizes (when the proposed sentence was death “awaiting in jail”). During the annual Assizes, the emperor could either order the execution of the death penalty, commute the sentence or pardon the culprit.

The text presented here is included in Vol. 39 (pages 46b to 48b) of Xing’an huilan 刑案匯覽 (A Conspectus of Judicial Cases, 1823), a very famous collection of Qing era (1644-1911) judicial cases. It has no proper title, but in the upper margin of Xing’an huilan, one can read the following summary: “A Formerly Exchanged Female Slave Plots to Kill her Former Household Head” (yihuan yuren zhi jiubi mousha jiu jiazhang 易换與人之舊婢謀殺舊家長) (info). The text is a shuotie 說帖, i.e. a “memorandum” produced by legal experts of the Board of Punishments in response to a “difficult” case - usually the “lack” in the Great Qing Code of a legal provision corresponding exactly to the specifics of the case. Memoranda were often the last step in the legal decision-making process. They could, eventually, serve as a basis for the drafting of new “leading cases” and “substatutes”. Shuotie were highly standardized documents. The text presented below is an aggregate of judgement proposals and excerpts of legal deliberations involving various judicial offices (including the Board’s regional department which handled the case, and the Bureau of the Code whose legal experts were called on to decide a question of law). To make the structure of the case more apparent, it has been decomposed into seven discrete sections:

1. The invocation of the law: Memoranda usually start with quotations of the Great Qing Code’s legal statutes relevant to the case under consideration. This first section invokes statute no. 286 (“Plotting to Kill the Parents of a Deceased Husband”) (info). The quoted segment of the law is about “sold slaves” who plot to kill their former master (the legal treatment of slaves partly derived from an analogy with the legal treatment of children, hence the presence of such a provision in this statute). Although no information on the actual case is provided at this stage, an average official would immediately understand that the issue at stake is about the relative identity of a slave vis-à-vis the master who sold them (the “former master”). According to statute no. 286:

If slaves plot to kill their former household heads, they shall be punished in accordance with the rule for ordinary persons [with reference to statute no. 282 “Plotting to Kill Others”]. This refers to the slaves who are sold to others by their own household heads. They shall be punished as commoners” (translation by Jiang Yonglin).

This meant that, in such a particular case, the slave status had no incidence on the punishment inflicted on the criminal. This provision was an exception to the general principle that criminal slaves be punished more severely than commoners when committing crimes against commoners or against their master (or their master’s family). The reason for this exception to the asymmetric legal treatment of criminal slaves probably was that the penalties for plotting to kill others were already among the highest: death by decapitation (awaiting in jail) for the principal; death by strangulation (awaiting in jail) for the accessories who aided in the commission of the murder; and banishment to 3.000 li for the accessories not involved in the murder itself.

2. The exposition of the legal issue: Here, the Board experts expound the legal problem and develop their legal reasoning. Although no more information is provided on the actual case, one easily understands that it involves an “exchange” (yihuan 易換) of slaves between two families, and the murder of one “former master” by one of the “former slaves”. According to the Board experts, relationships between former slaves and their former masters were of a different nature, depending on whether the slaves had been sold or manumitted/redeemed. Selling a slave amounted to completely transferring one’s authority over the slave to another master. Sales had the effect of breaking the existing bonds between slaves and their former master. Redeeming and manumission, on the contrary, did not completely break the bonds of obligations. Manumitted and redeemed slaves were no more slaves, but they were neither completely “commoners”, nor complete strangers to their former master: a macula servitutis still hanged over them until the third generation. The difference of relationship would therefore induce a difference of legal treatment (modulating reference punishments according to the relation between offender and victim was a core principle in late imperial law). In this case, the issue was that the Code’s “statutes” (or principal laws) did not make provisions for “exchanging” slaves. Therefore, the question was do decide whether exchanging slaves amounted to selling them or to manumitting them; and thereby to decide whether a bond remained between the murderous slave and the former master or not. This would not change the nature of the crime itself, but the relative statuses of victim and offender, and as a consequence, the degree of sentence modulation. To the Board experts, an exchange was unquestionably equal to a sale, and exchanged slaves who killed their former master were to be judged as for killing a person they had not particular relationship with (a “commoner”).

3. The exposition of the case itself: A female slave named Wu Yunzhu was discovered to have an affair (“illicit sexual intercourse”, in Chinese legal terms) with one of her mistress’ tenants (a man named Liu Chun). To separate the unlawful couple, the mistress (Mrs. Niu Hulu) expelled the tenant and exchanged Wu Yunzhu with the female slave (named Rong Hua’er) of one of her relatives’ (a certain Tuo Xinbao). The text records that the exchange happened “years ago” and that the two female slaves were married to male slaves by their respective new masters. This information is more than a simple detail: It tells the reader that the new masters actually acted as they were expected to, and did so over a long period. It underlines that the master-slave relationships created by the exchange were not artificial ones, but were taken seriously: the concreteness of the relationship, the fact that masters played their role as masters, and that they did so for a long period, were significant elements that a Chinese magistrate would evaluate in cases of contested or dubious slave identities. However, the romantic affair between the female slave and the tenant went on despite the separation. Years after the exchange, the other female slave, Rong Hua’er, ran away from Mrs. Niu, who, suspecting she fled to her former master’s house, asked Tuo Xinbao either for her restitution, or for the restitution of her former slave, Wu Yunzhu. Informed that Wu Yunzhu would be taken back to her former mistress’ house, Liu Chun plotted to kill Mrs. Niu as a revenge for having been expelled years ago. And on the day Mrs. Niu went to her relative’s house to take Wu Yunzhu back, Liu Chun murdered her.

4. The excerpt of the first judgement proposal by the submitting administration: Here, we learn that the official submitting the case was a “general” (jiangjun 將軍), confirming that the case happened under Banner jurisdiction, probably around Mukden (Fengtian 奉天 in Chinese, in the area known as Manchuria). The first judgement is in line with the later conclusions of the Board experts: Having been exchanged against another slave, Wu Yunzhu had no more obligations to her former master. As an accessory who aided in plotting the murder of her former mistress but not in the murder itself, she was liable to banishment to 3.000 li (the last degree before death among the five regular punishments). Nonetheless, the general proposed a slight punishment increase (the deportation of Wu Yunzhu as a slave to Oirat territory in Mongolia), taking advantage of the numerous “irregular” punishments inserted over time in the scale of punishments (the reason for the increase being explained later in the text).

5. The deliberations by the Bureau of the Code: Once again, this section underlines the difference between the sale, the redeeming and the manumission of slaves. It concludes that, vis-à-vis their “former master”, exchanged slaves shall be legally treated like sold slaves. Incidentally, it reveals that the Mukden Department of the Board initially considered that exchanging slaves did not result in completely breaking the bond of obligations with their former master. However, according to the experts of the Bureau of the Code, this would amount to slaves having two masters. This would also produce a legal aberration: Would Wu Yunzhu be considered Niu Hulu’s slave when the murder was committed, even as an accessory, she would be liable to death by slow slicing according to statute no. 314 (“Slaves Striking the Household Head”). The legal experts, who rejected the conclusions of the Mukden Bureau, argued: Had she also killed Tuo Xinboa, what could be added to death by slicing (the highest degree of death penalty) to express a difference between the former mistress she did not serve anymore and the new master she actually served?

6. The exposition of the decision by the Bureau of the Code: After examining the case, the existing laws, the judgment proposal by the submitting authority and the Mukden Department’s deliberations, the Board experts simply confirmed the initial sentence drafted by the office of the Banner General.

7. Finally, a brief mention of the emperor’s decision followed by the subsequent second deliberation: Apparently, although the emperor agreed with the sentence proposal, he was sensitive to the argument that an exchange was not stricto sensu the same as a sale. Therefore, he asked for a revision that would allow for an increase of the punishment. The legal experts, however, maintained their initial objection. They underlined that the sentence proposed by the Banner General (an extreme and definitive form of penal servitude) was already above the required punishment (banishment to 3.000 li). The Banner General had, indeed, used the fact that the two masters (Niu Hulu and Tuo Xinbao) were relatives as a pretext to slightly increase the sentence. Apparently, Tuo Xinbao was a distant relative of Niu Hulu’s husband (a certain Ge Teng’e, who might have passed away, as he is not involved and mentioned in the case), but they had no “mourning obligation” to one another. Mourning degrees were crucial factors in assessing the relative hierarchical position of family members, and thereby of sentence modulation, but they were not the only factors at play. According to the text, a hierarchical distinction between “superior and inferior” (rengyou zunbei mingfen 仍有尊卑名分, meaning that they were of different generations) existed, that would justify an increase of punishment when the slave of one of them would commit a crime against the other.

Slaving practices were still present and legal in late imperial China. Nubi 奴婢 were owned and incorporated into the domestic sphere of their masters (or “household heads”). Although abduction and trafficking are evidenced in Ming and Qing China, nubi were not mainly “produced” by raiding foreign populations or transported from faraway countries. In a majority of cases, enslavement was contractual and in practice hereditary. Usually, parents sold their children under the pretense of poverty (enslavement actually expanded in times of famine, alongside human trafficking for various purposes). People could also sell themselves as nubi for the rest of their life or for a negotiated (long) period of time. The practice of “commendation” was also widespread. In addition, Manchu Banners (the military and administrative units at the core of the social organization of the Manchus, who conquered China in the seventeenth century) had their own system of slavery, and penal servitude was still one of the five regular punishments in Qing China. Slaving practices varied from one area to the other, but were, at least in theory, framed by imperial law. Late imperial Chinese nubi are usually described as “domestic servants” (the common translation being “bondservants”) operating mainly within the household, but they were the men, women and children of all tasks, and were present in domestic as well as in more “productive” activities.

“Slavery” in Ming and Qing China was encapsulated in Confucian values and concepts. As the most asymmetric and discriminatory “natural” relationship, the father-child relation was used as the conceptual matrix of the master-slave relation. This analogy set limits to the power masters could exert on slaves. Masters were expected to treat their slaves as their own children, but in most cases, the “humane” side of the analogy barely amounted to paternalist rhetoric, requiring that masters feed, clothe and marry their slaves in due time (and treat them with “benevolence”). From a legal perspective, the only limit to a master’s power was reached when they killed “innocent” slaves. The father-child analogy was mainly used to make slaves permanent and absolute inferiors (or children) to their master and their master’s family. Nonetheless, it was devoid of all the potentials associated with the fact of actually being someone’s child. It allowed masters to expect utmost obedience and subservience and allowed them to discipline slaves as they would discipline their children. But unlike children, slaves could not expect to become respected elders when aging. Being a child provided legal advantages that slaves were denied. For instance, the legal right (and obligation) to conceal the crimes of one’s relatives was expected from the slaves of the household, but did not extend to them. And although relatives living “under the same roof” could not be accused of theft in a legal sense (as they shared the same patrimony), slaves were the only household members who could be prosecuted for stealing from the household patrimony.


Mukden Department [of the Board of Punishments]

[1] When reading the statutes, it is said: When plotting to kill others, those who formulate the plan are punished by decapitation awaiting in jail. Accessories who do not aid in the crime are punished by life exile to 3.000 li and 100 strokes [statute no. 282]. It is also said: When slaves plot to kill their former household head, they are punished according to [the law on] ordinary [plots to kill] [statute no. 286]. Commentaries [to the formerly quoted statute] say: It means that when one has sold one’s slave to others, everyone is judged like a commoner.

[2] With regard to household heads vis-à-vis their slaves, although name distinction is high, once sold, [the bond of] solidarity is severed. Slaves who have been sold leave a master to find a new one. This is completely different from manumitted and redeemed slaves, for whom [the bonds of] benevolence and solidarity [with their former masters] remain. As for exchanged slaves who commit offences against their former masters, the law contains no article as to how to set the punishment. Upon scrutiny, there has been no leading case of that sort [circulated] over the years. In our humble opinion, when slaves are exchanged one against the other, although this is not like a contractual sale using money, one barters what one possesses against what one does not possesses. This is a constant rule of market places. Although the name seems different, exchanging cereals against silver is exactly the same as exchanging cereals against fabrics. Therefore, it can absolutely not be said that exchanging is different from selling. Besides, once exchanged, both slaves serve their [new] masters. Would they commit any offence against their new master, the sentence shall naturally be set according to name distinction between master and slave. Being exchanged [rather than sold] should absolutely not be a reason to show leniency. Thus, when committing offences against their former master, they shall be sentenced like slaves who have been sold, that is [for committing offences] against a commoner.

[3] In the case under consideration, because her maidservant, Wu Yunzhu, had illicit sexual intercourse with Liu Chun who rented and farmed her land, Mrs. Niu Hulu expelled Liu Chun and exchanged Wu Yunzhu against a maidservant of Tuo Xinbao’s [Rong Hua’er]. Both were married to male slaves [of their new masters’ households]. Liu Chun still had sexual intercourses with Wu Yunzhu on repeated occasions. Until Rong Hua’er ran away. Suspecting that she took refuge in Tuo Xinbao’s home, Mrs. Niu Hulu went to Tuo Xinbao’s wife asking for the restitution [of Rong Hua’er], claiming that if Rong Hua’er was not there, she wanted to take Wu Yunzhu back. Wu Yunzhu informed Liu Chun of the situation. Feeling resent for Mrs. Niu Hulu having expelled him, Liu Chun formulated the plan to kill her to vent his anger. Once agreed with Wu Yunzhu, when Mrs. Niu Hulu came to take Wu Yunzhu back, Liu Chun murdered Mrs. Niu Hulu as the carriage was crossing the doorways.

[4] The general in charge considers that the mutual exchange of Wu Yunzhu with Tuo Xinbao’s maidservant, which took place years ago, is not different from a sale, and that [Wu Yunzhu] shall be judged for [committing the crime against] a commoner. Liu Chun shall [therefore] be sentenced to death by decapitation awaiting in jail with reference to the dispositions regarding those who formulate the plan in a killing plot. As an accessory who did not aid in the commission of the crime, Wu Yunzhu shall, according to the law, be sentenced to exile to 3.000 li and 100 strokes, and, following the heaviest penalty, be sent as a slave to the Oirats [in Mongolia].

[5] After scrutiny, we consider that cases of slaves plotting to kill their former masters shall always be decided upon considering whether [the bond] of solidary has been severed or not. When manumitting slaves and restoring them to commoner [status], masters wish to express their benevolence. As for redeemed slaves who are restored to commoner status, they leave their masters on their own volition. In such cases, injuries and homicides must be judged according to the principle of name distinction between master and slave, because [the bond of] solidarity has not been [completely] severed. Slaves who are exchanged one against the other, each serving a [new] master, are not restored to commoners by the exchange. What difference is there with reselling them as slaves? If, as the [Mukden] Department contends, the exchange of [female] slaves between two households resulting in the marriage of the two slaves with male slaves [of their new household] is different from reselling them, [and therefore means that] the bonds of solidarity and benevolence [with their former masters] have not been severed, then these slaves have two masters. If so, in the present case, the murder of Mrs. Niu Hulu should be punished with [Wu Yunzhu’s] death by slicing. However, assuming that [Wu Yunzhu had also] plotted to kill Tuo Xinbao, what higher penalty would remain to punish her?

[6] After deliberation, we [concluded] that Liu Chun’ plot to kill because of illicit sexual intercourse is particularly wicked. Following the general’s proposal that he be sentenced to death by decapitation awaiting in jail, [his case] shall be swiftly transmitted for final decision at the next Autumn Assizes. As for Wu Yunzhu, she has already been sentenced to the heaviest penalty and effectively sent to penal servitude. Her penalty cannot be increased, and it can only be done as suggested [by the general].

[7] Upon receiving an imperial edict ordering that we reinvestigate the possibility to increase Wu Yunzhu’s sentence, we respectfully concluded that the punishment of accessories in plots to kill who do not aid in the crime cannot exceed banishment with beating. In this case, although she was Mrs. Niu Hulu’s household servant, the criminal named Wu Yunzhu was exchanged with Rong Hua’er, a household servant of Mrs. Niu Hulu’s junior cousin Tuo Xinbao. Both [maidservants] served their [new master] for years. Thereby, they are not different from sold [slaves] and, according to the substatute [on slaves who kill their former masters, Wu Yunzhu] shall be punished for committing [the same crime] against a commoner. The criminal woman agreed with Liu Chun’s plot to kill Mrs. Niu Hulu but did not aid in the crime. Although Tuo Xinbao, the actual master of the criminal woman, had no mourning obligations towards Mrs. Niu Hulu’s husband, Ge Teng’e, the general considered that name distinction between juniors and inferiors remained. He proposed to sentence Wu Yunzhu to banishment for [committing an offence] against a commoner and to increase it. As a consequence, he sentenced [her] to the heaviest [possible] penalty of banishment as a slave, which was judicious and thorough. It seems like the case shall be closed by following the [general’s] proposal.

First year of the Jiaqing reign.

Translated by Claude Chevaleyre.

Original text