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shemian 赦免, amnesty

May 14, 2017 © Ulrich Theobald

Amnesty (shemian 赦免, sheyou 赦宥, shechu 赦除, yuanshe 原赦) is a principle by which the "measure of guilt" (zuize 罪責) or the grade of punishment (xingfa 刑罰) is reduced or nullified.

The term she 赦 first appears in the chapter Yaodian 舜典 of the Confucian Classic Shangshu 尚書, where it is said that "inadvertent offences and those which could be ascribed to misfortune were to be pardoned" (sheng zai si she 眚災肆赦), and in the explanation to the hexagram Jie 解 in the Classic Yijing 赦免, where the text says that the superior man "forgives errors, and deals gently with crimes" (she guo you zui 赦過宥罪). The chapter Sici 司刺 "XXX" in the ritual Classic Zhouli 周禮 speaks of three types of amnesties (sanshe 三赦), namely pardon for children (7 sui old and younger) and weak persons (youruo 幼弱), pardon for the elderly (laomao 老耄, 80 sui and older), and pardon for simpletons or mentally retarded persons (chunyu 蠢愚).

In the beginnings, amnesties were only applied in individual cases, be it that the crime was not intentionally committed, or that the innocence of the accused was eventually proved (yiyu 疑獄 "mistakenly convicted"). From the Spring and Autumn period 春秋 (770-5th cent. BCE) on, individual feudal lords proclaimed general amnesties in their territories. An empire-wide general amnesty (da she [predicate] xianxia 大赦天下) is first proved in 208, under the Qin dynasty 秦 (221-206 BCE). After the foundation of the Han dynasty 漢 (206 BCE-220 CE), Emperor Gaozu 漢高祖 (r. 206-195 BCE) proclaimed nine general amnesties, in just twelve years of rule. The application of general and individual amnesties were by and by regularized and brought into the form of a law.

Some emperors proclaimed a general amnesty (dashe 大赦, sishe 肆赦) every three years, others each year, and some even several per year. The application depended on political circumstances, and there were some regular occasions, when a general amnesty was expected. Such were an accession to the throne of a new emperor, the change of a reign motto, the bestowal of the imperial title of empress dowager (taihou 太后) to the emperor's mother (or the late emperor's principle consort), the nomination of an empress (huanghou 皇后), that of a heir apparent (taizi 太子), the birth of an imperial grandson, the execution of grand sacrifices to Heaven and Earth, or of other grand rituals (da dianli 大典禮), victory in war, the opening of new territories for agriculture, or when plagues or natural disasters afflicted greater parts of the empire.

There were some exceptions from the general amnesty (changshe suo bu mian 常赦所不免, changshe suo bu yuan 常赦所不原), namely the "ten abominations" (shi'e 十惡), murder, the six types of illicit appropriation of money (liuzang 六贓, tanzang 貪贓), arson, and tomb robbing. On the other hand, rebellion and sedition were sometimes included in the catalogue of pardonable crimes. The "ten abominations" were plotting rebellion (mou fan 謀反), plotting great sedition (mou dani 謀大逆), plotting treason (mou pan 謀叛), contumacy (eni 惡逆), depravity (bu dao 不道), great irreverence (da bu jing 大不敬), lack of filial piety (bu xiao 不孝), discord (bu mu 不睦), unrighteousness (bu yi 不義), and incest (neiluan 內亂). The "six types of illicit appropriation of money" were to take bribes by subverting the law (shou cai wang fa 受財枉法), to take bribes without subverting the law (shou cai bu wang fa 受財不枉法), to take goods and articles within one's area of jurisdiction (shou suo jianlin caiwu 受所監臨財物), robbery by stealth (qiedao 竊盜), robbery by force (qiangdao 強盜), and illicitly obtaining goods by malfeasance (zuozang 坐贓).

Amnesties restricted to certain "remote" (qu 曲) areas of the empire were called qushe 曲赦 "hinterland amnesties", such to individual cases, "extraordinary amnesties" (teshe 特赦, bieshe 別赦). The first instance in historiography for the former is seen in 269 CE, when pardon on five-year long penal servitude (wusui xing 五歲刑) was proclaimed for the region of what is today northern Vietnam. Concerning this type of amnesty, the Song period 宋 (960-1279) writer Ma Duanlin 馬端臨, author of the statecraft encyclopaedia Wenxian tongkao 文獻通考, explains that the term shemian referred to the capital city, while amnesties for both capital cities, two circuits (lu 路), one circuit, several prefectures, or one prefecture, were called qushe.

Amnesties proclaimed in relation to the suburban sacrifices to Heaven and Earth (jiaoji 郊祭) were called "amnesties of the suburbs" (jiaoshe 郊赦). The first instance was 165 BCE, and the pardon was thereafter mostly carried out annually, just like the sacrifices were an annual duty of the emperor. From the Song period on, they became a triennial event. General amnesties were not concerned.

While these types of amnesty were regular forms of pardon (changshe 恩赦), "amnesties by grace" (enshe 恩赦) were proclaimed irregularly. The number of cases excluded from amnesties by grace was generally higher than that of regular amnesties.

Table 1. Difference between general and extraordinary amnesty
general amnesty (dashe 大赦) extraordinary amnesty (teshe 特赦)
reduction or revocation of "guilt" (zui 罪) and punishment (xing 罪) reduction or nullification of personal punishment
abstaining from execution of punishment and of persecution (zuisu 追訴) abstaining from execution of punishment
effectuated before and after the pronouncement of a sentence effectuated after the pronouncement of a sentence
general pronouncement, without reference to individual persons reference to individual culprits

Amnesties were proclaimed in the shape of particular documents, the amnesty letters (sheshu 赦書, shewen 赦文, sheling 赦令, sheming 赦命, shezhao 赦詔, shedian 赦典, deyin 德音). During the Tang 唐 (618-907) and Song period the "letters" were officially pronounced and read aloud, before being transmitted to the offices concerned, which in turn sent them around throughout the empire. The amnesty letters included a reason, a date of value, and a detailed description of what culprits were given pardon. The law code Tanglü shuyi 唐律疏議, for instance, says that only crimes were pardoned which were committed before the dawn on the day of proclamation. The chapter on the penal law (50 Xingfa zhi 刑法志) in the official dynastic history Jiutangshu 舊唐書 explains that before the outer gate of the imperial city, a golden rooster (jinji 金雞) and a drum were positioned. All culprits assembled before these implements, and a drummer gave one thousand beats, while the amnesty was proclaimed.

The oldest surviving amnesty letter was proclaimed by Emperor Wen 魏文帝 (r. 220-226) of the Wei dynasty 曹魏 (220-265). It is called She Liaong limin wen 赦遼東吏民文.

The concept of general amnesty was abolished in China with the constitution of 1975.

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