Medicine and the Law in Late Imperial China: Cases from the Xing'an Huilan (Conspectus of Penal Cases)

Abstract

In this paper, I explore the relationship between state and medicine in late imperial China through an examination of the legal statute pertaining to injury and death caused by incompetent physicians (yongyi shashang ren 庸醫殺傷人), and twenty cases collected in the Xingan huilan 刑案匯覽 (Conspectus of Penal Cases) and its supplements that were prosecuted under this statute. Medicine in late imperial China was interwoven into a complex intellectual, religious, and political landscape. The relationship between medicine and the law was rooted in specific legal and cultural traditions in China and points to cultural specificities in investigating the broader issues of state authority and control. The addition of the substatute yiduan fashu 異端法術 (heretical black art) under the statute of yongyi shashang ren in 1800 reflected Emperor Jiaqing's efforts to avoid heavy handedness in dealing with religious sects. Activities without evidence of seditious intent were to be sentenced based on this substatute, warranting a lighter punishment. The cases revealed a fluid boundary between the diverse healing traditions that were available to a patient. Women were active players in these various healing activities.

Keywords:

• yi (physician)
• yongyi (incompetent physician)
• Xing'an huilan (conspectus of penal cases)
• yiduan fashu (heretical black art)
• Emperor Jiaqing
• lü (statute)
• li (substatute)

Notes

1 For more recent assessments of Joseph Needham, see Morris F. Low, “Beyond Joseph Needham: Science, Technology, and Medicine in East and Southeast Asia” Osiris, 2nd series, vol. 13 (1998):1-9; Robert Finlay, “China, the West, and World History in Joseph Needham's Science and Civilisation in China” Journal of World History 11, no.2 (Fall 2000):265-303.

2 These scholars have insisted on rigorous analysis and reading of classical texts, they have also paved the way for a social and cultural approach of the history of science and medicine in China.

3 Benjamin A. Elman, On Their Own Terms: Science in China, 1550-1900 (Cambridge: Harvard University Press, 2005); A Cultural History of Modern Science in China (Cambridge: Harvard University Press, 2009).

4 The increasing legal authority exercised by the state constituted an important part of state-building in early modern Europe, and state regulation over the practice of medicine was one of the key factors of the professionalization of medicine in the nineteenth century. See John C. Burnham, How the Idea of Profession Changed the Writing of Medical History (London: Wellcome Institute for the History of Medicine, 1998). Ginna Pomata's Contracting a Cure: Patients, Healers, and the Law in Early Bologna (Baltimore: Johns Hopkins University Press, 1998) examines the practices of the Protomedicato, a judicial body with members selected from the College of Medicine in Bologna, in adjudicating medical and legal cases from the second half of the sixteenth century to the end of the eighteenth century. Pomata shows that “Malpractice cases….show the protomedici as being less sympathetic to patients' rights and more mindful of the collective interests of the medical profession.” (p. 112)

5 Explorations into the relationship between law and medicine in traditional China have focused mainly on forensic medicine and on madness. Vivian Ng, Madness in Imperial China (Norman Oklahoma: University of Oklahoma Press, 1990); Fabien Simonis, “Mad Acts, Mad Speech, Mad People in Late Imperial Chinese Law and Medicine” (Ph.D. dissertation, Princeton University, 2011).

6 For a detailed discussion on the reforms enacted by the Jiaqing emperor, see Wang Wensheng, White Lotus Rebellion and South China Pirates (Cambridge: Harvard University Press, 2014).

7 Xiao Jing, Xuanqi jiuzhenglun (Discourse on Rectification According to the Yellow Emperor's Treatise) Preface 1644 (Beijing: Zhongyi Guji Chubanshe, 1983), pp. 509-536.

8 Chao Yüan-ling, “The Ideal Physician in Late Imperial China: The Question of Sanshi,” in East Asian Science, Technology, and Medicine, number 17 (2000): 66-93.

9 See Michel Strickmann, Chinese Magical Medicine (Stanford: Stanford University Press, 2002).

10 Strickman also points out that “disease and its cure are a paramount focus in the earliest accounts of Taoism” (p.1) and Daoist priests had to compete with local cults for dominance. Elaborate spells and incantations were used and these continue to appear in various medical texts in late imperial times.

11 Xu Chunfu, “Yongyi subao,” (Urgent Report on Incompetent Physicians) in Gujin yitong (General Medicine of Past and Present), based on Ming (Chen Changqing) edition (1575-1578) and Japanese Mingli 明暦 三年 (1657) edition, 2v. (Beijing: Renmin weisheng chubanshe, 1991), vol.1 juan 3 “Yiyi tongkao,” 翼醫通考 (Comprehensive Study for Assisting Physicians) pp. 213-214. Xu noted with satisfaction later that the physician was dismembered by robbers within a year, truly reaping his own karma.

12 Song Ci, Xiyuan lu (The Washing Away of Wrongs) reprint, (Shanghai: Shanghai jishu chubanshe, 1981), p. 69. The buyingwei provision was a catch-all category which allowed the magistrates discretion in determining the criminality and in sentencing. The punishment for this was forty blows of the light bamboo or eighty blows of the heavy bamboo. See Sun Tz'u, The Washing Away of Wrongs, translated by Brian E. McKnight (Ann Arbor: Center for Chinese Studies, The University of Michigan, 1981), pp. 142-143, note 76. See also Fu-mei Chang Chen, “On Analogy in Ch'ing Law,” in Harvard Journal of Asiatic Studies 30 (1970), p. 213.

13 Peng Songyu, “Zui yongyi yi” (A Discussion on Blaming Incompetent Physicians), in Huangming jingshiwen xubian (Supplement to the State Administration Essays of the Great Ming), Ed. by Sheng Kang in Qingchao jingshi wenpian ji shuoyin bazhong huikan (Qing Dynasty Statecraft Writing Collection and Compilation of Eight Indexes). 1897 edition, juan 32, pp. 26a-b.

14 Ibid.

15 .Xu Dachun, “Kaoshi yixue lun” 考試醫學論 (On Examinations in Medicine) in Yixue yuanliu lun 醫學源流論 (Discourse on the Source and History of Medicine), preface 1757, part b (Beijing: Zhongguo shudian, 1987), pp.14a-b

16 For a discussion on supplements in Tang codes see Niida Noboru, Hotei Chûgoku hosei shi kenkyu 4v. revised edition (Tokyo: Tokyo University Press, 1981), vol.1, p. 265.

17 Daming lu, Yongyi shashang ren, xinglu (Great Ming Code with Substatutes, incompetent physicians killing or injuring people, statute of punishment), 1579 edition, (Beijing: Falu chubanshe, 1998), p.156. With the exception of one character, the wording is the same in Wanli (1587) edition of the Daming huidian (Great Ming Administrative Statutes) vol. 4 (Taipei: Dongnan shubaoshe, 1964), p. 2351.

18 Niida Noboru has pointed out that the distinction between intentional and unintentional in the determination of punishment and guilt can be found in the classics such as the Shangshu and were later codified in law. Within these two categories there are further differences such as premeditation, and status of the individuals involved. See Niida Noboru, Hotei Chûgoku hosei shi kenkyu 4v. revised edition (Tokyo: Tokyo University Press, 1981), vol.1, pp. 203-209. Thomas Buoye also pointed out the importance of intent in homicide cases. “Suddenly Murderous Intent Arose: Bureaucratization and Benevolence in Eighteenth-Century Qing Homicide Reports” in Late Imperial China 16, no. 2 (December 1995): 70-72.

19 Xue Yunsheng 薛允升 (1820-1901), Duli cunyi 讀例存疑(Concentration on doubtful matters while perusing the sub-statutes) (Beijing: Hanmao cai, 1905), juan 34, p. 43. Xue was one of the last presidents of the Board of Punishments, and this work is a commentary on the Da Qing luli (Great Qing Code with Substatutes). Xue's painstaking notes on the code helped to clarify when many of the substatutes were appended.

20 It is not clear how this is carried out since there were no licensing laws. Presumably the local magistrate would be responsible. However in my readings of the writings of physicians or literati, I have not come across any mentioning of cases in which physicians were barred from practicing. There were also no legal cases dealing with this violation.

21 Xue Yunsheng, Duli cunyi, juan 34, p. 43.

22 Ibid.

23 Ibid., p.44.

24 Wang Wensheng, White Lotus Rebels and South China Pirates, p. 254.

25 William T. Rowe, “The Significance of the Qianlong-Jiaqing Transition in Qing History” Late Imperial China 32, no. 2 (December 2011), p. 85.

26 Quoted in Wang Wensheng, p. 183.

27 The Board of Punishments was one of the Six Ministries that constituted the administrative core of the imperial government. According to Hucker, AIn general, the Ministry supervised the administration of justice and the management of prisons and convicts throughout the empire, often collaborating with the Censorate (yushi tai, du cha yuan) and the Court of Judicial Review (da li si); these 3 agencies were known collectively as the Three Judicial Offices (san fa si). Charles O. Hucker, A Dictionary of Official Titles in Imperial China (1985; reprint, Taibei: Southern Materials Center, Inc., 1988), p. 245.

28 The edition that I am using is Xing'an huilan, 60 juan, pp. 2152-2157; fu xuzeng Xing'an huilan, 16 juan, pp. 4359-4361, (1886; reprint, Taibei: Chengwen, 1968). Xinzeng Xing'an huilan 16 juan (Beijing: Beijing Airu sheng shu zi hua ji shu yanjiu zhongxin, 2009); Xing'an huilan xubian, 1900 edition, 10 vol. (Taipei: Wenhai chubanshe, 1970).

29 See Fu-mei Chang Chen, “On Analogy in Ch'ing Law” Harvard Journal of Asiatic Studies 30 (1970): 212-224.

30 Kathryn Bernhardt and Philip C.C. Huang eds., Civil Law in Qing and Republican China (Stanford: Stanford University Press, 1994), p. 14.

31 As quoted in Bodde and Morris, p. 151.

32 Bodde and Morris, pp. 151-152.

33 Cases will be given numbers from 1-20. Six of these have been translated by Bodde and Morris.

34 Fabien Simonis also pointed out the importance of intent in cases of madness, Mad Acts, Mad Speech, and Mad People in Late Imperial Chinese Law and Medicine, pp. 423-424.

35 Ye Tianshi 葉天士, Linzheng zhinan yian 臨証指南醫案 (Case Reports for Guide to Clinical Practice), preface 1764, commentary by Xu Lingtai (Shanghai: Renmin chuban she, 1976), pp. 791-792.

36 Xu Dachun 徐大椿, “Yizhe wuren wuzui lun,” 醫者誤人無罪論 in Yixue yuanliu lun (Discussion on the Origins and Development of Medicine), preface 1757 (Beijing: Zhongguo shudian, 1987), part b:16b-17a.

37 The physician evidently did not realize that the chuanwu that he bought from the itinerant herbal vendor had not been treated and also was mixed in with caowu. Both untreated chuanwu and caowu could be poisonous. Thus it was a failure to distinguish between the two and carelessness that led to the death of the two patients.

38 Xiao Jing, pp. 509-536.

39 See Yi-li Wu, Reproducing Women: Medicine, Metaphor and Childbirth in Late Imperial China. By Yi-li Wu (Berkeley: University of California Press, 2010). Charlotte Furth, A Flourishing Yin: Gender in China's Medical History, 960-1665 (Berkeley and Los Angeles: University of California Press, 1999).

40 These three were Huangdi (Yellow Emperor), Shennong (Divine Husbandman), and Fuxi (Ox-tamer). They were considered as the progenitors of Chinese civilization and early medical classics such as the Huangdi neijing (The Inner Canon of the Yellow Emperor) and the Shennong bencao jing (The Canon of the Divine Husbandman=s Materia Medica) were attributed to them, thereby forging a close relationship between the classical literate tradition and the medical tradition. See Chao Yüan-ling's “State and Medicine: The Sanhuang miao (Temple of the Three Emperors) in Medicine and Society in Late Imperial China (New York: Peter Lang, 2009), Ch. 2.

41 Nathan Sivin has recently dealt with the issue of how to evaluate efficacy in traditional medicine. Nathan Sivin, “The Question of Efficacy,” Asian Medicine 10 (2015): 9-35.

42 Roy Porter, Health for Sale: Quackery in England 1660-1850 (Manchester: Manchester University Press, 1989), p. 24.

Additional information

Notes on contributors

Yüan-Ling Chao

Yüan-ling Chao is a Professor in the History Department at Middle Tennessee State University. Her research focus is on the history of medicine in late imperial China. She is the author of Medicine and Society in Late Imperial China: A Study of Physicians in Suzhou, 1600–1850 (New York: Peter Lang, 2009).