Capital punishment in Themiclesia

Capital punishment was once practiced in Themiclesia as a mandatory punishment for a number of political and personal crimes, but it has been abolished in 1853; as of 2018, it is no longer a penalty stipulated for any crime in Themiclesia. Its abolition was politically motivated during a period of national confusion resulting from rapid industrialization, in order to enhance the government's reputation and national morale, by appealing to both the traditional portrayal of a utopian society and the ideals of Enlightenment. Though many cautioned against it initially, few dared to oppose it openly. However, in at least one case, the House of Lords gave a capital sentence through the process of impeachment, last in 1948.

History

Capital punishment has been practiced as a punishment for those committing for a wide range of offences and those who are related to said perpetrators.

Crime		4th century	6th century	18th century
Treason	謀反	Dismemberment	Dismemberment	Strangulation
Lese-majeste causing damage	不敬	Strangulation	Strangulation	Strangulation
Counterfeiting royal seal	寫公之璽	Dismemberment	Dismemberment	Strangulation
Counterfeiting baronial seal	寫徹侯若倫侯璽	Dismemberment	Dismemberment	Strangulation
Counterfeiting official seal	寫公璽	Strangulation	Slavery with hard labour	Slavery with hard labour
Counterfeiting clerk seal	寫小官印	Slavery with hard labour	Slavery with light labour	Slavery with light labour
Murder	賊殺人	Strangulation	Strangulation	Strangulation
Manslaughter	誤殺人	Ransom for strangulation	Ransom for strangulation	Imprisonment
Conspiracy to murder	謀賊殺人	Strangulation	Slavery with hard labour	Slavery with hard labour
Mayhem	賊傷人	Strangulation	Slavery with hard labour	Slavery with hard labour
Conspiracy to mayhem	謀賊傷人	Strangulation	Slavery with light labour	Imprisonment
Battery	毆人	Amercement	Slavery with light labour	Imprisonment
Banditry	群盜	Dismemberment	Strangulation	Strangulation
Robbery	劫人財	Strangulation	Slavery with hard labour	Slavery with hard labour
Abduction and sale as slave	略人若賣人為臣妾	Strangulation	Strangulation	Strangulation
Rape	強與人奸	Strangulation	Strangulation	Slavery with hard labour
Sex with minor	和奸童子	Strangulation	Strangulation	Slavery with hard labour
Sabotaging an army on expedition	灋軍興	Dismemberment	Strangulation	Slavery with hard labour
Inciting mutiny	灋陳不鬥	Strangulation	Strangulation	Strangulation
Desertion	私去署	Slavery with hard labour	Strangulation	Imprisonment
Aggrandization of the enemy	譽適以恐眾	Strangulation	Strangulation	Imprisonment

Origins of capital punishment

It is unclear if Themiclesian societies practiced capital punishment as such prior to the Hexarchy. Received histories do not ascribe a judicial apparatus to prehexarchal government, which appeared in the states in the 2nd century BCE. The traditional tool of execution, the axe, was used in a ritualistic context to kill sacrificial victims, especially humans, but there is otherwise no obvious connection to earlier practices. There is no judicial record in the oracles, and bronzes only record oaths that invoke divine and physical punishment for stipulated misbehaviour. For capital crimes as understood by later jurists, oaths generally appoint fines, corporal punishment, or exile, but these were breaches of commitments by one individual to another, rather than laws imposed on a general public.

In Tsjinh, it appears traitors were usually exiled. In the 3rd and 2nd centuries BCE, violence against a person was regarded as an offence to his clan, which is entitled to redress from the perpetrator's clan; the agreed penalty could be compensation or, in rare cases of specific demand, retribution by mutilation or death. This retribution need not occur to the specific offender: a bronze promises that one clan will kill four slaves in lieu of one of its members' accidental killing of a member of the agrieved clan.

The first uncontested reference to capital punishment in Tsjinh appears in 101 CE, immediately after Patriarch the Wise (r. 71 – 105) annexed several colonies and settlments held by extinct aristocratic houses. A long edict commanded newly-appointed magistrates to judge colonial residents only according to "former decisions" of his ancestors and to impose only sanctioned punishments—mutilation, slavery, and death.  He also commanded that punishments must be carried out in a public place, so as to quell doubt as to how malfeasors were disposed of, which was frequently a source of dispute when vengenace between families was common.

Royal jurisdiction over capital crimes was not complete by Sungh and Rjang times. A crime occurring between clan members was not considered within royal jurisdiction, but that of the clan itself. Even when the nuclear family had displaced the clan as fundamental social organization, suits about parents killing or multilating their offspring was not admissible at a royal tribunal; this does not meant the act was not culturally reprehensible, only that it was be resolved within the clan or family. The only exception was if a clan member had killed his clan patriarch, in which case the suit must be raised by other members of the clan to be admissible. In the Sungh period, it was legislated that parents may kill their offspring only if they had been violent towards themselves, but it is unclear how broadly was this rule applied.

Gradual remittance

The extent of capital punishment was first reduced when the Meng dynasty was restored in Themiclesia, under Emperor Ngjon, who wanted to appear magnanimous to those who opposed him and to appeal to the populace, which was doubtful of his rule. Though unable or unwilling to reform the penal code with hundreds of capital crimes, he did insist on clothing the condemned. However, later in the dynasty heavy taxation and frequent expropriation encouraged revolts, which were dealt with harshly; this resulted in an expansion of capital offences.

Under the Dzi dynasty (752 – 1185), capital punishment was prohibited for minors under 7, the elderly over 80, and the disabled, in observance of Confucian ethics and the development of a "caring state" that responded to its people's feelings. The number of capital crimes also decreased, and the practice of capital punishment by association was limited to sedition and the perpetrator's immediate family after 818. Methods of execution were limited to decapitation and strangulation in the same year, with bisection and dismemberment deprecated. The final development occurred in the 18th century, when Casaterran concepts of humanism reached Themiclesia. The ancient prerogative of suicide, originally for the aristocracy, was extended to commoners.

End of public executions

In 1580, the prime minister Lord of Go-ljang was implicated in a scandal where his 12-year-old son imitated a public execution to strangle another child. Due to the unpopularity of Go-ljang, the incident was propagated as an example of the corruptive influence of his government. While Go-ljang could claim privilege for his son and avoid trial, he forced his son to commit suicide in a futile effort to appease public emotions. Go-ljang then outlawed public executions in the capital city Kien-k'ang to the same end. In the decades following, many counties moved execution grounds to remote areas or into prisons instead. By 1700, public executions occurred only for cases attracting public attention and was soon considered distasteful amongst the political classes.

Accompanying punishments

If an individual was sentenced to death, then his household was subject to forfeiture (孥, na), whereupon his spouse and children became public slaves (隸臣妾, rjebh-gjên-ts′jap) and his property confiscated. This is comparable to the medieval notion of felony in Casasterran judicial systems. According to some authorities, forfeiture was a more effective deterrent than capital punishment itself, since seized individuals and their offspring were not released. The government sometimes granted amnesties to prevent slave populations from growing beyond control, but this was not a regular occurrence. Public slaves were a considerable economic resource used for construction and manufacture, to the extent that some historians describe a "criminal economy" in Themiclesian history. Initially, public slaves could be sold by the state and were treated as chattel; after the Slave Rebellion of 382, they acquired retained certain rights and liberties. Forfeiture was abolished in 1508.

Abolition

Starting from the early 1800s, the ideals of the Enlightenment found resonance within the political classes, and one of its tenets was the rationality of individuals and government. Abolitionist pamphlets proposed that capital punishment accomplished little for society's progressive goals and had no true deterrent effect on crime, since "year after year heads are chopped off, and year after year there are more heads to chop." The existence of crime was attributed by these authors to factors other than the lack of punishment, and the irreversibility of the death penalty also became problematic in their eyes, having little faith in courts away from the capital city as the centre of litigation and juristic study and reform.

While traditional jurisprudence viewed humans as rational actors, it recognized virtually unlimited power in the state to impose penalties to compel actions. The existence of crime, under such a paradigm, was attributed to a lack of disincentive or enforcement. Reformists challenged this school of thought on several fronts, amongst them the very central idea that punishments were imposed for purely utilitarian reasons, as a disincentive to actions the state sees fit to forbid.  They also forwarded the idea that, even though laws do no change, the number of criminals does, which suggests that the cause of crime was not related to the severity of punishments and punishment was not an omnipotent device by which any crime can be discouraged to the rational mind.

Much of the judicature was against abolition of capital punishment and advised the court not to adopt these opinions that became quite popular. The President of Tribunes took abolitionism to be a fad, though he did not make arguments against it. However, the opinion of the judicature changed when a series of Casaterran travellers published accounts of executions in Themiclesia. An 1842 pamphlet documented a public execution in Kien-k'ang, describing the "sanguine and horrifying affair" that "even its many burgesses would not approach." The work focused not only on the victim's unpleasant deaths and their varying demeanour near it, but also the stresses caused to the executioner, who was "reduced by the rigours of his duties to a dumb wreck, having severed 14 heads and strangled 30 necks, and only salvaged by the tender kindness of the services of a cab."

On the other hand, the magistrates and Royal Counsels were "wholly and visibly satiated by the discharge of their judgments," and refusing the executioner any rest. Further, since executioners were drawn at random from prison guards, and those were selected from the city's militia in shifts, "any denizen of the city may one day find himself holding the axe and rope." The pamphlet concluded that the "majesty of the law terrifies even executioners." Several authorities sought audiences with the government regarding this publication, and the Prime Minister Lord of Ran became concerned executions reflected negatively on the government and judicature.

In 1853, the Rjai-ljang Government reformed the Penal Code, replacing capital punishment with penal servitude, which was argued by Rjai-lang as a way for criminals to repay their debts to society. This form of servitude was always for life and was considered as harsh as capital punishment, and records show that many were worked to death, on public projects dredging canals, building roads, and mending city walls. Parliament permitted leases on such labourers to private projects. While many argued that capital punishment should be restored, penal labour replaced many local services that peers were expected to perform at their own expense, so they were largely in favour of retention. In 1895, Liberals argued that penal servitude resembled slavery and was prejudicial to national reputation and so advocated for its abolition. In 1912, penal servitude as a separate form of punishment was replaced with imprisonment with hard labour. While penal slaves could be required to perform hazardous and painful work, hard labour in prison was more constrained and, in some cases, voluntary. Better regulations also existed to protect the health and prospect for resocialization, which were not extended to penal slaves.

In the armed forces, the situation was less transparent. The militias were not subject to military law except when active beyond their home prefectures, and the reform of the Penal Code is understood to prohibit capital punishment in that context. However, in one case case in the South Army, a murderer was still caned to death in 1854. Naval law away from shore permitted captains and the Naval Tribune to throw "dangerous and violent" men overboard in an emergency, but in 1856 captains were directed to order marines to suppress such an incident first, before that action could be taken. The actual number of those thrown overboard is hard to estimate, since the navy recorded such deaths as "missing". There is at least one marine thrown overboard for the that reason since 1856. In other cases, capital punishment was replaced by penal servitude.

Procedures

Ordinary law

Judicial independence developed relately late in Themiclesia, as judicial power was formally held by local magistrates; however, magistrates were usually trained in jurisprudence. Additionally, justiciars (執法, tjep-pjap) were also appointed to answer commoners' legal queries and assist the local magistrate. If a judgment was believed illegal, a litigant could request a retrial or ask the justiciar for an appeal. However, in case of a capital crime, the prisoner was not permitted to request a retrial; instead, his relatives must appeal on his behalf. The rationale for this rule is not clear.

Most courts, excluding those of special jurisdiction, could try capital crimes. Under the principle of restraint and in view of the irreversibility of capital punishment, the retrial system showed a general trend towards more caution and safeguards. Early in the Tsjinh dynasty, a capital sentence could only be passed by an administrator of the 2,000 bushel rank. After this, the judgment was submitted to the Court Justiciar (廷尉, lêng-′judh). If he was satisifed that the judgment stands, he then submits it to the Vice Chancellor, Chancellor, and Council of Peers. The Council of Peers would seek the emperor's approval before ordering an execution. After 1845, the House of Lords reviewed capital crimes by a majority vote, and the emperor's role was reduced to a ceremonial one.

Martial law

While there was no specialized military law code until fairly recently, specific offences were only applicable to military officials and soldiers in specific positions. Early Themiclesia had no standing military, and it seems militiamen in their home prefectures breaking ordinary laws were tried by the prefecture's marshal and punished as civilians. When units were sent across prefectural borders, the court usually appointed a general to oversee their actions, who tried and punished them likewise. Cowardice (懦, sno) was punished by penal servitude for militiamen, but a cowardly petty officer would suffer death, since his cowardice impaired his entire unit.  Prefectural marshals and generals were at the 2,000 bushel rank and could pass capital sentences in their own right, though generals' commissions usually contained more specific provisions regarding their judicial powers.

In many cases generals were not required to submit their capital sentences for review before execution; however, certain checks still existed to prevent abuse. Whenever a general was appointed, a tribune (監御史, k.ram-ngjah-srje′) was ordered to follow and monitor the general. The tribune was invariably a highly-trained jurist. While this was done most likely to prevent treacherous negotiations with the enemy, the tribune's purview extended over all of the general's actions. While tribunes may not prevent the general from taking decisions, they could report them after the fact; such reports were taken quite seriously by the court, and even victorious generals may be executed if found grossly violating laws. Additionally, a general's commission included a staff, one of which department focused on judicial affairs. Generals relied on jurists in this office to inform his decisions, if they were later contested by the tribune.

The Themiclesian navies possessed distinct rules relating to capital punishment. Save in battle, killing on board was prohibited, as it was deemed a curse. To lift it, crew members ironically killed prisoners of war and painted their sails with human blood, which was supposed to appease the restive spirits; this practice was recorded by astounded travellers in the 6th century as a barbaric nautical tradition. Later, other ceremonies were substituted. Maritime law permitted ship captains to throw individuals overboard if they were dangerous and violent. After the military navy was founded, this authority was retained above judicial powers the captain held over his crew. Since captains were not sufficiently senior to pass capital sentences, they relied this ancient power to rid the ship of troublemakers. Without a prison, this in the early navy was frequent. In the 10th century, naval tribunes were appointed to give additional oversight in the fleet, in much the same way over generals.

In the Colonial Army, the generalship and staff offices were made standing components.

Execution

Themiclesia executed prisoners publicly in most contexts before the 16th century. Most executions occurred in the jurisdiction where the sentence was initially passed, since the prisoner would be held there. When an execution has been approved, warrants were issued by the Chancellor to the prefectural magistrate and tribune, who would set the date of execution and notify the county where the prisoner is held. Executions took place near the seat of the magistrate for convenience. After the county magistrate receives the warrant, the prisoner's limbs were restrained to prevent suicide or escape. Public executions were stopped in 1584 in the capital city due to a scandal involving a prominent minister.

Dismemberment, as the most severe form of capital punishment, was always carried out in public. Since the law provided that dismemberment implied strangulation of the prisoner's family, this was done first. The prisoner would be fastened to a wooden frame in the spreadeagle position. After being caned, the prisoner's nose and ears were first sliced off. The left leg, right leg, left arm, and right arms would be severed in this order. Then, the prisoner was cut in half along his waist, and his organs were pulled out and scattered. After this, his eyes and tongue were cut out. When the prisoner is almost dead, his head is severed, and what remains of his body was chopped into pieces so that a complete burial was impossible.

Bisection and decapitation were carried out by axe. The axe was made by the Department of Instruments (內官, nubh-kwar), which otherwise produced standardized weights and measures. Measuring from an unissued one, the axe head weighed 9.5 kg and had a curved blade around 33 cm. There is no record of the lenght of the pole to which the axe head was mounted, though such regulations are likely to have existed. A wooden block (質, tjit) was used to position the prisoner's waist or neck. In some periods, it was customary to display decapitated heads in public places, particularly for highly-anticipated cases; after a given interval, displayed heads would be retrieved and united with the body.

Strangulation was performed with a rope fastened around the prisoner's neck and twisted taut to cause asphyxiation.

When an execution took place, a tribune must be present to record it. Prisoners in the counties were usually executed at the end of the fiscal year starting from the middle of the eighth month to the end of the ninth, so that the county would not budget their rations in the following year. The prefectural tribune would tour the counties during this period and record executions occurring before him. In the capital city, executions occurred year-round.

Themiclesia did not employ professional executioners. Who the executioner was depended on the court passing the sentence and the site of the execution. If the sentence was meted out by the Privy Treasurer or Comptroller of the House, a slave in their respective departments performed the execution.  If the prisoner was in a county or prefectural magistrate's court, the sentence was carried out by one of the prison guards. Since prison guards were drawn from the local militia, any militiaman could be selected to execute prisoners if they happened to be positioned in prison on the day of execution. Traditions indicate that this was an undesirable assignment, though there is little record of public shame or ostracism as a result. In a marching army, a soldier would be selected ad hoc for this purpose; likewise in the navy, the captain can order any person onboard to throw a dangerous person into the sea.

A considerable amount of information about executions come from Casaterran visitors' accounts, since Themiclesians themselves found writing about such topics distasteful. According to such accounts, botched executions were frequent, and in 1514 children as young as 10 were publicly executed.

Aliens

Unless spying in Themiclesia on behalf of an enemy state, aliens were rarely executed even if convicted of a capital crime. This is generally because Themiclesia found it risky to execute individuals of unknown origins. Some jurists also considered it unlawful to punish foreigners for crimes and under laws unique to Themiclesia. After conviction, alien criminals were usually deported. This policy continued up to the abolition of capital punishment.

In popular culture

Dramatic portrayals

Historical drama frequently depicts individuals being sentenced to death and executed instantly; however, there are no historical records of such occurrences. As state above, there is a complex procedure around capital punishment that, for reasons of dramatic portrayal, would be of little interest to the audience. There is also a tendency to depict executioners shirtless and wearing a mask of some kind, for which there is no historical basis in Themiclesia. Authorities regard this an example of influence from Casaterran theatre, where executioners have this stock appearance.

The last executioner

According to public records, the last executioner was the owner of Hing-lang-shiang (興洋商), a store selling imported candies. The owner was 21 when selected to behead 8 and strangle 26 prisoners on Dec. 10, 1853. In 1903, he was interviewed for his experiences that day, which he described as "something he would never discuss again"; he said he strongly opposed capital punishment, because "nobody should be in [his] position [in 1853], in a civilized society".  His store later became a teahouse that is still running today. In 1905, an account of his experiences and those of eight Themiclesians who have been called to perform executions were published by the International Committe for Abolition of Capital Punishment.

Amongst the things he revealed before his death in 1906, he said that he counted himself extremely lucky to have remained a stable and employable person, since in his youth the ill-effects of executioner duty were widely known. He gives the example that a Mr. Gam was assigned to execute 71 prisoners in 1821, and only several days hence, he was found to have committed suicide, providing additionally that these tales were not at all infrequent. His family's application for compensation was refused by the Board of Royal Counsels. Then, he addressed some claims advanced by retentionists that employing volunteer executioners would resolve this problem:

Someone can volunteer to dredge up the filth from the sewers, but the diseased odours and miasmata are the same, whether he is paid, or a beggarly or princely sum. The evils inevitably caused to individuals will not thereby be reduced by any degree, and so will it not, in this case. I think the government has eliminated a great evil that befalls the innocent people to employ any kind of capital punishment.

See also

• Themiclesia