Capital punishment in Themiclesia

Capital punishment in Themiclesia was once stipulated 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.

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.

Origins of capital punishment

It is unclear if Themiclesian societies practiced capital punishment as such prior to the Classical Period. Received histories do not ascribe a judicial apparatus to Pre-classical government, which appeared in the states in the 2nd century BCE. The traditional tool of execution, the axe, was formerly ritualized in the context of human sacrifice, but there is otherwise no obvious connection between them. 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 Tsins, it appears traitors were usually exiled after their lands were confiscated. In the 3rd and 2nd centuries BCE, violence against a person was regarded as an offence to the 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 give 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.

In the 4th century, royal authority expanded and created the relatively stable territory that is today known as the Demesne, where there is a unitary public authority and a widely-applied legal code. The Code of Kr′ang (康彝) was promulgated in 318 and replaced some customary laws with codified ones; capital punishment was imposed for crimes that principally endangered royal rule, but it was also stipulated for crimes such as an unavanged murder. The Code still permitted certain forms of vengeance, e.g. if a slave killed or injured one owned by another person, the other owner is permitted to kill a similar slave belonging to the owner of the first (but not necessarily the one that killed) or take them as compensation.  

By the late 4th or early 5th century, it appears that personal offences became the exclusive purview of the royal justice system, which imposed capital punishment for murder and rape. It is understood that the prototypical methods of execution—decapitation and strangulation—already existed in this period. There was a third form of execution called "suspension" (巠) whose nature is unresolved. Previous scholars compared it with the Casaterran practice of hanging, but in 1956 Burton disproved this comparison with an 5th century account of two condemned prisoner conversing while "suspended". He argues that "suspension" more likely entailed death by exposure or starvation, rather than asphyxiation, though he also admits this is only a conjecture. Suspension was characterized as a punishment for offences against family law.

In the 4th century, the penal law evolved from customary law into written law. In this process, homicides were formally classified as intentional and unintentional, and only intentional homicides could lead to capital punishment. Sexual crimes too underwent a process of differentiation. In 384, the law restricted the crime of rape to instances where the female victim was unwilling; however, where the female victim was under 15 years of age, her willingness remained irrelevant, and anyone who had sexual intercourse with her was guilty of a capital crime.

Remittance and reimposition

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 Lord of Gwa-lang was implicated in a scandal where his 12-year-old son imitated a public execution to strangle another child. Due to his unpopularity, the incident was propagated as an example of his corruptive influence. While Gwa-lang could claim privilege for his son and avoid trial, he forced his son to commit suicide in a futile effort to appease public emotions. He then outlawed public executions in the capital city Kien-k'ang. In the decades following, many counties moved execution grounds 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, mna), whereupon his spouse and children became public slaves (隸臣妾, reps-gin-stsap) and his property confiscated. This is comparable to the 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", created by the commutation of death to slavery and the pressuring of judges to impose slavery more often. Initially, public slaves could be sold by the state and were treated as chattel; after the Slave Rebellion of 442, they acquired retained certain rights. Forfeiture was abolished in 1601.

Abolition

Starting from the early 1800s, the ideals of the Enlightenment found resonance within the political classes. Abolitionist pamphlets argued that capital punishment accomplished little for society's goals and had either no effect or an unsatisfactory on crime, since "year after year heads are chopped off, and year after year there have been more heads to chop off." 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 argued that the state should be proactive in imposing costs and rewards to prohibit or compel actions it requires. The existence of crime was attributed to a lack of disincentive or poor enforcement. Reformists challenged this school of thought on several fronts, amongst them the very central idea that punishments were imposed for utilitarian reasons.  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 grew in popularity. The Tribunes took abolitionism to be a fad that would naturally abate in the 1830s. However, the opinion of the judicature changed when Casaterran travellers published accounts of executions in Themiclesia. One documented a public execution, describing the "sanguine and horrifying affair" that "the city's burgesses would not approach." The document focused not only on the victim's unpleasant deaths and their demeanour near it, but also described stresses caused to the executioner, who was "reduced by the rigours of his duties to a dumb wreck." Conversely, the magistrates and Royal Counsels were "satiated by the discharge of their judgments".

The Prime Minister Lord of Ran became concerned executions reflected negatively on the government and judicature and the potential for dissent if an execution turned out to be wrongful. To this effect he argued for the commutation of capital punishment for a large variety of crimes, except murder.

In 1853, the Rjai-ljang Government abolished capital punishment in favour of perpetual servitude (隸臣 in the case of males; 隸妾 in the case of females), which was argued as a way for criminals to make amends to the state. This form of servitude was for life and was considered equally harsh as capital punishment, and records show that many were worked to death, on public projects dredging canals, building roads, and mending defensive works. Parliament permitted leases on such labourers to private entrepreneurs, who did not need to compensate them for injuries and death. These labourers were responsible for a considerable part of Themiclesia's early railways. While many argued that capital punishment might be restored, this labour replaced many local services that members of the gentry were expected to perform as well as those that employers paid for, so they were largely in favour of abolition.  

In 1895, the Liberal Party argued that penal servitude resembled chattel slavery and was inimical to national reputation and so advocated for its abolition. Thus in 1899, 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 special military law except in battle, and the reform of the Penal Code is understood to prohibit capital punishment in all contexts. 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 1870 captains were directed to order his crew and marines to control offenders first, before throwing them overboard. The actual number of those thrown overboard is hard to estimate, since the Navy recorded such deaths as "missing".

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. In the interest of restraint and with regard to the irreversibility of capital punishment, the review system showed a trend towards caution. Early in the Tsjinh, any magistrate could pass a capital sentence, but later in that dynasty, it could be passed only by an administrator of the 2,000-bushel rank. After this, the Chief Justiciar, Vice Chancellor, and Chancellor would need to confirm the judgment before the monarch's approval for execution is sought. 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 was approved, warrants were issued by the Chancellor to the provincial govenror and tribune, who would set the date of execution and notify the magistrate of 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 1580 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 sliced off. The left leg, right leg, left arm, and right arms would then be severed. Then, the prisoner was cut in half along their waist, and their intestines were pulled out and scattered. After this, his eyes and tongue were cut out. When the prisoner is almost dead, the head is severed, and what remains of body 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, nups-kwar), which otherwise produced standardized weights and measures. A wooden block (質, tit) 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 pulled to cause asphyxiation. The rope was pulled by the executioner for a stipulated 29 minutes and 24 seconds according to regulations dating to the abolition of capital punishment in 1853.

When an execution took place, a royal 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.

Themiclesia did not employ professional executioners. If the sentence was meted out by the Privy Treasurer or Comptroller of the House, a slave in their respective departments performed the execution; after the abolition of slavery, the prisoners were executed together with those of the nearest magisterial court. If the prisoner was in a magisterial 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 serving as prison guard 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.

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.

Corvée

Executions were performed as corvée service by ordinary Themclesian subjects. After an important fiscal reform in 1080, probably inspired by similar developments in Menghe, executions were separated from the heading of prison guard duty and given particular terms. Under the new system, eligible labourers were divided into age and gender groups, and each class had some duties specified to or shared between them. Moreover, performance quotas were set forth, giving the quantity of work expected during one term of service as well as the workload for each day in service, for the convenience of supervision and scheduling. All executions in a county were expected to be carried out in one work day, but the completion thereof satisfied one term of service. Most forms of corvée could last 20 – 30 working days.

Regulations specified that executions should be performed by males adults, i.e. aged from 20 – 60. While for some duties there is a stated reason why labourers should be a certain gender or age, it is not apparent from the historical record why executions should be specified for males only. Possibly it was an attribute inherited from prison guard duty, in which the guard needed to live at the prison, and duties that required lodging away from home were almost always reserved for adult males, such as goods and mail deliveries to other counties. However, as of 1080, all executions were expected to be completed in one day, so it is unclear if this remained the rationale for this gender and age assignment.

Records suggest that there were no more than five prisoners awaiting execution in most counties at most times, which is consonant with the general restriction that only one person can be given execution duty by a county in a given fiscal year. But exceptions to this projection have been recorded in history. For example, after a treasonable conspiracy of alarming magnitude in 1341, Kien-k'ang had 560 people awaiting execution, and (according to regulations in force) one executioner was expected to finish all 560 in one working day. He could not do so and had to pay a fine each day after the first for the delay. The executioner was allowed to live at home instead of a government lodge, and so did not need to pay the 1 coin lodging fee per day for those that did.

"Dredging the canals"

Kien-k'ang's canal, which is not a natural waterway, required periodic dredging to prevent the sedimentation from reducing its navigable depth. This task was assigned to corvée labourers, as was service as executioner. Since it was impossible to prevent dumping of waste water, garbage, carcasses, and even occasional human bodies into the canal, those dredging the canal suffered from a superlatively offensive environment as the refuse, no longer submerged when the canal was locked and drained, decomposed in the open air. From at least the 9th century it was considered the worst possible form of corvée service a citizen could experience. Likening their loathe, service as executioner was often referred to euphemistically as "dredging the canals".

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.

Problem of guilt

The ancient Themiclesian law on homicide distinguishes intentional and unintentional homicide, and there are only two accepted defences for an intentional homicide—duress or self-defence. When a homicide has occurred, a ten-man jury is summoned to investigate and determine whether it was intentional; if there was no valid defence to liability, the homicide was ruled criminal and demands punishment. Since an executioner could not profess self-defence, the public authority compels him by force, creating the legal fiction that homicide has occurred under duress. If an executioner could have declined to serve, it is implied that he chose to commit homicides, which would invalidate the defence of duress and constitute the crime of murder.

In the religious aspect, most religious authorities accepted the premise that service as executioner, like military service, occurred without the assent of the person pressed to serve and therefore did not constitute a religious offence. Nevertheless, executions, like accidental deaths, were considered pollutions to the city and required a priest to expiate. To this end, most cities fixed a site for executions, such that the pollution occurred at a designated place. In earlier centuries, the executioner was to leave the city, refrain from food and sex, and fast for a symbolic interval, at the end of which the religious pollution on his person was removed by the sghrang ceremony; this ceremony was also used for returning armies and individuals exiting a state of mourning. By the 1800s, the sghrang ceremony for all forms of pollution by death was reduced to a single line in a quiet ceremony.

The last executioner

According to public records, the last executioner was the owner of Hing-kam-stang (興甘商), 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; 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 was 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. The Gam family's appeal for compensation for death during public service was refused by the Board of Royal Counsels (the Emperor's lawyers). Then, he addressed some claims advanced by retentionists that employing volunteer executioners would resolve this problem. He compared execution duty to those of dredging up public privies and the canals, into which garbage, feces, and dead bodies were routinely thrown in his day; prior to the abolition of corvée labour, these unpleasant tasks were assigned randomly to men in the local militia, just like executions. These duties have a reputation for being the causes for disease and madness, or at least being extremely repulsive, to the extent that the city was discussing hiring private contractors for them.

Someone can volunteer to dredge up the filth from the sewers or privies, but the disease and miasmata are the same. The diseases and miasmata are the same whether he is forced to dredge the privies, or paid to do it.

See also

• Themiclesia