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 knew capital punishment as a judicial measure prior to the Classical Period. Only a few excavated and received texts describe judicial procedures in the Archaic Period (from 385 BCE to 100 CE). There is no judicial record in the oracles, and bronzes record oaths that invoke divine and physical punishment for misbehaviour. The stipulated penalties are never carried out as recorded, as it would instead be an instance of shame rather than honour for the commissioner of the inscription. What does appear are records of litigations by victorious parties, often quoting the judgment and the authority that made it for record; however, none of these records involve capital punishment—virtually belong to land and service disputes, i.e. economic litigation.

For later capital crimes, oaths generally appoint fines, corporal punishment, or exile, but these were self-stipulated penalties for breaches of commitments by one individual to another, rather than laws imposed on a general public by an authority. In modern terms, these were contract provisions, rather than public laws.

In Sin and Tsinh, it appears traitors were usually exiled after their lands were confiscated. In the 4th through 2nd centuries BCE, violence against persons was resolved privately, by either retribution or the taking of compensation, with or without the intervention of an authority. This retribution need not occur to the specific offender and was negotiated, often with the participation with an authoritative figure, after the offence had occurred. The role of the authority varies—in some cases the figure acted as judge, in others the authority was more of an advocate or apologist, and in still others it merely provided a locale or occasion for the negotiation. This custom of negotiation for compensation may reflect an absence of injury legislation.

Nevertheless, capital punishment was carried out for sacral offences. It seems, for sacral affairs, early Themiclesians had laws in place that sanctioned actions that might invite the displeasure of supernatural powers. This was the position of Grat, writing in the mid-1800s, that penal law in Themiclesia was an evolution of sacral law. He argued, inter alia, that since virtually all kinds of offence (even treason) could be resolved by paying compensation, the imposition of punishment beyond compensation must originate where paying compensation was impossible or insufficient. Grat's theory is heavily modified in view of advancing knowledge of Archaic jurisprudence but remains a mainstream view of the origin of punishment (including capital punishment) in Themiclesia.

Grat's theory has been supported by the observation that all the early methods of execution—burning alive, burying alive, drowning, evisceration, exsanguination, etc.—were identical to sacrificial actions once the arcane terms that describe them were understood. This would seem to reflect an ancient belief that capital punishment was illicit in se, and only through the imitation of sacral actions could they be legitimized; indeed, there was an enduring stigma around executions being a source of pollution. However, as Jeremy notes, there is a significant leap from human sacrifice to capital punishment in that the victims of the latter were not consecrated to anything, and the process of consecration of the victim was important. Jeremy says that "upon current knowledge, it remains difficult to see an equation of capital punishment to sacrifice." A possible synthesis of these two ideas is the "desacralization theory", where sacral actions were increasingly appropriated for mundane and even pollute uses.

The first uncontested reference to capital punishment in Tsinh appears in 122 CE, immediately after Prince ’An (r. 71 – 105) annexed several colonies and settlments held by extinct aristocratic houses. An edict commanded newly-appointed magistrates to judge colonial residents only according to "former decisions" of his ancestors and to impose only sanctioned punishments—caning, slavery, and mutilation.  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.

Codification

In the 3rd century, royal authority expanded and created the relatively stable territory that is today known as the Demesne, where the crown became a universal public authority and enforced a widely-applied legal code. The Code of Kr′ang (康彝) was promulgated in 338, replacing an earlier law code whose contents are completely lost, and repealed some customary laws with codified ones. The character of the code of 338 is transitional: it binds the royal authority to take certain actions when specific conditions were met and rejects the possibility that the prince's judges might give unexpected rulings and sentences, which were impediments to royal litigation.

By the 4th or 5th century, it appears that most offences became the purview of the royal justice system. There are a number of methods of execution specified in the code of 338, including some which are not found in later codes:

• An ordinary method of execution noted only as "in public", whose specifics are debated; this uncertain method, ironically, was standard and associated with most crimes.
• Evisceration (磔)—violating religious fasts by sexual intercourse, some violent crimes.
• Bisection (要斬)—some religious offences, some violent crimes.
• Beating (笞殺)—reserved for libels against one's liege lord or the crown.
• Hanging (縣)—done at the city gate, reserved for bigamy, in the specific case where a male becomes married to two women by the rite of invitation.
• Drowning (滎殺)—spreading diseases or an uncertain type of magic.
• Burying alive (瘞殺)—some religious offences.
• Burning (燎)—some religious offences.

Regarding the normal method of execution noted as "in public", there has been two competing theories regarding its exact form. The older theory is that it corresponded with strangulation, which was also noted as "in public" in later centuries; however, it is also widely understood that strangulation was originally a means of assisted suicide, done by someone with the assent of the deceaser. Additionally, this "in public" method of execution was associated with a large basin being placed in front of the prisoner as the execution happened, and strangulation would produce nothing for the basin to catch. In defence of the strangulation theory, some authors said that the basin contained water and was a mirror for the prisoner to look at themself.

A newer theory connects this method of execution to a very common sacrifice, done by cutting the throat of the (human or animal) victim. Depicted in artwork and as described in ritual formulae, a basin was used to catch the blood of the victim as it was needed for another part of the ceremony. This form would rationalize the basin, and additionally it jives with the idea that methods of execution were originally forms of sacrifice. However, this theory is also challenged by those who point out that the "in public" method of execution was used for political crimes, tried by the royal state, which is a newer category of crime in the historical context of the 4th century. If so, it seems difficult to understand why this very common sacrificial form was not employed for older, more established categories of crime.

Historians have commented that there was some uncertainty on the part of the legislator which type of execution should be imposed for newly-identified crimes, which were increasingly of a mundane nature rather than specific religious offences. In later law codes, it was recognized that no matter which execution method was used, the result for the prisoner was the same, but this was evidently not yet the case for the 338 law code. As in earlier centuries, it was possible to commute one form of death to another form of death as they were perceived as distinct punishments.

Remittance and reimposition

A policy to reduce the number of capital crimes was announced when the Meng dynasty was restored in Themiclesia, under Emperor Ngwyan, who wanted to appear magnanimous to those who opposed him and to appeal to the populace, which was doubtful of his rule. Other than reforming the penal code with hundreds of capital crimes, he insisted on clothing the condemned, which suggested that the prisoners were naked up to that time. 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.

Suspension 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 a slave-child. Due to Gwa-lang's unpopularity, the incident was propagated as an example of his corruptive influence. While Gwa-lang could have asked (and most likely obtained) a pardon for his son and avoid trial, he forced his son to commit suicide in a futile effort to appease the public. He then suspended public executions in the capital city Kien-k'ang. However, the bar on public executions was reversed in 1582.

Accompanying punishments

If an individual was sentenced to death, then his household was subject to forfeiture (孥, mna), whereupon his spouse and children became slaves (隸臣妾, reps-gin-stsap) and his movables 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 forfeitted 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 "palace slave economy", created by the commutation of death to slavery and the pressuring of judges to try for conviction. Initially, public slaves could be sold by the state and were effectively chattel; afterwards, they acquired retained certain rights, even to marry, own private property, and to qualify for manumission under some circumstances.

Forfeiture of dependents was abolished and reimposed several times in history, and finally abolished in 1635. By contrast, forfeiture of chattels remained in effect until 1859.

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 laws were tried by the province's justice and punished in the same manner as though they were not in service. When units were sent across borders, the court usually appointed a general or another court official to oversee their actions, who tried and punished them likewise. Provincial justices and generals were at the required rank to pass capital sentences by themselves, without further authority from above.

The law of obstruction of the forces (灋旬興, paps-kwir-heng) was introduced when the Mrangh dynasty was established in Themiclesia. It imposed capital punishment for any individual whatsoever who intentionally obstructed the timely and lawful operation of military forces; the wording of the statute was vague, which rendered it dangerous. Counter to this law was the equally general offence of corruption of the law (亂灋, rwar-paps), which punished any official who perversely interpretated the law to arrogate authority by death.

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 commisisoner (監御史, kram-ngha-sreq) followed and monitored the general. The commissioner was invariably a trained jurist. While this was done most likely to prevent serious misgovernment, the tribune's purview extended over all of the general's decisions, including judicial ones. While tribunes may not prevent the general from taking decisions, they could report them after the fact; such reports were taken seriously by the court, and even victorious generals have been executed if found guilty. To counter the watchful commissioner, a normal general's staff included a judicial department. Generals relied their own jurists to inform his decisions and to submit briefs to the crown in his defence, if his decisions were contested by the tribune.

The Themiclesian navies possessed distinct rules relating to capital punishment. Save in battle, killing (both humans and animals) on board was prohibited, as it was deemed a cursing act. To lift it, crews sacrificed prisoners of war and painted their sails with human blood, which was supposed to appease restive spirits; this practice was recorded by astounded travellers in the 6th century as a nautical tradition. Maritime law permitted ship captains to throw individuals overboard if they were dangerous and violent. After the military navy became standing, this authority was retained above and over judicial powers the captain held. Since captains were not able 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.

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 Chief Justice (in the capital city) or the viceroy (in the provinces), who would set the date of execution and notify the magistrate holding the prisoner. Executions took place near the seat of the magistrate for convenience. After the magistrate receives the warrant, the prisoner's limbs were restrained to prevent suicide or escape.

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 brace 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 time.

Executions must take place before a commissioner. Prisoners in the counties were usually executed near the end of the fiscal year, which ended at the ninth lunar month each calendar year, so that the magistracy would not budget their rations in the following year. The tribune would tour the counties during this period. The exact date on which execution would occur would thus not be known to the prisoner or the magistrate, since travelling times and routes vary.

For the most part, Themiclesia did not employ professional executioners. For prisoners condemned by a magisterial court, all capital sentences in the locality were carried out by one person discharging annual corvée labour. Traditions indicate this was an undesirable assignment, though there is little record of public shame 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 criminal into the sea. A considerable amount of information about the actual practice of executions come from foreign visitors' accounts. According to such accounts, botched executions were frequent and perhaps even normal.

Exemptions

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.

Minors

The execution of children is recorded in Themiclesian history, in such terms that make clear that minority of age was not an absolute defence in some cases. During the Restored Meng dynasty, the punishment for treason was the eradication of the offender's entire family, and it is historical that children of the offender's family were not spared on account of their minority. However, it appears that the procedure for rendering this punishment was not through the regular system of tribunals and prisons, but by a military force sent to destroy the offender's family and its seat.

For other cases, there is conflicting information about the age of criminal culpability, and it seems different standards may have been in force at various locations. Prior to the Meng dynasty, there were three known age thresholds of culpability, 7 years, 10 years, and 17 years. In the earliest codifications of penal laws, it is stipulated that "a seven-year-old, even who slays with his or her own hand, shall not be held answerable," (毋侖, ma-runh) implying that children up to and including the age of 7 have absolute immunity even against the crime of murder. Another statute says that a ten-year-old who slays with his or her own hand shall be seized into the lord's hands (become a slave). It is unclear if one statute replaces another.

Some centuries later, it seems children over 10 and up to the age of 17, convicted of murder, could expect their cases to be interrupted and certified to the Royal Court, where a commutation is almost invariably issued. Refusals to commute children convicted of murder were extremely rare but are known in at least 4 instances. When this last occurred in 1655, a crowd of considerable size appeared to watch the execution of a 11-year-old. For other crimes that carry the death penalty for adults, such as robbery, children under the age of 17 were generally not held answerable.

It is notable that the "slaying with one's own hand" (手殺人) partially invalidates the defence of minority. There is little ancient theorization why this should be the rule, and "even to the earliest commentators the culpability of slaying with one's own hands seems to be so strongly stigmatized, that the inapplicability of the defence of minority is not even discussed. Thus, a 9-year-old could (theoretically) get away with setting an entire city on fire and thereby killing hundreds, but not with fatalling stabbing one friend."

There were no separate prisons for children in Themiclesia even up to the abolition of capital punishment.

The counting rule in the penal law system is favourable to the defendant. Thus, a child who is 17 years and 364 days old would have been able to avail a plea for a special pardon, and their age will be recognized as the date on which the crime was committed, not the date of the trial. Conversely, if a special plea is to be entered for senility or imbecility, a defendant who is 70 years and 0 days old will be considered fully 70 years old, and age is recognized on the date the judgement is made, not of the commission of the crime. If a capital sentence is given before the defendant turns 70 or becomes imbecilic, but they reach the age of 70 or become imbecilic prior to execution, a post-facto plea can still be entered with the Chancery to alter the judgement in view of the senility or imbecility.

Social history

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 from unintentional homicide, and there are only two admissible excuses for an intentional homicide—duress or self-defence. It was evidently held anciently that there was no such thing as a legitimate homicide and that not even royal command could excuse that act. When a homicide has occurred, a ten-man jury is summoned to determine whether it was intentional; if an intentional homicide could not be excused, capital punishment is imposed. 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.

Thus, if an executioner could have declined to serve, it is implied that others made an implicit choice to commit homicide. Therefore, under the corvée, it is expressly prohibited for a person given executioner duty to avail of substitution, that is to hire another person to serve in his stead for an additional convenience fee payable to the government. It is held such would imply those who would not hire another person and pay the convenience fee were voluntarily committing the crime of murder, which would invalidate the excuse of duress.

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

Main article: Pang Styit

According to public records, the last executioner was Pang Styit, the owner of Hing-kem-stang (興甘商), a store selling imported candies whose name literally meant "Stirring Sweets Store". The owner was only 20 (the first year in which a man was eligible for the corvée) when selected to strangle 34 prisoners on Dec. 10, 1853 at Tlang-qrum Prison. Later in life, he was interviewed for his experiences and stated that he counted himself blessed supernaturally to have survived the ordeal and remained a "normal" person. In 1895, an account of his experiences and those of five other Themiclesians who have been called to perform executions prior to abolition was published by the International Committe for Abolition of Capital Punishment.

See also

• Themiclesia