>>Basic principles of Vietnam's ancient laws
Pham Diem
State and Law Research Institute
Speaking of punitive forms in Vietnam’s ancient laws, one cannot help speaking of “ngu hinh” (the five major penalties) which originated from the Chinese ancient laws and were applied in Vietnam by feudal law-makers since the Ly and Tran dynasties (the 11th-14th centuries). For the first time, “ngu hinh” were specifically presented in Hong Duc Code (the 15th century) which was left until today.
In order to emphasize the deterrent nature of penalties, “ngu hinh” were always specified right in Article 1 of every ancient code. They were arranged in the order of severeness and included:
1. “Xuy” penalty: Subject to this punitive form, the offenders were beaten with rod in five degrees: 10 whippings, 20 whippings, 30, 40 and 50 whippings. With this penalty being executed with rattan rods in front of the public at citadel gates or market gates, the law-makers attempted to make the offenders feel not only painful physically but also ashamed so that they dared not to relapse into offenses. According to the Oriental perception “spare the rod spoil the child”, the feudal mandarins, being considered people’s parents, taught people with rods. With its main aim of deterring and teaching the offenders, “xuy” penalty, though lightest among “ngu hinh”, could not be bailed out.
Hong Duc Code described in detail: The rod is made of rattan with piked cover and nodes being removed. It is 3 “thuoc” and 5 “tac” in length. Its big end is measured 3 “phan” and small end is measured 1 “phan” and 5 “ly”. (“Thuoc”, “tac”, “phan” and “ly” were ancient measuring units, with 1 “thuoc” being equal to 0.33m and to 10 “tac”; 1 “tac” = 10 “phan”, and 1 “phan” = 10 “ly”).
When subject to “xuy”, the offenders might also be fined and/or demoted (if they were mandarins).
2. “Truong” (stick). Offenders were beaten with sticks according to five degrees: 60, 70, 80, 90 and 100 sticks.
According to Hong Duc Code, this punitive form was applied only to men, not to women who would be beaten with rods instead. Meanwhile, Gia Long Code (in the 19th century) stipulated that “truong” was applied to both men and women.
Regarding the size of the stick, Hong Duc Code prescribed: The stick was made of big rattan, with its piked cover and nodes not being removed. It was 3 “thuoc” and 5 “tac” long; the big end was measured 5 “phan” and the small end, 2 “phan” and 5 “ly”.
“Xuy” and “truong”, though being among the five major punitive forms in Vietnam’s ancient law, could also be used as additional penalties to other major ones such as “do” and “luu”.
3. “Do” punitive form: The offenders were subject to unpaid corvee labor for the State.
Hong Duc Code divided “do” into three degrees, depending on the heaviness of the jobs to be performed by the offenders; and each degree was classified into jobs for men and jobs for women. More concretely:
- The least severe degrees were “dich dinh” (for men) and “’dich phu” (for women). Subject to “dich dinh”, the male offenders had to do corvee labor in the royal offices (if they were mandarins), in army barracks (if they were armymen) or in hamlets and communes (if they were commoners. For female offenders subject to “dich phu” penalty, they had to do corvee labor in State farms of sericulture.
- The heavier penalties were “tuong phuong binh” and “xuy that ty”. “Tuong phuong binh” was the cleaning of army horses’ stables to be performed by male offenders, while “xuy that ty” was the cooking for armymen in barracks - a punitive form imposed on female offenders.
- The heaviest degrees were “chung dien binh” and “thung that ty”. Men subject to “chung dien binh” had to do the corvee labor in State plantations while women penalized with “thung that ty” had to do the rice husking and pounding at the tax rice depots of the State.
Besides the above-mentioned main forms of punishment, the offenders penalized with “do” were also given additional penaties such as 80 stick-beatings and 50 rod-whippings respectively for men and women subject to the first degree of “do”; 80 stick-beatings plus two letters engraved on the neck and 50 rod-whippings plus two letters engraved on the neck respectively for men and women subject to the second degree of “do”; or 80 stick-beatings plus four letters engraded on the neck and fettered legs for men and 50 rod-whippings plus four letters engraved on the neck, respectively for men and women penalized with “do” of the third degree.
Hong Duc Code did not stipulate specific terms for “do” sentence, but in fact many people were released after serving well their sentence, doing well their corvee labor.
Gia Long Code divided “do” into five degrees according to the sentence terms; and each degree was added with “truong:” (stick-beating) as an additional penalty. More concretely, such five degrees were as follows:
- 1 year plus 60 “truong”.
- 1 year and half plus 70 “truong”.
- 2 years plus 80 “truong”.
- 2 years and half plus 90 “truong”.
- 3 years plus 100 “truong”.
Under the then “do” punitive regime, offenders serving such sentence had to work at official letter-dispatching stations erected along highways, carrying on foot either letters or mandarins who passed by on official duty. While serving “do” sentence, they worked at stations near their places of residence, being able to stay in their houses and having to be present at such stations only when they were on duty. This way of serving “do” sentence helped them turn a new leaf easily because they were able to maintain their contacts with the society.
4. “Luu” (exile) penalty: When being penalized with “luu”, the offenders were sent on exile to distant areas.
Hong Duc Code divided “luu” into three degrees depending on the seriousness of the offenses:
- Degree 1, which was least severe: Subject to this, the offenders were exiled to near districts, more concretely to mountain districts of Nghe An province (some 300km from Hanoi).
Additional penalties to this degree included 80 “truong” beatings, engraving of 6 letters on the face and fetters for men; and 50 rod-whippings and engraving of 6 letters on the face for women.
- Degree 2, which was more severe: Offenders were sent on exile in outside districts, that was to mountain regions of Quang Binh province (some 500 km from Thang Long, now Hanoi).
This punitive form was added with such additional penalties as 90 “truong” beatings, engraving of 8 letters on the face and being fettered, for men. The additional penalties for women were the same as those mentioned above.
- Degree 3, the most severe form of “luu” thereby the offenders were exiled to Cao Bang province, which, though some 300 km from the capital city, was the out-of-the way mountain region with harsh weather conditions.
The additional penalties of this included 100 “truong” beatings, engraving of 10 letters on the face and being fettered, for men. The additional penalties for women were the same as those in above-mentioned degrees.
Regarding labor, the exiled offenders were put under house arrest and had to reclaim virgin land for building State plantations, working the field therein.
Nominally, “luu” sentence had no definite term and its servers had to live on exile for life. Yet, reality then showed that after a period of exile many convicts were pardoned due to their good conducts and efficient labor. After being released from exile, such people might return to their native place or settle down in exile places and were entitled to use the land they had reclaimed.
With this punitive form, the feudal law-makers then wished to punish the offenders physically (through hard labor in areas with harsh weather conditions) and metally (by living far away from their families, their relatives and native places). Moreover, they also wished to reform and educate the criminals through labor while contributing to the development of the national economy.
Gia Long Code divided “luu” penalty into three degrees:
- 2,000 “ly” exile.
- 2,500 “ly” exile.
- 3,000 “ly” exile.
(“Ly” is an ancient measuring unit equal to 0.5 km).
The distance of the exile place was calculated from the offenders’ places of residence. Article 44 of Gia Long Code specified as a written instruction the specific places of exile, depending on the exile degrees and the residences of the offenders.
For example: Convicts residing in Thai Nguyen province would be sent to Quang Ngai if they were sentenced to the first degree of “luu” (the 2,000 “ly” exile), to Phu Yen province if they were subject to the second degree of “luu” (2,500 “ly” exile) or to Binh Thuan province if they were sentenced to the third degree of exile (3,000 “ly”).
Convicts living in Quang Tri province would be sent to Binh Thuan for the first-degree exile, to Bien Hoa for the second-degree exile or Long Xuyen province for the third-degree exile.
Convicts living in Phu Yen would be sent northwards to Thanh Hoa if they were sentenced to exile of the first degree, to Kinh Bac (now Bac Ninh province) if they were sentenced to exile of the second degree or to Cao Bang province if they were subject to the third-degree exile.
Under Gia Long Code, the “luu” was not added with any auxiliary penalties.
The work prescribed by Gia Long Code for exiled convicts were also the reclaimation of virgin land or farming in the State plantations.
The exile terms and purposes defined in Gia Long Code were similar to those in Hong Duc Code.
5. “Tu” (death) sentence: “Tu” was the heaviest penalty often imposed on persons who committed a number of particularly serious crimes such as treason, attempted murder of kings, murder of parents by their own children....
Hong Duc Code divided “tu” into four degrees:
- “That co cho chet” (Being hanged to death).
- “Chem dau” (Being beheaded).
- “Chem beu dau” (Being beheaded with heads displayed at public places).
- “Lang tri” (Being executed by cutting flesh bit by bit to the drum-beats till the offenders breathed their last before being disemboweled and had their hands and legs disconnected and broken).
By dividing the death penalty into various degrees, the feudal law-makers wished not only to deprive the offenders of their own lives but also to torture them by letting them taste the death gradually and at the same time to deter others. For the hanged convicts, their dead bodies were kept in completeness while the beheaded ones had their dead bodies not in integrity. For convicts sentenced to death of the third degree having their heads displayed at such public places as citadels’ gates, market gates..., their crimes were made known to the public and humiliation were inflicted on them as well as their families. Subject to “lang tri”, the offenders would die gradually in pain and their bodies were not in whole.
Gia Long Code divided “tu” sentence into five degrees:
- “That co” (being hanged)
- “Chem dau” (beheaded).
- “Chem beu dau” (beheaded with heads displayed at public places).
- “Lang tri” (cutting offenders’ flesh piece by piece).
- “Luc thi” (chopping offenders’ dead bodies).
Subject to “luc thi” were offenders who had committed extremely barbarous crimes such as murdering many people at a time, cutting any part of the body of other people. Even when such offenders died before they were brought to trials, their dead bodies would be exhumed and chopped into small pieces with a view to deterring others.
II. Penalties other than “ngu hinh”
In addition to “ngu hinh”, the five above-mentioned major penalties, prescribed in the ancient laws, there existed other punitive forms as the additional penalties.
1. “Biem tu” (virtue degrading): This punitive form was prescribed in Hong Duc Code, but not Gia Long Code.
Article 27 of Hong Duc Code specified five degrees of “biem tu”, namely lowering 1, 2, 3, 4 or 5 grades of virtue. This penalty was often applied as the additional penalties besides “ngu hinh” to aristrocats and mandarins, who had been bestowed by kings different grades of virtue.
2. “Ha chuc” or “cach chuc” (demotion or dismissal from office). These punitive forms, which were prescribed by both Hong Duc and Gia Long Code, were applied to mandarins.
3. Pecuniary fines
Article 26 of Hong Duc Code defined three degrees of fine:
- A fine of from 5 to 50 “quan” (an ancient currency unit).
- A fine of from 60 to 200 “quan”.
- A fine of from 300 to 500 “quan”.
Fines were additional penalties imposed on sexual crimes, burglary, murders. The fine money were often paid into the public fund of the State. In some cases offenders were fined with an additional sum of money to be used as rewards for persons who had denounced the criminals. For instance, Article 25 of Hong Duc Code stipulated that those who denounced the murder plotters, burglars, thieves would be rewarded 100 “quan” or less, which were taken from the offenders.
Gia Long Code did not contain any articles generalizing the fines like Article 26 of Hong Duc Code but only some articles vaguely defining this punitive form in some specific cases. For example:
Article 74 prescribed penalties against fraudulance in declaration of family members in villages, for which the village chiefs were subject not only to main penalties (“truong”, “do”, “luu”) but also to fines; and the fine level depended on the number of family members falsely declared in decrease. This was so provided for because the State often relied on the number of family members to mobilize people for public labor and conscription.
Article 281 stipulated that insane persons who committed murder would not be subject to penal liability, but their families had to pay a sum of money to the deceased family as the funeral cost.
4. Confiscation of property: This punitive form was applied as additional penalty to a number of special crimes, with the offenders’ property being wholely or partly confiscated and paid into the State’s public fund.
Article 426 of Hong Duc Code stipulated: Those who rob and kill people at night shall be beheaded and their property shall be confiscated and paid into the public fund.
Article 430 of the same Code said those who steal royal things shall be beheaded and all their property shall be confiscated. According to Article 523, those who make poor-quality gold and silver jewellery shall be subject to “do” (corvee labor) and such jewellery shall be confiscated and paid into the public fund. Or Article 191 stipulated: Those who make fake commodity shall be beaten with 50 rod-whippings and have their fake goods confiscated for the public fund.
Gia Long Code had similar provisions on confiscation of property of offenders.
5. Letters-engraving on body: This was a very popular additional penalty which aimed to humiliate the offenders and make other people easily identify the convicts.
Under Hong Duc Code, people subject to “do” (corvee labor) or “luu” (exile) also had their necks or faces engraved with 2, 4, 6, 8 or 10 letters as the additional penalty, depending on the seriousness of their offences.
Meanwhile, Gia Long Code only stipulated the letters-engraving on the arms of burglars and thieves.
Generally speaking, the penalties other than “ngu hinh” were considered additional penalties to be applied together with the main penalties in “ngu hinh”.-