Civil Law in Qing and Republican China 9780804779272

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Civil Law in Qing and Republican China

Law, Society, and Culture in China EDITORS

Philip C. C. Huang, Kathryn Bernhardt

Civil Law in Qing and Republican China

EDITED BY

Kathryn Bernhardt Philip C. C. Huang CONTRIBUTORS

Mark A. Allee

Jing Junjian

Kathryn Bernhardt.

Melissa Macauley

Alison W. Conner

Hugh T. Scogin, Jr.

Philip C. C. Huang

Madeleine Zelin

STANFORD UNIVERSITY PRESS, STANFORD, CALIFORNIA

Stanford University Press Stanford, California © 1994 by the Board of Trustees of the Leland Stanford Junior University Printed in the United States of America CIP data appear at the end of the book

Acknowledgments

T

HIs voLuME Is based on a conference on "Civil Law in Chinese History" held at UCLA August 12-14, 1991. We would like to thank the other participants at the conference for their contributions in discussions and comments: William Alford, Muriel Bell, David Buxbaum, Fu-mei Chen, Jerome Cohen, Randle Edwards, Stanley Luhman, William Rowe, and Frederic Wakeman, and rapporteurs Bradly Reed and Matthew Sommer. We would also like to thank the Luce Foundation which, through its flexible funding policies, has enabled us to make optimal use of the monies provided for our project, "Local Archives and Court Records: Social Change and Law in Qing and Republican China," 1989-95. Richard Gunde, our associate at the UCLA Center for Chinese Studies, lent us indispensable administrative support in organizing the conference and . then took on for Stanford University Press the burden of copyediting the manuscript. A second conference, on "Code and Practice in Qing and Republican Law," was held in August 1993. Our own research presented in this volume is based mainly on court case records. Philip Huang first used the Baodi county archives in 1980 in connection with his The Peasant Economy and Social Change in North China (Stanford University Press, 1985). In 1985, on the occasion of the international conference commemorating the fiftieth anniversary of the First Historical Archives, he requested and received the opportunity to visit four archives in North China. Finally, we, under separate CSCPRC (Committee on Scholarly Communication with the People's Republic of China, of the National Academy of Sciences) grants in 1988, gathered together most of the

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Acknowledgments

materials for our articles (and our own books in progress) at the following archives: Beijing Municipal Archives, First Historical Archives, Second Historical Archives, Shanghai Municipal Archives, Shunyi County Archives, and Sichuan Provincial Archives. We would like to thank especially the extraordinary individuals at those archives who have helped us over the years because of their dedication to the ideals of scholarship. K.B. P.H.

Contents

Contributors I

2

Civil Law in Qing and Republican China: The Issues Kathryn Bernhardt and Philip C. C. Huang Civil"Law" in Traditional China: History and Theory Hugh T. Scogin, Jr.

3 Legislation Related to the Civil Economy in the Qing Dynasty Jing funjian

xi I

I3

42

4 Civil and Uncivil Disputes in Southeast Coastal China, 85 I723-I820 Melissa A. Macauley 5 Code, Culture, and Custom: Foundations of Civil Case I22 Verdicts in a Nineteenth-Centu ry County Court Mark A. Allee 6 Codified Law and Magisterial Adjudication in the Qing I42 Philip C. C. Huang

7 Women and the Law: Divorce in the Republican Period I87 Kathryn Bernhardt 8 Lawyers and the Legal Profession During the Republican Period Alison W. Conner

2I5

Contents

V111

9 Merchant Dispute Mediation in Twentieth-Century Zigong, Sichuan

249

Madeleine Zelin Notes

289

Sources Character List

309

325

Index

331

Tables

s.r 5·2 6.r 6.2 6.3 6.4 6.A 6.Br 6.B2 6.B3 6.Cr 6.C2 6.C3 6.Dr 6.D2 6.D3 6.Er 6.E2 6.E3

Classification of Civil Case Files in the Dan-Xin Archives Civil Case Files Containing Verdicts in the Dan-Xin Archives One-Winner Land Cases by Relevant Statutes One-Winner Debt Cases by Relevant Statutes One-Winner Marriage Cases by Relevant Statutes One-Winner Inheritance Cases by Relevant Statutes Cases Studied, by County and Decade Numbers of Baxian Cases Studied, by Decade and Category Numbers of Baodi Cases Studied, by Decade and Category Numbers of Dan-Xin "Civil" Cases Studied, by Decade and Category Outcomes of Baxian Cases Outcomes of Baodi Cases Outcomes of Dah-Xin Cases Breakdown of Incomplete Baxian Case Files Breakdown of Incomplete Baodi Case Files Breakdown of Incomplete Dan-Xin Case Files Cases Heard by the Baxian Court, by Type of Ruling Cases Heard by the Baodi Court, by Type of Ruling Cases Heard by the Dan-Xin Courts, by Type of Ruling

I23 I24 145 I 55 r6o 167 r8r r8r r82 I82 183 183 183 184 184 I84 r8s 185 r86

X

7.I 7.2 7·3 7·4 7·5 7.6

Tables

Breakdown of Divorce Cases in Shanghai, I940-4I, and Beijing, I 942 Initiators of Divorce Suits in Various Cities, I929-42 Grounds for Divorce, Beijing, I942 Grounds for Judicial Divorces, Shanghai, I940-4I Occupations of Men Involved in Divorce Suits, Beijing, I 942 Grounds for Judicial Divorces, I934-39

I 94 I95 I96 I97 ·I 99 20I

Contributors

is associate professor of history at Loyola University Chicago. He is the author of Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century (Stanford University Press, 1994). He is currently beginning a study of local custom and legal culture in late imperial China. KATHRYN BERNHARDT is an associate professor in the Department of History, University of California, Los Angeles. She is the author of Rents, Taxes, and Peasant Resistance: The Lower Yangzi Region, r840-I950 (Stanford University Press, 1992). She is completing a manuscript on Women and the Law in Imperial and Republican China: Marriage, Divorce, and Property Rights. ALISON w. CONNER is a lecturer in the Faculty of Law at the University of Hong Kong. She has written articles on Chinese law and is now writing a book on Soochow Law School and the role its graduates played in the development of China's modem legal profession. PHILIP c. c. HUANG is professor of history and founding director of the Center for Chinese Studies at UCLA. He is the author of Liang Ch'i-ch'ao and Modern Chinese Liberalism (University of Washington Press, 1972L The Peasant Economy and Social Change in North China (Stanford University Press, 1985L and The Peasant Family and Rural Development in the Yangzi Delta, I350-1988 (Stanford University Press, 1990). He is at work on a new book on Civil Justice in China, 17 50 to the Present. JING JUNJIAN is research professor at the Institute of Economics, the Chinese Academy of Social Sciences (Beijing). He has pubMARK A. ALLEE

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Contributors

lished widely in Chinese economic history and legal history, and is best known for his empirical and theoretical studies of legal status, agricultural workers, and commercialization in the Qing. MELISSA MACAULEY is assistant professor of history at Northwestern University. Her research concentrates on late imperial litigation brokers, conceptions of property, and the complementary and contrasting images of law and society in archival and popular sources. HUGH T. SCOGIN, JR. is a visiting professor in the School of Law at UCLA. He has written articles on Chinese legal history and on international business law. He is completing a project on the history of contract in China and is co-authoring a volume on Law and Investment in Japan. MADELEINE ZELIN is professor of modern Chinese history at Columbia University. She is the author of The Magistrate's Tael: Rationalizing Fiscal Reform in Eighteenth-Century Ch'ing China (University of California Press, 1984) and translator of Rainbow, by Mao Dun (University of California Press, 1992). She is completing a manuscript on the socioeconomic history of Zigong, Sichuan, and is engaged in a study of law and Chinese economic culture.

Civil Law in Qing and Republican China

CHAPTER ONE

Kathryn Bernhardt and Philip C. C. Huang

Civil Law in Qing and Republican China: The Issues

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about Chinese law as it was represented in the codes and model case records, but little about how it actually operated. Newly available case records from Chinese·local archives enable us in this volume to begin to ask how the law actually operated in practice, especially with respect to civil matters. It is a first step to answering the larger question of what the law meant to the Chinese people. We use the term "civil law" in this book in the same way as have Republican and contemporary Chinese law. The Chinese word for "civil" is minshi, literally "people's matters," as opposed to xingshi, or "punishment matters." The Republican civil code included, after a section of general principles, four sections dealing with obligations, ownership rights, family, and inheritance. Those categories delimit the general scope of this book. What the Qing code called "minor matters" (xishi) approximates the Republican concept of "people's matters." They included mainly stipulations in the "household law" (hulii) section under the major categories of debt, markets, land and houses, and marriage; and subcategories such as succession and family division. Those laws cover much the same ground as the Republican civil code. As editors, we elected to focus on such civil law, rather than criminal law, in part because our interests are not only in legal history but also in social history. Property, debt, marriage, and inheritance-succession concerned all Chinese households and individuals in the normal course of life. Those matters might have been of "minor" importance to the Qing state, but they seem to us funUCH HAS BEEN WRITTEN

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damental to an understanding of social relations in Chinese society and of how the state sought to regulate those relations through law.

. Past Scholarship Past American scholarship concentrated mainly on Chinese criminal law. Bodde and Morris (1967) provided an authoritative survey of the Legalist underpinnings and subsequent "Confucianization" of imperial law, pointing out its emphasis on administrative and criminal matters over the civil. They were able, in addition, to give a sense of how the Qing criminal system actually worked, through the use of model case records (the Xing'an huilan). Subsequent scholarship has helped to fill out the picture, showing the sophistication of the system, its established rules of evidence (Conner 1979), and its intricate review and appeal process (Alford 1984; Ocko 1988). What past scholarship could not do was to provide a clear picture of how the system handled civil matters. Important civil stipulations in the Qing code, as will be seen in this book, are often buried in the middle of paragraphs under misleading headings, and wrapped up in administrative concerns such as taxation or in penal concerns about specific punishments for different grades of violations. Actual civil cases, moreover, seldom made their way into published collections of model cases. As "minor matters," civil disputes were to be handled on the authority of the local magistrates, without review by upper levels, as was required of more serious criminal cases (Substatute 334-4). 1 Such matters were thus generally not considered important enough by compilers for inclusion in model collections. Without such examples and in the absence of the archival records of local courts, there could be no basis for concrete information about how the legal system actually operated in the civil realm. Under those circumstances, most scholars assumed that the formal legal system dealt little with civil matters. Since ethnographers have told us a good deal about community and kin mediation of civil disputes, most scholars assumed that such matters were in fact generally handled by that mechanism, within the realm of informal justice. The formal system itself concentrated mainly on criminal matters (Cohen 1967; Hsiao 1979). Chinese and Japanese scholars, to be sure, paid more attention to the civil aspects of imperial law. They have analyzed in detail, for

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example, the conceptual foundations of the civil stipulations of the codes (e.g., Dai 1966; Shiga 1967; Zhang Jinfan and Wang Zhigang 1985). Japanese scholars, notably Niida Noboru (1959-64), studied also the content and operation of "customary law" (kanko, literally "customary practices") in village communities. Wartime surveys by investigators of the research department of the Japanese South Manchurian Railway Company (Niida, ed. I 9 52-58) and earlier studies conducted under the Japanese colonial administration in Taiwan (Rinji Taiwan kyU.kan chosakai 1910) provided the empirical bases for those studies.' In the absence of court records, however, scholars could not offer concrete observations about how the formal court system actually dealt with civil matters. The few who tried to do so relied mainly on indirect evidence from the text of the code, from magistrate handbooks, and from model judgments and cases. A major line of analysis argued that magistrates engaged more in "didactic conciliation" a guided by morality and compassion than legal adjudication according to the code. Civil stipulations in the code, it was thought, were much too sparse and unspecific to serve as an operational guide to adjudication (Shiga 1981). Past scholarship on the Qing legal system, then, added up to an image of that system either as little concerned with civil matters, or, when it did deal with civil cases, as operating at best as a mediator, relying on Confucian morality and human compassion for guidance, and at worst as an arbitrary and punitive agency, applying criminal methods to civil disputes. In that image, the system was anything but one that administered civil justice in accordance with a formal code. Without access to actual court records, those assumptions dominated the thinking of most scholars. A notable exception to the above generalizations was the work of David Buxbaum, which drew on the archives of the DanshuiXinzhu court of nineteenth-century Taiwan.• Buxbaum argued in a seminal article that local courts in the Qing actually handled many civil cases and in a manner different from the penal approach to criminal cases (Buxbaum 1971). Buxbaum's, however, remained a lone voice. His empirical evidence did not receive the attention it deserved, perhaps because it came with what seemed to be excessive claims for the "rationality" of Qing law, with implied equivalence or superiority to Western civil law. Perhaps, too, the evidence seemed so exceptional, coming as it

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did from relatively peripheral Taiwan and the only Qing local court archive known at the time to Western scholars. That Buxbaum himself published only one major article on the subject before leaving the profession made his voice easier to ignore. Finally, in terms of actual evidence presented, Buxbaum was able only to demonstrate that the Danshui-Xinzhu court dealt with a large number of civil cases, and to outline some of the practices and procedures followed. He never turned to examining how magistrates actually adjudged civil cases. That lacuna left ample room for Shiga Shiizo's later suggestion-that magistrates approached such cases largely as mediators working for conciliation rather than as judges adjudicating by the code-to be made without challenge. As for the Republican period, it has so far been almost completely ignored by scholars. Part of the reason, no doubt, is that the attention of most scholars has been drawn away from the Guomindang to the triumphant Communist side of the story. Also, perhaps, they assumed that if imperial China hadno formal civil law to speak of, a simple transplant from foreign codes onto Chinese soil could not have had much practical import. The lack of actual case records allowed that assumption to stand. In any event, most scholars who studied contemporary law simply left the Republican period out of consideration. When they wrote about the historical roots of contemporary practices, they invariably looked only to the imperial past (Cohen 1967; Luhman 1991).

New Evidence and New Questions The opening of local archives in China to Western scholars in the r98o'ss has provided the basis for a reexamination in this volume of past assumptions about civil law in Qing and Republican China. The essays here draw not only on case records from the Dan-Xin archives for the nineteenth century, but also on those from Baodi county in the capital prefecture of Shuntian for the nineteenth century and Baxian in Sichuan for the eighteenth and nineteenth centuries. The Qing records, moreover, are substantiated and illuminated by case records from local courts of the Republican period. We can now say with confidence that those who assumed that the formal court system of the Qing dealt little with civil matters were simply wrong. As the Dan-Xin evidence suggested, civil cases formed a major part of the caseload of local courts. Evidence from

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case registers of Baodi county for the years r86r, 1873, and 1879 suggests that just over one-half of all cases received by the court concerned civil matters (P. Huang 1991). While we do not have the same quantitative evidence for Baxian, there can be no question that the court handled large numbers of civil disputes. Philip Huang's chapter in this volume draws on 308 of those from the years !768 to 1853, just a small portion of the enormous numbers held at the Sichuan Provincial Archives. Data from the Republican period lend further support to this conclusion. In the late 192o's and 193o's Shunyi county court, just northeast of Beijing, "civil" (minshi) and "criminal" (xingshi) cases were clearly distinguished, the court employing a two-track system with different forms and procedures for the two. In 1927 that court received ror civil cases, compared to 32 criminal, and, in 1930, 126 civil, compared to 72 criminal. The content of those cases remained substantially the same in the Republic as in the Qing; most were concerned with land transactions, debt and marriage contracts, and inheritance (P. Huang 1991). Civil litigation was not just the resort of the rich and the powerful, for the courts were accessible even to peasants and the urban poor. In 1940 a plaintiff paid o.6o yuan for the plaint form, o.ro yuan to the scribe for every hundred words, and a o. r 5 summons fee for witnesses living within r o li (r li = o. 3 miles) of the court, 0.23 yuan for ro-15 li, 0.30 yuan for 15-20 li, and 0.38 yuan for 20-25 li (Niida, ed. 1952-58, r: n6). This was at a time when in north China an agricultural day laborer earned about 0.50 yuan a day and a mu of middle-grade land sold for about roo yuan (P. Huang 1985: I97; Niida, ed. 1952-58, r: 91). If the case went on to a court session, the standard "adjudication fee" was 4.50 yuan for cases not involving property, and for those that did, a graduated schedule starting from 0.45 yuan when less than ro yuan of property was at issue, and going up to, for instance, 4.50 yuan for 75 to roo yuan, 33 yuan for 900-r,ooo yuan, 105 for 8,ooo-ro,ooo yuan, and then 4.50 yuan for every thousand yuan over ro,ooo (Niida, ed. 1952-58, r: 312-13). An agricultural day laborer, in other words, could file a plaint for a couple of day's wages, and see a case involving up to roo yuan of property through to a court session for a total of perhaps two weeks' wages. Court fees in the nineteenth century were roughly comparable. Dai Yanhui gives a figure for the late Qing of 0.40-0.50 string of

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cash (diao) 6 for a petition form, 0-40-0.50 silver yuan for the filing fee, 0-40-0.70 yuan for the scribe's fee, 0.30-r.oo yuan for the summons fee, and 3.00-4.00 yuan up to 10.00 + yuan (sometimes as much as 100.0 + yuan) for court fees (tangli) (Dai 1979: 706-8). To judge by the scattered references to prices in the Baodi case records, the purchasing power of the diao in the nineteenth century ranged from about the same to perhaps two times that of the yuan in north China in 1940-41 (P. Huang 1991). That makes these charges, though probably higher than in the Republic, not nearly so prohibitive as might be assumed. To be sure, litigants could find themselves faced with multiple irregular surcharges and expenses, to an extent yet to be determined by scholarly research. However, if the picture·from detailed Republican-period ethnographic evidence on lawsuits applied also to the Qing, large "squeezes" occurred mainly in cases concerning serious offenses or large amounts of property (P. Huang 1991). The usual peasant civil litigation involved smaller stakes. We know, in any event, from county court records that large numbers of litigants were peasants and common town residents. These newly available civil case records permit us not only to reexamine old assumptions, but also to raise new kinds of questions. The organizing problematic of this volume is the complex and multisided relationship between code and practice in the Qing and the Republic. The new evidence enables us to contrast actual legal practice with its representations in the code, in model collections of cases, and in magistrate handbooks.

Chapters in this Volume The Qing Hugh Scogin's chapter reviews and examines the historical background and conceptual underpinnings of past research into China's legal history. It helps us understand why and how legal scholars placed so much emphasis on abstract principles over and above actual practice. That predisposition, in the absence of actual case records, led both to an idealized image of Western law and to an unrealistic image of Chinese imperial law. Writing as a legal scholar as well as a historian, Scogin urges legal historians to view law in context and in terms of its operational reality.

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Jing Junjian's chapter provides an authoritative and comprehensive survey of the content of the imperial codes' stipulations about civil matters of an economic nature, including property rights, inheritance, commercial transactions, loans, and debt. He summarizes the changes in the treatment of these matters in successive dynastic codes. By pointing out contradictory passages within the Qing code, he also demonstrates the difference between declared principles and practical intent in the code itself. A small stipulation with respect to practice, he shows, could set aside an old principle without apparent revision. We might note that this was a major way in which codified law adapted to social change in imperial China. Melissa Macauley grapples with a major aspect of the operation of the Qing legal system. "Litigation tricksters" (songgun) or "litigation masters" (songshi), she shows, were a major concern of the state by the turn of the nineteenth century, blamed for what it saw as the increasing litigiousness of the Chinese populace and the mounting burdens on the courts. These Qing equivalents of modernday lawyers were legal advisers at the same time that they were seen as illegitimate troublemakers by the state. That paradoxical reality itself is a distinctive characteristic of the Qing legal system. Mark Allee addresses the complex question of the relationship between code and legal practice in magisterial adjudication. Examining the civil cases from the Danshui-Xinzhu court records from nineteenth-century Taiwan, he finds that magistrates variously used written law, cultural norms, and local customs to justify their decisions. They seldom referred to the code in rendering judgments. On balance, he argues, culture and custom may have mattered more than codified law in magisterial adjudication. Philip Huang's chapter argues the opposite. Because judgments in civil cases were written to be pronounced to litigants prostrated before the bench, rather than for review by upper levels of the judicial hierarchy as was the case with serious criminal cases, they almost never referred to the code in the manner of criminal judgments. Nevertheless, close analysis of 221 civil judgments from the Baxian, Baodi, and Dan-Xin courts reveals that they were almost always based on readily identifiable statutes and substatutes. Local magistrates seldom acted as mediators seeking compromise settlements between the litigants, but rather almost always as judges ruling for one or the other litigant according to law.

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The Republic The problematic of code and practice assumes a new dimension in the Republican period, which saw the grafting onto the Chinese legal system of a modern Western legal code and system, borrowed from the German and Swiss models, via Japan. There was both substantial continuity with and change from Qing civil law. Reforms in Qing civil law began in the final years of the dynasty and climaxed with the promulgation of a new civil code in 1929-31. An investigation of the problems raised by the coexistence of a Western transplant with the legal tradition inherited from the Qing provides both contrasts to and support for our analyses of the Qing. Kathryn Bernhardt's chapter on divorce in the Republican period, based on roughly 200 case records from the Beijing and Shanghai courts, demonstrates how the new judicial system in the modern metropolises of China began to take on features we associate with contemporary Western law. Yet even in the social environment of a "modern" urban China, she shows, a wide gap remained between the declared intent of the Republican civil code and actual legal practice. And women of urban Republican China, though enjoying a far greater access to divorce than women of the Qing, nevertheless still faced formidable legal and social barriers in their suits. The evidence of change in urban China should also be considered in conjunction with Philip Huang's research into the situation in rural China, where change was less marked and continuities with the Qing more striking (P. Huang 1991). Alison Conner's chapter, paralleling Melissa Macauley's, looks at the modern Western segment of the successors to the Qing litigation specialists. She details the training and outlook of those ro,ooo-odd specialists schooled in the modern legal academies. This small yet significant group of lawyers was instrumental in formulating and implementing the legal reforms of the Republican period. Conner's chapter raises the question of their struggles to establish an independent professional identity against government opposition and interference and their efforts to distinguish themselves in the public perception from the disreputable "pettifogging" litigation specialists. Madeleine Zelin's chapter examines the beginnings of new commerciallaw in the late Qing and the Republic. Her emphasis is on the use of traditional mediational practices by the new Chamber of

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Commerce of Zigong county, Sichuan. Like the other chambers of commerce in major cities and towns, this one merged the judicial functions of the official court system with the traditional disputeresolution functions of community and kin groups. It, too, demonstrates both continuity with and change from the Qing.

Preliminary Conclusions The evidence presented in this volume argues for a fundamental reconception of the Qing legal system. Far from eschewing civil matters, the legal system of the Qing handled civil cases regularly. And far from adjudicating in unpredictable ways, on the nebulous basis of human compassion or moralism, magistrates were guided consistently by explicit principles in the written code. Philip Huang's evidence from his three-county case sample shows that when the code is read along with actual case records, a body of unambiguous operative civil principles comes into focus. Those principles often appear in later additions to a code that had been mainly administrative and penal in its origins, and both Legalist and Confucian in its ideology and packaging. They are generally stated negatively, in terms of punishments for violations, rather than positively in abstract principles. They are for those reasons easy to miss, but they are unequivocal when seen in conjunction with the case records. When magisterial judgments, in turn, are seen in conjunction with these principles, the close correspondence between judgments and code is clear. The scope of the civil stipulations in the Qing code, to be sure, was relatively limited. These stipulations were not born of liberal assertions of a civil society, with guarantees of individual liberties against arbitrary abuse by the state. Nor were they born of formalistic reasoning from universal, abstract principles. They were the products of the adaptations over time to changing social realities and practical needs by a state concerned first and foremost with administration and control. They were appendages to administrative and criminal provisions. But they were no less important for that reason. Those who point out that such a body of stipulations does not measure up to the Western ideal of civil law, complete with guarantees of individual liberties, are of course right (Unger 1976). Qing civil law was not liberal democratic civil law. But, before dismissing

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Qing civil law on the basis of some idealized standard, we might do well to recall the continental tradition of Western civil law, in which autocratic power played an enormous role in the promulgation of civil codes. The Republican civil code was based on the continental German and Swiss models of civil law, not the Anglo-American common law model. That code found hospitable soil in the legacy of civil law left from the Qing. Qing notions of property rights and debt obligations, for example, were readily incorporated into the Republican civil code. And the distinction in the Qing between "minor" (i.e., civil) matters and major criminal concerns was readily translated by the Republican legal system into a formalized difference between minshi (civil matters) and xingshi (criminal matters). The content of civil cases handled by the Republican county courts, in fact, shows striking similarity to that of the Qing. These continuities between Republican civil law and Qing civil law are implicit, if not specifically addressed, in this volume.' The point of departure for Kathryn Bernhardt's chapter in this volume is that part of Republican civil law which expanded the scope of Qing civil law. Women's rights to divorce were most certainly at the forefront of that expansion. In that new realm, the tensions between the declared intent of the code and social custom tell about both change and continuity. Bernhardt's analysis of legal practice, as the product of the gap between legal intent and social reality, makes just that point. For those who assumed that the Republican code mattered little, the surprise will be how much difference it did make. For those who would equate codified law with the reality of legal practice, on the other hand, the point to be made is the gap between legal intent and social custom. Conner's chapter about the new Western-style lawyers, who served mainly the urban privileged, similarly tells about both change and continuity from the Qing to the Republic. And Madeleine Zelin's chapter can be read as detailing some of the birth pains of a new system of commercial law, in which new codified intent and old mediation practices were merged in the judicial functions of the new chambers of commerce. Looking across the entire span from late imperial China into the Republican period, the important point to be emphasized in this volume, given the context of past scholarship, is the continuity in civil law from the Qing to the Republic. There was a substantial body of

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civil law in the Qing, and it provided a consistent guide to magisterial adjudication in the local courts. Republican law continued and extended that tradition. The Republican civil code, in fact, may be seen as a part of a long tradition of adaptations by the Chinese state to changing practical needs and ideological imperatives. If we accept the argument here that local courts in the Qing adjudicated civil disputes in predictable and consistent ways to uphold rights stipulated in the code, then we must conclude that the Chinese population at large could not have looked upon that court system as just an arbitrary and terrifying presence to be avoided at all costs. The evidence shows that Chinese men and women, including peasants, turned to that system to assert legally protected rights over property, debt, marriage, and inheritance. Finally, our observations here about the adjudicatory consistency of the civil system should apply to the entire legal system of the Qing. The civil system was the least controlled and most discretionary of all parts of the Qing legal system. It was not subject to the routinized reporting and review process that covered serious criminal and administrative offenses. If our point here about adjudicatory consistency is true of the civil part of the system, it should be that much more true of the criminal and administrative parts.

Further Issues This volume has just begun to address the question of change over time in the legal system. We need to study not only changes from the Qing to the Republic, but also those during the Qing. Melissa Macauley's chapter shows that late eighteenth-century Qing officials, in some areas of the country at least, thought the system was becoming increasingly overburdened and subject to abuse. Those officials, in characteristically moralistic fashion, blamed the problem on evil pettifogging "litigation tricksters." We need to ask: to what extent were their perception and representation of the problems historically accurate and to what extent not? When seen against actual case records, just how, when, and why did the civil system change during the Qing? The scope covered by the Qing part of this volume, predicated on the scope of Qing civil law itself, is of course a relatively narrow one. New extensions of civil law in the Republican code point out some of the areas beyond the Qing code's boundaries, such as worn-

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en's rights to divorce, studied here by Kathryn Bernhardt, or complex commercial transactions, explored by Madeleine Zelin. We need to consider what kinds of civil issues fell outside the purview of Qing civil law and what happened to disputes in those areas. Discretionary latitude in magisterial adjudication, we might speculate, would have been greater than in the more common areas covered by this volume. The criminal realm, and the large gray area between the criminal and civil, are only mentioned in passing. What happened, for example, to cases that fell between the nonpunishable and punishable, the civil and the criminal? Magistrates and yamen clerks, presumably, would have exercised considerable discretion merely in deciding whether to treat a case as civil or criminal. Nor is administrative law and the entire issue of corruption in judicial administration dealt with in this volume. Just what was the extent and scope of judicial abuse in those cases that did not reach a formal court session? This volume, finally, focuses almost entirely on the formal legal system in order to correct what we believe to be the most serious shortcomings of past scholarship. That leaves unexplored the vast realms of justice outside of the formal legal system. Philip Huang proposes in his larger work in progress a conception of the entire justice system of the Qing and the Republic as comprising three parts: the formal realm covered by the code and the court system, the informal realm covered by societal (community and kin) mediation, and a "third realm" between the two, where the formal and the informal interpenetrated. We have yet to explore the informal and third realms in light of the new perspectives proposed here about the formal realm. We need also to ask about the interrelationships between the different realms, especially in that third realm lying between state and society.a In that latter realm, what happened when formal law and informal custom were in conflict? Much more needs to be done before we can offer definitive conclusions about the multifaceted operative relationship between codified law and legal practice in the Qing and the Republic, and about the different parts of the larger justice system of which the formal legal system was but one part. Those issues, of code and practice and of formal and informal justice, will be subjects of a conference to follow this one.

CHAPTER TWO

Hugh T. Scogin, Jr.

Civil"Law" in Traditional China: History and Theory

I

operation of "law" as a living social of text, scholars of traditional category a as than reality rather methodological assumpimplicit Chinese law are reexamining the tions of their field. As part of this process, it is appropriate to reflect on the relationship between Western legal theory and Chinese legal history, an issue made more important by the sophistication of the new historical scholarship. This chapter outlines the particular historical contexts and normative goals that lie behind a few key Western legal terms and considers the suitability of these terms to analyzing the Chinese data. The goal is to suggest possible areas of convergence between the work of lawyers and historians.• When describing historical data, reliance on contemporary vocabulary is unavoidable. Overconfident use, however, can project so many modern notions onto the data that the result is distorted. 2 Bohannan, for example, has suggested that discussing foreign legal systems in a new independent language like Fortran would be the only ultimate solution (Bohannan 1969: 4rs-r6). The problem is particularly acute in legal history because the terms used often come from the field of legal scholarship rather than history or social thought. Legal scholars use these terms to further normative agendas in the present. Their projection of them into their study of the past reflects these present concerns. When technical terms such as contract, rights, property, tort, or crime are used in the context of Chinese history, two basic problems arise. One is the accuracy of the terminology in describing complex Chinese realities. The other N coNFRoNT r N G THE

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is the danger of allowing categories of analysis to be influenced by the normative agendas that are embedded in the legal terms themselves. Evaluating the usefulness of such terms to the study of China involves "unpacking" some of the implicit assumptions that underlie their use by legal scholars and legal historians. Over the centuries, some of the West's greatest social thinkers have addressed themselves to the nature and significance of the Chinese legal tradition. Writers from Montesquieu, Hegel, and Weber down to contemporary legal thinkers such as Unger have placed the Chinese experience within the context of various theoretical structures (Montesquieu 1952: 46-47, 57, 105, 122-24, 137-40; Hegel 1952: 209-19; Weber 1954: 184-86, 236-37, 264-65; Weber 1951: 84-ro4, 142-70, 226-49; Unger 1976: 86-rro). On a more empirical level, traditional sinologists have built upon the foundations laid by Sherr Jiaben and other Chinese scholars in analyzing the corpus of printed texts traditionally categorized as legal (Shen Jiaben 1967 [Qing]; Escarra 1936; Hulsewe 1985; Johnson 1979; Balazs 1954; Bunger 1946; Ratchnevsky 1937).3 The result derived from these texts has been a set of general notions thought to constitute the Chinese attitude toward law. Such notions often enter into the broader assumptions scholars bring to bear in analyzing other aspects of the complex Chinese tradition. In recent years, new developments have forced a reevaluation of our traditional assumptions about Chinese law. First, rapidly expanding commercial relations between China and the West during the past twenty years have led more and more lawyers and legal scholars to confront Chinese commercial practices and to reflect upon their theoretical assumptions. A second important development has been the increasing accessibility of original source materials in China to Western scholars during the past decade. Scholars have long been able to study the accounts of legal proceedings contained in such traditional collections as the Xing'an huilan.• Such . accounts, however, exist at several removes from the original proceedings they summarize, and have been filtered through several layers of Confucian interpretation. This is particularly significant since such texts were important in disseminating elite Confucian norms. Primary sources such as those in the Dan-Xin archives in Taiwan have enabled scholars to place textual sources in a more realistic context. They have been the basis for the most important pioneering works on Chinese civil law available in English (Bux-

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baum 1971i Brockman 198oi Allee 1994). Although their qualitative value is great, the Dan-Xin materials remain few in number and illustrate the practices of a small community on the remote fringes of the empire. The opening to scholars of mainland collections such as those of the historical archives in Beijing and of the Baxian county materials in Sichuan have revolutionized the field by making available tens of thousands of case records from the heartland of China.s For the first time, scholars have a strong statistical basis for their generalizations, a rich variety of legal issues and fact situations, and the ability to compare local practices in different regions of the empire with the higher level documents available in Beijing. Simultaneously with the opening of archives from the late imperial period, archaeologists have unearthed significant legal material of earlier periods from many regions of China. Though these sources remain few in number and can present almost insuperable textual difficulties, they provide a context for analyzing legal references in traditional works from the ancient truough the Tang-Song periods. 6 Working in parallel with their colleagues in late imperial history, scholars of the early period can provide a broader chronological perspective that allows patterns of long-term change to be discerned.

The Traditional View The received wisdom about traditional Chinese law that it was purely penal and did not embrace economic or civil law allowed only a relatively minor role in private dispute resolution for the judicial process.r Scholars who accepted this view of Chinese law emphasized the importance of various "customary" or informal mechanisms such as lineage groups and guilds. They viewed law, in its prescriptive function, as less important than li or norm (Schwartz 1957). There is, of course, much truth in these ideas. The greatest value of this scholarship is its accurate description of the normative tradition articulated by the Confucian elite. Jn its legal manifestations, the Confucian intellectual tradition has been remarkably consistent. Both the provisions of the law codes and the vocabulary in which law has been discussed have changed only slowly and incrementally over the past two millennia. This consistency is attractive to modern scholars of an "orientalist" bent. For such scholars, the alien civilization of China can best be

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made comprehensible by study of paradigmatic texts that distill a body of ideas that in turn constitute the Chinese view. A powerful and eloquent application to law of such an approach is represented by the work of Jean Escarra: In the far places of Asia, China, in the mighty collection of spiritual and

moral values which it has created and long projected on so many neighboring nations,-Korea, Japan, Annam, Siam, Burma-has given to law and justice only an inferior place; in regard to juridical institutions, China would recognize only natural order, would exalt only "moral rule." Uniquely penal in nature and very severe, the sanctions have had chiefly a role of intimidation. The state and its delegate, the judge, have seen their mediation dwindle before the omnipotence of the chief of the clan or the guild, the father of a family, the general administrator, tracing to each his duties in his proper domain, resolving conflicts according to equity, usage, local custom. Commentators and theorists of law have been relatively rare among this learned, though so positive people: "One does not read codes," the great Sou Che once said. If one thinks that in spite of appearances, the influence of western civilization on the Far East remains shallow and that, especially in China, the picture that has just been sketched was, even yesterday, intact, one will admit the interest attached to this Chinese conception of law, so different from our Mediterranean ideas. (Escarra 1936: 11)

An approach such as this tends to conflate the normative tradition with "law." In discussing the "Confucian" dimension of the legal tradition, scholars have often relied on philosophical, literary, and historical texts that were largely aspirational. In view of newly available sources, we must question the degree to which these texts describe the way law really operated. Before confronting this issue, however, one must first deal with two questions that lie behind it. One is the ambiguous nature of law as idea and as institution. Because of this inherent duality, neither its normative nor its descriptive aspect can be studied without taking the other into account. The other question is the more general one of law's definition. What, in the end, is "law"? Since many of our analytical categories have been influenced by legal scholarship, our empirical work can perhaps benefit from taking into account the ways in which lawyers have conceived of this definitional task.

Subject Matter of Legal History The ambiguous nature of law as idea and as institution has bedeviled all legal historians, those of the West as well as those of

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China. The dual aspect of law has led legal historians to define in different ways the proper subject matter of their field. In the past, most lawyers analyzed the historical dimension of law as the development over time of legal concepts that were consciously articulated in legal doctrine. This sort of "tunnel vision," though problematical for modern historians, has had great appeal for lawyers. The approach is familiar to readers of such intellectual historians as AIthur Lovejoy (1936). When applied to the legal field, the history of concepts takes on both practical and normative implications. Viewing the development of legal concepts over time as an isolated subject matter presupposes that they exist independent of their social, political, or cultural contexts. The notion of an independent legal order has long been central to the self-image and the aspirations of Western lawyers and legal scholars. The notion, however, is susceptible to varying definition. It can involve, for example, the role of legal reasoning, the transcendent source of legal norms, the structure of legal institutions, or the functioning of the judicial process. Particular definitions of independence have been seen as the prerequisite for an administration of justice free of arbitrary interference from political or ecclesiastical forces and as a basis for safeguarding the interests of individuals. The particular aspect of independence that is emphasized as necessary depends on the implicit historical assumptions of the observer. Even where there has been little independence, it has, nevertheless, remained important as a goal toward which participants in the development of legal institutions could aspire. A view of history in which legal concepts as such can survive and endure over time provides an important intellectual support for the activities of these legal scholars. Such a view of legal history also reflects the techniques of practicing lawyers on both sides of the English Channel. In the continental tradition, since the dissemination of the Justinian Corpus juris civilis from late-eleventh-century Bologna, legal scholars have had to proceed by deducing applicable legal principles from the assumptions contained in legal materials dating from Justinian's time. 8 Scholars engaged in creating a legal order were separated from these materials by many centuries. Before principles of present utility could be deduced, it was necessary to identify the governing legal assumptions. This effort, in turn, required abstracting overarching legal concepts from the detailed social matrix of imperial Rome and from the unsystematic references in the Roman materials. As this

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process of analysis continued over the centuries, legal scholars had to navigate their way through this tradition of commentary and analysis. In the English common law tradition, without the starting point of Roman law, legal scholars had to engage in the even more explicitly historical procedure of abstracting from the disorganized mass of specific cases the general principles that could constitute applicable law. Legal history of the traditional kind could thus serve the interests of the legal community on both an instrumental and ideological level. The product of such history, the identification and description of legal concepts, provided lawyers with important tools of their craft. In addition, legal history could serve to buttress the ideological claims of many in the Western legal tradition by demonstrating the possible functioning of an independent legal order. More recent versions of Western legal history have continued to operate on these levels. The nineteenth-century school of legal history dominated by Savigny and his many disciples arose as a reaction against the universalist claims of eighteenth-century natural law (Savigny 1975 [1814]). The early nineteenth century saw an effort by some to promulgate in Germany a "modern" law code on the French model, which was based on notions of natural law and universal reason. For Savigny and his followers, such an application of abstract concepts would disrupt rather than constitute the legal order. For them the law of a particular society was an expression of the historical development of that society's culture. Only through the study of legal history could one discover the operant legal principles of a society. Once discovered, these immanent principles alone, not the abstract deductions of universal reason, could provide the basis for a proper legal code. The "history" produced by this school, which traced the filiation of legal concepts over time in a highly abstract manner, may not be recognizable as history to historians. The traditional approach to legal history was ideally suited for the enterprise of erecting coherent legal systems. By emphasizing consistency over time, it reinforced the belief in the enduring value of legal concepts. Locating the source of these concepts in an abstract view of culture as a realm of ideas furthered the process of systematization. Seeing a culture as unitary and as constituted by the sharing of these ideas helped determine the scope of applicability of the immanent law derived from them. This vision of cul-

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tural unity contrasted sharply with the chaotic institutional and political diversity of Germanophone Europe. It served the process of integration needed for erecting a new unified legal system. Because of the high prestige of German legal scholarship in the nineteenth century, this approach to legal history had. wide influence. With the reception of German law in many parts of the world, especially East Asia, the German style of legal history became important there as well. By the end of the nineteenth century, the formalistic bias of the traditional legal historian's focus on concepts became more and more controversial. As newly industrializing societies faced hitherto unknown social challenges many scholars stressed that legal principles must be responsive to their social contexts. 9 In analyzing these principles it was not enough to demonstrate their historical pedigree. Though they disagreed on many points, they shared a conviction that one also had to investigate their practical contexts, that is the social, economic, political, or cultural forces at work in the social matrix of the legal system. For these scholars, the content and implications of legal history shifted correspondingly. The newer style of legal history threatens more formalistic legal scholars on two levels. Just as social forces must be considered in analyzing current law, such forces also became important in understanding the law of the past. The result of such reevaluation of past legal concepts was to show that those concepts were themselves historically contingent phenomena. 10 This fact calls into question the broader applicability of those contingent concepts. Legal history could thus serve to undermine rather than to establish the authority of received legal ideas. On another level, by demonstrating the role of social context in shaping legal ideas, legal history could call into question the hopeful notion of an "independent" legal order. Defining "Law"

The Role of "Positivism" Determining the proper subject matter of legal history is ultimately a matter of definition. One's vision of history is determined by what one considers "law" to be. Whether legal scholars would consider it desirable or not, historians inevitably find "legal" materials and references embedded within social and cultural contexts.

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"Law" is only one of several possible dimensions of social experience that can give rise to normative constraints on behavior. One of the historian's most important tasks is to delineate the shifting boundaries between these dimensions and study their interaction. Before we can begin to analyze law in this context, it is necessary to establish as a heuristic device a basis for defining the boundaries between the "law" and other aspects of society. In doing so, it is important that the process of definition be sensitive to variations between cultures and periods. Such variations are often the very focus of historical analysis. One must also be cautious about general definitions of the field that presuppose necessary relationships between dimensions of society and culture. Such definitions obviate the goal of historical investigation. For legal scholars, determining the boundaries of the legal order is of paramount importance and has long been a matter of vigorous debate. It is closely linked to their self-image and to their view of the goal of their enterprise. As these views and goals have changed, so have their approaches to the definition of legal history. The approach taken by many historians, even those who seek to contextualize legal experience, has been one that lawyers would characterize as essentially positivist. When applied to the legal field, the positivist approach that has influenced many historians focused on the law as a body of rules flowing from the sovereign.ll Legal scholars would object that this description of positivism is too limited. In the twentieth century, especially since the Second World War, many positivist scholars have deemphasized the older Austinian focus on the sovereign. They have addressed themselves to a broader conception of law as a social fact. Their focus, however, has often been on the normative aspects of the concept of law rather than on categories of historical analysis. In any event, it is the traditional, Austinian positivism that is implicit in much of the historical work discussed in this chapter. In order to avoid confusion, it will be described here as "traditional positivism." This concept of law has been particularly common in traditional writings on Chinese legal history. The nature of source materials available to them in the past, as well as the centrality of imperial authority in promulgating those sources, left historians with little alternative if they were to undertake meaningful research in the field. Earlier historians have made indispensable contributions to our knowledge of the codes and related texts. One must be

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cautious, however, about general conclusions arising from an acceptance of implicitly positivist assumptions about law's nature. Both aspects of traditional legal positivism-the focus on the sovereign and the emphasis on rules-are problematical for historians, especially for those of China. Limiting "law" to the enactments of the sovereign does not do justice to the diversity of the Chinese tradition, either in normative texts or in civil practice. It is true that views similar in this regard to those of the traditional positivists have a long history in China. One need only refer to the famous statement by Du Zhou of the Han: "How does the three chi (law code) arise? What the former emperors approved is written down as statutes; what the later rulers approved is written down as ordinances" (Ban Gu 1962 [Han], 6o: 2659). This statement echoes works of thinkers such as Shang Yang and Han Fei. As early as the Han dynasty, however, such a view did not adequately represent the way in which contemporaries viewed the source of law's legitimacy and content. For some thinkers, law was based on the regularities immanent in natural processes.n In a political tradition that harked back to practices of the Zhou dynasty, some Han leaders saw law arising from compacts (yue) among those for whom the resulting law would be binding. 13 Still others saw law's force arising from the underlying moral orderY Thus, a narrow focus on rules articulated by the sovereign fails to encompass much of what can be considered "legal" obligation in traditional China. To be sure, there is also danger in an overly inclusive concept of law. If the concept is expanded to include too wide a range of social and moral factors, it becomes useless as a category of historical analysis. An emphasis on the sovereign does serve to establish a boundary of the legal order. The sovereign, at least in theory, has the power to enforce its requirements by threat of violence. This power gives a special quality to its pronouncements. Focusing on the sovereign's role as a source of rules, however, is too narrow to do justice to the scope of principles embodied in Chinese law. If the sovereign's special status arises from its power to effectuate, then this aspect of its involvement with rules and principles might serve the historian's purposes better as a basis for defining the scope of law. In the context of traditional China, using force as a hallmark of sovereignty and a boundary for the legal sphere would raise further problems. Many other elements besides the sovereign had access to physical means of coercion. At times, these were probably at least

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as effective as the judicial process in constraining behavior. In charting the shifting boundary of law, one must analyze the extent to which constraints by these other elements are usefully considered "legal." A key determinant is whether the exercise of such violence was sanctioned as legitimate. When violence was administered by private actors, the sovereign often played a role in sanctioning the act or in delegating authority to the actor. Even within the family, the application of extremely coercive sanctions often required judicial authorization. Study of the relationship between the sovereign and those other elements of society is one of the most important challenges facing historians of Chinese law. It will illuminate the content and function of the legal system as well as its penetration in society. As a basis for the legal system's definition, however, it is too broad to facilitate historical analysis. It risks conflating law with society at large. Certain rules and principles were able to constrain behavior through intermediate social groups because the sovereign was prepared to enforce these rules and principles judicially when such groups could not. Whether coercion was applied directly by the state, or indirectly by other groups, it arose ultimately from the state's willingness to engage in judicial enforcement. In analyzing the interaction of the sovereign with the legal order in China, a more useful approach may therefore be to emphasize the fact of judicial enforcement rather than the promulgation of rules or the control of coercion. It is such enforcement, directly or indirectly, that brings into play the legitimate application of coercion, which is a hallmark of law's special force. A focus on enforcement as defining the scope of "law" shifts the historian's attention from the law codes to the judicial process in the yamen. Such a shift forces scholars to confront the second aspect of traditional legal positivism, its focus on rules as the subject matter of law. 15 Rules are useful objects of analysis for those wishing to emphasize the coercive nature of the law. They set up a basic dichotomy: one either obeys a rule or one does not. As a result, focusing on rules provides a relatively easy way to define the scope of behavior that is sanctioned by the law. This benefit of a clear boundary line between the law and its social context, however, is obtained at the cost of a view of the law so narrow that it cannot do justice to the complexity of law's functioning within society. There are many elements besides rules that work to constrain human be-

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havior (Dworkin 1967: 14-46). These elements often carry legal consequences and can determine the result of judicial processes. They include, for example, principles, policies, standards, norms, models, and goals. None of these elements involves the kind of dichotomy set up by rules. They exist in gradients. They can overlap or even contradict one another. In their interaction, they push the operation of justice in one direction or another. Traditional positivism's inability to take proper account of such elements weakens it as a description of the functioning of a legal system. Merryman has summarized the problem: A more adequate definition of a legal system, however, would include a number of additional components: legal extension, legal penetration, legal culture, legal structures, legal actors, and legal processes. These are highly interrelated concepts, and each of them is further related to the form and content of the rules of law in the system. Like other social systems, the legal system has boundaries, and its components are interrelated by an internal logic. Legal extension and legal penetration help to define the boundaries of the legal systemi the legal culture is its internal logic. (Merryman 1978: 222-25)

Because historians seek to analyze society rather than isolated concepts, they must confront the concrete functioning of the legal system. This focus is particularly important in the field of Chinese civil law. The relative paucity of Chinese legal rules regarding economic transactions makes the elements other than rules of central concern. Moreover, sliding scales, vague concepts, and reliance on judicial discretion are all characteristic of much of the legal reasoning employed by Chinese magistrates in dealing with civil matters. Here again, a focus on judicial enforcement helps us draw a boundary that determines which of these elements can be considered legal. The newly available source materials in China help us see the principles that were applied by the magistrates along with the practical legal effects of their. application.

The Role of Comparative Frameworks The basic problem of defining "law" faces all legal historians, but the paucity of rules relating to civil law makes the Chinese data especially challenging. The study of legal systems as far removed from our own as that of China raises additional problems beyond those shared by all legal historians. Chief among these is

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the problem of comparability. All history, on some level, is either implicitly or explicitly comparative. The life of the past can only be made intelligible to modem readers in terms of a frame of reference that is somehow meaningful to them. The past of our own legal system is tied to the present by common vocabulary and institutions. Understanding the historically contingent function and meaning of those institutions in the past illuminates our understanding of their role in the present.' 6 When we move from our own system to those that are historically related to it, we readily find other linkages that can make comparative historical analysis meaningfulY One can study, for example, the historical development of concepts or institutions appropriated by one system from the other. If the societies share similar levels of economic development or of cultural assumptions, the study of another society's legal history can provide models to be evaluated for possible appropriation by one's own system. These ready bases of comparison are not available when the subject matter lacks such linkages. For students of twentieth-century China, this problem is less difficult. The reception by modem East Asian nations of a continental law tradition based on German law provides a wide scope for analysis. Scholars can trace the way in which continental law ideas and institutions have, or have not, taken root in Asian countries such as China. They can study the way in which commonly shared terms or techniques function in different social contexts. Soviet law can be similarly useful to students of the People's Republic of China. For earlier periods of Chinese history, where developments occurred in greater isolation, a heavier burden for achieving meaningfulness falls upon historians' own comparative frameworks and on their perceptions of the goal of legal history. All too often, some scholars' descriptions of China actually represent projections onto Chinese data of images derived from these frameworks. For many earlier writers, Chinese law provided proof for the universality of certain processes that were thought to give shape and impetus to historical development. Montesquieu, for example, stressed the interaction of culture and geography (Montesquieu 1952: 122-24, 137-40). For Hegel, the perceived lack of concern for individual autonomy in Chinese law highlighted the world spirit's development in Western law (Hegel, 1952: 209-19). 18 Marxists and other escha-

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tological social thinkers have carried such an analytical tradition down to the present. For other analysts of Chinese law, the emphasis shifts from factors actually at work in society to factors central to the authors' own analytical schemes. As a complex and well-documented culture with an intellectual tradition as diverse and sophisticated as our own, but which grew up more or less in isolation, China has provided an ideal test case. Social thinkers have used Chinese law to test the broad applicability of their conceptual schemes. Comparison has served to isolate variables. Weber's focus on transcendent religion and its associated "values" is a classic example of this process (Weber 1951: 226-49). His distinction between rule-based legal reasoning and "Kadi justice" is a product of his broader concern for the role of "rationality" in social development (Weber 1954: 224-55).

The result of such analyses has often been to create hierarchies in which separate cultures are ranked according to the degree of their "advancement." The particular variable by which they are measured is linked to characteristics of a present or hypothetical future culture, usually the author's own. What appears on the surface to be an analysis of other cultures is in fact an implicit teleological argument for the desirability or historical inevitability of the characteristics selected by the author. 19 The locus classicus of this approach in the legal field has been the work of Henry Maine (1822-1888). Maine's work has continued to have a profound influence both on the field of comparative law and on the way in which the legal community perceives the uniqueness of the Western legal order. Maine's view is crystallized in his Ancient Law: After the epoch of codes the distinction between stationary and progressive societies begins to make itself felt. It is only with the progressive societies that we are concerned, and nothing is more remarkable than their extreme fewness .... It is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved since the moment when external completeness was first given to them by their embodiment in some permanent record. One set of usages has occasionally been violently overthrown and superseded by another; here and there a primitive code, pretending to a supernatural origin, has been greatly extended, and distorted into the most surprising forms, by the perversity of sacerdotal commentators; but, except in a small section of the

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world, there has been nothing like the gradual amelioration of a legal system. There has been material civilisation, but, instead of the civilisation expanding the law, the law has limited the civilisation.... In China this point has been past, but progress seems to have been there arrested, because the civil laws are coextensive with all the ideas of which the race is capable. (Maine 1864: 21-221

This approach has been particularly congenial to students of legal history. As we have seen, the notion of an independent legal order is central to Western culture's self-perception. The degree to which an independent legal order, however defined, can appear to be absent in other cultures establishes the advanced nature of Western law. Here the reliance on traditional legal positivism has played a central role. By defining law in nineteenth-century Western European terms, it is only natural that one fails to find it in many aspects of non-Western societies. In the twentieth century, as the traditional form of positivism has declined as an intellectual force in the legal field, legal theorists' views of the scope and function of law have expanded.oo Nonpositivist elements are no longer considered by many to be antithetical to the norms furthered by an independent legal order. All of these general points can be better understood by focusing on more specific questions of legal history in which their operation can be seen. The following discussion focuses on four areas: custom, contract, formalism, and formality.

Specific Areas of Analysis The topics discussed below have been selected because of their role in traditional analyses of Chinese law. They have, at various times, provided criteria by which to evaluate the place of China on the developmental slopes implicit in many Western analytical frameworks. In addition, each of them represents a theme that recurs often in studies of Chinese civil law. To treat them as separate subjects is admittedly artificial. In practice, they are closely linked and often represent different aspects of the same problem. Some of the areas involve procedure, others institutions, and others legal reasoning. For the legal scholar, they represent disparate subjects, but share, on a very general level, some functional aspects. They all represent means, whether procedural or conceptual, to legitimate and make more certain the outcomes of private disputes. On this level of generality, however, a. common element between these topics is

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too broad to be useful to the historian. In illuminating the concrete operation of a legal system, it is more helpful to focus on their patterns of linkage as discrete elements.

Custom Custom has often been seen as an alternative to law as a means for ordering behavior. This distinction between law and custom is particularly appealing to those for whom the independent nature of the legal order is, for whatever interpretive purpose, central to its definition. Scholars such as Henry Maine and those influenced by him see the supplanting of custom by law as the process by which societies progress. In "primitive" societies, he saw a universal progression from a regime of isolated judgments, or caprice, to one of custom, based on perception of regularities, to one of law, based on codes (Maine r864: r-20). It is not necessary, however, for custom to be linked to such a developmental slope in order for it to function as an analytical category. Many scholars use it without implying the kind of qualitative superiority of the legal order assumed by Maine. Many legal anthropologists also maintain an analytical distinction between law and custom.2' Stanley Diamond, for example, sees law and custom not only as distinct but as antithetical: We live in a law-ridden society; law has cannibalized the institutions which it presumably reinforces or with which it interacts .... [E]fforts to legislate conscience by an external political power are the antithesis of custom: customary behavior comprises precisely those aspects of social behavior which are traditional, moral, and religious, which are, in short, conventional and nonlegal. Put another way, custom is social morality. The relation between custom and law is, basically, one of contradiction, not continuity. (Diamond I971: I I?)

For Diamond, however, the teleological implications of this distinction are the opposite of those seen by Maine. For Diamond, the move from custom to law represents not progress but decadence (Diamond 1971: 140-4r). 22 The difficulty of relating the custom-law distinction to historical developments can be illustrated by the example of guanxi (personal connections) in commercial relations. Scholars have often seen the rise of commercial law as a response to the need for parties to effectuate arrangements that transcended the narrow circle of their personal relations. These scholars regard reliance on personal relation-

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ships as limiting this process of the expansion of the legal realm. For Maine and those of a similar bent, this transcending of personal relationships was central to the idea of progress. When we apply such notions to China, however, these generalizations become difficult to defend. For most of China's history the scale of its commercial activities outstripped that of Europe. If party A in one town wanted to engage in trade with party B in another, it is true that his guanxi might not extend to that town. But was that necessarily a limiting factor? He could often find a party C in his own town who did have guanxi in the other town or who had guanxi with party D who in turn had connections in the other town. By a process of vouching, party A could get the vicarious protection of party C's or party D's guanxi, and commercial relations could be successfully effectuated. This secondary trading in guanxi was often formalized by guilds and mercantile brokers and is usually described as customary. Is it really all that different from the functioning of commercial law? The building blocks of commercial law-letters of credit and negotiable bills of lading-serve to effectuate long distance trade by interposing a series of parties and local face-to-face relationships between the ultimate parties to a transaction. The parties are protected by a series of vicarious guanxi-like relationships, with the state's judicial organs standing by as ultimate enforcer. In view of the functional similarities between a sophisticated guanxi system and commercial law one must be cautious about using a distinction between them as the basis for relating Chinese practices to alleged developmental slopes. Given the similarities, how does one conceive the boundaries of "law"? When we seek to apply the custom-law dichotomy to China, problems arise on both a descriptive and a conceptual level. The operation of custom as an alternative to law in traditional China is often associated with social groups such as extended lineages, guilds, and mercantile brokers. It is abundantly documented that these organizations engaged in functions that resembled judicial or legal processes. 23 They were involved in dispute resolution and in the administration of the contracting process. The existence of such functions, however, is not enough to support the older inference that legal processes played a minor role. The newly available sources indicate widespread involvement of magistrates in civil matters. As for the activities of these organizations themselves, the custom-law dichotomy does not do justice to the complexity of their involve-

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ment with the legal order. One cannot assume simply because such functions were carried out by "private" organizations that they constituted custom and lacked a legal dimension. Their legal dimension arises both from these organizations' interaction with the state's judicial apparatus and from custom's role in establishing legal norms. Organizations of mercantile brokers and extended families provide good examples of this problem. The brokers maintained elaborate rules governing the behavior and the transactions of their members, and enforced them with a variety of sanctions. Before such rules could be established, however, they had to be submitted to the local magistrate for approval. Only then could they constitute binding obligations of the organization's members. Both the content and the enforcement of these "private" rules drew their force and legitimacy from the magistrate. Moreover, the forms of members' transactions were often determined by state regulations. In addition, the magistrate was available to apply sanctions. How then does one conceptualize the boundary between law and custom in this connection? Likewise in the case of the extended family, the interplay of law with the private ordering of the family should not be underestimated. A nineteenth-century observer for whom traditional Chinese law was a living reality put the point well: The authority of the parent or the grandparent is, touching family matters, paramount within the family.... So we find throughout China groups of persons subjected to a very real local authority. But the effect of this liberal admixture of local government upon the general system has been misconceived: it is commonly supposed to have all the force of an imperium in imperio. The family or clan is, however, much in the position of an English corporation: with powers, within certain limits, to frame by-laws: subject to have its local regulations construed by the local tribunals: and liable to the ordinary law for exceeding its powers. As the innermost of two concentric circles is of necessity bounded on all sides by the other, so is the family or clan circle encircled by the law. (Alabaster 1899: lvi)

In trying to establish a coherent picture of the law, it is necessary first to clarify the relationship between the activities of these organizations and the legal processes of the state. What was the role of state regulation in determining the form and content of practice within these organizations? What were the sanctions by which the state could enforce compliance with such regulation? In which cases was it necessary for these organizations to request a magistrate. to enforce the organization's decisions? What principles deter-

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mined the extent to which a magistrate was willing to involve himself in such matters? What may well emerge from attempts to answer such questions would be not a sharp distinction between separate spheres of law and custom, but rather a complex pattern of interaction and reinforcement between the state and private organizations. When one moves from the internal activities of such entities as extended lineages and guilds to society at large, the customary nature of traditional Chinese law becomes even more problematical. The large-scale and well-organized extended lineages that have been studied by Western anthropologists and whose textual records are available, tend to be concentrated in the southeast. Elsewhere in China, different patterns of lineage structure have been the ruleY Though more common among the elite, the large extended lineage functioning as a unit often remained a Confucian ideal rather than a social reality. When we look back to earlier periods of Chinese history, the image of the large, well-organized lineage is even less representative of social reality (Ho 1965). If lineage-based and other structures for dispute resolution, which allegedly were the primary recourse for the civil disputant, were in fact not available to many segments of society, then the reach of the state's legal system must be reevaluated. Apart from such questions of descriptive accuracy, the image of a custom-law dichotomy ignores an important conceptual distinction that is central to the way in which lawyers use the notion of custom. It tends to conflate the independent functioning of custom as a mechanism for dispute resolution and social ordering on the one hand and its importance as a body of norms and concepts on the other. Those studying society have often emphasized the former aspect. Here, there is some validity to seeing custom as an alternative to law, although boundary lines may be exceedingly difficult to draw. It is the latter sense of custom, however, that is of greater importance in the legal field. Custom often operates as a source of norms, principles, or standards that are applied by the formal legal system. Here the law-custom distinction tends to disappear. Custom often is law. For an obvious example one need only consider the development of commercial law in the twentieth century. For earlier thinkers, the movement from custom to law constituted progress. Reliance on "legal" rules was a hallmark of advanced societies. It is perhaps

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ironic that much of the "progress" of twentieth-century commercial law in the West has resulted from attempts to reintroduce customary norms into commercial law. At the turn of the century, the newly promulgated German civil code, which was to have such an enormous influence on legal developments around the world, included the famous Section 242: "Performance based on good faith (Treue und Glaube). The obligor has a duty to effect performance as required by good faith and with regard to common practice" (Palandt 1989: 218). 25

Customary practice is thus made a central aspect of evaluating the legality of commercial behavior. In response to the hyperinflation and economic dislocations of the Weimar period, creative German judges expanded the application of Section 242 to occupy the entire field of commercial and business law. 26 Under the influence of German developments, Karl Llewellyn and his colleagues similarly introduced concepts of customary practice throughout the American Uniform Commercial Code. Are nebulous concepts like good faith, fairness, and customary practice, so important in modern Western law, more inherently "legal" than the general concepts applied by traditional Chinese magistrates? In both cases, custom and law are fused by the use of customary principles in producing results enforced by official judicial processes. In trying to examine the interaction between custom and law, it is useful to focus on the principles and criteria according to which custom becomes cognizable as law. In the legal field, this is a widespread phenomenon that has elicited a huge interpretive literature. These legal analyses, used very gingerly, may be of some help. In the field of international law, for example, custom is important as a source of law because, as an expression of continuing practice, it represents an implicit acceptance of the legal force of norms by those against whom they are to be enforced (Brownlie 1990: 4-11). Was consent to its application at all relevant in certain aspects of civil law in traditional China? It appears to have been the case with yue based regimes in ancient ChinaY If such spheres existed, did they coincide with areas of the law in which customary principles were determinative? In modern commercial law, reliance on customary norms is often legitimated in terms of protecting parties' expectations, promoting fairness, enabling courts to engage in flexible decision making, or in terms of reflecting the relational aspect of commercial transactions

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(Danzig 1975; Goetz and Scott 1981; MacNeil 1980; MacNeil 1974). Many of these concerns would seem at first glance reminiscent of values associated with the Confucian tradition. In what terms did Chinese magistrates legitimate relying on custom in arriving at judicial decisions? Some schools of legal thought have emphasized the importance of custom as a source of norms because it is representative of the particular historical experience of the cultures in which particular legal rules are to be applied. 28 These schools believe law must harmonize with the tradition in which it operates. China was a complex and heterogeneous empire in which law was applied in a variety of local societies. In what terms did Chinese magistrates legitimate their reliance on the particular traditions of different localities and different ethnic groups as sources for norms? Having mentioned the usefulness of Western analytical concepts, one must also stress the danger they represent. The magistrates of traditional China were not modern Western lawyers. They thought in different terms and they operated within radically different institutional and cultural milieus. Direct application of modern Western categories would do violence to the subtleties of the Chinese experience. Awareness of Western concepts, however, can help clarify the difficult analytical enterprise of understanding the interaction of custom and law.

Contract The field of contract is a revealing example of the way in which comparative frameworks have influenced traditional views of Chinese practices. The term "contract" as applied by many traditional legal comparativists has a specific content. It presupposes not only the fact of consensual transactions with legal implications, but other elements as well. These include contract as an independent body of legal principles, the executory nature of contractual obligations, the role of party autonomy in determining the content of agreements. These elements were particularly important in the nineteenth-century view of what constituted the legal regime of contract. They are, in turn, part of what is supposed to have made Western legal systems "advanced." According to such a view, the regime of contract is an expression of the independence of the legal order, of concern for the autonomy

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of individuals and their right to exercise free will, and of the efficient functioning of a modern economy. For those seeking to compare societies according to their degree of progress, contract could thus function as the hallmark of an advanced society. Once again, Henry Maine's famous dictum has been an influential expression of this view: "We may say that the movement of the progressive societies has hitherto been a movement from Status to Contract" (Maine r864: r6s). For the regime of contract to further authors' agendas with respect to aspects of the Western legal system, it was necessary for contract to be absent in the "nonprogressive" societies. When scholars defined "contract" according to traditional Western terms, it guaranteed that they would find the institution lacking in these societies. The unsuitability of this notion of contract as a generally applicable category is all the more obvious given its frequent absence from the Western tradition. The classic will-based view of contract was a recent development in Western law. 29 It dominated legal theory on contracts during the nineteenth century. Its advent and sources are the subject of lively debate among legal historians. 30 In twentieth-century practice, many of the elements downplayed by the classical will theory and associated with traditional, nonprogressive societies have been reintroduced as contract law has continued to develop. 31 Such factors as status of the parties, officially mandated elements of contracts, reliance as a basis for enforceability, course of dealing, relationship between the parties, and the role of commercial custom have been resurrected as important determinants of contractual obligations. When one finds elements such as these at work in traditional China, to maintain that they demonstrate the absence of "contract law" says a great deal about one's analytical framework, but very little about Chinese practices. A similar point has been made by Simpson with respect to the history of contract in England: We must not expect to find [medieval lawyers] thinking of their law of contract in the same way as we think of our law of contract; in the course of the centuries very considerable changes have taken place in the ways in which consensual transactions are classified, analyzed, and named .... Consequently any attempt to investigate the medieval law of contract in terms of modem legal theory would be perfectly futile, for it could only lead to the ridiculous conclusion that no law of contract then existed .... The only

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practicable method is to adopt for the purposes of the inquiry a loose working definition of contract law as the law governing the legal effects of those consensual transactions which have been regarded as giving rise to a relationship of obligation, normally confined to the parties to the transaction, . and see how such transactions were handled by the old lawyers in their terms. (Simpson 1975: s-6)

Once we get beyond the circular problem of definition and move from the question of whether or not "contract law" existed to a more empirical study of the way in which private transactions were given effect by the Chinese legal system, the diversity and richness of the Chinese tradition becomes more apparent. Chinese magistrates adjudicated and enforced contracts as early as the Han dynasty.'2 The normative vocabulary of obligations and, to some extent, the format of documents have retained consistent elements throughout the imperial period. These elements, however, have functioned within widely differing social and economic contexts and different regimes of state regulation. The variety of specific practices developed by merchants and state functionaries, and addressed by local magistrates, must be explored before we can generalize confidently about "contract law" in China. This exploration can also make an important contribution to comparative legal theory by throwing into relief the historically contingent nature of many assumptions about contract law that Western theorists tend to see as universals. In the beginning of the imperial era, the Han regime inherited a political tradition in which agreements, yue, established relationships and provided terms binding on persons embraced by those relationships (Scogin 1990). At the outset of the dynasty, the Han legal system was legitimated as the expression of such an agreement between the Han founder and his people. The dynasty's local officials added judicial enforcement to the religious and moral force of agreements between private parties. The format of contractual documents appears to have been remarkably standardized. The Han's Western Jin successor continued the state's reliance on judicial enforcement of a regime of private contract. The importance of that regime was expressed in a saying preserved in documents from the period: "People have private contracts like statutes and ordinances" (Qian Daxin 1935 [QingL chap. 15: 358). 33 Though the early empire saw widespread judicial enforcement of private contracts, surviving documents do not indicate that the state

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promulgated a body of rules to determine results in such cases. They do indicate a fact-based analysis focusing on the language of the contract documents. A variety of normative elements appears to have influenced outcomes. In the following centuries of invasion and dislocation, the documentary forms bequeathed by the Han took on different legal implications. A system of "red documents" arose in which middlemen would affix a red seal to contract documents to indicate compliance with administrative requirements and collection of applicable taxes (Wei Zheng et al. 1973 [Tang], 24: 689). In addition to their transactional implications for the parties, contract documents in such a regime served to effectuate state regulations and increase tax revenue. The Tang built on these practices, though archaeological evidence also indicates local use of contract documents without red seals in private transactions. 34 The Song dynasty represented a period of widespread innovation in contract practice and law. as Dramatic population growth, large urban centers, the widespread use of printing, increasing commercialization, government issue of paper money, and the rise of credit systems altered fundamentally the context in which contract operated. The era is of particular interest to the comparativist because many of these factors are those from which legal historians of the West derive the characteristic aspects of their own contract law tradition. The Song state interacted on several levels with the system of brokers who facilitated many transactions. Legal procedures were elaborated for the adjudication of contract disputes. The quickening pace of commercialization led to greater differentiation in categories of transactions. The state employed the new technology of printing to make form contracts a key part of its policy. The forms served as a tool for regulation as well as a means for disseminating contract principles and terms. Contract principles were enunciated by the state not in terms of abstract generalizations, but in terms of models that were embodied in specific forms of contracts. They were nevertheless enunciated and enforced. A useful approach for understanding the Chinese experience would involve going beyond the simple threshold question of whether such principles were enunciated to the more difficult one of analyzing the implications of reliance on models rather than abstract rules. Succeeding dynasties saw variations in civil procedure, in types of transactions, in state involvement with brokers, in state and pri-

Hugh T. Scogin, Jr.

vate mechanisms for the dissemination of contract principles, and in patterns of enforcement. The state continued to build on a range of earlier practices in the context of changing social and administrative realities. The complexity of these developments is obscured by the circular semantic focus on whether they constitute "law." When examined in detail, many elements of traditional Chinese contract practices resemble some that have characterized law in the West. In the Chinese context, however, their function and meaning often differed considerably from the legal implications of those elements in the West. On a more general level, China has also seen social and economic developments that Western legal historians have isolated in their own past as key variables to explain the growth of particular aspects of Western law. In China, however, these social and economic variables often led to very different legal developments. Because of the many roles contract has played in traditional Chinese law, it provides an especially fruitful means for sharpening analysis of the broader comparative implications of "contract law."

Formalism and Formality The fields of contract and of customary law both involve the role of formality. The existence of differing formal requirements can help to define these fields for outside observers. From the perspective of the parties involved in disputes or transactions, formalities can also render outcomes more certain. In this sense, formality operates on the level of procedure. The term "formalism," as used below, refers to legal reasoning and to the role of legal concepts. When used by twentieth-cen tury Western lawyers, the term often takes on a pejorative connotation. It refers to the tendency among some earlier legal scholars to presume that isolating and enunciating an applicable legal concept itself determines the outcome of a legal dispute. The pejorative connotations of the term arise from the effort among contemporary legal scholars to emphasize the importance of other normative dimensions of the legal process in addition to legal concepts. For historians and social analysts, however, "formalism" in this sense has often been used as a criterion for evaluating the development of legal systems. In the following discussion, therefore, the pejorative connotations that might arise in a normative context are not intended when the term is used to describe reliance on legal concepts as determining outcomes. In its conceptual sense, formalism emphasizes the importance of

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abstract categories as determinative elements. It can enter into judicial reasoning at various levels. It can focus on the initial problem of defining a cause of action. Before a judge or the participants can know how to proceed, they must identify the matter at hand. To thus characterize an action, reference must be made to a preexisting set of formal concepts. This task is difficult in any legal system. It involves matching contradictory and disorganized facts with the seemingly clear labels found in the law. Who really had practical responsibility for characterizing actions in traditional China? How did the wording of parties' complaints and the selection of facts contained in them fit into the process? What principles determined the solution? What were the consequences of incorrect characterization, for the parties, for the magistrate, for the lawsuit? The issue of characterizing suits was of great concern to Chinese magistrates. The subsequent responsibility of bureaucratic organizations for the administration of cases was determined by the characterization of the matter in dispute. How did the needs of the administrative hierarchy interact with the legal process below? Answers to such questions can have profound implications for the nature of the legal system in general. Formalism can also enter the legal process at a later stage. Judges must move from an initial characterization of the suit and its facts to a legal decision. Reliance on the determinative force of abstract legal propositions is an important aspect of formalism. It can provide the logical steps needed to make the decision an apparently natural, even inevitable, consequence of the facts and the law. This aspect may have been less important in Chinese civil proceedings than was the initial stage of characterization. If this possibility was not the case, then the determinative propositions must be identified. If it was the case, then what did determine results in the absence of formal legal principles? Moral norms and "customary" practices may have played an important role at this stage. In contract practice, formalities can serve to mark or draw a boundary around certain statements or actions (Fuller 1941). They allow private parties and the state to determine which of the many obligations and agreements arising out of our daily lives are to be given legal effect. In other contexts, formalities are one of the criteria by which authors distinguish between custom and law. In the area of civil procedure, respect for proper form often serves to constrain arbitrariness. It works both to protect the interest of parties subject to the law and also to constrain the authority of the state.

Hugh T. Scogin,

Jr.

For some comparative theorists, the presence or absence of formality is one measure of the sophistication of a legal system, and hence of its place on a developmental slope. As in the case of contract, or even of civil law itself, as long as the inquiry remains on the level of asking whether and to what extent formalities exist, we are engaged in a circular examination of our own conceptual assumptions. As noted by nineteenth-century observers such as Alabaster, and as evidenced by the archival materials now available, traditional Chinese legal practice was characterized by a great concern for formality and formalism (Alabaster r899). When we seek to understand the significance of these elements in traditional China, we must be careful not to allow our historical imaginations to be limited by the categories of Western legal analysis. Traditionally conceived functions of formality, such as those mentioned above, when applied to the Chinese context, can all too often involve confusing effect with function or meaning. Formality in contracting can doubtless produce the effect of manifesting the will of the parties. Concern for form in a legal proceeding can have the effect of protecting the interests of a defendant. As a matter of external description of institutions, this can tell us something about Chinese law. Such external description, however, does not do justice to the dual nature of law as concept as well as institution that is essential in appreciating the role of law in society. The effects of any action are often unintended or even unknown to the actors. A focus on effects can lead historians and lawyers to overemphasize the frequent instrumental similarities between legal systems. The result is often to ignore the role played by the legal cultures within which these instrumental effects are produced. It is the difference between these cultures that provides a basis for nuanced comparison, and the differences within them that contribute to the development of institutions. The long historical development of China's civil law displays considerable diversity in spite of the constancy of some instrumental effects. Contracts could certainly result in effectuating the will of the parties, but the nature of contract practice in traditional China often reflected as well the demands of taxation, regulation of the economy, internal policing of the bureaucracy, complying with the requirements of the ancestor cult, promoting family solidarity, and the like. The interaction of factors such as these with the chang-

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ing social and economic environment produced many different approaches to the legal dimensions of contract practice. In civil procedure, the requirements of form could serve to protect the interest of defendants. When viewed in the context of formal regulatory requirements found in other, better documented, parts of the bureaucracy, we can see that they also served as an instrument for effectuating state control and policing the bureaucracy. All of these examples involve cases in which legal practices may have served functions other than those indicated by the effects on which outside observers might focus. They illustrate the need to confront the difficult question of the meaning as well as the instrumental effects of institutions and practices when trying to understand the functions of Chinese civil law. This need, in tum, brings us full circle back to the importance of the Confucian normative tradition. Though it cannot be equated with traditional Chinese law, though it was normative and aspirational rather than descriptive, and though it is in need of reevaluation, its importance should not be disregarded. This tradition helped shape the assumptions and perspectives in terms of which the Chinese conceived the role of legal practices. Incrementally changing normative language interacted with constantly changing society. These changes occurred at different rates in different regions and segments of society. Legal practices both reflected these social changes and were themselves a part of them. Illuminating this interaction of law and society is now more possible than ever because of the simultaneous availability of archival material from the late empire and archaeological material from the early one. These materials enable historians to place legal practices in the context of specific fact situations on the local level. By viewing the way in which the facts were characterized by parties and seeing the system's reaction to these characterizations, one gains an important insight into the interaction of normative ideas with social reality. The added opportunity to see this process at work over long periods of Chinese history helps us understand the flexibility and fertility of the normative ideas and the variety of legal practices that they could embrace.

Conclusion Since historical understanding involves relating specific practices to their broader social and intellectual contexts, new devel-

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opments in Chinese legal history provide a particularly fruitful convergence between the work of historians and lawyers. The traditional view of Chinese civil law resulted from a tendency to invest the normative tradition with an almost deterministic force. This force arises from the particular mechanism by which ideas are seen to act in the social and institutional realms. The term "mechanism" refers to the implicit theories of causation and the visions of the pattern and direction of historical change on which scholars rely to explain Chinese developments. As we have seen, in studies of Chinese law, these theories have often arisen from Western normative concerns and definitional assumptions. The normative tradition is seen by some schools of thought in terms of functional effects, by others as an expression of deeper realities, or still others as a historical force in its own right. It can also be seen as determining the boundaries of what would be conceivable to historical actors. Regardless of an author's methodological assumptions, an emphasis on the normative tradition reflects the nature of Confucian texts. Moreover, focusing on the written heritage of the elite has also led some scholars to highlight the unity of the normative tradition. This dual focus on the role of aspirational theories and on the cultural unity of society has lent itself well to many of the comparative agendas discussed above. The value of the new scholarship on Chinese civil law is that it calls into question comfortable assumptions about linkages between elite ideas and social practice. The variety of approaches encompassed by the Chinese tradition and the flexibility of Confucian concepts in generating as well as responding to these approaches shifts the focus of analysis to concrete experience. It is no longer enough to point to elite concepts themselves as constituting historical explanations. The convergence of this analytical approach with the concerns of lawyers has instrumental as well as scholarly effects. On the instrumental level, lawyers often work to create structures that must function simultaneously in Western and in Chinese contexts. Consciously or unconsciously, their view of the Chinese context of their efforts is shaped by traditional notions about Chinese legal culture. The significance of these views is not confined to China. The indigenous legal heritages of Japan, Korea, and the communities of the Chinese diaspora were heavily influenced by Chinese concepts and practices. A subtler and more complex picture of that legal culture is emerging from the new research on traditional Chinese law. The

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result can contribute toward more realistic assumptions and can give those interacting with East Asian legal cultures a better sense of the range of possibilities those cultures encompass. Legal scholars, albeit often implicitly, are deeply concerned with the historical question of the relationship between ideas and institutions. The very nature of law makes such issues inescapable. The variety and sophistication of traditions such as China's provide points of reference for reevaluating common assumptions about the linkages between ideas and social developments in our own tradition. Be they framed in terms of economics, functionalism, hermeneutics, or the like, explanatory linkages are based implicitly on historical notions about the relation between relevant variables. Both in the realm of legal concepts and of social and institutional practices, specific variables seemingly familiar to Western observers can also be found in China. In that context, however, they are paired differently, often arise from different assumptions, and often perform different functions. Historical and cross-cultural awareness of such factors makes it more difficult for Western legal scholars to view as universal categories historically contingent patterns found in their own legal culture. The result can be a fuller appreciation of the range of law's implications and of the variety of human experience.

fing funjian CHAPTER THREE

Translated by Matthew H. Sommer

Legislation Related to the Civil Economy in the Qing Dynasty

T

Q 1 N G coDE is a comprehensive legal code which combines all laws in a single corpus. It includes sections on "terms and general principles" (mingli), as well as statutes (Iii) and substatutes (li) regulating government personnel, population/household, rites, the military, and the punishment of crime. Of all these, the criminal statutes (xinglii) are the most important. They include provisions concerning the imperial clan, government appointments, the civil economy, rites, military government, criminal penalties, public works, etc., for the purpose of regulating such varied matters as politics, interethnic relations, lineages, marriage, religion, the military, the economy, and so on. These criminal statutes performed an important function in reinforcing Qing rule. Although the Qing code includes laws which touch on just about everything, it is by no means an all-encompassing set of detailed and specialized regulations for every possible subject. For example, it contains many statutes regulating economic relations, but the total of these could hardly be considered a body of "economic law" in the modern sense. The statutes contained in the code which relate to economic relations can be divided into two basic categories: those governing economic matters within the imperial state and economic relations between the state and the people, and those governing economic relations among the people themselves-the civil economy. This chapter examines the latter category of statutes, analyzing the principles the Qing state employed in regulating the civil economy, and the laws it promulgated for this purposei also, to the extent possible, this chapter traces the origins of these laws and their precedents in earlier dynasties. HE

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Private Property Let us first examine how Qing law treated private property. The Qing code contains many statutes and substatutes concerning disputes between private parties over property rights. The most important ones concern disputes over real property (land and buildings). According to the code's statute on the "Illegal sale of real estate" (daomai tianzhai): Whoever illegally sells fields or buildings belonging to anotheri or disposes of fields or buildings not belonging to hirni or falsely claims the real estate of another as his owni or makes out a contract of mortgage or sale with a false pricei or occupies the fields or buildings of another-in each case, the offender shall receive so blows of the light bamboo if the amount of property in question, if land, does not exceed one mu [1 mu = o.6 acres], or, if a building, does not exceed a single room (iian). For each additional five mu or three rooms, the penalty shall be increased one degree, the maximum penalty not to exceed So blows of the heavy bamboo and two years of penal servitude. If government property is involved, the penalty shall be increased two degrees. The forcible seizure of government or privately owned mountainous wasteland, lakes, tea groves, reed marshes, or smelting works for gold, silver, copper, tin, or iron, shall be punished by 100 blows of the heavy bamboo and life exile at a distance of 3,ooo li [1 li = 0.3 miles], regardless of the amount of property involved. If someone falsely claims as his own property that is in dispute or belongs to another party, and presents it to an official or powerful person, both giver and receiver shall receive 100 blows of the heavy bamboo and three years of penal servitude. In each case of illegal sale or presentation, the property and the money paid for it, as well as all produce and profit derived from the land, shall be returned to the state or to its. owner, as appropriate. If the offender is a meritorious official, his crime shall be judged according to statute, and a memorial submitted requesting a final decision. (Statute 93) 1

As this statute makes clear, all privately owned real property received legal protection, and any violation of another person's real property was prohibited. The purpose of this law was "to prohibit fraud, to restrain the powerful, and to cause each to keep to his own property" (DQAY s: rob). This section of the law was adopted from the Ming code, while the relevant Ming statute was in turn an edited synthesis of three sections of the Tang code which banned the "fraudulent presentation," "illegal sale," and "violent seizure" of real property belonging to another person (DQTK 9: 23). As the Qing legal scholar Xue

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Yunsheng pointed out, "the first portion of this Ming statute is the same as the Tang statute, with the exception that the latter, unlike the Ming statute, punishes violations of government and private property the same way. The Ming statute includes no specific provision against official encroachment on private land; likewise, the Tang statute makes no mention of presenting property to officials or to rich and powerful people. This is because present and past conditions are quite different" (TMLH 13, shang: 5a-b). In protecting private ownership of real property, the Qing code also adopted the Ming substatute which defined how punishments should be calculated for various offenses: Any soldier or civilian who takes land of contested status, land that has already been sold, or land on which tax payments have not been completed, and makes a gift of donation of it, concealing its true status, to an official or to the family of an official or to any other rich and influential person, shall be sent into military exile at the farthest frontier, and the land in question shall be returned to its rightful owner. The head of household or estate manager who accepts such land shall likewise be prosecuted and punished. The same shall apply to any Buddhist or Daoist clergyman who so uses land belonging to his temple or monastery, and to any son or grandson who so uses the collective burial grounds of his ancestors; the same shall also apply to anyone who makes a fraudulent contract of sale or mortgage for such land. Empty wasteland in Zhili and other provinces should be opened up and planted through the exertions of the people, and its tax should be assessed on a yearly basis; if such lands are seized and presented [to officials or powerful people], then in every case the offender shall be prosecuted according to the previous substatute. (No. 93-r)

Later substatutes increased the severity of penalties for "making a gift or donation of land while concealing its true status." The phenomenon mentioned in this substatute of sons or grandsons disposing of communal ancestral grave land without authorization was apparently more common than similar encroachment by unrelated persons; therefore, in 1756 the imperial court promulgated a new substatute at the suggestion of Zhuang Yougong, the governor of Jiangsu: Any son or grandson who illegally sells up to so mu of property which was left by his ancestors to support their worship shall be sentenced to military exile at the distant frontier in accordance with the statute on "Giving away or fraudulently selling ancestral grave land." If the amount of land is less than so mu, or in case of illegal sale of charitable estate land (yitian), the

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crime shall be prosecuted according to the statute on "Illegal sale of government land" (guantian). Whoever illegally sells an old ancestral temple shall receive 70 blows of the heavy bamboo if the property sold did not exceed one room, with the penalty being increased an additional degree for each addition of three to the number of rooms sold, the maximum penalty not to exceed 100 heavy blows and three years of penal servitude. In the above cases, if the intended purchaser was cognizant of the illegality of the transaction, then he shall receive the same penalty. The real estate shall be recovered and entrusted to the lineage elders for management; the money paid in the transaction shall be confiscated. If the purchaser was not cognizant, then he shall not be punished. In all such cases, the ancestral property or charitable estate land in question must be reported to the authorities according to its boundary markers, or else the lineage must itself draw up an agreement to serve as public evidence; only if such conditions are met shall prosecution proceed according to statute. In the absence of valid public and private evidence, anyone who seizes on trifles to stir up trouble shall be punished according to the statute on "making false accusations." (No. 93-4)

From the above, we can see that Qing law protected property rights to real estate held either privately by individuals or communally by lineages. Unrelated persons could not violate these property rights, but the sons and grandsons of a property owner were equally powerless to flout them. Qing law also protected individually owned moveable property, laying down concrete regulations concerning various types of conflict over property which commonly occurred. For example, if someone temporarily entrusted with property or livestock unilaterally disposes of the same, he shall be punished in proportion to the value of that property, his penalty being one degree less than that calculated according to the scale in the statute on "Financial misconduct by an official," the maximum penalty not to exceed 90 blows of the heavy bamboo and two-and-ahalf years of penal servitude. If the trustee falsely claims the livestock is dead or the property lost, his penalty shall be one degree less than that calculated according to the scale in the statute on "Theft," with the exceptions that he shall not be tattooed, and that the maximum penalty shall not exceed 100 blows of the heavy bamboo and three years of penal servitude. In all such cases, the property in question shall be recovered and restored to its owner. If the property has been lost due to flood, fire, or theft, or if the livestock has died of illness, and there is clear evidence to that effect, then the trustee shall not be liable for punishment. If the trustee conceals the property and denies he has it, the statue on "Fraud" shall be applied; if he transfers the

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property to a third party, and it is sold or lost, then the statute on "Illegal sale of entrusted property" shall be applied. (No. 150)

As can be seen in this statute, it was a crime to betray the trust of a person who had placed his property in your care by disposing of the property or falsely asserting that it was your own. Such a crime was treated in conjunction with those of graft and theft. This statute, too, was originally developed by the Ming code on the foundation of the Tang code (Tang 26: 609). Moreover, since the temporary deposit of one's property with another was an act of trust usually occurring between relatives, an additional substatute designed to prevent the violation of such trust was promulgated during the Ming period: "If a relative disposes of property entrusted to him, then his punishment shall be the same as that which an umelated person would receive, and the property shall be restored to its rightful owner; it is not necessary to reduce the penalty according to the mourning system" (Ogyii 1989: ?I?). In cases of theft between relatives, the code mandated that differential punishments be meted out according to the degrees of the mourning system, so that the closer the relation between owner and thief, the lighter the penalty. Yet, this substatute on the disposal of property received in trust, by punishing relatives of all kinds with the same severity as umelated persons, conflicted with the rules for prosecuting theft between relatives. For this reason, in !725 the Qing court discarded the substatute, and promulgated a new one in its place: When a relative disposes of property received in trust, if he is related to the owner by the second degree (dagong) or closer, or is a cognative grandparent, and therefore must be treated with tolerance, then the property shall be restored to its owner but the offender shall not be punished. If the offender is a relative of the third degree (xiaogong), his penalty shall be three degrees less severe than that which an unrelated person would receive; if he is a relative of the fourth degree (sima), two degrees less severe; if he is a distant relative outside the mourning system, one degree less severe; in all such cases, the property shall be restored to its rightful owner. (No. 1 so- I)

For cases of purposeful damage of another person's property, the Qing code contained a statute on "discarding or destroying the tools, crops, etc., of another": Whoever purposefully discards or destroys another person's tools, or destroys or cuts down his trees or crops, shall be punished in proportion to the value of the property damaged, according to the scale of penalties in the

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statute on "Theft," with the exceptions that he shall not be tattooed, and that the maximum penalty shall not exceed IOO blows of the heavy bamboo and life exile at a distance of 3,000 li .... If any private property is [accidentally] lost or destroyed by another, then the owner shall be compensated for its value, but no punishment inflicted .... Whoever willfully destroys the steles, monuments, or protective animal figures of graves not belonging to him shall receive 8o blows of the heavy bamboo. Whoever destroys the ancestral altar of another shall receive 90 blows of the heavy bamboo. Whoever destroys or damages walls, houses, or buildings of any kind belonging to others shall be punished in proportion to the cost of the materials and labor required for repairi if the damage is valued at one liang [tael] or less, the offender shall receive 20 blows of the light bambooi the maximum penalty shall not exceed 100 blows of the heavy bamboo and truee years of penal servitude. In every case, the damaged property shall be fully repaired at the expense of the offender. ... If the damage is accidental, the party responsible shall make good its repair, but shall not be punished. (No. 98)

This section of the Qing code maintained the original Ming statutes, which were created by adding two provisions (compensation without punishment for accidental damage, and punishment for damage to buildings in proportion to the cost of repair) to the basic Tang statutes (Tang 2]: 636-7). It was illegal to take agricultural produce from someone else's land without permission. The Qing code ruled that whoever, without permission, eats vegetables or fruits growing in the field or garden of another, shall be punished in proportion to the value of what has been consumed, according to the scale of penalties in the statute on "bribery" (as follows: if the value is one liang or greater, the offender shall receive 10 blows of the light bambooi if two liang, 20 blowsi and so on, the penalty increasing one degree for each liang, the maximum penalty not to exceed 6o blows of the heavy bamboo and one year of penal servitude). Whoever destroys such produce shall be punished in the same way. (No. 99)

The original text of the Ming statute did not include the small character annotation (xiaozhu) included here (in parentheses), so there was originally no lower limit on the amount for which one could be punished. Thus, one could be prosecuted for filching even one or two vegetables or pieces of fruit. After the Qing authorities added the small character annotation, which set one liang's worth of damage as the minimum for which one could be prosecuted, the

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implication of the law changed significantly. A single person in a garden picking fruit and vegetables could eat as much as he liked without consuming one liang's worth. Thus, the statute was redirected away from its original target of "eating without permission" towards the relatively large-scale theft of produce. This statute also originated in the Tang code (Tang 27: 635). Vegetables and fruit enjoying such treatment, it followed that all agricultural products would receive legal protection. Another statute ruled that whoever steals grain, vegetables, or fruit, or tools left unguarded in fields or uncultivated areas, shall be punished in proportion to the value of what has been stolen according to the scale of penalties in the statute on "Theft," with the exception that he shall not be tattooed. Anyone taking without permission items such as kindling, grass, timber, or stones found in uncultivated areas, but which have already been cut or gathered through the labor of another person, shall be punished in the same manner. (No. 271)

Kindling, grass, timber, and stones found on wasteland are ownerless natural resources which become the property of whoever adds his labor to them. Thus, Qing law protected property rights constituted through labor. The Tang and Ming codes ruled in the same way on this point. Livestock were important possessions for peasant households, and property rights pertaining to them received legal protection under successive dynasties. The Tang code originally contained a provision sentencing anyone who stole and slaughtered government or privately owned horses or cattle to two-and-a-half years of penal servitude. The Ming code extended this statute to include all domesticated animals, and specified that the simple theft of animals be punished only in proportion to the value of what was stolen, while the slaughter of stolen animals should receive harsh punishment regardless of their valuei the penalties thus mandated were considerably more severe than those of the Tang. The Qing code maintained the Ming statute: Whoever steals the horses, cattle, donkeys, mules, pigs, sheep, chickens, dogs, geese, or ducks belonging to another shall be punished in proportion to the value of what has been stolen, according to the scale of penalties in the statute on "Theft." Whoever steals domestic animals owned by the government shall be punished according to the statute on "Theft of government property by an ordinary person." Whoever steals horses or cattle, either government or privately owned,

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and slaughters them, shall receive 100 blows of the heavy bamboo and three years of penal servitude, regardless of the value of the animals in question; in case of donkeys or mules, the offender shall receive 70 blows of the heavy bamboo and one-and-a-half years of penal servitude. If the punishment calculated in proportion to the value of the animals slaughtered (according to the statutes on "Theft" and "Theft [of government property] by an ordinary person") would be greater than these basic penalties (i.e., three years or oneand-a-half years of penal servitude, respectively), then in both cases the penalty shall be increased to a level one degree more severe than what it would be for an ordinary theft of the same value. (No. 270)

In 1728 in response to the recommendation of Metropolitan Censor Li Zhiyuan, a substatute was promulgated specifically in order to punish the theft of cattle: Whoever steals one head of cattle shall receive a month in the cangue and So blows of the heavy bamboo; two head, 3 5 days in the cangue and 90 blows of the heavy bamboo; three head, 40 days in the cangue and 100 blows of the heavy bamboo; four head, 40 days in the cangue, 6o blows of the heavy bamboo, and one year of penal servitude; five head, 40 days in the cangue, So blows of the heavy bamboo, and two years of penal servitude; five or more head, 40 days in the cangue, 100 blows of the heavy bamboo, and three years of penal servitude; ten or more head, roo blows of the heavy bamboo and life exile at a distance of 3,ooo li; twenty or more head, strangulation after the assizes, regardless of the value or number of animals stolen. Nevertheless, even if fewer than twenty head of cattle have been stolen (and regardless of the above estimation of punishment based on the number of cattle stolen and measured in terms of the cangue, the heavy bamboo, penal servitude, and life exile), as long as the value of the stolen cattle amounts to 120 liang or more, then the offender shall still be sentenced to strangulation after the assizes as provided by statute. Whoever steals and then slaughters cattle shall receive one month in the cangue and military exile in a nearby district; all such offenders shall be tattooed as prescribed in the substatutes on "Theft." Anyone who knowingly harbors such an offender and shares the profits with him shall receive the same punishment as the offender himself; whoever knows of the crime but does not share in its gains shall receive 100 blows of the heavy bamboo. (No. 270-6)

Xue Yunsheng commented that "calculating penalties according to the number of cattle provided for the especially harsh punishment of cattle theft. Changing the law so that the penalties were calculated according to the number of cattle rather than according to their monetary value was designed to make the law more severe

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in this special case because cattle are so vital to the cultivation of the land"(No. 270-6, commentary). Aside from the laws specifically cited above, the penal section of the Qing code contains many other provisions connected with the protection of private property rights. For example, the statutes on "Robbery," "Robbery in broad daylight," "Extortion of property," "Procurement of government or private property by fraud," "Conspiracy to commit theft," "Entering the house of another at night without proper cause," etc., all touch on this matter, as do their various substatutes. I have not discussed these other provisions more specifically because their primary purpose was the protection of public security. Nevertheless, we can already clearly discern that the' principle of protecting private property thoroughly permeated the Qing code.

Succession and Inheritance Inheritance is a crucial issue in the disposition of private property, and is also a matter which can easily produce strife and conflict. Strictly speaking, there are no true statutes (zhenglii) pertaining to property division in the legal codes of either the Ming or Qing dynasties. Therefore, Xue Yunsheng declared that "the statutes llii) themselves do not mention household property, but this lack is amply made up for by the substatutes (li). Since many people greedily struggle over inheritance, this problem is repeatedly cited in the code's treatment of property" (Substatute 78-r, commentary). Thus, in the population/household sections (hulii) of the Ming and Qing codes, numerous substatutes specifically aimed at settling problems related to the inheritance of household property were appended to the basic statutes on "Illegal appointment of a successor" Idizi), "Younger or inferior members of a household disposing of property without authorization," "Marriage," etc. The household registration (huyi) chapters of the Ming and Qing codes' population/household sections contain a statute on "Illegal appointment of a successor" (dizi); this statute stipulates the penalty for anyone who appointed an unqualified person to succeed to the position of head of household. By "appointment of a successor" llidi) was meant the determination of which son was, in fact, the legal successor (i.e., it was a question of ascertaining the facts, rather than of exercising personal preference); this determination "clarified

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proper rank, emphasized the importance of ancestry and lineage" (DQAY 4: rob), and secured the continuation of the lineage's incense fire. This matter occupied an important position in the law starting in the Tang period at the latest. In addition to the purposes already mentioned, this statute regulated succession to noble titles and other heritable positions. Men who had performed services for the state were sometimes granted heritable positions or ranks, to which their sons and grandsons could succeed. But in each case, there was only one such heritable position, which could pass to only one successor. Even if the official so honored had many sons and grandsons, the legal right to inherit the title could be granted to only one among them. Therefore, in the chapter on administrative regulations (zhizhi)-in the code's government personnel section (lilii)-there was a statute on "Hereditary succession by officials" which made explicit the order of succession to heritable noble titles and positions so as to prevent conflict. The principle for appointing a successor (lidi) was to give precedence to sons born to the main wife (di) over those born to concubines (shu), and to older sons over younger ones. It was strictly forbidden to allow someone of different surname to disrupt the proper line of descent (luanzong) by becoming the successor. Still, among the common people, the latter issue was not nearly so strictly regarded. In Xue Yunsheng's opinion, "with respect to ordinary people, if there is a solitary household, with no one of either the main line or distant branches of the family available to act as successor, it appears acceptable to select a relative of different surname for the position. Since ancient times, countless wellknown people have appointed successors of different surnames, and [toleration of this practice] is surely not inconsistent with the principle that 'the basis of good government is compassion'" (Substatute 78-7, commentary). In the Qing period, the imperial court stressed the prohibition of succession by one of different surname (luanzong) in banner households. In I7 40 the following substatute was promulgated: If a bannerman adopts someone of different surname as his son, fraudulently representing him as the rightful successor to a noble title so that he inherits it, then the original substatute should still be applied, the offender being sent into military exile at the distant frontier. Such cases aside, when there is no heritable title at stake, if a bannerman rears a commoner child, or the son or grandson of a household slave,

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and declares him his successor, thereby disrupting the banner registers, then the bannerman who secretly reared the child and appointed him successor, together with that person who gave his son to the bannerman to act as his successor, as well as the adopted son, if he is cognizant of the situation, shall each receive 100 blows of the heavy bamboo and three years of penal servitude; this punishment is calculated by applying by analogy and lessening by one degree of severity the substatute which sentences to military exile any adopted child who fraudulently pretends to succeed to a heritable noble title. (No. 78-7)

The Tang code ruled that whoever adopts a zahu [an official category of mean status in the Tang] male as his son or grandson shall receive one-and-a-half years of penal servitude; if he adopts a zahu female, he shall receive 100 blows of the heavy bamboo; if he is a member of an official's household, the severity of his punishment shall be increased one degree; he who provided the child shall receive the same punishment. Whoever raises a bondservant or slave as his son or grandson shall receive 100 blows of the heavy bamboo. In each case, the child shall be returned to his proper station. (Tang 12: 279)

The Ming and Qing codes ruled that "whoever adopts a son of different surname and thereby disrupts the proper lineage succession shall receive 6o blows of the heavy bamboo; whoever provides his son to someone of different surname for adoption shall receive the same punishment. The son shall be returned to his own lineage" (Statute 78). From these examples it is clear that the Qing punishment of improper succession among its banner forces was far more severe than the punishment of improper succession among ordinary people in the Tang, Ming, or Qing. With respect to the lineage, the "successor" (dizi) was the future head of household, so his position was very important. It was necessary to establish explicitly the principles mentioned above in order to guarantee that a lineage could continue to extend itself in proper order and with pure bloodlines, so that lineages and families could reproduce themselves across generations. This was especially important for great lineages. But the position of "successor" (dizi) did not relate to the question of property division and inheritance. The edicts (ling) and statutes of both the Ming and Qing reiterated and expanded earlier rules governing property inheritance and division, and laid out even more explicitly the principles of distribution of family property. This mat-

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ter concerned all families, not just those great lineages which possessed heritable noble titles and positions. As far as property division was concerned, the Qing maintained in the form of a substatute a Ming edict which provided that aside from any heritable title or position, for which exclusive precedence shall be given to the eldest son of the main wife (dizhangzi), in the division of household property and land, each son of both main wife and concubines, without regard to his mother's status or to birth order, shall receive an equal share, the division being based solely on the number of sons. A son who is the progeny of a proscribed sexual relationship (jianshengzi) shall receive half the share due a legitimate son; if there are no other sons, a proper successor shall be appointed, and he shall divide the property equally with the illegitimate son; only if there is no one else who can properly be appointed successor shall a son who is the progeny of a proscribed sexual relationship be allowed to inherit the entire property. (No. 88-1)

Noble titles were indivisible, and could be succeeded to by only one person each; therefore, in each case it was necessary to "appoint a successor" (lidi). In the case of property, however, anything could be divided, including real estate, moveable property, slaves, and livestock, and it was by no means certain that all would be inherited by a single person. Perhaps because it is the easiest method, or simply the one least likely to engender conflict, equal division among sons has been the first and most fundamental principle of property inheritance in China ever since ancient times. An edict of the Kaiyuan period of the Tang states that whenever real estate and other property is to be divided, it shall be divided equally among brothers .... If a brother has died, his son(s) shall inherit his share .... If all brothers [of one generation] are dead, then their sons shall divide the property equally among themselves .... Any brother who has not yet married shall be additionally provided with enough to meet his marriage expenses. If any paternal aunt or sister remains in the household unmarried, then she shall be provided with a share equal to one half the amount provided to cover the marriage expenses of an unmarried son. A widow without sons shall inherit her husband's share; if all her husband's brothers are also dead, then she shall receive a share equal to that of each of their sons. (Niida 1964 [1933]: 245-46)

The same method was prescribed by Song law. Compared with Tang and Song statutes, those of the Ming and Qing emphasized the property inheritance rights of sons other than

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those of the main wife, even to the point of including sons who were born of proscribed sexual relations. The penal sections of the Ming and Qing codes each established a specific chapter on the subject of "engaging in proscribed sexual relations" (fanfian) which strictly prohibited sexual relations outside marriage: · Whoever commits adultery or fornication (hejian) shall receive 8o blows of the heavy bamboo; if the woman has a husband, the offenders shall receive 90 blows. In cases of enticement to another place for the purpose of adultery or fornication (diaojian), they shall receive IOo blows of the heavy bamboo. Whoever commits rape (qiangfian) shall be strangled; if the attempt is not successful, the offender shall receive 100 blows of the heavy bamboo and life exile at a distance of 3,ooo li. (Statute 366). In addition, the statutes mandated detailed punishments for sexual relations between relatives, between persons of commoner and mean legal status, between male slaves and the women of their masters, and between hired worker-serfs (gu) and the women of their masters. These statutes contained no clarification of the status of sons born to such proscribed relationships. However, Ming-Qing law did make clear that at the time of household and property division such sons had the right to receive a portion of their fathers' property, that portion being half that due a legitimate son (i.e., a son born to a legal main wife or concubine), or equal to that due an appointed successori only if there were no legitimate son or appointable successor could such a son inherit his father's entire property. In other words, the inheritance status of sons produced by proscribed sexual relations was lower than that of legitimate sons, but equal to that of an appointed successor. The ability of such sons to have such status was perhaps related to the Tang regulation that "all children produced by proscribed sexual relations between persons of commoner status shall follow their fathers" (Niida 1964 [1933]: 263i Song 26: 424). Although such sexual relations constituted crimes, the responsibility for raising a son produced thereby fell upon his fatheri although such a son was born to an illegal relationship, he should not have to bear the burden of what was properly his parents' responsibility, and should have the right to participate in the division and inheritance of his father's property. A man and woman who engaged in a proscribed sexual relationship were subject to legal sanction, and such a woman had

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no legal status in the man's lineage or family, on grounds of either law or reason; nevertheless, her son possessed a legally established right to inherit his father's property. This appears to be a contradiction within the law itself. Relations between the sexes can produce new human life-this is a special problem brought on by that category of crime known as "proscribed sexual relations" (jian). As we can see from the right of such a son to participate in property division, the principle of equal division among all sons in ancient China was extremely influential and pervasive. In addition to this principle, the Qing continued to use the Ming legal provisions which clarified that women had certain conditional rights of inheritance. The right of women to inherit property is an issue worthy of attention. A Qing substatute provided that "when a household is extinguished due to lack of male offspring (hujue), and there is truly no one of the same lineage eligible for appointment as successor and heir, then the daughters of the household shall inherit its property" (No. 88-2). · The implication is that when there were sons to inherit, a daughter received no share; the conditions that allowed a daughter to inherit her father's property were that he have no sons, and that there be no other male eligible for appointment as successor and heir (i.e., to continue the patriline and to inherit the property). As mentioned above, it was provided in the Tang and Song periods that any paternal aunt or sister not yet married out of the household should receive a portion as dowry, the amount being equivalent to one-half the marriage expenses set aside for an unmarried brother. In the Ming and Qing, people may have followed this practice when they divided property, but the codified law mandated no such rule. Therefore, it can be ventured that in families where there were sons and nephews available to inherit property, women had even less inheritance rights than they had had in the Tang and Song. After a woman was married, when the property of her husband's household was divided, she received property only through his share; she was entitled to no independent share of her own. If her husband died without sons, then as long as she did not remarry, she was entitled to receive the share due her husband according to the law of the Tang, Song, Ming, and Qing dynasties. The Qing maintained the Ming substatute which required the lineage head to select a successor and heir for her, so as to facilitate the future transmis-

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sion of her share of property. If her husband died leaving no sons, and she remarried, then she lost all claim to her first husband's share of his household's property. Moreover, she was also required to relinquish to her husband's household any dowry which she had brought with her into the first marriage; she was not allowed to remove that property to her second husband's household (Substatute 78-2). These regulations were far more explicit than those of the Tang-Song period. In 1773 it was further ruled that a daughter-in-law who maintained her chastity as a widow-as well as a woman who had been betrothed but not yet married at the time of her prospective husband's death, but still preserved her chastity-should have a successor and heir appointed in order to inherit her dead husband's share of household property (Substatute 78-5). The above examples make clear the second principle of property inheritance, i.e., that a woman's property and inheritance rights were directly related to her marital status. In principle, a married woman could not remove even a portion of the property of her natal lineage or household. In essence, therefore, under normal circumstances, women in the Qing had no right of inheritance. A chaste widow enjoyed inheritance rights only as a representative of her dead husband, or, in other words, as a temporary custodian for her son(s) or for her husband's appointed heir. Of course, until the latter divided or inherited the property, she had the de facto right to determine its disposition. A third legal principle of property inheritance was that it was the right of the head of household himself to appoint his successor and heir if he had no sons of his own. If he had no sons or daughters, then there would be no one to carry on worship of his ancestors, nor would there be anyone to inherit the property of his household. According to the tradition of the lineage system, it was necessary to select as successor and heir a close blood relative from one's own lineage of the same generation that one's son or nephew would be from. As soon as the appointment was made, the codified law provided the adoptee recognition. Earlier we discussed how in the establishment of one as successor (li dizi), the rule was to give precedence to sons born of the main wife over those of concubines, and to older over younger, it being forbidden to tamper with the proper order. In the appointment of a successor and heir (li sizi) by one without sons, it was still in principle necessary to give precedence to close blood relatives over more distant ones, and to older over

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younger, in establishing the order of selection. But a substatute in both the Ming and Qing codes provided that when a man without sons appoints an heir and successor, aside from following the procedure mandated by statute, if the one so chosen does not suit him, then he may appoint someone else by reporting this decision to the local authorities. He may select someone of particular virtue or talent, or of whom he is particularly fond, and as long as the proper sequence of generations is not disrupted, then the lineage shall not be permitted to dispute his choice on the basis of proper order of succession; moreover, magistrates shall accept such cases for adjudication should they arise. (No. 78-3)

This law gave men without sons the right to replace an already appointed heir and successor, and the purpose of having magistrates accept such cases for adjudication was to protect this right. Even if a natural son were born after someone else had already been appointed, the latter still maintained the right to inherit a share of property equal to that of the natural son: "the household property shall be divided equally with the heir originally chosen" (No. 78-3). In r 77 3 yet another substatute was promulgated: When one without sons appoints an heir and successor, if the person ordinarily in line for that position and he have some previous dislike or enmity, then he may choose from the same generation of lineage relatives some other who is virtuous or of whom he is especially fond, and his wishes shall be obeyed. If someone in his lineage, plotting for personal gain, insists, by threat of force, that he himself be selected, or otherwise tries to influence the selection of an heir, so that a lawsuit develops, then the local magistrate shall punish that individual without delay, and shall declare as lawful heir that male who was chosen because of virtue or affection. (No. 78-5)

That is to say, when a man without sons established his heir and successor, he had the right to choose someone else if he became unhappy with the one who had already been appointed according to the set order of succession among blood relatives; moreover, he actually had the right to choose according to his own wishes from the very start of the process. Other lineage members had no right to oppose his decision: government authority would support him. In modern law, a property owner has the right to will his belongings to anyone he pleases. The Qing regulations concerning the choice of an heir by a man without sons was already a step in this direction. A fourth principle was that a husband brought in by uxorilocal marriage could receive a share of his wife's household property. In

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the Ming and Qing, if a man had a daughter but no sons, then he could go through· a matchmaker to sign a marriage contract which brought a son-in-law into the household rather than the daughter leaving to join the household of her husband. The marriage contract would state clearly that the son-in-law brought in by uxorilocal marriage had the responsibility to care for his parents-in-law in their old age, or would otherwise set a minimum period of time during which he could not take his wife away from her natal household. If a man brought in a son-in-law as old-age insurance, he could still"appoint an appropriate person from the same lineage as heir and successor, to take on the responsibility of ancestor worship." Where there were simultaneously present in one household both a uxorilocal son-inlaw and an appointed heir and successor, then the household property would be divided equally between the two (Substatute ror-3). In the Ming dynasty, it was a common custom to adopt sons (yi'nan). Both adopted sons and uxorilocal sons-in-law had a different surname from their patron's, but this did not matter. As long as the young man was "liked by the person he is to succeed, then that person shall be allowed to rely upon him as he wishesi it is not permitted for an appointed heir and successor or for his own natural parents to scheme to drive him out [of his adopted or uxorilocal household]" (Substatute 78-3i also see Substatute ror-3). The substatute also clearly ruled that if an adopted son of different surname "decides to return to his natal household, then he shall not be permitted to remove any share of property received from his adoptive household through division" (No. 78-4). The purpose of this substatute was obviously to prevent a selfish adopted son from betraying his benefactor, and to protect private property from falling into the hands of people of different surname. A fifth basic principle of the law of property inheritance was to punish anyone who created conflicts over succession and inheritance. The most important goal of inheritance and succession was in any case to worship the ancestors and to provide for the transmission and continuation of their incense fire. But as soon as the relationship of successor was established, there naturally went with it the right to inherit a share of property. For this reason, if a household had no sons, then all the close relatives who had more than one son would hope that one of their sons could be appointed heir to the childless household. Therefore, struggles over inheritance between different household branches within a single lineage were a constant problem, often reaching the point that serious enmities developed.

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In 1779 one Zeng Zhiguang of Hubei beat his paternal uncle,

Zeng Shenghui, to death with a stone; he did so in hopes of being able to establish himself as Shenghui's heir, but instead ended up being convicted of homicide and sentenced to death by slicing. Because of this case, a new substatute was promulgated: "In cases . where struggle over inheritance results in homicide, no branch household which was involved in the struggle in hopes of getting property or inheriting, or any household which supported another in the struggle, shall be allowed to establish [one of its members] as heir; instead, the lineage head shall select someone else through public discussion" (No. 78-6).

Commerce The exchange of commodities constitutes an important part of the civil economy. The Qing code's regulations regarding marketplaces and commerce are mostly concentrated in the chapter on "market" (shichan) in the population/household section. This chapter includes sections on "usurping the duties of a broker (yahang) or shipping agent (butou)," "valuation of merchandise by market officials (shisi)," "monopolizing markets through force," "private manufacture of instruments of weight or measure,""sale of substandard articles and cloth," and so on. The first section concerns regulations about brokers (yahang). In the Tang dynasty, there were no such things as yahang or butou, so there were no relevant provisions in the Tang code. In the Ming and Qing, each line of business had its own brokers. When merchants transported goods to the point of sale, they had to deposit the goods with a local broker who had been appointed by local members of the relevant line of business. Wholesale purchasers also had to engage local brokers to help them find sellers, a process known as touzhu ("submitting to a host"). Brokers would assess the quality of the merchandise, set the price, and carry out the negotiations between both parties until an agreement was reached; for this service, they received a commission. A shipping agent (butou) was a person who controlled the boat owners and their business in a river port. If a merchant wished to hire a boat for transportation, he had to go through the shipping agent in order to be sure of finding someone trustworthy; for this service, the shipping agent received a commission. After one merchant had made a deal with another through a broker (i.e., touzhu),

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the latter was then responsible to the merchant for the safety of his goods. At the same time, while the goods were being transported, the shipping agent was responsible to the merchant for the reliability of the boatmen he had recommended. If the merchant were swindled, or if loss were incurred for some other reason, the broker and/or shipping agent had to pay compensation. Because of its concern for security, the government demanded that brokers report the circumstances of traveling merchants and that shipping agents report the circumstances of boatmen. It required that all who served in these two posts be from established households of good standing, have substantial means, and be reliable. On this point, the Qing code maintained the entire Ming statute: All who serve as brokers or shipping agents in cities, marketplaces, or villages must be of sufficient means to be able to take on the financial responsibilities of the job. The presiding official shall grant these agents licenses as well as registers in which they shall keep a record of all traveling merchants and boatmen who arrive each month, including their names, places of origin, travel references, the names of their firms, and the quantity of goods which they bring with them; each month, these registers shall be submitted to the official so that he can inform himself about the origins of and goods imported by such merchants and boatmen. Anyone who acts as such a broker or agent on his own authority, without being selected by the presiding official, shall receive 6o blows of the heavy bamboo, and his income derived from commissions shall be confiscated; any authorized broker or agent who harbors such a usurper shall receive 50 blows of the light bamboo and be removed from his position. (No. 152)

Yamen clerks and runners generally were quite powerful, given their familiarity with the workings of local government, and no one would dare offend them casually. Seeing that a broker's work was profitable, these clerks and runners often assumed false names, or used the names of their sons or nephews, in order to act in such a capacity; they secretly manipulated merchants from other places, forcing their way into commercial transactions; in addition to extracting commissions, they extorted excess profits, thereby harming normal commercial activity. In I7 40 the following substatute was promulgated: If a runner or clerk of any government office changes his name or reports a false name so that he can simultaneously act as a broker, then he shall

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6I

receive roo blows of the heavy bamboo and be removed from his position in accordance with the substatute on "Changing one's name in order to fill two government posts at once." If such a clerk or runner defrauds a traveling merchant of his goods, or causes merchants inordinate delay, then he shall receive a month in the cangue and be sent into military exile in a neighboring district, in accordance with the substatute on "Hoodlums conspiring to usurp and monopolize a line of business." If the presiding local official fails to discover such activity, or if he purposely tolerates it, then his case shall be referred to the Board of Personnel for separate deliberation of administrative discipline; if he takes bribes and · purposely allows such activity, then he shall be punished with utmost severity according to the statute on "Accepting bribes for an illegal purpose" (wangfa). (No. 152-6)

In r8r8 a retired jail warden named Cheng Shensi from Wuyuan county in Anhui used his grandson's name to obtain a license as a broker for tea; after he was exposed, it was found that indeed he had "extorted and cheated countless sums of excess profits, and that his behavior truly constituted association for the purpose of harrassing traveling merchants"; by application of this substatute, he received roo blows of the heavy bamboo (Xing' an huilan r886, ro: 58a). The setting of prices on merchandise was an important matter which received considerable governmental attention during successive dynasties. The Tang code ruled that the presiding official of the market (shisi) should set prices: "If the presiding official of a market sets prices which are not fair, then he shall be punished in proportion to the difference between his price and the true value of the merchandise according to the scale in the statute on 'bribery'; if he has profited from setting unfair prices (by pocketing the difference), then he shall be punished according to the statute on 'Theft'" (Tang 26: 620-21).

Song law ruled that 'ithe prices of all goods shall be set once a month. The quality of each item of merchandise shall be rated as either high, medium, or low, and accurate prices shall be estimated accordingly at the appropriate time" (Niida 1964 [1933]: 716). Although the relevant Ming-Qing statute was still titled "The setting of prices on goods by the presiding official of the market," in practice, prices were actually determined by brokers: If a low price is set on a high-quality item, or a high price set on a lowquality item, so that the price is unfair, then the offender shall be punished in proportion to the amount wrongly added to or subtracted from the fair

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price, in accordance with the statute on "Bribery"; if the total is one liang or less, then he shall receive 20 blows of the light bamboo; the maximum penalty shall not exceed 100 blows of the heavy bamboo and three years of penal servitude; if he has profited by pocketing the difference between true and false prices, then his punishment shall be calculated based on the scale of penalties in the statute on "Theft," with the exception that he shall not be tattooed. (Statute 153)

In marketplaces, there were often unsavory characters who engaged in unfair trade practices as a way of procuring extra profit. Such merchants would cut deals with brokers to monopolize a market by force. The Qing code strictly prohibited such activity: lf anyone engaged in trade controls or monopolizes a marketplace so that he can force a transaction on an unwilling party at exorbitant profit; or if any unsavory character involved in trade enters into a conspiracy with a broker in order to sell his own low-quality goods at prices higher than their true value, or to buy the high-quality goods of others at prices lower than their true value-in all such cases, the offender(s) shall receive 8o blows of the heavy bamboo. lf a merchant, observing the commercial negotiations of others, continues to manipulate his own prices so as to disrupt the deal and obtain profit for himself, then even if he is not monopolizing the market, he shall receive 40 blows of the light bamboo. ln cases in which the offender has already derived profit from such acts, if the amount of that profit, when used to calculate proportional punishment according to the scale of penalties in the statue on "Bribery," indicates a penalty greater than 8o blows of the heavy bamboo or 40 blows of the light bamboo, respectively, then the scale of penalties in the statute on "Theft" shall be applied, except that the offender shall not be tattooed. lf the penalty so calculated is lighter, then the penalties mandated by the present statute shall still be applied. (Statute 1 54)

This statute was inherited directly from the Ming code; the Ming statute, in turn, was developed from the Tang statute on "Monopoly (jiaogu) not permitted in trade" (Tang 26: 621-22). Jiaogu meant taking control of a marketplace by force, not allowing outsiders to trade in it, and forcing the sale of one's own goods at high prices and of others' goods at low prices. With regard to this sort of activity, the Ming promulgated a new substatute, maintained in force by the Qing, which increased the severity of penalties: Wherever traveling merchants gather, if any broker or unlicensed element uses force to take control of such a merchant's goods, then the offender shall receive one month in the cangue, regardless of whether the goods were fraudulently sold by credit. If a fraudulent sale by credit did occur, then the

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offender shall be required to make good the merchant's loss. If a long time passes and the offender has no means to pay back the merchant, so that the merchant is unable to return home, and finally dies in poverty, then the offender shall be sent into military exile in a neighboring region. (No. 154-3)

In this substatute, the phrase "to use force to take control of goods" means the same thing as the phrase "to monopolize or control a market" which appears in other statutes cited above. In addition to maintaining this Ming measure, the Qing added a substatute in the Kangxi period regulating the behavior of relatives of Manchu nobility and other important personages: If the relative of any member of the Imperial Household Department, imperial prince, prince of the blood, or government official engages in business and, forcibly occupying an important site, mountain pass, or ford, exploits his power and influence in order to extort payments, thereby preventing merchants from carrying on normal trade, then if discovered, the offender shall be beheaded after the assizes. If any ordinary person borrows money from such a personage, and engages in commerce in his name, occupying an important site, mountain pass, or ford, using force to oppress and hinder the local people, then he, too, shall be prosecuted under this substatute. (No. 154-4)

During the Qing period, Manchu nobles frequently supported their relatives through commercial activities that extorted exorbitant profits; this substatute of the early Kangxi period was a direct response to such misbehavior. The spirit of this substatute resembles that of a prohibition issued during the Tang dynasty in the year 737: "If any prince, princess, or palace concubine sends his or her steward, retainer, bondservant, or other personal attendant to engage in commerce or innkeeping in a marketplace, then he or she · shall be punished" (Niida 1964 [1933]: 857). In 1736 yet another substatute was added, requiring that when government officials made purchases they not impose artificially low prices: When government officials both high and low make official or private purchases, they shall be fair and shall pay market prices; it is not permitted for them to act as brokers or to allow yamen runners to procure private profit [from such activity]. In handling official errands, it is necessary to act with justice, and it is forbidden to quibble over trifles for purposes of extortion. If a presiding official permits yamen runners to act without restraint, or if he fails to discover such offense, then his case shall be referred to the Board of Personnel for separate deliberation of administrative discipline.

fing funjian

The offending yamen runner(s) shall be prosecuted according to the substatute on "Brokers or unlicensed persons forcibly taking control of goods in transport or which belong to traveling merchants, regardless of whether the goods have been fraudulently sold on credit" [No. I 54-3], the penalty being one month in the cangue, and 8o blows of the heavy bamboo. If the value of the goods in question is 35 liang or more, then the punishment shall be calculated in proportion to the value of the goods in accordance with the statute on "Accepting a bribe for an illegal purpose." Any bribes or private property procured by such activity shall be confiscated or returned to their rightful owners, respectively. (No. I54-8)

This substatute also has points in common with Tang dynasty regulations. An edict of 719 ruled that "when officials are engaged in commerce with private persons, in setting the price of goods, they shall pay fair and moderate prices" (Niida 1964 [1933]: 718); the edict further prohibited yamen clerks and runners from exploiting their positions in order to damage the interests of merchants. Qing law inherited an ancient tradition of managing marketplaces by grasping the two links of quantity and quality in commercial transactions. With regard to quantity, it was ruled that all weights and measures be officially established, and their private manufacture was forbidden. The statute stated that whoever privately manufactures false instruments of weight or measure and employs them in a marketplace, or alters officially authorized instruments of weight or measure for the purpose of cheating others, shall receive 6o blows of the heavy bamboo; any artisan who assists in the offense shall receive the same penalty.... Whoever employs instruments of weight or measure which, although fair, have not been examined and affixed with a proper seal by authorized officials, or employs such instruments which carry a privately made seal, shall receive 40 blows of the light bamboo. (No. I 55)

If an official responsible for the manufacture of authorized instruments of weight and measure produced ones that did not conform to standard, then that official and the artisan would both be punished. The relevant Qing statute came from the Ming code, and the same Ming statute was taken from the Tang code, but the mandated penalties are much stricter than those of the Tang. The Tang statute reads: "Whoever privately manufactures false instruments of weight or measure and employs them at market shall receive so blows of the light bamboo" (Tang 26: 62r), while the Ming-Qing statute mandated 6o blows of the heavy bamboo for the same offense.

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With regard to quality, the Qing code ruled that "any private individual who manufactures [for sale] any article which is not durable or genuine, or any silk or other cloth in units thinner, shorter, or narrower than the customary standard, shall receive so blows of the light bamboo" (Statute rs6). The Tang code contained the same sort of regulation: Whoever manufactures and sells articles or cloth which are of substandard quality or measurement shall receive 6o blows of the heavy bamboo. If the offender has derived profit from such sale, in cases of great profit he may be punished under the statute on "Theft" in proportion to the amount of his profit; whoever sells such goods shall receive the same penalty. The authori~ ties responsible for the marketplace and for local administration, if cognizant of the matter, shall receive the same penalty; if they were not cognizant, and failed in their duty to uncover such wrongdoing, then they shall receive a penalty two degrees less severe than that of the offender. ITang 26: 620)

In this matter, the punishments mandated in the Qing were lighter than those of the Tang code; moreover, Qing officials were not required to take responsibility for the quality of goods which appeared in local markets. These two sets of regulations concerning the exchange of commodities in the marketplace were clearly aimed at protecting fair trade; an especially high priority was the unification of standards of weight and measure. Nevertheless, during the Qing dynasty, such regulation in actual practice was quite lax. For example, even the standards set by government authorities for weights and measures were themselves not uniform; by the Guangxu period, according to Xue Yunsheng, weights and measures were separately manufactured by various parties according to no unified standard. In the capital, for the weighing of silver alone, there are the kuping, shiping, gongfaping, and the erliangjingping; one can imagine the situation for other items .... For [the unit of length known as] the chi, there are distinct gongbuchi and jiangchi; for weights, there are the kuping, caoping, erliangping, etc.; every province has its own shichi and shiping. There are even more units of measure per province, and the disparity between these different units is extraordinary.(TMLH 27: rsb) At the same time, the statute banning the "sale of substandard articles and cloth" had also "already been reduced to a meaningless formality" (TMLH 27: rsa). In fact, no concrete standards were ever mentioned in the statutes on the "durability and genuineness," and

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"thickness and size" of articles sold in market, making it exceptionally difficult to enforce these laws. No doubt they had already become unenforceable long before the Guangxu period. In the Qing, commercial transactions in real estate were also very common. Naturally, this sort of exchange did not occur in public marketplaces, but it still constituted a form of commodity exchange. At that time, as in the case of any other commodity, when buildings or land were sold, a tax had to be paid to the local government. Moreover, since the land tax had to be paid, the true owner of the land could be held responsible for that tax only if both parties had officially registered the transfer of the property to make it legally final (guoge). Therefore, the Qing code ruled that whoever purchases land or buildings by mortgage (dianmai) without paying the official fee for registering the contract shall receive 50 blows of the light bamboo; moreover, one-half of the price of the real estate stated in the contract shall be confiscated. If a legally registered transfer of the property (guoge) is not performed, then the offender shall receive 40 blows of the light bamboo if the amount of land in question is between one and five mu; for every five mu thereafter, the penalty shall be increased by one degree, the maximum penalty not to exceed 100 blows of the heavy bamboo. The land in question shall be confiscated. (Statute 95)

So that normal and proper land transactions could take place, the Qing Code required that a single piece of real estate be subject to only one transaction at a time: Whoever conceals the fact that a piece of real estate has already been sold by mortgage, and sells it by mortgage to a second party, shall be punished in proportion to the price of the second transaction according to the scale of penalties in the statute on "Theft," with the exception that he shall not be tattooed; the money from the second transaction shall be returned to its owner, and the real estate shall be returned to the first mortgagee-buyer. If the mortgagee-buyer, broker, or guarantor of the second transaction was cognizant of the situation, then he shall receive the same punishment as the offender himself, and the sum involved shall be confiscated; if they were not cognizant, then they shall not be punished. (Statute 95)

This sort of multiple mortgage-sale, of course, was bound to cause conflict. This statute was inherited by the Qing from the Ming dynasty, when it was first promulgated. In this respect, Ming-Qing law differed from Tang law, a result of the different systems of land tenure in the two periods. In his A Joint Edition of the Tang and Ming Codes, Xue Yunsheng pointed out

QING CIVIL ECONOMIC LEGISLATION

that "the Tang code distinguishes between 'individual portions of land/ which could not be sold, and 'land held in perpetuity,' which could, and does not mention any other type of land. The Ming code, in contrast, stresses matters such as payment of the contract registration tax, and the legally registered transfer of land subject to mortgage-sale" (TMLH 13: yb). Already in the Yuan dynasty, we find the following statute: Whoever sells by mortgage a piece of real estate shall draw up a contract and duly register it with the proper authority, and both mortgager-seller and mortgagee-buyer shall in due time appear before the proper authority to pay a tax in grain on the transaction. If the mortgagee-buyer is a powerful person, and the local officials are sycophants who obey his will, so that the transfer of the land in question is not legally registered, and later on the mortgager-seller is ordered to pay the land tax, or some other household is made to pay the tax, or a false name is entered into the contract; in any of these cases, as long as even a tiny bit of profit has been procured, then the offender shall receive 57 blows of the light bamboo. The mortgagee-buyer shall be made to produce a sum of money equal to the price paid for the land, one-half to be confiscated by the government, the other half to be awarded to whoever reported the offense. (TMLH 13: 8a)

From this, it is clear that the emphasis on the legal registration of transfer of land began in the Yuan dynasty. Mortgaging land (dian) was similar to pawning moveable property (dang). In both cases, both parties would clearly state in their contract that if the original owner paid back the price within the prescribed time period, then he could recover his property. Ming and Qing law protected the right of the original owner to redeem a mortgage, ruling that if, when the prescribed period of time has expired, the mortgager of land, buildings, gardens, woodland, mills, or other real estate prepares the amount of the mortgage and offers to redeem the property, then if the mortgagee makes up excuses and refuses to permit redemption, he shall receive 40 blows of the light bamboo; any profit derived from the property beyond the period of mortgage shall be recovered and given to the mortgager, and the property shall be redeemed at the original price of the mortgage. If the prescribed period has lapsed but the mortgager lacks the money to redeem his property, then this statute shall not apply. (No. 95)

If a mortgager was unable to redeem his property, then he was allowed to draw up another contract of "irrevocable sale" (juemai),

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thereby completing the formal procedures involved in a land sale. From that point on, the ownership of that piece of real estate would shift completely to the purchaser, and the original owner would have no right to make any further attempt to redeem it. Under ordinary circumstances, when a contract of irrevocable sale was made, the original mortgagee had to pay an additional sum of money through a go-between. This sum was known as the "payment of the balance owed" (zhaotie), or the "payment of the balance for redemption" (zhaoshu); this payment, combined with the original mortgage payment, made up the total price of the property. In principle, after the final payment was made, the original owner had no further connection with the property or rights regarding it; in actual practice, however, the situation was somewhat different. After all, fields, houses, wasteland, gardens, woodland, and other real estate are fundamentally different from other types of commodities. Their value gradually increases; one can derive produce directly from them, in addition to their rent; moreover, it may be that under certain conditions, purchasers are able to buy them at depressed prices; and so on. For these and other reasons, even after an "irrevocable sale" had taken place, it was not uncommon for the original owner to bring up the question of "balance payments," and demand that the new owner pay him additional sums of money. This phenomenon of balance payments was quite common in the lower Yangzi region, Fujian, Zhejiang, and Taiwan, as well as in many parts of the Huaibei region, the northwest, and the southwest. In 1725 the emperor concurred with the suggestion of Yang Mingshi, the governor of Yunnan: Many people gave up their land in irrevocable sale at depressed prices because, as a result of the rebel Wu [Sangui], taxes were heavy and there was no prosperity in the region. Now that peace has been restored and there is no longer any new land to be opened up, the original owners bring up the original prices paid for their land and sue to get further balance payments or to redeem their land, leading to endless struggle and litigation. It would be best to order that this behavior bepermanently prohibited. (SXSL 29: 23b)

Although other regions did not experience the special conditions of Yunnan at that time, they, too, had problems with demands for "balance payments." For this reason, in 1730 a substatute was promulgated in accordance with the recommendation of Board Vicepresident Wang Chaoen, as follows:

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When people sell property by written contract of irrevocable sale, if that contract does not contain the words "balance payment" (zhaotie) or a like term, then no demand for such payment or for redemption shall be permitted. If the contract does not include the words "irrevocable sale" or a like term, or if it sets a time period after which the property can be redeemed, then the property shall be redeemable. If the original owner is unable to redeem his property, then he may set a fair price and demand one balance payment, and draw up a separate contract of irrevocable sale. If the purchaser is unwilling to make any balance payment, then let the original owner sell the land again to some other party and let the original amount paid be returned to the original purchaser. If the land has already been irrevocably sold, the contract clearly records this fact, and the original owner again sues the purchaser for further payments or redemption ... then the offender shall be punished according to the statute on "Doing inappropriate things-severe cases" [i.e., So blows of the heavy bamboo, rather than the 40 blows of the light bamboo prescribed for less severe cases]. (No. 95-3)

Based on the language M this substatute, the most important evidence in determining such cases was whether the term "irrevocable sale" had been recorded in the original contract. But this law was in no way sufficient to halt such conflicts over property. "The great majority of lawsuits at the prefectural and county levels are related to pr'operty disputes" (GCSL 436: r2b). For this reason, another substatute was promulgated in I7 44: "If real estate has been sold by contract, and a long time has already passed, then even if 'irrevocable sale' or other such term is not included in the contract, redemption of the property shall not be permitted" (GCSL 436: r2b). In other words, as long as there was a contract of "sale," and a long time had passed since the transaction, then it was not permitted to seek redemption or to demand further balance payments. In I7 s3 another substatute was promulgated, this time based on the recommendation of the judicial commissioner of Zhejiang, Tong De: Hereafter, whenever people purchase real estate, if they draw up a mortgage contract (dianqi), then they shall explicitly record in its contents the words "to be redeemed." If it is a sales contract (maiqi), then they shall explicitly record in its contents the words "sold irrevocably, never to be redeemed." In case of land for which there is a contract of mortgage or sale dating from prior to the promulgation of the present substatute in the year Qianlong 18, and the language of the contract is vague, then if it predates thepre-

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present substatute by no more than 30 years, and does not contain the words "irrevocable sale," the land in question should be redeemed separately in accordance with the relevant substatute. If a contract predates the present substatute by more than 30 years, then even if it does not contain the words "irrevocable sale," as long as it does not contain the words "to be redeemed," the property in question shall be considered irrevocably sold, and under no circumstances shall the former owner be permitted to redeem the land. Anyone who stirs up confusion and starts conflicts or litigation [over such a contract] shall receive the more severe of the penalties prescribed by the statute on "Doing inappropriate things." (No. 95-7)

If the 1730 substatute is compared with that of !753, the former recognized only that when a mortgage was transformed into a sale, it was legal for the original owner to seek a single balance payment; the latter substatute went a step further by allowing any original owner of property to redeem it, as long as it was governed by a contract less than 30 years old which did not explicitly include the phrase "irrevocable sale." Thus, the already popular phenomenon of seeking to redeem property became all the more legally acceptable. Among the common people, when real estate was "sold by mortgage" (dianmai), instead of going before the officials to get an officially sealed contract (a "red contract"-hongqi) , the parties would usually settle for an unofficial private contract (called a "white contract"-baiqi-bec ause of the absence of the red official seal), so as to avoid paying the contract registration tax. Given this situation, when the mortgager-seller demanded extra balance payments, the mortgagee-buyer would usually prefer to cough up the money rather than run the risk of going before the magistrate with an unauthorized "white contract." The latter course could cause a great many complications which were best avoided. Naturally, this would tend to increase to a certain extent demands for extra balance payments. Even with statutory language banning the redemption of any real estate which had been sold by mortgage over five years before, in real life there were cases of decades or even more than a century going by, with the descendants of the mortgager-seller still demanding payments from the descendants of the mortgagee-buyer, so that in some cases a single transaction was followed by more than ten balance payments (for more on the question of balance payments, see Chen Keng 1987). Of course, demanding balance payments was

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quite different from redeeming the property itself; the fact that balance payments were demanded and paid implies that a sales transaction had not been completely brought to a close. No matter what, it is safe to conclude that during the Ming-Qing period, for real estate transactions, as for household division and inheritance practices, written contracts constituted a vital form of evidence. In lawsuits that concerned real estate, litigants were required to submit their contracts as evidence, and officialdom took the officially sealed "red contract" as the decisive standard for judgment. The legal codes of both dynasties ruled that in lawsuits related to real estate, if the matter is already five years old, or even if the matter is less than five years old, but investigation reveals that relatives have drawn up a document of division which takes account of the sale, and the sales contract is valid, then it shall be ordered that the present proprietor continue in his possession of the property, and redivision or subsequent redemption shall not be permitted, nor shall further lawsuits be accepted for adjudication. (Substatute 95-1)

In 1767 a new substatute was promulgated based on the recommendation of the judicial commissioner of Anhui, Chen Huizu: In lawsuits disputing the status of burial land, if the matter is new, then the

decisive evidence shall be the officially sealed contract or deed to the land. If the present proprietor has occupied the land for a long time, then it shall be necessary to obtain the number (zihao) and dimensions of the property in question, the fish-scale registers on file, and the sealed receipts for land tax payments and to investigate and compare them one by one; if they match one another and corroborate the argument of the party bringing suit, then he shall be declared the true owner of the property. If investigation reveals that they do not match, or if the party bringing suit does not have sealed receipts for payment of taxes on the land in question, then whatever old contracts, steles, registers, or other items he cites shall not be admitted as evidence; whoever has brought false suit or has encroached upon the property of others shall be punished according to statute. (No. 93-6)

The requirement that fish-scale registers and receipts for payment of land tax be used as evidence was obviously aimed at transactions which had taken place without going through the proper procedures for legally registering the transfer of property. Under the circumstances, those who held "white contracts," without having followed the proper formalities for legally registering the transfer, were likely to have trouble in gaining legal recognition of their property rights.

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Credit and Interest Borrowing and lending money is a common form of economic activity, and is also the sort of thing which readily leads to disputes and conflicts. The governments of successive dynasties all established laws aimed at managing and regulating such activity. The Qing code contains a statute on "Illegal acquisition of interest and profit" which laid down the principles and methods to be employed by officials in handling lawsuits related to loans and debts. The entire text reads as follows: Whoever privately lends money or accepts property in pawn shall receive no more than 3 percent interest per month. No matter how much time passes, the total interest which accumulates shall not exceed the total amount of principal. Whoever violates this law shall receive 40 blows of the light bamboo. Ifthe punishment calculated in proportion to the amount of excess interest, according to the scale of penalties in the statute on "Bribery," is more severe than 40 blows of the light bamboo, then the offender shall receive the harsher punishment, the maximum penalty not to exceed 100 blows of the heavy bamboo. Any presiding official or clerk who lends money or accepts property in pawn within the area of his jurisdiction shall receive 8o blows of the heavy bamboo, even if he has not taken excess interest. If he has taken excess interest, then if the punishment calculated in proportion to that excess amount, according to the scale of penalties in the statute on "Accepting a bribe for a purpose which is not itself illegal" (buwangfa) is more severe than 8o blows of the heavy bamboo, he shall receive the harsher punishment. In each case, the penalty shall be calculated based on one-half the total amount of excess interest; the offender shall receive 90 blows of the heavy bamboo if, in the case of a salaried official, the amount is 30 liang or more, or if he is an unsalaried subordinate, 40 liang or more; for each additional 10 liang, the penalty shall be increased one degree, the maximum not to exceed 100 blows of the heavy bamboo and life exile at a distance of 3,000 li. Moreover, the excess interest shall be recovered and restored to its proper owner, regardless of whether the offender is a commoner or an official. Whoever owes a private debt and fails to fulfill his agreement with his creditor shall be liable for the following penalties, depending on how much he owes and how long the debt is overdue: Five or more liang three months overdue, 10 blows of the light bamboo; for each extra month, the penalty shall be increased one degree, the maximum not to exceed 40 blows of the light bamboo. Fifty or more liang three months overdue, 20 blows of the light bamboo; for each extra month, the penalty shall be increased one degree, the maximum not to exceed 50 blows of the light bamboo. One hundred or more liang three months overdue, 30 blows of the light bamboo; for

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each additional month, the penalty shall be increased one degree, the maximum not to exceed 6o blows of the heavy bamboo. Moreover, both principal and interest shall be recovered and returned to their owner. If a powerful creditor whose loan is overdue does not report the default to the authorities, but instead takes matters into his own hands, seizing the debtor's crops, livestock, or other property, then he shall receive 8o blows of the heavy bamboo. If, however, the creditor has not seized property in excess of the amount he is owed, then he may redeem his punishment by paying the allotted fine, and he may keep the property he has seized. If he has seized an excess amount of property, and if the punishment calculated in proportion to the excess, according to the scale of penalties in the statute on "Bribery," is greater than 8o blows of the heavy bamboo, then he shall receive the harsher punishment, the maximum penalty not to exceed 100 blows of the heavy bamboo and three years of penal servitude. The excess property which he seized shall be returned to its owner. If a creditor accepts the wife, concubine, son, or daughter of a debtor in pledge for his debt, then he shall receive 100 blows of the heavy bamboo. If he uses that person sexually (jianzhan), then the penalty shall be increased one degree. If a creditor seizes such a person against the debtor's wishes, the penalty shall be increased two degrees to 70 blows of the heavy bamboo and one and a half years of penal servitude. If the creditor seizes such a person against the debtor's wishes and uses that person sexually, then he shall be strangled after the assizes. The person used in pledge for the debt or seized by force shall be returned to his or her family, and the debt shall be cancelled. (No. I49)

This statute contains two basic provisions: first, that in lending money and pawning objects, the interest rate should not exceed 3 percent per month, and that no matter how much time passed, the maximum profit taken by the creditor could not exceed the amount of the principal lent; and second, that a debtor in default should be punished according to the amount owed and the length of time in default. These two points were clear expressions of the principles that creditors could not extort unfair amounts of interest, and that debtors had to repay their debts. The statute imposed certain obli- · gations on both creditor and debtor in order to protect and maintain proper relations between the two. The annotation to the statute explains that "the function of making loans or accepting property in pawn is to aid people in distress, so that even in taking profit, there is the moral duty to help others." Clearly, the principle was to treat the creditor/debtor relationship as one of mutual aid, not of exploitation, so it prohibited the introduction of political or other forms of power into the midst

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of lending activities. Moreover, as the annotation notes, in real life, "just as there will always be people who take advantage of the difficulties of others for their own gain, so too, there will always be irresponsible people who break their promises and are slow to repay debts." Thus it was necessary to establish regulations punishing the latter sort, too, in order to protect the economic interests of lenders. The Qing statute on "lllegal acquisition of interest and profit" was inherited from the Ming code; the Ming statute was developed on the basis of relevant laws from previous dynasties. Wu Tan has noted that "this statute is the product of three statutes in the Tang code: 'Breach of contract through loan default,' 'Seizing livestock or other property to compensate for debt,' and 'Using commoners as slaves in pledge for debt'; it was only in the Ming that the three were combined into the statute on 'lllegal acquisition of interest and profit'" (DQTK 14: 2). As far as the statutes (Iii) are concerned, this was the case. But the Tang court also issued an edict of 737 commanding that whenever property is pledged as security for a public or private debt, as long as the terms of the private contract are followed, then officials shall not intervene. The monthly interest shall not exceed 6 percent of the principal; although many days pass, the total accumulated interest shall not exceed the total amount of principal lent .... The lender shall not be permitted to compound the interest owed as principal and charge new interest on it; this shall also apply to pledges of property in exchange for grain. Anyone who violates the law by accumulating excess interest, seizing property in violation of contract, or failmg to pay interest on a loan, shall be prosecuted. Whoever accepts property in pledge for a loan may not sell it to someone other than its owner without permission; if the accumulated interest owed has exceeded the amount of principal lent, but the debtor still cannot redeem his pledge, then the property pledged shall be sold under the supervision of the official responsible for the marketplace, and the loan shall be paid off with the proceeds, any extra amount being returned to the owner. If a debtor absconds, then the guarantor of the debt shall pay it in his place. (Niida 1964 (1933]: 853-54)

The Tang administrative code further stated that "when property is pledged in security for a loan, the interest collected shall not exceed 5 percent per month. When the accumulated interest owed by the debtor exceeds the amount of principal lent, if the creditor at that point compounds the outstanding interest with the principal and charges new interest on it, then he shall not be prosecuted" (Da Tang 6: 46a-b).

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The "lending capital for provisions" (biejie shiben) which government officials received was also subject to the rule that "all shall take 5 percent interest, to be used as capital to provide for provisions" (Da Tang 6: 45b). Aside from adopting the two Tang statutes described above, the Song dynasty also incorporated into its penal code the following edict of 737: Whenever grain is pledged in security for a debt, as long as the terms of a private contract are followed, officials shall not intervene. The period of the loan shall be one year; it shall not be permitted to collect new interest on old principal (for which the maximum amount of interest has already accumulated), nor shall it be permitted to compound the accumulated outstanding interest with the principal and charge new interest on it .... If someone lends money, and by agreement procures interest in excess of that mandated by law, then if this is reported to the authorities, the principal, interest, and property pledged in security for the loan shall all be confiscated and awarded to the person who reported the offense. (Song 26: 413)

A Song statute particularly worthy of attention ruled that "for all private loans, the interest rate should be 4 percent per month; for all loans made with public capital (guanben), the interest rate should be 5 percent" (Song 26: 413). The prohibition of exploiting one's power and influence in making loans also began in the Song dynasty; local government officials wereprohibited from "making loans within their jurisdictions." It was further ruled that "hereafter, if a presiding official makes loans within his jurisdiction, then he shall be punished in proportion to the amount of profit he has taken, according to the law on 'Taking property under one's supervision'; if the profit exceeds 100 pi [i.e., the value of wo bolts of silk], then an imperial judgment shall be requested by memorial" (Song 26: 413). The Tang prohibition on using commoners as security for debt was also preserved in Song law (Song 26: 414). The Tang and Song codes both included statutes on loans in their sections on Miscellaneous Statutes. The Yuan administrative code was the first to establish a separate chapter (juan) in its population/ household section for statutes on credit. This chapter included the following statute: In any case involving a private loan, the original contract shall be examined

as evidence; the maximum profit shall not exceed the amount of principal originally lent. If there is a contract to roll over the debt and extend its

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period, then that document shall be confiscated and destroyed by the presiding official, and the contract shall not be allowed to take effect. If the amount to be repaid has already been agreed upon, then the sum already paid shall be reckoned with the amount still outstanding, to make sure that the total sum to be repaid does not exceed the amount of principal plus an equal amount of interest. (Yuan 27: 4a, edict of 1261, Zhongtong 2, 8th mo.)

The "miscellaneous edicts" (zaling) of the Yuan included the following: Whoever accepts property in pledge for a loan shall not charge more than 3 percent interest per month. The maximum he collects shall not exceed the amount of principal originally lent; nor shall he be permitted to compound the interest already accumulated with the original principal and charge new interest on it; nor shall he be permitted to draw up a new contract to extend the period of the loan in order to collect further interest on it. If the debtor absconds, then the guarantor of the loan shall be held responsible for paying it in his place. (Niida 1964 [1933]: Bss) In 1282 the Secretariat (zhongshu sheng) reported .that the problem of powerful people acting as usurers is growing ever more severe; they extort 5 percent interest on every liang, and sometimes the total interest taken exceeds the amount of principal lent. If a debtor lacks the funds to repay his debt, these creditors, in addition to the interest already collected, will draw up another contract to extend the period of the loan, calculating the new interest by compounding that already accumulated with the original principal. In pledge for loans, they take people, as well as livestock and other property; this situation truly burdens the common people. (Yuan 27: sb)

Therefore, the Secretariat recommended that "hereafter, the interest on loans should not exceed 3 percent" (Yuan 27: sb). An imperial edict made the recommendation official: "Whoever lends money shall receive only 3 percent monthly interest, and the maximum profit shall not exceed the amount of principal originally lent; this is already mandated by a law in effect. Whoever draws up a second contract to extend the period of a debt, thereby collecting excess interest, shall be severely punished" (Yuan 2 y: 5b). In 1298, because military officers were exploiting soldiers by making high interest loans to them, it was ruled that "interest on loans shall not exceed 3 percent per month," and that "hereafter, whoever takes more shall have both principal and interest confiscated" (Yuan 27: 6b). In 1292 a certain Mr. Li of Dacheng county took advantage of a famine to lend grain at extremely high interest rates:

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From spring to fall, in extreme cases he extorted interest of as much as one shi for each shi borrowed; at very least, he demanded five dou per shi [I dou = 10 catties or 10 liters; I shi = IO dou]. If a debtor could not repay the loan that year, then the interest owed would be added to the principal, and a new contract drawn up. The following year was the same. In some cases, a loan of one shi accumulated interest of several times that amount, with no end in sight. It reached the point where poor people were giving up their land and houses, and pledging or hiring out their children, yet still could not repay their debts. (Yuan 27: 7a)

Therefore, the Secretariat advised the Board of Rites to rule that "whoever makes loans of grain must do so according to local customary practice (xiangyuanli), in a manner convenient for the people. Regardless of how much time passes, the total accumulated interest shall not exceed the amount of principal lent. If a new contract is drawn up to roll over and extend the period of a loan, the previous statutes shall be applied to recover the amount and terminate the debt" (Yuan 27: 7a). This proposal was approved. The development of the law concerning credit which we have traced from the Tang through the Qing was marked by a number of noteworthy phenomena: r. The monthly interest rate on private loans of money or goods was set at 5-6 percent in the Tang, and reduced to 4 percent in the Song. In the Yuan dynasty, the 3 percent monthly interest rate was formally included in statutes. The Qing followed the Ming precedent. In sum, one can see that legally mandated interest rates gradually fell. High interest rates of 4 percent or more were permitted in the Tang, but were illegal from the Yuan on. 2. As far as long-term debts were concerned, from the Tang dynasty on, there was the consistent rule that total accumulated interest should not exceed the principal originally lent; this rule limiting total interest payments to "an equal unit of interest for each unit of capital" (yi ben yi li) was enacted as law. According to Xue Yunsheng, "an edict of Yuan Taizong ordered that 'when money is lent, the annual income of the lender should be limited to equal amounts of interest and principal.' In 1269 the Shizu emperor reiterated this rule, commanding that when people borrowed money, even though payment was overdue, they should pay no more than one equal unit of interest per unit of capital." Xue was of the opinion that "this was the origin of the long-standing rule limiting total interest to the amount of principal lent" (TMLH 27: II b). From what we have seen, his opinion seems well-founded.

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3. The Tang, Song, and Yuan all prohibited creditors from incorporating outstanding interest into the principal and charging new interest on the combined sum, a practice known as hui li wei ben. The statutes of the Ming and Qing did not include this prohibition. 4· The positive law required authorities in every period to adjudicate cases of debts in default, and to punish the defaulters. But the penalties of the Ming and Qing periods were lighter than those of the Tang and Song, and the time period after which a defaulter was to be punished was more lenient in the Ming and Qing than in the Tang and Song. 5. If a loan was in default, and the creditor took matters into his own hands, seizing the debtor's property to compensate himself for the bad loan, during the Tang-Song period, as long as the property so seized did not exceed the actual amount of principal and interest owed the creditor, he would not be prosecuted. Only if he had taken an excessive amount would he be punished, in proportion to the value of the excess. The Ming and Qing were much stricter on this point. Whether or not the amount seized was excessive, the creditor would receive 8o blows of the heavy bamboo; if the amount taken was excessive, he would be punished more severely, in proportion to the excess, and that excess would be returned to the debtor. 6. Tang and Song law prohibited "using a commoner as a slave in pledge for a loan." The purpose of this provision was to prevent commoners from being forced to debase their legal status. The Ming and Qing codes added provisions prohibiting a debtor from pledging his wife, concubine, or children as security for a loan. y. The Song began the prohibition of officials making loans to persons within their jurisdictions. The Ming and Qing later formally codified this prohibition. As the above points make clear, successive dynastic governments from the Tang forward were seriously concerned about the regulation of private lending practices, and they expressed this concern concretely through legislation. The general trend of this legislation was the steady strengthening of protection for proper lending practices, and of restrictions on high interest loans and on exploitation of personal position for the sake of profit. In addition to the specific statutes already cited above, the Qing court repeatedly issued edicts banning high interest loans. For example, in r648, shortly after the promulgation of the Qing code (in r646), an edict proclaimed:

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Hereafter, no more than 3 percent interest per month shall be charged on loans, and creditors shall not be allowed to extort more, or to charge interest on unpaid interest. Moreover, no one shall be permitted to make loans to officials on their way to their posts; and officials shall not be allowed to lend money to the people of other districts. If this law is violated, both lender and borrower shall be severely punished. (SZSL 38: wb- r ra)

In r648 a new substatute on amnesties reiterated that "it is strictly forbidden for powerful persons who lend money to exploit the people by charging excessive interest. Hereafter, it shall be permitted to charge no more than 3 percent interest, as provided by statute, and even if ten years pass, the interest shall be calculated based only on the original principal. Whoever illegally extorts extra interest shall be punished according to statute" (SZSL 41: 12a-b). These aspects of the law were reiterated again and again. In addition, in order to restrict usury, the Qing court repeatedly issued substatutes. The first was aimed at prohibiting the extortion of interest. In 1766 it was commanded that if a presiding official engages in moneylending or pawnbroking within his jurisdiction, as long as he has not procured excess interest in violation of the statutory limits, then the substatute on "An official selling his own goods for extortionist prices to his subordinates" shall be applied, and he shall be punished in proportion to the amount of monthly interest he has procured, according to the scale of penalties in the statute on "Accepting a bribe for a purpose which itself is not illegal"; if coercion has been employed, then the penalty shall be calculated according to the scale in the statute on "Accepting a bribe for an illegal purpose"; in the former case, the penalty shall be calculated based on one-half the amount taken, and reduced by one degree. The interest the offender has collected shall be confiscated. If he has charged excessive interest, then the penalty shall be calculated according to the scale in the statute on "Accepting a bribe for a purpose which itself is not illegal," based on the entire amount of interest he has collected; if he has employed coercion to procure excessive interest, then the penalty shall be calculated according to the scale in the statute on "Accepting a bribe for an illegal purpose"; moreover, the interest he has procured shall be recovered, the excess returned to the debtor, and the rest confiscated. (Substatute 149-5)

A similar substatute aimed at offenses committed by military officers who commanded banner forces. Some officers were in the habit of making usurious loans to their soldiers, demanding full payment when the latter collected their provisions and pay, so that many soldiers lived in dire economic straits (SXSL 25). For this reason, in 1724 the following substatute was promulgated:

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Any captain, lieutenant, corporal, or other military officer who makes loans of "seal-print money" 2 to soldiers under his own command or that of a brother officer, using the soldiers' pay or rations as security, shall receive 6o days in the cangue, based on the substatute on "Life exile at a distance of 3,ooo li," if he is a captain or a lieutenant; if he is a corporal, he shall receive 75 days in the cangue, based on the substatute on "Military exile at the near frontier"; in both cases, the offender shall further receive 100 blows with a whip. Any who collaborate in making loans of "seal money" shall receive 40 days in the cangue and 100 blows with a whip, based on the substatute on "Accomplices receiving 100 blows of the heavy bamboo and three years of penal servitude." If such officers have made usurious loans to soldiers outside their own command, extorting the soldiers' pay or rations, or if civilians have violated the law by making usurious loans of various types to banner soldiers, then the statute on "Defraudirig government officials for private gain" shall be applied, and they shall be punished in proportion to the amount of excess interest procured, according to the scale of penalties in the statute on "Theft"; the interest shall be confiscated in its entirety. Any officer who deducts the pay or rations of a soldier under his command in order to secure that soldier's debts, if he is a captain or lieutenant, shall be stripped of his rank; if he is a corporal, he shall receive 100 .blows with a whip. Any bannerman who borrows money by offering his rations as security shall receive 100 blows with a whip, based on the statute on "Insubordination"; if he voluntarily confesses the offense, his punishment shall be forgiven, as well as the remainder of his debt. If the presiding civil or military officials fail to discover such wrongdoing, then their cases shall be referred to the proper Boards for separate deliberation of administrative discipline. · Banner force captains shall make monthly reports to their battallion commanders with sealed affidavits as to whether there are people under their command making loans; battallion commanders, in tum, shall submit these reports quarterly along with their own reports to their corps commanders for examination. (No. 149-4).

Another group of Qing regulations aimed at restraining usury were edicts which banned "capital loans" (jingzhai). When an official, after long delay, finally received an appointment in the provinces, he needed cash to pay for his luggage, travel expenses, etc. Some usurers specialized in making high interest loans to these newly appointed officials, a practice known as "making capital loans" (fang jingzhai). Gu Yanwu, in his Rizhi lu (Record of daily knowledge), noted that "the problem of entanglements with capital loans is now quite severe" (cited in Substatute 149-1, commentary). In the Kangxi and Yongzheng periods, "there were instances of pledging to pay ten for a loan of eight" (i.e., paying 25 percent inter-

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8I

est), and in the mid-Qianlong period, "every official who is chosen at the Board of Personnel's monthly appointments takes out loans in order to travel to his post; usurers take advantage of their shortage of funds to make excess profits, using duanpiao, to take huge amounts of interest, and exploiting them again and again" (GCSL s61: 4a-b).3 It is also recorded, in the late Qianlong period, that "there are even some who charge 30-40 percent" on capital loans (Substatute 149-1, commentary). Certain creditors even followed their debtors to their new jurisdictions in order to gain appointment as yamen runners, clerks, and so on, and extorted money from the local people as a way of collecting interest on their loans; an indebted official would not dare interfere. Some then engaged in moneylending at the yamen, extorting high rates of interest. In nBs a certain Mr. Liu of Shanxi made a loan to one Ren Chaoen, a jailor at the Huangpo county yamen, and then ceaselessly pressed him for interest payments until Ren finally died in poverty (Substatute 149-1, commentary). The problem of capital loans existed as early as the Ming dynasty, when there was already a substatute banning the practice: "If an official or a collegian of the academy, upon receiving his appointment, borrows money and proceeds to his new post together with the creditor or guarantor of the loan so as to secure repayment, and if the loan amounts to so liang or more, then the debtor shall be stripped of his position, and the creditor and guarantor shall each receive one month in the cangue. The money shall be confiscated" (No. 149-1, commentary). This law was preserved by the Qing. In spite of all these laws, the Qianlong emperor acknowledged that the practice of capital loans was "difficult to eliminate," and since it was impossible to prosecute every last case, he retreated to a more lenient stance, commanding only that "creditors shall not be permitted to accompany officials who borrow money to their posts. Let the various governors and governors-general make thorough investigation, and if any usurer has followed an official to his post in order to extort payments, then that official shall be allowed to report the matter to his superiors, so that the usurer can be prosecuted according to statute" (edict of nBs cited in No. 149-1, commentary). Conclusion The development of Chinese society prior to the Opium War was exceedingly slow, and the imperial system and its economy experi-

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enced no major qualitative breakthroughs. The legal system adapted to this economic and political system, and aside from occasional revisions and additions in certain departments following changes of dynasty, Chinese law was permeated by the same basic principles from beginning to end. The great majority of legal statutes relating to the civil economy which have been cited in this chapter were lifted verbatim from the Ming code by Qing legislators, and modified only by the addition of minor annotations and clarifications. The last revision of the Ming code itself occurred at the end of the fifteenth century which is to say that these texts held legal force through two dynasties, for as long as 400 years. Many fundamental principles found in the MingQing economic statutes came directly from the Tang code, as did the system of calculating punishments and even many specific legal terms. If we use the year of compilation of the Tang Code Commentary (Tang Iii shuyi)-6 53 A.D.-as a baseline, then these principles can be said to have existed for some twelve centuries. Of course, as has already been pointed out, Qing law did demonstrate a measure of progress over previous dynasties, as evidenced by the promulgation of various new substatutes. I emphasize the continuity of Qing law with its predecessors in order to make clear that they were products of the same type of political-economic system, and of the same system of thought. The society and economy of the Qing and earlier periods were of simple structure, constituted on the foundation of a slowly developing small-peasant economy. In economic matters, the imperial state was primarily concerned with maintaining its own fiscal base and that of the imperial house; therefore, the primary focus was tax collection. As far as the civil economy was concerned, the state's priorities were the resolution and management of conflict, the punishment of crime, and the maintenance of public security, rather than the development of that economy. These priorities are clearly manifested in Qing law. A fundamental principle of resolving and managing economic disputes between people was the protection of private property. Given the conditions of the age, this principle in effect protected the interests of the landlord class, as well as those of middle and small landowners. The last group in particular performed an important function in maintaining and reproducing the small-peasant economy. Qing regulations concerning the inheritance system of equal division among sons pro-

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mated the breakup of large estates, and to a certain extent limited the concentration of landownership; in a sense, then, these regulations also aided the reinforcement and reproduction of the smallpeasant economy. With regard to market exchange, the Qing regulations regarding the brokerage system controlled everything from commodity prices to the form of trade, and limited the market to a particular system of exchange. The inevitable result was to restrict free competition in commerce and to inhibit the dynamism of commercial capital, thereby imposing limits on the development of the commercial economy. Law, and the principles on which it is based, represent the will of the ruling class. The highest ruling organ of a dominant class always hopes that society will remain stable within a particular order, and hopes to use the laws it promulgates to reinforce that society and that order. But, in fact, for a variety of reasons-because the conditions for a legal statute's existence have changed; because the statute is difficult to enforce; because those charged with law enforcement are incompetent or ineffective; because the breakdown of the system of regulating the bureaucracy has led to contempt for the law among officials, causing further breakdown of that law; and, especially, because of the multifarious contradictions existing between exploiters and exploited, between rich and poor, between buyers and sellers, between rulers and ruled-for all these reasons, and others, affairs become extremely complex, and no society completely adheres to a model mandated by law. Thus, to a significant degree, law itself becomes a matter of abstract principles. Certain statutes become mere formalities, as in the case of the Qing statutes which prohibited "private manufacture of instruments of weight and measure" and "sale of substandard articles and cloth." Certain laws become essentially useless in the face of widespread violation. On paper, Qing law protected private real estate against encroachment by any person, and yet, the large-scale enclosure and seizure of land by bannermen at the start of the Qing was directed by the imperial house itself, and was in no way hampered by any consideration of law. Another example is the extreme strictness of regulations limiting monthly interest on cash loans to 3 percent-in real life, high interest loans were all too common in villages; the interest collected by pawn shops was never as low as 3 percent, and the rates charged on capital loans by the extortionists who followed new officials to their posts were even higher. The state,

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of course, did not prosecute and punish all of these usurers. Therefore, even though law is the concrete expression of principle, it cannot completely force society into a pattern dictated by principle. Of course, that does not mean that Qing law was completely without function. Ultimately, it constituted the rules of society, and could be useful when the occasion demanded. Since that was the case, it is necessary to ask exactly what functions these laws served in Qing society and economy, and how much of an effect they actually had. These are not questions that can be answered merely by examining the statutes themselves. We must search for the answers in the real life of the period and by examining great numbers of actual legal cases.

CHAPTER FOUR

Melissa A. Macauley

Civil and Uncivil Disputes in Southeast Coastal China, 1723-1820

W

HEN CHINESE PEASANTS could not resolve their disputes over land, debts, marriage, and other, primarily property, issues, they turned to the yamen courts for a settlement. Far from abhorring the state court system, after the mid-Ming they increasingly relied on state structures to resolve disputes which were beyond the powers of local people of influence to address satisfactorily. This trend was strenuously resisted by imperial authorities, who campaigned to eradicate what they labeled the "litigiousness" of the Chinese people by statutory and rhetorical appeals to traditional structures of harmony. This chapter is part of a larger work exploring the relationship between litigation brokers (songgun or songshi) and litigation resulting from property disputes in late imperial China. The chapter focuses on some of the peculiarities of "pettifogging" and litigation in southeast coastal China during the eighteenth and early nineteenth centuries. While civil disputes in southern Fujian and eastem Guangdong in many ways reflected similar struggles throughout China, the region's system of land tenure and its population's violent proclivities gave the legal culture of the southeast coast a special character. At least since the Song, officialdom had criticized those who assisted others in pressing lawsuits. But by the sixteenth century, there had emerged a distinct social type: the songgun (litigation trickster) or songshi (litigation master) (Kawakatsu I 98 I: 11 I; Macauley I99I: s-Is). Litigation brokers were usually members of the

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lower echelons of the scholarly elite who facilitated access to the government courts .. Officials routinely condemned them for inciting litigation, for encouraging false or exaggerated accusations, for enabling peasants and urbanites alike to press unwarranted appeals, for colluding with "rapacious yamen underlings," and for rendering local affairs unnecessarily acrimonious. There were enough incidents of such "pettifogging" activities throughout China to reinforce the official view of these men.' Nevertheless, peasants did not need to be "incited" to litigate; their own disputes frequently led them to appeal to the local yamen for an impartial decision. 2 Litigation brokers, in either devious or straightforward ways, helped many of them gain access to the courts and often managed their cases. As the burden of civil lawsuits increasingly pressed on yamens throughout China, officials used these brokers as scapegoats for the inability of late Ming and Qing institutions to manage the hundreds, and in some areas thousands, of cases that continued umesolved from year to year. The occasional case of outrageous "pettifogger wickedness" became the officially designated norm and, in turn, was transformed into an officially designated cause of litigation in China.

Litigation Overload Provincial- and county-level officials were under intermittent pressure from Beijing, and especially from the Qianlong and Jiaqing emperors, to resolve the thousands of civil cases left unresolved from year to year. County magistrates were required to submit to provincial authorities monthly reports (cisong yuebao) of "magistrate's cases" (zili cisong) in their counties and indicate the cases which had not yet been completely resolved. These cases primarily involved such civil disputes as inheritance, marriage, and land disputes (huhun tiantu), disputes over debts, and minor criminal offenses requiring punishments up to and including heavy bambooing. All of these cases were expected to be settled at the county level ("Xingfa zhi" 1984 [1928]: 583). Provincial governors, upon request from Beijing, would tabulate the results of these monthly reports and, often in tandem with their respective governors-general, would report in a palace memorial the failure, essentially, of provincial officials to resolve all of these cases. 3 These provincial reports illuminate the often overwhelming bur-

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den local and provincial officials shouldered to resolve the civil litigation cases they had accepted. For example, in I 7 59 the governor of Fujian, Wu Shigong, reported that in that province smaller counties had 200 to 300 old, pending cases (ji'an) while larger counties could have backlogs of 500 to 6oo cases. He estimated that the total, pending, unresolved cases carried over from the previous year, 1758, throughout the province numbered I0,979· Combined with the new cases which had arisen in the first ten months of 1759, Fujian had a total of 22,800 cases pending resolution (ZPZZ, QL 24.I0.22).• Governor Wu, in response to the Qianlong emperor's edict of 1757 demanding that officials "settle and clear up litigation in order to stop the source of armed affrays and admonish the wicked," had been steadily pressuring his subordinates to resolve these cases (ZPZZ, QL 24.I0.22; Shangyudang, QL 22.I2.14: 408-10). He dismissed three magistrates for "incompetence," two for "carelessly written reports," and three for "incompetent legal decisions which led to disasters" (presumably armed affrays or riots). These actions and insistent exhortation resulted in the resolution of I8,o92 old and new cases in Fujian by the end of 1759· Nevertheless, 4,708 cases remained pending and unresolved, thus adding to the administrative responsibilities of the following year (ZPZZ, QL 24.I0.22). This problem of unresolved litigation pending in yamens at the county, prefectural, and provincial levels, to a greater or lesser extent, beset every province of China during the Qing period. In I 807 the governor of Hunan reported 3,228 unresolved cases in provinciallevel government yamens alone, while the governor-general of Liangguang and the governor of Guangdong reported 2,107 unresolved cases for Guangdong, and the governor of Fujian reported 2,977 cases yet to be concluded successfully (ZPZZ, JQ I2.6.I8, JQ I2.I2.24, JQ I2.5.I8). 5 That same year, Jiangxi was reported to have no less than Io,ooo unresolved cases in rural areas in addition to I,6oo unconcluded cases in the provincial capital of Nanchang (quoted in Hunan governor's memorial, ZPZZ, JQ I2.6.I8). Thus, approximately I4 percent of all unresolved civil cases in Jiangxi were pressed in the provincial capital that year. It is impossible to determine from the document how many of these I,6oo cases in Nanchang were appeals being pressed by people living outside of the city. But the significant number was I,6oo: it was so difficult for the courts of Nanchang to resolve all of the suits pressed in the city that I,6oo of them per-

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sisted without resolution in one year alone. This suggests that judicial institutions were inadequately equipped to contend with the vast number of suits, legitimate and otherwise, that were pressed in the courts. As Governor Wu of Fujian noted, rates for umesolved litigation for certain counties on the southeast coast could soar into the hundreds. Remarkably, one Yongzheng-era magistrate in Chaozhou prefecture, Guangdong province, even claimed that, under special circumstances, actual litigation rates in his county of Chaoyang numbered in the thousands. Lan Dingyuan, a native of nearby Fujian and renowned in the Qing as an antipettifogger warmonger, claimed that in Chaoyang in 1728 he received 1,8oo plaints daily. Furthermore, in Haiyang and Jieyang counties, anywhere from soo to yoo plaints were submitted daily; in other counties near Chaoyang anywhere from 100 to 400 plaints were submitted each day (Lan 1879 [1726]: 34). It is difficult to determine if Lan's litigation figures are completely reliable. In another source, he cites similarly high numbers for Chaoyang county. "In one day," he wrote, "I received 1,ooo to 2,ooo plaints. On the day with the least activity, I received 1,200 to 1,300 plaints" (Lan 198sb [1729]: s). This spread from 1,000 to 2,000 is extraordinarily wide and suggests a degree of exaggeration on Lan's part. On the other hand, these figures were garnered during the officially designated days for peasants to submit their plaints to the magistrate directly (fanggao). Lan had guaranteed to his community that he would indeed receive in person all of the plaints submitted to his office (he did so because he was trying to entrap litigation brokers who doubled as tax resisters). Assured that this magistrate diligently and personally attended to each case, Chaoyang residents may have been encouraged to take advantage of this guaranteed direct access to the local official and thus came in greater numbers. Needless to add, once word began to circulate that Lan was throwing all plaintiffs who were in arrears on their taxes into prison, the press of litigation in the county subsided dramatically. 6 These provincial and county statistics are probably not reliable as indicators of actual litigation rates. Jiangxi's high figure for 1807, for example, possibly indicates that the bureaucratic "arm twisting" in which Wu Shigong had engaged had not yet brought the pending litigation rates down to acceptable levels before the statistics had to

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be reported to Beijing. Furthermore, many Qing county magistrates were notorious for urging peasants to "practice forbearance" and for simply refusing to accept any cases involving huhun tiantu (Huang Liu-hung 1984 [1694]: 258-59, 26). This probably kept the official litigation rates lower.' Finally, it is important to recall that these statistics for "magistrate's cases" would have included minor criminal cases as well as the huhun tiantu civil cases. Virtually all of these memorialists indicated that the inflated figures stemmed preponderantly from unresolved civil disputes over land, marriage, inheritance, and debt. Statistics for violent crime along the southeast coast were far lower than those for civil disputes in the eighteenth century. Nevertheless, it is not clear from the memorials precisely what percentage of these cases involved minor criminal matters. The statistics are important for demonstrating that Qing officials were never able to clear their civil litigation dockets and the litigation problem only seemed to grow more burdensome. Jonathan Ocko reports that for the latter half of the nineteenth century, hundreds of thousands of civil cases went unresolved in certain regions of China (Ocko 1988: 305). I have found no statistical reports in the archives verifying this large number, but the archival record is significant in showing that, by the Guangxu reign, provincial authorities no longer reported statistically on unresolved civil litigation but, rather, on litigation which had been successfully appealed, investigated, and concluded. For example, in the twentieth year of the Guangxu reign, 1894, 8,282 magistrate cases in Hunan had been so resolved (ZPZZ, GX 20.9.28, GX 21.4.25). This may indicate that· the Qing bureaucracy had simply become discouraged with the vast number of suits pressed in the late nineteenth century. It also suggests, however, that the Qianlong and Jiaqing emperors were more actively engaged in addressing the problems associated with litigation in China.

Official Resentments Provincial officials usually identified two causes for this backlog of litigation: negligent local officials and "pettifoggers" who incited "peevishly litigious" people to litigate and press false accusations and capital appeals. In most official reports to Beijing as well as in a number of private writings, Qing officials discussing the problem

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of litigation routinely asserted that most lawsuits were groundless accusations instigated by litigation brokers. When Lan Dingyuan claimed he received 1,8oo plaints daily in Chaoyang county, he also declared that eight out of ten of these cases involved the chicanery of litigation brokers (Lan 1879 [1726]: 34). Provincial authorities in Hubei province in 1807 estimated that 70 to 8o percent of unjustified or illegal litigation involved these brokers (ZPZZ, JQ 12.8.25). Recalling his term as a magistrate in Chun'an county, Zhejiang in the late sixteenth ·century, Hai Rui posited this 70 to 8o percent figure for "corrupted" litigation, saying lawsuits were either instigated by licentiates or they were actually false accusations (Hai Rui 1962 [Ming]: 114). Jonathan Ocko also cites this 8o percent figure for capital appeals which were in some way unwarranted (Ocko 1988: 298). It is possible that this 8o percent figure was a cliche; nevertheless, it indicates that Chinese officials at least believed that the vast majority of civil cases were tainted in some way. In a series of palace memorials of 1807, provincial officials throughout China responded to the Jiaqing emperor's command that they report upon and explain the persistence of unresolved litigation and appeals in every province of China and proffer solutions. All officials but one ascribed the problem to the nefarious and apparently ubiquitous litigation specialists. When the emperor read the first of these reports, from Fujian, he impatiently acknowledged the importance of the Fujian governor's words, but advised him of the necessity of "tallying words with action." He seemed unimpressed with what he perceived to be the governor's excuses concerning unreliable local officials and litigation brokers. He did, however, occasionally inject such interlineary comments next to descriptions of "songgun activities" as "this is really evil" (ZPZZ, JQ 12.5.18). As other memorials trickled in, he continued to express dismay that these governors clearly understood the root of the problem, yet continued to neglect "tallying words with actions" by applying their own proffered solutions (for example, ZPZZ, JQ 12.12.19 for Guangxi, JQ 12.12.24 for Guangdong). At the same time, his rescript on one of the later memorials received, from Anhui, indicated that he was beginning to accept the official view of the pivotal role litigation brokers purportedly played in litigation excesses: "The basis for extinguishing litigation and bringing peace to the common people is to pass judgment after listening to a case and to arrest the pettifoggers in a timely and diligent fashion" (ZPZZ, JQ 12.12.12; see also

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JQ 12.10.17 for Huguang). Thus, the Jiaqing emperor himself accepted the notion that if local and provincial officials exercised their duties by rendering timely judicial decisions and prosecuting troublemakers, the litigation and capital appeals backlog would subside. Qing officials took it for granted that the vast majority of lawsuits involved, as the governor of Fujian commented in 1807, "local pettifoggers who proliferate and invent stories and incite others to trump up charges, thus contributing to the lack of settlement of lawsuits." The governor also observed that in areas in which civil litigation cases were left unresolved, pettifogging and appeals inevitably compounded the problem (ZPZZ, JQ 12.5.18). As far as officials were concerned, litigation brokers were everywhere and cooperated in closely knit bands to subvert the judicial process. In 1729, the acting governor-general of Fujian, Shi Taizhi, described an astonishing province wide hierarchical network of litigation brokers located in the districts, prefectures, and provincial capital in Fuzhou. These brokers were responsible for the accusations and appeals of their "clients" throughout the province. The express purpose of this network was "to win" the cases. Governorgeneral Shi wrote that "a group of wickedly depraved scoundrels worked exclusively as daobili," literary hacks who specialized in drawing up legal documents for a fee. He also referred to these men as zuosheng, personal servants who were stationed in the prefectural and provincial capitals who looked after the interests of their gentry masters throughout the province. Litigation brokers (songshi) located in the prefectures and counties commissioned zuosheng to take care of litigation in the capital cities. Their responsibilities were "to look after making the accusations, next to guarantee that the accusations were accepted [by provincial judicial authorities], then to guarantee that [their clients] prevailed." The result, Governorgeneral Shi averred, was that "country bumpkins in the prefectures and counties" who availed themselves of this network of litigation brokers "ruined their families and squandered their inheritances." He concluded by lamenting that "if these pettifoggers are not one day eliminated, then the custom of litigating in Fujian will never cease." Therefore he issued a proclamation calling upon officials throughout the province to arrest, investigate, and punish these litigation brokers (Gongzhongdang Yongzhengchao zouzhe 14: 76, YZ 7.8.2; Lamley 1990: 40). Officials at the county level resented the litigation brokers for exacerbating their administrative difficulties by increasing their

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workload and responsibilities, contributing to the unmanageability of their yamen underlings, and for rendering them susceptible to stringent, though intermittent, bureaucratic discipline. But in the mentality of higher officialdom, litigation and its attendant problems stemmed primarily from institutional flaws and the negligence of local officials to perform scrupulously according to prescribed administrative procedure. A centuries-long body of administrative substatutes was promulgated under the Qing to try to ensure that local officials did not avoid their duties in the matter of reducing civil litigation. For example, a substatute of 1725, after suggesting that the litigation broker be subject to the "heaviest penalty," states "If, out of protection for or fear of the pettifogger, the local official does not report [the case], then the appropriate superior official is to arrest this official and report his name and the case to the appropriate board for consideration of punishment" (Qinding da Qing huidian shili 1899, 819: 13b). This and other substatutes were applied in a number of eighteenth-century cases. In 1736, a Prefectural Instructor in Zhangzhou, upon being cashiered in accordance with the substatute prohibiting the "screening of evil licentiates," declared under interrogation, "If Yan Han [the pettifogger] doesn't die one day, 1o,ooo people won't be born" (Xingke tiben, Xingbu qita, QL 1.11.15). This lamentation is not to be taken literally, of course, but it merely hyperbolized the calamities officials felt could befall those who associated with litigation brokers.

The Righteous Reprobate The vast majority of those who were caught and punished for assisting others with their lawsuits were government students of the lowest strata, primarily shengyuan and jiansheng. There is a tremendous amount of qualitative evidence in the bureaucratic communications and personal writings of higher officialdom to buttress this assertion. Moreover, out of 54 cases preserved in the First Historical Archives in Beijing involving any variety of litigation abuses in which the social status of the malefactors is mentioned, 38 involved at least one member of the lower literati. The majority of those 38 cases, 25, involved at least one shengyuan. The remaining cases involved jiansheng, wusheng, gongsheng, and, in one case, a juren (ZPZZ, falii, qita and liili, QL to GX reigns). Chang Wejen has observed that shengyuan were the "leaders of

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the common people" (Zhang Weiren 1983, r: rss). It seems that it was precisely in this capacity that litigation brokers can best be understood as songshi, masters of litigation, rather than as mere troublemakers (gun). Men who served as litigation brokers were just as likely to serve in other leadership capacities or provide other useful services in community affairs. While government authorities often presumed they would serve the state's intermediaries in statesociety relations (or at least not thwart the interests of the state), the community often expected them to assume leadership in affairs which sometimes brought the community into conflict with the state: as litigation brokers, as chief petitioners in tax or rent disputes, and occasionally as leaders in revolts, among others. 8 In studying the litigation brokers of late imperial China, one is at first astonished that research on such a topic would branch into studies of armed affrays (xiedou) and rent and tax resistance. But, as Lan Dingyuan recorded, in 1727 he threw every man who owed taxes in Chaoyang county into the yamen prison. Because many of these tax dodgers were shengyuan and jiansheng, he was "thus able to cut the litigation rate [in his county] in half" (Lan 1985b [1729]: s). Given the variety of activities in which they engaged, men arrested as litigation specialists should not be considered outside of their shengjian rnilieu.9 One service the litigation brokers clearly provided was to facilitate access to the official courts. Usually, this involved simple assistance in writing up a petition, but often these specialists provided contacts with yamen underlings and engaged in other activities designed to ensure that the magistrates accepted a petition. Qing officials persistently dismissed the immediate concerns of Chinese peasants as "trivialities" unworthy of the attention of busy magistrates. It was not uncommon for Qing county magistrates to declare that their policy was not to accept huhun tiantu cases. This is one reason why officials identified litigation brokers with false or exaggerated accusation. Litigation brokers were skilled enough in language and law to transform a simple petition into a more compelling document serious enough to capture an indifferent magistrate's imagination and force him to arbitrate in disputes. For example, Zhang Shicheng, governor of Fujian in r8o7, writing about the problem of "pettifoggers" in that province, noted that "even in routine matters of civil litigation (huhun tiantu), the circumstances are falsified into great matters. [The litigant] hopes in this way to egg [the

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magistrate] to listen to the case and summon those involved to trial. I fear that [under such circumstances] false accusations cannot be avoided" (ZPZZ, JQ r2.5.r8). It was a common presumption throughout Fujian society that the disputes of litigants would not automatically be accepted for resolution at the official courts. In fact, this presumption lay at the heart of the respect some litigants could hold for litigation brokers. As early as 1585, one local gazetteer commented, when people litigate, they feel they must rely on a pettifogging scrivener (songshi daishu). The pettifogger tells them that their little affairs are not significant and then incites them to fabricate baseless charges. As soon as [the magistrate] accepts the case, the peasant is elated and is grateful to the pettifogger, not realizing that the pettifogger has already cast him into the web of the law. (Tianglexian zhi 1585, 1: 29b)

Obviously, many peasants did not believe their plaints were likely to be accepted in the courts and seemed to appreciate the assistance of the brokers. In terms of access to justice, therefore, false or exaggerated accusations were not merely tools peasants used to advance their familial interests economically by attacking intensely resented competitors in their community (although this practice was not unheard of). This particular type of abuse of the legal system often enabled them to gain access to officials who, unlike clan elders or local gentry, were presumed to be neutral in local disputes over property and debts. What was needed in these cases was someone completely outside of the dispute, yet someone who would simultaneously carry significant authority: the county magistrate. It is obvious from a host of sources that peasants were unwilling to divulge the name of the person who had assisted them in composing their petitions. Zhang Shicheng observed that peasants refused to disclose that they had been "incited by a pettifogger." Wang Youpu, a high official of the Yongzheng era, was confounded by popular reliance upon what he considered "injurious pettifoggers" and by the people's reluctance to reveal a broker's name once the magistrate had detected a "pettifogger's hand" in a petition: Everyone in the country dreads men of this sort .... And yet, if the magistrate begins thoroughly to investigate as to the writer of the indictment, these imbecile people still shield them and provokingly refuse to betray them, merely saying "It was an indictment drawn up by some traveling fortune-teller, or physiognomist, or traveling doctor." They hoax you into deep

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waters, ruin your family, waste your money, flog you, and still you shield them! Say yourself, isn't this idiotic? (Wang Youpu 1921 [1724]: 23)

Many officials believed peasants were simply unable to tell the truth in legal matters (ZPZZ, JQ ro.6.6). But it is more likely that these peasants were unwilling to prejudice their cases by revealing their reliance on litigation brokers. Furthermore, it is not at all unlikely that peasants in fact did rely on the "men of the road," physiognomists; traveling doctors, and fortune-tellers, for help in writing up complaints and framing their cases. Officials usually complained about "pettifogging licentiates" and dismissed peasant claims that they had been assisted by those in the itinerant professions. But official commentary dismissing the suggestion that these itinerants had a hand in litigation was frequent enough to suggest that it was a common practice. For example, a nineteenth-century magistrate in Zhili complained that peasants caught with petitions written with more sophistication than their literary talents suggested claimed to have been assisted by "people they passed on the road whom they did not recognize" or by "fortune-tellers who had already moved on" (Mu r845: 34b). 10 Peasants also identified and felt comfortable with the litigation brokers, be they local licentiates or worldly fortune-tellers, because such men were of their world. Chang Wejen has speculated that Chinese concerned with pressing litigation perhaps felt a little alienated from the scriveners (daishu) because of the latters' semiofficial status. Litigation brokers, in contrast, were more familiar to them and could be consulted on an informal basis (Zhang Weiren r983, r: r 57). In a collection of popular folktales from the lower Yangzi region, certain brokers were highly regarded by the people precisely because they were "amiable" men for whom people felt genuine "affection" (Jin 1927 [1919]: 51). In contrast to the more vituperative official literature on the subject of litigation brokers, popular literature occasionally shed a more favorable light on the activities officialdom condemned as pettifoggery. In the great eighteenth-century novel Rulin waishi (The unofficial history of the Confucian scholars), brokers were portrayed as essentially no worse than most of the other people in eighteenthcentury society and in some ways superior to the obsequious scholars and inept officials whom the author, Wu Jingzi, critiqued. In one episode, a "pettifogging lawyer" was portrayed as very supportive of

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a licentiate trapped in a web of legal accusations. He commiserated with the scholar and advised him that the best way to "get the magistrate on his side" was through the cultivation of better relations with an upstart, but powerful, gentry family in the region. He offered to introduce him to the single pleasant person in the family, and also kept an eye on the licentiate as he wrote his pleas protesting his innocence. Although the litigation. broker was advocating the type of groveling obsequiousness that Wu Jingzi found so distasteful in his social milieu, it is obvious that the "pettifogger" was providing the best advice and connections he could muster under the system (Wu Jingzi I973 [Qing]: 495-96). A Republican-era anthology of folktales concerning Qing litigation brokers demonstrates the appeal many litigation brokers enjoyed outside of official circles. For example, Xie Fangzun, reportedly a broker who thrived in the late Qianlong and early Jiaqing period (r. I736-I82I), was a favorite of lower Yangzi storytellers. His artful maneuvering in both mediation and in assisting people called to court demonstrated his intellectual and even moral superiority over magistrates and wealthy people alike. As one tale begins: "Fangzun's fame spread to peasants both near and far. When quarrels arose among the people over issues great and small, they invariably went to his door in person and implored him to comply with their requests" (Jin I927 [I9I9]: 24). Xie Fangzun was not unique in these tales. Very few brokers were portrayed in a negative light in this collection, and most were, if not noble, then certainly wily and admirable. In a tale circulating in the Suzhou area, two families during the Xianfeng era (I 8 5 I- 6 2) argued over an ox. They brought their case to the county magistrate, but a powerful gentry relation of the family with the weaker case prevented the dispute from being resolved and the case dragged on for years. After the power of the gentryman began to wane, the case was resubmitted. But "because the official was unable to decide the case, they went to a certain litigation broker for help." The broker was "of a stately bearing" and chided the magistrate for his inability to render a fair decision in a timely fashion. He declared he would "substitute in the decision concerning the plaint," most certainly an ironic twist on the typical official complaint that litigation brokers substituted illegally for common people in litigation. The broker then proceeded to render an intelligent and equitable resolution of the dispute (Jin I927 [I919]: 87-89). This story reflects a certain

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popular disdain for the capacity of local magistrates to solve even simple disputes. It also suggests that litigation brokers could be respected for their legal acumen. 11

Some Southeast Coast Cases Some of these general observations concerning litigation brokers are elucidated in an unusual case involving an accusation of murder and destruction of the corpse, a countercharge of false accusation and barratry, a mob decimation of a yamen court, and egregious malfeasance in Wuping county, Tingzhou prefecture in southern Fujian. In 1744 Mrs. Deng, nee Wang (Deng-Wangshi), ran to the yamen of Wuping county magistrate Yan Wenmo and accused her fellow villager, Liu Lulin, of having killed her mother-in-law, Deng Meisheng, in the course of a dispute and destroying all traces of the corpse. In one report, Mrs. Deng accused Mr. Liu of having secreted the corpse in his home, but in another report he is accused of having tossed the body in a nearby river. 12 Magistrate Yan's subordinates searched the Liu premises and other areas but could find no trace of the mother-in-law, "dead or alive." Moreover, Liu Lulin countered Mrs. Deng's charge with his own accusation: "Deng Meisheng withdrew [after the dispute] and went into [threw herself into?] the stream (ruchuan). Mrs. Deng got advice from a pettifogger (songgun). I appealed to the subprefect and said that Zhong Dahuo incited her to make a false accusation of a faked death" (ZPZZ, QL 9-4-4). Mrs. Deng "cried out for redress" several times at Magistrate Yan's yamen, but he rejected her plaints. She then proceeded to the yamen of the circuit intendant of the prefectures of Tingzhou and Zhangzhou and the department of Longyan (TingLongZhang circuit), Wang Tingzheng, hoping her accusations would enjoy a better reception. Without investigating the facts of the case, the circuit intendant decided she was pressing a false accusation. The official reply to her petition determined that this case was "a triviality of a fight over a grave." Wang was also convinced that Mrs. Deng had to be pressing a false accusation under the incitation of a pettifogger. Circuit Intendant Wang ordered the prefect of Tingzhou to investigate personally, but the prefect instead sent Magistrate Yan to investigate again (ZPZZ, QL 10.3.26). Thus, although the official record does not elaborate upon this, the original dispute between Deng

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Meisheng and Liu Lulin was probably over gravesite property, a common source of contention among eighteenth-century lineages in Fujian. It is unclear whether her official accusations against Liu Lulin were true, but at every level of government, officials were dismissing her accusations as "trivial" and instigated by a litigation broker. Magistrate Yan obeyed the circuit intendant's orders. He subpoenaed Mrs. Deng's son, Deng Gengyang, who, with the help of a neighbor, had served as the scrivener in the original complaint. The magistrate forced Deng Gengyang into a cangue and administered a beating. Extraordinarily, he did not question the son about the whereabouts of Deng Meisheng which, after all, lay at the heart of the problem. Later, "Mrs. Deng and her son Gengyang stood at the side of the road, begging [the passersby] to listen to their grievances, filling all of the people of the district with rage" (ZPZZ, QL ro.3.26). At this point, the provincial surveillance commissioner appointed Shanghang county magistrate Shi Yuan to proceed to Wuping county to conduct a joint investigation with Magistrate Yan. Rumors circulated throughout "this rustic, county city" that two officials were investigating this dispute and so, naturally, it was assumed, they would require all of the people to assemble at the yamen for inspection. Consequently, "that day, the people of the county, whole families helping the aged along and leading the young by the hand, hastened to assemble. Several thousand encircled [the Wuping yamen] and crowded around it from morning until evening without dispersing. Watching [the officials] investigate and bring out the facts, they expected a satisfactory settlement of the grievance" (ZPZZ, QL ro.3.26i see also QL 9-4.10). Because of the large number of witnesses and the onerous task of sorting out contradictory testimony ("their testimonies did not tally"), the investigation lasted deep into the night. Finally, Magistrate Yan decided to interrogate with torture (xingfia) the "hostel guest" (xiejia) of Mrs. Deng, Zhong Dahuo, but Zhong adamantly refused. Suddenly, Zhong Datou and Li Sangou "raised an uproar, shouting that the magistrate's investigation was not just and that judicial torture ought not to be applied to the people of the Deng family (Dengjia zhi ren)" (ZPZZ, QL ro.3.26). The idea that Zhong Dahuo was somehow a member of the Deng family is odd. Xiejia, hostel or hotel guest, can be understood in two ways. It was a hostel at which merchants could stop over with their

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goods. It also referred to the guests themselves. Another definition remains hostel or hotel, but was connoted to be a "litigation lair" or a "pettifogger lair" (Morohashi 1960: I6I4L3i Huang Liu-hung 1984 [1694]: 262-64). Because Zhong Dahuo was initially identified in Sergeant Yu's report as a "pettifogger" (songgun), one might presume that Mrs. Deng ran a "pettifogger lair" at which rural litigants lodged while pressing suits in Wuping county. Zhong was the man Liu Lulin accused of having incited Mrs. Deng to lodge an accusation against him. It is probable that Mrs. Deng was a widow-otherwise her husband would have pressed the original complaint and appeals regarding his own mother-and her son had inherited the hostel while she maintained it. "Hostel guest" Zhong Dahuo conceivably was a resident litigation broker in this hostel. Hostel owners were required by Qing law to be legally responsible for their guests, so perhaps this is why Zhong's riotous allies asserted that the magistrate should not interrogate by torture "a member of the Deng family [or house]." Otherwise the official record did not indicate a familial relationship between Zhong Dahuo and Mrs. Deng.' 3 Magistrate Yan's attempt to interrogate Zhong Dahuo ignited an uproar at the yamen. According to Sergeant Yu Sheng, "pettifoggers stirred up and terrified the crowd of people." Zhong Datou, four other members of the Zhong clan, Wang Aixiong, Jiang Sanman, and over 30 other angry people "entered the court (datang) in swarms, crowding in disorder, screaming with rage, and throwing stones at Liu Lulin." They destroyed the magistrate's table and various stone objects and used the fragments to blockade both the main and granary gates of the yamen. Sergeant Yu also noted that members of a Wang clan stole the yamen treasury. The rioters began to disperse at the third watch. This violent desecration of the yamen court alerted the highest provincial authorities that something was seriously amiss in Wuping county. Governor Zhou Xuejian, disturbed that "wicked people craftily opposed the officials," demanded a complete investigation of the incident and its contentious background and especially required his subordinates to examine official management of all aspects of the case. An elaborate series of investigations ensued, conducted, at various points, by Circuit Intendant Wang, Tingzhou prefect Yu Dunren, and the magistrates of Yongding, Houguan, Gutian, and Jinjiang

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counties. Mrs. Deng's accusation and Mr. Liu's counteraccusa tion disappeared into the background as the government, for obvious reasons, focused on the destruction of the yamen court. The case began to break open when it became clear that Magistrate Yan had falsely reported that three men, the pettifogger (songgun) Zhong Yinghan, the jiansheng, Zhong Yejun, and the military student (wusheng), Wang Dianzhou, had been the ringleaders of a premeditated, secret plot to destroy the yamen court. He said that they had not been at the scene of the crime, but had been directing the riot from their hiding place at the county school. The three men, under Yan's torture, "confessed" to this. But when they later were reinterrogated personally by Circuit Intendant Wang, they retracted their forced confessions. They admitted to having participated in the riot, but they had been there at the scene, had not designed a premeditated coup, but in fact had been outraged, as had many of the other Wuping residents, at Magistrate Yan's conduct of the case. Even though Circuit Intendant Wang also applied torture, these men could not be swayed from their later testimony. Governor Zhou decided to investigate personally and secretly visited the Wuping yamen, where he interrogated the various runners who had been involved in the case. From them he learned that Magistrate Yan had long been nursing a grievance against Wang . Dianzhou and the other two men and was using their defiant participationin the riot as a pretext to exact his revenge. He hated Wang Dianzhou because prior to this riot, the magistrate, having taken Wang drinking, had requested Wang to buy cheap grain for the granary for him by forcing wealthy households to sell grain at below market price. Wang Dianzhou refused to cooperate in what the governor called this "oppression of wealthy households" and said it was something which "ought not to be done." As for Zhong Yejian, his brother, Zhong Yiying, had been "vexing" magistrate Yan with his involvement as an "accuser in litigation cases." Just as the magistrate was cashiering him from the ranks of the gongsheng, Zhong Yinhan became implicated in Mrs. Deng's case by helping to write her legal plaint. The riotous consequences of Mrs. Deng's case offered the magistrate his opportunity to take revenge on these men for whom he nursed a "deep and abiding hatred." According to a runner, Magistrate Yan had told him, "Such a se-

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rious case must have shengjian [shengyuan and jiansheng] as the ringleaders. [Knowing this], we can thus decide the case. Moreover, military student Wang Dianzhou and jiansheng Zhong Yejun both are hateful men and there is enmity between us. Besides, Zhong Yinghan is a pettifogger and was at the yamen court that day listening to the inquest. So it must be that these three men are the ringleaders" (ZPZZ, QL 10.3.26). This runner further noted that when the Tingzhou prefect later remarked that there were no witnesses to corroborate this version of the incident, Magistrate Yan sent the runner to offer various locals silver taels to testify that these men had been the leaders; but this tactic met with no success. These men either refused to accept the bribes or were deemed "unacceptable witnesses" by the prefect. Eventually the magistrate's vindictiveness was revealed, and Governor Zhou reversed all decisions that had been rendered by the magistrate, including the verdict that the three "ringleaders" be decapitated. The governor bemoaned the fact that "Mrs. Deng's simple plaint, because of Yan Wenrno's excessive punishments, roused the people and became a serious case." At the end of the complex bureaucratic paper trail, we find that Magistrate Yan was cashiered, Circuit Intendant Wang was impeached for failing to write reports based on fact, and the three pettifogging enemies of Yan were to be punished with exile according to the generic substatute punishing hooligans (guanggun) because "it did not matter whether the local magistrate was right or wrong or crooked or straight. There was opposition to the official." Ironically, we never find out what happened to the body of Deng Meisheng, dead or alive. This complicated case illuminates the malevolent relationship that could exist between county magistrates and the lower strata of government students in general and litigation brokers in particular. On the one hand, this assortment of students-gongsheng, jiansheng, wusheng-who constantly "vexed" Magistrate Yan with their involvement in litigation cases were the men who stood up to the magistrate by refusing to cooperate in extorting cheap grain from wealthy, influential households in the county, and were the ones who led an enraged populace to riotous action when it seemed clear to them that the magistrate had been thoroughly unjust in his handling of Mrs. Deng's case. It was never made clear whether or not Mrs. Deng's accusations against Mr. Liu were valid. Nevertheless, it seems evident that Magistrate Yan expended no great effort

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on her behalf in spite of the seriousness of her charges. She obviously did not advance her cause in the magistrate's eyes by relying on his personal enemies for legal advice and support. On the other hand, the men who became the enemies of Magistrate Yan were precisely those people to whom the community turned for leadership and action. The local population had been enraged by Yan's treatment of the case, yet it was these Zhong and Wang family "troublemakers" who took concrete action against the authorities. Through his power to interrogate with torture and to make judicial decisions, Magistrate Yan could destroy these people. If it were not for the fact that this case became so notorious and involved reinvestigation by so many high-ranking provincial officials, no one would ever have discovered that Yan was pursuing a personal vendetta against these men. He had tortured them and extracted false confessions from them. They possibly would have been beheaded for "secretly and with premeditation " organizing an antigovernme nt riot. Furthermore, as Governor-general Na Sutu and Governor Zhou Xuejian observed, Magistrate Yan, in managing this case, "had been biased to the extent that the people were not submissive in manner" (ZPZZ, QL 9-4.4). Not only in this case, but evidently throughout his tenure, the magistrate had managed to antagonize much of the local population. He certainlywas the object of resentment of many of the more influential of the local population. Not only had he made enemies with a number of the lower literati, it is likely that, owing to a variety of artless machinations to wrest cheap grain from the wealthy, he was considered an evil force by most of the local gentry. There can be no doubt that his own malevolent ineptitude led to this social eruption. The role lineage!! apparently played in this case is also intriguing. The preponderance of people surnamed Zhong suggests that they were of the same lineage. Mrs. Deng's "houseguest" was Zhong Dahuo. Zhong Datou, probably of the same generation as Zhong Dahuo, levelled the first protestation at the yamen that Magistrate Yan was being unjust in trying to torture Zhong Dahuo. Of the seven people named among the approximately thirty who destroyed the court, five were surnamed Zhong. The two litigation brokers among the three charged with having been the ringleaders were Zhong Yinghan and Zhong Yejun. Moreover, one suspects there existed some sort of alliance between the Zhong and Wang lineages. As mentioned earlier, the

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maiden name of Mrs. Deng was Wang. One of the seven people named among the thirty rioters was surnamed Wang. Sergeant Yu's initial report on the riot claimed that "the Wang clan, in their desire for money, carried away the yamen treasury" (ZPZZ, QL 9.4.10). Even if, as is likely, the soldier had secured this information from Magistrate Yan, it still indicates the participation of the Wangs in some way. It is particularly significant that the magistrate's apparent archenemy in Wuping was Wang Dianzhou. Perhaps the fact that the two lineages shared a mutual enemy in the county magistrate cemented an alliance between the Wangs and the Zhongs. On the other hand, it would not be completely accurate to present this local struggle as evidence that lineages worked cohesively to protect their collective interests. The men to whom Magistrate Yan offered bribes to incriminate Zhong Yinghan and the others were also surnamed Zhong. One of these men, the robber Zhong Sanman, was not willing to testify against the three enemies of the magistrate, and for his recalcitrance he was punished with the cangue. But the other man offered a bribe, Zhong Peigu, a head workman by profession, was willing to implicate the three men. The prefect, for some unstated reason, however, believed the man "was not a reliable witness." Had his social status vis-a-vis the student status of the three accused men invalidated his testimony in the eyes of the prefect? Had Magistrate Yan, in a desperate effort to save himself, seized upon some unidentified fissures he knew rent the Zhong lineage? Or had the allure of easy money, 40 taels of silver in Zhong Peigu's case, been too tempting for a poorer member of the lineage to resist? In Fujian, the violence that often resulted from civil disputes frequently revealed resentment and fractures within families and lineages. In a case in Fuzhou prefecture in 1812, a contention over burial lands between two rival lineages led to litigation (ostensibly at the incitation of a litigation broker) and, ultimately, arson. The accused arsonist, Huang Fajin, found the charges falsely substantiated by his kinsman, Huang Chenghui. Huang Chenghui wrote a letter to Huang Fajin saying, "Yang Xin [the victim] said you were at the scene [of the crime]. Yesterday I asked your Uncle Number Four if I could borrow five yuan and some lace. He refused. [So], when the official came again to interrogate me, I gave wild evidence (luanzhao). Never mind, you weren't at the scene. We are both going to prison" (Lufu zouzhe, £alii qita, JQ 17·9.21).

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Local officials believed Huang Chenghui had falsely implicated his kinsmen after a fruitless attempt to extort money from the uncle: "His attempt to extort money from the uncle had failed. He used intimidating and deceptive words to make it seem as if Huang Fajin had been in Yang Xin's ancestral hall when it was burned down when, in fact, he really had not been at the scene" (Lufu zouzhe, £alii qita, JQ n.9.2I). Financial concerns, resentment, jealousy, desperation, and hatred could tear at a lineage savagely. Civil and criminal legal entanglements often exacerbated preexisting tensions within lineages. A 1727 "pettifogger case" recounted by Lan Dingyuan illustrates these tensions. Lan had been serving coterminously as the magistrate for Puning and Chaoyang counties in Chaozhou prefecture, Guangdong, when Wang Shiyi, a native of Chaoyang, entered his yamen and declared that his paternal younger cousin had been murdered. This cousin, Ah Xiong, had accompanied his widowed mother to Puning when she became the concubine of Chen Tianwan. Wang Shiyi claimed that Chen Tianwan's legal wife had poisoned the boy in a fit of jealous rage. When Lan and his retinue dug open the grave, they were astonished to find that there was no corpse. Wang, "a glib speaker," claimed that Chen Tianwan must have absconded with the corpse in order to evade detection. The effect these words had on Chen's family, whom Lan had assembled at the grave, was immediate: they "looked at each other so terror stricken that they could not even form words." They believed that the boy had died of natural causes. As Lan investigated the case, he began to have reservations about Wang's accusation. Eventually he ordered that Wang be investigated with torture whereupon Wang confessed that he had hired someone to open the grave in the dead of night and carry the corpse away. He could not or would not say where the corpse had been secreted and did not respond to Lan's query as to "the name of the pettifogger (songshi) who had dared to induce him to do such a deed." Landecided to punish him with thirty swats of the heavy bamboo and exposure to the city crowds in Puning wearing the cangue. Magistrate Lan then sent a yamen functionary to the East Gate Lodge in Puning city, one of the few inns in the county seat. There he ascertained that Wang Shiyi had lodged there with "the pettifogger Wang Jueting," who was subsequently brought before the mag-

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istrate. Initially Lan was impressed with the manner in which Wang Jueting "seemed to comport himself with dignity" and accepted Jueting's claim that he knew nothing of this affair. But Lan was convinced that Wang Shiyi would not have been able to act independently. He summoned the scrivener who had guaranteed the veracity of the plaint's contents. He declared to the magistrate that Wang Shiyi and Wang Jueting in fact had come to him together. Furthermore, through handwriting analysis, Lan determined that it was Wang Jueting who had written the original complaint. Under torture with the pressing sticks, Wang Jueting confessed that the entire scheme had been concocted by the "venerable pettifogger" (lao songshi) Chen Weidu. When Chen was brought before the magistrate, he lodged his own complaint against the Wangs: Chen Tianwan is my male younger first cousin on my father's side [fudi, a

r~lative within the five degrees of mourning]. These two men [the Wangs]

are utterly lacking in good intentions. They wanted to use false words to slander my cousin into a hopeless situation. Today I had the good fortune to run into you, oh incorruptible magistrate! Like a spirit you have shed light on their perfidy. At present their slander of my cousin has met with no success and now they desire to shift that slander to his elder cousin [me]. (Lan 1985a [1729]: 23-24)

The Wangs indignantly reminded him that he had planned the entire plot. He had referred to a famous skeleton snatching case of the Song dynasty to teach them how best to steal a corpse and thus avoid a postmortem analysis for wounds.'• He had argued that if they "took the corpse across the border, the officials would not worry about the case." In testimony that revealed the hatred Chen Weidu felt for his close relatives, the Wangs claimed that Weidu had convinced them that the officials would accept the fact that if Ah Xiong indeed had been murdered, the Chen family would try to hide the corpse, This would mean that Chen Tianwan, his brothers, wives, concubines ... all because of this would receive punishments. Under the punishment of the knuckle-squeezers, they would undergo tremendous pain; they would be reduced to a pulp .... Next if they could not find the corpse, the official would not be able to resolve the case. We [the Wangs and Chen Weidu] would be satisfied., After our success in the accusation, we could open the door and collect bribes. Upon hearing that the suit would be withdrawn, they would not dare to fail to comply. We would make our families rich in one move. (Lan 1985a [1729]: 24)

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Although Chen Weidu artfully responded to all of the Wangs' accusations, proving his considerable oratorical skills, he could not overcome the weight of the testimony against him and ultimately confessed under torture with the pressing sticks. Ah Xiong in fact had died of natural causes. Why had he been filled with such a vengeful and abiding animosity for his cousin? According to Lan, "Chen Weidu had been forced to sell his ancestral property (zuye) to Chen Tianwan to meet an immediate financial need. They contracted enmity, and because of this, Chen Weidu used the [Ah Xiong] affair to vent his spleen by entrapping Chen Tianwan" (Lan r985a [I729]: 25). Zuye or zuwu was land or property one had inherited from one's ancestors. Usually it was land one's ancestors had reclaimed and brought under cultivation personally and, technically, it was not supposed to be the object of a conditional or permanent sale (Morohashi 1960: 24664.46). Nevertheless, land acquired through reclamation was a common source of property for southeast coastal peasants, and in the active land market in the region, ancestral land must have been regularly sold. Chen Weidu's resentment against his wealthier cousin was fired by this reluctant land sale transacted in a moment of financial need. Bad words had evidently crossed between the cousins on the occasion of the sale. After Chen Tianwan had heard the entire testimony, he looked sadly (but perhaps with a touch of satisfaction) at his now ruined cousin and cried: My elder cousin, why did you do this? We're relatives in the same trunk of the lineage. There was no great hatred between us. It was only due to the slight animosity [engendered by] the selling of your ancestral inheritance that you said you wanted to harm me by driving my family bankrupt and that you wouldn't give me a hoe's worth of land to make a living. I thought you were joking. (Lan 1985a [1729]: 26)

Apparently, what had appeared as an unremarkable land transaction to the financially secure younger cousin was a source of rage to the cousin forced to sell inherited land. Chen Weidu had no civil case to press, and so turned to what officialdom commonly identified as pettifoggery: false and vicious accusation in an effort to destroy an enemy and gain wealth illicitly. The Deng Meisheng and Huang Fajin cases reveal the violent tendencies inherent in Fujian society. Both cases were precipitated

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by arguments over burial land and escalated into a riot in one instance and arson in the other. Chen Weidu had been moved to accuse his cousin falsely because of his rage at having to sell his inheritance. As was common throughout China, property disputes were the usual cause of social tension and litigation on the southeast coast. Obviously, most property disputes in the region did not erupt into violence or extraordinary cases of "pettifogger-induced" abuses of the legal system. Most disputes were resolved either through local mediation or became enmeshed in the tens of thousands of unresolved cases languishing in the yamens throughout the region (recall that 22,800 went unresolved in Fujian in !759 alone). Nevertheless, it was not unusual for class or economic tensions within and between lineages to develop into vicious and destructive campaigns in which false accusations were pressed and poorer kinsmen allied with litigation brokers and leaders of enemy lineages to destroy the wealthier members of their own lineages. The violent ethos of southeast coastal culture was fed by such animosities.

Incivility Along the Southeast Coast Officials dispatched to serve at the local and provincial levels in southern Fujian and eastern Guangdong never failed to express astonishment at the occasional ferocity characterizing social relationships. Lineage struggles, class tensions, and intermittently raging violence had peculiar effects on litigation and litigation brokering in southeast China. The southeast coast was an exceptionally difficult region to govern, and authorities were forced to rely heavily on military support. Harry Lamley notes that not only was it distant from the central government in Beijing, it was also far removed from the provincial capitals of Fuzhou and Guangzhou and high mountains set it apart from the rest of the mainland (Lamley r990: 37). 15 In 1729 the acting governor-general of Fujian, Shi Taizhi, observed that "Fujian was layered by successive mountain ranges which extended uninterrupted for several thousands of li" (r li = 0.3 mile). This, he noted, facilitated c:t:iminal activities in Fujian by enabling robbers and other "scoundrels" to find a haven in secret hiding places scattered throughout the mountain ranges of the region. The propensity of Fujianese, especially those in the prefectures of Quanzhou, Zhang-

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zhou, and Taiwan, to pledge in "sworn brotherhoods" was exacerbated by the mountainous terrain of the region. It made it difficult for authorities to capture and prosecute the criminal element. It is interesting to note that Governor-general Shi's proposed solution to the problem of criminality in Fujian, in addition to the usual admonitions concerning improvement in administrative procedure and effective enforcement of the baojia system, was that order could be ensured by alert military patrolling by the Army of the Green Standard (Gongzhongdang Yongzhengchaozouzhe 14:76-77, YZ 7.8.2). In describing particular problems associated with litigation in Fujian, Zhang Shicheng, governor of the province in I 807, observed that Fujian people lived in clan villages and when a yamen runner would arrive on the scene to call someone as a witness in a case, the local inhabitants would "assemble into a mob and resist arrest, perhaps carrying him off and keeping him prisoner." Zhang added that because so many villages were comprised of these large lineages, it is necessary [for civilian authorities] to proceed together with the Army of the Green Standard and lead troops [to these locales]. Then and only then can these "criminals" be arrested. This is an example of the way cases in Fujian are different from those in other provinces. . Under these circumstances, local pettifoggers (songgun) proliferate to invent stories and incite others to trump up charges. Moreover, this contributes to the lack of settlement of lawsuits .... An investigation of 200-odd legal petitions garnered in a few months showed that not a few were tortuously crooked. Many of these cases involved routine altercations over debt. (ZPZZ, JQ I2.p8)

Zhang concluded that in five or six out of ten of these cases, "the names of the persons who drew up the petitions were not recorded on those petitions. The petitioners were not willing to disclose that they had been incited by a pettifogger to litigate" (ZPZZ, JQ 12.5.18). The presumption, of course, was that these peasants indeed had been incited by a litigation broker to litigate and that, without his assistance, they would never have gone to the yamen court. This is unlikely. The fascinating thing about the governor's comments, indeed about southeast coastal litigation in general, was that it frequently was impossible to call a witness to court without dispatching troops with a runner. This reflects the violence of southern Fujian society and the concomitant militarism of Qing administration in the region. Recall that in the southern Fujian case of Deng vs. Liu, "un-

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just" official handling of the inquiry resulted in a riot at the yamen and the destruction of the court. The civil officials were forced to rely on a local brigade of the Army of the Green Standard to restore order. It seems ironic that 56 years after the Kangxi emperor's ostensible stabilization of the country, southeast coastal authorities should prove so reliant on the military in daily governance. One wonders if there ever was a moment in this region when military force was not required to assert control over major sectors of the population. There is evidence that the local population could occasionally resent the strong military presence in the region. In Chaozhou prefecture, three years of "successive calamities" from I724 through 1726 had ruined the crops and inflated the price of rice dramatically. Residents of Chaoyang county simply refused to pay their levy of I I,ooo shi (I shi = Ioo liters) of military rice to help supply the five garrisons in the prefecture. It was for this reason that Puning county magistrate Lan Dingyuan had been commissioned by the Chaozhou regional military commander (and not by civil authorities) to assume the office of county magistrate of Chaoyang. The regional military had been starving and demanded an immediate levy of part of the 1727crop. The tactic Lan used to force the locals to hand over the military rice was to imprison all of the licentiates who had led the way in refusing to pay the military rice levy of the previous three years of famine. In noting his success, he gleefully commented that not only did he ultimately get his military rice, he also reduced the litigation rates of the county in half (Lan I985b [1729]: I-2, 5). 16 Significantly, these "troublemakers," whom Lan identified as comprised of both gentry (shen) andthe shengjian lower echelons of academia, had served as both the leaders of tax resistance and the force behind a portion of the litigation in the county. There are a variety of reasons for the turbulence of social relations in the region. One important factor in both litigation and lineage affrays was the class tensions within and between lineages. A number of scholars have discussed the manner in which social relations in the southeast coastal countryside began to erode with the onset of commercialization in the sixteenth century. Financial and contractual relationships began to replace those based on paternalism and personal interaction. Fu Yiling believes that market forces engendered within tenants a class consciousness which led, for example, to struggles with absentee landlords (Fu I972 [I96I]: 92-93,

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104; for a contrasting view, see Rawski 1972: 19-24, 83-88). Ng Chin-keong acknowledges the social turmoil of the region, but also disagrees with Fu that commercialization created rural class conflict. Instead, he believes that, in Quanzhou and Zhangzhou at least, rural struggles resulted from "the beginning of fierce rivalry between different lineages rather than a landlord-tenant confrontation in the class sense." He asserts that increasingly powerful local lineages "began to challenge the land proprietorship of upstart absentee landlord" lineages, and believes that the "vertical solidarity" of lineage outweighed whatever horizontal class alliances existed in the countryside (Ng 1983: 22-37). It does seem more likely that lineage identity took precedence over whatever stirrings of class resentment were festering in the minds of southeast coastal peasants. Nevertheless, class tensions inside and outside the lineages were not negligible, and this seemed to color some of the legal struggles in the region. For example, in 1807, the governor of Fujian condemned a case in which a man, disgruntled after a feud with a wealthy household, with the aid of a litigation broker launched a series of false accusations against it in a campaign to "select the rich for extortion" (zefei tushi, literally "select the fat ones in a plot to eat them"; loosely "eat the rich") (ZPZZ, JQ 12.5.18). I have already suggested that internal lineage resentments with some relation to finance played a role in the cases of Deng vs. Liu, Wang vs. Chen, and the Huangs. These suggestive cases were not unique in the region. In I7 41 Guangdong Investigating Censor Li Qingfang reported on some troubling land dispute cases in the Fujian prefectures of Zhangzhou and Quanzhou. He wrote that it was a custom in Fujian for the people to establish corporate property (gongchan) in order to contribute to lineage sacrifices. Year after year this property was handed down through the lineage and was never considered the private property of any individual. But then, he wrote, "local bully wealthy families (tuhao fuji a L coveting these fertile fields, illicitly entice the wayward sons of the other families to write up a contract of sale and thus usurp that land for themselves" (ZPZZ, QL 6.y.ry). The lineage constituting the original owners naturally would decry this chicanery. But the wealthy, conniving lineage would present the contract as evidence of a sale "in order to take rent by usurpation." Troubles arose when "the crowd of original owners inevitably strove mightily

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to sow and reap the land en masse." In response, the "local bullies who had bought the land, trying to maintain their wealth, would assemble rude ruffians to beat and maul [the rival lineage members]." Censor Li sought to outlaw such knavery by punishing the offenders with the severest penalty under the "doing what ought not to be done" statute, by temporarily banishing the "wayward sellers" of the land, and returning the property to the original owners (ZPZZ, QL 6.7.I7)Y There is little doubt that poorer lineages resented the predatory tactics of powerful, wealthy lineages. The tensions between rich and poor lineages were quite evident, as Censor Li noticed. Moreover, as in the other cases discussed in this chapter, there are indications of class tensions within the victimized lineage in these cases of illicit land sales. It is unlikely that the wealthier sons of the lineage branches would "rock the boat" by selling corporate property. If this was a matter of poorer kinsmen selling out wealthier ones, it suggests that "vertical solidarity" was not as sound as Ng suggests. The susceptibility of the southeast coast to violent armed affrays (xiedou) also reveals the manner in which the tensions within and among the region's lineage organizations affected the character of pettifoggery there. For example, in r8o5, the governor-general of Liangguang and the governor of Guangdong described the remarkable horrors of these affrays in Chaozhou prefecture and the role litigation brokers played in these struggles. They believed that the inhabitants of Chaozhou had been "corrupted by the evil customs" and lineage warfare of the neighboring Fujian prefectures of Quanzhou and Zhangzhou, a revealing attempt to shift the original"fault" for these customs outside of their own jurisdiction of Guangdong. They noted that in each village an ancestral temple was erected and fields were set aside, the produce of which fields was to maintain the annual sacrifices to the ancestors and to meet the country expenses (gongfei) obligation (ZPZZ, £alii liili, JQ 10.6.6).'• Although lineage members considered this property as "collective," a few "unreliable and worthless vagabonds" within the lineages water at the mouth for the country expenses. They hatch all sorts of plots to incite disturbances in order to divide the ill-gotten spoils. They perchance wound a member of a certain [competing] lineage or take some of their possessions by force. The worthless fellows of both clans join in a plot, each pretending to issue forth public indignation and inciting their own

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lineages to [battle]. The gentry (shenqui) are the leaders in this, and the gentry enjoy troubles. (ZPZZ, falii liili, JQ 10.6.6)

Such scholars as Min Tuki believe that the shen need to be distinguished from the rascally, pettifogging shengjian lower echelons of the scholarly elite (Min 1989: 24-32). But here, as in other documents, shen certainly acted in concert with local, pettifogging troublemakers: "With forethought, these gentry formed unlawful associations to prepare for battle. They hired pettifoggers (songshi) to buy off the people who were to serve as dingxiong substitutes" (ZPZZ, falii liili, JQ 10.6.6). Dingxiong was a practice in affrays in which, upon prearrangement, certain kinsmen (usually the poorest of kinsmen) agreed to confess to any homicides committed during the course of an affray. As soon as [the potential substitute] agreed to confess [to the homicides committed in the course of an affray], then for the rest of his life he was granted substantial subsidies. After his death, [the produce of] a portion of the lineage lands would go to the care of his parents, wife, and children .... In fact, this substitute would not have even been on the field of battle in an affray. When peace returns, these substitutes are honored and within the village it is considered an honorable thing to do. If a person sent to dingxiong ends up unwilling to do it, then his parents do not consider him a son and his wife does not consider him a husband. (ZPZZ, falii liili, JQ 10.6.6)

In the event that an accusation of homicide was lodged, litigation brokers would do whatever was necessary to assist the substitutes in their testimony. One missionary source, relying on information related by "a native friend" in the Guangzhou area, stated in 1836 that these substitutes would confess their crimes and surrender to the authorities. It then belongs to them and their friends to employ lawyers and bring witnesses to prove it a justifiable homicide, or one which calls for a mitigated punishment. Notwithstanding, they sometimes suffer the capital penalty, but more frequently it is softened to transportation or a fine. In a recent instance, within the past year, when four men fell in an affray, all of the accused were acquitted and returned again to their homes. (Chinese Repository 4.9, Jan. 1836: 413)

The usefulness of litigation brokers in this regard is apparent. Not only did they recruit and organize those among the lineage who would serve as substitutes, they evidently could guide many of these

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substitutes through their trials and arrange to have them partially or fully exonerated. Nevertheless, it seems astonishing that in the common practice of dingxiong substitution, men in the same lineage essentially bribed their poorer relations to take the blame for homicides they did not commit. In campaigns to best lineage rivals, the poorer kinsmen were the ones desperate enough for the guaranteed financial support for their families to accept the blandishments of lineage litigation brokers to "confess" to the homicides of battle. If they backed down, they were subject to such ostracism that even their parents "would not consider them sons." This is seen quite plainly in an account recorded in an essay (biji) of 1875. Chen Qiyuan's father had served as the judicial commissioner for Fujian during the late Daoguang period. His father told him that wealthy people always had the poor substitute for them in confessing to homicides. In one case, a youth of sixteen was arrested for murder. The father could not believe that a boy so young and so weak could have been responsible for killing someone. But the youth was obviously well coached because his testimony was consistent and he did not waver from his story no matter how many times he told it. Eventually the father wore the youth down. In tears, the boy said he could not return to his home: "My father and my mother will scold me saying, 'The money we got from selling you is already used up. Would you overturn your deposition and ruin your parents? If you get out of prison, we will punish you with death'" (Chen Qiyuan 1936 [1874], 3: 4a). Thus, the repercussions of dingxiong can be considered to have been inherently tragic for the poorer families driven to financial gain by sacrificing their sons. In this case, at least, it certainly did nothing to foster filial affection and parental benevolence. On the other hand, there were some indications that certain members of the lineage were actually quite willing to lose their lives acting as substitutes in exchange for financial security. In a memorial of 1760 the Fujian surveillance commissioner, Cao Shengzhu, commented that he was aggrieved that these fellows "did not fear death" and "hastened to put themselves forward to commit the crime of substitution" (ZPZZ, QL 2 7 -4· 18 ). Harry Lamley also asserts that the people who accepted dingxiong responsibilities did so quite willingly (Lamley 1990: 45). If this was true, then Ng Chin-

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keong's observations concerning vertical solidarity are not without strong foundation. One suspects, however, that in those cases in which litigation brokers coached the substitutes and helped them evade punishment, the willingness to take a chance and perform substitution was probably enhanced. In these instances, these brokers protected both the actual perpetrators and their substitutes and obviously provided a valuable service to lineages that were constantly engaged in battle. The attitude of regional officials concerning this practice was more often than not one of revulsion and outrage. They felt that substitution had a pernicious effect on local customs, encouraged. the ongoing violence among lineages, and rendered the legal system ineffective. The governor-general of Liangguang and the governor of Guangdong noted in 1805 that once the financial arrangements, including compensation to the relatives of the deceased members of the enemy lineage, had been secured, the lineage "plot"masters" agreed to have the cases sent to the county magistrate. The investigating officials were thus "hoodwinked" by the confession of the substitutes who, "because they have received a handsome bribe, own up to their crime without excuses. And the relatives of the deceased, having filled up the ditch of their [financial] desires, are not willing to press charges [of substitution], even though they know [that the true culprits will go unpunished]" (ZPZZ, £alii liili, JQ !0.6.6).

In effect, these officials lamented, all that happened was that the innocent were punished, those inciting contentions went free, and the fighting continued. From the official standpoint, therefore, it is not difficult to perceive why southeast coastal officials harbored a special antipathy for these litigation brokers, who played such an instrumental role in the murder and mayhem of regional waves of violence. In this sense, the song (litigation; disputation) in songgun and songshi reverts to its original meaning in ancient China: to struggle, to contend, to dispute, to fight, to quarrel. It is evident, however, that the lineages obviously relied on these brokers to ensure that all parties to the dispute had been compensated to the satisfaction of everyone. It seems odd that in the early half of the eighteenth century, litigation brokers in Fujian who were caught and punished for negotiating dingxiong payments in lineage disputes in many instances were punished according to the statute for incitation to litigation (memorial of Liu Cui, QL 20, quoted in

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ZPZZ, QL 27.4.18). Clearly, officialdom perceived these men to be the instigators in these troubles. As the century progressed, various substatutes were promulgated restricting the practice of substitution, but this early identification of "pettifoggers" who arranged dingxiong substitutions with litigation abuses was also related to the fact that these arrangers of substitutions also facilitated the litigation efforts of the lineages in their ongoing struggles. They kept "minor" disputes alive, disputes over fields, disputes over burial sites, disputes over shepherds transgressing the raised paths between fields and entering cultivated land: "trifling affairs," as the officials dismissed them. But these so-called trifling affairs, even as some officials admitted, "produced enmity, and the entnity resulted in killings. And because of this, quarrelsome customs daily increased as the branches and knots [of enmity] grew in luxuriance" (ZPZZ, £alii liili, JQ 10.6.6). This is the ultimate irony in Qing officialdom's persistent use of the various terms for "trifling affairs" to discuss the origins of peasant litigation. At least in the southeast coast, the "trivialities" dismissed by officials as leading to unnecessary litigation were often the same "trivialities" that led to murders and to the enmity that periodically erupted into armed affrays. The Qianlong emperor certainly recognized that the so-called triflings in Fujian that led to civil litigation carried with them the potential for more serious disturbances to local order-and that officials had a duty to resolve this litigation. In an edict of 1757, he declared that the litigation in the counties "naturally and at all times ought to be managed" and judgments should be given in every case, distinguishing between the crooked and the straight and resolving the cases. This enables the good and the imbecilic to avoid involvement in injustices and serves as a warning to perverse rogues. If litigation is obstructed and allowed to amass, then over the course of time evil incidents multiply, perhaps bringing about serious murder cases. Henceforth [officials] ought to oversee [litigation] seriously and ought not to consider it a mere formality. (Shangyudang 3.577: 404-ro)

It should be recalled that in the litigation reports dispatched to Beijing during the Qianlong and Jiaqing reigns, provincial authorities throughout China incessantly labelled disputes over property and other matters as altercations over "triflings" waged by "litigious" peasants at the instigation of crafty litigation brokers. The overall conviction expressed in these reports was that these struggles were

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best settled by the local people themselves without recourse to the overburdened yamen court. These reports were for central government consumption, and Fujian authorities were equally as anxious as their counterparts throughout China to assure the higher authorities that the litigation and appeals backlogs were due to devious pettifoggers, obstreperous peasants, and inept local officials who did not execute their duties. Although this scapegoating genuinely reflected a tendency within provincial officialdom to frame the discourse in moral terms, it also allowed it to deflect the blame for unclear civil dockets away from provincial-level bureaucracies and onto certain "immoral" elements in local communities. Fujian officials, however, were clearly aware that if disputes among people were. not settled through peaceful litigation, then homicides and affrays frequently resulted. These authorities were cognizant of the large number of homicides every year which had originated in disputes over rents, debts, conditional sales, and similar issues. One typical case was that of Liao Kong, who had been cultivating the Hong lineage's corporate sacrificial lands at an annual rent of 7·5 hu of grain [r hu = roo liters orr shi]. In I? 52 Liao paid the Hongs 2 hu of grain, but then failed to pay the remaining 5·5 hu. In the eighth morith of that year, Hong Weng went to Liao's home to prompt payment of the remaining rent. Liao asked for leniency, but Hong Weng refused. The two cursed each other. Then Hong Weng picked up a hoe at the side of Liao Kong's house. Liao Kong was alarmed, grabbed hold of the hoe, and tried to snatch it away. But Hong Weng would not let go of it. Liao Kong forcefully pushed it back. By chance the handle of the hoe wounded Hong Weng on the left side of the rib cage and he died. (Quotation of a Xingke tiben, QL 18.5.12 in Su 1987: 256)

Governor Chen Hongmou agreed to the magistrate's sentence of strangulation for Liao Kong. In I7 53 the Board of Punishments confirmed that he should be executed after the autumn assizes and that the Hong family should receive the remaining 5. 5 hu of grain owed to them (quoted in Su 1987: 256). 19 It should be noted that Fujian's annual homicide totals were frequently higher that those for other provinces in China. For example, in 1769 there were 172 new homicide ca!les in Fujian, 83 in Zhejiang, 124 in Hunan, and 98 in Jiangsu (ZPZZ, QL 35.3.6, QL 35.3.25,

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QL 35.3.8, QL 35·3·I3). New homicide cases in rnr totalled r82 in Fujian and 96 in Jiangsu, while in ry65 Fujian's total was r87 cases as compared to Anhui's I 57 (ZPZZ, QL 37·3·I4, QL 37·3·I5, 5 r: QL 3r.4.2, QL 3r.3.6). 20

A perusal of the Xingke shishu (Summaries of the routine memorial cases in the Board of Punishments) in the First Historical Archives in Beijing shows that the vast majority of homicide cases in Fujian originated in "petty" disputes: debt disputes, arguments in lodges, fights over wandering farm animals, among others (Xinke shishu, bianbao 2520, QL 29, second month). Therefore, frequent assertions by officials that "trivial" peasant disputes should not be taken to the yamen seem cavalier in light of the violence that could result from these conflicts. The Fujian provincial government in the eighteenth century was not unaware of this. In ry6o, responding to a disturbing report from the county magistrate of Zhaoan in Zhangzhou prefecture, the provincial surveillance commission declared that the people simply had to resort to the courts to settle their disputes: If a government values the pacification of the people, the people must first be purged of their violence. If tyrannical scoundrels, because of the trivialities of civil disputes, do not first go to the magistrate to lodge a complaint and do not wait for a judicial decision, but rather take to their weapons or fight with their fists, beating each other savagely, then the consequences are injuries and homicides. (Fujian shengli 1964 [1863-72], 6: 862-63)

The commission adopted the county magistrate's proffered solution to this problem. When the magistrate learned of a fight over matters that should have been resolved in the yamen courts, he was to apprehend the person who struck the first blow. Then, "under the gaze of the assembled people of the village in which said criminal lived," the official was to put the man into a cangue for one month under the supervision of the local constable (dibao). Upon completion of the term, he was to be punished with thirty swats from the bamboo rod (ban). The magistrate was to use his discretion in punishing the one who returned the blows and, if his blows also resulted in heavy injuries, the official "likewise was to execute a heavy sentence," presumably blows with the bamboo rod. In this way, the provincial government believed, "the multitude of wicked people will feel awe for the laws. Together they will be warned. This is the way to eradicate violence and pacify the people" (Fujian shengli r964 [r863-72], 6:

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862-63). In other words, the cure for popular violence was official violence. In spite .of their reports to Beijing, Fujian provincial authorities thus understood quite well that the local officials had to accept "the trifling matters of civil disputes." They had "to render quick, just decisions" and swiftly resolve these matters. "They could not delay and cause troubles to arise" (Fujian shengli 1964 [1863-72], 6: 862-63). This certainly was not the message Fujian officials conveyed to Beijing in explaining the backlog of pending, unresolved cases. But, in provincial correspondence, in words primarily for the eyes of the provincial bureaucracy, Fujian authorities realized that litigation was often the only amicable alternative to murder, assaults, and armed affrays. Seen in this light, in spite of their occasional misuse of the legal system, litigation brokers, by facilitating access to yamen courts, helped channel some of the raging animosities of the region to the yamen courts. But civil resolution in an overburdened judicial system often proved elusive. The problem was that there was more litigation in Fujian and throughout China than the Qing judicial administration could resolve satisfactorily. And the violence that continued to plague the region until the twentieth century, to some extent, was related to the disinclination of the Qing state to expand the services of government to meet the needs of the population.

Concluding Remarks Most lawsuits in Fujian and eastern Guangdong did not involve body snatchers, or unprincipled pettifoggers, or extraordinarily vindictive false accusations. When provincial authorities closely researched and analyzed the causes of litigation in Fujian, for example, they often did not mention the "incitation" of litigation brokers or false accusations. In n6o, Governor Wu Shigong contended that "in matters of Fujian litigation, half the cases are due to a lack of clarity in property contract records. This results in quarrelling and wrangling" (Fujian shengli 1964 [1863-72], 3: 442). The governor identified contract disputes concerning tax responsibilities, rents, the time limitations of conditional sales as well as abrogated contracts over permanent land sales and the unreliability of oral contracts as common causes of litigation throughout the province. Furthermore, the provincial administrative commissioner for Fujian, Zhang Shi-

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chang, memorialized in 1741 that the irregularities relating to the "two masters to a field" (yitian liangzhu) practice also exacerbated the litigation overload at the yamen courts (ZPZZ, QL 6.rr.ro). The complexities of land tenure and property rights, and not litigation broker incitation, led to the high numbers of lawsuits in the region. 21 Research into archival and other historical sources indicates that the official"pettifogger cases," the cases in which litigation brokers were actually caught and punished, often were the notorious cases, the civil cases that for one reason or another went awry. Officials relied on these cases to exemplify what "pettifoggers" did. The cases, and their centuries-long discourse vilifying litigation brokers, reinforced their views. 22 But it is also clear that most people who assisted peasants in pressing litigation were not involved in such cases. These brokers primarily advised litigants on the best way to manage their cases. At worst, they both suggested an exaggerated phraseology designed to capture an overextended magistrate's imagination and provided contacts with the "inside men of the yamen." The vast majority of the thousands of peasants and urbanites who pressed lawsuits every year in every province could hardly have afforded the services of a provincial litigation broker network. They would, however, have required someone to help phrase their plaints, to advise them on what to expect in the yamen, and to try to overcome the hurdle of yamen underlings who stood between the magistrate and them. It is highly significant that one of the few litigation broker cases cited in the Xing' an huilan, a collection of cases intended to serve as a legal guide for officialdom, involved the r82o case of Xu Xuequan in Anhui province. Xu "drafted five legal documents," all of which were "of an ordinary nature," with no evidence of his having "colluded with government clerks, cheated country bumpkins, or practiced intimidation or fraud." He received a punishment one degree less than the maximum penalty, or three years of temporary exile. He had engaged in no abuses of the legal process; his only "crime" was to have written five legitimate complaints. Despite his advanced age (he was over seventy years old), he was punished "because he was a pettifogger (songshi) who brought harm to rural communities" (Xing'an huilan r886, 49: 25b, tr. in Bodde and Morris 1973: 415-16). This Xing' an huilan case quoted the wording of the substatute of 1764 outlawing the "habitual pettifogger" (Xue Yunsheng 1970

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[I905], 40: No. 340-6). Significantly, the I503 statute to which this substatute was attached explicitly permitted literate people to assist others in the writing of their petitions as long as they did not falsify documents or otherwise abuse the system (statute tr. in Boulais I 92 3: I 5 12 ). Sometime between the late Ming and the early nineteenth century, the attitude of officialdom had hardened. The issue no longer was primarily one of abuses inherent in the process of litigation, it was becoming one of providing access to that process. Officialdom could not contend with the tide of litigation washing into its courts after the sixteenth century. The disinclination of the Qing to expand the services of local government relative to the size of the population and economy guaranteed that the judicial apparatus would be unable to manage the civil caseload effectively. This obviously substantiates G. William Skinner's observations concerning an administrative "retrenchment forced by the growing scale of empire" after the eighth century. Bureaucratic effectiveness at the local level was sacrificed to the greater imperative of maintaining a low-cost, unified empire (Skinner I977: 2o-2I). Southeast coastal officials in the eighteenth and early nineteenth centuries clearly struggled with the consequences of this bureaucratic "retrenchment." Even though officials resolved large numbers of civil and criminal cases, they were never able to clear civil dockets at the county, prefectural, and provincial courts. High provincial officials in Fujian and Guangdong in frustration blamed "litigious" peasants, "trickstering" litigation brokers, and "negligent" local officials for the thousands of cases on backlog in the courts. But never does one find a provincial official advising the emperor that the region simply needed more officials and administrative units to handle the backlog. At the same time, these officials contended with a society prone to individual acts of violence and lineage warfare. The social tensions of the region were exacerbated by the conflicts between rich and poor both within and among lineages. Fujian officials realized that civil resolution of property disputes was infinitely preferable to the assaults, homicides, and lineage affrays that tore at the social fabric of the region. But the bureaucratic inadequacies of the judicial apparatus forced regional officials to propose contradictory solutions to two different administrative problems: the backlog of civil cases was untenable, therefore officials should discourage people

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from bringing their "trivial disputes" over land, debts, and other matters to local yamens. On the other hand, southeast coastal peasants were too quick to turn to violence to resolve civil disputes, therefore they should be encouraged to bring these disputes to civil resolution in the local courts. This proposed solution to the latter problem was obviated by the persistence of the former problem. In a province in which annual civil backlogs could number in the tens of thousands, local Fujian officials were clearly in no position to manage even more property disputes in order to stem the violence of the region. By the eighteenth century, officialdom used the terms songgun (litigation trickster) and songshi (litigation master) interchangeably and pejoratively. Nevertheless, the dichotomy between gun and shi is useful in analyzing the roles these men played in the late imperial southeast coast. In cases of genuine conflict, peasant access to a neutral and authoritative magistrate was essential. To the extent that litigation brokers provided that access, they were songshi, litigation masters, attempting to channel disputes to civil, nonviolent resolution. To the degree that they helped peasants in struggles to destroy community enemies maliciously, they were songgun, litigation tricksters; but tricksters whose services, nonetheless, were sought by a significant number of Chinese in late imperial times.

CHAPTER FIVE

Mark A. Allee

Code, Culture, and Custom: Foundations of Civil Case Verdicts in a Nineteenth-Century County Court

I

NQuIRY INTo THE nature of a late imperial body of rules and practice that correspond to what might be called "civil law" ideally requires going beyond codified law to investigate litigation and a court's procedure for handling it. Our attention is first drawn to a group of laws concerning households, marriage, and property (huhun tiantu) and the litigation produced by disputes over these matters that in the view of Chinese lawgivers and jurists were qualitatively different from more serious, "criminal" cases. This chapter explores one aspect of the topic by reviewing a number of preliminary pronouncements and final verdicts handed down by a local court in northern Taiwan in the nineteenth century and then attempts to generalize from them. After a brief explanation of the origin, nature, and limitations of the source material for this study, I will categorize the cases and then proceed to analyze the approaches taken, the court's reasoning, and the bases for the decisions made.

The Cases The local court that generated the case records on which this chapter relies was situated in a town just a short distance from the seacoast in northwestern Taiwan. This town, Zhuqian, founded in 1733 and made the seat of Danshui subprefecture, was renamed Xinzhu in r875 when it became the administrative center of the newly created county of the same name (Lamley 1977: rs8). Preserving the records of over r,ooo proceedings, the DanshuiXinzhu (or Dan-Xin) archives (Dan-Xin dang'an) are a collection of

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case files that until 1895 were stored in the archives of the local government offices in Zhuqian and Xinzhu. These cases, although a substantial body of material, are only a small fraction of all the litigation handled by the local yamen during the years between 1789 (the date of the earliest case in the collection) and 189V The problems associated with storing materials in Taiwan's subtropical climate and the vicissitudes of Taiwan's history since 1895 undoubtedly contributed to the decay, loss, or destruction of many documents and even entire case files. It is also likely that some files might have been removed because they contained material embarrassing or inconvenient to locally prominent families. The 222 civil litigation case files in the Dan-Xin archives were so classified by Dai Yanhui who has been most closely associated with the documents since 1945 (Dai 1953). Dai further subdivided these cases into four categories-persons, real property, monetary obligations, commercial affairs-with each category containing from four to nine subcategories. For a full listing see Table 5.1, which also indicates the number of cases in each division? To make clear the limits of this study several aspects of these TABLE5.1

Classification of Civil Case Files in the Dan-Xin Archives Case category and subcategory

I. Persons (renshi)

1. Missing persons (shizong) 2. Marriage (jiehun) 3. Divorce (lihun) 4. Adoption (shouyang) 5. Guardianship (jianhu) ll. Real property (tianfang) 1. Rent and lease (zuiie) 2. Rent resistance (kangzu) 3. Arrogated rents (bashou) 4. Forcible occupation (bazhan) 5. Boundary disputes (zhengiie) 6. Disputes over wealth (zhengcai) 7. Common property (gongye) 8. Water rights (yongshui) 9. Foreclosure (chaoya)

Number of cases

13 1 7 2 2 1 137 7 27 3 42 27 15 10 4 2

Case category and subcategory

Number of cases

ill. Monetary obligations

(qianzhai) 1. Sale of goods (maimai) 2. Conditional sales (diandang) 3. Title deposit loans (taiiie) 4. Loans (jiedai) 5. Consignment (weiii) 6. Payment (taowu) 7. Encroachment (kangtun) 8. Accounting disputes (kangsuan) 9. Contract concealment (niqi) IV. Commercial affairs (shangshi) 1. Guilds Iiiaohang) 2. Partnerships (hegu) 3. Bankruptcy (daobi) 4. Infringement of rights (qinquan)

67 3 10 13 24 3 4 6 3 1 5 1 1 1 2

NOTE: The cases' sequence and numbering, which were devised by Dai Yanhui, are retained here because it is the basis of the system used to refer to individual cases in this chapter.

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TABLE 5.2

Civil Case Files Containing Verdicts in the Dan-Xin Archives Type

Number

Type

Number

Forcible occupation Disputes over wealth Common property Conditional sale Rent and lease Adoption Consignment Partnership Water rights

16 10 7 3 2 1 1 1 1

Boundary disputes Loans Rent resistance Arrogated rents Title deposit Accounting disputes Marriage Payment for goods

12 10 6 2 2 1 1 1

cases should be noted immediately. Not all of the case files contain definitive verdicts in the form of "court edicts" or "court decisions" (tangyuj. Some case files suffered from loss of or damage to documents. Some cases were not pursued to a conclusion in court. In many instances the court shifted responsibility for a resolution to some other entity. In a few instances cases were terminated because procedural rules were violated, such as the rule limiting the period during which prompting petitions could be filed to three months. Many of the court decisions are no more than observations that further hearings were necessary or that more evidence needed to be gathered. In the end, only about 77 of the 222 cases (35 percent) have been useful for this project. These 77 cases fall into 17 subcategories (see Table 5.2), with virtually all the cases having been generated by competing claims to money, property, land rights, or rent collection rights held in common by families that were branches (fang) of lineages or by the lineages (zuj themselves. This is true not only for litigation over adoption, disputes over wealth, common property, consignment, and accounting disputes but even in some instances for cases of forcible (or illicit) occupation, rent resistance, and boundary disputes.

Code, Culture, and Custom Three factors-written law, broad cultural norms, and local customs-were most frequently used to justify judicial decisions. These categories are analytically distinct but not necessarily antagonistic nor mutually exclusive. Thus when judges elected to respect local custom, they did not do so in preference to or in violation of explic-

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itly codified law or generally accepted Confucian norms. Instead custom was valid when it was not in breach of morality or codified law, or when code and culture were silent or ambiguous. In the same vein, magistrates sometimes issued decisions that were designed to further normative ends not specified in the Qing code. This does not imply an inherent contradiction between law and culture. The truth is, of course, that the former is largely derived from the latter. Thus magistrates did not pick and choose from among three rigidly de" fined and exclusive modes of reasoning out their decisions; in good Confucian fashion they probably conceived their task as an attempt to harmonize and reconcile the three perspectives. The Code One of the striking features of the Dan-Xin cases, both civil and criminal, is how infrequently court directives make explicit and specific reference to statutes (Iii) or substatutes (li) in the Qing code. In the civil cases, I located only four verdicts that quoted or referred to the code. Of these four citations, only two are used as a basis for settling the principal issue of the given case. The other two arise out peripheral questions. The first reference to a substatute I have found in the cases comes in the course of an r875-76 lawsuit (DX 21402) 3 by an adopted son seeking to gain a share of the portion of his deceased father's lineage property. The petitioner was opposed in his request by his father's widow who had been the father's second wife and naturally preferred to have the entire estate go to her son. In his decision awarding the plaintiff a onetime money payment equivalent to 30 percent of the estate's income from land rents for that year, the subprefect states, "I find that according to a substatute, an informally adopted son (yizi) should receive a share of [the estate's] cultivable fields." Here the court is probably referring to the third substatute under the statute governing the illegal establishment of an heir, which provides that even informally adopted sons should share in the estate along with the legal successor (No. 78-3; Jamieson 1921: 13-rs).• The first substatute notes that if, in the absence of a natural son, a male is adopted to be the legal successor and then after the adoption a natural son is born, the adopted son while no longer the legal successor for ritual purposes is still to receive an equal share of the estate. The third substatute makes no mention

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of an equal share, noting only that adopted sons were to receive a portion of the property. As indicated earlier, the petitioner received only a share, but not an equal share. The only other explicit mention of a statutory provision relevant to the original complaint comes in an 1877-78 dispute (DX 22703) over common or joint lineage property that was to be rented out to provide income to support lineage rituals. In this case a widow had accused her deceased husband's uncle of attempting to coerce her into turning over deeds to her husband's share of their lineage's joint sacrificial property (gonggong siye). The defendant countered saying that he brought suit several years earlier against a cousin for illegally disposing of his share of the joint property (and also for assaulting him). To frustrate the previous litigation, the documents outlining the disposition of the lineage's property had been given to the widow to be hidden. In the case under discussion here, the court found for the defendant saying that the widow had used the deeds to the sacrificial land as collateral for a loan: "I find that according to a substatute sacrificial property may not be mortgaged or sold." The court ordered the documents returned to the joint custody of the lineage's five branches as a whole with a notation on them that "sacrificial property may not be mortgaged or sold." The widow was not punished even though her behavior was certainly "wrong" (yuan). The relevant provision in the code was probably the fourth substatute under the statute dealing with fraudulent sale of land or houses (No. 93-4). This provision provides that fraudulent sale (daomai) of ritual property (sichan) be punished by at least three years penal servitude plus 100 blows with the heavy stick with a possible maximum sentence of military exile to a distant border region. Verdicts citing the code to decide issues peripheral to the main dispute are in an 1889-94 rent resistance lawsuit (DX 22221) and an 1881-84 illegal occupation case (DX 22419). In the first of these, there were numerous charges and countercharges not only of rent resistance but of concealing land ownership in order to avoid taxes. The case was complicated by Taiwan's multilevel system of land rights that was very similar to the one-field, two-lords system found elsewhere, especially in south and southeast China.s As this and many other cases show, the courts were quite willing at least to try to compel secondary tenants and actual cultivators to pay rent to the "large-rent" (dazu) landlords who in theory were the primary owners because they were responsible for paying the land tax. In this

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case one of the defendants, although a secondary tenant or "smallrent" (xiaozu) landlord, was revealed to have reclaimed some land on his own initiative. He had not, however, reported it for taxation, and the magistrate ordered the unreported land confiscated (chonggong). The relevant legal provision seems to have been a statute dealing with fraudulent evasion of the land tax (No. 90). While the statute calls for confiscation using the term ruguan, it also demands that the taxes evaded be paid and that the offender be punished with forty blows with the light stick up to a maximum of roo blows with the heavy stick depending on the amount of land kept off the tax rolls. In the case at hand, there was no mention of any payment of tax nor of corporal punishment. The second of the cases, the illegal occupation lawsuit, finds the court relying on the same substatute although the issue-disputed ownership of a parcel of land-and the circumstances are different. In this case, a petitioner accused three brothers of encroaching on and taking possession of part of his land. The petitioner admitted that adjoining land had been sold by his father to the father of the defendants. The court decided in favor of the defendants based on descriptions of the boundaries given in what was determined to be an authentic sale contract submitted in evidence by the defendants. The petitioner had submitted his own land deed that, unfortunately for him, had no tax stamps. The land was ordered "confiscated according to substatute" with its rental income assigned to defray student expenses at the local school, the Mingzhi Academy. A subsequent hearing and court decision concluded that the plaintiff had actually forged the deed and "fundamentally according to substatute should be investigated for making false representations." Because the plaintiff had, however, "bowed his head in submission to the judgment/' the court was lenient and merely "reprimanded" him. It is not entirely clear what provision of the code the court felt was relevant although the "false accusation" (wugao) statute and its numerous substatutes would seem to be the most likely (Nos. 336 and 336-r to 336-26). Apart from the four cases discussed above, an r882-93 dispute over wealth (DX 22609), inwhich a widow and her adopted son struggled in court for over a decade to obtain what they claimed was their rightful share of lineage property, provides an interesting example of a petitioner suggesting to the court a substatute relevant to the issue. The complainants during the course of the litigation

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filed a prompting petition that contained a passage attempting to justify their suit by citing a purported substatute to the code that supposedly legitimated an eldest grandson disputing with relatives to obtain his share of an estate. Because there was no such provision in the code, the magistrate became suspicious that the petitioners had hired a pettifogger, which they had, in fact, done. Why do we find so few references to explicit law in these civil cases? The question is particularly interesting when we remember that according to a statute of the Qing code magistrates who failed to cite the relevant statute or substatute when passing judgment were liable to punishment (No. 415). Officials judging cases "all must in every instance quote the statute or substatute." Several lines of argument suggest themselves. First, litigation was frequently-probably most often-resolved out of court. For several reasons, such resolutions as mediation and compromise, which are discussed later in this chapter, were deemed preferable to a strictly legal-code-based approach. One reason was the culturally instilled notion that resort to the courts was a sign of failure of, perhaps, social morality, and certainly of management of interpersonal relationships. Perhaps more important from the point of view of the courts was that civil litigation was often incredibly complex and confusing with cases being continually reopened and frequently dragging on for years or even decades. These cases clogged the courts and could become a mark of a local administrator's failure to carry out his duties property with all the implications such a blot on one's personnel record had for retention in office, let alone promotion. It was also true that property disputes in particular could involve wealthy and locally prominent men and lineages who might be sufficiently well-connected and influential to cause problems for a judge rendering unfavorable verdicts. There was every incentive for courts to remove themselves as much as possible from such dangerous situations. It may have been that the logic of bureaucratic responsibility led to a cavalier approach to code citation in verdicts. Magistrates were concerned not so much that parties in litigation were fully appraised of the legal basis of judgment but rather that superiors higher up the chain of administrative command would be aware of the legal competence of lower-level judges. Thus, in this interpretation, full citations would have appeared in reports sent up to prefectural and

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higher administrative levels but not necessarily in court decisions intended for the parties in a case. Of course, county-level jurisdictions were normally the court of last resort in civil cases, and so presumably there would be few occasions for providing detailed legal justifications for judgments to superior administrative bodies. A related line of argument suggests that the paucity of code references is misleading because the code figured implicitly in many of the cases and thus played a more important role than this discussion suggests. Because, as seems likely, there were few or no cases in which the magistrate's ruling willfully and directly contradicted the code, therefore there must have been a kind of "implicit" reference to the code in many decisions. It is undeniable that statutes and substatutes functioned as a foundation for the construction of verdicts without the necessity of explicit citation. A decision on any doubtful legal point implicitly relied on an established body of law and precedents that provided a contextual legal framework within which specific questions could be addressed. It seems unwarranted, however, to posit "implicit" citation, especially given the positive duty noted above to cite the relevant law explicitly. Moreover, because there was no authorized legal profession, often parties in litigation were not well versed in the law and thus ·unlikely to request a formal and exact code-based justification for a decision. Legal systems that allow a two- or three-sided debate involving legal specialists representing both parties as well as the judge generate a greater demand for legal specificity than systems (such as the Chinese) in which only the judge is legally sophisticated. Finally, and perhaps more to the point in this context, in many instances codified law was simply not very useful. In an environment so ethnically complex, with such a diversity of social arrangements, customs, and practices, and with such a convoluted land tenure system, legal rules originating from and relevant to particular circumstances often far removed in time and space from the nineteenth-century Taiwan reality were very difficult to apply.

Culture Beyond explicit law as a basis for judgment, courts sometimes pointed to cultural norms or generally accepted moral principles as a basis for verdicts. There are also several instances of decisions that

Mark A. Allee

were crafted in such a way as to further some socially or culturally desirable end. Such normative foundations for judgments very often directly supported the interests of the state. The imperial state threw a good deal of its weight behind the accepted beliefs and practices of the traditional family system in order to reinforce the legitimacy of both institutions-the family and the familial or patriarchal state. In addition, in an agrarian society where farming was idealized as the "basic occupation," the morality of land transactions and land disputes would be a concern of courts. Thus marriage, the family, and property, even though considered "minor" matters from the standpoint of the legal system, were infused with powerful and pervasive values that were of vital interest to the state. The analysis here distinguishes between cultural norms and the codified laws that formally and systematically articulated some of those basic cultural beliefs. Phrased in this way, the distinction obviously becomes somewhat artificial, and yet code provisions were only a very limited subset of the vastly larger universe of Chinese cultural principles, doctrines, and canons. It seems useful in trying to fathom judicial decision making to examine the process by which some magistrates chose to draw upon the larger superset of culture when the explicit legal precepts of the code were, for whatever reason, deemed unsuitable, inadequate, or inappropriate. Sometimes courts adduced moral justification in upholding some aspect of filial piety. In the adoption case (DX 21402) already cited, both parties were rebuked for using terminology that confused and degraded the status of each within the family. The petitioner was admonished for calling his father's concubine (qie) and second wife a "slave" (nubi) when she should properly have been described as his "concubine mother" (shumu). The woman was chided for using the contemptuous term mingzi to describe the adopted son when yi'nan would have been the more seemly expression. 6 Another case (DX 22403) almost certainly was decided because of the moral laxity of the defendant. This long (1868-84) case involved a widow, whom the court termed a "legitimate second wife" (jitang), accusing her deceased husband's son by his first wife of conniving with tenants to misappropriate land rent that a previous court had determined was to provide for her old age. In its final opinion the court noted that the defendant had been expelled by his father from the home because he "did not comply with the norms of kinship." A somewhat similar situation occurred in an 1884-87 case (DX 22706)

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involving charges of mismanagement of joint or common lineage property. When a widow joined the suit charging her own son with withholding income that should have gone to her and her other sons, the magistrate was able to bring about a mediated settlement by observing that the defendant should be punished for unrighteous behavior toward his mother. As mentioned earlier, management of lineage assets provided fertile ground for producing civil litigation. Egregious mismanagement or outright embezzlement could propel the wrongdoing into the realm of ritual offense against the ancestors. In an 1887-88 case (DX 22704) several lineage relatives joined in bringing charges against a kinsman who had been manager of their joint property for over 40 years. The defendant, it was alleged, had mismanaged the estate's income, had broken the leases of tenants in order to sell the property, and after taking out a personal loan from another tenant, had used joint property income to pay interest on the loan. The court's investigation of income and expenditures revealed that rental income averaged about twice the lineage's expenses over the 40-year tenure of the manager but the surplus had not been used to construct a sacrificial hall nor had it been accumulated for the ultimate purchase of additional land to increase the size of the joint property. The manager had merely embezzled it (qinshi). The court described his behavior as "cheating his ancestors and disdaining his lineage." Unsatisfied with this rebuke, the decision went on caustically to say that the defendant, a military tribute student (wu gongsbeng), "calls himself a scholar; however, he considers only himself while disregarding others and is concerned only for profit while ignoring righteousness." The court contented itself with a public tongue-lashing. In view of the defendant's advanced age of seventy sui, the subprefect was content to transfer administration of the joint property to the petitioners. Indeed, in view of the court's harsh language the outcome was remarkably favorable to the defendant since the new managers were ordered to provide a stipend for the old man until his demise and then to supply his family with a sum for burial expenses. Respect for deceased ancestors was another important aspect of the dominant belief system. The state attempted through the law to solidify this value. An r878-8o boundary dispute (DX 22507) included the very serious allegation of grave destruction. The case was resolved in the petitioner's favor with the defendant ordered to pay r,ooo cash for repairs. The defendant, however, at some point in the

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past had sited two of his own family graves on the land. These the court ordered left undisturbed. A nearly identical set of circumstances, minus the grave destruction, in another boundary dispute case from r887-90 saw a different magistrate deliver a similar order. The encroaching party had placed two graves on land belonging to the petitioner, but the latter was ordered to leave them undisturbed. From the point of view of the Confucian elite, Taiwanese social practices frequently tended toward the unorthodox/ The courts sometimes attempted to force the reproduction of social models more familiar to the elites or to ensure that practices antithetical to the accepted norms of China or at least south China would not develop. We see in yet another legal struggle over inherited wealth (DX 226or) one of the techniques utilized by the legal system specifically to promote formation of the familiar southeast China type of corporate lineage. The subprefect's court directive in this r847 case shows how the system supported orthodox descent group ritual practices and lineage longevity. The case involved the descendants of a lineage founder who had had five sons. The eldest and the fourth sons were adopted. The second, third, and fifth sons were his natural children. A woman who seems to have been the founder's legal wife had raised the fourth son. Sons three and five were children of a concubine, who along with her two sons was already deceased at the time of the lawsuit. After his death, the founder's estate had, in accordance with an estate division agreement (jiushu), been divided into seven equal shares (i.e., one for each son and the two women) except for a certain amount that was to be put aside to provide for funerary and sacrificial purposes after the founder's death. The subsequent deaths of the concubine and her sons led the survivors to litigation over the disposition of the shares of the estate that previously had gone to the three now deceased heirs. The court directive deciding the case ordered that the shares were to revert to the trust established for financing sacrifices to the founder. However, in the event that the founder's oldest natural son fathered children himself, his second and third sons (should they be born) were to inherit the shares of the founder's estate that had originally been allotted to deceased sons three and five. The hypothetical eldest son (i.e., the future first grandson of the founder by his eldest natural son) would, of course, get his father's share eventually. This outline suggests that the subprefect seems to have had at

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least two considerations in mind. First, rather than dividing the money equally among the survivors or giving it all to the surviving natural son at the expense of the adopted sons and widow, the subprefect decided that the three shares in dispute were to be used to support the usual sacrifices and other ritual observances for the deceased founder. In other words, the court's decision attempted to secure the future for this particular descent group of an ancestral estate, one of the characteristic attributes of a lineage. Second, at the same time, the court edict explicitly encouraged the sole surviving natural son to father children-thus stimulating the continued survival of the lineage through the natural son, rather than his adopted siblings. A regard for encouraging continued lineage descent through natural rather than other kin may be seen in an 1879 case (DX 226o6), another inheritance dispute. Two stepsons who continued to use or resumed their birth surname went to court over the estate of their stepfather (fifu). 8 The court found that because there were other heirs who shared the deceased's surname, the litigants were to return part of the estate to be placed in trust for these court-designated heirs until they became adults. The final example I will cite of a court's attention to clarification of inheritance patterns and joint property management within lineages comes from a title deposit loan case (DX 23411) in r882-83. Apart from other complications, it was revealed that one of the four lineage branches consisted only of a childless widow. Apart from redeeming the land deeds, the defendant who was the manager of lineage property was ordered to establish his own son as heir to the widow's branch and to take over management of her property until the new heir succeeded to her share of the estate. If we shift our focus slightly from specific cultural values such as filial piety or lineage continuity, it seems that a concern for transmitting or reproducing culture in a more immediate sense motivated the courts at times. Given northern Taiwan's relatively recent emergence from frontier status and its slow economic growth until tea and camphor became important export crops in the last third of the nineteenth century, the Zhuqian-Xinzhu region was also underdeveloped in an educational sense. A frequent by-product of intractable land disputes or extremely offensive but perhaps not criminal behavior were verdicts that ordered land confiscated and turned over to the local school, the Mingzhi Academy, to defray expenses. Given

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the handicaps school directors might experience in managing the land themselves, an alternative was to leave the title (and tax liability) in the hands of the original owner but to direct land rents to be remitted to the academy. We have already seen one such outcome in the illegal occupation case (DX 22419) discussed earlier. An 187983 boundary dispute case (DX 22506) that will be discussed in more detail below saw two different parcels of land where ownership was ambiguous assigned to the school. A variation on this theme appears in the r882-93 dispute over wealth (DX 22609) already mentioned. The petitioner's claim was dubious according to witnesses but the court attempted to settle the dispute by ordering the defendants to give roo dollars to provide support for the widowed petitioner in her old age. Even this limited victory for her was diminished, however, when the magistrate added the proviso that she was to receive only So dollars of the award. The remaining 20 dollars was to be donated to the Mingzhi Academy to help defray student expenses. Other passing references to this practice may be found in the civil cases. For example, in an r884-89 boundary dispute a tribute student (gongsheng) and others associated with the Mingzhi Academy charged that both plaintiff and defendant had previously been ordered by the court to divert part of their aborigine rent (fanzu, rent paid to aborigine landlords by Han settlers) to the school but had not complied with the order. Cultural norms were important. The values of filial piety, family and lineage continuity and solidarity, and the clarification of relationships within the (extended) family were significant for the maintenance of the legitimacy of the imperial Chinese state itself. Moreover, as we are coming to understand, the inculcation of these and other values necessitated a system of schools and academies that was vital not only to the state but to the gentry elite whose privileged status was continually reinforced and reproduced through their domination of education (Elman 1991). At some point norms of the culture as a whole shade off into local values, practices, and usagesin other words, custom. The courts necessarily paid heed to the idiosyncrasies of the locality. It is to this factor I shall now tum. Custom

A consideration of custom immediately raises the question of when custom acquires the force of law. The simplest answer is that

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custom becomes law when the courts will enforce it. Courts were most willing to do so when it came to land tenure systems and commercial practices that, although derived from similar modes in nearby regions of the Chinese mainland that supplied Taiwan with most of its immigrant population, had developed their own peculiarities on the island. Of primary significance here both because of its intrinsic importance and because of its ubiquity in the Dan-Xin cases is the multilayered system of land rights. This three-tier system consisted of large-rent landlords, small-rent tenants who also lived partly or even mainly from land rents, and the tenant-actual cultivators. The Dan-Xin archive categories of rent resistance, boundary disputes, conditional sale, title deposit, water rights and others are filled with disputes generated by the complexities of the land tenure system. Two of the archive categories involve terminology that has not always been well-explained in the literature. Conditional sale (dianmai) and title deposit (taijie) in the cases are referred to as simply dian and tai. These terms have been indiscriminately translated as mortgage, pledge, or even hypothecation.· In fact, dian was the sale of land or of part of the rights to land with the stipulation that the seller had the right to repurchase if certain conditions in the dian contract were met. Dian contracts entailed an actual change of usufruct, possession, and/or occupation of the land from the seller to the buyer during the term of the contract. Here it is also important to recognize that the discussion of local custom as a basis for court decision is relevant not so much to the concept of conditional sale as to the multitiered system of land rights that were the object of these sales. Conditional sale itself was the subject of a body of legal provisions in the Qing code that, as Xue Yunsheng noted, traced its fundamental statute back to the law code of the Ming dynasty (Nos. 95 and 95-r to 95-II). The "conditional" nature of such dian transactions, their complexity, and the residual right to redeem land transferred under dian contracts may be illustrated by an r879-80 case (DX 23206). The complaint was filed by a licentiate (shengyuan) named Guo who had conditionally sold a parcel of paddy land to a man named Peng, who later died. Guo charged that the deceased buyer's son, who also happened to be a shengyuan, refused to allow Guo to redeem the land. Guo's right to redeem the land was upheld, but he in turn became the target of a complaint filed by a Xinzhu city resident named

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Wang. Wang claimed that in fact the land legally belonged to him because even before the Guo-Peng transaction, he (Wang) had conditionally sold it to Guo's older brother, also deceased at the time of the litigation. The court decided that the claim to the land asserted by Wang, who was termed the "original holder" (shangshout was prior to Guo's and ordered the latter to agree to redemption. Apparently to balance the scales somewhat or to assuage Guo's disappointment at seeing his success in the litigation against Peng brought to naught, Wang was ordered to pay for a wine-drinking party for Guo. In contrast to dian, title deposit (tai) signified not sale but loan. It did not involve the passage from one person or group to another of rights to land use, possession, or occupation. What did change hands under the terms of a tai contract were money loans in return for the title deed or other documents signifying land or rental rights ownership. 9 Such documents thus served to secure the loan. Judging from the cases, in the event of failure to repay interest or principal it does not seem to have been possible to take possession of land by virtue of holding the title deeds to it. In cases of litigation over title deposit loans, the local court was willing only to compel (to the degree it could) borrowers to repay and not to interpret failure to repay as a default leading to forfeiture of the land itself. In local courts' handling of title deposit loan contracts, we may discern an exception to the more common phenomenon which, as discussed below, found magistrates respecting and enforcing contracts in a very literal manner. Documentary evidence was nearly all-important in land disputes. Time after time in the absence of land documents subprefects and magistrates refused to allow cases to go forward or ordered the dispute mediated by people familiar with both parties and the circumstances. A wide variety of proofs of ownership or tenure appear in evidence in the cases. Reclamation deeds, conditional and irrevocable (juemai) sale contracts, rental contracts for both large and small rent, other rental agreements such as for aborigine rent, military settlement rent, or guardpost rent, survey receipts, estate division agreements, rent and tax receipts, loan agreements, and maps were called for and submitted regularly.'" Verdicts with careful and detailed summaries of information found in the documents show the importance attached to them by courts. Several illustrations of courts relying on documentary evidence to reach decisions may be

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found in the cases already cited. The previously discussed 1887-88 case (DX 22704) involving joint lineage property was decided on a careful reading of land deeds, land rent contracts, and lineage account books. Courts were, of course, very aware and very wary of forged or altered documents. As we have already seen in the illegal occupation case (DX 22419) that resulted in confiscation of the land, one party in the case was threatened with criminal prosecution for submitting a fake deed. Close scrutiny of documentation exposed a number of bogus claims. In a boundary dispute (DX 22514) that was before the Xinzhu court from 1882 to 1888, a group of villagers attempted to buttress their claim to some pasture land by submitting a reclamation deed from the Qianlong period (1736-96). The magistrate dismissed the deed as a forgery. Although the document was supposedly over a century old, "the inking is fresh and clear; the seal has all its lines. It is a fake." It seems that in most cases courts bent over backwards to enforce the literal language of contracts and other documents when deemed authentic. However, not even valid documents solved all problems. When boundary descriptions were unclear or outdated or when the language was obscure or ambiguous, local custom prevailed. In an 1888-89 title deposit case (DX 23306) a female petitioner complained that she loaned money to the defendant with land deeds as security and tenant rent payments as interest to be paid to her. The plaintiff charged that the defendant and tenant delayed interest payments and were trying to avoid ever paying back the principal. The title deposit contract was offered as evidence. The defendants employed a common tactic by trying to blacken the plaintiff's reputation, saying she ran a brothel and gambling den and somehow got the deed illicitly from the defendant's now deceased brother. The court found for the plaintiff but also noted that the land in question had been flooded and then reclaimed by its tenant. According to "local custom" (suli), the plaintiff (who had in effect become the landlord) was required to wait for three years after the land had been reclaimed before being entitled to collect rent. Even in disputes involving adoption and inheritance, where courts were often concerned with enforcing orthodox norms, a valid estate division agreement (fiushu) drawn up according to local custom was held to be authoritative in most cases. Okamatsu's description serves to give the flavor of the process. When, after the death of a

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family head, division of family property became necessary, the mechanics of estate division involved making an inventory of the estate and calculating the value of each piece of movable property or real estate. After gathering to make offerings to the deceased, the heirs then drew lots (jiu) to decide which shares of the property would go to each. "The farms and houses are marked or numbered previously, and the successors draw lots one by one to settle each one's portion .... The proper way was to write the designation of the property on pieces of white paper and throw these into water, letting each successor pick out one." Division by drawing lots was termed jiufen. Once the division was effected, a "lot agreement" (jiushu) or estate division agreement was drawn up by the heirs with one copy going to each collateral line. These agreements described the property acquired by each collateral line and also the arrangements decided upon for managing common property (Okamatsu 1971 [1902]: appendix, xxiv-xxv). Land or other property explicitly designated as common estate property (gongye) could not be sold. The issue arose in the context of an 1888-89 rent resistance case (DX 22213). A sale of large-rent rights was voided by the court because the land in question was not classified by the jiushu as private land belonging to one branch. This discussion of Taiwanese custom in the division of common lineage property is not intended to suggest that such practices contravened code law or orthodox norms. The point is rather that magistrates hearing Dan-Xin cases deferred to the distinctive ritual formalities and documentary evidence that accompanied such practices in the specific Taiwan context. Thus the "estate division agreement" (jiushu) customary in this locality was considered authoritative while other documents alleged to provide proof of lineage property division were given less weight. To outsiders such as subprefects and magistrates, the oddity or complexity of local custom prompted them to search for methods to minimize or eliminate the unavoidable confusion attendant to reaching a verdict. What can we discern from the Dan-Xin cases?

Tactical Approaches to a Settlement Judges generally preferred that civil cases be resolved out of court. This might entail refusal to accept a petition for technical reasons such as a failure to follow the procedural rules involving the

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petition form or to observe the time limits during which huhun tiantu cases could be filed. Sometimes a petition was refused because it was unsuitable for the particular dispute in question to be aired in public. As one magistrate explained concerning a property dispute (DX 22609 ), family fights once aired for public consumption become "injurious to tranquility" (shang heqi). Another rationale advanced when a woman complained that a slave girl had supplanted her in her husband's affection was that it was "inappropriate to get involved in litigation over trivial family matters" (DX 21203). Refusal to accept a valid petition was strictly speaking not legally possible. Once a dispute had been forced on the court the next preferred option was mediation. There were several kinds of individuals who were potential mediators. Ideally, especially when litigation involved relatives, other kinsmen could be persuaded or coerced into serving in this role. Endorsements on petitions as well as court directives throughout the case files contain suggestions or commands to seek the intervention of kinsmen who in this capacity were called gongqin. If mediation by family members was not possible, various categories of locally prominent individuals could be called upon. In this area there was a hierarchy of subcounty leaders stretching from overseers (zongli), who had a number of responsibilities associated with maintaining order in market towns (fie) including serving as intermediaries in affairs involving different farm villages (zhuang), down to village heads and assistants (zhuangzheng, zhuangfu), or even the heads of a number of other organizations such as guardposts (ai) or the baojia. 11 Overseers were particularly active in mediating boundary and other disputes that involved residents of villages adjacent to one another. When their mediation failed, yamen runners were sometimes called upon to bring the parties to a resolution. Runners under orders from the magistrate frequently served as mediators in lawsuits between urban residents as well. An ultimate form of mediator was the subprefect or magistrate himself. As noted earlier, in r883 a boundary dispute (DX 22506) was ended by a court-imposed compromise. The dispute had hinged on language in deeds held by the complainant and defendant that indicated a small stream as the boundary between their fields. The dispute arose because there were two such rivulets, and each party naturally claimed the particular stream as boundary that would maximize his landholding. The magistrate devised a solution to the

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liking of neither party but also to the advantage of neither. The land between the streams was assigned to the Mingzhi Academy, making both parties losers, or at least giving neither party an unconditional victory. Such a result was desirable because it had the effect of discouraging litigation by making it costly for both parties, a congruous outcome relative to the state's Confucian ideology that favored a theoretically harmonious solution such as private mediation rather than litigation. Active and conscientious judges not only scrutinized the documents and weighed the testimony of litigants and witnesses but literally took the lay of the land. The boundary dispute case (DX 225 14) in which the magistrate detected a forged deed also saw him visit the area in dispute and question a number of those involved on the spot. The resulting decision incorporated a description of the redefined boundary as determined by the magistrate along with an order to erect a stone boundary marker on a spot he personally designated. Should mediation be rejected or compromise not be possible, there was no recourse for the courts but to carry out the legal process to a conclusion. They did so by applying the criteria described earlier interpreted in the light of reason. Illustrative is a boundary dispute case (DX 22513, I and II) that was initiated in r884 and finally concluded in 1893. A preliminary verdict found in favor of the defendant. The petitioner, it was conceded, had originally owned the land, as was confirmed during a previous lawsuit. In the many years since then, however, the plaintiff had "lost control" (shiguan) of the land probably because of flooding. Subsequently, one of the defendants and his family had "opened [the land] and had it rated for taxation" (kaibi chengtian). Thus, simply to award the decision to the complainant and to return the land to him would "not be in accordance with reason" (buhe qingli). The solution was for the original deed holder (the complainant) to regain the land only after making a payment to the defendant in an amount determined by mediators. This case also demonstrated the limits of an appeal to reason. The complainant successfully reopened the case after petitioning both the prefect and the provincial governor. Ultimately another magistrate, in a decision that may have been unreasonable and unfair but conformed with both the letter of the law and the realities of political influence, awarded the land to the complainant with no compensation owed to the defendant who had reopened the land.

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The latter, in fact, was ordered to pay recompense for illegally appropriating the plaintiff's land rights.

Conclusion Is it valid to speak of "civil" and "criminal" as distinct categories of law before the introduction of Western legal concepts? If civil law existed, what made it distinctive? Was it the existence of discrete statutes and even entire sections of the code dealing with "family (or household) law" (hulii)? If there was civil litigation, how was it different from criminal proceedings? This chapter speaks most directly to the last question. There were, of course, divergences in the handling of civil and criminal cases. There were the well-known limitations on when huhun tiantu cases could be filed and on the ability to appeal verdicts. These are on the whole minor differences. In this sense, Shiga Shiiz6 was probably correct in concluding that for the entire dynastic period "no institutional distinction was made between civil and criminal judicial procedure, even under the Ch'ing" (Shiga 1974: 2). However, many aspects of civil litigation, including formulation of verdicts, as observed in the case records from this local court point to significant differences in practice between civil and criminal procedures. Even if legal theory justifying the distinctiveness of civil law, civil cases, and civil procedure was underdeveloped or even nonexistent, it had become apparent that strictly criminal approaches were intrinsically unsuitable to the resolution of disputes generated from the clash of interests in which neither party had blatantly or intentionally violated basic ethical norms. Therefore, because the stringent application of penal techniques to adjudication produced unacceptably rigid and unjust outcomes, recognizable and distinct "civil" law and "civil" procedure inevitably had begun to develop in late imperial China.

CHAPTER SIX

Philip C. C. Huang

Codified Law and Magisterial Adjudication in the Qing

R

misconception that the formal court system of the Qing dealt little with civil matters 1 is the notion that when magistrates did deal with civil matters, they acted more as mediators than as judges. By that view of things, magistrates did not render unequivocal rulings by law for one or the other party; instead, they worked to produce compromises between the disputants (Cohen 1967; Hsiao 1979). A corollary is that, in civil matters at least, there was really no "law" or "rights" to speak of. For some, the supposed mediatory nature of Chinese law might even be expanded to an equation of Chinese (or even "East Asian") "culture" or "national character" with the search for "harmony," rather than confrontation. Even Shiga Shuzo, who has made great contributions to the study of Chinese legal principles, subscribes to the prevailing image of the magistrate's role in civil cases as chiefly that of a mediator. In criminal cases, he points out, magistrates had to follow the written code very strictly. In civil matters, by contrast, legal stipulations were so sparse that magistrates relied mainly on moral principles (tianli, or li J and human feeling (renqing, or qing), which were to the laws of the state (guofa, or fa) as "the ocean was to an iceberg" (Shiga, 1981: 75-76, 94). In hearing civil cases, magistrates did not act "like an umpire officiating a game" according to given rules, but engaged rather in "didactic conciliation," 2 much as parents might handle disputes among children (ibid., p. 96, 76). Their adjudication, therefore, "was strongly colored by mediation" (ibid., p. 76). For evidence, Shiga cites legal handbooks and model magisterial judgments. ELATED To THE

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I will demonstrate from a three-county sample of 628 civil cases (see Tables 6.A to 6.E3, which appear at the end of this chapter, for a complete breakdown of the 628 cases by county, decade, category, and outcome) that this received wisdom is mistaken. Formal court sessions actually generally produced unequivocal rulings for one or the other party. Seldom did the courts act as mediators to produce compromise settlements among the disputing parties. Rather, they acted as judges upholding the written code. The subject of this article is the content of those parts of the code most frequently used in adjudicating the four major types of civil cases (land, debt, marriage, and inheritance) and just how the magistrates used them. Code and practice, it will be seen, help to illuminate each other. Civil case records spotlight passages of the code that have been largely overlooked by past scholarship, and bring into focus implicit but unmistakable principles contained in the code. Seen together, codified law and magisterial adjudication show striking correspondence and consistency. That fact, in turn, carries some fundamental implications for our view of Qing law and its role in society.

The Quantitative Evidence I have delineated elsewhere (P. Huang 1993b) the three different stages of a civil lawsuit: the initial stage involving the filing of the plaint and the first reactions of the magistrate, up to the issuance of a summons, the middle stage between the summons and the formal court session, and the final stage of the court session itself. Altogether, only just over one-third (221 of 628) of the cases in my sample reached the final stage of a court session. The majority ended before reaching the final stage (Tables 6.Cr-6.C3). The cases that did not reach a formal court session were generally settled informally outside of court: after filing the plaint, one or both litigants might have a change of heart and settle matters themselves, or community mediators might be galvanized to work out a settlement. The formal system exercised substantial influence on those informal settlements, most especially through the magistrates' comments on the plaint(s) and counterplaint(s). I have analyzed in detail the processes of resolution and settlement during the middle stage of a lawsuit, in what I term "the third realm of the Qing justice system." Here it suffices to note that, while the preliminary expressions of magisterial opinion shaped the outcomes of

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informal settlements, those comments on the plaints and counterplaints should not be confused with the formal judgments of the court that followed upon a court session. Of the 22 I cases in my sample that reached a formal court session and judgment, no, or 76.9 percent, resulted in unequivocal rulings for one or the other litigating party: II2 (50.7 percent) for the plaintiff, and 58 (26.2 percent) for the defendant. In Baxian, of the 98 cases heard by the court, the magistrates found unequivocally for the plaintiff in 47 instances, and for the defendant, in 22. In Baodi, of 45 cases, the court ruled for the plaintiff in 22 instances and, for the defendant, in I6. And in Danshui-Xinzhu, of 78 cases, the court ruled for the plaintiff in 44 and for the defendant in I9 (Tables 6.EI6.E3). I have categorized these as "one-winner" cases. Even in the 34 "no-winner" cases, 23 were adjudicated in accordance with statutes and substatutes of the code. In only I I of the total of 22I cases heard by the courts did the judge act as an agent of binding arbitration, to work out compromises between the conflicting claims and interests of the litigants, usually on the basis of extralegal principles. That amounts to just 5 percent of all cases heard by the court (Tables 6.EI-6.E3). These numbers, of course, say nothing about the kinds of legal principles and statutes the magistrates applied in their adjudication. For that, we must turn to a close-up study of each of the cases in the sample. What follows is an analysis of the 22I judgments in conjunction with the relevant statutes and substatutes of the code.

Land Cases The great majority of land cases fall under just four statutes of the Qing code, all of them related to property rights in land (and houses). As Table 6.I shows, Statute 93/ "Fraudulently selling [another's] land or house" (daomai tianzhai), accounts for 3I of the 74 one-winner land cases; No. 3I2, "Using might to forcibly control or tie up other people" (weili zhifu ren ), accounts for I4; No. 9 5, "Conditional sales or purchase of land or houses" (dianmai tianzhai ), 6; and No. I49, "Charging forbidden interest rates" (weijin quli ), another 6. In addition, as with all categories of cases, a substantial number of the plaintiffs' charges were found by the court to be false accusations: I4 of 7 4 in the one-winner land cases. In all, these five

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TABLE6.I

One-Winner Land Cases by Relevant Statutes No. 93 No. 312 No.95 No. 149 No. 336 Other Extralegal TOTAL

Baxian

Baodi

Dan-Xin

TOTAL

10 0 3 3 5 1 1 23

3 0 0 1 2 1 0 7

18 14 3 2 7 0 0 44

31 14 6 6 14 2 1 74

groups of cases account for fully yr of the 74 cases, or 95-9 percent (the balance to be discussed below). In all four of the frequently used statutes, the Qing code's approach was to begin by prohibiting violations of what it considered legal and proper, spelling out specific grades of punishment for specific violations. The positive principle, by contrast, was stated only in passing, or buried in inconspicuous parts of the statute, or not stated explicitly at alL But there can be no mistaking the intended principle, and the substatutes, which usually grew out of memorials from officials dealing with actual cases and problems, sometimes provide concrete, if sparse, illustrations of its application. "Fraudulently Selling Another's Land or House" (Statute 93) Statute 93 begins by stipulating that those who fraudulently sell, exchange, pretend ownership to, or encroach upon or forcibly occupy another's land or house, or fake prices or ownership deeds, would be punished as follows: for one mu (r mu = o.r66 acres) or less of land or one room's width or less of house, 50 lashes with the light bamboo, to increase by one grade every five mu of land and every three rooms' width of house, up to a maximum of 8o blows with the heavy stick and two years of imprisonment. To be sure, the code did not engage in an abstracted discussion of "rights over things" or of "ownership," or "immovables" and "movables," nor spell out in detail great varieties of ownerships and conditions, with specific stipulations on each, as a modern civil code in the European continental tradition (as opposed to the AngloAmerican common law tradition) might. Yet there can be no rnis-

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taking the obvious though unspoken positive principle intended: namely, that the law would protect against violations of the legitimate ownership of land or house. That principle was what became the crucial operative guide in the actual workings of the legal system. The 3 I one-winner land cases that came under this statute all involved one or another form of encroachment upon another's property, in which one or the other party sought the court's aid to protect an ownership "right." Thus, in Baxian in 1767, for example, Tao Yuheng filed a complaint that Mrs. Jin was cutting down the pine trees on the land her husband (now deceased) had sold to him twelve years earlier. The magistrate, on verifying the sale document, ruled simply that the trees belonged to Tao and not to Mrs. Jin (Baxian 6 : I : 7 I I 1 l7 67. I 2 [1- I]). 4 In Baodi in I884, similarly, Tian Younian complained that his neighbor Tian Fulu and son Yongheng across the road had piled dirt in front of their house onto the road, causing traffic to go through Younian's fields. The magistrate, on verifying the facts, ordered Fulu and Yongheng to remove their dirt from the road (Baodi IOS, I884.2.20 [l-8]). 5 In Danshui in I87o Xu Tianding complained that a Mrs. Xu, nee Chen, of his lineage, was trying to lease a piece of the Xu lineage land to a new tenant. Mrs. Xu's segment of the lineage, it turns out, had had charge of the lineage land earlier, but, on account of poverty, had pledged that land in conditional sale to another. It was Xu Tianding's segment of the lineage that had then redeemed the land, took charge of it, and leased it to a tenant. The court found for the plaintiff, ruling that the land should continue to be leased to the old tenant, not the new one desired by Mrs. Xu (Dan-Xin 22405, I870.3.9 [l-42]). 6 . The scope of Statute 93 was extended by a substatute (No. 93-4) forbidding descendants from fraudulently selling ancestral burial or charitable land. Once again, the approach of the Qing code was to stipulate different grades of punishment for different degrees of violation, depending on the amount of land involved. The unstated intention of the code was clearly to help protect the integrity of lineage property. In Baxian in 1769, for example, Tian Zishan and his brothers filed a plaint stating that Tian Zihua, the son of their patern.al uncle, had cut down a fir tree on their lineage's ancestral gravesite. The court ordered Zihua to return the tree (Ba:xian 6 : I :

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720, 1769.II [l-4L cf. Baodi ro2, r86r.2.27 [1-2]; Dan-Xin 22703, r8n.7.3 [l-ro9]). Our sample contains three cases of this sort. As the above examples show, the actual application of the statute to civil disputes seldom involved physical punishment. While the threat of physical punishment was always there, it was rarely used for suits involving these "minor matters." In fact, as will be seen below, the local courts were often surprisingly lenient in this respect, considering the stipulations of the code. Unlike a modern civil code in the European continental tradition, the Qing code stuck to an approach of implying by negative example, or at most stating very simply, only the broadest intent of the principle. The rest was left up to a kind of common-sense judgment of what was right and wrong, under the guidance of the principle. While some might find this highly imprecise, the approach must not be mistaken for an alegal one of what Max Weber would have called Kadi justice, subject only to the arbitrary whim of the ruler (Weber 1954). The underlying principle that law would protect legitimate ownership rights was in fact clear-cut and consistent, not easily violated by magisterial whim.

"Using Might to Forcibly Control or Tie Up Other People" (Statute 312) The original intent of Statute 312, it would seem, was to forbid abuse of inferiors by the powerful and to reserve the power of punishment for the state. The statute begins by forbidding the powerful from "private family" (sijia) use of punishment or incarceration, and stipulates different grades of punishment for different degrees of such private coercion. In 1727 a substatute (No.3 r2-3) extended this provision specifically to apply to gentry-landlords vis-a-vis their tenants. Then, almost as an afterthought, the substatute stipulated also that "evil and truculent" tenants who were delinquent in rent payments would be punished (by 8o blows with the heavy stick), and their owed rent paid to the landlord. This was the code's only reference to rent payments and tenant obligations to landlords. Considering the central importance of landlord-tenant relations to the entire agrarian socioeconomic order, the code might seem surprisingly perfunctory on the issue. Yet, once again, there can be no mistaking the obvious principle: the law would uphold the landlord's right to collect rents, and enforce the

Philip C. C. Huang

tenant's obligation to pay. Whatever the original intent of the statute, there can be no question that the principle that rents must be paid became the crucial one of the statute in operation. In Danshui in I868, for example, Mrs. Guo filed a plaint charging that her tenants Wu Congqing et al. would not pay rent owed her on eleven jia of land (I jia = I r.3 mu). It turns out Wu and others had leased the land when it was just wasteland, and had had to build embankments and ponds. The two parties had agreed to a reduced rent for the first three years. But then Wu wanted to continue to pay rent at the reduced rate. The magistrate, on verifying the terms of the agreement, ordered Wu to make good on the rents owed (DanXin 22I02, I868.6.I8 [l-2]). A total of twelve of our one-winner cases from Danshui-Xinzhu involved such rulings by the court for a landlord plaintiff seeking to collect rent due him. At the same time, the law acted on occasion also to protect tenant "rights," in the original spirit of the statute. In Xinzhu in I887, for example, a local military inspector (xunjian ), Xu Qifen, tried to bump an old tenant for another, ostensibly because an original sponsor of the tenant had decided to withdraw his sponsorship (bao ). The magistrate leaned toward the inspector at first, but, on learning the facts, ruled that the tenant would have the right to continue to rent the land, albeit at a higher rent rate (Dan-Xin 2243I, I887.r.24 [168]). We have two instances of this kind of ruling in our sample. Once again, the above examples show that the penal provisions of the statute were generally not used. As with the cases involving landownership rights, the court's concern in these civil disputes was not to punish a criminal offender but rather to uphold a basic principle governing civil relations. "Conditional Sales [dian] and Purchase of Land or House" (Statute 95) Statute 95, characteristically, begins with a stipulation about tax: those who conditionally sell or purchase land or a house and do not pay the required tax would be punished by 50 lashes with the light bamboo. The statute then goes on to stipulate that the repledging for conditional sale of land or a house that had already been so pledged would be treated the same as theft. The money would be returned to the buyer, and the land or house would remain pledged to the original buyer. Further, the statute provides that a buyer of a

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conditional pledge who refused to allow redemption of the pledged land when the term came due would be punished by 40 lashes with the light bamboo. Once again, then, there can be no mistaking the positive principle intended, though not stated explicitly or in the form of an abstract principle: the law would uphold legitimate agreements of conditional sale and purchase, and would punish violations of such. By custom, when a conditional sale contract expired, the seller could redeem the land at the price of the original purchase, in which case the conditional sale amounted really to a loan with land pledged as security. The statute, as has been seen, threw the weight of the law behind this right to redemption. In actuality, however, many peasants desperate enough to pledge their land in conditional sale found themselves unabl~ to redeem the land at the end of the term. In that case, standard practice allowed the buyer to purchase title to the land outright by paying the balance between the original pledge price and the fair market price of the land. This was called zhaotie (P. Huang 1990: ro6-8; 1991). In 1730 the code stipulated further in a substatute that if a land transaction carried the explicit statement that the sale was irrevocable ( juemai ), then no redemption would be permitted. If not, then redemption would be permitted. If the pledge-maker should be unable to redeem the land, then it could be sold outright for a fair zhaotie price to be arrived at with the help of a middleman (No. 95-3). A total of six cases of our 74 one-winner land cases fall under the above statute. In 1770 in Baxian, for example, the county government ordered the sale of some land it had confiscated from a temple engaged in illegal activities. That land, it turns out, had already been pledged by the temple in conditional sale (dang instead of dian, in Baxian) to a number of parties. The pledge-holders thus petitioned for repayment of the original pledge price. The magistrate found their conditional purchases legitimate and ruled that they be so paid from the proceeds of the sale (Baxian 6: r: 722, 1770.7 [1-s]). In two other cases in Baxian, individuals who had sold their land outright continued to assert some claim to it: one by encamping on the land and cutting down its trees for sale, another by attempting to extort additional payments. In both cases, the magistrates found for the new owners (Baxian 6:2:1415, 1797.I [1-rs]; Baxian 6:2:1416, 1797.6 [l-r6]).

ISO

Philip C. C. Huang

"Charging Interest at Forbidden Rates" (Statute I49) Cases involving claims of debt related to landownership or transactions were sometimes classified by archivists under "land," even though they could more appropriately fall under "debt." There were six such cases in my 74 one-winner "land" cases. For them, the relevant statute is No. I49, "Charging interest at forbidden rates." The statute begins by forbidding interest rates in excess of 3 percent per month, and total interest that amounted to more than the original principal. As with the statute forbidding private punishments, the state represented itself as the protector of the underdog. The statute then goes on in the next paragraph to stipulate punishments for those who did not repay their debts, beginning with a debt of five taels, not repaid for three months. Punishments would increase with the length of time and amount of the debt, up to a maximum of 6o blows with the heavy stick. The statute, finally, forbids forcible removal of another's property, and his wife, concubine, or children, to satisfy a debt. Once again, there is no mistaking the positive principle, though unstated: legitimate debts would be enforced in legitimate ways. And, by extension, illegitimate claims would be rejected. In Baodi in I862 Chu Kun loaned Duan Kui some money. Duan paid back only part of the loan, and, to repay the rest, turned over to Chu cultivation rights on two plots of land he rented. Thereafter, Chu paid rent on the plots. Two years later, in I862, Duan asked for the plots back, but Chu maintained that the 2 Is diao (I diao = I,ooo wen of copper cash) of money Duan owed him was in effect a deposit for the rental rights on the land. The magistrate ruled for Chu, since Duan had willingly conceded the rental rights to Chu (Baodi, I04, I862.2.ro [l-3]). In Danshui, similarly, defendant Huang A'ai had agreed to use, for four years, one-third of the rent on land he owned to repay the loan he received from plaintiff Huang Junxiang. But he did not pay up. Junxiang brought suit, twenty years later, in I874· The magistrate, on verifying the facts, ruled that A'ai should begin that year to pay Junxiang the agreed upon rent, each year for four years (DanXin 22302, I874·3·I8 [l-36]). In these cases, as in most of the civil cases, punishments were not used, despite the penal emphasis of the code. Even though the Qing code did not make a clear distinction between criminal and

LAW AND MAGISTERIAL ADJUDICATION

civil cases, as did the later Republican code, its local court system clearly took a largely nonpenal approach to "minor matters" of civil disputes. "False Accusations" (Statute 336} Statute 336 begins by stipulating that anyone guilty of a false accusation (wugao) would be sentenced to a punishment two grades more severe than that call~d for by the crime he had fraudulently accused another of in the case of relatively light crimes that were punishable by lashes with the light bamboo, and three grades of added severity in the case of more serious crimes. There can be no mistaking the unstated principle: the law would reject false accusations and side with those in the right. All categories of cases examined in this study contain substantial numbers of rulings in which the court, on investigation, found the plaintiff's accusation false or unfounded and ruled therefore for the defendant. In the one-winner land cases, there were a total of fourteen such rulings. In Baxian in !797, for example, Fei Tinghui accused Du Xuezhu of forcibly cutting down over twenty trees on his ancestral grave land. On investigation, the magistrate learned that Fei's grandfather had sold all his land to Du's family 29 years earlier, with the sales documents specifying that "not an inch of earth" was to be retained. Fei had nonetheless tried again and again to extort additional payments from Du. When he failed, he had concocted the false charge to make trouble for Du. In this case, the magistrate ordered a punishment equal to the offense which Fei accused Du of: twenty lashes with the light bamboo.? Fei was required to file a pledge saying he would not cause any more trouble (Baxian 6:2: 1423, !797 ·4 [l-!9]). In Baodi in 1839 Zhou Fulai filed a plaint charging that his paternal first cousin Fushun was trying to forcibly occupy ten mu of his land. It turns out Fulai's father had pledged the land in conditional sale some years back, had been unable to redeem it, and Fushun's father had paid the redemption money in his stead. Then, later, Fulai's father sold title to Fushun's father outright, for the balance between the redemption price and the value of the land. It was a legitimate transaction. Fulai was only trying to cause trouble for Fushun with his fraudulent charge. On learning all the facts, the magistrate ordered that Fulai be punished by 30 blows with the heavy stick, or one grade more severe than the punishment stipulated for the of-

Philip C. C. Huang

fense of which he accused Fushun. Fulai was also required to file a pledge accepting the court's ruling (Baodi 194, 1839.2.23 [l-1]). With false accusation cases, unlike simple civil disputes, punishments were sometimes imposed (though usually not to the order of severity called for by the letter of the code). The local courts, understandably, wished to check such abuse of the system, lest the courts become impossibly overburdened.

Other Legal Principles The above five categories of cases accounted for ?I of the 74 onewinner cases in the three-county sample. Of the three remaining cases, two were rulings based on law, each involving a separate statute. "Markets" (Statutes 152 to 156). Considering the official Qing disdain for commerce, it is perhaps surprising that the code devoted an entire subsection in the "family law" (hulii) section to "markets" (shichan). The subsection begins, characteristically enough, with an administrative concern: that regulatory agencies for commerce on land and water (the yahang and the butou) may only be designated by the government. Private pretensions to these functions would be punished. Statute I 53 goes on to forbid the regulatory agencies from tampering artificially with the prices of goods, "making what is dear cheap or what is cheap dear." Further, in Statute 154, the prohibition was extended to "peddlers and vendors" (fanyu zhi tu ), who might act in collusion with these agencies "to sell cheap goods dear or buy dear goods cheap." Once again, though the positive principle was not stated explicitly, there can be no mistaking the law's posture with respect to fair prices in market transactions. In Baxian in I7?0 Wang Tai'an charged that his nephew Wang Yuanchen would not let him sell his land to Liu Zuohan. It turns out Tai'an had followed customary practice and offered the land for sale to his nephew Yuanchen first, at the market price that Liu was prepared to pay. But Yuanchen wanted to buy the land at a lower price, by insisting on his right, by custom, of first refusal of the neighbors and kin in a land sale. Confronted with these two conflicting and apparently equally legitimate principles, the magistrate sought to honor both: he ruled that Tai'an should sell his land to Yuanchen, but that Yuanchen must pay the price Liu was prepared to pay (Baxian 6: I: 723, I770.IO [1-6]; cf. P. Huang I985: 266-6?).

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"Eating without permission the melons or fruits of another's field or garden" (Statute 99). In Baodi in 1869 a fight broke out between Chu Kun and his neighbor Chu Fusheng, resulting in minor injuries to Fusheng and his So-sui-old father. Chu Kun brought suit, charging that Fusheng denied him access to his fields through Fusheng's land. What actually happened, it turns out, was that Chu Kun had rolled his cart through Fusheng's planted fields, and damaged Fusheng's crops-a fact witnessed by two community leaders. On learning the facts, the magistrate ordered Chu Kun "never again to drive his cart through the other's fields and damage his crops" (Baodi 104, 1869.8.10 [l-4]). The relevant statute here is No. 99, "Eating without permission the melons or fruits of another's field or garden" (shanshi tianyuan guaguo). The statute forbade eating without permission, discarding, or destroying the produce on another's fields. Such behavior was to be treated as theft. Here, in addition to the stipulations above about encroachment on another's land or house, the code further concretized the implicit principle of property rights. Extralegal Principle In only one case in the land sample did the magistrate resort to a principle that fell outside the scope of the code. In Baxian in 1822 Meng Yongshun filed a plaint stating that he had six years earlier bought 400 trees from the Xingu Temple, then under the charge of resident monk Dehuai. He had paid a deposit of 12.5 taels on a purchase price of 320 taels, and had a purchase contract to show for it. But Dehuai stalled after the transaction and would not let Meng cut down the trees. After Dehuai died, the new monk in charge, Guangyu, flatly refused to acknowledge the sale agreement. Meng sued, asking the court to uphold his claim to the trees. In this instance, the magistrate went directly counter to the principle of upholding legitimate commercial transactions implicit in the code. He did not deny the facts, and recounted in his judgment that there had been a documented sale agreement in 1816, and that the plaintiff Meng had paid a deposit on the purchase. But he went on to note, simply, "now that monk Guangyu has just taken charge of this temple, he should of course protect all of the trees of the temple grounds in order to add to the impressiveness of its appearance, and may not presume to cut them down. As for Meng Yang-

154

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shun's contract (yue) to buy the trees, whether it is genuine or not, it is hereby cancelled by this court. The deposit that Dehuai received from Meng Yongshun is cancelled by Dehuai's death." Meng was required to file a pledge not to "bother" Guangyu any further (Baxian6:3:263r, r822.rr [l-22]). To be sure, this case reminds us of the scope of possible magisterial discretion, the implicit principles of the code notwithstanding. But the fact that it is the only instance of its sort in my 74-case sample argues for the view that such resort to extralegal principle was exceptional rather than representative. Of the other 7 3 onewinner land cases in my sample, as has been seen, all were clear-cut rulings in accordance with explicit stipulations or implicit principles of the code.

Citations from the Code in Magisterial Adjudication The texts of the magistrates' judgments of civil cases like those above seldom contain explicit references to the code, as Mark Allee's chapter in this volume notes. But this fact should not be taken as an indication of the irrelevance of the code in magisterial adjudication. Under the Qing legal system, magistrates were not required to report their judgments of civil cases to upper levels for review; they were empowered to settle these "minor matters" on their own authority. They needed only to send upward the monthly registers of those cases, which show simply the date a case was received, the name of the plaintiff and a couple of words indicating the content of his complaint, and the status of the case, whether pending or settled (Substatute 334-4). In contrast to serious criminal cases, therefore, their judgments in civil matters were written for the litigants, not for their superiors. In most instances, the judgments were pronounced on the spot at the court session before the prostrated litigants. Since in the official ideology of the state the magistrate's position before the subjects in his charge was meant to be that of the all-knowing father and mother, there was no reason for him to call upon the code to justify his authority. It would, in fact, have been inappropriate to cite specific statutes under those circumstances. Only in exceptional circumstances would a magistrate make specific reference to the code in his written judgments. One such circumstance, as will be seen below, was when a civil suit involved more than one county, and the magistrate had to write not only for

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the litigants but also his colleague in another county. Another such circumstance was when the litigant(s) was a learned or powerful person, whom the magistrate needed to address more as an equal. In those kinds of situations, the magistrates did take some pains to justify their rulings, in the manner of judgments on serious criminal cases subject to review by upper levels. In general, however, the magistrates simply pronounced their decisions to the litigants, with themselves as the final authority representing the throne. Even though the code was not cited in these magisterial judgments, a close reading of them in conjunction with the code leaves no doubt as to the relevant sections of the code. They were implicit but obvious in the judgments.

Debt Cases "Charging Interest at Forbidden Rates" (Statute I49) The majority of one-winner debt cases fall under Statute 149, already discussed above. The original intention of the statute, as has been seen, might have been to protect the underdog against usurious interest rates, or merely to represent the state as such a protector. In actual application, however, the statute came to be important chiefly for the obvious though unstated principle it conveyed after the first paragraph: that legitimate debts must be paid. As Table 6.2 shows, that was the relevant principle in 27 of 49 one-winner debt cases in my sample. In all of them, the court upheld one or the other litigant's right to be repaid for a legitimate debt. In Baxian in 1789, for example, Xu Zizhong borrowed r8,ooo wen (equal at the time to 12.94 silver taels, as noted in the records) from Guo Yucheng through Zhu Gui as middleman. When the loan came TABLE6.2

One-Winner Debt Cases by Relev.ant Statutes No. 149 No. 344 Nos. 152-56 No. 336 Other Extralegal TOTAL

Baxian

Baodi

Dan-Xin

TOTAL

15 2 0 4 1 1 23

5 0 2 6 1 1 15

7 0 2 2 0 0 11

27 2 4 12 2 2 49

Philip C. C. Huang

due, Xu ran off to avoid paying the debt. Zhu Gui and others found him and brought him to court. The magistrate ordered that the defendant be held pending payment of the debt (Baxian 6: I: I062, 1789.2.23 [d-4]). By the letter of the code, Xu's offense was punishable by ten lashes with the light bamboo (for a debt of 5 to so taels, unpaid for three months; one added grade for each month over three months, up to a maximum of 40 lashes with the light bamboo). At the conversion rate of 0.4 (in effect since the Kangxi reign [I662-1722]) (Statute I), it would have involved just four lashes. In this instance, as with most of the debt-related cases in my sample, the court was clearly more concerned with enforcing payment than imposing the light punishment stipulated by the code. In Baodi in I838, similarly, Li Luzhan had bought on credit from Liu Xijiu's shop a total of ten diao's worth of pork which, with interest, amounted to a debt of twelve diao. Li refused to. pay. The two men got in a fight, and Liu sued. The magistrate reprimanded both for fighting, but ordered Lito pay off his debt within five days (Baodi I87, I838.8.29 [d-4]). In one instance, a magistrate acted under the provision of the statute forbidding forcible removal of another's property to satisfy a debt. In Baxian, plaintiff Mrs. Zhou's husband had borrowed ten taels with monk Xiong as middleman. He later repaid eight of the ten taels. After he died, Xiong tried to collect the balance from Mrs. Zhou, and when he failed, forcibly removed some of her clothing and furniture as compensatory security. The magistrate ordered Xiong to return the removed goods (Baxian 6:4:25 54, I8p.I I.2I [d-2I]).

"Markets" Where debt relations involved sales and purchases on the market, they could also fall under the code's subsection on "markets." Although this subsection was concerned mainly with the administrative regulation of commerce, it did take a posture with respect to a fair market price, as has been seen above. Further, the subsection goes on to forbid tampering with officially set weights and measures and using private ones (Statute I 55), and, in a final statute (No. r 56), declares that those who manufactured goods that were not durable and genuine (laogu zhengshi ), and those who sold cloth or silk that was "unwoven, thin, short, or narrow," would be punished by so

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lashes with the light bamboo. In debt (and land) transactions, as has been seen, the code further spells out concrete and specific violations that would be punishable. Together, these stipulations, though sparse, left no doubt as to the intended principle: the law would uphold legitimate market transactions and punish violations. Four cases in our debt sample were concerned with one or another type of abuse of market transactions. In Baodi in 1849, for example, Zhang Cai sold Lei Er a mule on credit, but, it turned out, Lei Er did not have the money to pay for the mule. Thereupon Zhang took the mule back and resold it. The two men argued, fought, and came to court. The magistrate found for Zhang Cai, and reprimanded Lei Er: "if you should cause trouble again, you will be severely punished" (Baodi I86, I849.9.IO [d-6]). In Danshui in I876, similarly, a coal peddler sold 26 dan (I dan = I33.3 pounds) of coal first to one buyer, and then promised it to another, causing the two buyers to get into a fight. Onverifying the facts, the magistrate ordered that the coal be turned over to the first buyer (Dan-Xin 23404, I876.7 [d-3]).

Official Corruption Related to Debt When debt violations involved officials, they could also come under the purview of the code's stipulations about "officials and clerks accepting bribes" (guanli shoucai) in Statute 344· One substatute (No. 344-3) dealt specifically with extortions from the common people, punishable according to the amount extorted. In Baxian, for example, five runners consumed 7,ooo wen's worth of food at Zhao Jianpei's restaurant, but paid only I,ooo wen. A year later, in 1790, another group of runners consumed I3,ooo wen's worth and refused to pay. Zhao brought suit, whereupon the first group of runners paid up, while the second ran off. The magistrate ordered their arrest (Baxian 6: I: I069, 1790.11.5 [d-7]; cf. Baxian 6: I: 1076, I794·5·4 [dw]). Two cases in my sample were of this sort.

"False Accusations" (Statute 336) As with the land-related cases, some of the charges brought by the plaintiffs turned out to be fraudulent, violating Statute 336. In Baxian, for example, Yu Zaiyin's father rented Liu Zejian's land on a sharecrop basis, paying 40 taels as a rent deposit. He then accumulated a substantial debt to Liu. When he died, Yu Zaiyin paid off the

Philip C. C. Huang

debt with 40 taels, four oxen, and two big wooden chests. But Liu Zejian's son, Liu Chaoxiu, concocted a false loan contract and tried to extort 9 5 taels from Yu. When Yu refused to pay, Liu brought suit, in r82r, charging Yu with failure to repay a debt. The magistrate, on verifying the facts, declared the accusation fraudulent, voided the fake contract on the spot, and required both parties to pledge their acceptance of the closing of the suit (Baxian 6:3:4623, r82r.ro [dry]). False charges such as in this example accounted for a total of twelve additional cases, as shown in Table 6.2. Together the four categories of debt cases discussed above accounted for 45 of the 49 one-winner debt cases. Consistent with the relatively light punishments stipulated for debt-related offenses, the local courts tended to treat debt-related false accusations rather leniently. In the example above, no punishment was imposed. Of the twelve false accusers, only five were punished: two with the light bamboo (for an unspecified but presumably relatively few number of lashes), and three with still lighter punishment (one with face slaps [zhangze] and two with unspecified "light punishment" [boze]). The others were not punished at all, even where the amount at issue was much larger than so taels. Other Legal Principles

Some of the cases in our sample involved a physical fight, which was often the immediate precipitating factor for a lawsuit. In almost all such cases, however, the injury to one or another party was slight, and the root cause of the dispute would be quickly identified. By the time of the formal court session, the issue of injury would be set aside with a pat phrase like "the minor wound has now healed," and the real cause of the dispute addressed (see P. Huang 1993b). Sometimes, of course, the injury caused would be so serious as to overshadow the original cause of the dispute and move the case into the criminal realm, placing it under the statutes concerned with "fighting" (dou'ou, Statute 302ff.), which included assault and battery offenses. Very rarely was a minor physical fight itself the main issue. In our sample of one-winner debt cases, there was just one such instance. In Baodi in r 8 30 Zheng Zhaoxiang beat up the butcher Zhang Fuliang and his son Xi'er, injuring both. Ostensibly, the Zhangs owed Zheng the wage for one day of labor he had done for them. It turns out Zheng was a ne'er-do-well who was always get-

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ting in some kind of trouble. In this instance, he was spared punishment by the magistrate because the injury to the Zhangs was minor, and because his elderly father petitioned the court to allow him to apologize to everyone in his son's stead. The magistrate let Zheng off after requiring him to file a pledge that he would not again misbehave (Baodi 189, 1830.6.8 [d-1]). Extralegal Principle In only two instances did the magistrates appeal to extralegal principles in their adjudication of debt cases. In the first, in Baodi in 1832, a year laborer Jin Wende (from Zhangqiu in Shandong) filed a plaint with the court stating that he had worked for Yang Fugui for three years, but Yang threw him out, beat him, and refused to pay the one tael and 2,ooo wen owed him in wages. The injury report noted that Jin had a scar on the left side of his forehead. One relevant statute for this case would have been No. 312, forbidding the private administration of punishments. But here the important issues clearly had not so much to do with Jin's having been beaten as with the back wages owed him and his dismissal. On that issue, the code offered little guidance. Nowhere did it stipulate or imply anything about an employer's obligation to pay an agricultural worker wages. The magistrate could perhaps have stretched Statute 149 about obligations to pay debts to cover the wages owed, but that would have been rather farfetched. The statutes under "markets" also did not apply readily, since nowhere in the code was labor treated as a "good" that was bought and sold. What the magistrate did was to appeal to the compassion of the employer, ruling: "To drive away an impoverished man from afar who has lived a hard life working for three years does not seem a kindly thing to do .... If Jin Wende has not done anything inappropriate to his station, you should keep him, and avoid a lawsuit." Yang agreed to keep Jin on. Nothing was said of the wages owed to Jin or of Jin's beating (Baodi 189, 1830.7.8 [d-2]). This case suggests that when the substance of a dispute fell outside the scope of the code, there was more room for magisterial discretion and appeal to extralegal morality or compassion. In the other case, in Baxian in 1797, plaintiff Na Yutu charged that defendant Wu Dayong, the brother of his deceased concubine, owed him more than ten thousand wen for monies she had earned

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160

from needlework and turned over to him. The dispute had earlier been mediated by community and kin leaders, who arranged for Wu to pay Na 3 5 taels. Wu did not pay, and Na brought suit. The court in this case decided simply to uphold the mediated settlement. Wu paid, in accordance with the court's order, but countered that Na's entire claim was fabricated and that he was paying only out of consideration of Na's poverty. The magistrate seems to have been convinced by Wu and, before turning the money over to Na, commented in writing: "if you should again fabricate charges and bring suit, the court will definitely deal with you severely" (Baxian 6:2:2412, 1797-7-21 [d-13]). But he nevertheless preferred in his verdict to sustain the earlier mediated settlement.

Marriage Cases Our one-winner marriage-related (hunyin) cases (Table 6.3) fall mainly under one of three groups of statutes: Nos. 101 to II?, concerned mainly with the marriage contract; No. 275, with the "Abduction and abduction for sale of people" (liieren liiemai ren); and No. 366 and No. 367, "Engaging in illicit sexual relations" (fanjian),s especially adultery and rape. With this category of cases, the civil and criminal were less distinct than in the land and debt categories. The Marriage Contract (Statutes ror to r I7)

Statutes ror to II? make up the "marriage" subsection of the "family law" section (Statutes ?s-rs6), accounting for I7 of the total of 82 statutes. They begin by prohibiting false representations in a marriage contract (No. ror), and go on to stipulate the various requirements for a legitimate marriage contract (e.g., parental perTABLE

6.3

One-Winner Marriage Cases by Relevant Statutes Baxian

Nos. 101-17 No. 275 No. 366 & No. 367 No.336 Other Extralegal TOTAL a See

note to Table 6.B3.

2 7 4 6 1

0

20

Baodi

Dan·Xin"

TOTAL

5 1 3

0 0 0 0 0 0 0

7 8 7 7 2 0 31

1 1

0 11

LAW AND MAGISTERIAL ADJUDICATION

I6I

mission, a matchmaker, a written contract). Additional statutes specifically prohibit various violations of a marriage contract, such as pawning or hiring out to another as wife or concubine one's own wife or concubine (No. 102, which overlaps with No. 367, covering "Buying or selling the divorce of a wife" [maixiu maixiu]), forcibly abducting another's wife (or concubine) or daughter to be one's own wife or concubine (No. 112), or forcibly abducting and selling another's wife (or concubine) or daughter to a third person as wife or concubine (Substatute II2-I, to be distinguished from Statute 275, which deals with the general "Abduction and abduction for sale of people," not necessarily as wives or concubines). Under Statute II6, the code goes on to specify the conditions under which a husband may divorce a wife, and what it considers to be punishable violations of a marriage contract by a wife. In a substatute, the code spells out also the very limited conditions under which a woman may nullify a marriage contract: if, five years after the contracted date of marriage, the man did not marry the woman, for no good reason, or if the husband deserted the wife and did not return for three years (Substatute 116-2). The code was uncharacteristically detailed with respect to the marriage contract and its violations. More typically, the Qing code would have only implied, through a few simplified stipulations about punishable violations, that it would uphold legitimate contracts and punish violations of them. That was the approach with respect to land sale contracts and loan contracts, or market transactions, discussed above. On marriage, however, the code over time became more specific and elaborate, perhaps because of its greater importance, and perhaps because, in the official posture of the state, marriage was not beneath its concerns in quite the same way as land and loan contracts, or other market transactions. Altogether, 7 of our sample of 3 I one-winner marriage cases from Baxian and Baodi fall under one or another of the above statutes. In Baxian in 1780 Zu Zheng'an sued Liang Guotai for breaching their marriage contract and not marrying his daughter to him. In accordance with Statute IOI, the magistrate ruled that Liang return the betrothal gift (caili) of ro,ooo wen, and further that he be fined 2,ooo wen (Baxian 6: I: 1736, I?80.IO.I4 [m-3]). In Baodi in I887 a county runner, Ma Yongcai, forcibly abducted a widow, nee Qi, to make her his concubine. The widow's father, Qi Yongxiang, however, took her back and wed her to another, with all

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Philip C. C. Huang

the proper procedures. Ma brought suit, charging Qi with forcible abduction of his concubine. The magistrate, after ordering the xiangbao to investigate and verify the facts, upheld the new marriage contract and ordered that the woman Qi be turned over to her new husband. Ma was found guilty of abducting another to be his concubine (Statute u2), and was punished with 200 lashes of the light bamboo (Baodi I?O, 1887, IO [m-14]). In the same county in r 8 37 Chen He filed a plaint claiining that a local bandit, Kou Fusheng, and his daughter had "seduced" his daughter-in-law into their house and would not let her return home to him. The girl (r6 sui), it turns out, had been Inistreated by her parents-in-law and her husband (who castigated and beat her when she would not do heavy farmwork), and was actually hiding from them at her grandmother's house. She had only spent a night with Kou and his daughter before going to her grandmother's. The magistrate ruled for upholding the marriage contract: he ordered the girl to go back to her marital home, although he did reprimand Chen He for his false charges and required Chen and his son to file a pledge to the effect that they would not again mistreat the woman (Baodi r66, r837·5.22 [m-3]). Two other marriage cases in our sample concern divorce. In Baodi, Tian Fa's adopted son, Tian Rui, had gone to the northeast to work and left his wife, nee Xu, with his father. Tian Fa did not hear from Rui for thirteen years. He had even gone to the northeast to look for his son, but could not find him. From Tian Fa's point of view, the daughter-in-law Xu was a burden to maintain, while from Xu's point of view, she hoped to nullify her marriage and pursue a chance to remarry. First Tian Rui petitioned the magistrate to nullify the marriage and permit Xu to return to her brother's home and remarry. The magistrate ordered that it be verified that Xu indeed had no wish to remain wedded to Tian Rui, whereupon Xu petitioned that since she could not make a living, it was difficult for her to "preserve her chastity" (shoujie), and she did indeed wish toremarry so she would have a livelihood. On that, the magistrate granted his permission, in accordance with Statute u6 (Baodi r62, r839.6.r [m-6]). "Abduction and Abduction for Sale of People" (Statute 27 5)

Under the section on "theft and robbery," Statute 275 begins by forbidding the abduction (liie) or abduction for sale (liiemai) of

LAW AND MAGISTERIAL ADJUDICATION

"commoners" (liangren) to become slaves (nubi). The statute goes on to forbid also the sale of wives into slavery. These would be serious criminal offenses, punishable by 100 blows with the heavy stick and banishment to a distance of 3,ooo li (I li = 0.3 miles). As Ch'ii T'ung-tsu (I96I) and Jing Junjian (198I) have demonstrated, the Qing code was very much preoccupied with the maintenance of its view of the proper social order, to distinguish superiors from inferiors, elders from juniors, and high-status people (degree-holders) from commoners and further from the low-status (mean people). Offenses committed by inferiors against superiors were subject to increased severity in punishment over those by an equal against another; the reverse to reduced severity. From its concern with violations of the social hierarchy, Statute 27 5 goes on to forbid the abduction of girls or women in general, whether commoner or slave, and whether to become wives or slaves. In Baxian in I78I Long Jiuchuan, under the pretense of finding a husband for the girl, abducted Chen Wenzhi's servant girl Chunxiang and hid her for nine months. When Chen found out, he brought suit. The magistrate ordered that the girl be returned and that Long wear the cangue for a month as punishment (Baxian 6: I: 1742, 1781.9.30 [m-5]). In the same county in 1732 Xu Tianyi had given his daughter Chungu to Zheng Wenke as a child-bride. Later, however, Zheng sold the girl to Mrs. Chen as a slave, for I2,ooo wen. When Xu found out, he brought suit. Zheng had really committed a double offense, punishable under either Statute 27 5 for selling a commoner into slavery, or under the marriage statutes for selling his wife (No. I02). The magistrate ordered that Chungu be returned to her father and that Zheng be held in prison pending a decision on his punishment (Baxian 6: I: 1732, 1780.3.I4 [m-2]). In all, eight cases in our sample fall under Statute 275 (Table 6.3). "Engaging in Illicit Sexual Relations" (Statutes 3 66 and 3 67)

The Qing code considered adultery by a married woman a crime, which it grouped together with rape, sexual relations between relatives, and sexual exploitation of the common people by officials, under the general heading of "engaging in illicit sexual relations" (fanjian). The subsection (Statutes 366-75) begins by prohibiting all "illicit sexual relations" ( jian) whether by consent, by trickery, or by force. The punishment was increased (from 8o blows with the heavy stick to 90 blows) if the woman involved was married. An

Philip C. C. Huang

adulteress herself was to be punished in the same way as her paramour whether the violation involved consent or pretense. She would be considered innocent only if the violation clearly involved forcible rape (Statute 366). The next statute, No. 367, makes a husband who abetted his wife's adultery also guilty of a criminal offense. By extension, the father who abetted his daughter's illicit sexual relations was similarly punishable. And also by extension, one who bought or sold the termination of a woman's marriage contract, whether to acquire the woman or to sell her to another, was punishable. From the code's point of view, all such behavior fell under the general category of "engaging in illicit sexual relations." Statute 367 also forbade husbands (or adoptive fathers) from forcing their wives (or adoptive daughters) into illicit sexual relations. Such offenses would be punished by roo blows with the heavy stick, and the woman would be granted a divorce and returned to her natal parents. Here again, there was clearly overlap between these statutes on illicit sexual relations and those on marriage. In the eyes of the Qing code, illicit sexual intercourse by a married woman was really a double offense: a violation both of what the law considered acceptable sexual relations, and the sanctity of the marriage contract. Illicit sexual intercourse between relatives (Statute 368) or between "mean people" and "commoners" (Statute 373), similarly, violated both standards of acceptable sexual relations and the social order. The courts acted, first of all, to uphold legitimate marriage contracts and punish violators. In Baxian in 1779 lower-degree holder (jiansheng) Wang Xixian had purchased from the husband of woman Chen the termination of her marriage to him, in order to make her his concubine. Chen's former husband, apparently, had willingly sold this termination for 28,ooo wen because he was ill. The case came to the attention of the court when Wang's mother could not get along with Chen and decided to have her sent away to her relatives. En route, Chen's background came to the attention of the patrol guards. In this instance, perhaps because Wang was a degree holder, the magistrate made specific reference to the code, noting that Wang had engaged in illegal "buying of the termination of a woman's marriage" (maixiu weilii ), and that he should be punished (but that the court would act leniently in this instance). Since the woman's former husband had engaged in the illegal"sale of the termination of a woman's marriage," she was not to be returned to

LAW AND MAGISTERIAL ADJUDICATION

him, but to her natal relatives, in accordance with the code (Baxian 6: I: I73I 1 I779-II.29 [m-rj). When the husband and/or parents willingly abetted a woman's adultery, there was usually no clear-cut distinction between victim and offender. All parties were guilty. To illustrate the working of the law on this issue, therefore, we need to tum to a no-winner case. In Baodi, Sun Keyong, a poor peddler, and his parents-in-law, the Xins, allowed Keyong's wife to carry on with wealthy Zhang Fu, in return for various payments and favors. The arrangement went on for three years, until Zhang Fu refused their demands and angered them. At that point, Sun Keyong brought suit, charging that Zhang Fu was engaged in adulterous relations with his wife. The magistrate learned the truth on investigation and ordered that Zhang Fu be punished by 30 blows with the heavy stick for adultery, Sun Keyong and his parents-in-law by 40 slaps for abetting adultery, and the woman also by 40 slaps for adultery. Everyone involved was required to file a pledge that theywould not engage any further in the offense (Baodi r66, r839.1.23 [m-s]). Because a large proportion of "illicit sexual relations" offenses involved adultery, and were therefore related to "marriage," Chinese archivists have tended to himp together "marriage" and "illicit sexual relations" cases (hunyin jianqing). That was substantially the practice of the catalogers of the Baxian and Baodi archives. One of the four Baxian cases shown under Statutes 366-67 in Table 6.3 was in fact an attempted rape case (Baxian 6:3:8635, r82r.7.28 [m23]). With the Danshui-Xinzhu archives, by contrast, cataloger Dai Yanhui applied modem legal categories and separated out marriagerelated cases from adultery and rape. The former he placed under "civil" (minshi ), and the latter under "criminal" (xingshi ). (See note to Table 6.B3.) Qing law itself made no such clear-cut distinction between the civil and the criminal. Dai's scheme, it so happens, left no one-winner cases under the "marriage" section of the "civil" category. "False Accusations" {Statute 3 3 6} As with land and debt cases, the courts dealt also with a number of cases involving fraudulent accusations. For example, in Baodi in 1894 Gao Suo'er, a 24-year-old woman, had fallen in love with a day laborer, Luo Bai, hired by her family. The two ran off together. Fearful that her family would bring suit against Luo, the young couple

Philip C. C. Huang

166

tried to force the family's hand by filing charges first, claiming that Suo'er had been legitimately married to Luo, but the parents, upset by his poverty, were now trying to force Luo to annul the marriage. On verifying the facts, the court ordered that Luo be held in prison and Suo'er returned to her father. In the eyes of Qing law, there could be no legitimate marriage without parental permission (Baodi I?I, I894.12 [rs]). In our sample of 31 marriage cases, a total of 7 involved one or another kind of false charge related to marriage and illicit sexual relations.

Other Legal Principles Two cases in our sample began as cases of "illicit sexual relations" but in the end the main issue became "fighting" (dou'ou) (including assault and battery type), under Statutes 302-23. In one of the cases, in Baodi in r86s, a Liu Yitai had harbored a runaway wife. When the husband came to look for her, Li Shitang told him where she was, and the husband succeeded in taking the woman back. In anger, Liu Yitai with several others beat up Li, breaking his leg. That magistrate ordered that Liu be put in a cangue for a month, and that he pay Li 200 diao in damages (Baodi 169, r86s.s [m-rr]).

Extralegal Principles As Table 6.3 shows, not one case in our sample of 3 I one-winner marriage cases was adjudicated by an extralegal principle. This attests to some extent to the greater specificity of the Qing code on marriage than on, say, land and credit transactions. Compared to modem Western civil codes, of course, the Qing code was very terse even on marriage-related matters, just less so than with respect to the others.

Inheritance Cases "Violating the Law in Establishing an Heir" (Statute 78) By Qing times, the principle of equal division of family property among sons had long since been established in both law and social custom. 9 As I have discussed elsewhere (P. Huang 1991), there were well-established community practices for resolving disputes over the process of partition, such that very few cases made it to court. Where problems arose was above all when a property owner had no

LAW AND MAGISTERIAL ADJUDICATION

natural sons. The question of inheritance then became closely tied to the issue of succession to the family line. Characteristically again, Statute 78 (li dizi weifa) begins by stipulating that those who violated the law in establishing a successor would be punished, by So blows with the heavy stick. The positive principles as to what constituted acceptable practice are then elaborated in substatutes. In the choice of a successor, one was to tum first to the sons of one's brothers, then to lesser relations. If there were no eligible successors among one's relations, then one could turn to someone of the same surname. If a natural son were born after the establishment of such a successor, he was to share equally in inheritance with the adopted successor (Substatute 78-r). The code was strict in its view that only someone of the same surname could be made a successor. Substatute 78-4 stipulated that a son adopted from a different surname family was not the same as a legal successor. He may be given some property, but had no legal claim to succeed to the family line and inherit the family property. As for the property rights of a widow without sons, the code placed much emphasis on whether she "maintained her chastity." If she did, she would be given charge of the property, pending the establishment of a rightful successor. If she remarried, however, her deceased husband's property as well as her dowry would be disposed of according to the wishes of the deceased husband's family (Substatute 78-2). Altogether nine cases in our sample wereadjudicated according to the stipulations of Statute 78, and its various substatutes (Table 6.4). For example, in Baxian, Li Chun had adopted a son from a different surname family and renamed him Li Maofu. Li Chun later had a natural son, named Maochang. While Li Chun was alive, he arranged for a wife for Maofu and also gave him so taels, plus an ox and some grain, and then sent Maofu back to his natal family. TABLE

6.4

One-Winner Inheritance Cases by Relevant Statutes

No. 78 No. 336 Other Extralegal TOTAL

Baxian

Baodi

Dan-Xin

TOTAL

3 0 0 0 3

3 0 2 0 5

3 5 0 0 8

9 5 2 0 16

J68

Philip C. C. Huang

When Li Chun died, however, Maofu brought suit, in 1839, to try to get half of the inheritance. The court ruled against the plaintiff, in accordance with Substatutes 78-r and 78-4 (Baxian 6:3:9755, 1839.10.26 [i-3]). In Xinzhu in 1879 the third of four lines of the Wu family had no son, and it was decided to make Wu Tianze, from the second line, the successor to the third line. Tianze was later sent away to the mainland for education, and the property was managed for him by his grandmother. She did not manage the property well, and, before she died, had actually pledged the land in conditional sale. When Tianze returned, he was confronted with the first and fourth lines' claim that they were to inherit the third line's properties in equal shares with Tianze, by the will of the grandmother, so that Tianze should receive only one-third of the property of the third line. Tianze sued. The magistrate verified that he had indeed been established as the successor to the third line's property in accordance with the law, and ruled that the entire property of the third line should go to him (Dan-Xin 22705, I879·3·6 [1-rn]). "False Accusations" (Statute 336) A total of five cases in our sample involved fraudulent charges of one kind or another involving claims to inheritance (Table 6-4). In Xinzhu in 1893, for example, the third line of the Zheng family had no son. It was decided by the lineage that Zheng Bangchao, of the second line, would succeed to the third line. The dispute came from Zheng Bangshi, the younger of two brothers of the fifth line, who succeeded only to their own line. What Bangshi (and his mother) hoped to get from Bangchao was one-half of the property he inherited. In their plaint, they claimed that Bangshi had been adopted by the second line when he was very young, and was therefore entitled to one-half of the entire property that Bangchao inherited. The magistrate verified that their claims were untrue, and that Bangchao had been the legitimately established successor to both the second and third line of the family. Bangshi, because of his young age, was only reprimanded, and required to pledge his acceptance of the court's ruling (Dan-Xin 22615, 1893-7-4 [i-rs]). Other Legal Principles In Baodi, widow Wang's late husband had had two sons by his first marriage. When he died, each of the two sons received 2.5 mu

LAW AND MAGISTERIAL ADJUDICATION

of land, and widow Wang 5 mu as old-age-support land (yanglaodi). The elder son had since died, leaving one son, and widow Wang lived with this grand-stepson. The difficulty came from the wife of the second son, who brought suit to claim widow Wang's 5 mu of oldage-support land as well as her young nephew's 2.5 mu. The court found for the widow and the grand-stepson with whom she lived (Baodi 100, I850.3.15 [i-2]). The plaintiff in this case really had not a legal leg to stand on. By law, the two sons (and their offspring) of the deceased man were entitled to equal shares in inheritance (Substatute 88-I). The widow was also entitled to old-age support, under Statute 338, which put things characteristically in penal terms: sons (or grandsons) who did not provide adequately for their parents (or grandparents) would be punished by 100 blows with the heavy stick. The latter principle, however, takes us into the realm of old-age support (yangshan) for parents, which Chinese archivists often group separately from inheritance and succession cases. Extralegal Principles

As with the marriage cases, there was not one case among our sample of sixteen inheritance cases which was adjudicated by extralegal principles. Once again, the relative specificity of the law, as well as the strength and clarity of social mores, left little room for magisterial discretion. There could be little question where the law and social custom stood with respect to disputes such as those discussed above. '

The Use of Compromise It remains for us to consider the resort to face-saving compromises in magisterial adjudication. If Qing magistrates, even when they ruled for one or the other party, typically also imposed compromises in the interest of "harmony," it may be argued that they, in the final analysis, were more mediators and administrators than judges. In Baxian in I767, for example, Tao Yuheng had purchased the land of widow Jin's husband outright, but the impoverished widow now claimed that she still had rights over the 40 pine trees on the land. The magistrate verified that the sale document did not contain any reference to preserving ownership of the trees, and therefore found for the plaintiff. However, in consideration of her poverty, he

no

Philip C. C. Huang

also ordered that Tao give her s,ooo wen to help her in her livelihood (Baxian 6: I: ?I I, I767.I2 [1-I]). In Danshui, widow Chen and her daughter rented plaintiff Zeng Yutan's house (at nine yuan per year), but were too poor to pay. Zeng first applied the deposit of ten yuan to the rent, and when the widow owed several months' rent, he asked her to move out, but she refused. Zeng then filed suit, charging that the Chens were noisy and engaged in prostitution. Zeng was clearly wealthy and powerful, and managed to get a runner to report in his favor, and also some forty neighbors to petition in his behalf. The magistrate verified that the charge of prostitution was a fabrication, but noted that Zeng was within his rights to ask a renter who did not pay rent to move out. He therefore found for the plaintiff and ordered the Chens to move out. At the same time, however, he ordered that Zeng be gracious and give up his claim to the several months' back rent (Dan-Xin 22I03, I8?6.9.26 [1-3]). In Baodi, as has been seen earlier, a runaway daughter-in-law was ordered to return to her husband's family. The court thus found for the plaintiff. At the same time, however, the magistrate required the husband and parents-in-law to pledge that henceforth they would not mistreat the young woman. Rulings such as those cited above, to be sure, reflected a concern broader than just strict application of the law. But the examples above should make clear that these were only face-saving or kindly concessions, after unequivocal judgments had been made about the right and wrong of one or the other party. Furthermore, as Tables 6.EI-6.E3 show, only a very small proportion of the one-winner type rulings contained such compromise settlements, based mainly on compassion for the underprivileged: a total of I I of the no onewinner rulings. In the others, the magistrate found simply for one or the other party, without any instructions for compromises. Indeed, in the actual operation of the legal system, the expression zhenqing zhuoli, or weighing the qing and considering the li, referred more often to qingshi, or actual facts, rather than renqing, or (Confucian) compassion, and daoli, or common-sense reason, rather than Confucian tianli, or the moral principle of the universe. A major role of the magistrate, his runners, and the xiangbao, as has been seen above (cf. P. Huang I993b) was investigative, to establish the actual facts. We find repeated use of the expression, for example, of cbaqing lichu, or investigate the facts and circumstances, and ad-

LAW AND MAGISTERIAL ADJUDICATION

judge by (common-sense) reason. Similarly, the accuser's version of events is referred to as kongqing, in which the qing clearly refers to "facts" rather than compassion. The highly moralistic connotations of tianli and renqing, I would suggest, mattered more in Confucian representations of magisterial adjudication than in its actual practice. While tianli, renqing, and guofa might indeed have formed something of a trinity in the Confucian view of what ought to be, daoli or common-sense reason, shiqing or what really happened, and liili or statutes and substatutes, were the three real guides in what was. The Confucian scholars who compiled model cases and rescripts most likely saw the common and mundane as unworthy of special illustration, and therefore concentrated on difficult cases in which magistrates had to find guides other than those stipulated in the code. However, it is the common and mundane that tell us the most about actual legal practice during the Qing.

No-Winner Cases The Magistrate as fudge Even when court adjudication resulted in no simple ruling for one or the other party, but rather in a no-winner type of ruling, the magistrates acted in a majority of instances according to the code: 23 of 34 cases in our sample (Tables 6.EI-6.E3). In Baxian in 1775, for example, tenant Tan Delong charged that his landlord, Liu Chang'an, forcibly took away his ox. It turned out Tan had earlier asked Liu for a piece of land on which to bury his mother, and Liu had later accused him of stealing land from him. That dispute had been settled by mediation: Tan paid Liu for the land. Later Tan borrowed money from Liu, but did not pay up when the loan came due. Liu therefore took away the ox. Tan was obligated to repay Llu, by Statute 149, but Liu was wrong to forcibly remove Tan's property in his effort to collect payment, also by Statute 149. The magistrate ruled accordingly: Tan was to repay all the money he owed Liu, while Liu was to return to him the ox (Baxian 6: I: 7 45, 177 5-4 [1- IO ]). In the same county, Chen De's son Chen Wannian married a woman surnamed Wang, then left her with his father, and went away to seek work. When Chen De did not hear from his son for two years, he decided to betroth the daughter-in-law to Liao Enfeng, for

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a price of 2r,ooo wen. Soon after, Liao was killed in a flood, and his elder brother wed the woman to a Dong San of Liangshan county, for 38,ooo wen. At this point, Chen Wannian returned. Fearful that his son would be upset at him for what he had done, Chen De decided to file false charges against Dong San, claiming Dong had abducted the woman. Wannian believed his father, and also filed charges against Dong in Liangshan county, but then left again for Shaanxi, where he was employed. The court uncovered the facts on investigation and ruled as follows: Chen De had falsely accused Dong San of abduction, and should be punished by like penalty (8o blows with the heavy stick), in accordance with the code. But in consideration of his ready admission of guilt, and his poverty, the punishment would be lessened to two months in a cangue, to be followed by 30 blows with the heavy stick. Chen Wannian was deceived into filing charges and was not to be punished. As for the marriage between Dong and the woman, strictly speaking their marriage contract should be nullified (because according to the letter of the code, which required desertion for three years, the woman was still legally wed to Chen Wannian). But, inasmuch as Dong had married the woman in good faith and by proper procedures, that the woman was now pregnant with his child, and that Chen Wannian was not even present for the court session, the magistrate ruled that Dong would not be required to give up the woman in divorce (liyi). All these circumstances and judgments were spelled out in detail by the Baxian magistrate, complete with references to the code, because in this particular instance the magistrate had to transmit his ruling also to his colleague in Liangshan county (Baxian 6: r: 1760, I?84·3·I9 [m-9]). In Baodi in r86r Chen Qi filed a plaint charging that Zhang Deren had tried to extract a loan from the wife of his brother Chen Xiu and beat her when she refused. Zhang, in turn, countered that he had lent Chen Xiu money, but Chen Xiu had gone off to hide, leaving his wife to deal with him. The magistrate noted on the original plaint his skepticism of Chen Qi's version of events, and also that the woman had not come to court to have her injury examined, as was standard procedure. Then, at the court session with everyone convened, he satisfied himself that none of the parties could document their claim of a debt. Accordingly, he ordered that all be reprimanded and required to pledge not to cause any further trouble (Baodi 190, r86r.8.r8 [d-8]).

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173

The Magistrate as Arbitrator Only in I I of the 34 no-winner cases did the magistrate act in the capacity of an arbitrator, and work out compromises between two disputing parties with equally legitimate claims. In these court rulings, the question of which party was legally in the right played little role, and the magistrate worked much as community mediators might have done when faced with two sets of conflicting claims and interests, except, of course, that his rulings were binding. In Baxian in I852 Zhu Guangji, a merchant from Yunyang county, had loaned Zheng Lao'er I6,ooo wen. When the loan came due, Zheng Lao'er refused to pay and hid from Zhu. At this point, his first cousin (uncle's son) Zheng Yangyi agreed to "guarantee" (danbao) (informally, and not legally binding) that the debt would be repaid within three to five days. Yangyi's intent was to get after Lao'er to honor his obligation. But then Lao'er suddenly died. He apparently had neither property nor heirs, and Yangyi was not willing to make good on an informal"guarantee" that was not legally binding. Zhu brought suit. The magistrate ordered that Yangyi pay Zhu a compromise return-home fee of 2,ooo wen (Baxian 6:4:25 52, I8p.II.I9 [d-2o]). In Baodi, Zhang Yu had two sons during his first marriage, and then three more during his marriage to woman Hu. After Zhang Yu died, the widow lived with his brother Mo. It seems she might have had an affair and home a child, who apparently died at birth. Mo was in any case anxious to drive her out of the family back to live with her natal brother and strip her of any claims to her husband's property. The dispute had been mediated by community and kin leaders, who suggested that Zhang Yu's property be divided into six equal shares, one each for the five sons and the sixth for the widow as oldage support. Dissatisfied with the settlement, Zhang Mo brought suit, charging that his widowed sister-in-law had not maintained her chastity and had killed the child she bore at birth. The widow, however, insisted that she had not had an affair, and that the child died of natural causes. Zhang Mo named the supposed lover, a Tian Youquan, but could not corroborate his charges. The magistrate decided at the court session simply to uphold the original settlement proposed by the community and kin mediators (Baodi I62, I845·3 [m-8]). With cases such as those cited above, it would be possible to

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argue that the magistrate's role was more administrative than adjudicatory, and/or that he was more a mediator than a judge applying the law. It should be clear from the above, however, that such cases were relatively rare-a mere II cases out of a total of 221 heard by the courts in formal session. It should also be clear that such rulings generally were issued within a legal framework set by the code, and magisterial discretion did not contravene the law but rather occurred in the open spaces left by the code. Even as arbitrators, in other words, the magistrates were no mere compromise workers acting without any regard for the law.

Civil Law in the Qing The Code The great majority of our civil case records, then, bring to light easy to miss operative civil principles in the code. Those are easy to miss because they are packaged in administrative and/or penal terms, and often occur as appendages to administrative and penal stipulations. They only become clear when we see beneath the surface layers of the code. There can be no doubt that the Qing code was administrative and penal in its original approach and intent. The code itself was organized in accordance with the six boards of the central government: li (officials), hu (family and householdsL li (ritesL bing (rnilitaryL xing (punishmentsL gong (works). It opened with stipulations about "the five punishments" and their different gradations, specifications and measurements of the tools of punishment, and so on. Most of the statutes discussed above, as has been seen, began by stipulating the appropriate punishment for specific offenses. There can also be no doubt about what Ch'ii. T'ung-tsu (r96r) long ago termed "the Confucianization" of Legalist law. As Ch'ii. made crystal clear, the code took great pains to spell out rules and regulations aimed at maintaining its version of the proper social order in ruler-subject, familial, and status group relations. It consistently prescribed heavier punishments for offenses by the inferior or junior against the superior or senior, and lighter punishments for the reverse. In addition, I would add, the code took care to represent the state not only as the stern and authoritarian father that the punishment-inclined Legalists envisaged, but also as the compassionate

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and protective mother that the Confucians would have claimed it to be. On debt, for example, the code began with prohibitions against exorbitant interest rates, and, on use of power against others, prohibitions against private punishments and incarcerations. These characteristics of the code have all been relatively well analyzed in the existing literature. This was a code that was administrative and penal in its approach, and it was at once Legalist and Confucian in its inspiration and avowed ideology. The volume by Bodde and Morris (1967) is still the most judicious summary of these multiple aspects of the code. What the literature has not done is to see the code in conjunction with the actual operations of the legal system, especially with respect to civil matters. Bodde and Morris certainly broached the issue, and attempted in preliminary ways to grapple with it through model criminal cases, but since they did not have access to the archives of local governments they could not do more. When seen in conjunction with actual civil cases, it becomes clear that operationally the most important parts of the Qing code consisted in later adjustments and additions that were made in response to changing social realities. Those passages were often buried in the middle or end of a statute, or in an insignificant-appearing substatute amongst a long series of substatutes, and they were usually packaged in administrative, penal, and/or moralistic terms. Analyzing the code in conjunction with actual case records helps to bring those operationally important parts of the code into sharper focus. On land-related matters, as has been seen, the crucial parts include the unmistakable principle of property rights (and, by extension, the right to collect rent), stated not positively but negatively in terms of punishable violations of those rights. There was also the legitimacy of customary practices in land sale and purchase transactions (especially conditional sales and purchases), which were becoming increasingly common in the Qing. With respect to debt, the crucial operative principle was the right to be repaid for a legitimate debt, implicit in the stipulations about punishments for nonpayment of a debt, which appear in the middle of a statute that begins with the forbidding of excessive interest rates. There was also the principle of fair market price and practice, again not positively stated but unmistakable from stipulations about abuses, in a paragraph that begins with the outlawing of private pretensions to the

Philip C. C. Huang

regulatory powers of the state. As for marriage, the crucial principle, again never said in so many words, was that legitimate marital contracts would be upheld by the law. Breaches of the contract were forbidden, as were violations of it in the form of purchase and sale of wives, or adulterous relations by the woman. By extension and in addition, abduction and abduction for sale of women were forbidden. On inheritance and succession, finally, the most important operative principles were equal division among sons, which occurs in the middle of the substatute of a statute that begins by forbidding household divisions during the parents' lifetime, and what constituted legitimate succession and what not. In all of the above, there was the consistent principle that the court would seek to establish what actually happened and punish those who fraudulently accused others. The different dimensions of the code outlined above might be thought of as multiple layers of law that were formed over time from a variety of influences. There is the original bureaucratic and Legalist inspiration and approach, from the inception of the imperial law code, with their concerns for administration and penalties. There is also the Confucianization that followed, with its concerns for maintenance of the existing social hierarchy and moralistic and compassionate representations of the state. There is, finally, the adaptations of the code to practical reality over time, occurring through revisions of the text or additions of substatutes, sometimes in clear contradiction to the original intent of the code. In the process, hollow principles as well as anachronistic stipulations remained in the text, while new key provisions were introduced at inconspicuous places, often under well-stretched extensions of original concepts or even misleading headings. Past scholarship was understandably drawn to the more prominent and external layers; what civil case records bring into focus is the easy to miss third layer. Once brought into focus, there can be no doubt that the Qing code encompassed a substantial body of stipulations about civil matters. That body of civil laws, to be sure, did not contain formalistic assertions of abstract principles, in the manner some might consider necessary to a "rational" code. Nor was it hom of the liberal assertions of a civil society, complete with guarantees of individual rights against the arbitrary use of state power. Rather, it was hom of the practical adaptations of a state concerned first and fore-

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most with control through punishment and administration. But it was no less consistent and important for that reason. Those who would dismiss Qing civil law out of hand as falling short of some abstract standard of civil law might do well to remember the role that autocratic power played in the origins of the continental (as opposed to Anglo-American common law) tradition of Western ci villaw.

Code and Practice Once the way in which operative civil principles were embodied in the code is properly understood, it becomes clear that there was striking consistency between codified law and magisterial adjudication. One must not be misled by the exterior packaging and the penal or administrative approach of given statutes into dismissing their relevance for civil adjudication. The key to understanding the relationship between formal code and legal practice in the Qing is to see the one in conjunction with the other. Thus, on conditional sales and purchases of land, for example, the code begins with administrative stipulations about tax. The important operative principle-that the law would uphold legitimate transactions and punish those who violated them-appears only later, packaged within stipulations about punishments for violations. On debt, similarly, one must not be misled by the packaging of the statute "Charging interest at forbidden rates" (No. 149) into thinking that the statute was relevant only for constraining usurious interest rates of more than 3 percent a month. Actual case records show us that lawsuits about such violations were relatively rare. Far more important operationally were the payment and nonpayment of legitimate debts. The reference to punishment for those who did not pay debt, however, is buried in the middle of the second paragraph: "Those who violate an agreement and do not repay private debts, in excess of five taels, for three months, will be punished with ten lashes with the light bamboo." It was the positive civil principle implicit in that penal stipulation that dominated the actual operations of the legal system with respect to debt. On household division, to recapitulate with another example, the relevant statute goes under the somewhat misleading heading of "Inferiors and juniors using money without permission." It begins with the ideological statement: "When the grandparents and parents are alive, the sons and grandsons may not divide up the wealth and

Pmlip C. C. Huang

live separately." That was the stated Confucian ideal. Yet, we know that household division during the parents' lifetime was in fact very common (P. Huang 1991L and the statute went on to concede this social reality with the following sentence: "If the parents permit the division, then it will be allowed" (Statute 88). That should be read as the practical intent of the code. As for the crucial operative principle of equal division among sons, it appears only in the middle of a substatute (No. 88-1). Seen in conjunction with actual case records, moreover, it becomes clear that there was actually little litigation surrounding that principle, because it was so very well established in customary practice (P. Huang 1991). The real source of inheritance disputes came from situations in which a family had no natural-born son and therefore had to choose a successor, often from among more than one eligible party. It is Statute 78 that spells out how such a successor should be chosen, and Substatute 78-1 that addresses the problematic eventuality of the birth of a son after a legitimate successor had been chosen. Magistrates adjudicated accordingly. On markets, finally, the code begins with an administrative and haughty attitude, interested only in stipulating that private concerns must not attempt to usurp state prerogatives in the regulation of commerce. Beyond that, commerce was presumably too lowly a subject for lofty Confucian attention. Nevertheless, as has been seen, the final statute of the subsection (No. 156L in two simple sentences, articulates what amounted to a principle of fair market practice. And that statute, not the earlier and more prominent ones, was what really mattered in legal practice. Past scholarship was understandably misled by the exterior packaging of such stipulations into thinking that they were of little relevance to civil matters. In the absence of actual case records, some, like Bodde and Morris, concluded that almost all civil matters were handled informally by community and kin mediation, while others, like Shiga Shuzo, looked outside the code for the source of operative guides in magisterial adjudication. In so doing, they missed the crucial parts of the code that guided magisterial adjudication. This is not to say, of course, that magistrates had little or no discretion in rendering civil judgments. Civil stipulations in the code were sparse and restricted to general principles. That left considerable flexibility as to the specifics, as for example with respect

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to face-saving or kindly compromises. Nevertheless, it would be a mistake to equate magisterial discretion with the "whims" of administrators and with Kadi justice, a la Max Weber. If the case examples cited above are any indication, magisterial discretion generally occurred only within clearly understood legal boundaries. Legal rights and obligations with respect to property, debt, marriage contracts, and inheritance could not easily be contravened by the magistrate. This is also not to deny that mediation played an important role in the larger Qing justice system as a whole, only that it was not what the formal court system did. In my larger study, I propose a conception of the total Qing justice system as comprising three parts: the informal realm of community and kin group, the formal realm of codified law and the court system, and the third realm in between the two, where they interpenetrated and coexisted in a kind of negotiatory relationship (P. Huang 1993b). There can be no denying the crucial role that mediation played in the informal and third realms of Qing justice. The point here has to do with the formal legal system: for that realm, past scholarship has far overestimated the role of mediation.

Some Implications Our common image of formal Qing law as it applied to civil matters is that it was, at best, predicated on a mediatory approach and, at worst, arbitrary and punitive. We were misled by the code's administrative and penal emphasis into overlooking its civil provisions. We were misled also by the code's Confucian packaging into exaggerating moralistic and mediational concerns in magisterial adjudication. And we were misled by the code's mixed layers, contradictions, and sparseness into thinking that it could not have served as an effective and consistent guide to magisterial adjudication. If it is true that magistrates almost always adjudicated civil matters in accordance with the code, then our image of the Qing legal system must be fundamentally revised. Far from soft-headed compassion or moralism, civil adjudication was governed by consistent principles. And far from compromise-seeking through mediation, magistrates ruled unequivocally for one or another party in accordance with the code. That these observations apply to civil law, which was the least specific, least controlled, and most discretion-

r8o

Philip C. C. Huang

ary of all areas of Qing law, suggests strongly that they apply to the legal system as a whole. If this is substantially true, we need also to revise our standard image of how the Chinese populace viewed the law. We have been misled by our misirnpressions of how the law operated in civil matters into thinking that people must have viewed it as at best an unpredictable mediatory agency concerned with maintaining harmony, and at worst a punitive agency concerned only with criminals. Few would have turned to it to protect or assert their civil rights over property, debt, marriage, or inheritance. But the empirical record from our sample suggests the opposite. Magistrates were consistent and predictable in upholding legal rights covered by the code. The civil system operated by the code, not by magisterial whim and arbitrary punishment. It could and did work in favor of those in the right. It was, in other words, something that people actually turned to in order to protect or assert a right. The fact that our case samples come mainly from the nineteenth century, near the tail end of the dynasty, only underscores the point about the surprising correspondence between code and adjudication. This was in the century after the spate of official complaints about systemic breakdown, such as those recounted in Melissa Macauley's chapter in this volume. This was a period straddling the gigantic mid-century rebellions, a time near the bottom of the cycle of dynastic decline. And it was a period of immense pressures from foreign aggression. Nevertheless, the system appears still to have been quite consistent in dispensing justice. All this is not to romanticize the Qing legal system. The empirical evidence and analysis presented here have concentrated on the kinds of cases that were most common in the local courts and least equivocal in the code. There were vast areas outside of these specific and common areas where the code was less clear and magisterial actions probably also less predictable. And, it must not be forgotten, we have substantial evidence of abuse and misuse of the system even within this limited sample of cases. There is evidence, moreover, of mounting pressures on the local courts. Those issues, of multiple operational patterns in the system and of changes over time, will be taken up in my larger study in progress. In this chapter my concern has been to establish that the formal legal system of the Qing did deal frequently and consistently with civil matters, in accordance with the law.

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Appendix to Chapter 6 TABLE 6.A

Cases Studied, by County and Decade Decade

Baxian

1760's 1770's 1780's 1790's 1800's 1810's 1820's 1830's 1840's 1850's 1860's 1870's 1880's 1890's 1900's

20 82 40 38 0 3 60 6 3 56

TOTAL

308

Baodi

Dan·Xin

2 7 18 10 11 25 12 14 8 11 118

TOTAL

20 82 40 38 0 5 67 25 14 77 33 74 116 26 11 628

1 1 10 8 62 102 18 202

TABLE 6.BI

Numbers of Baxian Cases Studied, by Decade and Category Year 1760's 1770's 1780's 1790's 1800's 1810's 1820's 1830's 1840's 1850's TOTAL

Land· related

Debtrelated

7 38 0 19 0 0 19 0 0 17 100

13 37 0 0 0 0 26 0 0 20 96

Marriage- Inheritancerelated related 0 7 40 f8 0 0 15 2 0 17

99

0 0 0 1 0 3

0 4 3 2 13

TOTAL

20 82 40 38 0 3 60 6 3 56 308

Philip C. C. Huang

182

TABLE 6.B2

Numbers of Baodi Cases Studied, by Decade and Category Year

1810's 1820's 1830's 1840's 1850's 1860's 1870's 1880's 1890's 1900's TOTAL

Land· related

Debt· related

0 0 6 1 1 6 3 5 0 1 23

1 3 7 5 4 8 6 5 5 7 51

Marriage· Inheritancerelated related

1 4 4 3 3 7 2 4 2 2 32

0 0 1 1 3 4 1 0 1 1 12

TOTAL

2 7 18 10 11 25 12 14 8 11 118

TABLE 6.B3

Numbers of Dan-Xin "Civil" Cases Studied, by Decade and Category Year

1830's 1840's 1850's 1860's 1870's 1880's 1890's Subtotal Missing Other TOTAL

Landrelated

Debtrelated

1 0 9 6 38 61 10 125 6 3 134

0 0 1 1 14 30 5 51 1 2 54

Marriage- Inheritancerelated related

0 0 0 0 2 6 1 9 0 0 9

0 1 0 1 8 5 2 17 0 0 17

TOTAL

1 1 10 8 62 102 18 202 7 5 214

NOTE: Cataloger Dai Yanhui applied present-day, Western-style categories to the classification of the Dan-Xin archives, while mainland Chinese archivists have stayed much closer to the original Qing classifications. I have not attempted to tamper with Dai's major categories: "administrative," "civil," and "criminal." His "civil" categorization is roughly comparable with the scope of this chapter, with 2 r 4 of the total 222 falling readily under the four categories of cases covered in this chapter. The main caveat comes with the "marriage-related" category, under which mainland Chinese catalogers included adultery and sale of wives and daughters, cases which Dai placed under "criminal." . Within Dai's "civil" category, I have made some minor adjustments to render the subcategories more nearly comparable with the Baxian and Baodi cases. Dai classified ten cases concerned with the conditional sale and redemption of land under "debt," subcategory "mortgaging and pawning" (diandang). I have placed them under "landrelated," following the practice of mainland archivists. Dai also classed thirteen cases concerned with succession under "land and houses," subcategory "property disputes" (zhengcai). I have placed them under "succession." Two of the cases (22602, 22613) in this subcategory of fifteen cases do concern land. In addition, one of Dai's "land and houses," subcategory "collective property" (gongye), cases (22705) actually concerns succession, two "land and houses," subcategory "forcible removal" (chaoya), cases (22901, 22902) actually concern debt, and two "debt" cases, subcategories "buying and selling" (maimai) (23103) and "retrieval" (taowu) (23602), actually concern land.

LAW AND MAGISTERIAL ADJUDICATION

183

TABLE 6.CI

Outcomes of Baxian Cases Outcome Adjudicated a Informally settled By mediation By litigants themselves Incomplete Rejected Other TOTAL a Includes

Inheritancerelated

Landrelated

Debtrelated

Marriagerelated

32 22 22

28 13 13

33 17 17

5 1 1

98 53 53

0 46 0 0 100

0 55 0 0 96

0 45 0 4

0 6 1 0 13

0 152 1 4 308

TOTAL

99

TOTAL

court-arbitrated cases. TABLE 6.C2

Outcomes of Baodi Cases Outcome Adjudicated a Informally settled By mediation By litigants themselves Incomplete Rejected TOTAL

Landrelated

Debtrelated

Marriagerelated

Inheritancerelated

8 10 10

17 19 15

15 13 8

5 3 3

45 45 36

0 5 0 23

4 13 2 51

5 4 0 32

0 4 0 12

26 2 118

TOTAL

9

"Includes court-arbitrated cases. TABLE 6.C3

Outcomes of Dan-Xin Cases Outcome Adjudicated a Informally settled By mediation By litigants themselves Incomplete Rejected Other TOTAL

Debtrelated

Marriagerelated

Inheritancerelated

55 14 13

12 12 10

0 1 1

11 1 1

78 28 25

1 50 4 2 125

2 24 2 1 51

0 7 1 0

0 5 0 0 17

3 86 7 3 202

Landrelated

"Includes court-arbitrated cases.

9

Philip C. C. Huang

184

TABLE 6.01

Breakdown of Incomplete Baxian Case Files Landrelated

Damage or loss of records a Magistrate will not handle himself Plaintiff or defendant not found Ends with summons Other TOTAL

Debtrelated

InheriMarriage- tancerelated related

TOTAL

20

9

0

10

0

0

0

0

7 30 0 46

10 45 0 55

5 30 0 45

0 4 1 6

0 22

109 1 152

a Evidenced by absence of earlier-stage documents when later-stage ones present, by damaged sheets, and the like.

TABLE 6.02

Breakdown of Incomplete Baodi Case Files Landrelated

Damage or loss of records a Plaintiff or defendant not found Magistrate will not handle himself Ends with summons Other TOTAL

Debtrelated

0

InheriMarriage- tancerelated related 0

0

TOTAL

2

6

4

0

12

1 2 0 5

2 3 1 13

0 0 0 4

3 1 0 4

6 6 1 26

a Evidenced by absence of earlier-stage documents when later-stage ones present, by damaged sheets, and the like.

TABLE 6.03

Breakdown of Incomplete Dan-Xin Case Files Landrelated

Damage or loss of records a Plaintiff or defendant not found Ends with summons Magistrate will not handle himself Other TOTAL

InheriDebt- Marriage- tancerelated related related

TOTAL

5

3

0

0

8

0 21

3 12

1 3

0 3

4 39

22 2 50

4 2 24

3 0 7

2 0 5

31 4 86

a Evidenced by absence of earlier-stage documents when later-stage ones present, by damaged sheets, and the like.

LAW AND MAGISTERIAL ADJUDICATION

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TABLE 6.EI

Cases Heard by the Baxian Court, by Type of Ruling Ruling For plaintiff Bylaw Extralegal principle With compromise a For defendant False accusation Other legal principle Extralegal principle With compromise a No winner Bylaw By arbitration Further investigation orderedb Other TOTAL

Inheri· tance· related

Land· related

Debtrelated

Marriage· related

13 13 0 (3J 10 5 4 1 (1J 5 1 4

19 18 1 (2J 4 4 0 0 (0) 2 0 2

14 14 0 (OJ 6 6 0 0 (1) 6 3 3

1 1 0 (OJ 2 0 2 0 (0) 1 0 1

47 46 1 (5J 22 15 6 1 (2) 14 4

4 0 32

0 3 28

1 6 33

0 1 5

5 10 98

TOTAL

10

NoT B: Where there were multiple court sessions and more than one court judgment, the case is counted by the first judgment. a Compromises are given in parentheses because they are already counted among the cases for each category; that is, they do not constitute additional cases. Rulings for one or the other party did not preclude minor face-saving compromises, even if only symbolic. blncludes only those not followed by another court session. TABLE 6.E2

Cases Heard by the Baodi Court, by Type of Ruling Ruling For plaintiff Bylaw Extralegal principle With compromise a For defendant False accusation Other legal principle Extralegal principle With compromise" No winner Bylaw By arbitration Further investigation orderedb TOTAL

Landrelated

Debtrelated

Marriage· related

Inheritance· related

TOTAL

4 4 0 (O) 3 1 2 0 (0) 0 0 0

5 4 1 (O) 10 6 4 0 (O) 2 2 0

8 8 0 (1) 3 1 2 0 (OJ 4 3 1

4 4 0 (O) 1 0 1 0 (OJ 0 0 0

21 20 1 (1) 17 8

1 8

0 17

0 15

0 5

1 45

9 0 (0) 6 5 1

NOTE: Where there were multiple court sessions and more than one court judgment, the case is counted by the first judgment. a Compromises are given in parentheses because they are already counted among the cases for each category; that is, they do not constitute additional cases. Rulings for one or the other party did not preclude minor face-saving compromises, even if only symbolic. blncludes only those not followed by another court session.

Philip C. C. Huang

r86

TABLE 6.E3

Cases Heard by the Dan-Xin Courts, by Type of Ruling Ruling For plaintiff Bylaw Extralegal principle With compromise a For defendant False accusation Other legal principle Extralegal principle With compromise• No winner Bylaw By arbitration Further investigation orderedb Other TOTAL

Landrelated

32 32 0 12) 12

Debtrelated

Marriagerelated

0

0 11) 10 9 1

9 9 0 IO) 2 2 0 0 IO) 1 1 0

0 1 55

0 0 12

0 0 0

6 6

0

0

Inheritancerelated

TOTAL

3 3 0 IO) 5 5 0 0 IO) 3 3 0

44 44 0 12) 19 13

0 0 11

0 1 78

6

0 11) 14 13 1

NOTE: Where there were multiple court sessions and more than one court judgment, the case is counted by the first judgment. a compromises are given in parentheses because they are already counted among the cases for each category; that is, they do not constitute additional cases. Rulings for one or the other party did not preclude minor face-saving compromises, even if only symbolic. bJnc!udes only those not followed by another court session.

CHAPTER SEVEN

Kathryn Bernhardt

Women and the Law: Divorce in the Republican Period

C

HINA ADOPTED IN 1929-31 a modern civil code based on the European continental model. How did this code work in practice? Almost nothing has been written on the subject. The assumption appears to be that the Republican civil code could not have had any real impact, in part because China lacked a civil law tradition and in part because the new code seemed so far removed from Chinese social reality. But the Chinese soil was not as inhospitable for the foreign transplant as one might think. As other chapters in this volume show, the ground had been prepared by a tradition of codified civil law and of magisterial adjudication of civil disputes. With this tradition to build on, it was a relatively easy matter for legal reformers in the late Qing and early Republic to separate out the civil and the criminal in codified law and to establish a two-track system for civil and criminal affairs in the newly formed modern courts. In terms of content as well, the Republican civil code, though primarily of foreign origin, nevertheless included many features that were compatible with both the Qing code and Chinese social customs. Finally, the idea and practice of going to court to assert a right-be it the right to recover a debt, the right to inherit property, or the right to adopt a successor-was not at all foreign to the Chinese experience. There was thus an essential continuity in China's civil law tradition from the Qing to the Republic. At the same time, however, there were also important discontinuities. The new code greatly expanded the scope of civil law in China, covering more areas in more detail than did the Qing code, with its predominantly penal and administrative emphasis.

188

Kathryn Bernhardt

As important, the new code also redefined the legal rights of individuals in such crucial matters as marriage, divorce, and inheritance. It was in these new areas that the tensions between the Republican civil code and social practice were most clearly revealed. This chapter examines one of the most important of these discontinuities. In the Qing code, a wife's right to divorce her husband was severely restricted. With the promulgation of the Republican civil code, however, China came to have one of the most liberal divorce laws in the world. Modeled after the Swiss and German codes, it allowed for equal access to women on ten different grounds. It also allowed easy "no fault" mutual consent divorce, surpassing in that respect even its Swiss and German models as well as the codes of contemporary England, France, and the United States (Phillips 1988). This chapter approaches the subject of women and divorce in Republican China on three levels: legal intent as embodied in the code; the gap between legal intent and· social reality; and the interaction of the two in actual legal practice. The Republican lawmakers explicitly upheld the principle of male-female equality, intending the civil code to be a major force in reshaping gender and family relations. The necessary first step, they believed, was to provide women with the means to liberate themselves from oppressive marriages. They thus made divorce, in principle at least, as readily available to women as it had been to men. This legal ideal had to confront the backward social reality of Republican China. Women, after all, were heavily discriminated against in all walks of life; wife abuse was common; adultery was common among men; and keeping a concubine widely practiced among the wealthy and powerful. Records of court cases show us the actual legal practice that emerged out of the tension between legal intent and social reality. Judges were obligated to uphold the law, but at the same time they could not help but be influenced by the prevailing social norms. They were agents of social change, as well as products of the Republican social context. On balance, though the code's intent was not fully realized in actual application, neither was it completely compromised by social reality. Women of the Republican period did not quite gain the equality with men promised by the code, but they certainly found it far easier to obtain a divorce than women of the Qing. This is not, of course, to suggest that divorce became common-

DIVORCE IN THE REPUBLICAN PERIOD

I89

place in Republican China. The civil code had its greatest impact in the cities, where knowledge of the new law was more widespread and the new courts more easily accessible. But even there divorce, though on the increase, remained relatively rare. 1 In the countryside, the code had even less impact (P. Huang 1991). The legal reforms of the Republican period thus lacked the depth of the CCP's 1950 Marriage Law and the nationwide campaign to enforce it (Johnson 1983). Nevertheless, they served, at least in urban China, as an important bridge between the old and the new.

Divorce in the Qing and Republican Codes In Qing law divorce was almost impossible for a woman to obtain. In the first place, she herself did :hot even have the right to bring a lawsuit against her husband or the senior members of his family, for the code prohibited people of inferior status from litigating against their legal superiors. A divorce action therefore had to be initiated by her natal family (Statute 337). Furthermore, there was only a limited number of grounds on which her natal family could pursue a divorce on her behalf. If her husband had abandoned her for more than three years, for instance, they could apply to the magistrate for a certificate ending the marriage (Statute rr6). 2 They could also report him if he beat her badly enough to cause permanent injury (at the minimum, a broken tooth or bone, impaired vision, or burns), but the divorce could only be granted if the husband agreed to it (Statute 3 r 5 ). Divorce was also possible if the husband, his parents, or his grandparents committed certain criminal acts that Qing law considered to be violations of the marital bond (yijue). For example: the husband pawns, pledges, or sells his wife to another (Statute ro2; 367); the husband, his parents, or grandparents permit or force the wife to commit adultery (Statute 367); the husband's parents or grandparents beat the wife without reason (feili ), seriously injuring her (Statute 319). In these situations divorce was obligatory, and anyone failing to comply was subject to 8o blows of the heavy bamboo (Statute rr6). A husband in the Qing, in contrast, enjoyed a much broader range of grounds for divorce. The "seven conditions" (qichu) provided that he could divorce his wife for bearing him no son, for adultery, for being unfilial toward his parents, for loquacity, for theft, for jealousy, and for incurable disease. If none of the conditions existed,

Kathryn Bernhardt

however, a man who arbitrarily expelled his wife could be subject to 8o blows of the heavy bamboo. The seven conditions were in turn restricted by the "three limitations" (san buqu), which specified that a husband may not dismiss his wife for any of these reasons except adultery if she had observed the three-year mourning period for her parents-in-law, if he had been poor when they first married and subsequently became rich, and if she had no relatives to return to (Substatute n6-or). Outside of the seven conditions, a man could also "divorce" a wife who had run away by selling her into marriage to another man (Statute n6). Divorce by mutual consent was also allowed. More specifically, the Qing code states that if the relationship between a husband and wife is not harmonious and they both wish to end their marriage, they would not be punished for doing so. A couple's mutual desire to part, the code explains, indicates that they have already become so emotionally estranged that it would be difficult to force them to stay together (No. rr6). With the legal reforms of the Republican period, women's access to divorce was greatly expanded. In the first place, a wife acquired the right to bring suit against her husband directly. Indeed, the new civil procedural laws explicitly required that the wife and the husband be the principals in any marital litigation. Parents could bring suit in their child's stead only if the daughter or son was a minor under the age of 20 sui (Liufa quanshu 1932: 428; Chiu 1966: !72-73).

As important, the new civil code radically revised the legal grounds for divorce, making them equally available to men and women. The ten grounds as listed in Article 1052 of the code 3 are: bigamy; adultery; spousal ill-treatment of a degree that makes living together intolerable; the wife's ill-treatment of her husband's lineal ascendants and their ill-treatment of her to a degree that makes living together intolerable; ongoing malicious (eyi) desertion; the attempted murder of one spouse by the other; an incurable "loathsome" physical disease (eji ); a serious and incurable mental illness; disappearance for over three years; and imprisonment of more than three years' duration or for the commission of an infamous crime (bu mingyu zhi zui). 4 These new provisions served to curtail men's access to divorce. A husband lost the right to divorce his wife for barrenness, jealousy, loquacity, or theft. He also could not divorce her for being simply

DIVORCE IN THE REPUBLICAN PERIOD

unfilial toward his parents or for contracting an incurable disease that was not also life-threatening and communicable. The Republican civil code and its liberal divorce provisions were several decades in the making. A first draft was drawn up in the last several years of the Qing in conjunction with the writing of a new criminal code. The latter was adopted in 1910, but the civil code generated too much opposition and was not put into effect. It was later redrafted in 1915 and again in 1925, but these versions also were fated to remain merely on paper (van der Valk 1939: 25-31, 42-44). In the interim, those sections of the Qing code that dealt with

civil matters remained in effect. This did not mean, however, that no change took place, for the Daliyuan,s China's highest court in the early Republican period, was empowered to interpret and amend those laws so that they were not, as the court's president put it in 1920, "inconsistent with the spirit of the age" (F. T. Cheng 1923: i). The Daliyuan's interpretations and decisions thus formed an important body of transitional law. As will be examined in more detail later, by the time the family section of the civil code was put into effect in May 1931 the operative laws on divorce, with some exceptions, had already been significantly revised.

Varieties of Divorce Mutual Consent Divorce For both women and men, the main avenue to divorce in the Republican period was the highly liberal provision for divorce by mutual consent (xieyi lihun ). The procedure for effecting a mutual consent divorce was extremely simple. The couple need only draw up a divorce agreement, witnessed and signed by at least two other persons (Art. 1050). They did not have to file a petition with the court or register their divorce with the government. They also did not have to engage lawyers, for the witnesses to the document could be anyone, provided they were adults (over 20 sui) and of sound mind (Chiu 1966: 174). To be on the safe side and to make sure that all the legalities had been followed, some divorcing couples preferred to use the services of lawyers. The following agreement for a mutual consent divorce was drawn up by lawyers associated with the Shanghai Lawyers' Office (Shanghai liishi shiwusuo) on September 8, 1940:

Kathryn Bemhardt Because incompatibility (yijian buhe) makes it impossible for us to grow old together as husband and wife, Lai Yiren and Fei Guiying, the parties to this contract for mutual consent divorce (hereafter referred to simply as party A and party B), do hereby mutually agree to end their marriage. Accordingly, they list the terms of the agreement below: 1. The marriage of the two parties shall be terminated from the date of the signing of this document. Henceforth, each may freely remarry without any interference from the other. 2. From the date of the signing of this document, neither party may demand any property from the other. Each party shall be responsible for the debts he or she incurred prior to the divorce, whether they were for family expenses or for personal use; the other party shall not be involved. 3· Our infant daughter, Lushan, now just four months old, shall go to party B [the wife] to raise, educate, and have guardianship over. 6 4· Five copies of this contract have been drawn up. The parties shall each retain one copy. The others shall be handed over as proof to the Lawyers' Office for future reference.

The document was signed by the two principals and by two lawyers acting as witnesses (Shanghai 1940: 180-2-2793). After divorcing, a couple, particularly if they lived in a big city, might then decide to announce the dissolution of their marriage in a newspaper. This was not only a quick and convenient way to inform their friends, relatives, and acquaintances of their changed relationship, but, more importantly, it served notice that each could no longer be held responsible for the other's actions, especially for any debts they might incur. Most commonly, announcements of this sort were short, matter-of-fact, and sparing of details about child custody and financial arrangements. The following is representative: "Because of incompatibility, it is impossible for us to grow old together as husband and wife. We have already mutually agreed to dissolve our marital relationship. Hereafter, each party can freely remarry as he/she wishes, and the other cannot interfere. In addition to drawing up a divorce document, we hereby are making this special announcement" (Shenbao May 26, 1935). Almost all such announcements gave incompatibility as the reason for the divorce. A few rare individuals used the occasion of announcing their divorce to make a strong political statement. The following appeared in a February 1929 issue of the Shanghai newspaper Shenbao: We both have suffered a loveless, unfree marriage for a long time. To express our revolutionary spirit in today's world, we should quickly liberate ourselves. It is only because there is no love or freedom that we do divorce.

DIVORCE IN THE REPUBLICAN PERIOD

193

There are absolutely no other reasons. Divorce is definitely not a shameful affair, and we do not divorce out of enmity. We will still be responsible for each other in times of need, but after the divorce, neither party shall interfere with the remarriage of the other. The revolutionary spirit moved the husband, Wang Xuan, to relinquish the custody of their child to his wife, Liu Eying, as well as ownership of most of his property, "both the movables and immovables," to sell or to keep as she saw fit, including their house, two business establishments, some agricultural land, and all furniture, livestock, and lumber. Wang Xuan would keep for himself only enough to cover the expenses for his move back to his home county (Shenbao Feb. 2, I929). The available evidence suggests that mutual consent divorce comprised the overwhelming majority of divorces in Republican China. For instance, 70 percent of the reported 3,I7I divorces in Shanghai from August I928 to August I934 were by mutual consent.? By settling their dispute privately, the divorcing couple was spared not only court costs, but also the humiliation of airing one's private life before a judge and possibly, courtesy of the ubiquitous urban presses, before an avid reading public as well.

Court Divorce Only after attempts to work out a mutual consent agreement failed did troubled couples take legal action and file for a divorce at court. The purpose of initiating a divorce suit was not necessarily to see the process through to its final stage of a judgment. Rather, it was as often as not an effort to make the other party more amenable to some sort of private resolution. Frequently just the filing of the plaint was enough to provoke the other into some kind of response. Indeed, in as many as I 5 percent of the I I 8 divorce plaints filed with the Beijing District Court in I942, the petitioner withdrew his/her case because the couple wanted to pursue outside mediation or because they had already reached a solution (Beijing I942). If the mere filing of a divorce plaint did not produce a resolution, then chances were that court mediation would. The Republican judicial system encouraged the resolution of civil disputes through mediation rather than adjudication. Procedurally, there were two routes to court mediation for people seeking a divorce. In the first, the petitioner specifically asked for such mediation in the plaint, sometimes then requesting that the case proceed to adjudication

Kathryn Bernhardt

194

should mediation fail. Upon the receipt of such a request, court clerks routed it directly to the mediation court for civil affairs (minshi tiaojie fating), where a judge met with the couple and tried to help them work out their differences. If the parties could not reach an agreement, then the petitioner could decide to proceed to adjudication. But if they reached an agreement, then a court clerk drew up a statement to that effect (called a hejie bilu), which the judge and the couple then signed. Second, even if the initiator of a divorce suit did not specifically ask for mediation, the judge nevertheless tried to settle the case before it reached adjudication. The Code of Civil Procedure provided specifically that judges may attempt to induce the litigants to come to a compromise at any stage of the proceedings (Liufa quanshu 1932: 403; Sifa gongbao 21, Apr. 23, 1935: 46). During his questioning, a judge hearing a divorce case typically urged the couple to try to reach an understanding. If they were able to do so, the case was then forwarded to the mediation court and an agreement was drawn up. If not, then the judge would write out his final decision. Of the 1942 Beijing cases, 38 percent were settled through court mediation and 30 percent through adjudication. Most mediated cases resulted in divorce. Indeed, people whose suits were settled this way stood a much better chance of obtaining a divorce than people whose cases were adjudicated. Couples divorced in fully 78 percent of the mediated cases, compared with only 3 7 percent of the adjudicated ones (Table 7.1). TABLE 7.1

Breakdown of Divorce Cases in Shanghai, 1940-41, and Beijing, 1942 Shanghai 1940-41

Adjudicated cases Divorce granted Divorce denied Court-mediated cases Divorce No divorce Withdrawn cases• TOTAL

Beijing 1942

61 41 20

35 13 22 45 35

4 65

38

10 118

SOURCES: Shanghai 1940-41; and Beijing 1942. •cases withdmwn either because the plaintiffs decided to pursue outside mediation or because they failed to file their plaints properly.

195

DIVORCE IN THE REPUBLICAN PERIOD

Women and the Court Women brought suit for divorce much more frequently than did men. As Table 7.2 shows, women initiated 77 percent of divorce suits in Beijing in 1942 and 74 percent in Shanghai in 1940-4I, a pattern also evident at other times and in other cities. The explanation has in part to do with a sympathetic civil code and in part with a court system that was relatively affordable and efficient. While the divorce laws of the Qing had been weighted heavily in favor of the husband's interests, the grounds for judicial divorce in the Republican civil code reflected the realities of women's lives much more than men's. Because of the unequal power relations within a family, a wife was much more likely to suffer physical abuse from her husband and his parents than they were from her. Because of a wife's economic dependence on her husband, she was more likely than he to seek legal redress on the grounds of desertion. A man, by consorting with prostitutes, was much more likely than his wife to contract a venereal disease. And if the population of the country's prisons is any indication, men were much more likely to be convicted of a crime and sentenced to jail time. 8 The only grounds for which some sort of parity existed were disappearance, adultery, and perhaps bigamy (Tables 7-3 and 7.4). As discussed in Chapter r in this volume, the cost of civil litigation in the Republican period was not prohibitive. In the late 1930's and early 1940's, the basic court fee for civil cases that did not involve property was 4.50 yuan if the plaintiff was requesting court TABLE 7.2·

Initiators of Divorce Suits in Various Cities, 1929-42 Place

Date

Guangzhou Tianjin

July-Dec.

Beijing Shanghai Beijing

1929 1929 1930 1940-41 1942

SOURCES: Tan 1932: 57-62; NOTE: The Beijing 1942 data

No. of cases

Female· initiated

Male-initiated

No.

Percent

No.

Percent

47

42

89%

5

11%

28 62 65 118

24 41 48 91

86 66 74 77

4 16 17 27

14 26 26

Unclear No.

5

Percent

8%

23

Beijing 1942; and Shanghai 1940-41. cover all divorce suits brought before the Beijing District Court in that year-cases that were withdrawn, court-mediated, and adjudicated. The Shanghai 1940- , 41 cases consist of adjudicated cases only, both those that ended in divorce and those that did not. All other data concern only adjudicated cases that ended in divorce.

Kathryn Bernhardt

196

TABLE7.3

Grounds for Divorce, Beijing, 1942 Female-initiated

Grounds cited in plaint

Bigamy Adjudicated Mediated Other" Adultery Adjudicated Mediated Other Spousal cruelty Adjudicated Mediated Other Familial cruelty Adjudicated Mediated Other Desertion Adjudicated Mediated Other Murder attempt Adjudicated Mediated Other Physical illness Adjudicated Mediated Other Mental illness Adjudicated Mediated Other Disappearance Adjudicated Mediated Other Criminal conviction Adjudicated Mediated Other

No. of cases 5 1 3 1 7 1 3 3 62 18 24 20 18 6 8 4 45 12 19 14 5 2 1 2 6 2 2 2

6%

8

70

20

51

6

9 2 6 1

3 0 3

0%

4 1 3

100

21 3 18

17

6 0 6

0

17 2 15

17

1 0

0

1

7

1 1

0 0 5 1 0 4

Male-initiated

Percent of adjudiPercent Divorce cated of cases secured cases

6

10

0

0 0 0

0

1

3 0 3

2 0 2 0 6 3 1 2 2 0 1 1 3 0 1 2 13 5 3 5 1 0 0 1 1

2 0 2

1 0

No. of cases

100

0

1 0 0 0 0 0 0 3 3 0 0 1 0 1 0

Percent Percent of adjudiof Divorce cated cases secured cases 8%

24

2 0 2 2 2 1

8

1 0 1

12

1 0 1

52

5 3 2

4

0 0 0

4

0 0 0

0

0 0 0

12

2 2 0

4

67%

60

0

67

1 0 1

SOURCE: Beijing 1942. NOTE: Since the grounds are not clear in three of the 91 female-initiated suits and two of the 27 maleinitiated suits, the number of cases covered here is 88 and 25, respectively. Also, the totals in the "No. of cases" columns exceed 88 and 25 because plaintiffs often brought suit on a number of grounds. The "Percent of cases" columns represent the percentage based on 88 and 25, respectively. Thus, for example, women cited bigamy as a ground for divorce in five or 6 percent of the 88 cases. The "Percent of adjudicated cases"

columns represent the percentage of adjudicated cases in each category that ended in a ruling for divorce. "Cases that were withdrawn in favor of outside mediation or because of procedural problems. Since the court records do not consistently contain information about the subsequent fate of the couples in this category of cases, the corresponding spaces in the "divorce secured" columns have been left blank.

DIVORCE IN THE REPUBLICAN PERIOD

197

TABLE 7.4 Grounds for Judicial Divorces, Shanghai, 1940-41 Female-initiated

Male-initiated

Divorce granted

Grounds cited in plaint

Bigamy Adultery Spousal cruelty Familial cruelty Desertion Murder attempt Physical illness Mental illness Disappearance Criminal conviction

No. No. of Percent of cases of cases cases

1 5 18 1 17 3 3 1 12 8

2% 11 41 2 39 7 7 2 27 18

1 1 5 0 12 2 0 l

8 3

Divorce granted

No. No. Percent of Percent of Percent of cases cases of cases cases of cases

100% 20 28 0 71 67 0 100 67 38

0 2 0 1 7 0 0 0 9 l

0 12% 6 41

53 6

l

0 0 6 0 0 0 7 1

50% 0 86

78 100

SOURCE: Shanghai 1940-41. NOTE: Since the grounds aie

not clear in four of the female-initiated suits, the number of cases covered here is 44, rather than the 48 cases noted elsewhere. The number of male-initiated suits covered is 17. Also, the totals in the "No. of cases" columns exceed 44 and 17 because plaintiffs often brought suit on multiple grounds. The "Percent of cases" columns represent the percentage based on 44 and 17. Under "Divorce granted" the "No. of cases" and the "Percent of cases" represent the number and percentage of cases in each category that ended in a judicial ruling for divorce.

adjudication, but only o. 7 5 yuan if she or he was petitioning for a court mediation. Additional costs included o.6o yuan for the plaint form; o.ro yuan to the scribe for every one hundred characters; 0.75 yuan for the form informing the court of one's engagement of a lawyer; a fee for sending out a summons to the defendant and any witnesses, calculated on a graduated scale depending on the distance to be covered by the court personnel (0.15 yuan for each summons delivered within ten li, 0.23 yuan for ten to fifteen li, 0.30 yuan for fifteen to twenty li, and so on [r li = 0.3 miles]); and finally a fee for a written copy of the mediated settlement or court judgment, calculated at o. r 5 yuan for every hundred characters. The cost for cases that went on to appeals was higher, but not excessively so. The basic court fee was 6.3 yuan for an appeal to a superior court (gaodeng fayuan) and 7.2 yuan for an appeal to the Supreme Court. All other fees remained the same (Niida, ed. 195258, r: 309-13; Beijing 1942: ro8, 239, r627). To help put this cost in perspective, a Beijing rickshaw puller at this time could earn two to three yuan a day, a Shanghai woman cotton mill worker 0.50-0.65 yuan a day, and a Hebei agricultural day laborer about

Kathryn Bemhardt

o.so yuan a day (Beijing I942: 4488; Honig I986: I?6; P. Huang I985: I97). The plaintiff had to pay all these costs, except the fee for a copy of the settlement or judgment, at the time of the submission of the plaint. If she or he subsequently withdrew the case, the fees would be refunded. If the case ended in a court-mediated settlement, they would be split between the plaintiff and the defendant. If the case ended in a favorable judgment for the plaintiff, they would be charged to the defendant. To help keep expenses down, most divorcing couples did not hire lawyers. In the I942 Beijing cases, for instance, only I9 percent (I6 women and I 5 men) of the plaintiffs and defendants in the 8o courtmediated or adjudicated cases were represented by legal counsel. 9 For most litigants, therefore, the only expense was court fees. Those fees, though not low, were not so high as to limit access to the well-to-do only. Indeed, in the I942 Beijing cases the couples came mostly from the ranks of the working class and the unemployed. Forty-five percent of the husbands worked in lower class or blue-collar jobs as rickshaw pullers, factory workers, craftsmen, peasants, street vendors, and so on, and another 36 percent were unemployed at the time of the litigation. Only I 9 percent had occupations that could be considered middle class or white-collarmerchant, clerk in store or bank, doctor, military officer, and student (Table y.s). Only ten of the wives in the Beijing cases supplied information about jobs in their plaints. Five worked as servants, two as factory workers, one as a handicraft worker, one as an opera singer, and one identified herself as a peasant. 10 If litigation costs did not discourage even these poorer women from taking their cases to court, they were high enough to discourage them from seeking alimony (shanyangfei) or other sorts of financial compensation along with the divorce." Once a lawsuit involved property claims, the fees mounted up on a graduated scale-0-45 yuan for a claim of less than IO yuan, 0.90 yuan for ro to 25 yuan, 2.25 yuan for 25 to 50 yuan, and so on up to I05 yuan for a claim of 8,ooo- Io,ooo yuan, after which an extra 4.50 yuan would be charged for every additional I ,ooo yuan of property involved (Niida, ed. I 9 52sB, I: 3I2-I3). This cost proved to be prohibitive for most women, with the result that only I 9 percent of the female plaintiffs in both the Beijing and the Shanghai cases requested alimony and/or other financial compensation in their plaints.

DIVORCE IN THE REPUBLICAN PERIOD

TABLE

199

7·5

Occupations of Men Involved in Divorce Suits, Beiiing, 1942 Occupation

Number

Unemployed Lower class Craftsman" Rickshaw puller Factory worker Peasant Peddler Food vendor Waiter Barber Servant Drummer Fortune teller Beggar Middle class Merchant Clerk in bank or store Military officer Doctor Student

23 29 5 5

TOTAL

64

Percent

36%

45

4 3 3 2 2 1 1 1 1 1 12 7

19

2 1 1 1 100%

SOURCE: Beijing 1942. NOTE: Only 64 of the 1942

Beijing case records contain information about the husband's occupation. "A craftsman here refers to a man identified in the records as being employed in traditional handicraft production (shouyi or shougong).

Aside from the relative affordability of initiating a simple divorce suit, litigation was no doubt also encouraged by the admirable speed with which the court system handled civil cases. In Beijing in 1942, a person bringing suit for divorce could reasonably expect a resolution within a matter of weeks. In the court-mediated cases, an average of only seventeen days went by between the filing of the plaint and the signing of the mediated agreement. (In I7 of the 45 mediated cases, the agreement was signed within ten days of the filing of the plaint.) The adjudicated cases took longer, but still averaged only 40 days from plaint to judgment.' 2 The progress of a case slowed somewhat as it entered appeals. Even so, the time between a Beijing District Court decision and a Hebei Superior Court decision averaged 69 days. Thus, for those di-

200

Kathryn Bernhardt

vorce cases that reached that level, on average less than four months (113 days) lapsed between the filing of the plaint and the handing down of the superior court ruling. None of the 1942 Beijing cases was then appealed to the Supreme Court, but information from some Beijing divorce records of the 1930's suggests that it normally took another nine months for the case to be attended to at that level. Altogether, then, the entire process-from the filing of the plaint to the Supreme Court decision-too~ on average only about thirteen months.

The Major Grounds for Divorce The letter of the code and the relative accessibility of the system would lead one to imagine very great changes. But in reality, change, though substantial, remained some distance from the legal ideal. In actual application, the courts remained quite strict, despite the code's liberal provisions. Though women of the Republican period had far greater access to divorce than did women of the Qing, they did not necessarily find it easy to obtain one.

Spousal Cruelty and Familial Cruelty Spousal cruelty was the most commonly cited grounds for divorce. Nationwide from 1934 to 1939, 31 percent of the reported 3,206 judicial divorces were granted for this reason (Table 7.6). In large metropolises, the incidence was higher. In the Shangha1 cases studied here, women cited spousal cruelty in 41 percent of their plaints, and in the Beijing cases 70 percent (Tables 7·3 and 7.4). Qing law, as we have seen, had also permitted a wife to apply for a divorce because of her husband's physical abuse. But her injuries had to be severe and permanent, and her husband had also to agree to the divorce. A man, however, could divorce his wife if she just dealt him a single blow or slap without inflicting any injuries at all (Statute 315; 302). The reformed code of the late Qing retained these statutes, but decisions by the Daliyuan in the 191o's and 192o's greatly changed their content. In the first place, the court ruled that when a wife sought a divorce on these grounds, the consent of the husband was no longer required before a judge could decide in her favor. In the second place, it ruled that the severity of the wounds was not to be

DIVORCE IN THE REPUBLICAN PERIOD

201

TABLE 7.6

Grounds for Judicial Divorces, 1934-39 (national statistics) Grounds Bigamy Adultery Spousal cruelty Familial cruelty Desenion Murder attempt

Number of cases

264 409 1,002 300 596 41

Percent of total cases

8% 13 31 9 19 1

Grounds Physical illness Mental illness Disappearance Criminal conviction TOTAL

Number of cases

90 53 297 154 3,206

Percent of total cases

3% 2 9 5 100%

SOURCE: Sifa tongji n.d., 2: 108-12; 5: 47· NOTE: The figures here do not represent all

the judicial divorces granted in the years 193439, only those reported to the Judicial Yuan by district courts. They thus do not include the divorces given by county courts. Moreover, not all district courts forwarded this information annually; the number of courts reporting each year ranged from 44 to 130.

the only criterion for determining physical abuse. If the husband beat his wife so often that cohabitation became impossible, then divorce would be permitted, even if she suffered only slight injuries each time (Daliyuan 1918: 241-2739; Riasanovsky 1927: 147-48). This change in the definition of physical cruelty was advantageous to wives, but the law of the time was still heavily weighted in the husband's favor. A husband seeking divorce for this reason did not have to prove that his wife's ill-treatment resulted in serious bodily harm or that it was habitual. A light blow or slap from his wife still qualified as mistreatment so intolerable that divorce should be allowed (Riasanovsky 1927: 148). The Republican civil code of 1929-31 equalized the definition of mistreatment, making it more difficult for men to gain divorce on these grounds, but otherwise affirmed the Daliyuan's guidelines for determining intolerable cruelty. Judges were to consider whether the cruelty was episodic or habitual and whether the injuries sustained were serious or slight. In a single incident, the injuries had to be serious: physical abuse that resulted in no wounds or only slight wounds, such as a slap in the face or a black eye, was not sufficient. But in the case of habitual abuse, the extent of injury was immaterial, and a divorce could be granted, however slight the wounds (Zuigao fayuan panli yaozhi 1934, 1: II6; Chiu 1966: 176). In application, the courts tended to be exacting in their defini-

202

Kathryn Bernhardt

tion of intolerable cruelty. The Shanghai women won a favorable judgment in only 28 percent of their suits and the Beijing women in only I7 percent (Tables 7·3 and 7-4). Judges at the Shanghai and Beijing courts held the plaintiff to a very strict standard of proof, requiring her to supply witnesses to the beatings, hospital records detailing the extent of her injuries, police records if she had reported her husband, or court records if she had brought suit against him for assault and battery. Such evidence was necessary for every single instance of the alleged mistreatment. But even providing such evidence did not guarantee success, for a judge still had considerable latitude in deciding whether the abuse made it impossible for the couple to continue their marriage. Generally women who could prove beyond doubt that they had been beaten severely just once did better than those who attempted to try to establish a pattern of habitual abuse that did not involve serious injuries. Thus, a Beijing woman got a divorce because her husband had injured her back seriously by beating her with a stool, an action for which he had also been convicted and fined (Beijing 1942: 5306). But another Beijing wife did not do as well against her husband of less than one year. She proved to the judge that her husband had beaten her three times since their marriage, for which he had been convicted and fined twice. The judge ruled against her, arguing that her injuries had only been slight and that three beatings in one year was not intolerable ill-treatment (Beijing 1942: 716). In such divorce suits, a wife had to make sure that her own conduct was beyond reproach or, to use the language of the court records, that she was not deficient in the "way of a woman" (fudao ). This the Supreme Court made clear in its handling in 1935 of an appeal by a young woman from Hunan. According to her testimony, her husband and father-in-law had bound her hands and feet with rope, keeping her shackled for several days. Her mother reported the incident to the police, and the two men were arrested and fined. In their defense the two maintained that they had treated her in such a way because they had suspected her of adultery. The Supreme Court, denying her appeal, reasoned that in this instance "if one party is dissolute in conduct, and the other party, in a sudden fit of rage, engages in excessive behavior [e.g., becomes physically abusive], that is clearly different from intolerable cruelty and cannot be used as a reason to request divorce" (Sifa gongbao 91, Jan. r, 1936: 39-40).

DIVORCE IN THE REPUBLICAN PERIOD

203

In the Beijing and Shanghai cases, the judges also looked closely at a wife's behavior to assess the husband's guilt. In 1940 a Shanghai wife brought suit against her husband for having beaten her so severely that she required hospitalization. She reported the incident to the police and to the procurator's office. He was found guilty of assault and fined. At the divorce hearing, the husband explained to the judge that on the night of the beating he had just gotten off his shift as a bus driver, only to arrive home to find his wife and some friends playing mahjong. Worried that he would not be able to sleep through the noise and that his job performance would suffer as a result, he ordered his wife to stop the game and send her friends home. She refused, and "the conflict," as he called it, ensued. The judge denied her the divorce, reasoning that it was her disobedience that had provoked his attack in the first place (Shanghai 1940: 1801-48). In other instances as well the woman's behavior became the

central issue of the case. One Shanghai husband, for instance, had beaten his wife for attiring herself in a manner (gold earrings, watch, and a patterned qipao, presumably given to her by her own parents) inappropriate for her station as a factory worker's wife (Shanghai 1941: 180-1-62). A Beijing husband had beaten his wife when she returned yet again to visit her natal family without his permission (Beijing 1942: 1294). In both cases, the judges deemed the wife's behavior to have been improper and the husband's understandable. A Supreme Court decision of 1933 took the liberal position that cruelty included mental (jingshenshang) cruelty (Chiu 1966: 181). As applied by the Shanghai and Beijing courts, however, the notion of mental cruelty was largely restricted to cases of a husband forcing a wife to become a prostitute. In those cases, it was up to the woman to prove that she had not been willing. Generally she stood a better chance in her suit if she had done everything in her power to resist. The Shanghai court, for example, awarded a divorce in 1940 to a woman who had managed to run away immediately from the brothel to which her husband had pawned her for 250 yuan (Shanghai 1940: 180-1-48). And the Beijing court awarded a divorce to a woman who had attempted suicide by swallowing opium rather than to submit to her husband's plans to prostitute her (Beijing 1942: 7401-2087).

Women's suits against their husbands on the grounds of cruelty often included complaints against their parents-in-law as well (18

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out of the 62 Beijing abuse cases initiated by women). Qing law considered a wife's ill-treatment at the hands of her husband's parents or grandparents to be a breaking of the bond. But for divorce to be in order, the physical abuse had to be without provocation and it had to result in injuries even more serious than the legal minimum required in the case of physical ill-treatment by a husband (Statute 319). A wife, on the other hand, could be divorced if she was not filial toward her parents-in-law. That condition covered about everything a wife could conceivably do, but the Qing code also spelled out in other statutes that she was to be beheaded if she struck her husband's parents or grandparents and strangled if she scolded them (Statute 319; Substatute 329-01). In the Republican code, the fourth provision of Article 1052 allowed divorce when "the wife has so ill-treated the direct lineal ascendants [parents and grandparents] of the husband or has been so ill-treated by them that life in common becomes intolerable." This is the only provision for divorce that cannot be found in the Swiss and German codes that had served as its models. By including this as a ground for divorce, the lawmakers were recognizing the simple fact that for most couples in China, a life in common meant a life with the husband's parents and that troubles between a wife and her in-laws could be just as disruptive of a marriage as troubles between a wife and her husband. Nationwide from 1934 to 1939, familial cruelty served as the grounds in 9 percent of the divorces (Table 7.6). In the Beijing cases this provision was cited principally by wives against their parents-in-law. Most singled out their mothers-in-law as being especially abusive. The following passage comes from a plaint submitted to the Beijing District Court in 1942 by the 22year-old wife of a peasant: Throughout my life, fate has brought me many hardships. My parents died long ago, one after the other, and I was raised by my stepmother. ... When I turned thirteen years old, my uncle, Zhao Zicheng, arranged for my betrothal to Zhang Tingzhong, the eldest son of Zhang Wenli of Majiaying Village. When I married at age seventeen, my husband and I at first got along extremely well without any misunderstandings at all. ... But my motherin-law is perverse, unreasonable, and very vicious. Other people have nicknamed her Mother Tiger. When I entered her household, she was quite dissatisfied and frequently gave me haughty looks of disdain. Then she began to make oblique accusations and looked for opportunities to find fault with me. Most frightful of all was that she did not let her son share a room with

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me. When we occasionally met in private, she would spy on us and then become even more abusive than before. Finally, she continues, her mother-in-law's behavior turned her husband against her. They beat her often, deprived her of food, and forced her to work without rest. In early May r942 they drove her out, whereupon she came to Beijing to live with her stepmother and to work as a servant in a Japanese household. In the end she got a divorce through court mediation (Beijing r942: r627). Generally speaking, judges regarded anything short of actual physical abuse to be insufficient grounds. Thus, a Shanghai judge dismissed outright the suit of a wife who claimed extreme emotional torment by her husband's stepmother (Shanghai r94r: r8o-r-62). Women charging physical mistreatment did not do much better. Judges held them to the same strict standard of proof as in cases of spousal cruelty, requiring them to provide witnesses or documentation for every instance of abuse. Even then, it was up to the judge to decide whether the abuse made a life in common intolerable. In practice, women found it just as difficult to gain a divorce on the grounds of in-law cruelty as on spousal cruelty. Desertion and Disappearance Desertion provisions of Qing law did little for women. In fact, they were targeted mainly against the woman rather than for her. 13 If a wife ran away from her husband (beifu zaitao ), she was to be punished with roo blows of the heavy bamboo and he was permitted, if he so chose, to divorce her by selling her in marriage to another man. If she ran away and remarried, she was subject to strangulation after the assizes (Statute rr6). If her husband abandoned her, she could do nothing in the first three years. If she left his home prematurely, without first getting the magistrate's permission, she was to be beaten 8o times with the heavy bamboo. If she left prematurely and remarried, the punishment increased to roo blows (Statute rr6). The only condition under which she could seek a dissolution of the marriage was if he had been absent more than three years (Substatute rr6-o2)Y Even then, she could not represent herself but had to be represented by her natal family against her marital family. In the Republican period, she could represent herself. Marital litigation was now between the woman and the man as individuals

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and not as families. A wife had the same rights and obligations as her husband. She was no longer subject to corporal punishment nor to sale by her husband in marriage to another. Moreover, the Daliyuan broadened the definition of desertion to allow for divorce in less than three years if the wife could prove malicious intent (Daliyuan 1915: 24r-r6ro). In this change, the Daliyuan anticipated the civil code to come. The expanded definition of desertion held out the promise of redress to women who had been abandoned by their husbands. Shanghai women cited it in 39 percent of their plaints and Beijing women in sr percent, making it the second most common grounds for divorce (Tables 7·3 and 7.4). Women charging desertion often made their case solely on the grounds of financial support. In their plaints they complained of husbands who held no regular jobs, of husbands who owned no property, of husbands who squandered their meager earnings on drugs, gambling, and frequent visits to brothels, and, worse yet, of husbands who had stolen and sold off their dowries to fund their lowlife ways. Some expressed great resentment that their husbands' failure to support the family had forced them to seek outside employment as servants, waitresses, or factory workers. One 28-yearold Beijing woman explained: "I am just a weak woman who has never taken a step outside the family gate. How could I possibly be able to work?" (Beijing 1942: 6627). Another explained that because she came from a good family, she could not bear to do as her husband demanded and work at such a base job as being a servant (Beijing 1942: 7528). Most were now seeking temporary refuge with their natal families, but explained that their parents were too poor to support them for long. They thus had no choice but to sue for a divorce in order to safeguard their livelihood, the implication being that they then would be free to find a more financially solvent mate. But failure to provide support alone was not considered sufficient grounds for divorce. The Supreme Court in the early 1930's ruled that malicious desertion had to include both physical and financial desertion. A husband or a wife who simply refused to live with the other was not guilty of malicious desertion, nor was a husband or a wife who simply refused to provide the other and their dependents with necessary living expenses. For malicious desertion to be present, the guilty spouse had to have left the couple's conjugal resi-

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dence and to have ceased to provide financial support if it had been his/her responsibility to do so (Chiu 1966: 177, 183-84). In actual cases, the judges made clear that a husband's simple failure to provide financially for his wife and other dependents did not, by itself, constitute willful desertion (for example, Beijing 1942: 1294). One Beijing judge told a 32-year-old woman that she herself was strong and could help her husband earn a living (Beijing 1942: 7 543-7280). Nor was physical abandonment alone sufficient. As long as the husband continued to provide support, a wife's chances of winning a divorce for desertion were slim. One wife lost her suit in Shanghai in r 940 because her husband was able to convince the judge that he had sent her 30 yuan each month since leaving home (Shanghai 1940: r8o-r-48). For women to prove desertion, then, they had to show that their husbands had, with harmful intent, abandoned them both physically and financially. They also had to prove that the desertion was ongoing. If the defendant appeared in court and contested the divorce, then the plaintiff's chances of winning evaporated. It made no difference whether the defendant had in fact maliciously abandoned the plaintiff nor for how long. The important point was that the desertion was not ongoing. If, on the other hand, the whereabouts of the defendant were not known or if he/she failed to respond to a court summons, then the judges took that as evidence of continuing desertion. With respect to disappearance, Republican law adhered to the three-year rule of the Qing code. Plaintiffs who wanted a divorce on these grounds had to demonstrate that the defendant had truly disappeared without a trace and that the disappearance had lasted for more than three years. They had to prove that there had been no communication with the defendant during that time and that a concerted effort had been made to discover the defendant's whereabouts. Six percent of the suits brought by Beijing women and 2 7 percent of those brought by Shanghai women charged disappearance (Tables 7·3 and 7-4). 1s In court, plaintiffs brought forth witnesses who could verify that the spouse had not been seen or heard from for three years or more, copies of letters that they had written to others in an attempt to find out about the fate of the spouse, and copies of missing person announcements that they had placed in newspapers. Plaintiffs charging disappearance generally found it easier to

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win their cases than those charging desertion. The majority of the women won their cases-for instance, two-thirds in Shanghai (Table 7.4).

Adultery In Qing law, the burden of conjugal fidelity lay entirely with the woman. An adulterous wife, along with her paramour, was to be punished with 90 blows of the heavy bamboo (Statute 366). If her paramour happened to be a married man, what he was being punished for was not a violation of his own marriage bond, but rather another man's. Similarly, if a married man had a relationship with an unmarried woman, he would be punished (8o blows with the heavy bamboo) not for committing adultery against his wife, but for abetting the other woman in her crime of fornication. This onesided notion of conjugal fidelity extended to the Qing divorce laws as well. A woman had no right to divorce a husband for infidelity, but so strong was the husband's right that adultery was the only one of the seven conditions to which the three limitations did not apply. Criminal and civil jurisprudence in the 19Io's and 192o's followed that of the Qing, making adultery a crime for a wife, but not for a husband, and a grounds for divorce for a husband, but not for a wife (Riasanovsky I92T I47; PCC 1923: 90). It was only with the adoption of the civil code in 1931 that women finally acquired the right to divorce an adulterous husband. Criminal law soon followed suit in its revised code of 1935, which made adultery an offense for both spouses, punishable with up to one year of imprisonment. (A criminal conviction, though, was not a prerequisite for bringing a civil suit for divorce on the grounds of adultery.) Despite the liberal changes, powerful economic considerations worked against women taking full advantage of the new provision. A divorce, after all, would deprive a wife of her main source of support. It is no coincidence that the Shanghai and Beijing women seldom cited adultery as their sole complaint, but usually listed it along with spousal cruelty and/or desertion. So long as a husband did not abuse her physically and continued to provide for her economically, a wife was likely to turn a blind eye to his adultery. Some legal deterrents as well restricted access to divorce for adultery. Article r o 53 of the civil code specified that a spouse lost

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the right to sue for divorce in the following circumstances: if the spouse consented to the adultery before it happened or pardoned it after it happened, or if more than six months had passed between the spouse's first knowledge of it and the initiation of legal proceedings, or finally, if more than two years had passed since its occurrence. In practice, the time restrictions especially often frustrated a wife's or husband's attempt to divorce an adulterous spouse. Among the Shanghai cases, two plaintiffs (one woman and one man) lost their suits because the love letters they had supplied as evidence of their respective spouses' affairs were dated more than two years earlier (Shanghai I940: I8o-I-48). Another Shanghai plaintiff lost her suit because she had failed to file for divorce within six months of finding out about her husband's ongoing affair (Shanghai I94I: I8oI-62). The women who won their adultery suits were those who met the deadlines and presented incontrovertible proof. A Beijing wife won because her husband had been living openly with his mistress. He had also been criminally convicted of adultery (Beijing I 942: 704). A Shanghai wife succeeded because her husband's paramour confessed to the affair and obligingly supplied the court with their love letters (Shanghai I940: I8o-I-48). On balance, though the practice of the law fell well short of the ideals for gender equality reflected in the civil code, Republican women did gain greatly expanded access to divorce on the grounds of adultery. Nationwide, adultery was the third most common grounds, accounting for I 3 percent of the reported divorces from I934 to I939 (Table 7.6). Among the Shanghai and Beijing women, it was the fifth most common grounds, with Shanghai women citing it in I I percent of their plaints and Beijing women in 8 percent (Tables 7·3 and 7-4).

Code and Practice: The Issue of Concubines Nowhere was the gap between legal intent and social reality more apparent than with concubines. The lawmakers faced an impossible dilemma. How were they to protect a social group that they wanted to declare illegal? They wished, on the one hand, to espouse the ideals of monogamy and male-female equality. This meant in principle outlawing concubinage. On the other hand, they wished to

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give legal protection to the substantial number of concubines. In the end, the Legislative Yuan sidestepped the issue altogether. Nowhere in the code did they mention concubines. They left the problem of reconciling legal ideal with social reality to the Supreme Court and the Judicial Yuan (van der Valk 1939: IJI, 193).

Concubines and Divorce For decisions in actual cases, the Supreme Court and Judicial Yuan made clear that concubinage, not being marriage, could not be governed by the laws on divorce. But how then was the dissolution of the relationship between a concubine and her "husband" to be regulated? The answer to that depended upon how the law defined the relationship. If it was not a marriage, then what was it? Qing law regarded concubinage, at least in matters of divorce, as a semilegitimate marriage. A concubine had some of the same rights to divorce as a wife, but not the same protection against arbitrary expulsion. A concubine, like a wife, could appeal for divorce if her husband beat her to the point of serious and permanent injuries, if her husband's parents or grandparents beat her without provocation to the point of serious and permanent injuries, if her husband or his relatives pawned or rented her, or if they forced or permitted her to commit adultery (Tai 1978: 94). Unlike a wife, however, she was not protected by the seven conditions and three limitations and could be expelled from the husband's household for any reason. In the early Republican period, the Daliyuan attempted both to distinguish concubines more clearly from wives and to protect them from arbitrary expulsion. Concubinage, the court decided, was a contractual relationship between the "family head" ( jiazhang) and a woman. Since it was not a marriage, the laws of divorce were not to apply. Instead, the plaintiff in a suit had to demonstrate that just cause (zhengdang liyou) existed to cancel the contract. This requirement applied as much to a family head as it did a concubine, thus giving her some legal defense against arbitrary expulsion (Daliyuan 19IJ: 241-662; Jingshi 1919: 239-5468, 1922: 239-8362). This legal invention notwithstanding, in actual practice courts used the body of divorce laws to determine just cause. Hence, in a case in 1916, for example, the Capital Superior Court found, on the basis of the divorce laws, that forcing a concubine to become a prostitute was an acceptable grounds for severance of the relationship. It also found that excessive sexual demands were not legitimate

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grounds, again on the basis of the divorce laws (Jingshi 1916: 2393000). In 1922, the same court upheld the decision of a lower court that had, in accordance with the divorce laws, granted a concubine an end to her relationship on the grounds of intolerable mistreatment (Jingshi 1922: 239-8433). In the 193o's the law took a stronger position toward providing legal protection for the concubine. The Supreme Court and the Judicial Yuan began by explicitly disavowing the contractual interpretation of concubinage that the Daliyuan had worked out (Sifayuan jieshi huibian 1932, 3: 172). In its place they substituted the idea of the concubine as a member of the "family head's" family, with many of the rights and responsibilities that such membership entailed (Sifayuan jieshi huibian 1932, 3: 139). The Republican civil code defined "family" ( jia) as all those relatives and nonrelatives who "live together in one household with the object of sharing a life in common permanently" (Arts. 1122 and II23). By this definition a concubine would thus be a member of the household. The conferral on concubines of the status of family member meant that they enjoyed the same rights with respect to voluntary separation and forced expulsion as other family members-to wit, Article II27, which held that "a member of a house who has attained majority, or, though a minor, has been married, may demand to be separated from the house"; and Article 1128, which held that the head of a house may expel a member only if he has a good reason for doing so. The laws made it much easier for a concubine to sever her relationship with the family head, but no less difficult for the family head to sever his relationship with her. A Supreme Court decision of r 9 32 made this clear: When a concubine no longer wishes to be a concubine, she is permitted to leave freely. This is based on the principle of male-female equality. It is to enable women who have been placed in an unequal position to free themselves of the restriction of having to continue as concubines. But if a family head wishes to sever his relationship with a concubine, he still must have just cause before it will be permitted (L'Annee fudiciaire Chinoise 1934,

s:

147).

This is a striking revision of the Daliyuan's stance that both parties had to demonstrate just cause. Case records suggest that the new principles were indeed honored in practice. In 1934, for example, a Beijing concubine, Yan Jing-

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lin, brought suit against Li Zhi to dissolve their relationship of twelve years. Li Zhi filed a countersuit, denying her allegations, accusing her of plotting to run away with another man, and requesting that the court order her to continue to live with him. A judge of the Beijing District Court ruled for her and against him, noting that a concubine did not have to satisfy any particular grounds to end her relationship with a family head. Her desire to do so was alone sufficient. A disappointed Li Zhi appealed that decision to the Hebei Superior Court and then to the Supreme Court, both of which affirmed the lower court's ruling (Beijing 1934-35: 6s-s-431-434). A family head, though, had to demonstrate just cause for ending his relationship with a concubine. In practice, "just reason" amounted to one of the ten legal grounds for divorce. Thus, in 1942, for instance, an employee of the Hebei provincial government tried to expel his concubine by charging her with desertion and adultery, both acceptable grounds. But he failed to substantiate the charges, and the Beijing District Court denied his suit (Beijing 1942: 1244). The Supreme Court and the Judicial Yuan also ruled that the laws regarding a wife's maintenance after a divorce could be applied to concubines. A concubine, just like a wife, was fully entitled to alimony if she was likely to suffer economic hardship after the severing of her relationship with the family head. As with a wife, the only condition was that she herself not be at fault (Chiu 1966: 189-90; Sifa gongbao 81, Oct. ro, 1935: 28-30). The heart of the approach of the Judicial Yuan and the Supreme Court to concubines was to give them new legal rights. In doing so, they constructed a body of law that was the complete opposite of Qing law. In the Qing a "husband" could unilaterally and arbitrarily end the relationship, but in the later Republican period the concubine could. And, conversely, whereas in the Qing a concubine could secure a divorce only in certain circumstances, in the later Republican period it was the family head who had to demonstrate just cause.

Wives and Concubines Ironically, the effort to safeguard the interests of a concubine limited the protection that the Supreme Court and Judicial Yuan could offer a wife. The concubine's newfound status as a member of the family head's household meant not only that he could not expel her without just cause, but also that the wife could not expel her at all,

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no matter what. If a wife found a concubine's presence intolerable, she could do nothing to remove her from the household. Short of moving out herself, the wife's only recourse was to sue her husband for divorce or legal separation (bieju ). The Supreme Court in 1933 held that the husband's taking of a concubine constituted adultery and thus was a sound reason for divorce. Subsequently the Court further ruled that sexual intercourse between a husband and a concubine need not actually have occurred before a wife could charge adultery. It was only necessary that he be in the act of negotiating for a concubine (Chiu 1966: 179-80). This gave disgruntled wives their main legal recourse against a husband who took or wanted to take a concubine. This limited prerogative was further restricted by several important qualifications. A wife had to demonstrate that she had not expressly or tacitly condoned her husband's action. She also could not bring suit if he had acquired the concubine more than two years earlier or if he had acquired her before the implementation of the family section of the civil code in May 1931. 16 Women who were unable to use the adultery provision for these reasons did have the option of bringing suit against their husbands for judicial separation. Article 1001 of the civil code provided that a married couple bore a mutual obligation to live together, unless there was legitimate reason for them not to do so. The Judicial Yuan ruled in 1932 that a husband's keeping of a concubine justified a wife's refusal to cohabit. It did not matter when the husband had acquired the concubine or whether the wife had ever condoned it (Sifayuan jieshi huibian 1932, 3: 172). Thus, in 1934 the Beijing District Court awarded a judicial separation to a wife whose husband had brought two concubines into their home a decade earlier (Beijing 1934: 2960). From the wife's perspective, these legal solutions were far from ideal. She could not attack her husband's relationship with a concubine directly, but only indirectly by the threat of her own divorce or separation from the husband. Even so, those were alternatives unavailable under the Qing. The story of divorce in Republican China, then, was above all the story of the interaction of legal intent and social reality. The highly liberal code promised women easy access to divorce. But legal practice remained some distance from that promise. In court,

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women came up against a number of barriers: societal notions about a woman's place, strict evidentiary requirements, restrictive time limitations, and the like. Nevertheless, legal intent was clearly an active agent for social change. Divorce became a real option for wives and concubines in the major cities during the Republican period, and they turned to the courts in numbers unimaginable in the Qing.

CHAPTER EIGHT

Alison W. Conner

Lawyers and the Legal Profession During the Republican Period

T

in China is both modem and forof Chinese legal history agree scholars Most origin. eign in that, before the introduction of legal reforms at the tum of this century, no private, independent legal profession had developed in China, and no lawyers appeared in traditional Chinese courts. Until the twentieth century, the only lawyers to practice formally in China were foreign barristers, solicitors, and attorneys in the treaty ports and foreign concessions. 1 Most current research on the Chinese legal profession focuses on post-1949 developments and the role of the lawyer in the People's Republic of China (PRC). Yet in the early years of this century-long before the appearance of any "people's lawyers"-a modern legal profession was established in China. Despite a lack of government (and perhaps popular) enthusiasm, that profession grew rapidly and its members, who formed part of the new urban elite, came to play an important civic role, at least in the cities. China's legal profession, therefore, is a product of the twentieth century, but not simply of the 1950's or 198o's. This chapter examines that early legal profession during its formative years, from the enactment of the first regulations on lawyers in I9I2 2 to the end of the Nanjing decade in 1937. Although judges and procurators, among others, must also be considered branches of the legal profession, this discussion will be confined to the development of private legal practitioners, whose introduction marked a clearer break with China's tradition.' The first section of this chapter examines the regulatory framework established under the 1912 HE L E GAL P R 0 F E S S I 0 N

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and 1927 statutes, by analyzing the professional definition and standards they provided. The second section contains a more detailed profile of the legal profession that actually developed within that framework, by examining the Shanghai bar during the 192o's and 1930's. Both sections address the same question: what kind of legal profession developed in China during those years and to what extent did it take root? A profession, to use Roscoe Pound's oft-quoted dictum, is "a group ... pursuing a learned art as a common calling in the spirit of public service." The legal profession that emerged in Republican China had much in common with the so-called new model professions that appeared in the West in the nineteenth century. According to Daniel Duman, five characteristics marked these new model professions; such professions were "usually characterized by the independent practitioner, a formal qualifying and disciplinary association, specialized knowledge, a self-conscious professional identity, and sometimes by a legal monopoly over practice" (Duman, 1980: 615). To what extent did these definitions apply to China's developing legal profession?

Statutory Framework Governing Statutes Despite a few references to "representatives" or even "lawyers" in earlier legislation, the first Chinese regulations governing lawyers did not appear until 1912 (Bell and Woodhead, eds. 1912: 329-30, 338, 340-41). On September 16 of that year, the minister of justice issued the Provisional Regulations on Lawyers, which established for the first time the functions, training, and other qualifications of Chinese lawyers (ZFGB 5.1: 108-13 [1912]). The 1912 regulations were supplemented by more detailed regulations on lawyers' registration, disciplinary punishment, examinations, and even dress, as well as by provisions of general legislation, such as the civil and criminal procedure laws (ZFGB 5.1: 120-21 [1912]; ZFGB 20: 41416 [1913]; ZFGB 66: 163-64 [1917]; ZFGB 9: 97-98 [1913]; ZFGB 10: 64 [1913]). Regulations governing local bar associations.:...._the first association was established in Beijing-were also enacted pursuant to the 1912 regulations (ZFGB 6.1: 247-52 [1912]). The 1912 regulations, which were based on the Japanese model, provided rules for admission to practice, registration and licensing,

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and the organization and discipline of the profession (Chang Yuchuan 1938-39a: 147; Liu Lurnin 1935a: 104-5). Since lawyers were introduced to act as advocates under the new procedural laws then being prepared, the 1912 regulations (in Art. 14) stressed the lawyer's court functions: on the appointment by a client or by a court order, the lawyer could appear in ordinary and special courts. Lawyers were thus specifically authorized for the first time to appear in Chinese courts. It was not until the 1917 revisions that the statute formally recognized other functions; lawyers could also "receive the appointment of clients for the proof of contracts and wills, or enter into contracts and other legal documents on their behalf" (ZFGB 67: 239 [1917]). The lawyers regulations provided from the beginning that those without the specified qualifications could not serve as lawyers. But practicing without a license was not regarded as particularly serious; according to Chang Yu-chuan it was only a police offense (1938-39a: 176). Moreover, the regulations did not grant lawyers an absolute monopoly, even for court work, their primary function under the early statutes. Lawyers were the preferred representatives for parties in court, but both the 1935 civil and criminal procedure laws allowed nonlawyers to be appointed to act for a party, with the court's permission (Code of Criminal Procedure 1935: 10, Art. 29; Code of Civil Procedure 1935: 13-14, Arts. 68ff.). The 1932 Organic Law of the Judiciary also seemed to countenance the appearance of a nonlawyer as representative or advocate in court, when it required the same standards of behavior from them as from lawyers (The China Law Review 6.1: 37-48). The Provisional Regulations were revised or amended some seven or eight times before their replacement in 1927 by the Regulations on Lawyers (Liao 1982: 949-50; Sifa ligui: nso-s4). That statute did not represent the introduction of a radically different lawyers regime, but was primarily a reorganization and refinement of the earlier rules. Therefore, although significant differences between the two statutes will be noted in the following discussion, for the purposes of this chapter the two statutes will be considered together.• Although the earlier statutes in particular were difficult to implement, their very enactment was significant. They provided the official model of lawyers and the profession, as well as the only framework within which the Chinese legal profession could develop during its early years. Moreover, from 1927 on the government in-

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creasingly enforced their provisions, and consequently the profession that developed must be seen within the context of these regulations. The discussion that follows examines in detail certain aspects of the statutory framework that are fundamental to the idea of a profession: its qualifications, training, ethics, and governance. Qualifications

One of the fundamental characteristics of any profession is its ability to control membership. In China, however, the qualifications for admission were provided by statute rather than by the bar itself. Under the 1912 regulations (Art. 2), those qualifications included citizenship, a common prerequisite to admission at that time, and a minimum age of twenty (later raised to twenty-one). Women were barred from entry to practice until 1927, when the word "male" was omitted from the amended statute.' One commentator suggested in the late 193o's that the lawyers law then under consideration would reenact the gender requirement-no doubt reflecting the hopes of some lawyers (Chang Yu-chuan 1938-39a: r8o). Published drafts did not, however, reinstate that provision, nor did the Lawyers Law as enacted in 1941 (Faxue congkan 3.9-10: 96ff.i Sifa ligui bubian 1945: s7ff.). Disqualifications from admission in both the 1912 and 1927 statutes included an undischarged bankruptcy or a sentence to imprisonment other than for a political offense. But no version of the lawyers regulations required good character as a general qualification for entry to practice. The closest approximation of such a standard prerequisite to admission can be found only in local bar a.;sociation regulations. The Suzhou Bar Association, for example, required "good conduct" of its members and of their employees and clerksi virtually all associations also required that their employees and clerks not be corrupted by "bad addictions" such as opium (Sifa ligui: r8n, r812). Lawyers who satisfied these requirements and the professional qualifications discussed below were entitled to apply through the procuracy to the minister of justice for their practicing certificate (1912 Regulations: ch. 2j 1927 Regulations: Art. s). Under the scheme adopted by the regulations and supplemented by rules on registration, all lawyers were required to be registered with the Ministry of Justice and with the high court within whose jurisdiction

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they wished to practice (r9r2 Regulations: ch. 3; 1927 Regulations: ch. 4). To maintain some control over standards, items to be registered included the lawyer's name, native place, address, age, qualifications, registration number, license number, date of entry to bar association, office address, and any disciplinary action taken. Judging from reports of abuses, however, it is doubtful that these requirements were rigidly enforced in the early years: a number of lawyers, for example, reportedly obtained their diplomas as "gifts" or managed to assume the credentials of deceased lawyers (NCH Apr. 6, 1929, Apr. 13, 1929). But from the late 192o's, as part of its efforts to supervise the profession and raise its standards, the government imposed stricter controls over licensing. In May 1927, for example, it announced that lawyers were required to reregister their names immediately, failing which they would not be permitted to appear in Chinese courts (NCH May 28, 1929). The Ministry of Justice also suspended a score of legal practitioners on the grounds they had received their diplomas from a dubious correspondence school (NCH Apr. 20, 1929).

Professional Training and Examinations Another basic characteristic of professions is their claim to special expertise, whether acquired through training or experience. The 1912 regulations prescribed (Arts. 3 and 4) the minimum legal training and, in some cases, an examination to satisfy that requirement. One of the most striking aspects of those early provisions is the broad range of training acceptable: foreign study as well as Chinese; enrollment in "law and government" (zbengfa) as well as law (faxue) programs; and training in public and private universities, specialized schools, and accelerated programs. The length of study could range from eighteen months to three years, and practical experience as a judge, procurator, or teacher could be substituted for formal training. Some distinctions were drawn, however, between different kinds of training. Some foreign schooling was given more weight than the Chinese equivalent, programs in law were favored over those in law and government, and Chinese universities were preferred to law and government schools (probably an accurate reflection of prevailing standards). Nevertheless, all met the statutory requirements, and early registration records reflect the wide range of qualifications and institutions attended by the earliest lawyers. For example, of the

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1,426 lawyer registrations published in 1913, 301 (21 percent) had attended Japanese institutions and 7 others had studied in the U.S. or England. Of the students returned from Japan, 52 had attended an accelerated course, followed by work as a judge, procurator, police officer, or law teacher. The remainder had attended law and government schools in the capital or in some seventeen or eighteen other localities (ZFGB 9-26 [1913]). Such a flexible approach was probably unavoidable when the first statute was adopted, since otherwise few lawyers could have qualified to practice in China at that time. The introduction of modern court procedure assumed the participation of lawyers; if the government wished to produce them quickly, it could not make admission too difficult. Official standards also had to reflect the range of training that prospective Chinese lawyers had actually received and to take account of the many returned students, particularly the large numbers who had studied in Japan (Jansen 1980: 348- p). At the same time, this approach created problems. The new lawyers often lacked common training or a shared approach to their work, although the Japanese influence was clearly very strong (Chan 1936: 143-46). More serious was the low standard of education for lawyers: training could be as short as eighteen months, and applicants were not required to have obtained a degree or certificate. Moreover, lawyers could probably escape formal training entirely by qualifying through practical experience. Despite the varied avenues of access, few candidates were required to take any sort of examination. As a result, within a few years after the issuance of the 1912 regulations "the country was flooded with a host of poorly trained lawyers, this being the inevitable result of the low standard thus set coupled with the prevailing view that the law schools offered a short and easy cut to officialdom" (Blume 1923: 309). The fundamental difficulty was the schools where most Chinese lawyers received their training. At the newly established local law and government schools, standards were variable, to say the least, despite official attempts to standardize the curriculum and other requirements. From the beginning the government enacted rules governing schools of specialized study (including law) as well as universities (ZFGB 7: 15-16 [1912], 9: 327-28 [1913]; Dierci Zhongguo jiaoyu nianjian 1948: 265). After the 1928 establishment of the Nationalist government in Nanjing, however, education, including legal education, came to be more strictly supervised, and according to

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many observers overall standards were in fact raised (Chan 1936: 145-46; Sun 1935a: 37-38). Regulation, at least on paper, was extensive and included such matters as the number of students, educational facilities, standards of instruction, and course requirements (Higher Education in China n.d.: 12-13). But the basic problems persisted, according to lawyers like Shelley Sun (Sun Xiaolou), who taught at Soochow Law School and later served as president of Chaoyang Law School. In his sensible and persuasive book on Chinese legal education, Sun provided a detailed analysis of its shortcomings, particularly the poor teaching, reliance on part-time instructors, and general lack of student preparation. For economic reasons, he wrote, law schools often admitted far too many students, including some who had not even graduated from junior middle school; or if they had finished senior high school they received advanced credit and could obtain a law degree in a year or two. Many students rarely attended classes on a steady basis but were still permitted to graduate (Sun 1935a: 63-67, 69-72, 92-95, 97). The solution was probably the introduction of a universal qualifying examination, together with a practice requirement, both proposals made by Liu Lumin and other lawyers in the 1930's. Liu compared the examination and practice requirements in "modern enlightened" countries like England, France, and Germany with those in China. The Chinese system required neither; as a result, he argued, more and more lawyers were produced, and the authorities viewed licensing as little more than a source of revenue (Liu Lumin 1935a: ro3-4; 193sb: 157). A tough examination required of all potential lawyers and strictly enforced might well have weeded out many weak and poorly prepared candidates. After a series of amendments to the Provisional Regulations and related legislation, including the enactment of the Lawyers Examination Ordinance in 1917, examination as well as educational requirements were somewhat tightened (ZFGB 66: 16364 [r9n]). Lawyers were made subject to some of the same examination requirements, written and oral, as candidates for the judiciary; subjects for the written examination included all areas required to be taught in law schools (ZFGB 66: r6r-62 [r9n]). But under the 1927 regulations admission without examination once again became possible, if the Committee for the Selection of Lawyers declared the applicant qualified. Since the committee might do so if the applicant had obtained a diploma after three or

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more years of law study at a foreign or Chinese university or specialized school, or had taught one of the principal examination subjects at an approved school or university, for example, it was still possible to avoid the examination entirely (Sifa ligui: !765-66). Despite the series of amendments enacted over the years, therefore, admission to practice without examination was the rule rather than the exception for the Chinese legal practitioner. As a consequence, the contradiction between reasonably high standards and the need for more lawyers was never resol~ed during this period.

Ethics and Etiquette Professions are ordinarily said to be bound by ethical codes as well as a sense of service and vocation. Under the early Chinese lawyers regime, no separate, unified canon of ethics was adopted, but ethical rules could be found in the lawyers regulations and local bar association rules, both of which were supplemented from time to time by Ministry of Justice orders. Thus, provisions barring conflicts of interest and rules limiting the concurrent engagement in commercial business or salaried public office appeared in both the 1912 and 1927 versions of the statute (1912 Regulations: Arts. 1920, 15-16). But not until the 19I7 amendments does one find more general statements of the lawyer's fundamental fiduciary duties of good faith, honesty, and careful management owed to the client (ZFGB 67: 241-42 [19!7]; 1927 Regulations: Arts. 18-20). Under both the 1912 (Art. 28) and 1927 regulations (Art. 30L bar association regulations were required to provide for "methods for maintaining the ethics of their lawyers." The model bar regulations contained further rules relating to lawyers' conduct or discipline, most of which were faithfully reproduced in the regulations adopted by local bar associations. Members were universally forbidden to engage in touting for business or to instigate lawsuits (or prevent a client from settling a dispute); to instruct or assist parties in the fabrication or destruction of evidence; or, having accepted the appointment of one party, to accept an appointment from the other side. Lawyers were also strictly required to keep secret any confidential matters entrusted to them, an obligation supported by both criminal and criminal procedure law (Model Bar Regulations: Arts. 29, 37-40; The China Law Review 9.2: !71). That such basic rules had to be spelled out so plainly testifies to

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the rudimentary level of legal ethics, and of course to the lack of any tradition of ethical behavior among lawyers in China. Considered together, however, these individual rules would no doubt have provided simple ethical guidance for Chinese lawyers. But some lawyers as well as educators believed the system was inadequate and advocated the enactment of a more general "legal ethics law" to raise the moral standards of the profession. The Shanghai lawyer Liu Zhen argued in his 1934 book on lawyers' ethics that such a law was essential if China wished to "improve its judiciary, receive the true benefits of the 'lawyer system' and increase the trust of society in lawyers." In his view, the disciplinary and ethical rules contained in the Regulations and bar association rules were simply not sufficient to that task, even if they were fully implemented (Liu Zhen 1934: s). Liu Zhen was impressed, perhaps unduly, with the efforts of the American Bar Association as well as state bar associations to promote legal ethics among their members, particularly from the turn of this century. His book relied heavily on American sources and practice and is to some extent an explanation of the duties andresponsibilities of a lawyer in the U.S. legal system. Obviously, Liu had read drafts of the canon of ethics then in preparation, together with rules from various U.S. states, particularly New York, and he urged China to follow their example. He was also familiar with the English reliance on custom and tradition rather than statute, but rejected this model as unsuitable for a country where the profession was a new and imported institution (ibid., 3-5 ). The reasons for his concern are clearly stated throughout the book: He wished to distinguish China's modern lawyers from its traditional pettifoggers and the bad practices for which they were notorious. Despite the potentially vital role lawyers played in the judicial system, it was still difficult for many people to separate them from pettifoggers. Only ethical standards could do that-hence the necessity for an ethics law and its propagation in law schools (ibid.). Dean W. W. Blume of Soochow Law School, writing in the early 192o's, and his student, Shelley Sun, writing in the mid-1930's, were also troubled by the lack of ethical standards among Chinese lawyers. Blume believed that ethics courses were essential in law schools, given the lack of a traditional Chinese legal profession. He wished to impress on students that "the first step toward judicial

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reform in China must be the reformed lives of the men who are to be the future judges [and] lawyers" (Blume 1923: 310-11). Government regulations did not require the teaching of ethics courses as part of the law curriculum, but Soochow offered such courses from its early days, no doubt a reflection of its missionary origins as well as Dean Blume's concerns about the moral standards of the profession (Sun 193sa: 191). Sun recogrized that teaching legal ethics would not guarantee the production of ethical lawyers, but he thought that it might at least lead students to understand their mission and responsibilities in society as lawyers. He therefore argued that ethics should be a required course in the first-year curriculum, so students might be exposed to it from the beginning of their legal studies (ibid., 33-34). But no "ethics law" was enacted in China, nor were courses in legal ethics made part of the required curriculum during the Republican period. Sun had also noted with approval the strict standards of bar associations in the U.S. and the possibility that lawyers could be disbarred for violations of legal ethics (ibid.). In China, the lawyers regulations also provided for discipline of lawyer misconduct, although apparently the rules were not rigidly enforced. (See Chang Yu-chuan 1938-39a: 166-73 for a description of disciplinary procedures.) For the most part, then, it was left to local bar associations, or simply to the individual lawyers themselves, to maintain ethical standards. Legal professions typically prescribe guides for proper day-to-day or courtroom behavior as well as codes of ethics. That too was absent from the Chinese tradition and had to be addressed by the new profession. The model bar regulations therefore included a few such provisions under their section on "discipline," and the local bar associations followed suit, often adding other rules to form a new chapter on "etiquette" or "decorum" for lawyers. The model bar regulations directed lawyers to wear their robes in court, stand when arguing or addressing the court, and speak solemnly, not jokingly or disrespectfully (ch. 9). Local regulations supplemented these instructions. Many suggested, for example, that lawyers, judges, and procurators should bow to each other on entering and leaving the courtroom (e.g., Sifa ligui, Huaining: I78o). Some bar associations also instructed their members to address the judge, procurator, and opposing attorneys alike as "honorable" (gui) and to refer to themselves more modestly as "this lawyer" (ben liishi) (ibid., Hangzhou:

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1812). More generally, lawyers were told to engage in no behavior impolite or disrespectful to other attorneys (ibid., Wuchang: 1823). If they were insulted or abused by the opposing party or attorneys, they were urged to apply to the judge to take action in accordance with contempt of court rules, presumably instead of returning the abuse in kind (ibid., Shimen: 1896). Rules such as these appear again and again in bar association regulations, and were repeated because the ideal behavior that they prescribed was not the norm. In the Shanghai Provisional Court, for example, breaches of these rules were often reported. Reports of lawyers who refused to stand when speaking, lawyers who interrupted or shouted down the judge, opposing lawyers, or the other parties, and lawyers who refused to stop their arguments or listen to the orders of the judge appeared frequently in the pages of the English press at the time (e.g., NCH June 16, 1928, Aug. 25, 1928, Sept. 1, 1928, Dec. 15, 1928, Dec. 28, I928, Mar. 2, 1929). The etiquette rules are of interest not only for their simplicity but also for their attempt to establish the lawyer's position as an officer of the court and the status of the lawyer vis-a-vis the judge. They attempt to legislate not only how lawyers should treat judges, but also how judges should behave toward lawyers. Thus, for example, rules specify that judges must give lawyers two days' notice before beginning the trial of cases they have undertaken, and courts must use formal letters to notify lawyers to attend court (Sifa ligui, Huaining: 1780). Many rules provided that lawyers might apply to the courts to provide a rest or reading room, or that courts "should provide" them (ibid., Wuchang: 1823). Some lawyers obviously took their enhanced status very seriously: Chang Yu-chuan reported the uproar that followed the Ministry of Justice ruling that it was unnecessary for the judge to return the lawyer's bow and inappropriate for the bar to prescribe judges' conduct. According to Chang, members of the Chengdu Bar Association denounced the ruling as "insulting to the legal profession and inconsistent with the 'Rule of Law"' (1938-39b: 250-51). Bar Associations and Self-Governance

One of the hallmarks of a profession (as distinct from an occupation) is the "power and practice of self-regulation" (Abel 1989: 142), and many definitions (like Duman's) have stressed the importance of a formal qualifying and disciplinary association. Both the

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1912 and 1927 regulations mandated the establishment of local bar associations and provided the basic rules governing their organization and activities. As in most civil law jurisdictions, membership was made compulsory for all practicing lawyers (Glendon, Gordon, and Osakwe 1985: II3). Bar associations were to be established in each district and lawyers were not permitted to practice there unless they became association members (1912 Regulations: Art. 22; 1927 Regulations: Art. 24). Under the lawyers regulations, bar associations were given the power, indeed were directed, to issue their own detailed rules. These first professional regulations not only contained rules on meetings, officers, and elections, but also on the functions, rights and duties, ethics, and fee scales of lawyers. Nevertheless, the bar associations were highly regulated themselves, and in certain key areas had no power at all. As we have seen, the qualifications of lawyers, including educational standards, were defined by the Ministry of Justice, which also set and administered the lawyers examinations and issued their licenses. Even the provisions defining the sphere of bar association activities set narrow limits on what they might propose and decide: matters specifically provided for by law, issues referred to them by the minister of justice or a court, or proposals relating to judicial affairs to be submitted to the Ministry of Justice (1912 Regulations: Art. 30; 1927 Regulations: Art. 32; if anything, the 1927 provisions are narrower). The lawyers regulations also provided the form of governance for the local bar associations: a president, a vice-president (if so desired), and a council (1912 Regulations: Arts. 24, 26; 1927 Regulations: Arts. 26, 28). The only exception to this pattern was the Shanghai Bar Association, whose unusual organization has been noted by other writers (e.g., Chang Yu-chuan 1938-39b: 241). By reason of its "special circumstances," the Shanghai bar adopted a committee system of governance; after obtaining the formal approval of the minister of justice, the bar's 1928 regulations provided for an executive committee, a standing committee, and a supervisory committee (Shanghai shi nianjian 1936: G35; Shanghai Regulations: Arts. 9J4). Although there was some support in principle for governance by committee, the statutes continued to require the presidential system and no other bar association challenged that requirement (Liu Lumin 1935a: 105-6). Membership, however, was one area where the bar associations

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had some latitude, or perhaps they simply acted as they wished. Although the Regulations, unlike the 1941 Lawyers Law, failed to provide that the associations could adopt rules governing admission or retirement, all in fact did so. Most, for example, required the applicant's qualifying documents to be submitted for verification, together with an application form and payment of an admission fee. Some also required the lawyer's registration number and the year and month of registration to be verified, or demanded a guarantee or an introduction by one or two members of the association, together with recent photographs of the applicant (Sifa ligui: 1775, 1813, 1818, 1869).

Whether bar associations were entitled to do more than inspect or verify an applicant's documents is unclear, but they do seem to have had greater power over suspensions or expulsions of their members. The model bar association regulations listed nine grounds for expulsion, most of which involved violations of the Regulations. Members might also be expelled if they were no longer engaged in the practice of law or had only minimal connection with the association. These included failure to maintain a fixed office or moving without reporting it (or failing to establish an office within two years), and failure to pay the required monthly dues, usually after a three-to-six-month grace period (ibid., Huaining, Ji'an: 1776, 1799). Taken together, these rules provided a certain amount of flexibility in removing undesirable or inactive members. The lawyers regulations also placed bar associations under the direct supervision of the procuracy. Associations had to submit their rules to the procuracy (and from there to the Ministry of Justice) and were required to report their elections, meeting schedules, and decisions to the procuracy. Moreover, the chief procurator in the association's district had the power to attend its meetings and suspend any member he considered in violation of laws or regulations. Finally, although bar associations were responsible for the ethics of their members, only the procuracy-not the bar association itselfhad the power to apply disciplinary action in the first instance. The bar association in effect could only act as an accuser, since its duty in cases of lawyer misconduct was to make a report to the procuracy. Some lawyers objected to these restrictions, particularly the supervision exercised by the procuracy. In a 1935 radio speech, Liu Lumin declared that there had never been a judicial system as strange as the Chinese. Liu noted that bar associations in countries

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like England and Germany were self-governingi in Japan, whose system he favored, they were subject to regulation by the minister of justice only. In Liu's view, the bar, the courts, and the procuracy were like the legs of a tripod: each leg affected the balance-and fairness-of the system, and all should therefore be equal. For that reason, Liu also argued that lawyers should play a greater role in disciplinary proceedings and be granted the right to serve on disciplinary committees themselves. Otherwise, he thought, discipline was simply a tool used to control the bar by taking advantage of its helplessness (Liu Lumin r93sa: I03-4i I93sb: rs6-sy). For the most part, therefore, the rules governiilg bar associations provided for their control and regulation by others, not for their own broad powers. Did Chinese lawyers accept this regulatory scheme and its restrictions on their activities, or the narrow view of their proper role? It appears that the rules were often ignored, either because many lawyers had no desire to participate actively in their bar associations and failed to do so, or because some active members pushed the rules to the limits in their struggle for greater autonomy and control for the association. Many lawyers, for example, never attended meetings and presumably had little connection with the bar associations or their activities. The Shanghai Bar Association-an active and highly politicized group-frequently had problems obtaining a quorum for its meetings and was sometimes forced to act without one, despite the adoption of lower quorum requirements: 25 percent instead of the usual so percent of its members (Sun 1935c: 30ri Shanghai Regulations: Art. 9). Other bar associations, such as those in Suzhou, Nanjing, Tianjin, and Tangshan, simply did not hold the required meetings, often for years at a time. According to Chang Yu-chuan, one of the "greatest drawbacks of the profession here is that the advantages of organization are not yet sufficiently realized. A Chinese lawyer usually goes his own way and seldom engages in social and cordial intercourse with his fellows" (r938-39b: 253-54, 280). Clearly, outside regulation of the bar, no matter how extensive, could have little impact on such members. On the other hand, those members who did participate were sometimes more active than the authorities would have liked. Bar groups participated enthusiastically in the national judicial conferencesi in preparation for the 1935 conference, for example, many bar associations as well as individual lawyers submitted a wide range of

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proposals for judicial reform (see, for example, Faxue congkan 3-4). From the government's point of view, that was all very well: clearly within the approved sphere of activities and possibly a substitute for action in many cases (Sun 1935b: 4- 5). But proposals to compensate the wrongfully imprisoned and to establish legal aid societies were part of broader campaigns in China, were actively supported by many bar associations, and achieved some tangible results (Chang Yuchuan, 1938-39b: 254-55; Shanghai shi nianjian 1936: G237). Although still apparently within their brief, these two proposals were potentially threatening to the authorities. Did the government really want more people, even if indigent, to have access to lawyers? Did it wish to have attention drawn to those who had been wrongfully imprisoned? Still other bar activities, such as the representation of defendants considered political criminals by the government, were even more challenging and stretched the limits of the permissible.

Professional Profile With more than 1,ooo lawyers on its rolls by 1932, the Shanghai Bar Association had the largest membership of any bar association in China, as well as the "most luxuriant legal talent"; with twenty years of history it was one of the most important professional groups in China (Sun 1935c: 301). The Shanghai bar also represented one of the largest concentrations of lawyers in China, some 10 percent of the country's total in 1935. Shanghai was the commercial and industrial center of China as well as its most modern city. Moreover, foreign lawyers had practiced for years in the concessions; they provided a model of the legal profession and a practical example even for those who had never studied abroad. Although in these respects Shanghai was not typical of all Chinese cities, its bar presents a well developed and documented model for closer examination.

Numbers and Distribution Nationwide, more than 1,700 lawyers had registered with the Ministry of Justice within a year of the promulgation of the 1912 regulations (ZFGB 9-26 [1913]). Over the next twenty years the profession grew rapidly in China; figures compiled by the Ministry of Justice in 1934 showed 6,969 registered members of bar associations in fifteen provinces, not including Guangdong and Fujian (Sifa

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tongji 1935: 56-58). In 1935, according to another source, there were altogether ro,249 lawyers in China (Chen Haisheng 1989: 3). Thereafter, however, the profession failed to expand so quickly and may even have declined. By 1943, statistics of the Ministry of Justice showed a total of only 9,245 registered lawyers for the whole country (China Handbook I937-44: 198). Official statistics published in 1935 also indicate that in China (as elsewhere) lawyers were not evenly distributed throughout the country. Chinese lawyers were overwhelmingly concentrated in urban areas; the biggest groups were to be found in cities with a population of at least roo,ooo and, generally speaking, the larger the city the more numerous its lawyers (Herrmann 1966: 54). The largest bar association in China was found in Shanghai, with r,o2r members, followed by Beijing with 820, and Tianjin with 814. This concentration of lawyers is more dramatically illustrated by the statistics for Beijing and Shanghai: Beijing and Tianjin lawyers together constituted more than 82 percent of the lawyers in Hebei, and around 57 percent of Jiangsu's lawyers were in Shanghai. The bars of Suzhou and Hangzhou were also relatively large, with 329 and 328 members respectively. Despite the high concentration of lawyers in other cities of Jiangsu and Zhejiang, however, Nanjing, the nation's capital, had relatively few, only 99 (Sifa tongji 1935: 56- 58). As a result, among the provinces, Hebei and Jiangsu (one of the richest and most densely populated areas of China) showed the highest totals of lawyers, r,8o2 and r,983 respectively. Although China had some ro,ooo lawyers by the early 1940's, the population had already reached 45o,ooo,ooo, thus making the overall ratio of lawyers to the general population one per 45,000 (China Handbook I937-44: 2). In Japan, where lawyers were also a recent innovation, the ratio was much higher: in 1935 there was one lawyer for every 9,700 people (Hattori 1963: 150). But a comparison with current PRC figures proves less unfavorable; with a current total of 5o,ooo lawyers (of whom only 3o,ooo practice full time), there is still only one lawyer for every 24,000 people in China (China Daily Dec. q, 1990). Moreover, most Chinese lawyers were based in the cities, where much better lawyer ratios obtained. In 1932, for example, the ratio in Shanghai was r: 3,roo (approximately r,ooo lawyers for a total population of 3,roo,ooo)-about the same as Hong Kong today and slightly higher than the r : 3,400 ratio in Tokyo in 1960 (Statistics of Shanghai 1933: I; Hattori 1963: 150-51).

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Since fairly complete statistics are available for Shanghai, it is possible to trace the growth of its legal profession more closely. The Shanghai Bar Association was founded in 1913, but only a handful of lawyers joined during its early years and the number of registered lawyers remained low until the late 192o's (Shanghai shi nianjian 1935: G120-21). From 1927, however, the number of Shanghai lawyers showed a marked increase each year, with the total rising to 1,319 by the end of 1936, according to some sources (Shanghai shi nianjian 1937: G167). The bar association-rightly or wronglyattributed this rapid growth to the greater opportunities provided to Chinese lawyers by the return of the mixed courts to Chinese control in the late 192o's (ibid.). The number of lawyers also reflected the number of students graduating from law courses, which fluctuated somewhat during the 192o's and 193o's, but generally increased. Soochow Law School, for example, produced only a few graduates each year until 1925, after which its enrollment grew rapidly, despite government attempts to restrict the number of law students (The Woolsack 1946: appendix). During the Republican period, Shanghai became a center of legal education: by 1932, seven private institutions, both universities and specialized schools, offered law programs, in which some 2,6oo students were enrolled (Shanghai shi nianjian 1935: N17-19). Not all these students entered practice or even majored in law, but it is clear that the pool of potential lawyers in Shanghai had increased greatly by that date.

Native Place Where did Shanghai lawyers come from? According to an early 193o's membership register of the Shanghai Bar Association, 6 most lawyers gave Jiangsu (53 percent) or Zhejiang (26 percent) as their native place (jiguan). Many lawyers came from Shanghai itself (82) or from nearby Suzhou (64), but sixteen provinces and some 200 localities were represented-a wide range, even if most were close to Shanghai. Lawyers were therefore somewhat more diverse in origin than the general population of greater Shanghai (Statistics of Shanghai 1933: 4). Perhaps surprisingly, only ten lawyers came from Shaoxing, traditionally the native place of the most famous Qing pettifoggers and legal secretaries (Folsom 1968: 46-47; Cole 1986: 130-38). If Shaoxing legal specialists retooled as modem lawyers, therefore, it was apparently not in Shangha~ (Cole 1986: 136-37).

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Gender During the first fifteen years of the Republican period, only men could officially qualify to practice law in China. In the early 1920's, the Shanghai Women's Rights Movement Association announced that a "law school for girls" had been established and would be ready to enroll students in January 1923. Its courses were, however, "designed to prepare women for the duties of citizenship" rather than for any legal career (The China Law Review 1.4: 154). Even after the enactment of the 1927 regulations, which did not mention gender, the profession at first remained overwhelmingly male; social and political constraints acted as effectively as legal ones. Writing in 1938, Chang Yu-chuan reported that women lawyers were still as "scarce as 'morning stars"' (1938-39a: 180). Women did not become significant in the profession until the mid-1930's or early 194o's, when their student numbers increased at many schools (Nance 19 56: 130; interviews 1990). Still, in its earlier years the profession included a few women, some of whom were well-known in Shanghai and beyond. The first woman to be admitted to practice in China was Soumay Tcheng (Zheng Yuxiu), who received her legal training at the University of Paris (Who's Who in China 1936: 41-42; Boorman and Howard, eds. 1967, 1: 278-8o). By her own account, she entered practice in 1926, probably in the Mixed Court or the French Mixed Court, since her office was in the French Concession. She also applied for her Chinese license, but it is unlikely she could have received it before the enactment of the 1927 regulations (Tcheng 1943: 144-46). In any event, she did not become a member of the Shanghai Bar Association until 1929 (Shanghai Register: 56). Tcheng began her law practice with a fellow returned student from France, whom she subsequently married. Their first case involved divorce (stereotypical women's legal work); they agreed to work as a team on the "difficult and complicated" cases and to divide the others-with Tcheng taking the cases involving women and her partner taking the rest. When she later made appearances in court, however, her emphatic style left a strong impression on some reporters (NCH Dec. 31, 1929). Occasionally referred to in the English press as "China's Portia," she cut a flamboyant figure, and despite-or perhaps because of-her political connections had several run-ins with the Shanghai Bar Association (NCH Aug. 4, 1931,

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Sept. r, 1931). After work as a magistrate and service on the codification commission, she returned to practice in Shanghai from I 9 3I 37 and concurrently served as the president of the Shanghai College of Law and Government (Tcheng 1943: no-71). Shi Liang, another early woman lawyer, joined the Shanghai Bar Association several years later, in I 9 3 r. A graduate of the Shanghai Law College, she was active in the women's rights movement in Shanghai (Shanghai shi nianjian 1935: X8). Shi became famous in the 193o's, particularly after her arrest in 1936 and trial the following year as one of the "seven gentlemen" (qi junzi). The defendants in that trial, who included two other Shanghai lawyers, were charged with engaging in subversive activities for their involvement in the National Salvation Association and related organizations (NCH June r6, 1937, Aug. 4, 1937). Shi had served as a member of the standing committee of the association. A patriotic lawyer who "supported the revolution and fought for democracy," in 1952 she was appointed minister of justice in the PRC (Chen Haisheng 1989: 3; Perleberg 1954: 187).

Training and Career Patterns What sort of training did Shanghai lawyers have? Did their careers follow any pattern? English-language who's who references published during the 192o's and 193o's provide detailed entries on more than fifty legal practitioners in Shanghai (Who's Who in China 1931, 1936).? Though not necessarily representative of all Shanghai lawyers of the day, they constituted some 5-6 percent of the Shanghai profession and their biographies are suggestive of the general training and career patterns of the time. Most striking is the diversity of training and the large number who had studied law abroad, not only in Japan but also in the U.S. and Europe, or even in all three. Also striking is the variety of legal fields these lawyers had worked in: many had served first as judges (sixteen) or in other official posts (twelve), had taught law or other subjects (eighteen), or had worked as journalists before entering practice (five). Moreover, Shanghai lawyers often pursued several jobs simultaneously, especially if they taught law; twelve, for example, had served as school presidents, principals, or law deans while they continued or began a law practice. (The 1912 and 1927 regulations [Arts. 15, 13] prohibited practicing lawyers from holding salaried

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public office, but the ban specifically excluded teaching law or serving in elected assemblies.) F. T. Cheng (Zheng Tianxi), for example, was called to the bar in England in 1913, served on the law codification commission, was a judge of the Supreme Court, and was later an adviser to the Chinese delegation to the Washington Conference before practicing in Shanghai. Wang Youling, educated in Japan, also served on the Supreme Court, on the law codification commission and as president of the first national bar association; he founded and directed Chaoyang Law School before entering law practice in Shanghai. John C. H. Wu (Wu Jingxiong), who studied in the U.S., Paris, and Berlin, was a prolific writer (and correspondent of Justice Holmes) as well as the drafter of the 1946 Chinese constitution. He also served on the Shanghai Provisional Court and as principal (yuanzhang) of Soochow Law School before entering full-time practice (Who's Who in China 1936: 40, 254, 260, 14; Boorman and Howard, eds. 1967, 1: 275). By definition, of course, this group was not typical of all Shanghai lawyers, and many would have shone in any legal circle. They were selected for inclusion in Who's Who by reason of their wide accomplishments and also, since these brief biographies had first appeared in the China Weekly Review, their interest or familiarity to foreign residents of Shanghai. Later lawyers were doubtless more likely to be trained in Chinese schools and to enter practice directly, as Chinese legal education and the profession became more established. Nevertheless, this sample still suggests some general characteristics of the Shanghai profession. Thus, Shanghai lawyers often changed careers and served in a series of law-related jobs, or held several legal jobs concurrently (interviews 1987, 1990). Such flexibility is more common in the U.S. or other common law countries than in civil law systems, where students ordinarily select the branch of the profession they wish to join and remain there for their entire careers (Merryman 1969: 109-10). In China, however, the direction of such moves reversed the

common law pattern: from judge to lawyer rather than lawyer to judge. Not a few lawyers left judgeships or other official positions to enter practice, citing their past experience as a valuable qualification (see, for example, Shenbao Aug. 29, 1923; Allman 1943: 78). But the practice was obviously open to abuse, and this avenue was cut off or delayed for many when the Ministry of Justice issued an

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order barring judges or other court officials (including procurators and court clerks) from entering law practice in their former jurisdiction for three years after their resignation or retirement (NCH Sept. 13, I933; Liu Zhen 1934: appendix 37). Frequent job changes were probably easiest in the early years of the legal profession. Regulation of the profession was less stringent then, and there was a dearth of qualified personnel in all areas; anyone with talent and ambition (and connections) could move from one area of the law to another with little difficulty. For some people, working at more than one job may also have been a necessity. Teachers, for example, made little money, even if they taught at several institutions; maintaining a practice on the side was an obvious way to make ends meet. Conversely, schools needed teachers, who were hard to find and even harder to pay; one solution was to draw on lawyers and judges as part-time teachers, as Soochow Law School did. Such a pattern also reflected the civil law tendency of the law teacher to be a practicing lawyer; even a professor is not full-time, ~or is he or she expected to be in most civilian systems (Merryman 1969: n6). In China, the practice also had certain advantages: it gave lawyers a wide range of opportunities, and provided practical experience that could add to a practitioner's or teacher's skills. But there were disadvantages as well: judges might be younger and have less experience than the lawyers appearing before them, for example. In any case, many law teachers practiced law out of necessity-their pay was too low and their jobs too insecure to permit the luxury of teaching full time. Others used teaching or even practice as a base between official posts, since appointees often lost their positions as a result of the frequent government reorganizations that characterized the Republican era. In Shelley Sun's view, therefore, the pattern reflected insecurity and instability rather than increased opportunities for legal professionals (Sun 1935a: 66-67). Conduct of Practice The 1912 and 1927 regulations required lawyers to establish an office in the district where they intended to practice (Arts. 21, 24). Lawyers were not, however, permitted to set up branch offices, a practice the Shanghai Bar Association attempted to control (Shanghai shi nianjian 1935: G12r). Law firms in Shanghai were thus usually small partnerships or sole proprietorships, with one or two per-

Alison W. Conner

sons, or perhaps six or seven, practicing together, as reflected in advertisements that appeared in the Chinese press and elsewhere (see, for example,· The China Law Review 10.2, June 1940). Announcements in Shanghai newspapers of lawyers joining or leaving particular firms and advertisements recruiting more lawyers appeared frequently, suggesting that lawyers moved easily between firms, or opened their own offices after working with more experienced practitioners, including foreign lawyers (see, for example, Shenbao Aug. 23, 1923, Sept. r, 1923). After registration, lawyers were entitled to appear in the modem courts introduced as part of the early twentieth-century legal reforms. Under the lawyers regulations, this meant the district court in their registered district, its high court and the Supreme Court (1912 Regulations: Arts. ro-12). Lawyers' tasks specifically included preparation of pleadings and collection of evidence, representing clients and presenting their arguments in court, questioning witnesses, and rebutting the evidence presented by the other side (Model Bar Regulations: Art. 24). To carry out these duties, lawyers were entitled, with the court's permission, to examine and make copies of documents in courts for cases they handled. They also had the right to interview their clients in prison or detention, in order to prepare their cases (ibid., Arts. 31££.). In criminal cases, the lawyer's work began with his or her appointment by the client, which could be made at any time after the initiation of a prosecution. Lawyers might also be assigned criminal work by the court; if a defendant had no attorney, and was charged with a crime carrying a serious punishment, the judge was required to assign a lawyer to represent the defendant (Code of Criminal Procedure 1935: Arts. 27, 28, 31). Many practitioners considered civil matters to be of higher status than crlininal work, however, especially since civil cases carried a higher tariff. Although litigation was the staple work of some lawyers, in Shanghai at least the lawyer's sphere was larger and included general advice and commercial work as well as litigation. Most bar association rules defined lawyers' functions to include transacting business on behalf of clients, witnessing contracts, wills and other legal documents, entering into contracts and other legal documents on the client's behalf, and arranging arbitration and settlements (for example, Model Bar Regulations: Art. 2 5 ). The Shanghai regulations

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also specified such tasks as the execution of wills, management of property and funds, settling of accounts, collecting rents, and the performance of all sorts of trusts (Art. 21). As attested by the frequent announcements in the local press, clients of Shanghai lawyers included companies, banks, doctors and other professionals, as well as other individuals, both foreign and Chinese (confirmed in interviews, 1987, 1990, 1992). What made Shanghai unusual, besides its high level of commercial development, was the presence of foreign concessions with their foreign consular courts and lawyers; in addition, from r 9 r r the International Mixed Court and the French Mixed Courts operated essentially as foreign courts until their return to the Chinese government in the late 192o's (Keeton 1928, 2: 375-86). Foreign lawyers had been in practice before these courts since the nineteenth century and there were long-established foreign firms in the city. Thus, from an early date one finds Shanghai lawyers working in foreign as well as Chinese firms, or serving as legal advisers to foreign companies; many began their practice there (see, for example, Who's Who in China 1936: 84, 89, rr6, 251). Chinese lawyers were first admitted to practice in the International Mixed Court after its takeover by the Consular Body in r 9 r r and the promulgation of rules of procedure for the Mixed Court in Chinese cases in January 1912. (The first Chinese lawyer was admitted in I9II on the strength of his membership in the English bar.) When the court roll was instituted in 1914, all lawyers wishing to practice before the Mixed Court were invited to sign it. Three of the first lawyers were Chinese who had returned to Shanghai after qualifying in England, and by the end of r9r6, 58 of the r22lawyers registered were Chinese (Kotenev 1925: 205-6). Although Chinese lawyers frequently handled cases in the International Mixed Court, the French Mixed Court was far less receptive to Chinese practitioners, who were not permitted to appear there until 1926. Soumay Tcheng, who claimed to be the first Chinese lawyer admitted to that court, reported that French nationality had previously been a requirement, and she was admitted only after some pressure was brought to bear on the court. By contrast, she had "experienced no difficulty" in gaining admission to the Mixed Court in the International Settlement (Who's Who in China 1936: 262, 4I; Tcheng 1943: 145-46).

Alison W Conner

Fees and Charges

The Mixed Courts had no rules relating to the amount and method of payment of lawyers' professional fees (Kotenev 1925: 207). But in Chinese courts, in theory at least, there were ceilings on lawyers' fees that were supposed to be set by bar associations in each locality (1912 Regulations: Art. 28; 1927 Regulations: Art. 30). Published bar association regulations did indeed provide charts of maximum fees, some of which were based on an hourly rate, and others on the task or job (Sifa ligui: I7?5-1904). Fees varied little from place to place; in the early 193o's, for example, the maximum set charge for "discussion of cases" ordinarily varied from four to six yuan per hour. 8 Fees for court appearances in civil cases had a somewhat wider range, from thirty yuan (in Suiyuan) to eighty (in Suzhou), although most bar associations set sixty yuan as the maximum allowable. Fees for court appearances in criminal cases were uniformly lower- usually half the rate for civil cases-and ranged from twenty to forty yuan. In Shanghai, however, fees were more generous: eight yuan for an hour's consultation, and fifty and roo yuan for court appearances in criminal and civil cases, respectively (Shanghai Regulations: ch. 8). Bar associations also set fees for the drafting of various documents (with civil pleadings again more expensive), and for writing opinions or drafting correspondence for clients. (For some reason bar association regulations were silent on the question of fees for preparing contracts and wills.) Lawyers might also work for a flat fee per case, in which event the limits were r,ooo yuan for handling a civil case and 6oo yuan for a criminal case. These fee schedules, it must be noted, provided for maximum rates only, and nowhere specified mandatory minimum fees, as would ordinarily be set for English solicitors. In 1937 the Shanghai Bar Association reportedly proposed the adoption of minimum fees, but no action was taken by the National Bar Association, at least by the end of that year (Chang Yu-chuan 1938-39b: 247). The criticism of the fee-charging practices of Chinese lawyers made by the English-language press was therefore somewhat unfair: Although "lawyers of repute" declined to handle a case below a certain fee, others not only touted for business but also bargained with clients and used contingency fees, with some spending a whole morning in

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court for a "paltry $5" (NCH Aug. 25, 1928). What such complaints overlooked was that lower charges and contingency fees presumably made lawyers' services available to a wider range of people. Did lawyers actually comply with the maximum fee schedules? Although both the lawyers regulations and bar association rules required lawyers to follow the schedules, it seems unlikely that most practitioners viewed the schedules as more than advisory. As a report in the English press put it, "lawyers charge as they please" (NCH Aug. 25, 1928). Or, in the words of Chang Yu-chuan, schedules were "made to be broken rather than honored" and lawyers usually charged "as much as the 'trade can bear"' (Chang Yu-chuan 1938-39b: 248). The 1912 regulations provided (Art. 28) that bar associations should set "gratuity" (xiejin) as well as fee schedules, but no reference to gratuities appears in the 1927 regulations or the 1930's bar association rules. Nevertheless, any amount a lawyer received over the maximum scheduled fee was apparently considered a "free gift from a grateful client." It was "perfectly legal" for a lawyer to accept such a gift, the only disadvantage being that he could not sue to recover any promised extras, as he could for his fee (ibid.). These "gifts" could be very generous: One American lawyer practicing in Shanghai reported that when his Chinese clients paid him they also frequently sent along "bolts of silk, elaborate screens, or heirloom vases in addition to their checks" (Allman 1943: 178). Despite the fee scales and their theoretical limits, the most successful Shanghai lawyers earned a very good living indeed. John Wu, for example, in describing his entry to practice in 1930 after a term on the bench, reported that within the "very first month I received so many retainerships and cases that my income amounted to no less than forty thousand taels-almost equivalent to forty thousand American dollars!" He had earned in one month more than his annual salary as a judge and professor put together. Thereafter, Wu reported, he continued to earn "handsome fees" from his Shanghai practice (J. Wu 1951: 133). The Shanghai Bar and Its Activities In many respects the activities of the Shanghai Bar Association differed little from those of associations in other cities. The Shanghai bar, for example, played an active role in the national judicial conferences, the first of which was held under its auspices in Shang-

Alison W Conner

hai in r922 (The China Law Review r.3: ro9). In the I930's, the bar association also participated in a nationwide campaign to establish legal aid committees for the indigent and to obtain compensation for people who had been wrongly imprisoned (Shanghai shi nianjian r935: Gr2ri Shanghai shi nianjian r936: G237i Chang Yu-chuan r938-39b: 255). But its intense involvement in campaigns against foreign legal privilege, which was all too visible in Shanghai, set the Shanghai bar apart from associations elsewhere in the country. Shanghai lawyers were leaders in drives for the abolition of extraterritoriality, the rendition of the Mixed Court, the control of the Provisional Court/ and the exclusion of foreign lawyers. Of all its activities, however, the Shanghai bar's efforts to secure a monopoly for its members in Shanghai's courts are among the most interesting and most revealing of the bar's status and attitudes (and the conflicting pressures to which it was subject). When foreign lawyers organized in r926 to oppose the rendition of the International Mixed Court, the Shanghai bar launched a counterattack. The bar argued that the reason why foreign lawyers protested was "too obvious to mention." Was it right, the bar asked, to "conserve the interests of about a hundred foreign lawyers" at the expense of justice and friendly relations? (NCH July ry, r926, July 24, r926). Statements such as this shifted the focus of the debate to the right of foreign lawyers to appear in Chinese courts, something which the Shanghai lawyers firmly opposed. Nevertheless, the Shanghai bar was only partly successful in its effort to have foreign lawyers excluded from the Mixed Court's successor, the Provisional Court. The right of foreign lawyers to appear in that court was expressly reserved in the rendition agreemerttsi they could still represent either side in cases where one party was foreign or where foreign interests were involved (Keeton r928, r: 396). During its three-year life, therefore, the Provisional Court became a battleground, with foreigners complaining of "irregularities" and the Chinese of foreign "interference." Members of the Shanghai Bar Association played a leading role in the hostilities by protesting in court and outside it, as well as by appealing to the public and to Nationalist party and government authorities. The main bone of contention was the role of foreign deputies, but the appearance of foreign lawyers continued to irritate Chinese lawyers and judges, including many who had been trained abroad (see accounts in NCH

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Mar. 2, Mar. 9, Mar. r6, 1929i Keeton 1928, 2: 396-99i Ching 1988: 410-12 1 422-25). When in 1930 the Provisional Court was in turn replaced by a new district court, the Shanghai bar succeeded in further limiting the rights of foreign lawyers. Foreign attorneys were now subject to the lawyers regulationsi they too were required to register formally and comply with disciplinary rules. But foreign lawyers managed to retain some rights of appearance where foreign interests were involved, and in 1935 there were still 68 foreign lawyers registered in Shanghai (NCH Feb. 25, 1930, Mar. 25, 1930i Shanghai shi nianjian I 9 36: G2 34-3 5 ). Consequently, although the Shanghai bar won some major battles against foreign privilege, it was not entirely successful in its goal of ousting foreign lawyers. The effort of the Shanghai bar to make the Provisional Court truly Chinese-not just in terms of the nationality of its lawyers but in its dress, language, procedure, and judges as well-was natural and reasonable. Few countries at that time admitted noncitizens to practice in their courts, and the status of foreign lawyers in Chinese courts derived from foreign privilege alone. Opposition to that status was entirely consistent with the bar's opposition to extraterritoriality as well as its defense of patriotic activists like the "seven gentlemen" (NCH June 13, 1925, June 16, 1928, June r6, I937i Ching 1988: 436~40). However, the Shanghai Bar Association was not motivated by nationalism alone. Its lawyers clearly stood to gain if they could supplant foreign lawyers and thus remove a major source of competition. Its actions were also consistent with earlier efforts to expand lawyers' rights of appearance to traditional magistrate courts, and its continuing efforts to curb the unauthorized practice of law. Since most Shanghai lawyers were united on this issue, it also served to provide some cohesion to an otherwise very diverse group. The "foreign lawyers" campaign was ideal: a rice-bowl issue that could be argued in terms of principles all Chinese supported. At the same time, the Shanghai Bar Association embarked on a similar-but divisive-campaign to control the admission of Chinese lawyers to the Provisional Court. Some fifty to sixty Chinese lawyers who had formerly practiced before the Mixed Court had apparently never joined the bar association. When they attempted to appear before the new Provisional Court, they faced the adamant

Alison W Conner

opposition of the Shanghai bar. The bar association pressed the Provisional Court to stop nonmembers from appearing and at the same time conducted a campaign against such lawyers in the press, declaring them all unqualified. In a series of resolutions, the bar association decided that no lawyer, unless a member of the association, should be allowed to practice in the Provisional Court, that the court should be ordered to prohibit the appearance of nonmembers, and that members should refuse to conduct any case in the court if the opposing lawyer was not a member of the association. Reportedly, representatives of the bar association warned the chief judge that they would appeal to the Nationalist party if he did not agree to implement their decisions. In the end, the bar association prevailed on the Nanjing authorities to issue an order that only members of the association might appear in the Provisional Court (NCH Aug. 25, 1928, Oct. 6, 1928, Dec. 15, 1928; Shenbao Dec. 12, 1928). In this case, therefore, the Shanghai Bar Association achieved a clearer victory than in the foreign lawyers controversy. On the surface, the issues involved seemed fairly clear cut: Chinese lawyers were required to join bar associations in order to practice; if the Provisional Court was a Chinese court then only association members could practice there. At that time, moreover, the Nanjing government was endeavoring to raise the standards of those admitted to practice and to weed out unqualified practitioners. Bar associations were responsible for maintaining the standards of their members, and arguably any efforts to improve them were commendable. Technically, however, Chinese bar associations may have lacked the authority to determine membership in the way they attempted. Ousted lawyers argued that once the minister of justiCe had issued a license, the bar's only function was to check the identity of the applicant and see that his papers were in order (NCH Aug. 25, 1928, Oct. 27, 1928, Nov. 3, 1928). Even if the Shanghai bar had the power to set its own standards, however, it exercised that power in an arbitrary and inequitable way. Some lawyers were granted only provi" sionallicenses, and many others were completely disbarred. These lawyers complained that qualified applicants were rejected for membership if they had no contacts or friends on the committee. Denying admission to applicants, of course, meant putting them out of business; in some instances rejection was also followed by bar association announcements in the newspapers that those rejected were unfit to practice (NCH Aug. 25, 1928, Oct. 27, 1928).

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Ostensibly, therefore, this struggle was over professional autonomy and proper standards, but it is difficult to rule out simple jealousy or political infighting as motivations. For years the Shanghai bar had been dominated by a small group that had denied membership to other lawyers. Closer examination also suggests that this episode was part of a broader struggle for control of the bar association itself. The campaign against "unqualified lawyers" followed the arrival of the Nationalists in Shanghai and what amounted to their takeover of the bar association in 1927. Like the chamber of commerce, the bar association was a target of reorganization by the Nationalist party, and for a time was subject to party control (Fewsmith 1985: 128-30; Coble 1986; Shenbao Mar. 6, 1927, Apr. 25, 1927, Apr. 30, 1927). According to some reports, it was party supporters who abolished the association's presidential system and introduced the committee system, which they controlled. Opposition to the new leadership was "shouted down" and met with failure; opponents were reportedly labeled counterrevolutionaries whose character should be investigated and who should be expelled. At the height of party involvement-which later lessened-attempts were made to turn the association more directly into a Nationalist agency; compulsory party membership for all Shanghai lawyers was reportedly proposed and party applications were distributed despite the opposition of some members (NCH Aug. 25, 1928; Ching 1988: 417-18). Whatever their motives, the tactics adopted by the Shanghai Bar Association raise other questions. Although Shanghai lawyers espoused the principle of judicial independence in, for example, the resolutions submitted to the 1935 judicial conference (Faxue congkan 3.12: 132-33), their actions threatened the system they claimed to support. It may be difficult to credit charges in the British press that judges felt cowed or threatened by the actions of, or simply gave in to pressure from, the Shanghai Bar Association. But pressure-both direct and indirect-was undoubtedly exerted by the Shanghai bar during these campaigns. One foreign commentator's only real criticism of the Provisional Court was political interference by the higher authorities (Johnstone 1937: 160-61). That "interference" was actively encouraged by Shanghai lawyers, who repeatedly appealed over judges' heads to party or provincial authorities-and not only in the campaigns against foreign privilege and umegistered members. In 1928, for example, the Shanghai Bar Association supported the

244

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replacement of H. Y. Loo (Lu Xingyuan) as president of the Provisional Court. When he resisted on the grounds that he could not be removed from office unless convicted or subject to disciplinary action, the bar association issued a statement denouncing his "intolerable stubborness." Since the final authority of appointment and removal lay with the Jiangsu provincial government, the bar argued, it could therefore "take any action, be it to appoint or dismiss any judicial officers in the court whenever it deems necessary without being subject to any restraint. It is evident that the Provincial government is at full liberty in this" (NCH June 16, 1928, June 23, 1928, July 7, 1928, July 14, 1928, July 21, 1928, July 28, 1928). There was also speculation in the British press that John Wu resigned from the Provisional Court because of the bar association's attacks on him. The bar sharply criticized Wu for a 1927 decision in which he held the court had no jurisdiction; the association declared him wrong and therefore not qualified to hold his position. It charged that he unreasonably based his opinion on international law when there was no reason to resort to it: "This means the deprivation of our sovereign rights and is a disgrace to our nation." The bar association therefore petitioned the minister of justice to issue an order instructing the Provisional Court that "hereafter no judges shall be permitted to hand down like decisions." But some association members, mostly Soochow graduates like Wu, argued that he had every right to frame his own decisions without consulting the bar; the judiciary should function independently, not subject to the dictates of outside bodies (NCH Aug. 25, 1928). Consequently, the activities of the Shanghai Bar Association during the 192o's and 1930's must receive a mixed assessment. Like other legal professions, the Shanghai bar exhibited both an attachment to principle and a sense of its own self-interest. Its achievements-which were substantial-must be weighed against the negative effects of its actions, such as encroachments on the principles of judicial independence and the impartial regulation of attorneys. In part, that simply reflected the "capture" of the bar association, along with other Shanghai organizations, by the Nationalist Party, and the subsequent attempts by the Nationalists to control the activities of the association. For a time, at least, the bar was heavily politicized, and dominated by a small, party-connected group. But its actions probably also stemmed from the association's own pri-

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orities: nationalism and the recovery of sovereign rights for China over purely "professional" values. Conclusion What conclusions can be drawn about the early Chinese legal profession? How should it be assessed? Foreigners anxious to retain their privileges frequently found fault with the Chinese bar, as have current commentators in the PRC, for equally obvious reasons. But Chinese writers, educators, and lawyers of the Republican period could also see shortcomings in the "lawyer system," in particular the low standards, professional misconduct, and the short supply of lawyers. Although the Shanghai bar included many unusually talented and impressive lawyers, a vast gulf separated stellar figures like John Wu from the ordinary provincial lawyer. Despite general improvement in educational standards after r 92 7, the legal profession continued to be marked by uneven quality. Dean Roscoe Pound of Harvard, writing in the late 194o's, thought the Chinese system of admission assured "educated, trained, and reasonably competent practitioners" (Pound 1948a: 352). But Ch'ien Tuan-sheng, then dean of Peking University's law school, was harsher in his judgment. Ch'ien found "few properly qualified persons have been admitted to the bar, and not all who have been admitted are well qualified by training" (Ch'ien 1950: 260; Boorman and Howard, eds. 1967, r: 378). In Pound's view, a greater difficulty for China was the lack of unified training for its legal professionals, arising from the foreign origin of its modern laws and the diverse educational backgrounds ofits academiclawyers (1948b: 26-29). Although an increasing number of students studied law from the late 192o's on, these differences in training and legal outlook persisted, and members of the legal profession often lacked a common tradition or shared values. When one adds traditional divisions (such as native place) and newer political differences, the factionalism and infighting of the Shanghai bar are hardly surprising. At the same time, however, at least in Shanghai some unity was provided by the campaigns the bar waged against foreign privilege during the 192o's and 1930's. The lack of ethical standards was also a matter of serious concern to responsible members of the profession. The rules themselves

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may have been adequate, but they were not sufficiently enforced in Shanghai, much less elsewhere. The most common attorney misconduct included misleading advertising and touting for business, but more serious accusations of blackmail, fraud, extortion, and misappropriation were also reported (Shanghai shi nianjian 1935: G121i NCH July I?, 1926, Aug. 4, 1931, Sept. 26, 1934, for example). A related criticism of early Chinese lawyers was that they were "engrossed in money-making" and failed to work for ordinary people (Shenbao Oct. 29, 1923i Ch'ien 1950: 26oi Zhang Jinfan, ed. 1982: 4 53). Despite the negotiability of fees and some sincere efforts to provide legal aid, it is probably true that lawyers' fees were beyond the reach of many working people. Whatever the shortcomings of the profession, however, there were too few lawyers to staff all districts in China. Why, after a reasonably good start, did the profession grow so slowly? Perhaps, as in Japan, the low reputation of the pettifoggers was an obstacle to the growth of their successors, the new legal profession (Hattori 1963: III-12, 117). Pound suggested similar reasons in his 1940's survey of the legal system, conducted as an adviser to the Ministry of Justice. For one thing, he wrote, people were not accustomed to using lawyers, and the turmoil of revolution and the Japanese occupation had "prevented the growth of a strong profession except in great urban commercial centers" (Pound 1948a: 361). The government's attitude was also a critical factor in the profession's failure to expand more quickly. Lawyers were a necessary evil, introduced as part of the modern judicial system adopted to end extraterritorial privileges. In the official view, the judiciary and the procuracy were essential to the implementation of that scheme, whereas private lawyers were marginal. Indeed, the authorities appeared more interested in controlling lawyers than in promoting a larger (and potentially more troublemaking) profession. The government could, of course, limit the size of the profession either directly or indirectly, for example by restricting the numbers of law students. In 1932 it promulgated regulations prohibiting universities from enrolling more students in arts or law programs than in technical subjects, which it considered more useful to national development. As a consequence, there was a marked drop in law enrollment-a "satisfactory result" in the official view (Dierci Zhongguo jiaoyu nianjian 1948: 574-76i Higher Education in China n.d.: 24-27). 10 Nor did the government provide incentives to encourage lawyers

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to work outside the urban areas where they were concentrated. This meant that Shanghai and other cities were reasonably well served, at least for commercial work, but the "broad mass of villages were ruled by the litigation trickster and the pettifogger" (Chen Haisheng 1989: 3; see also China Weekly Review June 19, 1926, pp. 27-28). One cannot blame lawyers for gravitating to the cities; urban areas offered the chance to earn a better living than did the countryside. Shanghai provided some of the best opportunities, and the profession there grew rapidly through the mid-193o's. Conversely, in areas without profitable work (or government subsidies), the legal profession was hard put to survive or expand. Thus, the shortage and uneven distribution of lawyers were faults of the system, as Ch'ien Tuan-sheng argued. The government adopted complex codes of procedure, which ideally required lawyers to operate effectively. But without lawyers, fewer people had access to courts, and many were entirely cut off from the system. The shortage of lawyers created other problems; Pound attributed the claimed slowness of the courts in part to the dearth of lawyers, since the Chinese courts did "not as a general thing have the assistance of counsel" (1948a: 360). Ch'ien had little respect for the lawyers of his day, but he still believed that the judiciary was more conscientious where the bar existed and supported it. For those reasons, Ch'ien thought that either the bar should be "enlarged, popularized, and otherwise improved," or some radical changes, such as greatly simplified judicial procedure, should be adopted (1950: 261). No doubt many criticisms of Republican-era lawyers were valid, but they could equally well be made of other legal professions. Viewed from today's perspective, therefore, the picture is far from bleak. A modem legal profession-as distinct from the old occupation of pettifogging-was indeed established during the critical years between 1912 and 1937. The legislation enacted then provided a reasonable framework for development, and the profession managed to acquire to some degree the characteristics outlined by Duman. Most remarkable, since this could not be legislated, was the "self-conscious identity" developed by some lawyers and bar groups, as in Shanghai. Bar association etiquette rules reflected lawyers' efforts to assert their position as professionals and officers of the court; bar activities, especially the attempts to impose a monopoly, also contributed to the sense of professional identity. Above all, the works of thoughtful lawyers like Liu Zhen, Shelley Sun, and Liu

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Lumin demonstrate a clear understanding of the legal profession's role and duties. The legal profession also achieved a reasonably high status for its members, at least in commercial centers like Shanghai, where the new professions played a strong role in civic affairs. Shanghai annuals from the 193o's all contain sections on well-known people, and a quick comparison with the Shanghai bar records indicates that virtually all Shanghai lawyers were held sufficiently worthy of inclusion (or possibly all registered members of professions were simply included in the mingren sections). Anti-lawyer sentiment undoubtedly persisted (Huey 1984: 310-rr), but perhaps it resulted as much from envy of the urban profession's success as from any perceived connection to pettifoggers.

CHAPTER NINE

Madeleine Zelin

Merchant Dispute Mediation in Twentieth-Century Zigong, Sichuan

Z

wAs THE EARLY modern production center of the Sichuan salt industry. 1 Beneath the hills that dotted its terrain were rich deposits of brine and salt, laid down by the periodic inundation and evaporation of a prehistoric epicontinental sea. By the late imperial period, deep wells drilled to tap this vital resource were a familiar feature of the Zigong countryside, as were the coal furnaces at which the brine was evaporated to form the large salt cakes marketed throughout Sichuan and parts of Hunan, Hubei, Yunnan, and Guizhou. From the middle of the Qing dynasty, the productivity of the salt yards at Zigong was enhanced by the discov" ery of rock salt deposits at Gongjing (the West Yard) and by the har" nessing of natural gas at the Ziliujing (the East Yard). The construction of bamboo pipelines to move brine from Gongjing to Ziliujing added a new source of profits for Zigong's enterprising merchant community. Although Zigong had its share of retail establishments and merchants dealing in items of popular consumption, the vast majority of those engaged in business in the city sought their income from the production and distribution of salt.> During the late Qing period, this industrial center in the lower Tuo River basin was responsible for over so percent of all salt produced in Sichuan, between rso,ooo,ooo and 25o,ooo,ooo catties a year. As such, it made a major contribution to the economy of Sichuan and to the revenues of the central government in the form of wholesale license fees. The main form of business organization in Zigong was the partnership. Among the lists of those holding shares in Zigong wells and IG oN G

Madeleine Zelin

furnaces were individuals, lineage trusts (tang) and credit institutions, Zigong natives, eastern Sichuanese, and merchants from as far away as Shanxi and Shaanxi. Partnerships raised the funds to drill brine and gas wells. They also built the furnaces that purchased brine and leased rights to natural gas in order to evaporate brine and produce table salt. While a few powerful merchant lineages and investment groups held large numbers of shares in all phases of salt production and distribution, an important characteristic of the Zigong economy was the participation in the share market of many small investors and the distribution of their investments over a large number of production facilities. 3 While the practices that governed the financing and operation of the twentieth-century Zigong salt industry were a direct inheritance of the Qing period, the political and administrative structures that governed the business community became far more complex with the dynasty's downfall. Under the Manchus, the salt production area was under the jurisdiction of the county magistrates of Fushun and Rongxian, each dealing with merchants on its side of the river that ran through the yard. Business of direct concern to the central salt administration was handled in the first instance by assistant magistrates answerable to each of the two county jurisdictions, as well as a hierarchy of specialist salt officials who reported to the Sichuan salt commissioner, and ultimately to the Board of Revenue in Beijing.• After 1912 new institutions complicated the identification of political authority in Zigong. Military units stationed in the region jockeyed for control of the revenues generated by the salt gabelle. 5 The salt administration itself, with its headquarters in Beijing, soon came under the administrative stewardship of Westerners. The interests and loyalties of salt administration officials, brigade and division commanders, the warlords who aspired to rule the province as governors, and the government in Beijing could no longer be assumed to be one. Civilian institutions also became more complex. By the r9ro's, the Chamber of Commerce, which had been formed in response to the Qing government's efforts to develop a modem commercial system, had become a de facto civil government at the yard. However, its powers to tax and carry out municipal government were greatly circumscribed in the 192o's and 1930's. Nonetheless, its role in the administration of the business community is critical to our understanding of civil law in the early Republic. At

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the same time, the institutions of local administration appear to have multiplied, as government reformers sought new ways to extend their authority into the local community. Territorial units that once had significance only in the administration of local defense corps, the tuan, became units of local government. During the 192o's Zigong was designated a "special territory" (tequ), and the quzhang became another among many administrative authorities to whom legal disputes could be appealed. By the 192o's, the juridical authority of the magistrate was also challenged by the establishment of a hierarchy of courts ranging from local courts to the superior Court (gaodeng fayuan) in Chengdu and the Supreme Court in Nanjing. This chapter is based on 43 civil disputes culled at random from the holdings of the Zigong Municipal Archives during the spring of 1989. This is a minute sampling of the cases that must have been brought before the authorities in a town as economically important as Zigong. Because the holdings of the archive came largely from the offices of the local salt administration, the Chamber of Commerce and the various trade associations in Zigong, there is a natural bias in favor of cases that involved these agencies. No materials directly produced by the local criminal or civil court appeared to have been cataloged, though their preservation should not be ruled out. The number of documents available for the 193o's and 1940's far outnumbered those for the 191o's and 192o's and this too is reflected in the cases to be examined here. 6 As a result, nothing to be said in this chapter can be taken as statistically significant. Nevertheless, certain patterns of behavior do emerge which should shed light on the way in which merchants dealt with the most common causes of disputes within tpe business community.

Business Practices and Civil Suits Local business practices in Zigong were designed to avoid the need for litigation. At their center was the written document, in the form of contracts, record and account books, promissory notes, wills, deeds, and so on. While one would expect an increasing reliance on such instruments in the Republican period, there is evidence of their development within the merchant community of Zigong from as early as the eighteenth century. By the mid-nineteenth century common practices in the establishment of contractual relationships were canonized in the so-called customs of the yard

Madeleine Zelin (changgui) and remained the guide to formation of partnerships, distribution of profits, and the sale and lease of property and use rights until the communist takeover of Sichuan. Even transactions involving friends and relatives required elaborate written documentation which could be referred to in the event of a dispute.! The authors of contracts and other forms of business agreements went to great lengths to enumerate every possible contingency in an effort to avoid the need for litigation. Standard contracts establishing a partnership to dig a well and pump brine listed every type of equipment needed and who would provide it, gave detailed descriptions of rights of way and use rights to ponds, roads, and hillsides, and noted what action would be taken if equipment was broken or accidents prevented operation of the well (Zelin 1988: 91). In addition to establishing the management structure of the enterprise, an I 89 5 revision of the partnership regulations governing the Dachang brine pipe expressly forbade a number of practices that could lead to lawsuits against fellow investors. Partners were barred from taking private loans from the pipe treasury. If they did they would be fined and expelled forever from the business. The sole exception was major life cycle events such as weddings and funerals. In such cases a formal application had to be made to the general manager of the firm, who was enjoined not to allow personal feelings to sway him in the direction of too generous a loan. Partners who owned salt evaporation furnaces and wells were warned that they would have to do business with the pipe on the same terms as other customers. And in order to avoid the problem of parasitic relatives and friends, both were forbidden to stay more than two or three days at the firm's facilities (Zigong 42-3-5-21 [1902]). 8 Following the mediation of debt cases, it was not uncommon to draw up a written agreement enumerating not only the amounts due each creditor, but the exact method and time by which each would be paid. When the Zhou family's Shuxing lineage trust (tang) was placed under new management, its representatives agreed to pay back 3,ooo yuan owed to Wang Deyu. A contract was drawn up stipulating that 2,ooo yuan would be deposited in Wang's name at the counting house of the Hongfu well and a promissory note was issued in Wang's name, to be redeemed without interest when the Zhous'lease on gas produced by the Hongzheng well was up (Zigong I?-I-193-44 [1932]). Written documentation could only be useful if its authenticity

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could be verified. Throughout China application of the "chop" or seal of an individual or firm was essential proof that the party to whom a document was attributed was genuine. 9 In Zigong, firms commissioned remarkably artistic chops in the shape of elaborate leaf and flower motifs whose complexity made them difficult to forge. When a partnership was dissolved its chops were destroyed, as were the molds from which they were sometimes cast. No obligation incurred after that could be attributed to the firm. The inclusion at the end of most agreements of large numbers of signatories known as pingzhengren and zhongzhengren should be understood in this context as well. The common use of the word "guarantor" to translate these terms implies that such men were in some way responsible for assuring that the terms of the agreement were fulfilled. Not a single instance of such activity was found in the cases examined. Where the pingzhengren did contribute to the conduct of a suit was in verifying that the written documentation presented as evidence was genuine and that those whose signatures appeared as parties to the agreement were present at the signing and were who they said they were. It was the written evidence that counted and disputants were continuously at pains to produce these "witnesses" to strengthen the veracity of their own case. As a further guarantee that claims established now could be verified in the future, Zigong businessmen registered their contracts and other forms of agreements with government agencies. During the Qing, notification of the assistant county magistrate was probably deemed sufficient and may only have been carried out in the case of successfully mediated disputes. 10 However, as the risk of loss because of warfare and the challenge arising from factional struggle among competing militarists intensified during the twentieth century, Zigong businessmen went to extremes to make sure that their precious written proof survived. Among the documents stored at the Zigong Municipal Archives were affidavits sworn out by merchants who had lost promissory notes (zhipiao) which they now wished declared null and void. In one instance, Shi Gongqing and Yang Qianti, two commanders of the Sichuan Bandit Suppression Army, had bought at a discount promissory notes payable by the once powerful Li Siyou lineage trust. On his way to cash it in, their deputy lost a rs,ooo yuan promissory note and recompense was denied by the Lis until he registered the loss with the Fushun magistrate, the Zigong Criminal Court, the Zigong police, the Zigong Chamber of

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Commerce, and the comparable agencies in Chengdu and Chongqing.u One might expect the payee of such sums to demand caution lest the demand be made again. However, more mundane agreements, such as the terms of loans and the results of bankruptcy negotiations, were also registered in this way. 12 The texts of these agreements appear to have been open to the public. During their visit to the garrison command headquarters to file the results of a loan repayment negotiation, Song Kangqu's creditors discovered three other individuals had filed claims on which the same assets as those stipulated in their agreement were pledged as collateral (Zigong 7-I-515-13 and 46 [1933]). The government made no effort to weed out conflicting claims. However, the existence of the files did help establish chronological priority and alerted contenders for assets of each other's existence. The public declaration of one's claims served a similar purpose. All salt manufacturing facilities had to be licensed by the government. As its name indicates, this license or menpai ("doorplate") was supposed to be publicly displayed, usually outside the countinghouse of the firm. When functioning properly, the regulations governing issuance of menpai involved a rigorous verification of property rights. A new menpai could not be issued until the previous management turned in the old one to the office of the salt yard head. And transfer of a menpai for any reason was forbidden. 13 This is one of the reasons why the name of a firm in Zigong changed every time there was a change of ownership. · Public declaration could also involve more physical demonstration of one's property rights. The opening of a new firm, well, or furnace was often accompanied by quasi-religious rituals on the site of the new business. While its main purpose was undoubtedly to bring good fortune to the enterprise, it also gave public notice to those who might wish to contest the property rights upon which the firm had been established.~• Declarations of intent to purchase or sell property, drill a well, dispute property or use rights, and/or hold an open meeting to settle business disputes were often posted in prominent places throughout the yard (for example Zigong 3-5-51435-37 [1937], I?-I-495 [r927], r-I-I90-I3-I4 [192o's]). The failure of potential interested parties to respond to these demonstrations could be cited later as evidence that a claim was fabricated after the fact. Once business relationships were established, a number of cus-

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tomary practices also served to avoid conflict. The use of standardized periods for the repayment of debts or the closing of business accounts is noted in many Zigong contracts. The most important deadline was, of course, the New Year, when debts were called in throughout the Chinese business community. Other important festivals, such as Qingming and the Dragon Boat Festival, also served as intermediate deadlines for installment payments. Closely related was the annual partnership meeting and the "clearing of accounts" in which the business managers of firms opened their books to their investors, reported on the fiscal performance of the firm, and declared the annual dividend and bonuseS. 15

Types of Disputes Despite these elaborate measures to avoid conflict within the business community, disputes arose in Zigong as elsewhere in China. Most of the suits in our sample fall within three categories based on what was at issue: debt, contracts, and ownership and use rights. Eighteen of the suits deal with debt. Most were the result of bankruptcy and were instigated either by the creditors of a firm or by a firm's manager, who often found himself left holding the bag when the partnership collapsed. Eleven cases involved contract disputes in which one party wished to break a contract or in which the contract had already been violated by one of its signatories. Only seven of the 43 cases involved disputes over property rights, eight if we include one case of a contested will. In the remaining cases, what would now be called white collar fraud brought the litigants to court or to seek mediation within the Chamber of Commerce.

Debt Disputes Although local customs for dealing with debt recovery were well established, it was necessary to file suit in order to set the process in motion. This could be done by one individual or by a group of unrelated creditors of a single firm. In some cases, mediation was requested by the bankrupt firm itself when it found itself unable to withstand the pressure of insistent creditors seeking restitution. Unlimited personal liability further complicated disputes over debt repayment. In the event that a firm could no longer meet its obligations, the amount of outstanding bills, deliveries, and loans had to

Madeleine Zelin

be recovered from all the partners. Ideally each would contribute to the total in proportion to his shares in the firm. However, where the number of partners were many, or where some partners were not local residents, or were intent on evading their fiduciary responsibilities, attempts to compensate creditors often led to additional litigation among the partners themselves. Managers, who were not always investors in the firm, often found their personal assets under attack in part because they were the most visible members of the firm and had been in charge of company accounts. 16 And in accordance with traditional Chinese practice, sons inherited the debts of their fathers along with their assets (for example Zigong n-r-543-2 [192o's]). Most difficult were cases in which the multistranded ties of investment and credit became entangled. The creditors of several of Song Kangqu's Zigong establishments feared just such an outcome when, in the middle of their negotiations, Song's remittance shop and furnace closed down. Both firms had been designated as collateral in their debt settlement. However, closure meant the emergence of a whole new set of creditors and investors with competing claims to the newly bankrupt components in Song's varied portfolioY When the Tongli Company was formed to buy goods in Chongqing for sale in Zigong, the Yonghexiang Company made a small investment in the firm and acted as their agent in Zigong. The Yonghexiang went bankrupt in 1929, and its creditors took possession of all the goods in its warehouses, including goods shipped by the Tongli Company that had not yet been sold. Because the Yonghexiang was a partner in the Tongli Company, the former's creditors in Zigong argued that these were joint assets that could legitimately be sold to pay the Yonghexiang's debts. The Tongli Company did not challenge this principle. Instead it went to great pains to demonstrate that the Yonghexiang owed it sufficient money to have negated any relationship of partnership that was originally intended between the two firms (Zigong 3-5-486-6-17 [1927]). Cases such as these could tie up Zigong's courts and institutions of commercial mediation for years. Bankruptcy by definition meant the inability to fulfill one's contractual obligations, and the existence of many competing interests where limited assets remained to be distributed led to fairly well established protocols for conflict resolution. The first step in such cases was to seek mediation. During the Qing period the agency of

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first resort was the magistrate, who would refer the case to mediation by members of the local yard gentry (changshen) (Zigong n-r472-I0-12 [192o's], I?-I-472-I?-I9 [r9ro's]). Under the Republic the number of local administrative and quasi-administrative agencies increased, so that a party to a bankruptcy suit had a choice of institutions in which to press a claim. Whatever the agency involved, the first step in a bankruptcy case was to call a meeting of all interested parties. When Li Qiongpu's business failed, he put up a public notice asking representatives of the local courts, local notables (renshi), and his creditors to come to a meeting at the office of the tuan in which his firm was located. A transcript of this first meeting has survived, providing an excellent example of mediation at its most civilized (Zigong n-r-353-4 [1933]). Li's own case was put forward by Wang Runzhi, a member of the local elite. Wang pointed out that the reason Li had put up a public notice calling everyone to come to this meeting was that his business had failed and he really had no way to pay the sums he owed his creditors, friends, and relatives: "His only option is to turn over all his agricultural land, his buildings, and his ten fireballs at the Detie well to the tuan to sell off to pay his debts and to ask his creditors and you notables to forgive him. He has hidden none of his property." Wang's introductory statement was followed by a brief statement by the head of the local tuan, Mr. Gao: "By calling all of you creditors to this tuan in order to use all of his property to pay off his debts, Second Gentleman Li (Ergong) is showing that he really has reached a state of bankruptcy from which there is no escape. But we do not have the power of enforcement [in such a case]. We can only mediate (jiequan tiaohe)." A further testimony to Li's character was made by Yu Shuhuai, one of the most prominent of the new generation of yard entrepreneurs. Today Second Gentleman Li has called you creditors here with the sincere intention of settling his debts. He has hidden none of his property.... Second Gentleman Li really is a good man. Many of you at both yards are aware of his goods works in the past. Today the tuan headmen, Messrs. Gao and Li, and Seventh Gentleman Li have gone all out to help Second Gentleman Li. We ask that you creditors help to wind this case up as quickly as possible.

Madeleine Zelin

Mr. Gao then took over the conduct of the substantive work of the meeting. You creditors have all understood what has been said today. All those willing to recognize his bankruptcy and accept distribution of his assets as payment of debts please so indicate by standing up. We will help you carry this out in accordance with the correct procedures. (pause) The entire group of creditors has indicated agreement by standing up.

These routine statements were followed by a number of special pleas by the representatives of individual creditors. Much of this portion of the document is damaged. However, from what remains we can see that many of these pleas must have involved creditors such as the widow Mrs. Wang nee Song, who asked for repayment of an extra percentage of her original loan in recognition of her inferior financial status. Mr. Gao then thanked those assembled for supporting Mr. Li and informed them that at the lunar New Year the ward administration would issue an invitation to all Mr. Li's creditors to come to the ward office and register the amount they were owed. From that point on the accumulation of interest on the loans would be suspended. Mr. Gao then called upon Mr. Li's employees to draw up a detailed account of all his property. A second meeting was held some months later, the delay having been caused by a series of accidents at the well in which Mr. Li was an investor. At this time Mr. Li's representative listed all of Mr. Li's assets-land, buildings, and natural gas shares-and their market value. A creditor could accept all or part of the money due him in the form of property at its assessed value. Any assets remaining would be auctioned and the cash divided among the creditors in proportion to what they were owed. Successful mediation, as in the above case, depended entirely on the goodwill of the participants. As Mr. Gao himself indicated, the local self-government bodies had no power to enforce repayment of debt. The decision to participate in mediation was itself a contract in which each side agreed to settle for what was decided during the mediation process. As we shall see, in the case of the creditors, this decision was probably based on the assessment that even if they pursued the case to higher levels of government they would not recover the full value of their losses. As for Mr. Li, his reputation as a businessman, which he sought to enhance through the testimony of yard notables, depended on the appearance of total honesty in dealing with those with whom he had outstanding debts. In the Chinese

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business world bankruptcy was rarely the end of a man's entrepreneurial career. Indeed, most of the leaders of the Zigong business community of the 192o's and 1930's went bankrupt at least once before making their fortunes. Of course not all bankruptcy suits were handled so amicably. This particular case had the advantage of involving single-stranded relationships between one individual and many discrete creditors, not a few of whom were relatives and friends. Where private mediation failed, 18 or where the claims of creditors and debtors were in dispute, most cases in Zigong were brought to the Chamber of Commerce. By the r 92o's the role of the chamber in resolving such disputes was formalized in the creation of a Commercial Mediation Board (shangshi gongduanchu) staffed by members of the local gentry.19 Even when disputants tried to bring their suits to other authorities, the latter usually referred the parties back to the Chamber of Commerce if its mediators had not yet investigated the case. Where the amount of debt or responsibility for repayment was in question, the Chamber of Commerce dealt with the case in much the same way a Qing magistrate would handle a civil suit. Written depositions were sought from all intereste~ parties. Creditors were called upon to produce written documentation of their claims. The chamber then undertook its own investigation of the facts, often coming to conclusions quite different from those of the litigants themselves. One of the longest-running disputes in our sample involved partners in the Haifeng well (Zigong ry-r-472-ro-r2 [r92o's]). During the late Qing, the well ran into financial difficulties and Chen Jifu was hired to manage the enterprise and bring it back into profit. Instead the well sank deeper into debt and at some time before the end of the dynasty the partners brought a suit against Chen at the office of the Fushun county magistrate. The partners argued that the well was taking in money. If the money was not going to lower their total debt then it must be going into Chen's own pocket. The magistrate ordered them to use company assets and, if necessary, personal funds, to pay 7,ooo taels then owed to various creditors. He also put a group of local gentry in charge of settling the case. The gentrymen were not able to fulfill their mandate because Chen refused to open the company books to inspection. At the same time, Chen filed a countersuit at the Fushun Chamber of Commerce which was also unresolved because of his refusal to open the company's

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books. While this was going on, the term of the partners' lease on the well was nearing an end. The gentrymen who were given the task of mediation were also called upon by the magistrate to appeal to the owner of the well to extend the lease. This too was unsuccessful. In 1911 the Yunnan army invaded the province and mediation was interrupted. The lease was about to run out, at which point there would be no more income with which to cover what had grown to over Io,ooo taels in outstanding obligations. Now the creditors sought legal redress and brought a suit against the partnership at the local court (shenpanting). The latter referred the case back to the Zigong Chamber of Commerce. Having examined all the evidence and having undertaken investigations of its own, the Commercial Mediation Board produced its own interpretation of events. First, it found that the original suit had been filed, not by the partners, but by their creditors. The former, worried about their personal liability, had tried to shift the blame to the manager. If Chen had embezzled company profits, the partners could evade responsibility to repay debts incurred under his management. The mediation board could find no signs of criminal behavior by Chen Jifu. To the contrary, it ruled that all well funds could be accounted for as expenditures made in the process of running the well. These were liabilities of the well partnership and not Chen's personal liabilities. Nevertheless, as manager, Chen had to share responsibility for the financial state of the well. Of primary concern to the board was the repayment of the well's debts. Chen was therefore instructed to contact all the creditors, explain the impending loss of the partnership's lease, and appeal to them to be charitable in their calculations of how much they would accept as repayment of their claims against Chen and his employers. Once their responses were received, the board would decide on further action to close the case. From its decision, it is clear that the Chamber of Commerce saw itself obligated to ensure a harmonious and stable business climate at the yard. This was more important than fixing blame for the miserable state of this particular firm. Outstanding debts over so many years created problems for numerous other firms, as well as creating an atmosphere of discord within the merchant community. Nevertheless, in the interests of harmony, .the creditors would also be asked to sacrifice part of what they were owed.

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The discounting of creditors' claims and the allocation of assets so that all creditors received some payment appears to have been standard practice when debt suits were brought to the Chamber of Commerce. 20 Indeed, so well established was this practice that several of our suits appear to be attempts by more powerful creditors to establish prior claims in order to squeeze out the more numerous and weaker suppliers, retailers, and others who inevitably were left holding the IOUs when a firm went bankrupt. Wang Deyu, a member of one of the most powerful salt merchant lineages at the yard, sued the Shangyi Company for nonpayment of a natural gas lease at one of his many wells (Zigong 17-1-474 [1917]). During the first round of negotiations, the Shangyi Company made partial payment and gave Wang an IOU and a promise not to go into arrears again. When the Shangyi Company's furnace reneged on its promise, Wang took the case to the local tuan headman. Afraid that nonpayment of rent would not be a sufficient indictment of the beleaguered Shangyi Company, Wang also accused it of breaking a clause in the first settlement barring sublet of the fireballs to a third party. The tuan headman ordered the Shangyi Company to give up its lease. At the same time he enjoined Wang to extend the deadline for repayment of the delinquent rent. However, the Shangyi Company refused to give up without a fight and gathered a large crowd to sit in at the well, chaining themselves to the facilities so that their eviction could not be carried out. Unable to deal with this civil disobedience, the tuan headman brought in the Fushun magistrate. Examining the facts of the case, the magistrate concluded that the Shangyi Company had not broken its agreement by bringing in a sublet. It had merely brought in a new partner in an effort to expand its working capital. Nevertheless, it was in arrears and therefore the decision to evict it from the well was justified. The dispute between the Shangyi Company and Wang Deyu had caused a cessation of production at the former's furnace, and as a result its debts to other merchants were approaching serious proportions as well. In 1917 the magistrate directed the case to the Chamber of Commerce which proposed a compromise solution. Although the owner of the well, Wang Deyu, had a prior claim to the firm's assets on account of nonpayment of rent, it was vital that all its creditors receive something. Thirty percent of the assets of the Shangyi Company were designated to pay its rent arrears. The re-

Madeleine Zelin

mainder was to be divided in proportion to what each creditor was owed. Although Wang filed additional suits in an attempt to secure so percent of the assets, the decision remained unchanged. One of the ways in which the Chamber of Commerce dealt with problems arising from the need to satisfy the claims of numerous creditors was to form a credit group (zhaituan). Where assets could be immediately liquidated, as in the case of Li Qiongpu, or where there were sufficient assets to close the case at a reasonable percentage of the original debt, such a step was not necessary. However, where debts were large or it was deemed possible to allow a business to continue functioning while paying off its obligations over time, a credit group could act as the guardian of the interests of all those to whom money was owed.2' One of the earliest credit groups formed in Zigong was composed of individuals and financial institutions that floated the enormous late-Qing debt of the Wang Sanwei lineage trust. It is not clear whether the group was formed for the purpose of bailing out this organization, or had come together, as in the case of other credit groups, because all members were owed money by the same party. Because most of the men involved were merchants from Chongqing or Shashi, they came to be known as the Yusha zhaituan.22 By handling the affairs of the Wang lineage, and later the Li lineage trust, they became involved in the production side of the salt industry and eventually became a major investor and supplier of credit at the yard. The Yusha zhaituan is the only example we have of a credit group which became a permanent institution at the yard. However, credit groups as receivers of assets were common at least from the turn of the century. In 1905 Wang Zhouren went bankrupt and his properties were turned over to a credit group which administered their operation and distributed the profits to his creditors (Zigong ry-1-465 [1919]). When Song Kangqu's debts to the Ziliujing and Neijiang guilds were mediated in 1933, a credit group was formed and Song was given a one month extension on his notes. The lease to natural gas at the Zhengtong well was turned over to the credit group as collateral with the agreement that if he did not meet the deadline the credit group could lease the fireballs out at market value and use the money to pay off part of the debt (Zigong 7-1-515-13 and 46 [1933]). The formation of credit groups removed from the Chamber of Commerce and the courts the burden of administering the distribution of assets. Granting the authority to defend credi-

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tors' rights (zhaiquan) to one agency also greatly cut down on the potential for lengthy and complex litigation. In cases of nonpayment of debt after mediation, it was most often the credit group and not each individual creditor that sought redress in the courts (for example, Zigong 7-1-515-13 and 46 [1933]; 17-1-183 [1925]). Contract Disputes Disputes often arose over the interpretation of specific clauses in contracts. Wang Xuejian's suit against the Liang Jihouyuan lineage trust was typical of the kind of suit that could result when circumstances made it difficult to fulfill the terms of a contract. In 1922 Wang leased two wells from the Liangs, the Tongxin and the Yuanli (Zigong 17-1-541-14-15 [1937]; see also 17-1-193 [1932], 17-1-soo [1927], 3-5-486-6-17 [1927]). The contract, which was submitted as evidence in the suit, stipulated that the wells were fully equipped and in working order and the full rent was paid in advance. However, before the signing of the lease a leak was found in the wooden lining of the Yuanli well. The two parties agreed that the lessee would undertake the necessary repairs and any lost production time would be compensated. Moreover, because the leak made the well inoperative for the moment, the lessee would receive a refund for part of the cost of the lease of the well and the pipe through which its brine was to be transported to the furnace. Some time afterward, the wall of the well collapsed. Wang brought suit at the Chamber of Commerce asking for an extension to his lease at the Liangs' Tongxin well as compensation for the loss of use of the Yuanli well. Angered by the suit, the Liangs took back a third well that Wang was drilling on their land. According to Wang's contract, he was entitled to an extension of the lease to the Yuanli well. However, it was now irreparably damaged. The issue was whether failure of one well entitled the lessee to an extension on the lease held with the same landowner at another well. In the end a compromise was worked out through the good offices of the Chamber of Commerce in which Wang received an extension, though not of the length he requested. During the late 192o's and early 1930's the Zigong salt yard experienced a contraction in its markets as a result of warlord restrictions of sales to their territories. At the same time, technological improvements, particularly in the mining of highly concentrated brine from rock salt wells, resulted in a glut of brine at the yard. In an effort to prevent widespread bankruptcy the Rock Salt Company

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was formed to ration the pumping and distribution of rock salt brine and assure all producers a share of profits in proportion to their productive capacity. This cartel entered into a contract with all participating wells. Among the stipulations of that contract was that wells be pumped in turns, so that the capacity of no one well was overly exploited. And the share of profits for each well was to be based on a running average of the well's output each time it was pumped. In 1930 there was a drought in the Zigong region. The water level in some wells fell so low they could not be pumped. However, an improvement in market conditions created extra demand for brine at the furnaces. Under these circumstances, the contract allowed the company to go to the next well on the pumping roster. When it turned out that the next two wells were undergoing repairs, the company went to the Yanhai well and asked its managers to pump. The Yanhai well was pumped and the company's supply needs were met. However, when the dividends were distributed at the end of the year the managers of the Yanhai well found their pumping rating had been lowered because of the well's poor performance during the drought emergency. They brought their case to the office of the salt commissioner, arguing that they should have been given a cash supplement for pumping out of turn or allowed to reestablish their rating by pumping again once the water table had risen. The salt commissioner agreed (Zigong r-r-203-I4-r8 [1932]). In 1927 Wang Wentao leased all 30 shares in a rock salt well known as the Yusheng well (Zigong 3-5-486-6-!7 [r927]). He then leased the brine from this well to the Yongchang furnace. Soon afterwards, production at the well was halted by a fire and the furnace sued Wang for an extension of its contract. Wang, concerned that he would be left with huge obligations to the Rock Salt Company, attempted to block an extension by challenging their suit. In fact, Wang had no grounds for a countersuit. The contract between Wang and the furnace, presented as evidence in the case, explicitly stipulated that if the well stopped pumping for whatever reason, the lessee would be compensated by an extension of equal time. The initial suit was brought before the East Yard head who returned it for mediation at the Rock Salt Company. In his instructions to the mediators, the head noted that if a solution could not be reached the Rock Salt Company should follow the precedent set at the Santai well and turn production at the well over to the Chamber of Commerce. This was not necessary, for the two parties quickly settled on an arrange-

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ment by which the Yongchang furnace received a six month extension of its lease and Wang received assurances that any debts to the Rock Salt Company incurred by the well during the time it was under the control of the Yongchang furnace would be the responsibility of the furnace. Written contracts and an established body of customary practice made mediation of disputes over the interpretation of contracts relatively easy. Far more difficult were disputes in which one party sought release from a contract. In these cases it was often necessary to prove fraud. One of our suits began as a compensation case of the kind described above. Zhang Xiaobo, one of the rising stars of the well community, leased two wells from the Wang Sanwei linea~e trust (Zigong n-1-500 [1927]). In 1927 the two wells were closed due to an accident and Zhang sued at the local court for compensation of lost income according to this contract. Zhang claimed to have signed the lease with Wang Zuogan and Wang Shouwei. Wang Shouwei filed a countersuit at the Chamber of Commerce claiming that Zhang's lease was invalid. His charge was made on the grounds that neither he nor Wang Zuogan had the authority to sign such a lease. These two wells were the property of the lineage as a whole and could only be disposed of by the manager of the lineage's business department. Although his own signature also appeared on the lease, Wang Shouwei claimed to have been out of town at the time it was signed. Both his signature and his chop were forged. As additional evidence of Zhang's fraudulent intent, Wang Shouwei pointed out that when the wells were impounded as part of a bankruptcy suit in 1922 Zhang made no attempt to assert prior rights to the property. By 1927, Wang Zuogan was already dead, so his testimony could not be solicited by either side. The Wangs had initially established their rights through the courts in their 1922 bankruptcy suit. Earlier in 1927, Zhang had used his contract to convince a local court of his rights. The change of venue to the Chamber of Commerce appears to have been a response to the contradictory actions of the courts and to Wang Shouwei's countersuit. We do not know how it was finally resolved. Three other contract cases are linked by the involvement of women in the legal process. In the first, Li Shuquan accused Li Xueqiao of tricking his mother into renting him a well site (Zigong 3-3560-152-54 [1940]). While Li's case was complicated by the role that family feeling played in duping his mother, Huang Xiaocheng's case

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was more clear-cut (Zigong 3-5-512-r9 [192o's]). Huang inherited a number of well shares and promissory notes from his father. He also managed 6.5 well shares belonging to seven friends and relatives. In the spring of the year in question (not clear in the documents) Huang went to Chengdu to continue his education. While he was gone, a certain Lei Zixian decided to rent the well. Lei was only interested in the deal if he could lease all 30 shares in the well. The other shareholders badgered Huang's mother until she agreed not to be an obstacle to the completion of the deal. Mrs. Huang was illiterate and, her son claims, inexperienced in business affairs. She signed the contract with an X and had her minor daughter forge the signature of Huang Xiaocheng. Huang did not find out about the deal until he returned from Chengdu. His objections to the deal were threefold. First, he argued that it was illegal to complete a contract with the use of forged signatures coerced from ignorant women. Second, he felt the terms of the lease itself were unfavorable and would never have been accepted had he been at home. Finally, Lei Zixian used the lease to the well to obtain government loans. Huang feared that if Lei could not keep up his loan payments, the well might fall into the hands of the government and be lost to the shareholders forever. Li Xueqiao's operation was initially closed down by the yard head in response to Li Shuquan's suit. However, in 1940, on appeal to the salt administration, he was merely fined and allowed to reopen in an effort to increase production at the yard during the war against Japan. Huang made his appeal directly to the salt administration. We do not know how this case ended. However, it is likely that since Lei had used the well as collateral for government loans, and since there was a desperate need for salt after the fall of eastern China, the ruling was in his favor. The contrast of Huang's and Li's plea with that of Mrs. Wang nee Zhang is illuminating (Zigong n-r-497-r-2 [1917]). Mrs. Wang filed a similar plea with the Chamber of Commerce. Her son inherited shares in a gas well from his father. Considering the boy's youth (although he was married), she hired a manager to handle his business affairs. When her daughter-in-law died, she and her son became embroiled in a lawsuit with the deceased's family. The business manager, a member of the Wang lineage and former head of its ancestral trust, advised them to mortgage and sell various properties to cover the costs of the suit. All the records were retained by the manager. In May of r 9 r 6 the manager recommended leasing the well

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shares in order to pay off the daughter-in-law's family. Although the son did not approve, the manager went ahead with the deal. Mrs. Wang wanted to break the contract, and was now suing the family of the manager, who had since died. Her grounds were that the deal itself was less lucrative than the leases they had arranged in the past, that the lessee claimed to have paid rent to the manager, but Mrs. Wang and her son had not received any money, and that the manager's family refused to let Mrs. Wang and her son see the manager's accounts, leaving open the possibility of fraud. Mrs. Wang requested a meeting at the Chamber of Commerce with the lessee and the manager's family to negotiate a settlement. The outcome does not appear to have survived. However, it is clear that unlike Mrs. Huang and Mrs. Li, Mrs. Wang was by no means an "ignorant woman" duped because of her illiteracy and inexperience. Indeed, this highly charged plea is not even used in the case. Mrs. Wang appears to have been the main guardian of her family's financial interests and it was she and not her son who filed the claim with the chamber in the first place. Without records of the decisions rendered in many of these contract cases it is difficult to generalize about the relative importance of formal and informal agencies of the state in their mediation. However, two principles appear to have governed the actions of both the Chamber of Commerce and the salt administration. The first was the sanctity of the contract. Most decisions were rendered strictly on the basis of the terms of the written agreements presented by the parties involved. Where the intent of the contract could not be established with certainty, or the dispute involved the demonstration of fraud or fraudulent intent, the tendency appears to have been to render a decision that would best encourage the continued production of salt at the facility involved.

Disputes over Ownership and Use Rights The use of written contracts and sophisticated "regulations of the yard" provided the basis for adjudicating disputes over ownership and use rights. Most conflicts in this area arose when a specific case did not quite fit the detailed regulations and practices that governed the salt merchant community. Under these conditions, it was often the Chamber of Commerce that made the fine distinctions that clarified common practice. In I 909 Wang Haoren, Li Dezhao,

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and Luo Liangchen formed a partnership to lease the Yucheng well (Zigong ry-r-472-ry-r9 [r9ro's]). While Li was out of town the well encountered financial difficulties and several loans were arranged. Wang Xuqing loaned the well 200 taels, taking Luo Liangchen's one share as collateral. This was never repaid and Wang took possession of the share. Wang Haoren also made a straight loan in this amount to the well. On this basis, he claimed entitlement to an extra share and unilaterally made the necessary changes in the firm's books to reflect this. Upon his return, Li Dezhao challenged Wang's maneuver at the Chamber of Commerce. The decision of the mediation board took into account both the facts of the case and local custom and declared, "there is a difference between investment capital and borrowed money. There is no principle that states that a creditor may take shares in a well (wu yi zhaiquanzhe zhanyou jingfen zhi li)." A similar ambiguity prevailed in the allocation of shares in the well opened by Zeng Tifang. At the time the partnership to drill the well was formed, Wei Wenjian was chengshouren. The chengshouren played a special role in the early stages of opening a well, bringing together investors and supervising the drilling. The chengshouren generally contributed no cash to the project, but received between one and three shares in recognition of his contribution. 23 When the partnership that began this particular well went bankrupt it sought a form of recapitalization known as diu xiajie, in which a new set of investors purchased the original shares and all the rights and obligations of ownership, leaving the original owners with a greatly reduced, but nevertheless surviving, stake in any profits that might eventually be made.>' While the regulations governing such a transfer of ownership were relatively clear-cut, the position of the chengshouren was not. Having made no financial contribution, was he entitled to retain shares once the well went bankrupt? Having been responsible for the financing of well development, should he still be rewarded with shares when his efforts failed? Zeng Tifang and his partners thought not and when their well was transferred they did not provide any shares for Wei Wenjian. Wei, then living in Luzhou prefecture, sued Zeng at the Luzhou prefect's office. The latter, unfamiliar with practices in Zigong, referred the case to the Zigong Chamber of Commerce. The chamber responded that in a case of xiajie recapitalization, the chengshouren's shares were to be treated in the same way as those of the other partners.

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Mediation by an outside agency could also be solicited in disputes among family members. We have already seen this in the case of Zhang Xiaobo vs. the Wang Sanwei tang. Underlying the disagreement between Zhang and the Wangs was a conflict among members of the Wang lineage over who had control of lineage trust resources. Lineage trusts were the functional equivalent of large companies in the Zigong business community. However, even at the level of the individual jia (household), property disputes could end up in outside mediation. One of the most interesting cases in our sample concerns a struggle for control of shares between a mother and her son's wife. Liao Chongfeng was the manager of the Jinhai well at the time it was first drilled and went into production. Zeng Binru was the chengshouren at the well. Zeng received three shares for his efforts, half of which he gave to Liao and Liao's brothers. Rather than divide these r.s shares, the three brothers left them intact to their sons' generation. Following the death of Liao Chongfeng's generation, Liao's wife, nee Guo, served as guardian (iianhuren) of the shares for her sons and nephews. 25 An unspecified number of years before this case began she leased their shares to Zeng Shenxian through an intermediary, Zeng Shuliang. The involvement of the Zengs was no accident, as there was a relationship between the Liaos and Zengs not only through business, but also through marriage. In December of 1937 the lease was up and Mrs. Liao requested that Zeng Shenxian relinquish his use rights to the gas at this well. Shenxian finally vacated the well in February of the following year. Soon afterwards these shares were leased to Zhu Henian. More than a month after Zhu began operating his furnace at the well, Zeng Shenxian began to stir up trouble by inciting Mrs. Liao's daughterin-law nee Yu to challenge the deal on the grounds that part of the shares belonged to her husband, Liao Xingwu, and should not have been disposed of by Mrs. Liao nee Guo. If she won the suit, Mrs. Liao nee Yu intended to lease her shares to Zeng Shenxian. Mrs. Liao nee Guo immediately sought mediation at the Well Owners' Association, which ruled that her actions were correct. Mrs. Liao nee Yu responded by bringing suit at the local tuan, which ordered the property divided, but in view of the intrafarnilial nature of the dispute, suggested that mediation be tried first. Our last record of the case indicates a stalemate with neither body able to assert authority in the case.

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An even more surprising case is a dispute over the paternal legacy of Liao Rongzhai (Zigong n-1-546 [192o's]). In 1924 Liao drew up a will in the presence of members of his lineage and other close relatives. In it he divided his property, not between his two sons, but between his son's sons. His rationale was sound. The younger son was dead and the elder "spent money like it was water." Afraid that his wealth would soon be dissipated, Rongzhai named the widow of the younger son manager of the property and turned all the deeds over to her before his death. Since his demise the two branches of the family had been quarreling and mediation by relatives was already underway. However, the lineage association was now appealing to the Zigong Chamber of Commerce for aid in two respects. First, it sought to deprive Mrs. Liao nee Chen of her stewardship on the grounds that she was a woman. In addition, they requested the chambers' assistance in ousting a Mr. Yang, who had made a private deal with the profligate older son to lease the Rongzhai well. Despite the son's lack of authority to dispose of the well, Mrs. Liao nee Chen had been unable to get Yang to leave. 26 The action of the surviving son was symptomatic of the intrafamilial dispute over who should inherit Liao's wealth. Here, as in the case above, the younger generation appears to have been taking advantage of new laws relating to family property that allowed sons a more immediate claim to personal inheritance of their father's estate. The challenge to Mrs. Liao as manager of the estate had more traditional roots and does not seem to have succeeded. One of the most frequent causes of ownership disputes was prior abandonment. Cases of abandoned property were frequent during periods of social disruption such as the change of a dynasty, war, or rebellion. At the salt yard it also resulted from poor economic conditions that made continued operation of a well financially impossible. Guo Xinwu found himself in just such a situation. During the late Qing he formed a partnership to buy into the Haichao well. By the turn of the century economic conditions at the yard were so poor the partners decided to halt operations. After the fall of the dynasty, Guo died and many of the partners fled the warfare that had destabilized the Zigong region. Others joined the military and were away from the yard for years. In 1933 Guo's son, Guo Langqing, returned to the yard and discovered that the landlord of the well site had entered into an agreement with a new investor, Zeng Dewen, to drill

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and operate the well. Guo and his father's partners claimed that Zeng had only been at the well a few days when they found him out. They immediately filed suit at the West Yard office, claiming prior ownership of the development rights at the well. The yard head ordered Zeng and the landlord to return the well to the original partnership, but they refused. The partnership then filed a second suit at the Well Owners' Association in response to which Zeng filed a countersuit at the Zigong Municipal Court. The municipal court ordered all interested parties to attend a meeting at which all the evidence would be examined. Zeng and the landlord did not appear, but appealed instead to the Sichuan Superior Court. The superior court also decided in favor of the partners and ordered Zeng off the well. Still not willing to accept the decision, the landlord appealed to the Supreme Court in Nanjing, which rejected his petition and sent the file of the case back to the Zigong Municipal Court. When the municipal court ordered both sides to its offices, Zeng and the landlord got their families to stage a riot at the well site and refused to turn over the license that would allow the partners to resume operations. Zeng was arrested as a result of this demonstration but still would not turn over his well license. The partners' attempts to get the salt office to declare Zeng's license void and issue a new one to them were in vain. Thus, despite the decision of the court, they could not resume control of the well. This case was difficult to resolve because both parties had strong claims to the abandoned property. Although Zeng had little success in the courts, he was able to elicit considerable sympathy among salt administration personnel. Zeng argued that he had been working the well for four years when the partners returned. Moreover, he went to great lengths to demonstrate that the well was indeed abandoned when he took it over. In order to establish his right to lease this land directly from the landowner (something he obviously knew would be contested) he had had the head of the town (zhenzhang) inspect the site to verify that the land was covered with grass, weeds, and twigs and was a well in name alone. He also had the heads of the Well Owners' Association, the West Yard piao salt association, the West Yard office, and the municipal court (fayuan) affix their seals to a document testifying to the conditions at the well. On the basis of this evidence of abandonment by the original partners, Zeng

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requested a license to open the well. Just to be safe, Zeng posted a public notice of intent to drill the well. When no one responded, drilling commenced. From Zeng's further testimony, it is clear why he was so desperate to press his own claim to lease rights at the well. Zeng had borrowed 7,ooo yuan to refurbish the well and build the necessary pumping facilities. Output was small, only enough gas to boil six pans of brine. His profits were not great and in the preceding year pressure from creditors was such that he had called in a mediator. Mediation had resulted in the transfer of the gas rights to the well to his creditors. The latter, as was customary in cases such as this, had formed a credit group and had designated one man to manage the properties being impounded in payment of debt and distribute the profits according to their respective claims against Zeng. Although the partners sued both Zeng and the landlord, Zeng proposed that the landlord was secretly conspiring with the partners to take over the operation of the well. Besides disputing the facts of the case, Zeng made an additional appeal to principle. There appeared to be no question regarding the rights of the original landowner. Whether the partners who had invested with him and then abandoned the well still had ownership rights was another issue. The relationship between Zeng and the landlord bore no relationship to this dispute. In Zeng's mind theirs was a dispute over ownership, while his claims were to lease rights. Zeng had all the documentation needed to prove that he had undertaken the lease legally and he had no intention of abandoning it now. Zeng's case is similar to one described by William Rowe in his second book about Hankou in the nineteenth century. There a benevolent hall bought a piece of land from a family and leased it to a third party. During the dislocations that accompanied the Taiping Rebellion in the 185o's, the management of the benevolent hall was not present to assert its ownership rights. The original owners reoccupied the land and improved it at their own expense. When the benevolent hall returned to reassert its claim to the property, the magistrate upheld its property rights, but required the hall to reimburse the usurpers for the improvements they had made (Rowe 1989: 123). Such decisions were clearly part of the customary civil law of the late Qing and were incorporated into the Republican civil code when it was elaborated in the 192o's and 1930's. To strengthen his case, Zeng cited Article 954 of the civil code (minfa) which

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stated that a "good faith occupant" (shanyi zhanyouzhe) who improves a property has the right to restitution of costs from someone who makes a claim to recover the property. Zeng noted that when the office of the former salt commissioner had issued orders to salt producers to reopen abandoned wells (during the mounting Japanese crisis), it was quite common for partners to wait until after new lessees had invested heavily in refurbishment and then sue for restitution of the well. Under these conditions the salt commissioner had ruled that former well developers could not sue for recovery of the right to operate the well, but could only lay claim to rent in proportion to their respective shares in the original well development partnership. This ruling was designed to avoid lengthy lawsuits that would obstruct production under conditions of impending loss of eastern China's salt resources. Zeng was willing to settle for restoration of operational control over the well, in which case he would pay rent to the partners and the landowner. Or he would turn the well over to the partners in return for an indemnity of 7,ooo yuan, the amount he had already spent bringing the well into operation. The Jifu Salt Factory encountered a similar problem in the 193o's (Zigong 3-s-soo-8-9 and 14 and 78 [1938], 17-1-193-34-35 [1932]). In 1934 this salt evaporation partnership had contracted with the Huafeng well to pump brine for twelve years. The Huafeng well was in financial trouble and part of the deal struck between the furnace and the well involved a package of loans to the well, for which the Jifu factory acted as guarantor. Soon after the lease began, the well appealed to the factory for additional funds, which were provided in the form of a two year lease extension, rent paid in advance. By the mid-1930's the provincial salt administration sought to protect the strongest wells against the recession that had affected the Sichuan salt industry since the late 192o's. Many of the less productive wells in Zigong were ordered closed, including the Huafeng. Nevertheless, the Jifu factory continued to make the interest payments on the well's loans in order to safeguard its own pumping rights when the well reopened. In 1937 the impending war with Japan led the government to order the reactivation of wells closed during the recession. The partners in the Huafeng well promptly received the permission of the local tuan head to lease their well to the Quanshengmei Company on the grounds that the Jifu factory was no longer financially capable

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of bringing the well into production. This action was taken without the knowledge of either the Jifu factory or the landowner on whose property the well had been drilled. Both petitioned the salt administration in Beijing for a restraining order against the well partners. The petition of the Jifu factory is particularly revealing. First, they challenged the basis of the well partners' actions. Although the drain on their finances over the years when the well was not in production was great, the equipment necessary to pump the well had been maintained by them in good working condition. Any additional funds needed to start operations could be borrowed, so they could not be accused of being financially incapable of bringing the well into production. Next, they challenged the motives behind the actions of the well partners. Although not mentioned in their own suit, the well partners planned to sell their shares to a new partnership. It was the latter who wanted the Quanshengrnei Company brought in to replace the Jifu factory. But according to Article 425 of the civil code, when a lessor "cedes his right of ownership to a third party, any rental agreements [he had entered into] continue to apply to the third party to whom he ceded [the property]." Thus the tuan head acted illegally in granting permission to oust the Jifu factory; in fact he had a legal responsibility to oust the Quanshengmei Company. According to Articles 962, 941, and 960 of the civil code, a party with use rights (zhanyouzhe) to a certain property had the right to oust someone who seizes that property by force or interferes with its use. Such parties also had the right to call upon the government to oust usurpers. The most interesting argument put forward by the Jifu factory concerned the problem of jurisdiction in property disputes. The well partners had sought legitimation for their actions by getting the approval of the local tuan head. When they were challenged by the Jifu factory, the well partners received further legitimation by order of the head of the local salt yard. It was for this reason that the Jifu furnace and the landlord petitioned the bureau within the Ministry of Finance that handled Sichuan salt affairs (Caizhengbu Sichuan yanwu guanliju). Whereas the landlord faulted the yard head for failure to investigate the real conditions at the well, the Jifu factory maintained that the administrative organs of government had no authority in a property dispute. As its spokesman noted in his petition, "I find that the yard yamen is an agency of the national salt administration. Its main responsibilities do not extend beyond the administration of [salt taxes] .... The decision as to whether or not

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our contract is void is one for the courts to decide (zishu sifashang shenpan). By using administrative authority to approve abrogation of the lease and pumping contract, the yard office infringed upon the jurisdiction of the court (qinyuesifa quanxian)" (Zigong 3-s-soo-8-9 [1938]). These disputes over ownership and use rights highlight the problems generated by recourse to multiple jurisdictions, particularly during the Republican period. This was compounded by a strong tradition of private mediation and administrative justice in which the courts played no role. No generalizations can be made regarding the place of courts relative to other institutions in the handling of civil suits until we have more complete records from the courts themselves. However, it is clear from these cases that people did not see the courts as the agency of first resort when resolving conflicts within the commercial world. Moreover, as in the case of the two Mrs. Liaos, the success of a suit could depend as much on proving the superior authority of the agency to which one brought one's case as on the merits of the case itself. Indeed, it was common for litigants dissatisfied with the results of appeals within one system to move into a parallel system in order to win support for their cause. The principles upon which a decision was made could vary considerably, depending on which agency was in charge. The possibility that personal connections also played a role in the choice of venue for a case also cannot be ruled out.

Arguing a Case Although we have little documentation of how the courts or other agencies rendered their decisions, we have considerable evidence of how cases were argued. If we assume that the patterns that emerge in presenting a case reflect a popular understanding of how cases were judged, it should be possible to begin to understand the principles upon which civil suits were decided in the early twentieth century. We can group the arguments made in these 43 cases into four broad categories, keeping in mind that one type of argument could be used to bolster another. By far the most important was an appeal to customary practice or law. Nineteen cases were framed in this way. In the second type of argument, the opposing party was accused of fraud, criminal action, or a violation of popular morality. In the third, the justice of one's cause was couched primarily in terms of promoting the greater good. In a few cases no reference was

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made to any commonly accepted code of behavior. Instead, the two sides argued simply on the basis of conflicting accounts of the facts. Whereas the absence of written documentation was often at the root of other disputes, in these cases the presentation of written documentation was critical to the success of the suit. Reference to customary practice was the most powerful argument one could make in a civil suit. The emphasis on customary practice in rendering judgments in civil suits was a direct inheritance of the Qing (Brockman 1980: 8r-84). Of course, customary practice was by nature malleable and open to interpretation. The changgui referred to so often by litigants in Zigong appears to have consisted in large part of practices which were put on paper at least once, in the Tongzhi edition of the Fushun county gazetteer. However, business relationships at the yard had become far more complex since the mid-nineteenth century and the popular understanding of the customs of the yard had changed as well. Although it is not stated explicitly in any document I have found, by the end of the dynasty, the Chamber of Commerce appears to have become the arbiter of local customary practice, while the contracts that people drew up themselves became the material from which this changgui evolved. Thus, when Wei Wenjian sued Zeng Tifang at the neighboring Luzhou prefecture, it was to the Zigong Chamber of Commerce that the prefect went for verification of Zigong customary practice (Zigong n-r-483-18 [1925]). And when the ailing Li Siyou lineage trust sought the aid of the Chamber of Commerce in renegotiating its contract with the Jirong furnace, the latter was careful to insert in the contract that the concessions it was making now would not be a precedent for the future (Zigong n-r-193-34-35 [1932]). Customary practice could be used to demonstrate fraudulent intent, to justify abrogation of an agreement, to bolster claims to property, to justify payment of damages, and to support a wide variety of other claims that arose in civil suits. In Zhang Xiaobo's suit for compensation following an accident which caused the well he claimed to be leasing to shut down, the lessor argued that yard custom did not call for compensation for losses brought about by an act of nature (Zigong n-r-500 [1927]). Wei Wenjian's suit against Zeng Tifang hinged entirely on whether or not it was customary to grant the chengshouren shares in a well when the initial investment group transferred ownership to a new partnership (Zigong n-r-483r8 [1925]). When his associates claimed they did not have access to the books of their branches in Shanghai and Chongqing, Yang Duxiu

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was able to demonstrate fraud because customary practice required all firms to render an annual accounting at year's end (Zigong ry-1503-14 [1927]). Both Li Shuquan and Mrs. Wang nee Zhang argued for abrogation of contracts on the grounds that the terms offered were less favorable than was customary at the yard (Zigong 3-3-560152-55 [1940], 1]-1-497-1-2 [19ry]). Yan Jiamo's suit to recover 1,200 taels loaned by his mother to Lu Songtai was most forthright in his recourse to custom at the yard. When Lu claimed the loan had been paid, but that he had forgotten to get a receipt, Yan replied, "Think about it. In our town, where a receipt is so important, would a clever and crafty man ·like Songtai return money and fail to have it noted in the accounts and fail to get a receipt? ... In this revolutionary new world (gexin shijie) how can you allow evil gentry and local bullies to harass and destroy creditors?" (Zigong ry-1-549-5 [1928]). The fact that a contract was drawn up in accordance with local practice was a powerful argument in a dispute in which one side sought its nullification. The Lisheng furnace used this defense in its suit over rights to evaporate brine at the Dayuan well. The owners of the well tried to break the contract following a dispute over who would pay costs when the well needed repairs. The Lisheng furnace argued that the contract supported its claim that the well pay the costs and that this was customary at the yard (Zigong 1-1-190-10 [192o's]). Working from the other side of the issue, the Wang Sanwei lineage trust claimed that even if a contract had been signed according to the proper procedures, if it called for the parties to act against customary practice then there were grounds for its abrogation (Zigong 1-1-20 [1925]). While customary practice continued to be the basis for dispute mediation, the introduction of a commercial code during the last years of the Qing does not seem to have dramatically influenced the legal process in Zigong. We do not see a single reference to specific laws in cases in our sample filed during the first two decades of the twentieth century. This began to change with the institution of the Nationalist government in Nanjing, the introduction of a sophisticated body of civil law, and a hierarchy of courts ranging from local civil and criminal courts, provincial-level courts of appeal, and a supreme court in Nanjing. Although the impact of the Guomindang regime on local administration may have been marginal in many areas, ill the area of judicial reform its influence deserves serious reevaluation. By the late 192o's we see in a number of cases refer-

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ence to specific laws, as well as administrative codes. At the same time, a more modem attitude toward the legal process is evident in the arguments of some litigants, one which is closely linked to a sense of nationalism and pride in Chinese adaptation to Western legal practices. We have already seen the use made of the law by the Jifu furnace in their dispute with the Huafeng well partnership. Both the efficacy of their contract and their right to use all reasonable means to enforce it were defended by citation of specific items in the civil code. Likewise, Zeng Dewen was able to cite the civil code to bolster his claim to compensation if deprived of his lease to what he took to be an abandoned well. Both of these cases date from the early 1930's. When five widows of the Zigong-based Li Siyou lineage trust were unable to appear in person at an appeal to the Sichuan Superior Court, they availed themselves of Article 557 of the civil code, which allowed parties to an appeal to mail in the documentation supporting their case. Perhaps the most interesting example we have of a new approach to legal argument is a citation of a previous legal decision as a precedent in a debt case. The Tongrenyu Company lent 2o,ooo yuan to the Yuhousheng Bank. The bank failed and Tongrenyu sought recovery of the money from a third party that owed money to the bank. In its petition to the Chamber of Commerce it cited as a precedent Court of Appeals (Daliyuan) decision No. ro26 in which it was stated that if C owed money to B and B owed the same amount to A, the court could order C to pay that amount directly to A (Zigong I?-I-307-I9 [1932]). As we have seen, there is even indirect evidence that customary practice in the distribution of wealth within the family may have been challenged by the new family law promulgated during the early Republic. Liao Rongzhai's use of a will to deprive his sons of his estate and to designate his daughter-in-law as trustee of the estate clearly violated traditional inheritance practices. It is also possible that in laying claim to her husband's share of his father's estate, Mrs. Liao nee Yu was responding to new laws governing inheritance and the establishment of a notion of personal as opposed to jia property (Zigong r-r-198-r 5 [1929]). In each of these cases, sophisticated knowledge of the law indicates the services of a lawyer or litigation specialist whose name never appears in the records we now have. Even more interesting are hints of a new attitude toward law, as standing above the bureaucracy and as playing a key role in national

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survival. He Deyu's impassioned tirade against the usurpation of judicial power in the case of the Jifu furnace versus the Huafeng well closed with these words: "Under the Nationalist flag everyone from the chairman down to the masses should abide by the law. Our freedom is exercised within the scope of this law" (Zigong 3-5-500-8-9 [1938]). He was not alone in his belief that the sanctity of the law had to be upheld. Wang Shouwei argued that the salt administration could not void a contr.act by administrative fiat. This was a matter for the courts to decide (Zigong n-r-240-8-9 [r925]). However, the most dramatic appeal for the protection of due process came from the manager of the Lisheng furnace.· In 1922 he and his partners leased the Dayuan well to evaporate salt. Some time later a dispute arose over the costs of repairs to the well. The manager of the well sued the furnace at the West Yard office. After one hearing, the head of the yard office, Mr. Zhao, arrested a number of people associated with the furnace. Following numerous requests by the furnace to transfer jurisdiction over the case to the local court (shenting), the yard head arrived at the furnace with a group of militiamen and proceeded to destroy the evaporating pans and the pumps that raised the brine from the well. Powerless against a corrupt local bureaucracy, the manager of the furnace brought his case to the people in the form of a poster appealing for aid from the Sichuan salt commissioner. In it he recounted the above-stated events and begged the commissioner to order the release of the incarcerated partners on the grounds that their arrest without due process was a violation of their human rights (roulin renquan, literally trampling their human rights under foot). He then urged the commissioner to refer the case to the courts: I humbly believe the government established the salt administration in order to protect pumping and evaporating [salt]. It has its special regulations. But lease disputes fall under the category of civil disputes. The law courts (fating) naturally have exclusive jurisdiction (zhuanze) [in such cases]. The national constitution has been promulgated and everyone knows its contents. Nothing can be more serious than yard head Zhao's contempt for the law of the land (guofa). (Zigong I-I-I90-IO and I3-I4 [192o's])

The response of the commissioner was swift. The partners were released from prison, the case was referred to the Fushun county court, and an investigation was launched into the behavior of the yard head (Zigong r-I-I90-I4 [192o's]). Despite this appeal to the constitution and a sense of the priority

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of the law in civil disputes, a large portion of our disputes still relied on what may be called human feeling as the basis for a decision. In such cases, violation of moral standards could be a mitigating factor even when customary practice was followed in the writing of a contract. Three cases turned on the fact that the accused had taken advantage of the ignorance of women in obtaining a contract (Zigong 3-3-560-152-54 [1940], 3-5-512-19 [192o's], 17-1-549-5 [1928]). The abuse of a relationship of kinship or friendship to the same end was argued in four of our suits (Zigong 17-1-497 (1917], 20-1-37 [1938], 3-3-560-152-54 [1940], 17-1-483-II [1925]). And in two suits part of the case against the defendant was his failure to pay a fair price for goods or services (Zigong 1-1-198-15 [1929], 1-1-203-14-18 [1932]). Finally, several cases were argued on the basis of the larger consequences which would result from a decision. We have already seen that the provision of a settlement for all creditors was often influential in the mediation of suits brought by large creditors (Zigong 17-1-472-10-12 [1920's], 17-1-495 [1927], 17-1-474 [1917], 1-1-19815 [1929]). Because the salt industry was a major source of government tax revenue, one also did well to argue that a favorable decisian would promote production. Hu Zilin and Yi Deqing leased a well from Li Songshan and Li Nansheng in 1934. They began pumping in 1937 and for two years they paid the Lis 13 percent of their output as well as certain fees. Then, in late 1939, Hu and Yi suddenly stopped pumping and refused to continue their lease. The Lis sued them for breach of contract solely on the grounds that in the midst of the war of resistance, the Lis should not be permitted to stop production (Zigong 55-5-486-2-3 [1939]). Zeng Dewen and the Jifu furnace both argued their use rights in part on a demonstrated ability to bring a well into production. Their cases were bolstered by an administrative decision by the Sichuan salt commissioner, which held that the original owner of a well that had been abandoned could not sue for recovery of the right to operate the well once a new group had in good faith invested in bringing it back into production. The most the owner could do was sue to recover a portion of back rent. This ruling was specifically designed to prevent lawsuits that would interfere with the expansion of production (Zigong 3-5-514-35-37 [1937]). The need to maintain an atmosphere conducive to investment and the expansion of production was fundamental in the application of justice in civil disputes. In their intralineage dispute over the il-

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legal leasing of wells to the Yusha zhaituan, the Wang Sanwei lineage trust warned the salt administration of the impact an unfavorable decision would have on all other furnace operators whose use rights the decision would place at risk (Zigong r-r-20-59 [1925]). In another case, Luo Shuwen as manager of his lineage's Luo Shanshu lineage trust purchased shares in a well which he left to the lineage trust and not to his sons. Following his death, the lineage elected a new manager, but did not press Luo's sons for the share documents, ostensibly because 300 years of lineage history had established a tradition of honesty and trust. The well in question went out of production for a number of years; thus the issue of dividends did not arise. In 1926 the well called a meeting of all shareholders, but no notice was sent to the Luo Shanshu tang. Certain this was an oversight, the trust manager went to the well to inquire and discovered that the title to the shares had been transferred to Luo's sons' own trust. Unable to persuade the sons to settle the case through mediation, the lineage sued them at the local court. In addition to presenting evidence of its claim to the shares, the lineage built its case upon two issues. The first was the immorality of the eldest son, who used his father's wealth and influence to cheat members of his own lineage: "If Boxian had a conscience he would wake up and show concern for righteousness. But instead he has taken advantage of our desperation and pushed us to go to court. What kind of man is this?" (Zigong 20-1-37 [1938]). Even more important was their appeal to universals and the impact their case would have on business conditions at the yard. He did not get permission [to transfer the share to his name] at a shareholders' meeting. He did not go through the proper procedures, nor did he inform the shareholders of what he had done. All he did was make a private arrangement with Yang Yuxian [head accountant at the well] and Li Zhanglang [another accountant and Boxian's brother-in-law] .... Li Zhonglang and Yang Juxian were employed by the shareholders and their duty is to the whole well. How can they [be allowed] to follow their own interests and harm the rights of the shareholders? If we say this does not matter and allow them to break the law, then what protection is there for the prosperity of the world's commerce and its myriad shareholders? Who will dare invest again?

The decisions of the courts and other mediation bodies in China did not have the impact that similar court action in the Englishspeaking world had on the accumulation of a body of common law.

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Nevertheless, there was clearly an understanding that the outcomes of individual civil cases shaped the legal environment within which everyone did business in Zigong.

The Dark Side of Republican Civil Law When it worked as it was supposed to, the system for settling civil suits in Republican Zigong was remarkably efficient. This was particularly true of debt-related suits where all parties agreed to form a credit group and submit to binding arbitration. However, as one of the court officials indicated in the transcript of a bankruptcy hearing cited at the beginning of this chapter, the institutions which handled civil cases had very little power to enforce their decisions (Zigong 17-1-353-4 [1933]). The speedy resolution of a civil suit could be thwarted in three ways. The most common was for one party to file suit and the respondent simply not to show up (Zigong 3-5-514 [1937], 17-1-543-2 [192o's], 17-1-495 [1927]). Under the fragmented political structure that prevailed in China in the 19m's to the 1930's, a businessman with branch firms in many cities could easily flee a temporary setback to a place beyond the reach of the Zigong authorities. When a case was being brought to court or for mediation at the Chamber of Commerce, public notices were hung to inform all parties to the case of the date, time, and locus of the hearing. No mechanism existed to force appearance. This problem was so widespread that at one point the Chamber of Commerce ruled that if one of the parties did not attend, the body handling the case was allowed to render a decision in his absence (Zigong I?-I497 [1927]). Some litigants stalled settlement of a civil suit by undertaking elaborate appeals to the many alternative authorities in the Zigong area and beyond. In one respect, the Republican legal system promised an unprecedented source of redress for disputants who had not received justice in one local arena. However, it could also be used to great effect by more powerful parties to a dispute to postpone settlement by months or years. We have already seen the confusion created by multiple jurisdiction in a number of cases in our sample. In their suit against Zeng Dewen, the owners of the Haichao well sued first at the office of the yard head and at the well owner's association. Zeng countersued at the municipal court. When the head of the court appeared to favor the owners, Zeng brought the case to the

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Sichuan Superior Court and eventually to the Supreme Court in Nanjing. When all the courts found for the complainant, Zeng appealed to the new yard head to refuse to carry out the courts' decision. Seven months after the Supreme Court delivered its decision, the owners still could not get Zeng off their land (Zigong 3-5-514 [1937]). Li Shuquan accused Li Xueqiao of tricking his mother into entering a fraudulent land deal. Shuquan filed suit against Xueqiao at the yard head's office. Following his investigation, the yard head ordered Xueqiao's operation closed down. In the tradition of capital appeals, Xueqiao appealed the order to the Ministry of Finance and through his superior influence was able to get the order of the local officials reversed (Zigong 3-3-560-152-54 [1940]). Even the military government of warlord-controlled areas could be used as a venue for a civil suit. In their long-standing fight with the Yusha zhaituan, the five widows of the Li Siyou lineage trust were first sued by the Yusha zhaituan at the local court. The widows then appealed to the Sichuan Superior Court. When this failed, they filed their own suit against the Yusha zhaituan at the headquarters of the South Sichuan Garrison Command (Zigong 1-1-198-15 [1929]). The case of the five widows brings us to the third obstacle in the path of the civil justice system in Republican Zigong: violence. During the Li women's absence from the well, their opponents in the suit decided that intimidation was the only way to get a settlement in their favor. They sent 34 private militiamen to the well and ransacked the accounting office, making documentation of claims more difficult in the future. When two of the widows returned to the well that evening they were ambushed by thugs and brutally beaten, until their cries brought rescuers from the local tuan office. The women sued their attackers again at the local garrison and the local court, at which time it was made clear that they chose these venues because they believed the officials of the local government were allied with their attackers (Zigong 1-1-198-15 [1929]). We should not be surprised that merchants occasionally took the law into their own hands. The role of corporate ownership within the Chinese business community, and the practice of maintaining private militia and bodyguards during the Republic, meant that instruments of violence were readily accessible. When the Shangyi Company fell into arrears in its rent payments and was ordered to vacate the Shuanghong well, its owners simply gathered a force of retainers and relatives and chained themselves to the premises, obstructing produc-

Madeleine Zelin

tion (Zigong 17-1-474 [1917]). However, even where naked force was used to slow down the process of civil litigation, institutions such as the Chamber of Commerce appear to have been able to bring about an eventual solution to the case.

Conclusion Qing customary law left a deep imprint on legal practice during the early Republican period. During the last dynasty, as in the early Republic that succeeded it, elite mediation played a fundamental role in the settlement of business disputes. Although the promulgation of a national code of civil law was not to occur until the early 1930's, it is clear that customary law was well developed locally and in many instances was applied uniformly throughout the country. At the same time, the importance of written agreements in all facets of Chinese economic life gave rise to a legal culture in which written evidence was given priority in the handling of civil disputes. "Human feeling" could be a mitigating factor where relationships of kinship or close friendship were involved or where the evidence was insufficient to warrant a clear decision for either party. However, it did not inject the degree of indeterminacy into the legal system that traditional characterizations might lead us to expect. The early Republic saw the evolution, at least in Zigong, of the Chamber of Commerce as a formal institution of dispute mediation. As such, it did not displace the informal handling of civil cases through guilds and lineage organizations. Instead, it provided a neutral forum in an increasingly complex social setting where disputants only sometimes had kinship, native place, or associational ties. Although the Commercial Mediation Board, with its permanent staff, was in many respects a modern institution, it still owed much to the days when magistrates invited members of the local gentry to bring the parties to a case together before formal litigation was begun. The men who served in the Chamber of Commerce and its subsidiary agencies were still members of the local elite, for whom such service was a sign of their elite status, and whose main occupations were elsewhere. The impact of Western legal practice on early Republican legal practice is more difficult to define. During the first two decades of the twentieth century the conscious desire of Republican statebuilders and other Chinese reformers to emulate Western practice is

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evident in many realms. The degree to which desire was translated into practice is less evident. One of the obstacles to westernization of the legal system was an inadequate understanding of Western jurisprudence and legal institutions. Another was a rich legacy of SO" phisticated, but very different, Chinese practices through which the West was necessarily interpreted. When the Qing dynasty was overthrown, the local elite of both salt yards got together and formed the Zigong Local Assembly (Zigong yishihui). Their avowed purpose was to promote democracy (minquan) and local self-rule. Although the political climate in Sichuan never allowed the implementation of their many plans, they devoted considerable energy to drawing up a structure for local government which was clearly patterned on some understanding of foreign ways. Of the greatest interest was their determination to establish a tripartite system, with administrative, legislative, and judicial institutions. The judicial branch was to include a court of justice (caipansuo), an inspectorate (jianshiju), and a judicial police (sifa jingchadui). The inspectorate was designed to "initiate public prosecutions, receive written complaints (songzhuang), request preliminary investigations, investigate the facts, gather evidence, protect the public interest, render opinions, supervise the carrying out of decisions, and compile statistics on judgments." It was to handle civil and criminal cases and no distinction was to be made between those who rendered decisions in the two types of "trials" (Lin 1990: r-4). The merging of police, investigatory, and judicial functions was a direct outgrowth of magisterial justice during the dynastic period. The role of the magistrate in investigating the facts was translated into the style of judicial review that is apparent in most of the civil suits examined in our sample. Although we do not have transcripts of actual trials (though these may exist), from the materials we do have it appears that the practice of having each side in a suit submit a complaint, after which the adjudicating agency would send its own personnel out to investigate the facts and gather evidence, continued well into the twentieth century. Even in the 1930's the distinction between administrative justice and judicial justice is rarely articulated. Given this tradition, it is not surprising that German judicial models often proved more attractive to Chinese reformers than those of the United States or Great Britain. Moreover, without a tradition that placed courts at the center of the legal process, people continued to seek legal redress in a variety of contexts. To

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the extent that the Chamber of Commerce was able to appropriate a measure of central authority in the handling of civil disputes, it contributed tremendously to the rationalization of the legal system. However, as several of our cases demonstrate, it never had the authority to enforce its decisions or the ability to call upon other institutions of the state to do so for it. Although much more work needs to be done before a verdict can be rendered, it is possible that the Guomindang period achieved far more in the integration of the judiciary into the structure of the state than did its predecessor regimes. From the few cases we have it is clear that the existence of a national civil code was well understood in Zigong and the possibilities of using the courts to further one's business interests were exploited by at least two of our disputants. Whether this fundamentally changed the way in which business disputes were handled, and whether it contributed to an improvement in the business environment, are questions for another study.

Reference Matter

Notes

For complete author names, titles, and publication data for the works cited here in short form, see the Sources, pp. 309-24.

r. Bernhardt and Huang: The Issues 1. All citations from the Qing code in this volume will be to the compilation by Xue Yunsheng 1970 [1905), punctuated and edited by Huang Tsing-chia. The first number refers to the relevant statute as numbered by Huang. H a substatute is being cited, the subnumber is given after the statute number; 2. SeeP. Huang 1985: chap. 2, for a discussion of the wartime surveys. Brockman 1980 is an American study of customary commercial practices and dispute resolution in Taiwan, based on the earlier Taiwan material. It might be seen as"an American exception to the generalizations offered in the text above, or as part of the larger Japanese tradition of the study of customary practices. 3· The term is borrowed by Shiga from Henderson 1965, who used it in reference to Japanese law. 4· Danshui subprefecture (Danshui ting) was divided in 1875 into Danshui and Xinzhu counties. No Xinzhu county magistrate was appointed until the later part of 1878, however. The cases come from the office of the Danshui subprefect (Danshui fenfu) until 1878, and of the Xinzhu county court thereafter. We will refer to the entire set simply as the Dan-Xin archives, or as records of the Danshui-Xinzhu court. 5· P. Huang 1982 is an early report on local archives. For illustrations of the actual use of the Baodi case records, for the study of tax relations between the Qing state and rural society, seeP. Huang 1985, and of the Baxian case records, for the study of landlord-tenant relations, see Zelin 1986. 6. One diao equaled I,ooo copper cash. The exchange rate between copper cash and the silver yuan varied between Boo and 2,000 from the 1810's

Notes to Pages ro-rs to the 186o's (Usui 1981: 77-79), thus making the diao equivalent to 0.50 to 1.25 yuan. 7. They are considered at length in Philip Huang's forthcoming book, Civil Justice in China, I7 so to the Present. 8. For an elaboration of the idea of "the third realm," see P. Huang 1993a. P. Huang 1993b begins to explore the interrelationship between the formal and informal realms in the third realm of Qing justice. 2.

Scogin: Civil Law: History and Theory

1. In attempting to characterize whole fields of legal and historical scholarship in such a brief compass, one must inevitably deal on such a level of abstraction that the complex texture of the subject cannot be adequately conveyed. In the field of contracts, the discussion below summarizes briefly arguments developed more fully and illustrated more concretely in my earlier work. See Scogin 1990, and Scogin, "Contract and the State in Song Dynasty China" (forthcoming). The danger inherent in projecting Western legal categories onto Chinese practices is analyzed from the perspectives of legal anthropology and linguistics in Ainsworth 1994. Ainsworth draws on her training in those fields to analyze aspects of the problem that are only mentioned in passing in this chapter. The other chapters in this collection, dealing as they do with a wide range of concrete subjects, exemplify the new scholarship. This article is intended as a supplement to those works. The issues on which it focuses arise again and again in them. It is hoped that this article's generalizations will provide a point of reference for better appreciating the interdisciplinary significance of the empirical work that follows. 2. See, for example, the interchange between Paul Bohannan 1969: 40116, and Max Gluckman 1969: 354-73. In a debate with great significance for the study of Chinese law, Bohannan stresses the importance of using indigenous terms to describe a society's legal concepts and institutions. He maintains that overreliance on general categories masks the particular characteristics of legal systems. Gluckman feels abandonment of general categories undermines our comprehension of legal systems and our ability to convey understanding of them. 3· Such works introduce the theoretical structure of Chinese law as reflected in codes and officially sponsored historical monographs. The particular value of newly discovered materials, such as documents from the Qin dynasty, is that the legal provisions they contain are supplemented by writings on their practical application. See Note 6, below. 4· Bodde and Morris 1967, an influential text on traditional Chinese law, focuses on translations of cases from the Xing'an huilan. In keeping with the nature of its source materials, this work stresses criminal law and its associated legal procedures. 5· Madeleine Zelin 1986 represents a pioneering use of case materials

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from Baxian to illuminate landlord-tenant relations. Philip Kuhn 1990 has used case materials from the historical archives in Beijing to put local legal procedure within the context of political concerns at the imperial level. 6. Shuihu di Qin mu zhujian 1977 includes an important set of legal materials from the Qin dynasty. These range from sections of the code to analyses of hypothetical cases. In English see Hulsewe 1985. Many new sources for the civil law of the Han dynasty are discussed in Scogin I 990. Dozens of articles in Wenwu, Kaogu, and Kaogu xuebao present the results of ongoing archaeological discoveries. 7· Benjamin Schwartz 1957: 28-39 summarizes this aspect of the Chinese tradition (see also Bodde and Morris 1967: 4i Ch'ii 1961: 281i Taishuenn Yang 1987). 8. A provocative introduction to this formative period of the western legal tradition is Berman 1983 (see also Vinogradoff 1929i Koschaker 1966 [1947]). On the rise of western legal science, see especially Berman 1983: 120-64. The Corpus juris civilis is available in a recently revised English language edition: The Digest of fustinian (Watson, ed. 1985). 9· An important description of this general movement in legal thought is Llewellyn 1931: 1222-64. 10. Robert Gordon 1981: 1017-56 analyzes the many levels on which a contextualizing approach to legal history threatens some types of traditional jurisprudence. This work is the best general introduction to the issue and clarifies the many levels on which historicism interacts with the normative concerns of legal scholars. 11. The earlier form of legal positivism was concerned with the way legal rules actually arise and interact with their contexts. The inclusion of a descriptive element in this approach reinforced the convergence between it and the analytical concerns of historians. A classic formulation of the approach is John Austin 1832. For Austin, the importance of the sovereign derives from his vision of law as a command issued by someone who is in a position to enforce iti i.e., in society, the sovereign. More recent proponents of legal positivism have focused on hypothetical, normative dimensions of the problem. They are concerned with clarifying the conceptual problem of distinguishing between legal and other aspects of thought and society. A leading adherent of the school is Hans Kelsen, who has described law as a coercive, normative order (Kelsen 1967). The normative aspect of his definition emphasizes the objective legitimating function of legal norms. Coercion stresses the role of social organs capable of applying force and provides a means for distinguishing law from other normative elements in society. Kelsen's goal is to make law "scientific" by separating it from psychology, sociology, ethics, and politics. Experience with twentieth-century authoritarian regimes has made positivist reliance on coercion unsatisfactory for many who seek a more affirmative basis for the rule of law. H. L.A. Hart (1961) seeks to accomplish the positivist goal of separating the legal realm from society by focusing

Notes to Pages

21-24

solely on the function of rules. The legal order arises when basic or primary rules of behavior are generated in a matter determined by secondary rules, which determine the method for identifying the primary rules. This approach has advantages from a normative perspective. From the analytical perspective of the historian, however, it simply collapses into the traditional custom-law dichotomy discussed below. The debate over positivism and by extension the role of the .state in establishing legal norms has been influenced by the example of Nazi Germany. See Hart I958: 593-629, and Fuller I958: 630....:72. I2. Ban Gu himself made this point in the introduction to his treatise on law and punishments: The sage "must, in communion with the mind of heaven and earth, order the rites and engage in education, promulgate the law and establish punishments, move and accord with the people's feelings in order to model [oneself] on heaven and earth .... The sage, therefore, on the basis of heaven's punishment, creates the five punishments" (Ban Gu I962 [Hant 23: I079). I 3. In a famous example of this approach, the Han founder, upon enter-· ing the former Qin capital, promulgated his simplified legal code in the form of a compact, yue, with the elders of the community: "You elders have long suffered under the harsh laws of Qin.... [I] make an agreement with you that the law shall [consist of] only three sections: He who kills others shall die. He who harms others or steals from them shall incur appropriate punishment. For the rest, all other Qin laws should be abolished" (Sima Qian I962 [Hant 8: 362). 14· This point is implicit in Ban Gu's conception of the relationship between natural and moral orders. An advisor to Emperor Wen; Zhang Shizhi, described the nature of law in a fashion which combined both its moral and contractual basis: "law is that which the Son of Heaven and all under Heaven share in common" (Ban Gu I962 [Hant so: 23Io). I5. For a critique of this aspect of positivism, see Ronald Dworkin I967: I4-46. The following discussion reflects the influence of Dworkin's analysis. His approach is useful for analyzing the operation of rules in their social context. For those writing from a hypothetical perspective, conceptual clarity is enhanced by the very degree of abstraction that makes such works less relevant to historical analysis. A good recent analysis of the problem of rules from an avowedly ahistorical perspective is Frederick Schauer I99I. I6. Hans-Georg Gadamer (I989: 324-30) provides an analysis of this inevitably dual aspect of legal history's simultaneous illumination of past and present doctrines and institutions. I?. The role of the presence or absence of shared assumptions between historians and their subjects has been discussed by Eric Hirsch (I967: 4044) in the broader context of the knowability of historical texts. Hirsch does not, however, deal with the additional problem of cross-cultural comparison where filling in gaps caused by the absence of shared assumptions is even more difficult. From the perspective of comparative law, the problem of finding conceptual linkages that could serve as bases for comparison has

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been widely discussed. See, for example, Kahn-Freund 1966; Watson 1974: 1-9; Gutteridge 1946; Kahn-Freund 1974: 1-27; and Ehrmann 1976. 18. Hegel considered China so devoid of the spirit of progress that it became the archetype of the stationary society and therefore the starting point of an attempt to delineate the progress of "spirit" in history. He considered the Chinese law of his own time to be utterly lacking in any concern for the spiritual aspects of the lives of those to whom it was applied. 19. The relationship between comparative analytical frameworks and Chinese legal history has been addressed with considerable self-awareness by Roberto Unger. In seeking to generalize about the role of law in ancient China, Unger 1976 takes on a subject matter whose details are controversial among specialists. These controversial aspects of Unger's work have been analyzed in Alford 1986. Unger used the example of traditional Chinese law not in order to establish a developmental scale, but as the best way to isolate variables that could be useful for understanding the legal order of the modem West. His comparison of ancient China with the modem West led him to focus on two factors: the presence or absence of private centers of power in opposition to the ruler and the presence or absence of a transcendental concept of the divine realm. His more recent work on Chinese institutions, however, takes a different approach to the function of comparative historical analysis. In Unger 1987 he departs in two significant respects from earlier approaches. First he offers a critique of the implicit determinism of comparative frameworks. He seeks to use comparison not to show the inevitability of certain historical developments, but rather the range of possibilities open to historical actors. This emphasis leads in tum to the second aspect: a different view of culture. Instead of taking a society's conceptual framework as an identifiable unit of analysis, he focuses on the multiplicity of conceptual frameworks and potential social orders that exist simultaneously in a given society. He tries to show the way in which these elements can interact in sometimes random ways to produce what more deterministic scholars might see as inevitable results. While such ideas are certainly found in many modem works of social theory, their link to the study of Chinese law and institutions is salutary for the concerns of this chapter. The need for understanding the interaction of the elite normative tradition with the manifold concrete realities of Chinese local society requires an appreciation for the open-ended possibilities of traditional society. 20. Three closely related schools of thought have been particularly important in this development. The "free law" school of Fuchs, Kantorowicz, and Gmelin is reflected in Ehrlich 1903. The "jurisprudence of interests" approach is exemplified by Philip Heck and Max Riimelin. Translations in English of selected texts can be found in Schoch, ed. 1948. On American "legal realism," see Llewellyn 1962 and 1931. For the nineteenth-century background of all of these movements, see von Ihering 1877, 1883. 21. A concise statement of this distinction can be found in Bohannan 1965: 33-34 and Diamond 1971. 22. Bohannan, on the other hand, stresses the convergences between

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Notes to Pages 28-34

custom and law. For him law is a subset of the broader category of custom, which has become institutionalized for the purposes of the judicial organs of society. "Customs are norms or rules (more or less strict, and with greater or less support of moral, ethical, or even physical coercion) about the ways in which people must behave if social institutions are to perform their tasks and society is to endure. All institutions (including legal institutions) develop customs. Some customs, in some societies, are reinstitutionalized at another level: they are restated for the more precise purposes of legal institutions. When this happens, therefore, law may be regarded as a custom that has been restated in order to make it amenable to the activities of the legal institutions" (Bohannan 1965: 35-36). 23. A detailed account of these judicial functions in a modern extended lineage is provided in Hu 1948: 53-63. 24. Differing patterns from the north China plain and from the Yangzi delta have been studied by Philip Huang (seeP. Huang 1990: 144-61, 1985: 233-37). 25. The extensive annotations on pages 218 through 239 demonstrate the wide scope of this principle's application. 26. In addition to the many citations collected in the annotations referred in Palandt 1989: 218-39, on the historical development of the general clauses, see Dawson 1968: 461-502, and Dawson 1934: 171-238i the classic starting point for critiques of this process is Hedemann 1933. 27. The Han founder's famous yue with the leaders of the capital is one example (Sima Qian 1962 [Han], 8: 362). 28. This approach was particularly common among adherents of Friedrich Savigny's historical school. The starting point is Savigny 1975 (1814]. See also Gierke 1868, 1873, 1881, 1913. Portions of Gierke's monumental work have been translated by Maitland 1900, Barker 1934, and Heiman, ed. 1977. Savigny sought to discover the principles underlying German law in the then contemporary Roman law as modified by German developments (see Savigny 1840). Gierke rejected the formative role of Roman law (and its individualist ideological implications). He saw law as arising from the social realities of the communities and associations in which human lives are inevitably embedded. 29. For the historian's view, the best general introduction to this complex topic is Atiyah 1979: 219-568. The will theory of contract attempts to derive the legal effects of contracts from a view of them as expressions of the autonomous will of individuals (see Atiyah 1979: 405-8). 30. This debate often involves the question of the relationship between economic development and legal doctrine (see Horwitz 1975, and Simpson 1979). 31. See Danzig I975i Goetz and Scott 1981i MacNeil 198oi MacNeil 1974. See also Fuller and Perdue 1936-37i cf. Rakoff 1991, Macaulay 1991. 32. Issues relating to the role of contract in Han China have been analyzed in Scogin 1990. 33· The document in which the saying is preserved is an example of

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religious spirit contracts that followed the format and used the language of secular contracts. The language of this document is similar to the secular ones translated in Scogin 1990. 34· Dunhuang ziliao (Legal Research Institute 1964: 293, 298, 310) has examples of Tang contract documents whose language stresses private functions: "The officials have governance and law; the people proceed [on the basis of] private contracts"; "People fear lack of truthfulness and therefore establish private contracts in order to use afterwaids for examination." 35· The role of contract in the Song dynasty is discussed in the author's forthcoming article on "Contract and the State in Song Dynasty China."

3· Jing: Qing Civil Economic Legislation The translator would like to thank Hanchao Lu and Richard von Glahn for their assistance. The following abbreviations and short forms are used in the citations: DQAY Huang Entong 1847. DQTK Wu Tan 1886. Da Tang Da Tang liudian 1962. GCSL "Gaozong Chunhuangdi shilu" 1985. SXSL "Shizong Xianhuangdi shilu" 1985. SZSL "Shizu Zhanghuangdi shilu" 1985. Song Song xing tong 1984. Tang Tang lii shuyi 1939. TMLH Xue Yunsheng 1990 [Qing]. Yuan Yuan dian zhang 1964. 1. All references to the Qing code simply list the number of the statute or substatute as given in the compilation by Xue Yunsheng 1970 [1905], punctuated and edited by Huang Tsing-chia. 2. Yinziyin or yinziqian, "seal-print money," was a loan "to be ·repaid in monthly or daily installments, and when the payment was made the collector would stamp a seal in an account book held by the debtor as a record. Hence the term (yinzi], 'seal-stamp' or 'seal-print'" (Yang Lien-sheng 1971: 100).

3· Duanpiao was a device for extorting an illegally high rate of interest while disguising the arrangement in a legally enforceable contract. The contract would state an amount of principal far in excess of the amount actually lent; the borrower would be required to "repay" the higher amount given in the contract at the stipulated interest rate.

4· Macauley: Disputes in Southeast Coastal China 1. Chinese in late imperial times used a variety of terms to refer to those who helped others manage their lawsuits. The most common terms were songgun and songshi. By the eighteenth century, officialdom used

Notes to Pages 86-89

these terms interchangeably and pejoratively. Popular usage tended to favor the more deferential term songshi. In translating directly from official documents, I employ the similar Elizabethan term of disparagement, "pettifoggers." Otherwise, I use the neutral term "litigation brokers," reflecting their roles in both providing assistance in official litigation and serving as mediators outside of official courts. 2. I will not elaborate in this chapter on the social and economic background to the growth of litigation after the mid-Ming. The demographic explosion and increasing complexity of property transactions in the region contributed to the large number of lawsuits pressed in the official courts. Officials in Fujian and Guangdong were also concerned that a lack of clarity in customary notions of what constituted "property" after the midMing contributed to the overwhelming backlog of civil cases on the southeast coast. For a discussion of these and related issues in the region, see chapter four of my dissertation (Macauley 1993). 3· A number of these provincial reports for the eighteenth and nineteenth centuries, primarily concerning the backlog of appeals at the provincial-level courts and based in part on the county monthly civil litigation reports, are preserved in the First Historical Archives in Beijing. 4· Unless otherwise noted, all citations from the Zhupi zouzhe (abbreviated in this chapter as ZPZZ) are from the falii. qita ("miscellaneous" section of the "legal" category). Documents are further identified by their dates, in which the reign names are abbreviated (QL for the Qianlong emperor, JQ for the Jiaqing emperor, etc.), followed by the reign year, lunar month, and day. 5. These and other memorialists in 1807 reported that a general amnesty in the first year of the Jiaqing reign had wiped the provincial litigation backlogs clean that year (1796), thus resulting in lower unresolved litigation statistics for these provincial-level government yamens. As the work of Mark Allee has demonstrated, it was not unusual for a civil case to persist for over a decade and, therefore, it is reasonable to presume that the actual number of unresolved cases in 1807 should have been much higher. 6. Lan claimed to have reduced the number of lawsuits by half with this tactic; significantly, that still would have left him with approximately soo to 1,ooo plaints daily with which to contend. One gloss on the term fanggao indicates that magistrates were to receive plaints directly in order to circumvent the "evil practices" of yamen functionaries. Significantly, at least one Fujian governor estimated in the early nineteenth century that roughly half of all civil cases pressed in the province were managed by "rapacious clerical underlings ... who took matters on their own account" (ZPZZ, JQ 12.5.18). What held for Fujian probably held for the Guangdong border prefecture of Chaozhou as well. If true, guaranteed access to the magistrate would have been even more encouraging to local peasants. 7· On the other hand, a few eighteenth-century officials, such as Wang Huizu, believed that local officials had a responsibility to help resolve the

Notes to Pages 93-105

297

disputes unsettling the people in their jurisdictions (Wang Huizu I939 [1793]: I4). 8. On shengyuan activities as antistate, see Min I989: 2I-49, and Hsiao I96o: 244-50. Min Tuki concludes that the shengyuan cannot be considered a part of the "elite" because of their often rough treatment at the hands of the magistrates, the rhetoric of vilification of the shengyuan in official writings, their low standing vis-a-vis the juren and jinshi, and their comparative poverty. Min does not benefit from the work of such scholars as Hilary Beattie (I979), and his notion of elitism tends to be too bureaucratic and national (as opposed to local). 9· For a case in Zhangzhou prefecture (Fujian) in which a shengyuan who previously had been castigated for being a chief petitioner in a tax dispute ultimately was cashiered for "instigating litigation," among other "crimes/' see Xingke tiben, Xingbu qita, QL I.II.I5. IO. I am grateful to Nancy Park for providing me with her translation of the section of Mu's writings on "Investigation and Punishment of Litigation Tricksters." In his work on the Dan-Xin archives, Mark Allee discovered that peasants often claimed to have had their plaints written by fortune-tellers and physiognomists. If they actually did rely on these men, then fortune-tellers and the others served as a sort of "poor man's pettifogger" (personal correspondence, August I99I). On the other hand, it was not unusual for licentiates to have been so impoverished that they would employ themselves as fortune-tellers (Wu Jingzi I973 (Qing]: 173-76). And litigation brokers may have advised people to claim they had been assisted by these wandering men. I 1. For an elaboration of the manner in which popular narratives complement and negate the official image of litigation brokers, see Macauley I993: chap. 6. I2. This case description is based on memorials by the governor-general of Fujian and Zhejiang, Na Sutu, and the governor of Fujian, Zhou Xuejian (ZPZZ, QL 9·4·4); by Wu Jinsheng, the Fujian provincial military commander of the Army of the Green Standard (ZPZZ, QL 9.4.Io), whose memorial repeats a report of Sergeant Yu submitted to the Brigade Commander Ma Yulong; a comprehensive memorial submitted by Zhou Xuejian (ZPZZ, QL I0.3.26); and a memorial by Na Sutu's successor as governor-general, Ma Ertai (ZPZZ, QL I0.5.17). It took provincial officials over a year to determine exactly what had happened in this case. I3. On juting, proprietors of such establishments as inns, temples, harbors, and so on, as a sort of urban baojia responsible for aspects of government surveillance, see Zhang Weiren I983, I: I 55· John Henry Gray (I82890) also describes the responsibilities of hotel proprietors (Gray I974 [I878L I: 64-69). I4. It is not surprising that in both this case and that of Deng vs. Liu, missing corpses played major roles. These cases illustrate a peculiar tactic in late imperial China which might be described as "disputation of the body snatchers." In such cases, simple disputes over such things as grave sites or

Notes to Pages

107-23

debts would erupt into false charges of murder or grave robbing. There were several cases in sixteenth- and seventeenth-century Suzhou in which grave diggers moonlighted as providers of fresh corpses and, in cooperation with coroners, would doctor the bodies in such a way as to conform to the specifics of the false murder charges (Huang Liu-hung I984 [I694]: 3541· For a discussion of folktales showing litigation brokers utilizing corpses in ingenious ways, see Jin I927 [I9I9]: 33-36, 62-63; Macauley I993: chap. 6. I5. Lamley I990 also notes that authorities in the provincial capitals could not understand the Hokkien and Hakka dialects. I6. This was not the first time Lan Dingyuan had come to the assistance of the Qing military. In 172I he had assisted his cousin in the suppression of Zhu Yigui's rebellion in Taiwan (Qingdai qibai mingren zhuan I984 [I936], 2: 105; Hummel, ed. I943-44: 4401. I 7. In I 7 56 the imperial government promulgated a substatute proscribing the illicit sale of lineage landholdings by these "wayward sons and grandsons" (Xue Yunsheng 1970 [I905]: No. 93-041. The substatute was in response to a number of memorials by the governor of Suzhou, so, obviously, this practice was not confined to the southeast coast. 18. On thegongfei, seeTsurumi 1984:267, andZelin 1984: 120, 174-75· I9. Su does not indicate the location of this homicide, but his article focusses on Zhangzhou and Quanzhou prefectures. Thomas Buoye has been studying similar cases in his ongoing research on Guangdong. 20. All of these statistics were culled from the annual provincial reports to Beijing concerning resolved and unresolved murder and robbery cases preserved in the First Historical Archives in Beijing. The reports usually did not distinguish between murder and robbery statistics, but in these particular instances, a distinction was made. 21. The contracts reproduced in Yang Guozhen's exhaustive study of land contracts in Fujian substantiate the observations of these eighteenthcentury authorities. Yang himself suggests that the problems became more pronounced after the mid-Ming (Yang Guozhen I988l. For a discussion of the attempts of Fujian officials to regulate customary practices in order to reduce the number of lawsuits and render the collection of taxes more efficient see Macauley I993: chap. 4· 22. There is a remarkable uniformity to official vituperation against litigation brokers. The earliest sources I have that specifically refe1. to songgun and songshi, in the sixteenth century, and the latest document I have, from I950, basically use the same language and make the same complaints. 5. Allee: Code, Culture, and Custom

1. The Dan-Xin archives have been described and characterized in a general way by Buxbaum I97I: 255-79. There is also a brief description of the archives in Bin Liu Chang I983: appendix A, 309-I3.

Notes to Pages r23-39

299

2. My research has relied almost entirely on the microfilm version of the cases. This imperative introduced the usual problems and frustrations familiar to anyone who has worked with this medium. The nature of Chinese archival materials themselves added a few special hurdles. Although nearly all of the documents in the case files were written in very legible regular script (kaishu) calligraphy by professional clerks, most annotations or emendations were written in running (xingshu) or even cursive (caoshu) style. Deciphering the personal idiosyncrasies of the latter two writing styles was impeded by the obscurity inherent in microfilm and aggravated by errors or carelessness during the filming process. Some items that appear in contrasting colors of ink or paper and so are perfectly legible in the originals appear uniformly black (and often perfectly illegible) on the film. This is especially true of the seal impressions in red ink that were stamped over black-inked text and the labels written with black ink on red slips of paper such as were pasted on sketch maps. In general, however, the microfilmed Dan-Xin documents are clear and readable. 3· Each case from the Dan-Xin dang'an (cited herein as DX) has been labeled with a discrete five-digit number of which the first three digits identify the case by type (administrative, civil, criminal), category, and subcategory and the last two digits place the case in sequence within its subcategory. 4· All references to the Qing code are to the edition by Xue Yunsheng 1970 [1905]. The number refers to the number of the statute or substatute. 5. For a discussion of the system as it was found in this part of Taiwan see Allee 1994: esp. chap. 4· 6. Mingzi is the shortened form of minglingzi meaning literally "caterpillar son." Wolf and Huang 1980: 110-11 quote from a Lu Xun story to explain the etymology of this term. Briefly, the mingling is a small green caterpillar found on mulberry trees. Its young are said to be carried away by the sphex (diggerwasp) to be changed into wasps. Both minglingzi and yi'nan refer to adopted sons whose original surname was different than that of their adoptive family (see Waltner 1990: 25, 74-75; also Ino 1965 [1928],

2: 380-84).

7· See, for example, the discussions of marriage and adoption in Okamatsu 1971 [1902]: appendix,i-xviii, and Wolf and Huang 1980: passim. 8. Their mother's remarriage would, of course, have been frowned upon by the orthodox elite. 9· The variety of documents used as collateral in such loan transactions is suggested by an 1886-88 case (DX 23311) in which certificates attesting to the right of a military colonist (tunding) to receive military colony provisions (tunxiang) and rent on military colony land (tunzu) were used for this purpose. 10. Many examples of these and other types of documents may be found in Taiwan yinhang 1963. 11. Guardposts originally seem to have literally been groups of guards

Notes to Pages 142-66

300

hired to protect against aborigine or bandit attacks. They evolved into organizations that obtained the rights to settle land in frontier areas.

6. Huang: Law and Magisterial Adjudication See the discussion in Chapter I. See Chapter I, note 3· 3. All references to the Qing code below will be to the compilation by Xue Yunsheng I970 [I905], punctuated and edited by Huang Tsing-chia. The first number refers to the relevant statute as numbered by Huang. If a substatute, the subnumber is given after the statute number. 4· The Baxian cases kept at the Sichuan Provincial Archives are cataloged by category number, catalog number, then juan number. All citations below will follow this format. The date, by year, lunar month, and day, refers to the date on the original plaint, if available. If not, then to the first documented date. The final bracketed letter and number are my own file references, by county: "1" for land, "d" for debt, "m" for marriage, and "i" for inheritance, followed by the case number. 5. All citations below from the Baodi archives will follow this format: the juan number, followed by year, and date of the first plaint in lunar month and day, if available; otherwise, the first documented date. 6. All citations from the Dan-Xin archive below will be by cataloger Dai Yanhui's numbers, followed by the lunar date of the first plaint. 7. Statute 93: for forcibly encroaching on another's property of one mu or less, so lashes, to increase by one grade for every five mu of land. From Kangxi times on, stipulated punishments were routinely adjusted downward by a factor of 0-4 (see Xue Yunsheng's annotation to Statute I). 8. Matthew Sommer is writing a dissertation at UCLA on "Sex, Law, and Society in Qing China," drawing mainly on the Baxian archive. 9· David Wakefield's dissertation (I992) at UCLA is a full-length study of household division in the Qing and the Republic. I.

2.

7. Bernhardt: Divorce in the Republican Period The following short forms and abbreviations are used in the citations: ·Beijing Beijing difang fayuan (the Beijing District Court), I40 divorce case records mostly from I 942, kept at the Beijing Municipal Archives. [Cases cited as Beijing, date of case: catalog number.] Daliyuan Daliyuan, some 40 divorce case records from I9I5 to I9I8, kept at the Second Historical Archives in Nanjing. [Cases cited as Daliyuan, date of case: catalog number.] Jingshi Jingshi gaodeng shenpanting (the Capital [Jingshi] Superior Court, located in Beijing), I30 divorce case records from I9I2

Notes to Pages 189-92

301

to 1925, kept at the Second Historical Archives in Nanjing. [Cases cited as Jingshi, date of case: catalog number.] The Provisional Criminal Code of the Republic of China PCC Shanghai Shanghai diyi tequ difang fayuan (Shanghai First Special District Court, originally the International Mixed Court, which reverted to Chinese control in 1927), 65 divorce case records from 1940 and 1941, kept at the Shanghai Municipal Archives. [Cases cited as Shanghai, date of case: catalog number.] 1. In Shanghai, for instance, the acknowledged divorce capital of the country, the annual crude divorce rate (number of divorces per unit of population) stood at .24-.31 divorces per 1,ooo people in the late 192o's and early 193o's (Tan 1932: 50-56; Shen Dengjie and Chen Wenjie 1935: 310-14). The Shanghai data, compiled by the Shanghai Social Bureau (Shanghai shehuiju), are the most reliable statistics on divorce in Republican China. No national figures exist, and data on other cities are sketchy at best. For divorce rates in Western countries in the first half of the twentieth century, see Phillips 1988. 2. All references to the Qing code are to the edition by Xue Yunsheng 1970 [1905]. The number refers to the number of the statute or substatute. 3· All references to the Republican civil code are to The Civil Code of the Republic of China 1930. 4· The phiase "infamous crime" meant a crime the penalty for which included a curtailment of civic rights (gongquan)-for example, in the 1935 criminal code, the right to be a public official, the right to obtain public employment, and the four rights of election, recall, initiative, and referendum. A criminal lost these rights if he/she had committed an intentional offense that carried a prison term of six months or more. By specifying a minimum of at least three years' imprisonment or the commission of an infamous crime, the lawmakers were purposely ruling out crimes such as accidental injury or death that did not cast as great a dishonor on the other spouse (van derValk 1939: II9; Liufa quanshu 1932: 295-96; Escarra 1936: 304-5). 5· The Daliyuan was established in Beijing in 1905 as part of the reorganization of the judiciary in the late Qing. It took its name from the Dalisi (the Court of Revision), one of the "Three High Courts" (Sanfasi) of the Qing, the other two being the Board of Punishments and the Censorate. The Daliyuan was replaced by the Supreme Court (Zuigao fayuan) in late 1927. The Supreme Court moved from Beijing to Nanjing in 1929. 6. In Republican law, the husband had presumptive custody of the children in both mutual consent and judicial divorce. But a couple could work out a different private arrangement, as this couple did. Moreover, the court could, in the interests of the child, appoint another guardian, either the mother or some other relative (Arts. 105 r and 105 5 ). This was rare, however. In the 1942 Beijing and 1940-41 Shanghai cases under study here, the

302

Notes to Pages 193-205

most a mother could expect from a judge was temporary custody of a young child until it was weaned. In only one case did a wife receive outright and permanent custody of her children and that was because her husband, an inveterate criminal and drug user, was again in prison serving a sentence for theft (Shanghai I940: I80-I-48). It was in its provisions about child custody that the Republican civil code demonstrated some of its strongest support for the patrilineal family. The issue of child custody will be dealt with at greater length in my forthcoming larger study, Women and the Law in Imperial and Republican China: Marriage, Divorce, and Property Rights. 7· Tan I932: 50-56; and Shen Dengjie and Chen Wenjie I935: 3IO-I4. Because of gaps in the Shanghai Social Bureau's statistics, the figure of 3, I 7 I divorces does not include divorces from February, March, and April, I932, or those from the year I 9 33. 8. As of the last day of I93I, for example, the country's prisons held 54,784 men, but only I,I99 women (Shenbao nianjian I935: 280). 9· Evidence of the hiring of lawyers comes from the court mediation records (hejie bilu) and the court judgments (panjue). The remaining 38 cases from the I942 Beijing records were either withdrawn by the plaintiff to pursue outside mediation or dismissed by the court because of procedural irregularities. It therefore cannot be known whether the people in these cases had also engaged lawyers. IO. The Shanghai divorce case records of I940-4I do not contain the original plaints, where information on the occupations of the litigants is usually listed. But thirteen of the judgments do mention the husband's occupation. Ten of the thirteen men were variously factory workers, streetcar drivers, unemployed, or in jail for drugs or theft. The other three were a factory owner, a relatively well paid (Ioo yuan per month) office worker in a printing company, and an office worker in an insurance company (Shanghai I940: I80-I-48, I94I: I80-I-62). I I. Alimony and compensation for damages in the event of a divorce are covered in Articles 1056 and I057 of the civil code. Article I057 specifies that the spouse not at fault for the divorce is entitled to maintenance from the other spouse if the divorce would cause financial difficulties. Article 1056 allows the innocent party to claim compensation for any financial, physical, or emotional damage she/he might have suffered at the hands of the guilty party. The financial aspects of divorce will be investigated in my book-length study. I2. The Beijing District Court was not unusually quick in its handling of such cases. According to the Judicial Yuan's national figures for I936, 44 percent of the reported 5,725 marital cases (divorce included) heard by district courts were concluded within one month and 86 percent within three months (Sifa tongji n.d., 2: II6). I3. For a discussion of Qing legal cases involving runaway wives, see P. Huang I99I: 43-46. I4. The three-year rule here derives from the three years of mourning that a wife was to observe for a deceased husband (Xiao I6I4: 3: 26a-b).

Notes to Pages 207-rs 15. The disparity between the Shanghai and Beijing figures here arose from the fact that roughly three years earlier, in 1937, the Japanese army had attacked Shanghai, causing much death and disruption of people's lives. Most of the Shanghai plaintiffs seeking divorce on the grounds of disappearance made reference to the chaos of that time in their petitions. The lower percentage in the Beijing cases was much more representative, in line with the 9 percent figure of the nationwide cases from 1934 to 1939 (Table 7.6). Aside from this, the Japanese occupation of Shanghai and Beijing in the early 1940's had no discernible effect on the reasons people sought divorce. It also did not interfere with the normal workings of the legal system. 16. In 1940 the Supreme Court exempted wives in these circumstances from the normal requirement that a suit for divorce on the grounds of adultery be brought within six months of the discovery of the affair (Chiu 1966: r8o).

8. Conner: Legal Profession in the Republic The research for this chapter was conducted in part with the assistance of a research grant from the University of Hong Kong; the University's support is gratefully acknowledged. I would also like to thank Yash Ghai, Carol Jones, William MacNeil, and Helen Unangst. To conform to the citation style used in this volume, most statutes in this chapter are cited by source only, and the standard, full legal citations are not provided. The following short forms and abbreviations are used in the citations: "Lushi zhanxing zhangcheng." 1912 Regulations (or the "Provisional Regulations") "Lushi zhangcheng." 1927 Regulations (or the "Regulations") "Lushi fa." Lawyers Law "Lushi gonghui biaozhun huize." Model Bar Regulations North China Herald. NCH Shanghai liishi gonghui huiyuan Shanghai Register lu. Shanghai Regulations (or "Shang- "Shanghai lushi gonghui zhangxing huize." hai bar regulations") Sifa ligui Cengding guomin zhengfu sifa ligui. Zhengfu gongbao. ZFGB 1. For example, van der Sprenkel 1962: I; Bodde and Morris 1973: 4, 113, 180; Bell and Woodhead, eds. 1913: 661. This view is apparently taken on both sides of the Taiwan straits (see Zhan 1973: 292-93; Chen Haisheng 1989: 3). Writing in the 1930's, Chang Yu-chuan argued that lawyers in the "broad or strict sense of the term" existed before the Republican period, but

Notes to Pages 2rs-r8 he was actually referring to clerks, private secretaries, and "litigation tricksters" (or pettifoggers) (1938-39a: 146-47). Though the latter might in some respects seem to resemble modem lawyers, their activities met with suspicion and hostility from Qing authorities and they were prohibited from making court appearances. 2. This date is somewhat arbitrary, since the beginnings of the profession, or at least training for it, can be traced to reforms introduced at the end of the Qing. Many texts state that the "lawyer system" was adopted around 1901 (e.g., Zhan 1973: 293), and (as noted later) some provisions for lawyers appeared in the Qing 1910 drafts of criminal and civil procedure (Wu Lei 1988: 354). Schools offering courses in law or "law and government" were established after the 1905 abolition of the traditional examination systemi by 1908 schools providing such training had been established not only in the capital but throughout the provinces (Diyici Zhongguo jiaoyu nianjian 1934: 465-68i J. Cheng 1976: 143-54). Many Chinese students sent to Japan also studied law or government (Jansen 1980: 348-pj. Nevertheless, the real development of the profession occurred only after the enactment of legislation in 1912 officially recognizing private lawyers and providing for their rights and duties. 3· The legal profession in civil law jurisdictions tends to be much less of a single entity than the American legal profession, whose members usually think of themselves as lawyers whatever their current work. In civil law countries, clearer lines are ordinarily drawn between the different branches of the profession: the judiciary, public prosecutors (procurators), private attorneys, law professors, and notaries (Merryman 1969: 109-19i Glendon, Gordon, and Osakwe 1985: 150-66). Although the early Chinese legal profession had absorbed other foreign influences, at least in Shanghai, it was based directly on the Japanese example and therefore followed the civil (not common) law model. 4· The general statutory framework remained similar under the 1912 and 1927 enactments: in addition to the 1927 regulations, amended versions of the registration regulations and disciplinary regulations were also enacted (Sifa ligui: 1767, 1907-10). Under the 1927 regime, however, qualifications and admission rules were prescribed separately, in the 1927 regulations on the committee for the selection of lawyers (Sifa ligui: 1765-66). For a translation of the 1923 version of the lawyers regulations as well as related legislation, see Laws, Ordinances, Regulations and Rules Relating to the Judicial Administration of the Republic of China. The 1927 regulations remained in force until the 1941 enactment of the Lawyers Law, which forms the basis of the statute currently in force in the Republic of China on Taiwan (Liao 1982: 949££.). 5. In that respect also the Chinese legal profession was far from unique: the first woman was admitted to practice in a U.S. state in 1869, for example, but most states excluded women until the twentieth century, and women were admitted in England only as a result of a 1919 statute (Abel

Notes to Pages 2JI-so 1985: 38-39). In Japan, women were not admitted to practice until the enactment of the 1933 Attorneys Law (Hattori 1963: 129). 6. Shanghai Register (undated, but probably 1933, based on the latest registration dates it contains). I am grateful to Paul Ch'en of the University of Tokyo Faculty of Law for obtaining a copy of this list for me. 7· This number excludes people who had received some legal training but apparently never practiced, of whom there were many. 8. For the value of the yuan, see the discussion in Chapter 1. 9· After an intense campaign for the rendition (i.e., surrender) of the mixed courts, agreement was reached in August 1926 for the return of the Mixed Court of the International Settlement to the Chinese authorities on January 1, 1927. The temporary court established to replace the Mixed Court was known as the Provisional Court. In 1930, the Provisional Court was in turn replaced by the District Court for the First Special Area in Shanghai; the following year the rendition of the French Mixed Court and the establishment of another special district court were also agreed upon (Johnstone 1937: 158-63). 10. Of course, if Chinese lawyers had been in complete charge of admission, they might also have wished to limit the numbers entering practice. Compare the situation in the early U.S., where the courts rather than the bar controlled entrance to the legal profession. There, the result was that entry to the profession was not restricted, because the courts (unlike the bar) had no reason-such as a desire to avoid competition-to limit the number of lawyers admitted to practice (Friedman 1985: 3 15-16).

9· Zelin: Merchant Dispute Mediation in Zigong 1. Zigong is composed of two adjacent salt yards, Ziliujing and Gongjing. During the Qing this salt production area was known as the Furong salt yards, after the counties in which the two yards were located, Fushun and Rongxian. A strong sense of unity existed among the salt producers at these yards, reflected in the early twentieth century formation of a Zigong Chamber of Commerce. Zigong was declared a municipality by the Nationalist government in 1939. In this chapter the term Zigong will be used to refer to this region for all time periods. 2. Conservative estimates of total annual Sichuan output average around 3oo,ooo,ooo catties. See Wu Wei et al. 1932, II: juanyun 6, jichu shang; Ran and Zhang 1984: 136, based on figures from the First Historical Archives in Beijing. Alexander Hosie's estimate of total output, including smuggled salt and salt sold outside the salt gabelle, came to 56o,ooo,ooo catties (Hosie 1922: 181-82). 3· For a more detailed discussion of the production system and modes of investment at the Zigong salt yard, see Zelin 1988: 79-122. 4· The main purpose of the salt administration was the collection of taxes on salt. The administrative structure and regulations of this tax col-

306

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lecting administration changed several times between the early nineteenth century and the 1930's. For a detailed discussion of these changes, particularly the professionalization of the administration during the early Republic, see Adshead 1970. 5. For a discussion of the structure of Sichuan's warlord governments, see Kapp 1973. 6. The larger study of which this work is a part does not go beyond 1937. Therefore I did not attempt to examine civil suits for the 1940's. 7. Nine of the cases in our sample clearly involve business dealings among friends and relatives. All were established by means of written documentation. From what we know of the conduct of business in China before the revolution it is likely that a large portion of the remaining cases also involved clQse face-to-face relationships. 8. Documents from the Zigong Municipal Archives will be cited as Zigong, followed by a three-part catalog number. A fourth and fifth number are added in cases where a single document has been assigned page numbers by the archives. Where the date of the document is known, it is appended in brackets. 9· In one case a telegram, presented as evidence that the Wang Sanwei tang had notified the Sichuan salt commissioner of the illegal activities of Wang Dejian, was discounted because a telegram does not bear the seal of the party said to have sent it. In Dejian's words, "a telegram has no more validity than an anonymous placard" (Zigong 1-1-20 [1925]). ro. It is probably because of this practice that so many Qing period contracts have survived in the Zigong Municipal Archives. II. Zigong 17-1-475-39 [1924]. Similar action was taken by victims of lost promissory notes in n-r-193-48 [1932], n-r-193-4I [1931], I?-I-19330 [1931], I?-1-193-43 [1932]. 12. Zigong 17-I-I93-r8-2o [1932] indicates that it was common practice to file two copies of a "loan with collateral" agreement (yajie wenyue) with the local court. However, as an added precaution businessmen also asked the Chamber of Commerce to keep a copy. In Zigong 7-1-515-13 and 46 [1933] a group of creditors concluding a bankruptcy hearing requested that the results be kept on file at the Zigong garrison command, the Zigong court, the office of the Furong East Yard head (changzhang), and the Zigong Chamber of Commerce. In the case of Zeng Dewen and the partners of the Haichao well, discussed below, Zeng sought to verify that the land on which he was drilling a well was abandoned by having the heads of five different administrative and judicial agencies sign an affidavit to this effect (Zigong 3-5-514-35-37 [1937]). 13. The ban on transfer of a menpai was inscribed on the menpai itself and refusal to turn in a menpai could prevent new lessees or owners from taking over operation of a well or furnace until a suit was settled (Zigong 33-560-152-54 [1940], 3-5-514 (1937]). 14. The ritual of paying homage to the gods (jingshen), often accompanied by theatrical performances, is noted in many well contracts as part of

Notes to Pages 255-59

the initial expenses incurred in opening the facility. According to a lawsuit ffied by Mrs. Liao nee Yu against her mother-in-law, a similar ceremony was carried out at the time that a lessee took over operation of a well. In attendance were the owners of the well, the lessee, the contractor who would be pumping the well, the accountant of the larger firm that managed all the shares in the well, as well as relatives and witnesses to the lease agreement. Such an assemblage could easily be interpreted as living representation of the contract itself and was cited as evidence of the authenticity of the contract and the failure of any interested parties to assert conflicting property rights. r 5. The annual clearing of accounts in the presence of all partners made it very difficult to hide behind inadequate records when defending oneself from charges of fraud. In October 1927 Huang Daren accused Yang Duxing and others of embezzlement. When pressed for evidence to substantiate his claims, Huang, who was in charge of the accounts in Zigong, claimed that none could be produced. The records of the Chongqing and Shanghai branches of the native bank in which all were partners were, according to the Huang, incomplete and inaccessible. Yang was able to show that the necessary records had to exist because without them the firm could not have settled accounts at a partnership meeting at the end of each year (Zigong 17-I-503-r4 [1927]). Such shareholders' meetings are frequently mentioned in the records of Zigong's many lineage trusts. Failure to report at one of these meetings changes in the way trust assets were used could be used as evidence of fraud (see for example Zigong 20-1-37 [1938]). r6. Zigong 17-I-193-44 [1932], ry-r-543-2 [192o's], and ry-1-495 [1927] all involve a manager being pressed to pay the debts of a firm he supervised. This problem was sufficiently widespread to inspire the partners in the Dachang pipe to declare in their partnership rules that "when we make a loss it will be made up [by the partners] ill proportion to each one's investment [in the firm] and must not be made to fall on the heads of our general manager and managers. This is so that those in charge of the affairs of the pipe will not become so afraid of getting in trouble that they are unable to do their jobs" (Zigong 42-3-5-21 [1902]). ry. Zigong 7-1-515-r3 and 46 [1933]. Zigong ry-r-305-27 [1929] examines the problem from the perspective of partners of men who go bankrupt from poor performance in other dealings. Li Boxian and Wang Mingshu had 14 of the 21 shares in a furnace. When they ran into financial difficulties they pledged their shares in the furnace to their creditors. The partners controlling the other 7 shares sued to have their interest in the furnace legally separated from Li and Wang in order to operate as a distinct company. r8. Six of our debt cases indicate an initial attempt at private mediation. This usually meant calling in members of the yard elite or appealing to the participants' own trade association or lineage institutions (see Zigong ry-r-193-44 [1932), ry-I-4]2-I0-12 [1920's), ry-1-546-9-II [1920'S), 3-5514 [1937), I-I-I98-I5 [1929), 20-1-37 [1938]). 19. It is not clear when the mediation board was formally established.

308

Notes to Pages 261-70

It is referred to by name in a suit dating from 1920 but its functions were being performed much earlier (Zigong 17-1-472 [192o's]). 20. A reduction in the amount of debt is found in three other debt payment suits in our sample (Zigong 17-1-474 [1917], I-I-I98-IS [1929], and?I-SIS [1933]). Rosser Brockman 1980: 98-99, 101-2 has noted a similar principle in the handling of late Qing suits in Taiwan. 21. The life of a credit group could be quite long. When Wang Zhuoru went into debt, a credit group was formed in 19os. In 1919 it was still paying off principle and interest out of the profits from Wang's well and furnace interests (Zigong I?-I-46S [1919]). 22. "Sha" is an abbreviation of Shashi and "Yu" is part of the ancient name of Chongqing. 23. By custom, wells in the East Yard had 30 shares, and in the West Yard, 24 shares. Of course, as the number of investors grew, many came to hold fractions of a share. 24. For a fuller discussion of diu xiafie see Zelin 1988: 101-6. 2 s. Zigong 20- I- 37 [I 938]. According to Myron Cohen, although women could not be household head (fiazhang) they frequently held the position of household manager (dangfiade) when the males of the senior generation were not present or were deceased. 26. Three other cases in our sample involved women who were managing family business affairs. Two women sued for recovery of loans they themselves had made (Zigong I?-I-S49-S [1928], I?-I-I93-4I [1932]) and one woman is listed as the owner of disputed well land (Zigong 3-S-SI4 [1937]).

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