Law, Resources and Time-Space Constructing: Internal Evolutionary Logic for Chinese Judiciary During the 19th Century 981168054X, 9789811680540

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Zhang Shiming

Law, Resources and Time-Space Constructing Internal Evolutionary Logic for Chinese Judiciary During the 19th Century

Law, Resources and Time-Space Constructing

Zhang Shiming

Law, Resources and Time-Space Constructing Internal Evolutionary Logic for Chinese Judiciary During the 19th Century

Zhang Shiming Law School Renmin University of China Beijing, China

ISBN 978-981-16-8054-0 ISBN 978-981-16-8055-7 (eBook) https://doi.org/10.1007/978-981-16-8055-7 Jointly published with China Renmin University Press The print edition is not for sale in China (Mainland). Customers from China (Mainland) please order the print book from: China Renmin University Press. ISBN of the Co-Publisher’s edition: 978-721-80-7721-5 Translation from the Chinese language edition: 法律、资源与时空建构: 1644–1945年的中国 by Zhang Shiming, © Guangdong Renmin Press 2013. Published by Guangdong Renmin Press. All Rights Reserved. © China Renmin University Press 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publishers, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publishers nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publishers remain neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Forms of Banguan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Reflections in Different Kinds of Historical Documents and Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 The Shortage of Resources and the Shaping of Space Outside Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 The Corresponding Legal Measures of Qing Government . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 10 11 11 18 24 33 40

3 Inter-law: Consular Jurisdiction and Modern Judicial Operation in China . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 3.1 “Extraterritoriality” and “Consular Jurisdiction”: Overview . . . . . . . 43 3.2 Evolvement of Consular Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 45 3.3 Contents of the Consular Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . 68 3.3.1 Jurisdiction Competence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 3.3.2 Foreign Courts in Modern China . . . . . . . . . . . . . . . . . . . . . . . 77 3.4 Special Institution of Consular Jurisdiction . . . . . . . . . . . . . . . . . . . . . 82 3.4.1 The Joint Hearing Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 3.4.2 Dongqing Railway Foreign Affairs General Bureau . . . . . . . 93 3.5 Epilogue: A Fresh Research on the Pedigree of Consular Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 4 Institutional Constraints and Innovations: The Adjudicative Bureaus (Fashenju) in Late Qing China . . . . . . . . . . . . . . . . . . . . . . . . . . 103 4.1 The Origin of Fashenju . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

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Contents

4.1.1 Interaction Between People and System: Emperor Jiaqing’s Lift of the Ban on Capital Appeals and its Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 The Accumulation of Cases and Solutions . . . . . . . . . . . . . . . 4.1.3 Discussion with the “Common Phenomena” Approach . . . . 4.2 Interweaving and Broken Clues: Fashenju Establishment at Large . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Deep Internal Conflicts of Fashenju . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A Study on the Execution of Spots in the Late Qing . . . . . . . . . . . . . . . . 5.1 Origin of Execution on the Spot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Implementation of “Execution on the Spot” . . . . . . . . . . . . . . . . . . . . 5.2.1 From the 3rd Year of Xianfeng to the 2nd Year of Tongzhi’s Reign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 From the 2nd Year of Tongzhi to the 8th Year of Guangxu’s Reign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Debates on Execution on the Spot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4 Reasons Why Execution on the Spot Could Not be Abolished in Late Qing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Understanding Execution on the Spot by Legtimacy . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Painting and Photography in Foreigners’ Construction of an Image of Qing Dynasty Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 The Painters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 George Henry Mason’s Punishments of China . . . . . . . . . . . . 6.1.2 William Alexander’s Paintings . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.3 Thomas Allom’s Engravings . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Photographers: Thomson and Saunders . . . . . . . . . . . . . . . . . . . . 6.3 The Photos of Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Re-examination of Abolishing Consular Jurisdiction as the Start of Law Modification in Late Qing . . . . . . . . . . . . . . . . . . . . . 7.1 The Commencement of Law Reform in Late Qing . . . . . . . . . . . . . . . 7.2 The Origin of Article 12 of the Sino-British Commercial Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Influence of Robert Hart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 A Further Expansion of View . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Further Discussions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104 107 109 114 119 127 129 129 137 139 147 153 163 174 180 183 183 183 193 199 203 210 217 219 220 223 227 233 238 238

8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 258 Chinese Personal Name Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Chapter 1

Introduction

People follow fashions and innovations, but they seldom look back on history. For scholars specializing in modern section laws, research on the history of law is a waste of time. Western legal proverb has it that new law should provide for future actions, not for the past (omnis nova constitutio futuris formam imponere debet, non praeteritis). Law definitely set its aim in the future, but how can history be an exception? George Orwell1 (1903–1950) says that “He who controls the past, controls the future. He who controls the present, controls the past.” History gains most of its meanings from the past, but history exists for today. Daxue, a Chinese classic, says that things have big features and details, events have points of departure and endings, if we know the come and go of them, then we are approaching Tao. Sometimes, tracing all the way back is also a strong march forward. Historical studies take the strategy of falling back before taking a step forward, analyzing the past to predict the future. When our spirit is liberated from a routine life, a transcendental and tolerant mentality emerges for us to examine the appearances and inner secrets of a question, its causes and its influence. When Confucius was old, he returned to Lu Kingdom and compiled six classics; this anecdote demonstrates the meaning of ‘falling back’. Toynbee in The Growths of Civilizations has proposed “withdrawal and return”, which can illuminate the meaning of ‘withdrawal and setting the net’, or ‘retreat for more insights’.”2 Si Maqian’s historical studies were a totally “new history” in his lifetime, not only did he establish a stronghold for jizhuanti (纪传体) in traditional historical studies, but he advocated “penetrating changes through the past and the present, and fuse them in a doctrine of your own” as a guiding principle for historical studies, which fits well with the current French Annales School. Although Fernand Braudel’s “global history” breaks down disciplinary barriers, it is not a comprehensive history that includes politics, economy, military actions, etc., but another platform closely related to a long-period theory, it also targets the perspective of time; therefore, it is a historical view involving an interaction of the past and 1 2

This is Eric Arthur Blair’s pseduonym. Yu (1995), p. 62.

© China Renmin University Press 2021 Z. Shiming, Law, Resources and Time-Space Constructing, https://doi.org/10.1007/978-981-16-8055-7_1

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the present. The founding father of the Annales School, Bloch proposed a famous formula “understand the past through the present, understand the present through the past” (Comprendre le présent par le passé, comprendre le passé par le presént), following that short description of “general historical studies”, which is a precise explanation of the tenet of “general historical studies”, most people do not understand the significance due to their neglect. Current studies of China are often influenced by west centralism either consciously or subconsciously, and there is a risk of losing the true characteristics of Chinese historical tradition. People often worship Benedetto Croce (1866–1952) and his doctrine that “All history is contemporary history”. Most historical works approach is a retrospection of people in modern society, which is a “rewinding of movies” involving argumentation based on reversed inferences rather than a “normal play of the movies”. Therefore, overgeneralized views of historical evolution abound, ignoring various possibilities for evolution right there and then taking the present conjectures for the original intentions in the past, either consciously or unconsciously, result in incompatible judgments by views and values far removed from the right there. What I mean here by the term “general history” is a bidirectional, interactive, interviewing approach of historical examination in terms of time and space, it is aimed at discovery of history from inside China while maintaining a global view, which sees the past from the present while approaching the present from the past, both “seeing each other without detest and rejection”. Isaiah Berlin (1909–1997) wisely expressed this: to see the past in the future and the future in the past. The Qing dynasty was the last dynasty in Chinese history, and the basic national situation, which we today describe as “a large land rich in resources and a large population”, was formed in the Qing dynasty. This can be shown by two facts: one is that the Qing dynasty is nearest to the present, and the other is that its influence on modern China is the greatest. The details can be found as follows: (1) in the 27th year of Qianlong’s reign, the Chinese population was over 200 million for the first time, which doubled to 400 million during Daoguang’s reign, which gives the saying that “we have 400 million compatriots”, “a large population” as an internationally recognized national fact is closely related with Qing dynasty; (2) During the reigns of Kangxi, Yongzheng and Qianlong feudal separatist regimes were removed by force and a united nation state was formed. The national situation of “a large land rich in resources” has much to do with the settled historical domain formed in the Qing dynasty. We have a theoretical reason for not saying that the domain of the People’s Republic is inherited from the National Republic. In addition, scholars and common people long relate Confucian culture to our traditional culture, but 60% of the territory of modern China is inhabited by frontier minorities. In terms of space, in addition to the Confucian culture circle, we must acknowledge the coexistence of Tibetan Buddhist cultural circles and Islamic cultural circles. The “cultural China” is diverse. Especially under the policy of “keep the religious beliefs and customs intact, keep the politics consistent without changes to the appropriate measures (修 修其教不 易其俗, 齐其政不易其宜)” of the Qing empire, the diversity in culture and politics is a self-evident fact. Similar to Paul A. Cohen, who advocates a “China-centered history” while opposing a “Europe-centered history”, the Chinese law history circle

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used to be more vulnerable to the influence of “central land Han nationality-centered history”, the so-called “Zhonghua legal system” usually did not mention the existence of the Islamic legal system in China, and what Shimadamasao calls the “Mongolian legal system” was also ignored. The time range for this book is from the mid-eighteenth century until the early twentieth century, and the game in the judicatory field constitutes the main body of this book. The abrupt separation of the history of the Qing dynasty before and after the 1840 Opium War with modern history tends to cause many popular drawbacks. In terms of time, the academic circle of the mainland and even Taiwan constructed two concepts of “Qing history” and “modern Chinese history”, whose time limits are very interesting. Regardless of books or papers, the Qing judicial system is always described as a copy of the system formed before Kangxi, Yongzhen and Qianlong, with a reform of law near the end of the Qing dynasty; thus, the ever-evolving judicial system of Qing is not a panoramic picture. This is actually a shallow idea in the research of the evolution of the judicial system in the Qing dynasty. I always stick to a complete and consistent view of the evolution of the judicial system in Qing dynasty as a whole, for which an examination of the internal logic for changes in that system, especially the continuous changes after Qianlong, I believe that from the maturation of the judicial system in Qianlong’s reign to the changes of laws in late Qing, the changes still come in succession, to sum up, there are six big changes: (1) Banfang (班 班房) emerged in the late Qianlong period; (2) The opening of capital appeals (京 京控) early in Jiaqing’s reign; (3) Consular jurisdiction was established during Daoguang’s reign; (4) The execution on the spot (就 就地正法) was started in Daoguang and Xianfeng periods; (5) The introduction of fashenju (发 发审局, an interrogatory court) occurred during Tongzhi’s reign; (6) Late in Guangxu’s reign, banishment was abolished, and reforms were made for prisons. Continuous changes occurred in the judicial system after Qianlong’s reign. Case reviews and transfers were regular in the past, but Jiaqing opened capital appeals, which shows an extension of the central government. Daoguang started execution on the spot. This is a transfer of power from the central government to local governments, which shows that a disorder in the judicial system itself moved out of the framework of Qianlong’s reign. Fashenju is also called the “general bureau” (zongju总 总局) or “judicial bureau” (yanju谳 谳局). It specializes in reviewing cases in a province, fall interrogations and other judicial affairs, very similar to the modern “provincial high court”, and it is a demonstration of modernization and professionalization of the judicial system. In the reform of the judicial system in late Qing, provincial courts were established suddenly, and Fashenju naturally became a judicial resource for local governments. In the past, people did not have a comprehensive understanding of these large changes. This book is expected to be an individual academic contribution to the discussion of the internal logic for the evolution of the judicial system in the Qing dynasty. This book regards resources as a key variant in the research of legal space. Since the mid-eighteenth century, due to population inflation and scarcity in resources, the establishment of heir only existed in form, but the true meaning was different; to a large extent, it became a necessary measure for the retirement of the aged, while maintaining sacrifice to ancestors became less important so that the combination

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of ancestors was stipulated in the Great Qing Code with Substatutes (大清律例) during Qianlong’s reign. After the middle part of the Qing dynasty, according to the natural extension of the logic for the judicial field, population growth led to a lack of resources, an increase in cases, and long-delayed cases, and the prisons were certainly crowded. Local prisons were usually small in the Qing dynasty. During the Qianlong and Jiaqing periods, whether criminals for fall interrogations should be detained in provincial prisons or turning back to county prisons was a difficult decision. It is obvious that limitations of authoritarian resources and collocation resources became a real problem. Prisons were not enough so that public buildings were gradually used for detainment. Law scholars worldwide often criticize traditional Chinese law focusing on criminal law while ignoring civil law in terms of legal culture. They do not know that in the premodern period, Western countries also did not have a strict separation of criminal law and civil law. This situation can be explained in part by the insufficiency of allocation resources and authoritarian resources in traditional societies. According to Anthony Giddens, traditional society lies in existential contradiction. The limitations in the capacity for drawing up under a rigid fiscal system and the scarcity of authoritarian resources made Qing Empire’s judicial resource allocation deem only murders and criminal cases as key cases, while civil affairs such as marriage, land and debt disputes as trifles and unconsciously favor low-cost criminal case measures in dealing with civil cases, which leads to the criminalization of civil cases or broadening of criminal cases. As Terada pointed out, to peacefully coexist with limited resources, sometimes there was no way out but by the tolerance of the social members themselves. In the Qing dynasty, a county magistrate had limited resources available; he could not frequently use state power for a population of hundreds of thousands. Since magistrates come and go, the local gentry always stays with the local people. Magistrates see things at a distance, while local gentries know things intimately. Gentry has its local authority; in addition, they have familiarity with local affairs, so they gained control of organizations such as clans, local armed forces, schools and public departments. Therefore, social power (Soziale Macht) came into being based on actual reputation rather than on legitimacy. County government must rely on the power network of local gentries to rule the county; local business must rely on the participation and cooperation of local gentries, sometimes gently substituting county magistrates in administration. Since it is a long-term custom, besides the emphasis on key cases like murders and criminal cases due to a lack of judicial resources and the neglect of civil cases as trifles, district and county magistrates usually did not have enough people and resources to investigate all cases, many civil cases like marriages, land and debt disputes were delivered to local gentry for treatment, only when both the plaintiff and the defendant were not satisfied would the cases be reinterrogated, to save the administrative and judicial resources. Especially after the middle period of the Qing dynasty, a large number of cases overwhelmed the county yamen, since the county yamen was limited in the capacity for dealing with cases. Although the delay of a lawsuit settlement was required to be settled within deadlines, the basic situation remained; the existing lawsuit system faced a structural risk of falling invalid. Settlements of cases were

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usually far away, which could not provide any remedy for the suffered, but raising the costs for court decisions, the legal actions became a nightmare. In this situation, the transfer of civil cases to local gentries is obviously outsourced, and the delay is shortened. One of the key features of traditional Chinese law lies in well-developed collective responsibility (or the related responsibility system). One is the system to implicate others related to the one charged or found guilty (连 连坐制度); the other is the Community Self-defense System (保 保甲制度). China is rightly deemed the country that relied most on this instrument with the widest range, longest time, harshest in the measure of the collective responsibility system. Guan Zhong and Shang Yang carried out reforms to overcome the bottleneck challenge of the lack of control power and information asymmetry in an integrated country. In traditional agricultural societies, relatives and neighbors see each other everyday, the asymmetry in the distribution of information is obvious for insiders and outsiders, the frequent communication of insiders makes the interpersonal distance in terms of time and place very small, while the government as an outsider controller cannot obtain much information. The neighborhood administrative system and the implicating system became effective measures for a small government with limited information to control a large country. The supervising power executed by people who have low costs in getting information saves much costs, therefore slack and unorganized people can be precisely organized in a certain number and form, they observe each other when they are at home or going out together, thus a systematic political institution is built for a supervision by the people, to realize an effective social control, the information costs caused by the large territory, small government scale, small number of officials can be reduced. The Qing government continued using this efficient social control network, promoting “the patriarchal management of a large family”, to save limited administrative resources. Magistrates in the Qing dynasty positively advocated various kinds of mediations, and the principle of “having more mediations to reduce lawsuits” was constantly held, not only due to moral instructions by the Confucian ideal of simple administration and light criminal punishment but also due to a lack of judicial and administrative resources. In local communities, disputes concerning marriages, land, debts were not investigated by officials if not accused, and folk self-adjustments and mediations were encouraged. Even if charges were brought to the government, the government would ask clansmen to mediate and save lawsuits. Therefore, in practice, most disputes were solved in large families or neighborhoods before carrying out legal procedures, the disputes brought to the government were a small portion of the disputes, official judicial resources were greatly saved, and the costs for solving disputes were reduced. Su Yongqin, a Taiwanese scholar, emphasizes the compatibility between territory and the design of the legal system in his study of economic laws. I deeply agree to this point. According to Henri Lefebvr, social reality does not become a space by accident, it does not exist “in” it, it is a space as a precondition and in an ontological sense, there is never a social reality which is not spatial, and there is never a social process which is nonspatial. I have a deep feeling that in studying Chinese laws and economic issues, the space of China as a “big country” is usually neglected, only as a background without a close examination, its deep influence on various social

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levels are not treated well. This is because China had a “united” political picture very early in history. China was a superlarge country in ancient world history. This situation was quite different from west Europe at that time with many small countries, but the administration of a large country is different from that of a small country. There is an ancient Chinese saying, “Rule a big country the way you cook small fish”. Since a large country is large in space, the coverage and radiating area of its political and legal influence is much larger than that of a small country. The “magnification effect” is very strong, and a small and inconsiderate change or stir in the law may smash the small fish in the wok; therefore, Chinese rulers of all dynasties were trying to apply an ideal rule focusing on stability and consistency. The key social aim is to keep “the world peaceful, and the administration long and stable”. A stable and harmonious society has been the target rulers of all dynasties tried to realize, and the feats and faults of the rulers can be judged by the stability or the disorder they produced. The production and maintenance of the political space for a large country certainly has obvious returns, and probably the social costs can be reduced to some degree or to some extent, but the costs for it are also quite large. Since there were not enough economic resources available, ancient Chinese laws usually exhibited a feature of “repression” defined by Philip Selznick. The extension of criminal cases is very common, civil cases were punished as criminal cases, and the distinction between the two is difficult, which constitutes what people usually criticize as having the impression of dictatorship or power concentration. On the other hand, since social resources were short for maintaining large country institutions, the politics had to be simple and succinct, it was hard to reach the large society of commoners; therefore, the impression of free rule was formed. As Lin Gang points out, “the social transformations of a superlarge country have its unique process, the historical circle did not pay due attention to this point. The superlarge scale of a country may lead to a series of problems; for example, today, we are certain that this process took a very long time. If the modernization of Japan had a timetable measured in the unit of a year, the timetable for the Chinese modernization should be measured in terms of decades”. In the modernization process, it was easy for small countries to make the shift. The modernization of China went through a very difficult and long process in the transformation due to the large size. Prof. Gibert Rozman at Princeton University collaborated with Thomas P. Bernstein and Cyril Edwin Black, etc. In writing the book The Modernization of China (New York: The Free Press, 1962), in which the authors believe that the pride of the Chinese people in its national culture and the leading position of Chinese civilization in the world development, the large territory and a large population, and the tradition of a united and relatively concentrated administration, etc. is good for its modernization. However, we should also see that on the other hand, the superlarge space requires more time for Chinese modernization. Yin Haiguang, in his Prospect of Chinese Culture, carried out an analysis of the reasons for the failure of the Political Reform (bian fa wei xin) movement propelled by Kang Youwei: “Kang Youwei craved for an immediate success, he lacked a historical sense, and regarded things as too simple. He said to Emperor Guangxu: ‘the charter and regulations for the change of law have been complete. If your majesty is determined, you can adopt them, only the

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promotion of them takes time. Western countries pursued this for 300 years and they achieved a stable rule by them, Japan took 30 years to realize its strength, our country is large in territory and population, if we change the rule of law in 3 years, we can be independent; later we will grow stronger day by day and prosperous enough to dominate many countries. ‘I don’t know what is Kang Youwei’s reasoning. A smaller country such as Japan needs a change of ‘30 years to be strong’, while China only takes 3 years. Not to mention that Guangxu was not a strong emperor, even if he was strong as Kangxi, the Great Emperor William, he is an Emperor Peter, having such an ‘old and large empire’, in 3 years’ time the reform cannot be made. The longer is the train, the harder can it start running”.3 As Yin Haiguang is good at logic and empirically analytical philosophy, he thinks the time for reform proposed by Kang Youwei is short and impossible. It is exactly due to the large territory of China, after 1840s, China became a target of predators by European and American countries in their far east policies, the countries that were modernized earlier regarded China as a profitable interest to be shared by them, thus Japan received a relatively smaller pressure of invasion for its smaller territory; therefore many diplomatic historians reach a conclusion that Japan realized its independence and modernization at the cost of India and China. Yodayoshiie, a Japanese scholar, thinks that since Japan had a much smaller territory than China and was surrounded by oceans, the means of transportation during the mid-Edo period facilitated the formation of a unified market. While China is a large inland territory, the means of transportation then had difficulty forming a unified market; therefore, China lacked a key precondition for modernization. The weakening of the Qing central government and the strengthening of local governments led to wars between local warlords after the Xinhai revolution. After World War I, shipping in coastal areas and inland rivers and railways developed in China; thus, a unified market was formed in China as a key precondition of modernization.4 From this, we can see that the modernization of a large country takes a much longer time than that of a small country. People use legal rules in the game of access to resources, and the legal rules change in the process of the game. The dominant Chinese circle of law regards rights and obligations as two basic categories for legal studies; of course, there is nothing wrong in this view, but some drawbacks are also thus caused. The present serious disjoint between legal theories and departmental laws is caused by this. In a global view, the concepts of rights and obligations in modern Western law are not developed in some communities in some special dimensions of time and space; legal regulations are but a plan for the distribution of resources. In my view, to explore deeper, rights and obligations are not meta-categories for legal studies, but two aspects of legal regulations, at least legal regulations, are relatively more inclusive. Since law studies have legal regulations as the target of examination, they include not only the ontology of the content for regulations for the configuration of rights and obligations but also the values and reasons for such norms. Research on legal phenomena in terms of more basic and universal issues, such as the evolution 3 4

Yin (2002), p. 422. Yoda (2003), pp. 342–343, p. 412.

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1 Introduction

of resources and regulations, certainly facilitates communication among separate schools of law theories and departments of law. To be general, basic concepts such as rules, resources, time and space are issues restricted to a certain discipline, and they can form a platform for dialog among law, economics, sociology and even natural sciences. The configuration of resources concerns not only efficiency but also justice. As a study of norms, the study of law is an independent discipline rather than a supplement to other disciplines. The research on resources can be a breakthrough for the new historical law methodology advocated in this book. After the approach of structure-functionalism was frustrated, disciplines of sociology, etc. also attempt a perfect combination of individual persons and the social structure. In this book, my research route is a combination of law and history, to make what is seen as too much normalized discipline of law to be historicalized, the focus is shifted from institutions to the motivation in the establishment of institutions, to persons in the institutions, the operators of the institutions, in an opener and more cautious historical scrutiny over a long period, having this as a joint road connecting individual persons to social structures, connecting a micro view to a macro view, and shed light on the manipulation of hidden regulations. Seen from an individual, we can find that both Chinese and Western laws deem the image of a person mainly as a “middle person” (a normal person on the middle level) as a stereotype in the design of law, he is not a perfect moral person, he is usually not a purely “bad guy” (or a little person) in opposition to a man of honor, or a mentally disabled person (therefore incompetent in legal terms). Chinese usually say law must be constant according to the normal conditions of a person. From this individual person, various regulations are formed, recognized, applied and created when he is in contact with another person. For example, in a traditional acquaintance society, in addition to family laws, a person enters into economic transactions with a person outside the family or a relatively stranger in the same family. In China, traditionally, there is a “middleman” (a mediator person) as a transitional institutional arrangement for the person to enter a wider social space. In addition to the amateur mediators for civil contracts, the existence of many broker houses (ya hang) is another arrangement for mediations and deputy in institutions; they are only more professional and more conventional. The Chinese government focuses on the administration of such broker houses because this institutional arrangement is key to the gradual spread of an individual person into the market as a space for his activities. Therefore, in this sense, new historical law has the tendency toward an overall history. As to law, this kind of research is a subversion of the traditional mode that sees law as an embodiment and a tool of the ruling class and replaces it with a new two-way interactive mode based on interpersonal interactions. In addition, this great revolution makes what has been seen as a dynamic law (living law) in a constant personal condition, a personal living style (mode of living) both commonplace and sacred, having an appeal to attempts to re-establish the values of law. That is, law acquires its legitimacy only when it embodies the interests of the commoners. The various representation parliamentary systems have the basis here for the framework arrangement, the reason for the integration of the values of law, the norms of law, and the practice of law lies in this.

1 Introduction

9

Xuanzang’s long pilgrim to obtain Buddhist bibles from West Paradise shows that a deep faith outweighs adversities on the journey, and a profound pursuit makes a dream true. Jules Henri Poincaré, a French scientist (1854–1912), has a famous saying: “Doubt everything or believe everything, these are all very expedient solutions. Both tempt us only to jerry-build the edifice of our research.”5 Academic discussions expose any popular discourse or pundits to criticism and challenges they deserve. Scholars ever want to make their conclusions “ultimately fixed conclusions”, which is an inclination for “despotism”. In fact, conclusions are not the most important. Academic affairs are of public interest; only when we have the coexistence of different schools, adopting approaches from different perspectives, can we make academic progress, we should have no illusions, no rejections, no bigotry, no self-concerns, and we should do discussions such as cutting, grinding, carving and polishing to make them gradually perfect. Just as Wang Fuzhi says, one’s own view should not be trusted by oneself, “and taken it as the one single view and become a thief of Tao”, no more than “importune people to follow one’s own view”.6 Hou Wailu’s academic method is worthy of our observance. He always stays away from making ultimate judgments of ancient people, for the achievements of precursors, he does not agree or disagree without serious second thoughts, he pursues his own new conclusions in the mentality of “challenge one’s own view like attacking a heresy”. Doing academic work is actually paying a debt for a crime, even if you want to sit the prison floor out, but after you finish this long term in the purgatory, you still find it impossible to pay off that debt. Because during this period you make new pen crimes, the historical judgment on the way is to be made by scholars to come, therefore you have nothing like the feeling of achievement, but rather a sense of awe that makes you feel you are treading on thin ice, full of awe and trepidations. Writings are subject to testing in a long history, and the merits and demerits are held in the author’s small heart. A friend that appreciates me keenly knows what awe I have in my heart, others do not know what I am after. The understandings may be varied, and the appreciation and depreciations are just beyond my concerns. This book is actually a summary for my personal endeavor over seventeen years. During the seventeen years, I spared no time for leisure, I wrote in sultry heat and freezing cold, the adversity is hard to express. This book may have ideas that are abrupt, thinking that is careless, expressions that are intricate, or exposing to censures, but I must admit I value the masterpiece of my own on the way to maturation, I want to add the light of a light of a firefly to make it shine more brightly. Scholars doing academic work may be diverse in the views they admire; certainly, it is right for them not to give in when they find no good reasons to do so. While I feel hesitant, I am also full of self-respect and self-confidence. So readers may make their comments at will, I will not take such comments as offence, I feel no regret and shame to acknowledge them. When you climb a high mountain, you will find a still higher mountain, when you sail to a big sea you will find an even bigger ocean. Doing academic work is like what says in The Doctrine of the Mean: “ask questions and learn on your journey”, 5 6

Ooki (2004), p. 168. Wang (1936), p. 667.

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1 Introduction

this is the gist of “tao”. All academic achievements are but “on the way” (auf-demWege-sein). Here, I just want to put a comma, rather than a period, we should expect what Hou Wailu calls “a resilient pursuit”.

References Ooki, M. (2004). Comparation of Legal Ideas East and West. Beijing University Press. Wang, F. (1936). Reflections on Zizhitongjian, the last volume, general comment 4 (p. 667). The Commercial Press Bookstore. Yin, H. (2002). Prospect of Chinese Culture. Shanghai Sanlian Bookstore. Yoda, Y. (2003). Modern Japan and China: The Comparative Study of Japanese and Chinese Modernization. Yuandong Press. Yu, Y. (1995). Modern Notes on Traditional Chinese Thinking. Jiangsu People’s Press.

Chapter 2

Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

Even today, expressions such as “zuo ban fang” (be in jail), “dun jian yu” (be imprisoned), etc. are still commonly used in Chinese daily language and frequently appear on news media. Ordinary people tend to take “banfang” for prison. The authoritative Dictionary of Etymology1 thus explains “banfang” as “a prison where criminals are put in custody”. If we take a close examination of the origin, we can find many ambiguities in the explanation. Banfang, also known as banguan, referred to the facility illegally established by local magistrates for keeping minor misdemeanants and relevant witnesses; it was not the state prison, and it lasted from the late Ming until the end of Qing dynasty. The contemporaries called this kind of facility by many names, for example, chaiguan, yaguan, qiafang, bianminfang, zixinsuo, houzhisuo, zhiguoting, zhigeting, zhonggongsuo, all these names meant the same thing.

2.1 Forms of Banguan Originally, banfang referred to dorm for yamen officials or servants at magnates’ families who were on duty shifts. The dorm for such workers on shifts was called banfang, and the name remained from Ming to Qing. In Chapter 51 of Cao Xueqin’s A Dream of Red Mansions, a doctor was invited to see Qingwen, “he sat down in the banfang (gatehouse) used by the pages on duty to make out his prescription2 ”. Here, banfang means the dorm for servants on duty at magnates’ families. In the reigns of Tongzhi and Guangxu, the Qing government issued many commands concerning the renovation of the banfang at Tiananmen, the lack of people on duty in banfangs at

1 2

Dictionary of Etymology (1989), p. 1114. Cao and Gao (2004), p. 698.

© China Renmin University Press 2021 Z. Shiming, Law, Resources and Time-Space Constructing, https://doi.org/10.1007/978-981-16-8055-7_2

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Wumen and Duanmen due to the absence and delay of officers and soldiers on duty there.3 The meaning of banfang, transited from the house for officials and bailiffs on duty to the detention place for misdemeanors or witnesses involved, the transition actually is a spatial reconstruction which combined a continuum and a fracture, thus the semantic reconstruction of the word “banfang” was accomplished. Such a semantic reconstruction of Banfang was due to the inflation and aberration of the power resources held by officials. In 1730 (the 8th year of Yongzheng’s reign), intelligent Yongzheng scolded senior officials in some provinces for their incapability to curb subordinates’ wrongdoings. He pointed out that the clerks and bailiffs under provincial leaders were “divided into the interior and external banfangs by name. The interior banfang was responsible for cases, the external banfang was responsible for communicating messages, and they worked together in wrongdoings and bullies. If they received bribes, felonies would be changed to misdemeanors; otherwise, they just created difficulties for the affair.”4 What Yongzheng meant by “banfang” here is not the usual place for detaining the suspects, but the transitory feature of clerks staying at banfang and abuses of law by cooking verdicts is very clear and vivid. The internal organization of prefecture and county yamen in the Qing dynasty had “six rooms and three shifts” (六 六房三班). “Six rooms” referred to six classes of clerks responsible for the administration of civil officials, revenue, rites, military affairs, punishments, and craftsmen, while “three shifts” referred to three groups of yamen runners, i.e., yamen runners, able-bodied men and quick policemen. We usually say that yamen runners worked at the yamen, the quick policemen arrested culprits, and the able-bodied men ran errands, the quick policemen were classified into two kinds, i.e., footmen and horsemen. However, expressions like “six rooms of clerks” and “three shifts of yamen runners” were just general expressions, county yamen also had many employees, e.g., chengfafang (the receipt and distribution office), zhaofang (office of deposition), jianfang (office of correspondence), kufang (treasury office), in addition, there were usually also mending (doormen), jinzu (jailors), yanchai (salt business runners), liangchai (grain collectors), wenpo (women jailors) and guanmei (governmental women supervisors for female detainees). Banfang, as a detainment place for suspects and witnesses before trials, existed mostly in prefectural or county yamen in Qing dynasty, but not all of them originated from the rest houses for the 3 shifts of yamen runners, and yamen superior to county yamen might also had such places, it was even probable that in the beginning banfang at superior yamen might have set example for the establishment of banguan in prefectural and county yamen, but the former was not noticed only because contemporaries did not pay attention to them. In the 3rd year of Qianlong’s reign (1738), Su Linbo, a censor, reported to the throne that the Board of Punishment had “criminals and witnesses that should 3

Veritable Records of Tongzhi (1960–1970), Vol. 34, the seventh lunar month of the 1st year of Tongzhi’s reign, p. 866; Veritable Records of Guangxu (1960–1970), Vol. 94, the fifth lunar month of the 5th year of Guangxu’s reign, p. 857. 4 Veritable Records of Yongzheng (1960–1970), Vol. 92, March of the 8th year of Yongzheng’s reign, pp. 1407, 1408.

2.1 Forms of Banguan

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be bailed out detained by Wardens’ Departments and Ward-inspecting Censors of Five Wards (五 五城司坊), and such people were detained in a place called banfang or pufang, which were usually shabby, crowded and wet.”5 This report revealed the deaths of detainees without guarantors in banfang by the Board of Punishment. This reminds us that in the exploration for the origin of Banfang, a pure view of the lower yamen might be insufficient. The event time of dynasty transition cannot be a wedge cutting off the continuous flow of time in the natural sense. The earliest time for the emergence of Banfang as a detainment place was far beyond our exploration, but it was certain that the Qing dynasty succeeded it from the Ming dynasty. This phenomenon, as a heterogeneous but parallel space to legal prisons, had its own origin. According to the 361st volume of Long Draft of the Continuation of the Zizhi tongjian, in the eleventh lunar month of the 8th year of Yuanfeng in Shenzong’s reign in Song dynasty (1085), the emperor issued a decree prohibiting privately established “xiang yu 厢狱” (wingroom prisons). Zhezong of the Song dynasty also issued similar prohibition decrees.6 Hamashima Atsutoshi, a Japanese scholar, in papers such as “Prisons in Southeast Provinces in Late Ming”,7 reached a conclusion for his research: since there were numerous tenant farmers’ anti-rent disturbances in late Ming, litigations sharply increased, and the existing prisons were full, new places for the custody of criminals appeared commonly in prefectures and counties that were called “pu” or “cang”. Pu is “di pu 递铺”, also known as “ji di pu 急递铺”, and the name varies according to time or place; it first appeared in some places in the late Tang dynasty. In the Ming dynasty, at pu there were soldiers responsible for delivering official documents, but local magistrates as the supervisors sometimes assigned those soldiers tasks of public security affairs like arresting thieves, etc., even some offenders of slight crimes or witnesses were watched by such soldiers, and at that time post stations and di pu had prisoners doing corvée labor, and there were post soldiers watching prisoners and cells for detaining prisoners, so the station gradually became also a place for detainment, therefore Qing government issued many orders prohibiting private establishments of illegal detainment places, such as cang, pu, and banguan, etc.8 In or around local yamen there used to be changpingcang, guancang, xuecang, jiageku, linjiku, etc. During the Ming and Qing dynasties, the guards of the cang received orders from magistrates and detained registered household occupants who did not pay taxes or grains on time and forced them to pay; gradually, it became truly a private prison. In addition to judicial activities, the collection of money and grains was another key duty of magistrates of prefectures and counties, and their achievements were scored by this. Magistrates managed to keep their official positions, they did this themselves or he ordered money-grain assistants or clerks to summon default 5

First Historical Archives of China (2003). Lu (1986), Vol. 477, the renwu day of the eleventh lunar month of the 7th year of Yuanyou’s reign, p. 11354. 7 See Hamashima (1984), pp. 473–486. 8 See Zhou Qingyuan. Qingyushengxingshu, in He (1972), Vol. 93, xingzheng 4, zhiyu 1, Modern Chinese Historical Materials Series, Book 74, 731, pp. 3314, 3315. 6

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2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

registered occupants or superintendants pressing the payments. This is an ordinary phenomenon. During Kangxi’s reign, Huang Liuhong said in The Complete Book Concerning Happiness and Benevolence that “in fear that people resisting payment may escape before payoff, they have to be detained, only they must be live in cang (granary).”9 Taking Qing dynasty as an example, the east side rooms of the county yamen were for departments of civil office, revenue and rites, commonly known as “dongsi 东司” (east office), while the west side rooms of the county yamen were for departments of military affairs, punishments, craftsmen, etc., commonly known as “xisi 西司” (west office). Although the departments had separate duties, they often cooperated and helped each other in pressing payments from common people, beating and intimidations and abuse of punishments were usually used in pressing the payment of taxes and grains. Prisons were similar to storerooms for keeping people, which were dark and small and usually very humid; therefore, prisons were also called “cangs”. If money and grains could not be turned into cangs on time, the default people were always detained in the “human cang” and tortured. Fanxie 饭歇 referred to the place where people ate and rested. As a consumptive public space, “fanxie” is usually a field for the gathering of various social powers, relations, information and conflicts. Fanxie was connected to a wide social relation network, similar to teahouses and restaurants in the Ming and Qing dynasties. People from all trades and professions gathered here became a special space for mediating conflicts, deciding right and wrong, and settling disputes beyond the governmental judicial system. Lao She (a famous Chinese writer) in his Tea House vividly described the historical custom in traditional society.10 Even when Western law civilization was introduced in concessions at Shanghai in late Qing, in tea houses next to such new courts, “chijiangcha 吃讲茶” (drink tea for confessions) was very popular, for example, when detectives caught thieves or suspects and interrogated them, when gangsters negotiated before fleecing their victims, or when quarrelsome fighters wanted to set things straight, and so on, all such things should be settled at a tea house, they called this “chahui shangqu” (going to a tea meeting). This tradition is long in ancient China. The so-called “chashiren 茶食人” (tea-drinking men) in the Song dynasty must have a connection to this. During the Ming and Qing dynasties, the heads of 3 shifts of yamen runners and important bailiffs often sat in tea houses near the yamen to relax or inquire about social information or to obtain certain valuable clues from intelligencers. They were often invited at consumptive places such as fanxie near yamen to mediate complex connections. By law, the bailiffs and clerks were “not on official payrolls” who lived on meager gongshiyin (wage); they were happy to attend such free meals and took this as a symbol of their popularity and capability. Huang Liuhong said in his The Complete Book Concerning Happiness and Benevolence that “when countryside people went to the city for lawsuits, they always stayed at xiejia 歇家 (rest home). The xiejia either undertook litigations or made money from lawsuits. When I first came to be the magistrate, I entered or exit the yamen. I found that there were many restaurants with good dishes and exquisite food, 9

Huang (1997), Vol. 13, xingmingbujianjin, p. 359. See Lao She. Tea House, Act 1, in Wu (1997), Compilation 15, drama, Vol. 1, p. 466.

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and people often drank there. At first, I believed that local people must be epicures, so I inquired about it, and I was told that the owners of such restaurants were powerful magnates. Whenever there were lawsuits among countryside people, both the accuser and the accused must stay there. Hotels and restaurants in or around the city dared not let them stay lest the magnate would be unhappy. In addition to these restaurants, the countryside people had no place to stay.”11 In Qing dynasty the transportation was not as easy as it is today, the trials at yamen were not independent and public as in modern democratic societies, “going to court” actually became “a competition of connections”, powerful local families having strong social connections were capable of manipulating lawsuits, and the fanxie with a color of monopoly became an agent for lawsuits and a curb market of law outside the yamen and courts.12 From the litigation archives of Huangyan county in Zhejiang Province compiled by Tian Tao et al., we find that in late Qing on the heads of the written complaints of Huangyan district there were blanks printed to fill in with items like “complain letter writers, xiejia, guarantors”, etc., the fixed column names are very interesting, but xiejia cannot be the residence of the accuser or the accused, since the items complain letter writers, xiejia, guarantors and original bailiffs shared the same position on the written complaint, to the left there was another place for writing the name, age and residence of the accuser, and many written complaints’ “xiejia” column was filled with “restaurant”, obviously common peasants could not live in expensive restaurants, some were filled with names like “Ye Zhengfeng” and “Lin Jizhong”, etc.,13 and it is obvious that the residence could not be a person’s name, some were directly filled with “benkou奔 奔叩”, for example, For the case No. 50 on the 3rd day of the first lunar month in the 11th year of Guangxu’s reign, the complaint letter presented by Zhang Panshi for another interrogation of her step-son was an example,14 if it meant residence, then it is ethically unreasonable. In some areas during the Ming and Qing dynasties, written complaints were required to indicate the name of xiejia, mainly because if the yamen summoned the accuser or the accused, they could arrive quickly, xiejia were entrusted by governments to keep the agent of the accused and were often the bail of litigants. If a comparative analysis is made of the Huangyan form of written complaints newly discovered and the form during Xianfeng’s reign kept in the archives of Danxi county in Taiwan Province, we can be clear that the residence of the accuser certainly was not the meaning of “xiejia”. This kind of fanxie as a social legal ecology in the specific space-time background of Qing had been developing for long before losing its original intentions, its power grew bigger and bigger, in some regions it had grown to be an impediment rather than a bridge between the government and the people in legal activities. The spatial characteristics and functions of Fanxie dissimilated with the shift in judicial power. Fanxie 11

Huang (1997), Vol. 11, xingmingbu, p. 335. Collections of Hunan Provincial Substatutes, Vol. 10, xinglv·susong, the edition kept at The Institute of Oriental Culture, Tokyo University. Quoted from Susumu Fuma. The Litigation Masterss and Lawsuit System of Ming and Qing, in Shuzo et al. (1998), p. 424. 13 Tian et al. (2004),Book 1, Huangyan lawsuit archives, p. 305, 286. 14 Tian et al. (2004), Book 1, Huangyan lawsuit archives, p. 302. 12

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was originally built for accommodations and consumers, but now it virtually became a highly profitable restaurant run by brigands, while bloody evidence of brigands’ prisons and private jails emerged.15 The Qing government reiterated the prohibition of putting people waiting for trials into prisons, while fanxie undertaking litigations naturally colluded with bailiffs and shysters, and such restaurants became the choice facility for bailing out and waiting for trials. In 1740 (the 5th year of Qianlong’s reign), Qianlong approved a tentative rule prepared by the Board of Punishment, it was provided that when criminals deserving floggings were to sent back to ancestral homes in prefectures or counties, the trial yamen at the committing place should not punish them first and send them back under escort, on the documents for transferring of the criminals it should be noted with the names of crime and declared that they were “not appropriate for imprisonment”, the escort relay counties on the way should let the criminals stay at fangdian (坊店) at night, abuse of imprisonment was prohibited.16 The emperor’s instruction explicitly allowed the custody in fangdian, and imprisonment was not advocated on the way, while according to The Great Qing Code, for the people taken in, summoned, and witnesses, if their residing place were within 15 li from the city, they were regarded as “come upon summon 传唤即到”, beyond 15 li, they were regarded as “coming under escort 拘留到达”, since bailiffs were usually skillful in distorting legal policies and rules, it was not checked that they made fanxie as the place for bailing out and waiting for trials or interrogations. Since people to be interrogated and tried staying in this kind of baoyadian 保押店 (hotels for custody under bail) were guarded and monitored by bailiffs, the restaurants were also called chaidaiguandian 差带官店 (officially assigned hotels under bailiffs’ supervision), ganliandian 干连店 (hotels for people involved in cases), etc. In many places, bailiffs and clerks even opened their own fanxie. Fujian Provincial Substatutes claimed that one of the corruptions by clerks and bailiffs was “establishing private hotels and shops for detaining people, and large sums of money were exploited in selling food at exorbitant prices”.17 Liu Heng, in his Catechism Questions and Answers of Sichuan Officials, also said that “restaurants seem not banfang, but restaurant owners also cooperate with bailiffs, or they are bailiffs themselves, when litigants and witnesses stay there, bailiffs bully them at will, they are ordered to sit or sleep under hot sun or cold windy places, or water is poured on the floor, or dirty things like urine buckets and shift jars are put near criminals’ mouths or noses, meals are not provided on time but when criminals beg for them out of hunger and thirst, and the price soars dozens of times over normal price, even one hundred coins cannot buy a bowl of rice, and dozens of coins cannot buy a cup of water. Bailiffs and shop owners enjoy wines and meat and play drinking games. All the costs and supplies of oil and rice are provided by criminals’ following orders and contribute donations. If criminals’ relatives come with meals for them, bailiffs secretly encourage other 15

See Qing Dynasty Jiangxi Surveillance Commission (1871–1908), Vol. 36, p. 26. Yan et al. (1887), Vol. 2, fengsu, p. 9. 16 Veritable Records of Qianlong (1960–1970), Vol. 119, the sixth lunar month of the 5th year of Qianlong’s reign, p. 1800. 17 Fujian Provincial Substatutes (1987), p. 891.

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fierce prisoners to rob the meals, and good people cannot get food at all. In 3 or 5 days, tens of thousands of coins are exacted at will; if not satisfied, criminals will suffer tortures. When trials are over and the criminal is set free, bailiffs will probably still detain the criminals in secret, or follow the criminals to their homes and demand more money until they are satisfied.”18 Since bailiffs became sinister gangs and fanxie became dark prisons, people detained became savagely oppressed by bailiffs; they had to suffer injustice in these actual prisons without names of a prison. In the 7th year of Tongzhi’s reign (1868), the first article in the Shanghai Foreign Settlement Joint-trial Officials’ Regulation signed by Qing government with consuls of Britain, the U.S.A. and other countries provided that a public office equipped with fanxie shall be established.19 The joint hearing tribunal established in foreign concessions in Shanghai was actually a delegate organ of Shanghai county yamen, the chief official had a rank only of tongzhi (subprefectural magistrate), who was responsible only for criminal cases and debt cases deserving punishments slighter than cangues and floggings, therefore the fanxie established for the joint hearing tribunal according to this regulation with a consideration of its rank and purview, it was designed after the customary judicial institutions of county yamen, dominated by the idea that civilian cases should be treated different from criminal ones and in a humanistic way, the legitimization of fanxie was conducted in a way of antinomies. The spatial features and functions of kafang 卡房 (checkpost house) changed frequently with time and region. Kafang mainly referred to the sentry box responsible for social security and control of smuggling. Back then, curfew was imposed in cities at night, fences were built at gates of streets or blocks, pedestrians must accept interrogations of the kafang (sentry box) before entering or leaving a block. The soldiers of green camps and bowmen of county patrol forces were armed police forces for social security, who established ka (toll gates) to watch over key passes, and the detaining of suspects in Kafang was natural. In the 53rd year of Qianlong’s reign (1788), the population exploded at that time, the number of judicial cases multiplied, xun dao (circuit intendants) played a more important role in judicial administration and supervision of subordinate governments, moreover Qianlong was angry with cases wherein criminals fled from prisons or fled on journeys of delivery, so that the xundao stationed at Chongqing ordered subordinate county magistrates to build kafang for detaining criminals under delivery at places where the distance between two adjacent prisons could not be covered in a day’s journey. In the archives of Baxian County, there are documents such as reports and maps concerning the building of Kafang according to orders of the superior official at Chongqing.20 This kind of informal prison called “Kafang” easily caused negative consequences. In the 28th year of Daoguang’s reign (1848), Zhang Jixin, the surveillance commissioner (anchashi) of Sichuan, described a sad situation of kafang in Sichuan, he said that: in big counties, hundreds of people are detained in kafang on average, in small counties, there are dozens of detainees, even that witnesses for slight cases such as disputes 18

Liu Heng, Catechism Questions and Answers of Sichuan Officials, in Sheng (1972), p. 4623. Lu (1986), p. 90. 20 See Sichuan Province Archive (1991), p. 54. 19

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concerning family affairs, marriage, land and debts are also detained there, everyday a bowl of porridge is provided, and they are always kept in darkness, the sufferings are hundreds of times of those in prisons, in the province the annual deaths in detainment are no less than one or two thousands. Therefore, Zhang Jixin strictly ordered all counties in the province: all witnesses for ordinary lawsuits should be released on bail immediately; all kafang should be removed; later, if kafang is built in private, the responsible official will be seriously impeached. The long-lasting private detainment in Kafang in Sichuan Province could not be eliminated easily by a command of Zhang Jixin, and Zhang Jixin had been the Surveillance Commissioner of Sichuan for only one year and lived in his office just like in a hotel en route, while from the central government to provincial and county governments, all officials tended to use harsh punishments since the bandits in Sichuan ran amuck and people could not live in peace; therefore, they inevitably acquired private detainment in Kafang in Sichuan. In the 20th year of Guangxu’s reign (1894), Tan Jixun reported to the emperor about his investigation about the deaths of detainees in Kafang during the period when Liu Bingzhang was the governor of Sichuan.21 From this, we can see that the detaining of people in Kafang in Sichuan Province was still serious. Qiafang and Banfang are vernacular names in different regions. Liu Heng had worked as a private secretary of officials or as an official himself in Shannxi and Sichuan. He had a rich experience in judicial affairs and a deep knowledge of law. In his book entitled Catechism among Sichuan Officials, he said that the so-called banfang was called zixinsuo (自 自 新所) in Jiangsu, Jiangxi and Zhejiang, kafang in Sichuan, and jihousuo (羁 羁候所) in Guangdong.

2.2 Reflections in Different Kinds of Historical Documents and Materials Existing historical records concerning banguans are mainly written after the reigns of Jiaqing and Daoguang. This is partly due to the decline of Qing government, administration of officials who were corrupt since the prosperous and peaceful reigns of Kangxi, Yongzheng and Qianlong, when the superficial prosperity was taken off, the rusts and corruptions of the entire ruling machine were completely disclosed, illicit banguan were exuberating despite prohibitions. After Jiaqing’s reign, capital appeals were no longer forbidden in law, so the distribution of historical records in this pattern actually has much to do with this ban-lifting policy. At that time, accusations of dark illicit banguans in provinces made a considerable proportion of capital appeal cases. A typical case of capital appeals is kept at the imperial palace museum in Taiwan in a monthly package of files of the Qing Privy Council. The appeal was made by Chen Leshan, a student, by purchase from Fengdu County in Sichuan Province. Chen Leshan was banished to serve in the army in Taihu county, Anhui province, due to a lawsuit. In the 14th year of Daoguang’s reign (1834), 21

Zhu (1958), the 2nd lunar month of the 20th year of Guangxu’s reign, p. 3354.

2.2 Reflections in Different Kinds …

19

after absconding into the capital from Taihu County, he sent a report at the gate of palace and asked the emperor to order all provincial counties to remove captors and their outposts, to prohibit private punishments and show pity on the life of people. In his report, Chen said that: the number of criminals executed in an annual capital punishment in autumn assize was at most 3–4 hundreds, which was as slight as in ancient merciful dynasties, but county police was not prudent about capital punishments, captors’ outposts were privately established, and tens of thousands of wronged people were killed annually. This was because bailiffs and bandits were in collusion with each other.22 The report had a detailed description of lynches such as “ducking into water” (鸭 鸭儿扑水), “earth-lifting bows” (搬 搬地弓), “smoke-emitting lamp” (放 放烟灯), “putting cards on table” (放 放牌), etc. The captors in Sichuan, Hunan and Hubei had various cruel lynches to bully others and exact money. Since Chen was an ill-educated intellectual in the underclass, the narration in the first half was not detailed enough, but the disclosure of cruel lynches in Kafang in the latter half was very convincing.23 Another important source of information for the Qing central government about banguans was reports made to the emperor by censors whose duty was to impeach corrupt officials and their disclosure of evil conduct. Different from Chen’s liferisking appeal at the capital as a criminal, the disclosure of the people’s opinions and impeachments of corrupt officials were duties of judicial supervising organizations. All Qing emperors encouraged supervisory officials to be bold in expressing their views to know more information, slanderous gossips were allowed in their reports, even if they were not facts, and impeachments were not true. Most mistakes were to be tolerated or only slightly punished. After the reigns of Jiaqing and Daoguang, reports and impeachment materials sent to the emperor by supervisory officials revealed the private establishments of banguan in many places. For example, after mid-Qing, it was common for establishments of illicit banfang in counties of Hubei and Hunan; many wronged people went to the capital for appeals. In the 24th year of Jiaqing’s reign (1819), Yuan Xi, a censor, reported to the emperor that “there are banfang in counties of Jiangxia, Hanyang of Hubei province. The banfang of Hanyang County is called dong lang and xi lang (east porch and west porch). If witnesses are summoned, they are first detained in restaurant (fandian), when bailiffs fail in exacting money from them, the bailiffs will collude with gate porters to detain them in dong lang and xi lang, where detainees will not be released without paying heavy bribery.”24 Jiaqing ordered Qing Bao, the Privy Council director, to carry out immediate investigations and elimination of such banfang, the quick policemen and bailiffs who abused detainment and exacted bribery should be punished by law. In the seventh lunar month of the 14th year of Daoguang’s reign (1834), someone impeached Ling xiu, the county magistrate of Xiangtan County, Hunan Province, for his corruption during his previous tenure as magistrate of Longyang County. Once there were cases 22

Zhuang (1983), p. 143. Ibid. p.145. 24 Veritable Records of Jiaqing (1960–1970), Vol. 365, the twelfth lunar month of the 24th year of Jiaqing’s reign, p. 5366. 23

20

2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

of land, money, murders and thefts, he would extort bribery, innocent people were detained in banfang and were extorted money before releasing them.25 Different from the information about abuse of detainment in banfang in the “complaint-style texts” in capital appeal cases, the supervisory officials presented information about banfang, which was usually not from their personal observations; therefore, the reports were usually not detailed. For the supreme ruler of Qing, such information was merely warnings for correcting the activities of the judicial system. This kind of second-hand report to the throne was an “impeachment-style text” restricted by the common mode of discourse, which often left room for provincial governors–general and governors to make easy excuses by deception concerning the existence of banfang in their provinces. The Qing government had a unique supervision of information in contrast with previous dynasties. The invention of the zuozhe system (奏 奏折, memorial to the throne) was significant for the emperor to control and supervise judicial activities across the nation while living in the palace. Regular routines of collective reports or memorials might be formal, but they were also necessary as a legal procedure in the monitoring of information concerning judicial activities. After the suppression of the uprising led by Lin Shuangwen in Taiwan, Qianlong knew that illicit banfang was established in counties of Taiwan to extort bribery from people, so he ordered governors–general and governors to strictly command judicial yamen to elminiate and prohibit banfang for ever, to avoid corruption and demerits, if it was discovered that bailiffs were allowed to establish banguan, not only such local magistrates would be punished severely, their superiors would also be punished together without tolerance, whether this malpractice existed or not would be reported at the end of each year to the emperor.26 The Qing government demanded provinces to present an annual collective report by the end of each year concerning the illicit establishment of banfang and instruments of torture. It was not only aimed at doing a routine acquisition of relevant information but also making provincial governors-general and governors to give their written guarantees, which were both precautions and evidence for denouncing their malpractices when such duties were neglected in the future. In the Qing system of memorials to the throne, provincial governors-general and governors had the privilege of presenting memorials to the throne about things without verified evidence, and like zuodu yushi (left censor-in-chief) of the duchayuan (the Censorate), Provincial governors-general and governors were also popularly known as “xiantai 宪台” (senior censors), so they were different from county magistrates who worked with common people, they were responsible for the discipline and supervision of subordinate officials. However, when supervisory officials presented memorials to the throne about the cruel treatment of people by banfang in a province without sound proofs, the provincial governors-general and governors would always belittle the matter and prevaricate that the report was just a rumor. The provincial 25

See Veritable Records of Daoguang (1960–1970), Vol. 254, the seventh lunar month of the 14th year of Daoguang’s reign, pp. 4551, 4552. 26 See Veritable Records of Qianlong (1960–1970), Vol. 1312, the ninth lunar month of the 53rd year of Qianlong’s reign, p. 19397.

2.2 Reflections in Different Kinds …

21

network of officials was quite close, and superiors and subordinates shielded each other; over the years, the umbrella network became gradually impregnable. Since county magistrates and their superiors were punished together for their mistakes or for lack of supervision, since governors-general and governors were responsible for supervision and disciplining of officials, they also had implicative duties that could not be shunned, all officials shared common interests and punishments, so governorsgeneral and governors considered protection of subordinates as showing mercy and befriending collegues. Therefore, governors-general and governors would not carefully investigate the contents of impeachment without certain evidence. Especially after the reigns of Jiaqing and Daoguang, the state affairs were full of warnings, the personal authority of emperors was far less than that of Kangxi, Yongzheng and Qianlong, now emperors were hard to cope with many unprecedented conflicts and thorny problems in time, therefore after getting informed by reports about the bad situation of banguan in provinces, the emperors mostly threatened officials with empty words rather than serious punishments, provincial governors-general and governors were apt to know the emperor’s intentions and they responded to the emperor’s warnings with false stories, and thus censors made impeachments again and again, the emperor issued warnings again and again, but the accumulated evil custom remained. At the end of the 9th year of Jiaqing’s reign (1804), Na Yancheng became the governor general of Guangdong, and shortly before this, Bai Ling also exchanged his position as governor of Guangxi with Sun Yuting, the former governor of Guangdong. The mobilization system of officials disintegrated the network of officials in Guangdong Province. Na Yancheng and Bai Ling took this opportunity to investigate privately established banguans to dimiss disloyal officials, to establish their achievements in their posts and to show their authority. In the sixth leap lunar month of the next year, Na Yancheng, Bai Ling made a joint report to the throne that: local magistrates established illicit banguan, which was against the law, but there were too many criminal cases in Guangdong, the people to be detained in the provincial capital were numerous, which should be dealt with after getting decisions from the superior officials in charge and think of ways of detaining such people, but there were 3 banguans and 50 banguans privately established by bailiffs in Nanhai county. In Fanyu County, there was one daihousuo 带候所 (waiting custody station), and 12 banguans established privately by bailiffs. Evil bailiffs equipped banguans with wooden fences, and blockages were set around them, those people who refused to pay bribery were detained there, just like in illegal prisons. Therefore, innocent people were put in custody and many of them died there, women criminals who were not tried yet were kept by guanmei, and called them nvguan 女馆 (banguan for women). If there were young women, guanmei even forced them to prostitute for money, the county magistrate took no actions against this.27 Na Yancheng and Bai Ling impeached and demanded the dismissal of Wang Shi, the magistrate of Nanhai County, and Zhao Xingwu, the magistrate of Fanyu County. Jiaqing thought this punishment was slight, he ordered the dismissal of the two magistrates and exiling 27

See Veritable Records of Jiaqing (1960–1970), Vol. 146, the sixth lunar month of the 10th year of Jiaqing’s reign, p. 2096.

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2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

for penal servitude in Yili, Xinjiang, and he charged that former governors-general and governors, Wo Shibu, Hu Tuli and Sun Yuting were ignorant of such illegal things as puppets. The emperor instructed Na Yancheng and Bai Ling to investigate the start time of illicit banguan in the two counties and who was in office at that time, the negligence of previous county magistrates and superiors should be reported to the emperor. In this case, banguan malpractice was discovered by the emperor mainly because of the gap exposed in the struggle of power among officials. In the fourth lunar month of the 14th year of Daoguang (1834), illegal abuse of detainees in illicit banguans in counties in Guangdong was reported to the emperor. This report was rare among similar reports in its accuracy with inside details of banguan, it was absolutely different from general accusations made with secondhand information in impeachment documents.28 This report to the throne was so vivid in description of banguans in Guangdong, it is reasonable that Daoguang should be very angry and took immediate actions to investigate and deal with it. However, the emperor’s decree had a very soft tone, he just said that private banguans were against law, there were many cases arising in Guangdong, so this misdeed was very serious there, if the report was true, and common people were wronged by illegal things, this was a very hateful thing, the governor of Guangdong should investigate carefully and all such banguans should be destroyed and should not be rebuilt. Soon after that, the governor of Guangdong reported to the emperor that there were no banguans in Guangdong, and he suggested constructions of other prisons to detain bandits and thieves, who should not be detained in dwellings of bailiffs. The governor evaded the point and talked about other things; he strongly denied the existence of banguans in Guangdong. As words are also an instrument of power, the emperor’s decrees were also restricted by the power system framework of the central government and local governments, senior provincial officials such as governors-general and governors were awarded with power with duties, there must be what is called “costs of agents” and “asymmetry of information” in institutional economics, in governors-general and governors’ reports the phrasing and methods to their own advantage were used to control and filter the information to report to the emperor, thus the truth of banguan becomes a subtle ghost not readily captured in the government documents, just as Huang Renyu pointed out, “mathematical management” was surely no easy thing. At that time, provincial governors-general and governors were in constant contact with local magistrates of counties, they were quite familiar with the banguans in counties of their provinces, but they often turned a blind eye to this phenomenon, the information about banguans were revealed more in their documents or letters to their subordinates than in their reports to the emperor. In the 6th year of Tongzhi (1867), Ding Richang was promoted to be the provincial administration commissioner of Jiangsu Province and the governor of Jiangsu a year later. Jiangsu was a densely populated province, there were many cases, and during the Taiping Rebellion, the local magistrates had to focus on raising money and provisions for military suppression, therefore judicial affairs were neglected, so after the war, numerous cases were 28

See Veritable Records of Daoguang (1960–1970), Vol. 251, the fourth lunar month of the 14th year of Daoguang’s reign, pp. 4483, 4484.

2.2 Reflections in Different Kinds …

23

accumulated, and prisons were full of criminals, the cases remained unsettled for a long time, even for slight disputes like debts and quarrels, parties involved originally would not be detained in banguans, but now they were detained for years no matter the offence was serious or not. This was still official detainment. Meanwhile, due to collusion of family servants and bailiffs, even those innocent people having nothing to do with cases were still detained privately after trials, there were many such cases. Therefore, Ding Richang claimed that banguans were oubliettes for extortion. After he took office, he did a lot to put things straight. By settling cases such as clearing tax disputes, regulations were made to eliminate causes of malpractice. He ordered county magistrates to present monthly briefs of lawsuit summaries in four-column inventories and namelists of detainees for his reviews. The lawsuit summaries were classified into 2 kinds: appeals and cases tried by themselves. The namelists of detainees were classified into 3 kinds, i.e., those in prisons, those imprisoned outside, and those held in custody. For each kind, there were 4 columns, i.e., previous, new, released and existing.29 Ding Richang paid much effort in clearing cases; he was famous for intelligence and diligence, and he even appointed people to check secretly whether the reports presented by neighboring local magistrates were true or not. It was remarked that when he was the governor of Jiangsu, “local magistrates worked at high pressure constantly as if the governor was with them”.30 On the other hand, just as a folk saying goes, although you are a morally lofty official unpolluted as clean water, your inferior officials must be still treacherous and slippery as oil. Eventually, detainment in private banguans was not eliminated in the counties of Jiangsu.31 In terms of time, early descriptions about banguans can be observed in diaries and novels written during Qianlong’s reign. Ji Yun was fond of jotting down strange things, in his Yueweicaotang Diaries, he related a story happened the 4th year of Yongzheng’s reign (1726), a head bailiff of Xianxian county, Hejian prefecture of Zhili, gained an immediate blessing for his stopping other bailiffs’ attempts to rape the wife of a criminal detained in a “guandian 官店” (official hotel). Li Luyuan, the author of Qiludeng (Lamp at Wrong Road), was born in the 46th year of Kangxi’s reign (1707) and died in the 55th year of Qianlong’s reign (1790); his life spanned almost the eighteenth century. The historical background of Qiludeng is claimed by the author to be that of the Ming dynasty, but the people and the events depicted are actually those of contemporaries during the reigns of Kangxi, Yongzheng and Qianlong. The novel can be seen as an elaborate social genre painting for China in the eighteenth century. The 30th chapter of the novel narrates the story below. Mao Baru, the boss of a theatrical troupe, is cunning in denying a debt, he blackmails Tan Shaowen for stealing the costumes in a box of props, and the bailiff has to bring Ma Baru to banfang for the night. The novel Live Hell by Li Boyuan, a famous novelist in late Qing who was influenced by the Western law system and criticized the corruption and dark side 29

Ding (1969), Vol. 2, p. 176. Ding (1969), Vol. 30, p. 938. 31 Ding (1969), Vol. 34, pp. 1046, 1047. 30

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of Qing judicial authorities to promote judicial reforms, provides us with valuable text for the analysis of banguans in the late Qing dynasty. Live Hell starts with the loss of an ox by a land renter of Lord Huang (a landlord named Huang), and thus a dispute arose between him and a landlord named Wu, and a lawsuit was brought to the court out of anger. By a flowing rhythm, the novelist gradually and vividly described the detainment in private banfang by cunning bailiffs. Huang Sheng, a servant of Lord Huang, and Wang Xiaosan, a tenant of Lord Huang, were put into banfang by Shi Xiangquan, a head bailiff, to extort money. Mo Shiren (meaning “inhuman”), the assistant bailiff in charge of Banfang, fastened the iron chain circling on the necks of Huang Sheng and Wang Xiaosan to the wooden fence. Huang Sheng and Wang Xiaosan were tired but could not lie down: “in their nostrils, they smelled a foul smell, they did not know why at first, later he noticed a pissing jar close to them inside the fence after hearing a pissing sound, all criminals pissed there. In the beginning it was still tolerable, later when evening set in, they felt hungry, and the smell became gradually intolerable, now and then they felt sick.”32 The novelist’s account is not fictional, since it is quite similar to the description in a famous report to the emperor made by Yang Fuzhen, a censor, about banguan in the seventh lunar month of the 21st year of Guangxu’s reign (1895).33 Yang’s report was given to the Board of Punishment for discussion, and it was made public in newspapers, which aroused a wide sympathy influence among officials and common people. In Zheng Guangying’s book Shengshiweiyan (Warnings in a Prosperous Time), there was an article of reflections on this report. It was probable that Li Boyuan knew this report in Shanghai. In a comparative study of novels and official records, the descriptions and intentions were different, but different texts shed light on banguans in the Qing dynasty, the hell in this world. In this aspect, both descriptions are “shedding joint beams into the same truth”, as said in the Buddhist Sutra, and the cross-lighting makes the truth richer with reflections.

2.3 The Shortage of Resources and the Shaping of Space Outside Law The relation between resources and legal rules deserves a close examination for jurists now. Traditionally, the expansion of banguans in Qing was often explained by moral corruption of bailiffs and laziness of officials, which caused the accumulation of many cases and the procrastination of detainment for years. This explanation is not only short of support from facts but also biased; it is virtually a refurbished version of contemporaries in Qing. Restricted by the situation at that time, Qing contemporaries were afraid to squarely offend Manchu supreme rulers’ wary nerve while lacking a rearview advantage to take in the true panorama; moreover, this view was not surprising when people despised petty officials and bailiffs. Condemnation of 32 33

Ibid. p. 15. Zhu (1958), the seventh lunar month of the 21st year of Guangxu’s reign, p. 3648.

2.3 The Shortage of Resources and the Shaping of Space Outside Law

25

lazy officials and greedy bailiffs in the moral court was not actually academic analysis in the strict sense. After mid Qing, there were numerous documents and cases, which was not only due to laziness of county magistrates as repeatedly denounced by supreme Qing rulers but also due to escalation in competition for resources caused by explosion of population after mid Qing. Even if it was true that county magistrates were lazy, the accumulation of cases, ipso facto, was irrefutable evidence for the increase in cases. With an increased population, the room for survival was compressed, competitions for resources led many plaintiffs, defendants and witnesses were involved in the whirlpool of lawsuits, while some deadbeats became shysters and raised the devil in the judicial field to make profits, and other interest groups like clans tried to maintain a concentration of resources, they supported from behind or even directly engaged in such affairs, so that cunning ones good at lawsuits, pestering lawsuits and vicious lawsuits stormed yamen, this was a key reason for prolonged detainment of people in banguans. When lawsuits increased and accumulated for long, there had to be endless appeals and capital appeals, which were reviewed and returned to yamen in original provinces. Since these appellants were different from convicted criminals, they were often detained. Under these cases, it was unavoidable that some petty officials having power resources of legally doing harm to others had detainment as a means of revenge with a hidden intent. Qing officials often emphasized “appeasing of lawsuits 息讼” to “get rid of lawsuits 无讼”, fixed dates were set for presentation of charges and limitation articles were set to forbid lawsuits, these measures were conceived to save the social resources like time and money wasted in the process. After mid Qing the exploded population caused increase of lawsuits, so bailiffs had many opportunities to profit from banguan in this situation, therefore when investigating banguans a Qing official said that “quarrels are inevitable among common people for this or that conflict, which are truly most pestering, magistrates should control bailiffs, cases should be settled on time, so that both officials and common people will not be troubled by this.”34 Since the population was huge, there must be good and bad people. The traditional view adopted a simplified stereotype of banguan as a systematic instrument of torturing people used by officials and bailiffs, while in fact some cunning people also took advantage of the rules of the game in detainment in banguans. The evil ones usually first brought anticipative lawsuits against others, they aimed at making charges rather than investigations and trials, and prolonging a case rather than settling it, which catered to the bad bailiffs’ corruption, those clerks and petty officials worked in collusion with them and demanded the accused for a reconciliation, if the accused was reluctant to pay fees he would be put into banfang immediately. Since detainment of people and suspects related to manslaughter and robbery cases was taken as natural by local magistrates, in some places where such cases happened, some evil people considered these cases a precious opportunity to implicate rich families for fleecing and inculpating.35 Due to the fierce competition for allocative resources, penniless 34

Fujian Provincial Substatutes (1987), “Abuses of bailiffs and extortion should be prohibited, and only one bailiff should be assigned for one subpoena”, p. 951. 35 Chen (1983), p. 79.

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2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

knaves took their lack of property as an advantage for doing extreme vices; they also used banguans as an aggressive weapon to profit from damaging others. With the explosion of the population, many lazy vagrants stole things and picked quarrels to upset neighborhoods, so banguans called “fresh-start stations” (zixinsuo 自新所) were built in many places. A story told by Gao Qingshu serves our point of departure for an examination of common people’s spatial imaginations about banguans, which were usually kept “silent” in official records and archives. The story goes like this: when Gao first took a position at Luan County and looked up the register of detainees, there were 129 detainees in all, they were fed by porridge, Gao asked his colleagues to check the list of detainees, those key people in big cases should still be detained, while those people in minor cases should not be detained but bailed out or scolded and released. Meanwhile, Gao appointed a date for a get-together of town criers and headmen three days later. When a dozen detainees were released, those gents crowded the court and clamored that if those detainees were released, they would trouble local communities.36 This situation was not a unique accident at that time. In the 13th year of Qianlong’s reign (1748), Weng Zao, Surveillance Commissioner of Jiangsu province, presented a memo to the throne concerning the grain ration for detainees in zixinsuo, in the memo he said that the grain ration was taken from donation of local magistrates, last year since the donation was not enough, so some detainees were released, but soon there were more thieves in towns, local magistrates were ordered to capture them, who were mostly those criminals released, so they were detained again by the name list, the community became peaceful again.37 According to the natural sequence of expansion in the ecological chain of the judicial field, there were 4 links, i.e., the explosion in population, pressure on resources, increase of lawsuits, and accumulation of delayed cases; hence, crowdedness in prisons was necessary as a result. Most local prisons in the Qing dynasty were small. During the reign of Qianlong and Jiaqing, whether the criminals convicted in autumn assizes should be kept in provincial prisons or to turn them back to prisons in their home counties became an unsettled problem, which clearly demonstrated the limitedness of authoritative resources and allocative resources. In the framework of rigid fiscal budget, the limited size of local prisons and lack of renovations for a long period were no surprise. In the 13th year of Guangxu’s reign (1887), officials of Hengchun county in Taiwan province reported that Hengchun had been made a county for over 10 years, but no judges appointed or prisons built. Since there were more urgent affairs to do, “all criminals of manslaughter cases are detained in the office left to the court hall.”38 A shortage of prison facilities led to the use of office rooms as places of detainment, and banguans were thus started. Prisoners had grain rations for them, while detainees in banguans had to rely on their relatives for provisions, local governments had no costs in that, and according to the research made by Japanese scholars in The Administration Law of Qing, regular payments by detainees in banguans were an

36

Wu (1966), Vol. 2, p. 375. First Historical Archives of China (2003). 38 Tu (1960), Vol. 2, jianshu, p. 66. 37

2.3 The Shortage of Resources and the Shaping of Space Outside Law

27

important income for petty officials.39 Since the territory was large and prisons were small, county magistrates had to tolerate the existence of banguans called waigaun or waishi (external rooms), to some extent this was seen as an expediential solution to the lack of authoritative resources. South Taiwan Annals records that “bailiffs receive orders from the county magistrate, when criminals should be detained, they establish bantouguan班 班头馆 to detain them. Bantouguans were sometimes separately established by individual bans (squads), or by jointly by several squads.”40 Bantouguans had income paid by detainees, which was business with no costs, driven by profits numerous ways were found to earn money by detaining people. Early in the reign of Guangxu, Chen Yi, Yuan Chenye, two censors, together with Li Peijing, the governor of Guizhou, in succession, sent memos to the central government based on the report entitled “Cruelest Treatments of Common People Temporarily Detained” written by Tang Yongzhong during Daoguang’s reign, they suggested renovation of banfang into daizhigongsuo 待质公所 (public station for people waiting for interrogations), where the provisions of clothes and grains for detainees were provided as prisoners in prisons, but the emperor’s reply to Chen Yi and Yuan Chengye’s memos, respectively presented in the sixth lunar month and the twelfth lunar month of Guangxu’s reign only had a reiteration of stipulating deadlines for detainment and trials, while key issues such as the expenditures for detaining of people waiting for interrogations were unmentioned and unsettled, till Li Peijing’s memo to the throne presented in the second lunar month of the next year, provinces were ordered to raise money for the affair according to their own financial conditions, the key distinction between banguan and daizhigongsuo was whether there were provisions of clothes and grains, how the money should be raised was a key issue, the central government of Qing had a difficult financial situation, so the government had to be hesitant in making the decision. In addition to a rigid financial system, Qing’s bureaucratic system was also significantly rigid. In academic circles, there are two different views with internal tension between them. One view holds a high regard of the Qing dynasty’s despotism and its efficient and practical administration system, while the other view often criticizes the stagnation and fossilization of the Qing dynasty as a late despotic dynasty. Since Manchu was famous for pragmatism, and this had much to do with the emergence of textual research (puxue 朴学), the reserved practical style of Manchu made the good performance of its administrative system in practice subject to the disciplining of its officials, while the creations in organization and system did not play an important role in proportion. Efficient performance and stagnation coexisted; both were different facets in its rigid administration system in the Qing dynasty. Since Manchu, a nationality with a small population, ruled a large empire with many nationalities, Confucianism and Tibetan Buddhism, as symbolic resources, meant much to the ruling power, “the circle of pilgrims of Confucian scholars converted into officials through imperial exams” and “the circle of religious pilgrims of Tibetan Buddhist 39

Taiwan Government General’s the Provisional Council for the Investigation of Old Habits (1912), Vol. 5, p. 204. 40 Tamakichi (1934), p. 238.

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2 Between “Paper Law” and “Living Law”: Banfang in the Qing Dynasty

monks” were vital to maintain the unity of the gigantic empire. The tenure system and the challenge system for the administration of officials were effective measures for the Qing Empire to enhance its power control and its uniform government in time and space. There is an old saying that goes like below, “magistrates have no enfeoffments, but clerks have 官无封建, 而吏有封建”,41 there were transfers and promotions among the officials but there was no change among clerks. Since clerks were natives, they had many relatives and friends, so they were quite influential. In the sixth lunar month of the 11th year of Daoguang’s reign, the emperor told the Privy Council director and others that “recently the clerks and petty officials in Tingzhou, Longyan, Zhangzhou and Quanzhou were most arrogant, since local magistrates do not speak local language, they just listen to the free interpretation of clerks on duty, they were thus obviously deceived but ignorant of this. Bailiffs harm common people; for example, in Houguan County of Fujian Province, there is a temple of god of land (tuditang). When there are people to interrogate, they are detained there first. If they offer bribery, they are detained in a clean place; if they do not pay the amount extorted, they will be chained in a dirty and dark place. Tongan County and Jinjiang County have banguans, either plaintiffs or defendants are all detained, usually 8–9 hundreds people are detained, who cannot see the magistrates over 2 or 3 years, if it is very cold, many innocent people die”.42 The official personnel system was very strict in Qing dynasty, Kangxi, Yongzheng and Qianlong were serious in refuting requests for adding officials. Qu Tongzu, in Local Governments in China under the Ch’ing, succinctly pointed out that county governments at that time were “one-man governments”, county magistrates were in charge of all affairs like trials, agricultural affairs, aids to poor people, punishments of cunning and evil people, education affairs, etc., Qing dynasty had a strict rule that only officials in charge of the seal could accept charges form the people, but “magistrates must have yamen, magistrates must have clerks”,43 clerks were “the tool for magistrates, they are indispensable even for one day and one affair”44 ; “the sharing of the rule with clerks” was a complementary product of the rigid official personnel system in Qing dynasty. According to Pierre Bourdieu’s field theory, capital is seen both as an object to be striven for in the field and as a means of unfolding for the field; different kinds of capital can be exchanged. In the system in which good scholars could be officials, scholars spent many dreadful years studying classics, only to sell their knowledge to the emperors. Since officials were chosen through exams on Confucian classics, “their knowledge about punishments and writing legal documents are not learnt in normal times, how can they be skilled at criminal law and financial affairs immediately?”,45 moreover, “The Great Qing Code is easy to follow, but it is hard 41

Ye (1961), Vol. 14, lixu, p. 808. Veritable Records of Daoguang (1960–1970), Vol. 191, the sixth lunar month of the 11th year of Daoguang’s reign, p. 3454. 43 Chen Hongmo. Fenfazaiguanfajieluxi, in He (1972), Vol. 24, lizheng 10, lixu, Modern Chinese Historical Materials Series, Book 74, 731, p. 915. 44 He (1841), “Summary of Learning in Administration”, p. 24. 45 Tian (1868), “Prudent Employment of Aides”, p. 28. 42

2.3 The Shortage of Resources and the Shaping of Space Outside Law

29

to know about substatutes”,46 the inexperienced magistrates had to learn from clerks and follow their directions. During Kangxi’s reign, Lu Longqi frankly said that “our dynasty has 3 big troubles, i.e., substatutes, clerks and bribery.”47 In late Qing, Feng Guifen in his Straightforward Words from the Lodge of Early Chou Studies also listed “clerks” and “substatutes” as two disasters of the Qing government. The coexistence of substatutes and clerks vividly demonstrates the combination of performativity and activity in the structuration process of the judicial field of the Qing dynasty. Clerks relied on substatutes to guide magistrates, cooked documents to get bribery, and dug traps to befall people; they profited from lawsuits. Since the formal system of Qing did not provide enough, many scholars called this “power was not given below the county level”, it was from the numerous clerks that local common people sensed the state power, the existence of law. Clerks were not paid, but as Wang Huizu said in Bitter Prescriptions for Good Governance (Zuozhiyaoyan), “Mountaineers rely on the mountains, just like those by the waterside profit from water.” Some clerks made a living by following old bad conventions, “which cannot be prohibited or eliminated by formal laws”.48 Modern system economics firmly believes that there is nothing like free lunch. Guanzi, a famous ancient Chinese politician, once said that “people are conscious of morality and justice only when they have enough grains in barns”. Man cannot grudge money while wishing for a good administration of officials through upholding justice by annihilating desire for material gains. It was due to the rigid administrative system of Qing government and its unreasonable suppression of desire and parsimony in political and economic affairs, that propelled clerks by secret inner desires to gain gray incomes by bad conventions and even illegal black incomes, while the attraction of the profits from these formal and informal powers was irresistible, which gradually made posts of clerks as hereditary posts (shique, quedi), the substitution of these posts became popular as something to be deposited, sold or bought, or inherited, it became a scarce resource which could actually be transferred freely.49 In addition to these routine formal bailiffs, there were also bailiff assistants (bangyi 帮役) and volunteer bailiffs (baiyi 白役) who shared profits in this business. Clerks and bailiffs carried out rent-seeking activities by using authoritative resources as a bargaining chip in hand. Liu Heng, in his Ordinary Words of an Ordinary Official (Yongliyongyan), vividly provided a case: “When I was in Guangdong, I once saw the capture of an important criminal upon orders in a county. The bailiffs were selected, deadlines were set down, and the reward was 1000 yuan. When the criminal was captured and delivered to the county city within the deadline, the gate porter named Li ordered the bailiffs to detain the criminal at illicit banguan for the moment, then he told the county magistrate that ‘the criminal had escaped to a distant place, if the 46

Hu Linyi. To Zuo Jigao, in Ge (1972), Vol. 23, lizheng 8, moyou, Modern Chinese Historical Materials Series, Book 75, 741, p. 625. 47 Anonymous. Qing Dynasty’s Slips of Bamboo and Chips of Wood (Qingdaizhizhutoumuxie), in Men et al. (2006), p. 603. 48 Wang Huizu. Bitter Prescriptions for Good Governance ·Provincial Affairs, in Zhang (2005), p. 321. 49 For relevant studies see Kato (2000), pp. 34–50. Kato (2001), pp. 35–58.

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reward is 3000 yuan, he might be captured’. The magistrate had to promise 2000 yuan as a reward, but the criminal was still not captured. The magistrate wanted to check with the bailiffs, but the gate porter hid the bailiffs and asked for more time for capture. At last the magistrate had to pay 3000 yuan, and only then the criminal was turned over.”50 Since the local magistrates at that time had two chief duties, i.e., one was collecting taxes, the other was dealing with judicial affairs. There was close connection between the two. Both taxes and judicial affairs were closely related to the assessment of magistrates. Yan Ruoqu, a textual researcher in the Qing dynasty who focused on historical records, had deep insight into this canker; he claimed that “local magistrates are fearful of assessments, the difficult part of which is the pressing for collection of taxes. In the past magistrates were established to comfort people, and the pressing for tax was secondary; now it is reversed, the assessment focuses on the collection of tax, while the comforting of people is neglected.” He vividly described local magistrates pressing for tax as follows: “you just see them hurrying out at dawn when stars are still in the sky, and negotiating under candle, that is just for collecting tax and grains; you just see them checking the records carefully, while flopping subordinates and commoners, that is just for collecting tax and grains.”51 In some sense, the prosperous empire during the reigns of Kangxi, Yongzheng and Qianlong was merely a fairy story forged by such an urgent demand for tax and severe punishments for failures. During the tax-collection period, local magistrates would spend several days each month entirely on “bize 比责” (check records and punish those defaulters), and those bailiffs and people who failed to pay taxes or grain on time would be flogged. Since the central government was strict with local magistrates in their collection of tax or grains, which should be presented immediately, local magistrates had the name of “parentslike officials”, but under the control of assessments, only to complete the tax income task, all formal, justified and official rules could be ignored, they would not care if the local people were left in poverty in order to get promotions, just as parents of poor families tend to scold and beat their children more severely, so flogging and detaining their subjects in banfang became ordinary, while bailiffs sent to collect grain tax in villages hurried their duties, clamored and exacted the collection. The commoners were seized and driven just like sheep and dogs; they were detained in a place like hell.52 Even for a dutiful official such as Huang Liuhong who cared commoners, in The Complete Book Concerning Happiness and Benevolence, he also believed that it was necessary to detain those recalcitrant defaulters in banguans for tortures, which shows that he also had to do that, moreover, some clerks and bailiffs who could not collect tax on time were also flogged and detained in banfangs. In addition to collecting default tax, local magistrates detained people in banguans because 50

Liu (1997), pp. 184, 185. Yan Ruoqu. Local Magistrates (shouling), in He (1972), Vol. 15, lizheng 1, lilunshang, Modern Chinese Historical Materials Series, Book 74, 731, pp. 567, 568. 52 See Veritable Records of Xianfeng (1960–1970), Vol. 41, the eighth lunar month of the 1st year of Xianfeng’s reign, p. 540. Zhu (1958), the twelfth lunar month of the 1st year of Guangxu’s reign, p. 164. Veritable Records of Guangxu (1960–1970), Vol. 68, February of the 4th year of Guangxu’s reign, p. 611. 51

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coercion was used to compel the defendants to execute their obligations, which was “civil detainment 民事管收”, some parties were psychologically oppressed when they did not obey the verdicts, and some relatives were detained to force the criminals to surrender themselves to the court, and the like.53 Local magistrates in the Qing dynasty took detainment in banguans as a useful tool for collecting taxes; this is actually a symptom of outward strength and inward weakness, which reveals the lack of authoritative resources for a traditional rigid administrative system. From the perspective of legal culture, both international and domestic jurists tend to criticize traditional Chinese law for the overemphasis of criminal laws rather than civil laws and the confusion of the two kinds of laws. However, a strict distinction between the two kinds of laws was not found in premodern Western countries. This situation can be explained by insufficiency of allocative and authoritative resources in traditional societies. According to Anthony Giddens, traditional societies were faced with existential contradiction. Under a rigid fiscal system, the limitedness in drawing resources and shortage of authoritative resources forced Qing empire to focus judicial resources on murders and robbery cases rather than slight offences like revenue, marriage, land and debt, low-cost approaches to criminal cases were preferred in dealing with civil cases, which led to the criminalization of civil cases, just as Hiroaki Terada, a famous Japanese scholar on history of Chinese law, says “to coexist peacefully with limited resources, sometimes except individual patience and tolerance of all members of a society (each individual gives up part of their interest), there are no better solutions.”54 The Qing government was unprecedentedly centralized, for criminal cases deserving punishments above imprisonment, especially for manslaughter and robbery cases, much judicial and administrative resources were consumed in the level-by-level trial-and review system, strict deaths for trials and arrests were stipulated, legal responsibilities and robbery cases, much judicial and administrative resources were consumed in officials. In contrast, since self-managed lawsuits were not as important as criminal cases such as manslaughter and robbery in their assessments, local magistrates often did not pay much attention to them, so such cases could be postponed at will, so there was a popular saying that “local magistrates rarely have urgent trials to make”. While criminal cases such as manslaughter and robbery were of the most importance to the assessments of local magistrates, if suspects and witnesses were not complete and the proceedings of trials and reviews went beyond deadlines, who could be responsible for that? Therefore, there were things like banguans and detainment by bailiffs, clerks and bailiffs took this as excuses for extortion. The corruption was so serious that repeated reports and impeachment documents to the throne did not lead to demolition. An official who had once been a county magistrate said that “banfangs established in counties have been against law for long, but before the settlement of manslaughter and robber cases, … or defaulters of public or private debts, or first offenders of theft, such people should not be imprisoned but nobody would bail them out, how can they 53

Dai (1979), p. 656. Hiroaki Terada,“Rights and Wrongs: Proceedings and Civil Law Order in Qing Dynasty”, in Shuzo et al. (1998), p. 236.

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be left at large without any control?”55 If criminals could not be captured within deadlines, local magistrates certainly would be fined and punished, and in order to capture suspects in the extended time limit, local magistrates would be so anxious to the degree of craziness and folly that they would detain relatives of bailiffs in banguan as hostage for bailiffs to work hard in their capture. On the other hand, local magistrates’ neglect of self-managed lawsuits also caused the accumulation of many cases, so that “often hundreds of people were kept or detained in yamen, such people wasted their time and jobs, they would make the usurious loan, even sell houses, land, wives and children, they lived in misery beyond words.”56 Especially after mid-Qing, with an increasing number of candidate officials produced by the imperial examination system waiting for posts, a shortage of vacancies became increasingly serious in the rigid administrative system. The road on official career was congested; it was a dateless waiting, even if they got vacancies to be local magistrates, there were lots of impeachments and punishment assessments. Thus, local magistrates were often opportunists in their work; they spent much thought and time adulating superiors to secure personal gains, and they frequently paid respects to superiors and visited them day and night, all in an effort to get favor from superiors. The time geography set forth by Hägerstrand connects routine daily life and the status of survival as a kind of “biographical project”, emphasizing that movements in space are also movements in time, the “packing capacity” of time– space is limited, and the actors’ track of life has “to accommodate themselves under the pressures and the opportunities which follows from their common existence in terrestrial space and time”57 ; in biographical projects, only essentially limited resources in time and space can be used. Local magistrates’ devotion to adulating superiors will certainly lead to a shortage of energy and neglect of duties. In Qing dynasty, most banguans were in the provincial capital prefectures or counties, one key reason for this was that “the local magistrates of provincial capital counties are troubled by hustle and bustle, they usually go out before daybreak, and limited energy is spent in communications with superior officials.”58 Duplicity was characteristic of bureaucracy, for Qing officials, power was the only thing that they would revere, the inferiors were to abused, there was a saying about this, which goes like “bureaucrats only devote to plaster the ceiling”. Flattering superiors while abusing inferiors resulted in the accumulation of many overdue cases, and many people waiting in banguans for trials.

55

Wen (1879). Bao (1872), Vol. 31, p. 8. 57 Hägerstrand (1967), p. 332. 58 Chen Shuwen. “Letter 3 on How to be a County Magistrate (Darenwenzuolingdisanshu)”, in Sheng (1972), Vol. 25, lizheng 8, shouling 2, in Modern Chinese Historical Materials Series, Book 84, 831–849, p. 2676. 56

2.4 The Corresponding Legal Measures of Qing Government

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2.4 The Corresponding Legal Measures of Qing Government Since Qing established Beijing as its capital, the banguan was still not a problem for supreme Manchu rulers, but the virus of banguan was already inherited from Ming dynasty, the burgeoning bud for its spread was already there, but largely unnoticed by supreme Manchu rulers. The Great Qing Code provided under the article of “not imprisoning prisoners who should be imprisoned” that “criminals deserving punishments above imprisonment, and those who harm others or commit rapes should be imprisoned, while officials who commit crimes public or private, slight offences committed by soldiers and civilians, old, young, disabled and diseased criminals should be detained out of prisons”,59 but under the attachment made in the 54th year of Kangxi’s reign to the article for “willfully imprisoning and investigating civilians”, it said that “other relevant people and all slight offenders should be bailed out by town criers, waiting for trials”.60 The wordings of the two articles were copied from The Great Ming Code, which were confusing and contradictory. This was actually the origin of the abuse of Banfang in the Qing dynasty. In the 16th year of Shunzhi’s reign (1659), it was approved that detainment before trials was permitted only for criminals who committed serious crimes in Beijing, and criminals who committed slight offences should not be detained. However, until late Qing, some suspects were still detained in the banfang of the Wuhengsifang officials. This rule demonstrates that in early Qing, supreme Manchu rulers realized the harm of banguangs, but they did not prohibit this phenomenon all at once; this slight oversight made banguan a growing and harmful thing in the future. It was approved in the 45th year of Kangxi’s reign (1706) that yamen of trials should establish prisons, all banguangs in form of storehouses, bunks and guest houses, etc. should be demolished, except key criminals who should be imprisoned, other relevant people and slight offenders should be bailed out before trials, if illicit storehouses or bunks were established, and slight offenders were killed in detainment, the governors responsible should impeach immediately, the officials directly responsible should be punished by law. This rule was the first manifesto for demolition and prohibition of banguans. It was also a reflection of the widespread expansion of banguans, but at this time, the punishment articles were limited to only serious situations such as deaths of detainees in illicit banguans. It is clear that the rules were not very strict. Yongzheng was radical in reforms. In the 3rd year of Yongzheng’s reign (1725), he issued a decree for permission of the memo to the throne made by Li Tingyi, the minister of the Board of Punishment. It was ordered that prisoners should be divided into internal and external parts. An internal prison was established for key criminals, while an external prison was established for slight offenders and relevant people in trials. The prison administration reform in Yongzheng’s reign left a far-reaching and 59

Shen (2000), p. 983. Zhang Rongzheng et al. (1993), Vol. 36, p. 607; see also Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (Daqinghuidianshili) (Guangxu edition) (1976), Vol. 839, xingbu, xinglvduanyu, gujingukanpingren, p. 15546.

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deep influence over the judicial system in the Qing dynasty. Actually, this reform was as important as the economic reform of returning meltage fees to the public coffer, external prisons were regulated to eliminate banguans in various names, but just as the reform to return meltage fees to the public coffer could not avoid calculation of more losses, new losses were added while the previous were deducted, the implementation of internal and external prison system could not eradicated the banguans. Moreover, similar to adding new confusing threads in administration affairs, external prisons were understood as legalized banguans, serving as a more sufficient reason for the existence of banguans. As noticed by the author of On Unorthodox Careers, “the external prisons are also called banfangs, which are used for detaining criminals involving cases of manslaughter, burglary, robbery and theft, although they are truly criminals, but before confessions and convictions they cannot be imprisoned or kept by bailiffs.”61 In the 27th year of Guangxu’s reign, Zhang Zhidong and Liu Kunyi proposed a reform plan entitled “Discussion on 12 Articles for Judicial Reform upon the Decree 遵旨筹议变法谨拟整顿中法十二条折”, in which they mentioned that “as to detainment stations, which are used for keeping thieves, knaves, and serious criminals before their confessions and convictions or before arrival of guarantors, there is no legal provisions on this but all counties have this kind of places.”62 Zhang Zhidong and Liu Kunyi reviewed details concerning the reform of internal/external prisons in the 3rd year of Yongzheng’s reign and claimed that “now the detainment stations (jisuo 羁所) are what were meant by ‘external prison 外监’ in Li Tingyi’s report to the throne, we suggest the drafting of regulations for them.”63 The purge and reform ordered by Yongzheng made banguans quietly restrained themselves for the time being. Early in Qianlong’s reign, banguans flourished again. At this time, Qianlong enjoyed an overwhelming prestige, especially after the uprising of Lin Shuangwen. It was discovered that illicit banguans became a serious problem in the disciplining of officials in Taiwan, so pungent punishments were used when anything bad cropped up. The stern purge had a deterrent effect for provinces; even in this case, clerks in Taiwan still dared establishing banguans against strict legal prohibitions. During the mid- and later period of Qianlong’s reign, Qianlong repeatedly and strictly demanded a permanent elimination of banfang, provincial governors-general and governors were ordered to report whether there were still illicit banguans at the end of each year, and in the 55th year of Qianlong’s reign (1790), the following suggestion was agreed upon by Qianlong that if illicit banguans were discovered under supervision of an official, he would be degraded for two level ranks. In archives of Qing dynasty, there are many memos sent by provincial governors-general and governors to the throne with emperors’ comments in red on the existence of banguans for the

61

Zhuang Chengfu,”On Unorthodox Careers”, in Zhang and Gu (1988), Book 11, p. 667. Ding et al. (1994), “Memo on the Chinese Law Adjustment of the 12 Articles upon the Emperor’s Order” (the sixth lunar month 4 of the 27th year of Guangxu’s reign), p. 588. 63 Ibid. 62

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regular reviews by the emperors.64 However, most provincial governors-general and governors reported that there were nothing like banguans in the year-end summary reports, which became empty formality as a sacrifice sheep for ceremonies at the start of a new year. When Jiaqing succeeded in throning, the discipline of administration was more relaxed and weak, and banguans resurged. Jiaqing issued many decrees for strict prohibition of them, and the punishments were more severe for default officials, but at that time, the censure measures were a symptom of failure of effective control rather than a sound basis for effective control. In the 4th year of Jiaqing’s reign(1799), the emperor issued a decree that said “as to the illicit establishments of banfangs and zixinsuo (fresh-start stations), and detainment of many people in them, such things were against regular prohibitions, it has been long declared that information of these matters should enter the summary reports to the throne, in recent years it entered the summary consultations, maybe local officials deem this as empty formality and the cunning people revived these tricks and detained innocent people there, the matter has to be investigated carefully, hereby I order all governors-general and governors to prohibit this completely.”65 During Daoguang’s reign, there were so many decrees prohibiting illicit banguans in tenies that almost every year there was one such decree, which only reaffirmed previous prohibitions with rain effect while former emperors, the words was earer earing illicit banguans in that almost every year there were little such prohibitions. In the 5th year of Xianfeng’s reign (1855), the central government of Qing was very strict in the prohibition articles of banguans, which ruled that: in the illicit establishments of storehouses, bunks, stations, guesthouses and banguans or yabaodian (houses for detainment before bailout) by clerks and bailiffs, if slight offenders and relevant people are killed in detainment, the magistrate responsible should be removed from office if he knows it, if nobody is killed, but he connives at such activities, his rank should be lowered 3 levels, if he does not know it, but people are killed, his rank should be lowered 2 levels in other posts, if nobody is killed, his rank should be lowered 2 levels in his former post. As to the surveillance commissioner, the circuit intendants, the prefectural magistrates and the magistrates of direct departments who default in supervision of illicit banguans in subordinate counties, the prefectural magistrates and the magistrates of direct departments in the same city should be lowered a level in rank, the circuit intendants shall be fined salary of 1 year, the surveillance commissioner and the magistrates of direct departments shall be fined salary of 9 months, for officials not in the same city, the prefectural magistrates and the magistrates of direct departments shall be fined the salary of 1 year, the circuit intendants shall be fined the salary of 9 months, the surveillance commissioner shall be fined the salary of 6 months. From the late years of Qianlong’s reign and the late years of Tongzhi’s reign, the central government of Qing reiterated the prohibition and aggravated punishments, and there were no valid measures besides these. The rapid growth of banguans paralleled the increase of rules for punishments, more and 64 For example, Archives Memos with Emperors’ Comments in Red, Vol. 3, Falvlei·Lvli. Quoted from a second source Wu (1998), p. 247. 65 Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (Guangxu edition) (1976), Vol. 135, libu, chufengli, jiyu 2, p. 6886.

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more rigorous punishment articles intensified governors-general and governors’ fear of involving strict punishments, so they instinctively covered up the illicit banguans to exculpate subordinates, which was a deviational effect, the spill-over of banguan was more and more serious as an informal system out of the strict, closed space in the rigid administrative system of Qing dynasty. In contrast with the strict prohibition of private detainment in banguans by the central government of the Qing dynasty, an interesting irony was the limited recognition of banguans among practical scholars in the lower social stratum who treasured the Confucian thoughts of fraternity and man-centeredness before the nineteenth century. For example, Wang Huizu did not quite agree with the elimination movement of banguans in late years of Qianlong’s reign, he asserted that “the term ‘guanya 管 押’(control and detainment) is not found in laws, it is a necessary means in some situations, the detainees are registered when they are detained. … There were banfangs in the past; at night officials would check in person to avoid bribery. Several years ago, there was a prohibition of banfangs, bailiffs were ordered to take detainees back home, and it was harder for inspections. It seems that detaining them in public places is bettern than that.”66 Later scholars follow assertions made by Huang Liuhong, Liu Heng, Wen Jinghan, and Wang Huizu et al. and most people believe that banguans have good reasons for their existence in Qing, but the rationality is still a judgment of values, which can be different in different views, Hegel has a famous saying that “all that is real is rational”,67 an exclusive debate of the rationality of banguans is a false theme which is meaningless, the dialectic thought contained in Hegel’s famous saying above should be used in the analysis and examination of the complex internal logic of rationality and illegality of banguans in Qing, while the so-called “rationality” itself is not a self-evident transcendental category. If we say banguans were hazardous cancer and a parasite of the Qing judicial administration system, then the cancer was developed with the nutrition provided by the overall system of Qing, other formal rules and regulations were like blood vessels, nerves and muscles that links and wraps around this cancer tumor, and this cancer deepened into the inner tissues to have a widespread impact of the judicial administration system as a whole, therefore the cutting off of the cancer was no easy thing. Just as Zhu Xi said, “when big essential framework is not established, trivial regulations cannot work well in rectification”,68 the reason for the failure of prohibiting banguans despite repeated commands truly lies in this sentence. In nearly 7 decades after 1800, measures propelling the transition of the banguan system were mainly advocated by provincial governors-general and governors as well as their private secretaries who embraced progressive reformism. The line of thought initiated by Huang Liuhong, Wen Jinghan and Wang Huizu was later inherited by 66

Wang Huizu. Chenzhizaiqin, in Shao (1980), Vol. 35, neizhengbu 9·chenzhi, in Modern Chinese Historical Materials Series, Book 72, 711–720, p. 1408. 67 The statement herein follows the common expression among Chinese scholars. However, in fact, the original German sentence is: Was vernünftig ist, das ist wirklich; und was wirklich ist, das ist vernünftig. See in Hegel (2000), Einleitung, XXI. 68 Lu (1986), Vol. 8, p. 144.

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many local officials or their private secretaries; in fact, many governors-general and governors’ reform measures for banguans were influenced or designed by their private secretaries. Since the circumstances were more powerful than man, as an informal system incorporated in the judicial administrative system, banguan had a chronic and widespread impact, provincial governors-general and governors as well as their aides knew more about the local current situation and the impracticality of the central government’s “prohibition” orders, so fair and reasonable “regulatory” measures were adopted instead. The regulatory measures of local governments and the prohibition orders of the central government were different in result despite formal likeness in approach, namely, in terms of outward operation they were different, in terms of fundamental orientation they were opposite, and the severe deterrence like big dams built in high places was compromised by legalization to put things under control. The regulation of banguans made them formal, which became a wave of quiet transitions that started first in all provinces. The reforms adopted by provincial governors-general and governors mainly include what follows: (1)

Report system. In the 25th year of Jiaqing’s reign (1820), Dong Jiaozeng, the governor-general of Fujian and Zhejiang, was troubled by the large numbers of detainees in Min and Houguan counties around the provincial capital, despite that there was a circular name list report system, but cases involved were hard to check, while external subordinate local governments had their self-managed lawsuits and detainees which were not reported in the monthly prisoner name list report together with the name list of detainees, so the governor ordered Fuzhou prefecture, Min and Hou counties to register reasons for imprisonment of all criminals in the circular name list report for both self-managed and appeal cases assigned to them, the dates of case acceptance and dates of imprisonment were recorded, while external subordinate governments would register reasons for detainment monthly, the detainees, prisoners, released people were recorded in the name list report presented to immediate superior governments, prefectural governments nearby was ordered to supervise and investigate whether innocent people were detained, and this regulation was incorporated into the provincial substatutes. In the 7th year of Tongzhi’s reign (1868), Ding Richang took the post of governor in Jiangsu, he summarized the experience of predecessors and made a further rule that every month all prefectures and counties should present two reports containing the names of detainees, prisoners, released people and present people for self-managed cases, one book is a brief record of lawsuits and the other is name list of detainees and prisoners, hence the detainee name list report system was complete and mature. Later, provinces such as Zhili, Zhejiang, Jiangxi, and Fujian also adopted the report form designed by Ding Richang in Jiangsu. In his essay “Clearing Accumulated Cases to Relieve People from Difficulties 清理积案以甦民困疏”, Ding Richang said that “Zeng Guofan, former governor-general of Zhili, and Bian Baodi, former governor of Fujian, knew this approach was helpful for the

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(2)

(3)

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people, they successively turned to me and copied the regulation for implementation in Zhili and Fujian.”69 Chu Yixing, a private secretary of Ding Richang, in the notes below Ding’s regulation included in Public Documents for Governing Jiangsu, declared that Zeng Guofan also asked Ding to give the regulation to him for implementation when Zeng was the governor-general of Zhili. Ding Richang had been a private secretary of Li Hongzhang, who had been a private secretary of Zeng Guofan, on his way to Beijing to see the emperor he visited Zeng Guofan, the governor-general of Zhili, at Baoding. Shortly after that, Ten Articles for the Settlement of Lawsuits in Zhili 直隶 清讼事谊十条was published in the 8th year of Tongzhi’s reign (1869), Ding Richang’s measures adopted in Jiangsu were used as a reference, but Luo Zhao, who was honored as “senior advisor Luo”, had started clearing of lawsuits since he became a private secretary in Zhili early in Tongzhi’s reign, he designed 10 rules for clearing accumulated cases, and the monthly report of detainees was also designed, therefore Zeng Guofan’s Ten Articles for the Settlement of Lawsuits in Zhili were mainly taken from Luo Zhao’s rules, while a unique feature Zhili after cutting out the radical parts in Ding’s regulations, Zeticles for the promotion of Lawsuits in Zhilis Seticle Settlement of Lawsuits in Zhilis. Bulletin board system. In the Qing dynasty, bulletin boards (fenpai 粉牌) were usually hung on a wall of yamen for public announcements, promulgation of information or government orders, timetable of bailiffs on duty, or abstracts about cases to be settled. With this ready form, Ding Richang supervised the detainment in banguans. He demanded the establishment of a large bulletin board for each prefecture or county, in which the names, cases involved, dates, and reasons for awaiting trials of each detainee were recorded in a timely manner. The board was always hung before the yamen, so people might see the information to avoid fraudulent practices by bailiffs. Testimony-making and check system. In Qianlong’s reign, the prohibition of banguan ruled that provincial governors-general and governors make annual summary reports by the end of a year. The reports in fact were written guarantees, but due to face-saving consideration for these officials, they were not called guarantees. However, provincial governors-general and governors could be frank in issuing orders to subordinates for prohibition of banguans, they would order subordinate governments to report their implementation “in written guarantees with seals stamped, and present summary testimonies by the end of the year”.70 During Guangxu’s reign, local magistrates required bailiffs to present written guarantees and testimonies to prevent private detainment of criminals or people outside yamen, where it was beyond supervision. For example, in the 18th year of Guangxu’s reign, Liang Hong, a bailiff head of Xinzhu County, Taiwan, thus wrote in his guarantee: “Now before your majesty, I hereby make

Ge (1972), Vol. 87, in Modern Chinese Historical Materials Series, Book 75, 741, p. 2223. Fujian Provincial Substatutes (1987), “Abuses of bailiff and extortion should be prohibited, and only one bailliff should be assigned for one subpoena”, Taiwan Literature and Historical Materials Series, Book 7, 141–142, p. 951.

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my guarantee that from now on, I will never privately establish banguans. If such things exist, willingly I will take the punishment. Hereby I presented my testimony as this archive is true.”71 The prohibition of banguans imposed by the central government of Qing was tighter and tighter, and finally, an alternative approach had to be found. Early in Daoguang’s reign, Tang Yongzhong, who had been a private secretary, in his essay “Commoners Temporarily Detained Suffer Most”, proposed renovation of banfang into daizhigongsuo 待质公所 (public station for people waiting for interrogations) with provision of clothes and grains like prisoners, the proposal gradually spread and was widely recognized by contemporaries. In the twelfth lunar month of the 1st year of Guangxu’s reign (1875), Li Jingpei, the governor of Guizhou, drew from Tang Yongzhong’s proposal and presented a memo to the throne entitled “Construction of Public Station for People Waiting for Interrogations in Provinces”, which was approved by the central government. This was the turning point of the central government’s transition from prohibition to the regulation of banguans. The construction of public stations for people waiting for interrogations was not implemented in all provinces. Some counties welcomed this reform movement purely out of the intention of legalizing banguans in this favorable situation, and the harms of banguans remained. Shen Jiaben and Wu Tingfang were ordered to reform laws, at first they turned to traditional resources for the reform of banguans, but with the coming back of many Chinese students who graduated from Japanese universities, they had a deeper understanding of Japanese law system, therefore the western judicial system and thought which arrived from the transfer station of Japan injected a new energy into the reform of banguans. Cai Zhenluo was ordered by Yuan Shikai, the governorgeneral of Zhili, to make an on-the-spot investigation into Japanese prisons, after the investigation he suggested that “criminals and defendants have long been treated alike in our country, after being detained in a case, all detainees are seen as criminals, the distinction is that convicted criminals are put in prison while those not convicted are put in banguans”, in fact the conditions of banguans were much worse, the defendants suffered more than criminals. Foreign countries had four reasons for detainment: the first reason was to prevent escape and suicides, the second reason was to keep the evidence; the third reason was to prevent defendants from being wronged, the fourth reason was to investigate and see if the charge is true or false. “Recently, in our country, although some banguans were renamed guanshouchu 管收处 (detention center), which seem cleaner than they were, but the four purposes above have not been considered, so harms cannot be prevented”, a hospice should be built near a judicial court in addition to the prison for convicted criminals.72 In the 34th year of Guangxu’s reign (1908), the Ministry of Justice presented a report to the throne concerning a proposal on the urgency of prison reform made by Mai Zhiyan, a censor. It was pointed out that external detainment places called chaiguan, houshensuo, etc. 71

Compilation of Primary Documentation from Taiwan Danxin Administration Archives (Dan Xin dang a xuan lu xing zheng bian chu ji) (1984), Book 1, Taiwan Literature and Historical Materials Series, Compilation 3, 295, p. 193. 72 Gan (1966), Vol. 5, lizhi 3, jianyu, Yuan Shikai Materials Collection, p. 425.

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established in counties should be demolished immediately, all courts in the capital and local yamens with courts in provinces should have kanshousuo 看守所(detention center), all the accused waiting for trials or suspects before conviction should be kept at such centers. As an informal system, banguans expanded beyond prohibition during the Qing dynasty, although it was illegal. According to Feng Youlan, the School of Logicians (mingbian) was quite developed in ancient China. I think ancient Chinese exploration of the phenomena of “the rivalry between concepts and things 名实相怨” and the independence of the signified of “ming” (concepts) happened to have many things in common with the modern linguistic turn in Western countries, the School of Legalism in China always stressed the correspondence between the reality and the name. Clifford Geertz’s symbolic phenomenology was smart in interpreting laws as a kind of local knowledge, but his alliance with structuralism was quite obvious; the “history of representation” (L’histoire des représentations) impacted by textual analysis has been seen as standing next to a cliff, and it seems necessary to halt to avoid negative influences caused by its proliferation; therefore, we truly need to broaden our theoretical vision rather than indulging in phenomenological descriptions of legal expressions. After a linguistic analysis of the concept of banguan and a textual information analysis of the phenomena of banguan, concepts of resources, practice, time and space are introduced to attempt an exploration of the structuration process of banguans, it is an examination of banguans in the relation network of behavioral processes rather than approaching banguans as entities. In other words, banguan was essentially a relation of resources/game/space. If Geertz’s research aimed at drawing a cultural map of the exchange and transformation network for symbol metaphors, then my aim lies in exploring the “transformative rules” between “paper law” and “living law” (or “open law” and “secret law”, or “legal expressions” and “legal practices”) by a neo-historical jurisprudence approach, the law of the empire and the empire of law are seen as a heterogeneous whole. Most likely, it is time for us to walk out of its closed “glorious isolation” to redefine “rules” or “law” for integrative research on positive law and legal facts.

References Bao, S. (1872). Four books on governing Suzhou, printed by Jingxian County Baoshizhujingtang in the 11th year of Tongzhi’s reign. Cao, X., & Gao, E. (2004). A dream of red mansions. People’s Literature Publishing House. Chen, S. (1983). Records of customs. Bibliography and Document Press. Compilation of Primary Documentation from Taiwan Danxin Administration Archives (Dan Xin dang a xuan lu xing zheng bian chu ji). (1984). Book 1, Taiwan Literature and Historical Materials Series, Compilation 3, 295. Datong Book Store. Dai, Y. (1979). Countryside administration of Taiwan in Qing Dynasty. Lianjing Publishing Company. Dictionary of Etymology. (1989). Book 1–4 Bound Edition. The Commercial Press Bookstore. Ding, R. (1969). Public documents for governing Jiangsu, Zhonghuawenshi Series, Book 49. Huawen Bookbureau Ltd. Co.

References

41

Ding, S., et al. (1994). Collection of memos to the throne in China. Harbin Press. First Historical Archives of China. (2003). Historical materials on prison administrationin during the reign of emperor Qianlong. Historical Archives, 3. Fujian Provincial Substatutes. (1987). Taiwan Literature and Historical Materials Series, Book 7, 141–142. Datong Book Store. Gan, H. (1966). Classified collection of the official documents of Beiyang (Beiyang Gongduleizuan), Yuan Shikai Materials Collection. Wenhai Press. Ge, S. (1972). A collection of essays on national affairs during the Qing Dynasty (Continued). In Modern Chinese historical materials series, Book 75, 741. Wenhai Press. Hägerstrand. (1967). Innovation diffusion as a spatial process (A. Pred, Trans.). University of Chicago Press. Hamashima, A. (1984). Prisons of southeast provinces in late Ming Dynasty. In Commemorate Iwanami Shoten’s 60th Birthday on Asian History about State and Farmers. Yamakawa Shuppansha Ltd. He, C. (1972). A collection of essays on national affairs during the Qing Dynasty. In Modern Chinese historical materials series, Book 74, 731. Wenhai Press. He, G. (1841). Xuezhiyidebian, the xinchou year edition printed by Meishoutang in Daoguang’s reign. Hegel. (2000). Vorlesungenüber die Philosophie des Rechts: Berlin 1819/1820, Nachgeschrieben von Johann Rudolf Ringier. Meiner Verlag. Huang, L. (1997). The complete book concerning happiness and benevolence. In The collection of the official exhortative books. Book 3. Huangshan Bookstore. Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (Daqinghuidianshili) (Guangxu edition). (1976). Xinwenfeng Press. Kato, Y. (2000). Transaction of clerical posts in Qing (1). Kyoto Law Review, 147(2). Kato, Y. (2001). Transaction of clerical posts in Qing (2). Kyoto Law Review, 149(1). Li, J. (1986). Teachings of master Zhu Xi Categorized (Zhuziyulei), Wang Xingxian (punctuated). Zhonghua Book Company. Li, T. (1986). Long draft of the continuation of the Zizhi Tongjian. Zhonghua Book Company. Liu, H. (1997). Ordinary words of an ordinary official (Yongliyongyan). In The collection of the official exhortative books, Book 6. Huangshan Bookstore. Lu, Z. (1986). Records of crimes of imperialists’ invasion of China: A selective edition of unequal treaties in modern Chinese history. Shandong People’s Publishing House. Men, S., et al. (2006). Unofficial history of Qing: A vague silhouette of a dynasty. Renmin University Press. Qing Dynasty Jiangxi Surveillance Commission. (1871–1908). Xijiang Zhengyao, Jiangxi Surveillance Commission Yamen version in Guangxu’s reign. Shao, Z. (1980). A general collection of essays on national affairs during the Qing Dynasty. In Modern Chinese historical materials series, Book 72, 711–720. Wenhai Press. Shen, Z. (2000). General commentary on the great Qing Code (Daqinglvjizhu), X. Huai & J. Li (Ed.). Law Press. Sheng, K. (1972). A collection of essays on national affairs during the Qing Dynasty (Continued). In Modern Chinese historical materials series, Book 84, 831–849. Wenhai Press. Shuzo, S., et al. (1998). Civil adjudication and popular contracts in the Ming and Qing (Y. Wang, et al., Trans.). Law Press. Sichuan Province Archive. (1991). Collected archives of Baxian County in the Qing Dynasty (vol. Qianlong). Archive Press. Taiwan Government General’s the Provisional Council for the Investigation of Old Habits (1912). The administration law of Qing, (The First Report by the Council) (Vol. 5). Tokyo Printing Co. Ltd. Tamakichi, M. (1934). Gazetteer of South Taiwan. Tainan Coprosperity Association. Tian, T., et al. (2004). Huangyan litigation archives and related research reports: Between tradition and reality—Find law in countryside. Law Press.

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Tian, W. (1868). Qinbanzhouxianshiyi, reprinted by Jiangsushuju in the wuchen year of Tongzhi’s reign. Tu, J. (1960). Hengchun county annals, Taiwan Literature Series, Book 75. The Economic Research Department of the Bank of Taiwan. Veritable Records of Daoguang. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Guangxu. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Jiaqing. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Qianlong. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Tongzhi. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Xianfeng. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Yongzheng. (1960–1970). Huawen Bookbureau Ltd. Co. Wen, H. (1879). Ziliyan, printed by Yanfuxuan in the 5th year of Guangxu’s reign, kept at the National Library. Wu, C. (1966). Articles on the administration of officials in Qing Dynasty, Modern Chinese Historical Materials Series, Book 2, 12. Wenhai Press. Wu, J. (1998). A study on the judicial functions of local government in Qing. China Social Sciences Press. Wu, Z. (1997). China new literature series: 1949–1976. Shanghai Literature & Art Publishing House. Yan, C., et al. (1887). Tongxiang county annals, version of the 13th year of Guangxu’s reign. Ye, S. (1961). Collective works by Yeshi·separate collection of Mr. Shuixin, G. Liu (Ed.). Zhonghua Book Company. Zhang, B., & Gu, Y. (1988). Unofficial history of the modern times. Sichuan People’s Publishing House. Zhang, B. (2005). Edition and examination of legal literature. Beijing University Press. Zhang, R., et al. (1993). The great Qing Code with substatutes (Daqinglvli). Tianjin Classics Publish. Zhu, S. (1958). Records from the eastern gate of Guangxu’s Reign. Zhonghua Book Company. Zhuang, J. (1983). A general survey of archives in palace Museum. Taipei Palace Museum.

Chapter 3

Inter-law: Consular Jurisdiction and Modern Judicial Operation in China

3.1 “Extraterritoriality” and “Consular Jurisdiction”: Overview Among modern international law researchers, opinions vary concerning the concept of “exterritoriality”, which is widely regarded as a synonym for “consular jurisdiction (领 领事裁判权)” by the general public and as well as many international law experts alike. On the one hand, in some Anglo-American legal documents and treatises on international law works and international documents, the Chinese term “zhi wai fa quan 治外法权” is translated as “exterritoriality”, “exterritorial jurisdiction” or “consular jurisdiction”, which are actually different concepts sharing a common meaning. On the other hand, some scholars view “exterritoriality” as an equivalent of “l’exterritorialité” in French, restricting its meaning to the immunity from jurisdiction enjoyed by ambassadors, chiefs of state and warships, etc., as provided under international law, but the term “extraterritoriality” has a connotation of “extraterritorial jurisdiction”, which is an equivalent of “la juridiction exterritoriale” in French, which denotes what is usually termed consular jurisdiction. After the Opium War, the ban on maritime trade was gradually lifted. At that time, Chinese people were almost ignorant of international law in the Western world, not to mention a close examination of it, and the concept of extraterritoriality used to be mistaken for consular jurisdiction. The term “zhi wai fa quan” was first coined during the reign of Guangxu. In 1918, the Qing government entered a treaty with Switzerland, in which the term “consular jurisdiction” was first officially used but followed with a statement in brackets to differentiate it from diplomatic privileges termed “extraterritoriality” in international law.1 Later, in an examination paper of economics in the late Qing dynasty, there was a question concerning the distinction between consular jurisdiction and extraterritoriality. Since the Japanese translation of “consular jurisdiction” was “ling shi cai pan quan” (in Chinese characters), when the Japanese translation

1

For the Chinese version of the treaty see Wang (1959), Vol. 2, pp. 1373–1374.

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was introduced into China, the distinction between the two concepts attracted attention from the Chinese. By then, Song Jiaoren was studying in Japan and he was familiar with international law. In 1911 he wrote a paper entitled “The Calamity Caused by the Russian in China for the Last Two Centuries”, in which he claimed that what the Chinese mean by the term extraterritoriality is “exclusively consular jurisdiction, i.e., for citizens of country An in the territory of country B, they do not obey the jurisdiction of country B, but are subject to the consular jurisdiction of their ambassadors, it is a personality-based system, different from what is generally termed extraterritoriality”; “the term ‘extraterritoriality’ is generally used to refer to the insubjection to the rule of Country B for Country A’s chief of state, ambassadors, army, warships while they are in the territory of Country B, therefore different from consular jurisdiction in that extraterritoriality is usually mutual and egalitarian, while consular jurisdiction is unilateral and unequal. People tend to confuse the two terms”.2 Despite some common associations shared by consular jurisdiction and extraterritoriality, the two are drastically different in that as far as the subject of rights is concerned, extraterritoriality covers only chiefs of state, ambassadors, warships anchoring in foreign countries, special ships with chiefs of state or ambassadors aboard, or on national properties abroad, special persons and things such as foreign army stationed in a host country with permission from or immune provisions in treaties signed with the sovereign state, therefore the scope covered is very limited, on the other hand, consular jurisdiction has an application scope not limited to special persons and things, rather, all business people, missionaries and even jobless floaters enjoy the right once they belong to the country which has entered such a treaty. Seen from the object of right, extraterritoriality is not a unique power (le pouvoir unique) but an integration of separate privileges (les privileges séparés), mainly a negative exemption from local judicial administration. In addition to the exemption from judicial power in civil law and criminal jurisdiction, special treatment is also given for exemption from check-ups and taxes. Therefore, some scholars say that “the concept ‘extraterritoriality’ includes a judicial power, administrative power, police power, while consular jurisdiction is exclusively limited to judicial power.”3 Consular jurisdiction is executed to impose judicial administration of a home country on emigrants who go abroad. It is a positive judicial power abroad. Extraterritoriality can be deemed an absolute denial of local sovereignty, while consular jurisdiction is confined to insubjection to local law for emigrants in litigations. For the evidence of right, extraterritoriality is a widely recognized principle in modern international law and is widely adopted in all modern countries as a result of international comity. It is based on the principle of “mutual respect of national sovereignty”, with the sole criterion of indemnity to territorial sovereignty. The existence of consular jurisdiction is derived from and awarded by a unilaterally favored treaty, not a universal legal fact but rather an exception in international law; therefore, some scholars called it “an extension of agreed jurisdiction”. Consular jurisdiction follows traditional principle 2 3

Chen (1981), Book 1, p. 171. Geng (1930).

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of the personality of laws; it is an extreme case of personal supremacy with overall exclusion of territorial supremacy, which is a serious infringement on the sovereignty of the country thus enforced. Seen from the substantiation of right, since extraterritoriality is a uniform principle in international public law, its application is not subject to any establishment or provisions, the only condition is the local country’s not exercising of judicial and taxing power, while consular jurisdiction is a positive extension of a country’s jurisdictional right; therefore, in addition to the jurisdiction exercised by consulates, the establishment of foreign courts on various levels is also a necessary adjunct. It is the fact that the jurisdictional right in a foreign country is not necessarily exercised by consulates but also by envoys or special judges, the term consular jurisdiction is not precise, therefore Imaiyoshiyuki (1878–1951), a Japanese scholar, coined a new Japanese term to mean what is “foreign jurisdiction” in English, and in German the term “die Fremdengerichtsbarkeit” is used, these terms are more appropriate, but it is pity that they are rarely used.

3.2 Evolvement of Consular Jurisdiction In retrospect, some scholars track the origin of extraterritoriality back to the Tang dynasty and the Song dynasty. John King Fairbank, in his book The United States and China (Cambridge, MA: Harvard University Press, Foreign Policy Library, 1948), wrote that extraterritoriality was a legal system under which foreigners in China and their activities were governed not by Chinese law but by foreign laws. This system is not a modern invention. In a manner rather like that of the Turks at Constantinpole, ancient Chinese government expected that foreign communities in the seaports to govern themselves under their own chiefs and by their own laws.”4 Edward H. Schafer (1913–1991), an American historian who specialized in the history of Tang dynasty, also asserted in his book The Golden Peaches of Samarkand: A Study of T’ang Exotics (Berkeley and Los Angeles: University of California Press, 1963) that: within living area where foreigners reside during the Tang dynasty, “foreigners were governed by an old man appointed for that purpose, and enjoyed extraterritorial rights.”5 Many Chinese scholars accept this view true. Fu Zhufu, in his A Socioeconomic History of Feudal China, has the statement below: in Tang and Song dynasties, “foreigners’ districts had a special political status, foreign criminals were not punished in accordance with Chinese law, but by a chief of foreigners there according to the law of their own country, this was seemingly the extraterritoriality established by unfair treaties, the special districts of foreigners were just like foreign settlements established by foreign powers in Chinese cities. The difference lies in the loss of sovereignty.”6 During the Tang dynasty, many Arabs and Persians “domiciled in Tang”, and they formed special districts for foreign residents for two reasons: one was out of living 4

Fairbank (1983), p. 167. Xie (1995), p. 27. 6 Fu (1986), Vol. 4, p. 460. 5

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habits and business activities, and the other was due to the regulations provided by ) thus described his the Tang dynasty. An Arab businessman named Suleiman ( travel to the foreigners’ resident district in Guangzhou in the 5th year of Tang Xuangzong’s reign (851 A.D.): “the Arab people clustered around a Chinese business center called Kangfu (now Guangzhou), the emperor appointed a muslim as judge to rule muslim residents according to muslim customs, every week the judge often prayed with muslim people and read the commandments. At the end of this ritual, he and other prayers wished blessings on Muslim Sudan. The judge was honest in personality and was praised for his fairness as a judge. Koran, the memorandum of Mohammed and Muslim customs were all observed. Iraqi business people respected the judge when they came here for business.”7 This demonstrates that chiefs or governors of foreigners were appointed in the Tang dynasty for administrating foreign residents, and Muslim law was applied in dealing with civil and criminal cases. The world of academia usually takes Tang Law as the earliest Chinese legal system governing foreign affairs. Liang Qichao, in the paper entitled “The Success and Failure in the History of Statute Law Compilation in China”, thus commented: “Tang Law’s Term Interpretations says that ‘when crimes are committed among foreigners themselves, their own custom and law shall be observed; when crimes are committed among foreigners and local natives, Tang law shall be observed.’ However, the government of foreigners by their own laws is a principle in our law. The principle originated from the time of Huangdi, Yao and Shun; in the Tang dynasty, it was first made explicit in written law. Today’s consular jurisdiction is applied in our country mainly because this idea is of a natural evolution. Ancient laws usually take a personalist view; it is not unique in our law but also in the Roman law and the Muslim law.”8 The view holds that the adoption of personalism in ancient laws cannot be a plain mistake, but when this provision is interpreted as extraterritoriality in this special background, it is certainly an improper analog. In Comments on Tang Law, there is a special interpretation that says, “Foreigners think that they shall have their own rulers from their native country, since their customs and law systems are different. Crimes among themselves shall be governed and judged by their own law. While crimes occurred between different natives, for example, crimes involving Koreans and Paekcheans, Chinese law shall be applied in jurisdiction.”9 With a close examination of the facts, the “fanfangsi 蕃坊司 (Foreigners’ Office)” was an administration agency approved and established by the Chinese government, and the “fanzhang 蕃 长 (Chief of Foreigners)” was appointed and commissioned by the Chinese government, in sharp contrast with modern consuls. In Vol. VI Term and Examples of the Song Criminal System. The article concerning “interforeigner crimes” followed Tang Law without modifications. Zhu Yu lived in Guangzhou during the Song dynasty, according to his book Essays in Pingzhou, foreigners’ jurisdiction was described below: “the foreigners live in a foreigner zone in Guangzhou, a chief is appointed to be responsible for dealing with foreigner affairs, especially the tax affairs of foreign 7

Suleiman’s Travels, in Zhang Xinglang (1977), Book 2, p. 201. Liang (2000), p. 125. 9 Changsun et al. (1983), Vol. 6, “Terms and Examples”, p. 133. 8

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merchants. The chief is a foreign official, who dresses exactly like Chinese people. When foreigner criminals are brought to Guangzhou for trials, they are sent to the foreigners office for trials. They are fastened to wooden ladders, beat by rattans, from heel to head, with three beatings by rattans equaling one flogging by a stick. That is because foreigners do not wear trousers or pants. They like sitting on the ground. They are afraid of beating the arms rather than the back, crimes deserving punishment more serious than imprisonment, Guangzhou government is in charge.”10 At that time, the foreign chief usually dealt with interforeigner legal conflicts in civil cases, while foreigners who committed crimes were tried by the Guangzhou magistrate, the flogging punishment could be transferred to the Foreigners’ Office for execution. It is obvious that the legal status and purview of the chief was similar to the traditional role played by village chiefs and neighborhood officers in cooperation with governmental jurisdiction. The autonomy of the foreigner zone was limited, it was not external to the Chinese government, and therefore it was not what is called “extraterritoriality” today. Another view believes that the start of foreign powers obtaining extraterritoriality in China was in the 57th year of Qianlong’s reign (1792 A.D.) when The Qiaketu Treaty (Kxtincki dogovop 1727) was signed. 1911, Song Jiaoren stated in his 1991 paper “The Calamity Caused by the Russian in China for the Last Two Centuries” that “extraterritoriality originated since there were provisions that when criminal cases involving Russians and Chinese should be judged by their countries, respectively as provided in The Qiaketu Treaty in the 57th year of Qianlong’s reign.”11 He also said that “when Russia first did trade with China, there was nothing like extraterritoriality and joint trials, but according to Article 5 of The Qiaketu Treaty, joint trials held by frontier officials became a conventional power. However, by then consuls were not assigned, and in the treaty there is a article that ‘the Chinese people shall be punished by your country’, so frontier officials from the two countries held joint trials with penalties, respectively sentenced, not actually the joint trials associated with consular jurisdiction.”12 Hosea B. Morse, in The Trade and Administration of the Chinese Empire (Longmans, Green, and Co., 1908), also takes a similar view.13 Song Jiaoren bases his argument on Article 5 of The Qiaketu Treaty, which says, “This free trade treaty follows existing regulations issued already to Sanate Yamen. Cases involving people from both countries, e.g., thefts and manslaughters, shall be investigated by nearby countries. After confirmation by trials jointly held by frontier officials, the capture and sentence of Russian criminals shall be in our country, and vice versa, documents shall be issued to publicize this provision. For the things stolen, the proportion of penalty shall follow previous regulations.”14 The “previous regulations” here refers to Article 10 of The Modified Qiaketu Border

10

Zhu (1985), Vol. 2, p. 19. Chen (1981), Book 1, p. 171. 12 Chen (1981), Book 1, p. 175. 13 Morse (1908), p. 181. 14 Wang (1959), Vol. 2, pp. 29, 30. 11

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Treaty signed in the 33rd year in Qianlong’s reign.15 In fact, Russia tried repeatedly to extract extraterritoriality from the Qing Empire, but always ended in failure. According to the treaty, the Qing government should not only participate in joint trials of cases involving Russians in frontier areas but also supervise the Russian penalty of criminals, and then the awarding of extraterritoriality to Russia was not possible at all. Just as Gu Weijun says in Foreigners’ Status in China, the provision concerning “the tracking-down of frontier bandits and suppression of riots, can be seen as an actual exception to the exclusive internal jurisdiction of China”, but “there are absolutely no intension of establishing extraterritoriality, it seems that due to special situations, the principle of personal jurisdiction was applied. This is actually a lasting principle in various civilized criminal jurisprudences. Two countries usually negotiate on border affairs; although most borders are surveyed as certain, uncertainties are still numerous. Countryside residents are sparse, and the question of which country the crime site belongs is hard to answer. In this case, both countries tend to enter a treaty for dealing with frontier felonies such as bandits to keep border peace and foreign relations well, so criminals shall be punished by their own government. Similar measures are common in treaties signed by many countries. For example, the United States and Mexico signed a treaty for respective armies to wipe out riotous Indians across the border.”16 Gu’s argument reaches a sound conclusion. From the perspective of international law, consular jurisdiction falls into the domain of consular law, but the provision in The Qiaketu Treaty falls into the domain of border administration in territorial law. The article concerning foreign criminals in the Great Qing Code with Substatutes (Daqinglvli) follows the principle that “foreigner criminals shall be punished by law (凡 凡化外人犯罪者, 并依律拟断)” as in the Great Ming Code, only with a note on referring to “foreigners 化外人” as “capitulants 来降”. Dai Yanhui argued in A Brief History of Chinese Law that “foreigners refer to those naturalized civilians, not those with foreign nationality”.17 Ernest Alabaster (1872–1950) argued that the “foreigners” here referred only to Mongolians, and it was not intended to include European merchants in Guangzhou and Macao.18 Laws can be said to be relics of local wisdom under a particular spatiotemporal framework. In the spatial idea of the empire and the suzerain-vassal state system featured by a flexible idea of border, the people in Qing officials were not yet acquainted with the modern concept of nationality. The word “naturalization” was merely an identification with kingly benevolence exhibited in paying tributes and bilateral trade under the suzerain-vassal state system, and 15

Article 10 of the modified Qiaketu Border Treaty, also known as Additional Article of the modified Qiaketu Border Treaty. Article 10 of the Keerke Negotiations of Trade Treaty is actually Article 10 of the modified Qiaketu Border Treaty, which was signed on October 30, 1768, the modified articles replaced the original articles. See Wang (1957), Vol. 1, pp. 27, 28. The Russian version is Additional Article of the modified Qiaketu Border Treaty (Dopolnitelna ctat k Kxtinckomy tpaktaty o peime pyccko-kitackix gpanic), see in China-Russia Border Treaties, Russian version, Beijing: The Commercial Press Bookstore, 1973 (for internal distribution), pp. 13, 24–27. 16 Gu (1925), p. 30. 17 Dai (1966), p. 168. 18 Sir Alabaster (1906).

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this unilateral sense of identification was mainly a subjective understanding of the Qing people, therefore the Portuguese, Dutch and British merchants in Guangzhou and Macao also fell into the category of “foreign capitulants”. In emperor decrees, archives of the Board of Punishment and memorials to the throne submitted by local officials, this article was mostly cited in dealing with European merchants in Macao and Guangzhou. Ruan Yuan, the Governors-general of Guangdong and Guangxi, sent a memorial to the throne reviewing the investigation of murder committed by a British sailor in 1821 on the ship Topaze as follows: “foreign soldiers who commit crime in China shall be treated and tried as foreigners according to Chinese laws.”19 As a matter of fact, in the 1832 New Compilation of Qing Law Modifications, three abstracts of cases involving Europeans are attached to the article of “foreigner crimes” to set an example, they are sufficient to prove that the European merchants in Macao and Guangzhou fell into the category of “foreign capitulants”. In trials of conflicts between Portuguese and Chinese people in Macao, according to Guangdong magistrates, the Portuguese and Chinese parties were seen as equal, since “they all live at Macao for a long time and hence residents of this county”,20 it is a more vivid explanation of the term “foreigner capitulants”. Legal provisions inherently serve as a binding and guiding norm, but “law on paper” is complementary and coexists with “living law”, usually a generalization, demonstration and confirmation of the actual practice. Although statutory expressions and judicial practice sometimes may show conflicts and contradictions, interaction and assimilation as a structural process are also frequent between the two. Before the Opium War, the Portuguese at Macao enjoyed limited autonomy, which is seen by some scholars as “de facto legal exterrtraterritoriality”. In the 23rd year of Wanli in the Ming dynasty (1595), the city council was established by Portuguese at Macao as an autonomous organ, with extensive authority, including electing judges and notaries. It represented the commencement of jurisdiction exercised by the Portuguese. Usually, trivial civil cases and criminal cases among Portuguese (and other foreigners) were tried by the judge; large cases were tried by a formal court organized by the governor. The appeal of criminal cases can be lodged to the chief judge at Macao and a higher court at Guoe. The Report of Macao, a book completed in the 16th year of Qianlong’s reign (1751), described the trial and punishment of Portuguese: “When a foreigner committed crime, the chief officer would gather foreign clansmen at the council or invite the chief judge to make the investigation and the final sentencement, either confiscated the criminal’s property or dispelled him from his family circles.”21 Ce Leng, the General of Guangzhou, also mentioned in his memorial to the throne that “foreigners have been residing in Macao at fairs or on ships for 200 years since the Ming dynasty. The population of foreigners is over three or four thousands. Their foreign king sent chiefs there to govern them. When they commit crime, the chief would punish them by foreign laws, for felonies the convicts are hung on a high pole, to be shot into the sea by cannon, for misdemeanors the convicts are sent to the Sanba 19

First Historical Archives of China (1992), Book 1, p. 36. Liu Fang (1999), p. 334. 21 Yin and Zhang (1992), Vol. 2, “Part for Foreigners”, p. 152. 20

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Church, to kneel before God and make their confessions.”22 However, the Portuguese court at Macao never tried Chinese defendants; all the cases involving both Chinese and foreigners were tried by Qing judicial organs. In the 8th year of Yongzheng’s reign (1730), the Qing government established a yamen at Qianshanzai in Macao for the assistance of county magistrates in Xiangshan County to try all cases concerning Chinese residents or foreigners. In the 7th year of Qianlong’s reign (1742), Pan Siju, the Surveillance Commissioner of Guangdong province requested the “appointment of an assistant to be solely responsible for foreign affairs at Macao, just as the assistant responsible for Yao minority affairs, the assistant will also be responsible for police and coast defense, to show the empire’s benevolent administration and the rule by our law. Foreign residents at Macao shall be registered and checked when foreign ships come or leave. If there are hidden criminals or abetting of conflicts between foreigners and local residents, thefts or slave trade, or smuggling illegal items, thus all such crimes can be investigated.”23 In the 8th year of Qianlong’s reign (1743), the Qing government granted the appointment of an assistant of coast defense and civil affairs at Macao. In the 8th year of Qianlong’s reign (1743), the killing of Chen Huiqian by a Portuguese named Andrew played an important role in the issue of the royal decree in the 9th year of Qianlong’s reign. At the end of that year, Chen Qianhui, a local merchant, was drunk and met with Andrew on the way, there was a quarrel, and Chen was killed by Andrew with a dagger. The family of the victim did not accept the compensation from the Portuguese side and reported the case to the Chinese police authorities, the Xiangshan county magistrate made investigations and interrogations before filing the report to higher governments that foreign criminals should be tried within Macao. Therefore, after the investigation and interrogation, the foreign chief put him in custody and refused to surrender him. Ce Leng, the governorsgeneral, and Wang Anguo, the provincial governor, ordered the regular delivery of this convict. The county magistrate repeatedly requested the surrender of the convict, but the Portuguese governor rejected the request by saying that “foreigners residing along the border of Macao, all criminals are all punished at Macao, for 100 years, criminals are not surrendered, Andrew killed Chen Huiqian, he shall be punished by Chinese law, sentenced and punished, but the surrender of him is against Portuguese law, and for that all Portuguese officials at Macao shall be sentenced to death, so please follow precedents in giving punishment by Portuguese law.”24 Ce Leng, the governor-general, considered that “cases involving Chinese and foreigners, when the criminal is a foreigner, the local magistrate will not surrender him out of Macao since they belong to the same church. Because the matter is hard to investigate clearly, such 22

“Ce Leng, Guangzhou General’s Memorial to the Throne on the Killing of Chen Huiqian by Andrew”. (the 15th day of the first lunar month in the 9th year of Qianlong’s reign), see First Historical Archives of China (1999), Part 1, p. 198. 23 Pan Siju. “Request at the Throne for Establishing Assistant of Magistrate at Macao Specialized in Foreign Affairs”, see First Historical Archives of China (1999), Part 1, p. 193. 24 “Ce Leng, Guangzhou General’s Memorial to the Throne on the Killing of Chen Huiqian by Andrew”. (January 15, the 9th year of Qianlong’s reign), see First Historical Archives of China (1999), Part 1, p. 198.

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cases are usually not reported and investigated. Even if such cases are reported to senior officials, the fact must have been fabricated to change felonies into misdemeanors. For example killing during an affray is reported as negligent homicide, so that the case can be luckily settled outside. Therefore throughout historical archives, we can never find a case in which a foreigner was punished for killing a Chinese, this time, on one hand, we capture him and put him in prison, the foreigners may suspect and abet conflicts, on the other hand, if we acquiesce the custody by the foreigners, the surveillance commissioner cannot decide on a verdict and get confession from convicts without investigation of a case, and in a long time if the criminal hide somewhere or escape, this may increase foreigners’ disrespect of law.”25 In addition, foreigners were different from Chinese in criminal cases, if the case was investigated and confessions were made as usual, foreigners must be reluctant to surrender the criminal, then the local magistrate was to be punished by law, we were afraid that the care for one’s merit in performance tended to tolerate the evil while in fact this toleration abetted it, so it was advocated that “from now on, foreign murderers shall be hanged, if the foreign convict is willing to be punished, the county magistrate shall make a careful investigation through interrogations, and the results shall be reviewed by the surveillance commissioner before reporting to the governorsgeneral and governors for approval, meanwhile local officials and foreign chiefs shall be asked to punish the convict by law, and make truthful report of the case.”26 Qianlong sent Ce Leng’s memorial to the Board of Punishment for discussion, the Board of Punishment replied that: “the law says that foreign convicts shall be tried and sentenced by law, and justice shall be strictly a balance of the crime and the punishment, other matters like imprisonment and confessions are not necessary to follow inland procedures. Doing so may lead to difficulty in investigations and trials.”27 In the 9th year of Qianlong’s reign (1744) the emperor’s decree was issued and followed the reply he got from the Board of Punishment, the foreign murderer in this case to be hanged was executed jointly by the local Qing magistrate and the “foreign chief” in accordance with law. The exemption of imprisonment and surrendering for investigations became a binding precedent for succeeding cases. This was the first legal document concerning trying and settling foreign cases in Chinese history. The decree in the 9th year of Qianlong’s reign was adhered to as a principle in dealing with succeeding cases as a rule, but the struggle for jurisdiction at Macao between Qing government and Portuguese colonial authorities lasted long. In the 13th year of Qianlong’s reign (1748), two patrol Portuguese soldiers beat Jian Yaer and Li Tingfu to death, Chinese authorities demanded the Portuguese authority at Macao to surrender the criminals for punishment, the Portuguese rejected this request, the gate was closed and the trade was terminated, so the Portuguese officials had to exile the criminals to Trimor Island, and mediated by bribing Qing officials. The 25

Yin and Zhang (1988), p. 35. “Ce Leng, Guangzhou General’s Memorial to the Throne on the Killing of Chen Huiqian by Andrew”. (January 15, the 9th year of Qianlong’s reign), see First Historical Archives of China (1999), Part 1, p. 199. 27 Yin and Zhang (1992), p. 90. 26

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Guangdong authorities fabricated an excuse that the case was exceptionally hard to investigate, and since bribery was taken, they prevaricated that the criminal is a madman, so the capital punishment was alleviated and the convict was exiled according to Portuguese law. The treatment of this case made Qianlong very angry; in his decree, he criticized that “foreigners in the inland shall be cautious and abide by the law. They were already arrogant in killing inland civilians, and they even threw the bodies into the sea to conceal murders, they are so fierce and cunning. A life shall be compensated with a life. If only inland laws are followed and exile after stick flogging, foreigners will become wilder with ferocity, and this treatment is very wrongful. … for felonies like this in the future, the law shall be strictly followed, in order that foreigners be aware of the rule by law, to avoid future violence and keep the local society peaceful.”28 After the issuance of Qianlong’s decree, local officials in Guangdong were disciplined. In the next year (1749) Zhang Rulin, the former coast defense assistant to magistrate, who had been dismissed from office as a result of this case, drafted 12 articles titled The Aftermath Settlement Pertaining to the Foreigners at Macao (澳 澳夷善后事宜条款). After Guangdong governor obtained the approval of the emperor, the regulation was inscribed on a monument in Chinese and in Portuguese at Xiangshan county yamen and the Macao council. The provision states that: “with the exception of murderers who deserve the death penalty, in the future treatment of foreign criminals at Macao shall follow the precedent of the 9th year of Qianlong’s reign, the investigation shall be careful, the foreign criminal shall be surrendered to nearby county police chief and the foreign chief, the criminal shall be imprisoned in a safe place, getting the police chief’s official seal, and put him in custody with a record, and then the exemption of surrendering for investigation can be conducted; meanwhile the details shall be reported to the police officer in charge to have a careful review, if the punishment is commensurate local magistrates and foreign chiefs shall execute by law. The criminals deserving exile or imprisonment shall be surrendered to trial courts and interrogated near Macao, imprisoned by foreign chiefs for separate custody. After a verdict is decided and review approved, the convict is punished with help from the foreign chief. If the criminal is only to be stick-flogged, order the foreign chief to interrogate, and report to the yamen in charge of confirming the crime, and the local magistrates order the foreign chief to punish him.”29 The English version of the Portuguese regulation can be seen in a book by Swede named Anders Ljungstedt (1759–1835). The book is entitled An Historical Sketch of the Portuguese Settlements in China: And of the Roman Catholic Church and Mission in China (J. Munroe, 1836).30 The regulation provided that if a Catholic killed a Chinese, the procedures followed former customs, that is, the case was reported to the Portuguese king for settlement and so on. From this, we can see that although Qing court imposed a big pressure for the Portuguese authority 28

Sacred Instructions of 10 Qing Emperors (1965), Gaozong, Book 4, Vol. 195, Strict Laws, X, p. 2576. 29 Yin and Zhang (1992), Vol. 2, “Part for Foreigners”, p. 92. 30 It was usually translated as An Historical Sketch of the Portuguese Colonization in China by Ljungst. Actually, “Andrew Ljungstedt” was his English name.

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at Macao to follow Chinese law, the moment when this legal expression was put in inscriptions the resistance as inerasable counterparts was written into power relations, like a ghost hovering every corner of the network of power. Before the end of the eighteenth century, Macao was a relatively close space segregated by the power grids of the Qing government. While the Qing government established a neighborhood administrative system to fractionize the distribution network of power antennas, Macao and adjacent areas were a relatively separate space, which facilitated the internal autonomy of Portuguese. Then, the Portuguese colonial authorities also prohibited Chinese residing at Macao from securing exclusive occupation of the place for “self-government by law”. However, the cross-regional trade feature of Macao made the artificial border of administration unavoidably pregnable to breaking through, not only because bilateral trade prospers with time but also because many Chinese people rent houses at Macao; therefore, the “living together of Chinese and foreigners” becomes a fact. Conflicts between Chinese and Portuguese people concerning debts and real estate were so common that they had to go to court, fights, thefts and murders. Before the Opium War, the Chinese agent in conflict with Portuguese would bring cases, lawsuits, charges, etc. in written form to the police chief and magistrate of Xiangshan County, while the Portuguese accusers in lawsuits would first report to Portuguese authorities, after a preliminary understanding of the cases, an agent would be assigned for the Portuguese accuser, the Chinese version of the case details was brought to the police chief and the magistrate of Xiangshan County for trials. This process represents a traditional way of treating western foreigners in the Qing dynasty. This process connotates the suzerain-vassal state idea and bureaucratic power, which also shows that the Qing government adopted a practical approach due to a lack of information. When murders of Chinese happened, the trial proceedings were started by the magistrate of Xiangshan County as his duty. Evidence can be found at the National Archive of Torre do Tombo, where there is an official letter to the council from Peng Zhaolin (magistrate of Xiangshan County) concerning the arraignment of Portuguese criminals in the 10th year of Jiaqing’s reign.31 Before the Opium War, the Portuguese at Macao had a traditional idea of consular jurisdiction, but their understanding was far from the Qing government. On August 19, 1805 (the 10th year of Jiaqing’s reign), Xiangshan County magistrated sent an official letter to Portuguese councilor: “You visitors live at Macao at our emperor’s mercy, you come far to trade here, you are allowed to build houses since you do not have residence, regulations are provided and inscribed on monuments. The murders of foreigners by foreigners are judged by yourselves. If a foreigner kill a Chinese, local magistrates shall investigate and identify the features of the criminal, before surrender the criminal to be imprisoned by foreign chiefs and report to senior officials, officials are assigned to join foreign chiefs to execute the punishment, this is a long tradition in record.”32 Even at Macao there were “foreign visitors who

31 32

Liu (1999), p. 337. Liu (1999), p. 341.

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are not governed as registered population since that seems too strict for guests”,33 “foreign law is used for minor cases to reduce trouble, Chinese law is used for big cases strictly to avoid negligence”,34 but Qing government deems Macao part of its territory, long-term foreign residents at Macao are seen as native residents, they shall follow Qing laws. In other words, Portuguese at Macao “are foreigners”, but they live there “just as common civilians”. Macao was still within the administrative scope of Qing law, and the limited judicial autonomy was a special gift rather than a privilege awarded by law in the eyes of Qing court; therefore, it was hardly comparable with consular jurisdiction in modern Western international law. The Portuguese authorities at Macao and Qing government made a dialog like that between two deaf persons, but Macao as an “interlaw” center target of different systems and ideas, the competition for power was so fierce that a storm was looming, the opium poppy flower of consular jurisdiction was already in bud. In the 57th year of Qianlong’s reign (1792), the Portuguese councilor at Macao requested Xu Dunyuan (the magistrate of Xiangshan County) to assist the Chinese government with ships in the pursuit of pirates at sea and took this opportunity to request nine applications for approval from senior officials and inscribe the nine things on a monument. The applications included murders being judged by county magistrates, other crimes committed by Chinese being punished by the Portuguese, and Chinese murders of Portuguese being punished in Macao. However, it was turned down flat by Xu Dunyuan.35 Both the Portuguese colonists and Qing government refused to compromise on the territory of Macao, Qing government’s judicial power might not be smooth at Macao, but on the whole, power was not surrendered to foreigners as one who holds the sword backward. Just as Gu Weijun said in Foreigners’ Status in China, “in the old days Chinese officials’ understanding of sovereign territory government was indistinct. However, their main ideas are similar to those advocated by modern jurists. In the territory of China, the emperor’s law was the most powerful thing. Foreigners could stay in China only out of his mercy. Foreigners followed the laws that are also followed by Chinese subjects; both foreigners and Chinese subjects were punished in the same way.”36 However, the Qing government did not want to have troubles of investigations and punishments if the cases could be settled peacefully. The limited tolerance toward Portuguese internal judicial autonomy at Macao cannot be deemed a waiver of jurisdiction. Morse was right when he said that to any other states they have never recognized their status, and awarded the power, in fact, they never recognize the existence of a country in the sense of an independent sovereign state.37 Before the Opium War, Guangzhou had foreign merchants living among Chinese residents; lawsuits involving foreigners were increasingly common. In contrast to 33

Quoted from a secondary source. Weng (1999). Zhang Zhentao. “Suggestions to Guangdong Governor on Government of Portuguese”, see in He (1972), Vol. 83, Defense 14, Coast Defense 1, in: Modern Chinese Historical Materials Series, Book74, 731, p. 2983. 35 Liu (1999), p. 410. 36 Gu (1925), p. 26. 37 Morse (1910), Vol. 1, The Period of Conflict 1834–1860, p. 112. 34

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what is called the “Macao mode” by some scholars, British merchant ships at sea were harder to govern than Portuguese people living in one place, and the British people backing up by a powerful empire were more unruly. In the mid-eighteenth century, the Qing government repeatedly issued laws and regulations directed toward foreign merchants in Guangzhou, and the Archives of East India Company compiled by Morse preserved many translated regulations issued by the emperor and local officials. In 1810, George Thomas Staunton (1781–1859) published a translation of the Great Qing Code with Substatutes, which was taken by the British East India Company to protect itself and negotiate with the Qing government. However, paper laws constitute both a governance framework and an opening for willful distortion of intentions by the agent in specific judicial practice. Thus, the paper laws are to be fixed only after modifications are made to them in practice. The progress of construction and the structure of progress are ever-changing and interactive as a whole in judicial practice. On September 29, 1754 (the 23rd day of the eighth lunar month in the 19th year of Qianlong’s reign), a British sailor named Charles Brown was shot dead by a French man named Chevalier at Huangpu. Yang Yingju, Governors-general of Guangdong and Guangxi, ordered the magistrate of Nanhai County to make an investigation at the scene. Qing government of Guangzhou demanded the surrender of the murderer for trials, but the French insisted on repatriating the murderer for trials, they claimed that if the victim was a Chinese, they would surrender the murderer to be punished by Chinese officials by law, but the murder happened between European people, it had nothing to do with the Qing government, therefore it should be tried by French law. The business representative of the British East India Company argued that France did not have jurisdiction over the case and asked the Qing government to punish the murderer while persuading commerce representatives of other countries to support their interests. Even though these representatives harbored worries about the Qing government’s intervention in internal disputes among European people if it became a regular practice, their attitudes were more or less ambiguous.38 Guangzhou police authority forced the French to surrender the murderer by a conventional method of blocking warehouses and terminating trade. However, Qianlong’s solution was very perplexing in his decree: “the competition and the murders among foreigners themselves are not necessarily punished by Chinese laws. All murderers shall be brought back to France on their ships, and due death penalty sentences shall be sent to the foreign leader for their own execution. The governors-general and governors shall instruct foreign ships from all countries that future crimes shall be suppressed by commissioners assigned, in hope that all foreigners do trade while abiding by law.”39 The murderer was imprisoned by Guangdong government, only to be released in name of general pardon in the next year when the French merchant ship went back. Qianlong’s decree was later quoted by Qing government when they found crimes incurred among foreigners were hard to deal with and avoid responsibility, therefore

38

Keeton (1928), Vol. 1, p. 33. Veritable Records of Qianlong (1960–1970), Vol. 476, for the eleventh lunar month of the 19th year of Qianlong’s reign, p. 6924.

39

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during Opium War Qi Ying cite the case of Chevalier as a precedent and a reason for awarding foreigners’ with consular jurisdiction. The image of Qianlong is truly not a monolith. As emperors of a large country, sudden and drastic variations in his actions and decisions were usually a demonstration of his unfathomable might. If we ignore the emotional color of language and keep the neutral meaning, “chameleon” is not a bad name for him. Qianlong’s solution to the case of the ship Lady Hughes shows a macro interactive panorama across a fast-changing domestic political scenario and events abroad. In the tenth lunar month of the 49th year of Qianlong’s reign (1784), Lady Hughes, a British bulk cargo ship anchored at Huangpu after a voyage from Bombay. Two Chinese people were killed, and one was injured by accident when the ship fired a cannon salute. After that, Chinese officials demanded Frederic Pigou (1711–1792), chairman of the council of the East India Company (EIC) to surrender the cannoneer to Qing government for trials, the response was that: “in the past events we have declared that we are not responsible for British merchant ships, therefore on this matter, George Smith, the manager of ‘Lady Hughes’40 is more appropriate than us to meet their demands, we are only mediators, if they will guarantee that the demand is just the interrogation of a person in the commerce hall without more demands, we can persuade Smith to surrender the person for investigations, anything beyond that is not within our purview.”41 Pan Qiguan, a businessman accompanying Qing officials to the commerce hall told George Smith that “only low-rank officials will deign to come to the Pan Qiguan, a businessman accompanying Qing officials to the commerce hall. Therefore, he must go to the governor’s court for trials, when he is brought to the commerce hall, soldiers from Nanhai County will capture and bring him away.”42 Pigou insisted that “soldiers are not allowed at the commerce hall, this will frighten the Europeans, if this practice is allowed, we cannot imagine our security can be protected, if they insist on this, the matter cannot be solved, because they cannot put any one in danger as we assume.”43 Deep at night, Qing officials came again and allowed Smith to surrender only the cannoneer for trials at the commerce hall, and the magistrate of Nanhai County would not bring soldiers along him, only regular attendants were with him to hear the trial. On the next day, to encourage the surrender of the cannoneer, Qing officials detained Smith and sent him to the provincial capital for a forced detainment, soldiers surrounded the commerce hall, the communication between the commerce hall of Guangzhou and foreign ships at Huangpu was cut off, and all foreign trade was terminated. Foreign merchants, including British merchants at Guangdong, gathered small warships sailed from Huangpu to Guangzhou for violent resistance of law. Sun Shiyi, Governors-general of Guangdong and Guangxi instructed the British merchants that the cannoneer killed local residents, “no matter intentional or negligent, the concerned must be brought to justice at court as provided, now three days have passed, you have not surrender the cannoneer yet, it is sufficient 40

Usually, translated into Chinese as “xiusinvshihao”. Morse (1991), Vol. 1 and Vol. 2, p. 422. 42 Ibid. 43 Ibid. 41

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to prove that you are resisting law, as a precaution, Smith will be detained in the city, and you are allowed to send a letter to Huangpu to surrender the cannoneer for trials, after the cannoneer is here, George Smith will be sent back; I suggest you be abide by the law and behave yourselves, and follow my orders without any resistance, otherwise we will order soldiers to set up guns along the river to Humen, to cut off your way back, until you abide the law. You are dreaming of what might to resist law of our country, you should rethink about it lest you regret.”44 On the 4th day, Sun Shiyi adeptly used trickery of divide and rule, at his office representatives from other countries were invited for a feast and gifts, Qing government’s policy was explained and all representatives except the representative of United States changed sides. Finally, the British had to surrender the cannoneer, and the trade ban was lifted up. The trade ban and armed confrontation certainly cost much for the Guangdong government and foreign merchants, the fierce collision of both sides was driven by the balance of interests and damages, room had be left for negotiations on both sides, therefore the cases ended in the surrender of the criminal by the British for trials. In this case, the controlled dialectic method was obvious, but as a senior official, Sun Shiyi should maintain the jurisdiction over the offender as the legal system required while making promises and guarantees to the British in compromise to settle the case immediately. In his report, he said that the British cannoneer committed “manslaughter”45 and asked Qianlong for the mercy of returning the criminal back to Britain for punishment. Qianlong was perceptive of the slightest, and he was very angry with the perfunctory deed under cover of mitigating the felony after confirming it. He criticized Sun Shiyi for wrong handling of the matter.46 At that time, Qianlong was not as benevolent as in his early years for a correction of his father’s sternness; the older he was, the more sophisticated he was in politics. Just in that year, the Hui people at Shifengpu rebelled, which caused great panic in the entire society, and the foreign missionaries’ covert work in inland areas troubled Qianlong much. He was fearful that the missionaries and the Han nationality would work together to overthrow his rule, so numerous suspects across the nation were captured and sent to the capital for trials. Qianlong was already complaining “foreigners’ spread in many provinces mainly because Guangdong officials are not careful in checking them”, and at this moment, Sun Shiyi did not achieve good results in the capture of foreign missionaries in this movement, so this case irritated Qianlong. For this reason, Qianlong flew into a rage after knowing the solution of the case of Lady Hughes, and he cancelled Sun Shiyi’s opportunity to be invited to the capital for a feast of one thousand longevous men. Robin R. Edwards at the law school of Columbus University said that the severe punishment of the cannoneer on Lady Hughes was aimed at intimidating foreign residents against their assistance in the missionaries’ entry to China. The 44

Morse (1991),Vol. 1 and Vol. 2, p. 424. First Historical Archives of China (1999), Part 1, “Instruction to Shu Chang (the governor-general of Guangdong and Guangxi), etc. to Reject Sun Shiyi’s Coming to the Capital for the Old Men’s Feast but Going Back to Guagdong to Investigate Foreigners’ Case”, (on the eleventh lunar month 11 of the 49th year of Qianlong’s reign), p. 451. 46 Veritable Records of Qianlong (1960–1970), Vol. 1218, for the eleventh lunar month of the 49th year of Qianlong’s reign, p. 17820. 45

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settlement of the case illustrated the principle that in the violation of Chinese law by all foreigners, not only the violation of law by a certain person but also potential problems in foreign affairs were also taken into consideration. Therefore, in dealing with cases involving foreigners, political considerations were also significant, for example, anti-foreign feelings or universal worry over subversion by missionaries.47 The case of Lady Hughes was a turning point in the struggle for jurisdiction between China and Britain. This case was the first death penalty sentenced to a British citizen by law for murder of Chinese in the Qing dynasty and certainly a policy signal encouraging Guangzhou officials’ exercise of jurisdiction over foreigners. On the other hand, from then on, British merchants took extreme protective measures and delayed the surrender of criminals and actively sought their government’s assistance in establishing extraterritoriality in China. After the event of Lady Hughes, British commerce council in Guangzhou wrote a letter to the board of East India Company in London to express the request that they would not follow the criminal jurisdiction of China and the board should approve a proceeding that “for murder cases, murderers shall be tried by use in the presence of local Chinese magistrates; if he is guilty, he should be extradited; however, if he is innocent, then we should protect him. … if the murderer has escaped, no substitutes shall be pursued.”48 The burgeoning of consular jurisdiction becomes clear by this moment. Just as Professor Edwards says, during the interim between the case of Lady Hughes and the Opium War, in Britain, there was a popular view sympathizing with the establishment of a British court in China. However, government leaders and jurists shared the view that under contemporary international law, unless China has granted a binding international treaty, it is still illegal to establish a court with jurisdictional competence.49 Encouraging the grant of such a treaty became one of the key aims in sending delegates to China by Britain in succession.50 In 1787, the British government sent Charles A. Cathart (1759–1788) to China, and the instruction to him writes, “Our commerce leaders are clearly rejected to enter the court of that country, they don’t know the justice in the execution of their law, and the laws of that country is always very arbitrary and ruthless in repression, incongruent with important concerns awarded to them. In any self-assumed civilized countries, such things are impossible to happen. … whether such vices in fact arise out of the set policies of the empire government, … or out of the corruption and abuse of power of distant provincial government, you should make a careful investigation.”51 The British government also instructed Cathart to find a distributing center in China and obtain exclusive jurisdiction in this area in negotiations with Qing government. Cathart fell ill and died on his way, but the British government did not terminate the efforts for a breakthrough. In 1792, the British government again assigned George 47

Edwards (2004), p. 481. Bitchard (1936), p. 229. 49 Edwards (2004), p. 482. 50 See the petitions of East India Company in the materials below: Christmas and Fitzclarence (1836), Vol. 20, p. 167. 51 Morse (1926), Vol. 2, p. 160. 48

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Macartney (1st Earl Macartney, 1737–1806) to visit China, with a request for consular jurisdiction in the instruction. From this, we can see that with the tighter connections between the Western world and China in the fields of economy, law and culture, the impact of the Lady Hughes cases spread from senior politicians in Guangdong to those in Beijing and London. The interaction and entanglement in macrofields was activated, and the construction of the world spatial scenario was burgeoning in minor cockles. Before the Opium War, since the curtain had not been lifted for the direct confrontation between the law cultures of the West and China, language and communication challenges became a bottleneck for the Qing government in dealing with cases involving foreigners in Guangzhou. An American named William C. Hunter (1812–1891) in his book entitled Bits of Old China (K. Paul, Trench & Co., 1885) recorded the farce in 1837, which is obviously special and exaggerated when the Guangzhou mayor and the county magistrate trialed mistakenly due to bad translations of the interpreter,52 but just as Ruan Yuan, the Governors-general of Guangdong and Guangxi, says in his memorial to the throne in 1821 concerning the proceeding of cases involving foreigners: “Chinese officials do not understand foreign language, therefore the foreign chiefs are required to find the criminal, make interrogations, before surrender the foreign criminal for trials at the provincial court with interpreters, then record the confessions and punish him.”53 However, what Ruan Yuan says in this memo is only a brief of such trials before Opium War, and the image of a big empire covers up the fact, hiding the flexible operation and gradual aberration in the judicial practice with this image. For example, the case of Providence watchman’s shooting of Chinese in 1800 (the 5th year of Jiaqing’s reign) deserves special notice here. After the case, Qing government still depended on merchants, guarantor merchants and foreign chiefs and their acquaintance of foreign language advantage to capture criminals in the name of protecting their interests, however the supervisor of Providence found an excuse that Providence is ship of the British government rather than East India Company, “and he declined the intervention by the taipan and merchants”, therefore “toppled the base of the customary proceeding in foreign trade in Guangzhou”,54 so the case was investigated and trialed by the Guangdong surveillance commissioner together with the mayor of Guangzhou, the magistrates of Nanhai and Fanyu counties at the provincial court, John Dilkes, the British taipan, and the interpreter Thomas Staunton presented the interrogations. Dilkes showed evidence to counteraccuse that the injured Chinese had tried to rob mala fide and tried to use the right of initiation in court proceeding, and he was ordered to be kicked out of the court. Not to mention the final outcome of the case, but the new trend in the form of trials is truly interesting here. In 1807 (the 12th year of Jiaqing’s reign), a sailor on the British ship Neptune killed a Chinese in a fight. According to Morse, this is the first time Britain was allowed to attend Chinese trials. In Hosea B. Morse’s book, The Chronicles of the East India Company Trading to 52

Hunter (1992), pp. 23–29. First Historical Archives of China (1992), Book 1, p. 29. 54 Morse (1991), Vol. 1 and Vol. 2, p. 649. 53

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China, 1635–1834, the author described the trial as follows: in the old commerce hall of East India Company in Guangdong, the Qing government assigned 7 judges, who took seats behind tables in the hall, to the left of the judges four merchants took their seats, with no tables in front of them; to the right of the Chinese, which was a less respectable position, Captain Rawles, Cheever, Parter, Bramston and Sir Staunton took their seats, with no tables in front of them. Two naval soldiers in red uniform maintained order with bayoneted guns.55 On the one hand, the “foreign chiefs” had attended the Qing court in the past, but they used to be anxious about their safety. They might even be imprisoned as hostages for surrenders of criminals, but they were already very arrogant as Dilkes disputed in court in the cases of Providence, and in the case of Neptune, the British captain Rawles was already a seated guest, which demonstrates some minute changes in the dominant situation. On the other hand, although Guangzhou officials of Qing government finally convicted the criminal as in a manslaughter case by Qing Law and Regulations, which was seemingly maintained, the punishment was merely a compensation in silver, “this is almost a changing of a felony into a trivial dispute”.56 The judicial practice of the Guangdong government was not only communicated through official documents exchanged between local governments and the Forbidden City in Beijing but also influenced the sensitivity of British parliaments. After the case of Lady Hughes, in 1788, Cathart was assigned to visit China. In the instruction issued for him, he was required to “manage to obtain police and jurisdiction over British citizens in favorable situations”, which is the first attempt to enjoy extraterritoriality in China. Carthart died on his voyage; thus, the plan was aborted, but in 1792, the British government sent Macartney to China with the same attempt. In 1787, the British government issued an ordinance to endow the East India Company council with the power of capture, custody and repatriation of people, ships and goods within the city of Guangzhou, the commerce hall and waters near Guangzhou. Foreign jurists claim this to be the first legislation concerning extraterritoriality in China. In the early 1830s, due to the popularity of liberalism in the economy, the monopoly of trade with China by the British East India Company was abolished. In June 1833, George T. Staunton, a member of the House of Commons, proposed the establishment of a British navy jurisdiction in Guangzhou. He stated that “due to the influence of punishing foreign murderers by Chinese law in China, the current trade conditions require the parliament to figure out a solution, since the Chinese law was unbearably crooked, the British people refused to abide by it in the last 49 years, due to disobeying of Chinese law, trade is not allowed for both guilty and innocent people, therefore the British commercial interests is severely harmed, for convenience, a local naval jurisdiction shall be established, endowed with purview of trying and punish such criminals, and avoid the extreme conditions caused by Chinese law.”57 This proposal was voted down, but Staunton immediately submitted it to reading in the House of Commons in the name of regulating the trade with China and India, and this act 55

Morse (1991), Vol. 3, p. 41. Ibid., p. 43. 57 Quoted from a secondary sources, Kang (2000). 56

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was passed eventually. The 6th article of the act is the establishment of a court with jurisdiction over criminal and maritime affairs in or near Guangzhou. The British ambassador of commerce was first in charge of the court to deal with cases involving British people in port cities and within 30 miles of the high seas. Considering that the conditions were premature, Lord Parlmerston (1784–1865), the ambassador to China, advised in his letter to William J. Napier (9th Lord Napier 1786–1834), the first British commerce supervisor in China that before careful considerations, the court should not be organized in scurry according to the order of the Privy Council. In 1836, the British government appointed Charles Elliot (1801–1875) as a commerce supervisor, and this cautious policy changed. In July 1838, Parlmerston proposed the establishment of a court with wider power in China in the House of Commons. The proposal claimed that “to maintain the peace for the British people trading with China, and the good relation between the British and the Chinese people, and the avoidance of conflicts, one or more courts with jurisdiction over criminal, maritime and civil affairs shall be established by Britain in any parts of China or port cities or within 9 miles from the coast, to deal with all criminal cases involving British people in China or within the port cities, together with the high seas within 100 miles from the coast, and within the purview of the court, all civilian cases of trade conflicts, the cases to be accused before her majesty or the court in India as provided by the order of the cabinet are also to be tried by this court … the court is also responsible for issuing any statutes or bans concerning the behavior, rights and obligations of British merchants; with the jurisdiction over criminal, maritime and civilian affairs in the execution.”58 This proposal set the jurisdiction wider than the act passed in 1833, but it was immediately declined by Sir Benjamin Hawes (1797– 1862), a member of parliament, Hawes criticized the mistakes that “at present there is no sign that the Chinese government will recognize the jurisdiction you proposed for the court. I want to ask you, will the Chinese government confirm your intervention of Chinese law in such a way? How can the court in your proposal execute the jurisdiction? If the accused is a Chinese, and he refused to turn up at the court, after a sentence made, except by strength, do you have power to exercise the jurisdiction of the court?”59 After listing the fact that the Qing government persisted in punishing foreign criminals in China by law, he stated that “from this we can see the Chinese government is clear about its position, and the permission for the organization of the court has to be admitted by their government in advance. Since British people are allowed to do business in China, they should follow Chinese customs, and British customs should not be forced on Chinese. If this proposal is adopted and put in practice, then our trade with China must be in great danger”.60 Finally, since there were more nays than ayes, Parlmerston had to withdraw his proposal. Just as John Q. Adams (1767–1848), chairman of foreign relation commission of U.S. A said after the breakout of Opium War between Britain and China, “the Opium War is not for the import of opium, but an accidents in a larger contention, rather than a reason 58

Liang (1930), p. 12. Gu (1925), p. 79. 60 Ibid. 59

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for war, just like the dumping of tea from the ships into the water of Boston port was not the reason for the revolution in north America.”61 The breakout of Opium War was an epitome of deteriorating conflicts between Britain and China on various complex issues, and consular jurisdiction was one of the focuses in those conflicts. A foreign scholar pointed out that “since that time American and British commentators has been holding a strong belief that in 1839 the real problem was not opium but consular jurisdiction.”62 The debates in the British parliament and the clashes for jurisdiction between Britain and China were actually the precursor of the Opium War, indicating that consular jurisdiction would become “an issue to be judged by war”.63 After the breakout of the Opium War, the British government had made two plans beforehand to deal with China; the optimal plan was the opening up of five ports for trade, the permanent cession of one or more islands, the cancelling of trade monopoly by government companies, etc. The second plan aimed at demanding unilateral most-favored nation treatment and consular jurisdiction after the cession of territory is not allowed. On December 12, 1840, Eliot wrote to Qishan that since China refused to the cession of territory, Britain would give up this demand but would negotiate on four issues not on the original schedule, i.e., tax and tariff items, free trade, exchange of captives, and “the establishment of judicial courts to try British people accused”.64 This is probably the first proposal of jurisdiction after the Opium War, but Qishan did not say anything upon the new demands proposed by Eliot in his reply. After the British seizing of Hong Kong in January 1841, Eliot issued a unilateral declaration of jurisdiction over Chinese and foreign civilians in Hong Kong, and in the Settlement Articles (often known as Convention of Chuanbi) he presented to Qishan, Eliot pointed out that “the Chinese criminals living in Hong Kong will be delivered to nearby local magistrates for trials; the British criminals living in China shall be delivered to a general manager, and tried in Hong Kong together with the local magistrates. The escaped Chinese criminals detected by the British officials shall be delivered to the local magistrates for punishments.”65 However, this pledged treaty was not recognized and signed by the Chinese representative, no agreements were made between the two sides, and the invalidity of the treaty was widely recognized by the world. On August 29, 1842, the Qing government signed The Nanjing Treaty under coercion with Britain, and consular jurisdiction was not provided in it. According to The Nanjing Treaty, the Chinese traitors assisting the British during the war shall be immune to punishments. For this, for most Qing officials, the exemption of punishment of Chinese traitors was not to be repeated, to put an end to abuse of this by negotiating with the British that if such traitors commit other crimes they would be punished by Chinese courts. After the opening up of the five port cities, Chinese and foreigners lived together, the settlement of 61

Chinese Reposity, Vol. 11, May, 1842, p. 281. Jack Beeching (1975), p. 106. 63 Morse (2000), Vol. 1, p. 134. 64 Sasaki (1983), in: Modern Chinese Historical Materials Series (continued), 941, pp. 32, 33. 65 Ibid., pp. 82. 62

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litigations involving foreigners was a potential worry, and the contemporaries were eager to prevent such problems. Especially after the abolition of government trading companies in performing the treaty, Qi Ying said that “Debt is one of the causes of the litigations”,66 and a detailed regulation was in urgent need to avoid harms. Therefore, three days after the signing of The Nanjing Treaty (i.e., September 1, 1842), Qi Ying and Yi Libu, the imperial envoys, and Niu Jian, the Governors-general of Jiangsu and Zhejiang, were ordered by Emperor Daoguang, wrote an official note to Henry Pottinger (1789–1856), the British plenipotentiary, listing 12 issues to settle problems unmentioned in The Nanjing Treaty. In the note is the following sentence: “the future cases involving both British and Chinese people shall have a clear stipulation, the British side shall deal with British merchants, and Chinese are punished by the Chinese government.”67 After submitting this note, Qiying, etc. also explained that “if the fault is on the part of Chinese merchants and people, they are punished by local magistrates; if the fault is on the British people, they shall be punished by consuls.68 Qiying, etc. were famous for their practical dealing with the British, but restricted by time, the offer of consular jurisdiction out of ignorance was causing great harm. In the view of Qiying et al., the lawsuits between the British and the Chinese people in port cities were problematic. Due to differences in the laws of both countries, the Chinese and the British governments ruled citizens, and the settlement of a case would take many days. The rule of foreigners by foreign officials lies in the responsibility of foreign officials’ government of foreigners. For foreign people, they have their native judges, both showing benevolence to people from distance, and criminals can be captured and punished. It is truly a good permanent solution without favoritism or obstructions, and it offers justice, equality and convenience. Qi Ying, etc. thought this a clever scheme, and most contemporaries were not aware of the harm and criticized them. However, the irrevocable error was thus committed by surrendering one’s power to another as one who holds the sword by the blade. The proposal by Qi Ying, etc. fit in exactly with the wishes of the British representative. Sir Henry Pottinger replied immediately, saying that he completely supported the awarding of jurisdiction over the British people in China to British consuls, and this practice was truly appropriate, and he added that if minor lawsuits among the Chinese and the British people would be jointly investigated and punished by local Chinese magistrates and British officials in charge, this is the first time the proposal of joint trials by both Chinese and foreign officials appeared in formal foreign relation documents. Therefore, almost without difficulty, consular jurisdiction was first established in The Amendments to Jiangnan Accident in Septebmer, 1842 and became a prototype for obtaining consular jurisdiction for the British in The Treaty of Nanking. Article XIII of The Treaty of Nanking specified that “for the lawsuits involving British and Chinese people, all lawsuits brought up by British merchants against Chinese, must be reported first to the consul, who shall investigate the right and wrong and persuade them to waiver lawsuits. Sometimes when Chinese bring charge 66

First Historical Archives of China (1992), Book 6, p. 212. Sasaki (1983), in: Modern Chinese Historical Materials Series (continued), 941, p. 218. 68 Quoted from Guo (1995). 67

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against the British people, consuls shall hear the charges and settle conflicts to avoid felonies caused by minor disputes. If British merchants want to bring lawsuits to the superior officials, the consuls shall be responsible for the delivery of the charge; if there are inappropriate words in the charges, consuls shall ask them to correct before delivery. If lawsuits involving both sides and consuls cannot settle and the lawsuits have to be settled, then Chinese officials should be asked for joint investigation and try by law to avoid further lawsuits. The punishments of the British people are executed by consuls by the laws and regulations established by the British government. The punishments of Chinese shall follow Chinese law. All cases shall be dealt with in accordance with The Amendments to Jiangnan Settlement.”69 In comparison with provisions in The Amendments to Jiangnan Settlement, the provisions in The Treaty of Nanking are more concrete, practical and authoritative, but the meaning is still quite ambiguous. The first half of the article says that civil cases shall be mediated and dealt with by consuls, if this fails, Chinese and foreign officials shall jointly try the cases, while the second half says that criminal cases shall be tried by laws of respective countries, criminal offences and civil offences are ambiguously divided, but the border of the first half and the second half is not distinct, it seems that the civil offences mentioned in the first half shall be punished by respective laws, since the concepts of civil offence and criminal offence are not separate in Qing law, the translation here is confusing, and this blank in legal provisions left room for the British consuls to interferes with civil cases as well as criminal cases involving British people. On August 18, 1843, Muzhanga, the chief of Privy Council of Qing, also convinced in reviewing the article for establishing consular jurisdiction in The Treaty of Nanking that peace and settlement of disputes are important in trade affairs, and minor disputes should not cause felonies. The surrender of jurisdiction by Qing government is largely a hurling of itself into the net, the long-term habitual policy of detainment was adopted again, while big foreign powers took this to form a protection net to avoid Qing law. The Qing officials in charge of this treaty took the forfeit of sovereignty as a struggle for it, and harms to the country were considered advantages to the country. This is not a fault of foreigners, but a gap in time, in the confirmation of consular jurisdiction, the coercion of foreign powers’ warships and cannons and the self-restrictions of Qing government interacted, and the complex network of the external and internal factors certainly cannot be epitomized in the dualistic mode of “impact-reaction” and “conquer-resist”. After The Nanjing Treaty, the U.S. congress passed an act after heated debates to send an ambassador to China. President Taylor (1784–1850) appointed Caleb Cushing (1800–1879) as plenipotentiary to sign a trade treaty with the Qing government in China. Cushing was a graduate of law at Harvard University. He had been a lawyer and more professional than Sir Pottinger in negotiations and drafting of legal documents. On his way to China, he witnessed the benefits of extraterritoriality obtained at the west bank of the Arabian Peninsula by Britain and U.S.A. Moreover, Cushing relied on brain trusters such as Peter Parker (1804–1888), Elijah C. Bridgman (1801–1861), and Samuel W. Williams (1812–1884). These missionaries 69

Liang et al. (1993), p. 30.

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acted as interpreters, secretaries and consultants in probably all negotiations with China. The Cushing delegation was appointed mainly due to Parker’s lobbying in Washington, and before the Opium War Bridgman was editor of an English magazine China Repository, an important forum of Chinese law and consular jurisdiction. He spared no efforts to promote the acquisition of consular jurisdiction in China in the press, he was the champion for consular jurisdiction in China in theory, in practice he contributed most to incorporate the consular jurisdiction in a formal treaty. Tyler Dennett (1883–1949), an American historian, says that “through a comparison of China Repository and The Wangxia Treaty, we can see……it seems that some articles in the treaty were borrowed from previous discussions in China Repository.”70 Qi Ying, the Qing representative, was on his way to Wangxia village near Xiamen to negotiate with Cushing when the murder of Xu Yaman in Guangzhou happened, which became the direct motivation and reason for Cushing’s extraction of consular jurisdiction in China. According to the report by Paul S. Forbes, the American consul, there was a flag pole in front of the American consulate on the top there was an arrowhead-shaped vane, at that time there was a plague in Guangzhou, local Chinese believed the vane haunted there. On June 18, many Chinese overwhelmed the consulate to take the vane off, the Americans fired to drive them out, and in confusion, Xu Yaman, a standby was killed. After this, Qiying sent a note to Cushing which said that according to Qing law, any murder in fights no matter who is the first offender, the living one must receive death penalty, he asked Cushing to investigate the case, and punish by law. Cushing defended Americans from fired in emergencies for self-defense. Meanwhile, Cushing sent an open letter to the consul in Guangzhou explaining his claim that extraterritoriality in China must be obtained, which was a faulty in jurisprudence. He said that Europeans and Americans share a culture and a religion. They all abide by treaties and international law; therefore, they unit as one in the international community. In any foreign Christian country where Europeans and Americans live, if there are crimes, they shall be punished by local law. However, there is a great difference between Christian and Islamic countries. Christian foreigners in Islamic countries are subject to the judicature of ambassadors or other representatives from their home country; rather than the judicature of local law, American citizens in China must select one of the two principles above.71 Cushing based the demand for extraterritoriality in China on something parallel to the extraterritoriality in near-east Islamic countries. He believed that China had no knowledge of international law widely recognized in Christian countries; therefore, it was natural for American citizens to be subject to the protection and judicature of American officials in China. Cushing eventually persuaded Qiying to give up the demand of surrendering the criminal by bullying and bribing him, and on July 3, 1844, The Treaty of Wangxia was signed, this treaty imitates the British treaty but the consular jurisdiction was expanded and substantiated by details, the treaty set an example for unequal treaties later signed by other foreign powers with China to extract consular jurisdiction in China. 70 71

Dennett (1959), p. 473. Chinese Repository, Vol.XIII, pp. 525–526.

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In contrast to the British treaty, Article 21 and Article 24 of The Treaty of Wangxia respectively provided solutions to cases involving Chinese and Americans in the categories of criminal law and civil law. In criminal law, the doctrine for the defendant was adopted, and Chinese officials did not have powers to try and punish, an American defendant “is seized and tried by consuls, and is punished by American law”. (in the English version there is not the word “seized”, but “is interrogated and punished by consuls”.) In civil cases, “if disputes between Chinese and Americans cannot be mediated peacefully, officials from both countries shall investigate and jointly make a decision.”72 The ambiguity in the British treaty concerning civil and criminal consular jurisdiction offered Cushing more room in the drafting of the consular jurisdiction treaty, in The Treaty of Wangxia as a former lawyer Cushing express clearly the distinction, but whether the “joint decision” for civil cases involving both Chinese and Americans means “joint trial” was still not clear, therefore the topological space in the historical evolution was gradually burgeoning in the folds of events as termed by Gilles Deleuze. In addition, Article 25 of the treaty provides that property lawsuits of Americans living in port cities in China shall be investigated and settled by American consuls; if Americans in China have disputes with foreign merchants from other countries, such disputes shall be settled by the treaties signed between both countries, Chinese officials shall not interfere. Thus, the Qing government was excluded from jurisdiction over cases where both sides are Americans or one side is American and the other side is a person from a third country, and the consular jurisdiction expanded its power in space. The consular jurisdiction in this treaty is greater in legal space in comparison to that in The Sino-French Five-Harbors Trade Treaty (or The Treaty of Huangpu) signed three months later. The French treaty clearly limits consular jurisdiction to five port cities, for crimes committed in nonport cities and inland, Chinese jurisdiction still governs, but there is no regional restrictions in the American treaty, all crimes committed by Americans, minor or serious, are all applicable in the consular jurisdiction article, so that only when The Treaty of Tianjin was signed in June, 1858 between China and France, Article 38 of which modified “in five port cities” as “in China”, before the France was finally satisfied. In the 1847 Treaty of 5 Ports for Sweden and Norway signed with the Qing government and the 1851 Yili Taerbahatai Treaty signed between Russia and Qing, arrangements concerning consular jurisdiction were incorporated. After the second Opium War, Western powers further intensified in consular jurisdiction. In the 8th year of Xianfeng’s reign (1858), Qing signed The Treaty of Tianjin with the U.S.A., Britain, France and Russia, and the previous treaties concerning the five commercial ports were abolished. Consular jurisdiction is provided in Articles 10, 12, 17, 28 of the treaty with U.S.A., Articles 32, 35, 38, 39 in The Sino-French Treaty of Tianjin, Articles 15, 16, 17 in The Treaty of Tianjin between the Queen of Great Britain and the Emperor of China. In addition, Article 7 in The Sino-Russian Treaty of Tianjin says that “in trading areas when Russians and Chinese have conflicts, Chinese officials shall join Russian consuls or delegates to settle them”,73 which is also a 72 73

Wang (1957), Vol. 1, p. 55. The Commercial Press Bookstore (1973), p. 25.

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provision of consular jurisdiction, but the sentences are too simple; in the 10th year of Xiangfeng’s reign (1860) Convention of Peking between China and Russia, the provision became clarified. In the Qing dynasty, consular jurisdiction was enjoyed by the countries below: Britain in Article 8 of the 1842 The Amendments to Jiangnan Settlement and Article XIII of the 1843 The Treaty of Nanking, later jurisdiction was expanded or strengthened in Articles 9, 15, 16, 17, 21, 22 of the 1858 The Treaty of Tianjin between the Queen of Great Britain and the Emperor of China, Article 2 of the 1876 Agreement of Chefoo between China and Great Britain, Article 12 of the 1902 Renewed Treaty of Commerce and Navigation between China and Britain, Article 4 of the 1906 Renewed Treaty between Tibet and India, and Article 4 of the 1908 Tibet Trade Regulations between China and Great Britain. The U.S. An obtained jurisdiction by the 1844 Treaty of Wangxia in articles 16, 21, 24, 25, 29, consular jurisdiction was expanded or strengthened in Articles 11, 18, 27, 28, 30 of The Treaty of Tianjin between China and the United States of 1858, Article 4 of Supplemental Treaty between the United States and China Concerning Commercial uand Judicial Procedure of 1880, and Article 15 of the 1903 Amendments to the Treaties of Commerce and Navigation between China and the United States. France obtained consular jurisdiction through Articles 25, 27, 28, 31, 35 of the 1844 Treaty of Huangpu, consular jurisdiction was expanded in Articles 32, 35, 38, 39, 40 of the 1858 Sino-French Treaty of Tianjin, and Articles 16, 17 of the 1886 Convention on Commerce along the Yunnan-Annam (Vietnam) Border between China and France. Sweden and Norway obtained consular jurisdiction through Articles 21, 24, 25, and 29 of the 1847 Treaty of Peace, Amity, and Commerce between the King of Sweden and Norway and the Empire of China. Russia obtained consular jurisdiction through Article 7 of the 1858 Sino-Russian Treaty of Tianjin and Article 8 of the 1860 SinoRussian Treaty of Beijing. Germany obtained consular jurisdiction through Articles 8, 32, 33, 34, 35, 38, 39 of the 1861 Treaty of Amity, Commerce and Navigation between China and Germany. Holland obtained through Articles 9, 15, 16, 17 of the 1863 Treaty of Tianjin between China and the Netherlands. Denmark obtained through Articles 9, 15, 16, 17 of the 1863 Treaty of Amity, Commerce and Navigation between China and Denmark. Spain obtained consular jurisdiction through Articles 7, 12, 13, 14, and 18 of the 1864 Treaty of Amity and Commerce between China and Spain. Belgium obtained through Articles 10, 16, 18, 19, 20, 43 of the 1865 Treaty of Amity, Commerce and Navigation between China and Belgium. Italy was obtained through Articles 9, 15, 16, 17, and 20 of the 1866 Treaty of Amity and Commerce between China and Italy. Austria was obtained through Articles 11, 31, 36, 38, 39, and 40 of the 1869 Treaty of Amity, Commerce and Navigation between China and Austria-Hungary. Peru obtained through Articles 5, 13, 14, 15 of the 1874 Treaty of Friendship, Commerce and Mutual Intercourse between China and Peru. Brazil obtained through Articles 4, 9, 10, 11 of the 1881 Treaty of Amity, Commerce and Navigation between China and Brazil. Portugal obtained through Articles 17, 45, 47, 48, 49, 50, 51 of the 1887 Treaty of Amity and Commerce between China and Portugal. Congo obtained through Article 1 of the 1898 Treaty between China and the

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Congo Free State.74 Mexico obtained through Articles 13, 14, 15 of the 1899 Treaty of Friendship, Commerce and Navigation between China and Mexico. Article 8 of the 1871 Treaty of Friendship and Trade Regulations between China and Japan provides that crimes of immigrants of both countries shall be tried by consuls by their own laws, this shows that both countries enjoy consular jurisdiction on a mutual base, but after the Jiawu War, the 1896 Treaty of Commerce and Navigation between China and Japan changed the mutual consular jurisdiction to a partial privilege for the Japanese, since then China did not enjoy consular jurisdiction in Japan. The Japanese consular jurisdiction was expanded in Article 4 of the 1909 Provisions for Sino-Korean Border Affairs along the Tumen River between China and Japan. In addition, Korea signed a treaty with China in 1899, allowing mutual consular jurisdiction.

3.3 Contents of the Consular Jurisdiction 3.3.1 Jurisdiction Competence According to treaties, the cases within the competence of consular jurisdiction in China fell into three kinds, i.e., the mixed cases of Chinese and foreigners, the cases entirely involving foreigners, and the mixed cases of foreigners.

3.3.1.1

Mixed Cases of Chinese and Foreigners

This kind of case refers to litigations between Chinese and foreigners from countries enjoying consular jurisdiction. In terms of case nature, the said cases fell into criminal cases and civil cases. In terms of litigants, they fell into cases with Chinese accusers versus foreign accused and cases with foreign accusers and Chinese accused. According to the principle of “actor sequitur forum rei” (usually termed the principle of nationality of the accused), the mixed criminal cases involving Chinese accusers and foreign accused were within competence of consular jurisdiction as provided in treaties, while mixed criminal cases with foreign accusers and Chinese accused were tried by Chinese officials. This principle was first included in Article 13 of the 1843 Treaty of Nanking and Article 21 of the 1844 Treaty of Wangxia, and it remained unmodified in treaties in late Qing. For the competence of arrest in mixed criminal cases, the provisions of different countries fell into two categories. The first category can be represented by Article 27 of the Treaty of Huangpu, which provided that if the criminal “is French, the consul 74

Wang (1957), Vol. 1, p. 785. In statistics of the number of countries enjoying consular jurisdiction in China, Congo is usually not counted, mainly because at that time Congo was still to a large extent a private property of the Belgian king. As a matter of fact, since 1885 Congo had been controlled by Belgium, but from a perspective of international law, Congo completely became a Belgian colony in 1908, therefore Congo should be counted.

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is in charge of arrestment, after investigation, the criminal is punished according to French law”,75 then Qing government gave up the power of arrest for the French criminal. Article 38 of The Sino-French Treaty of Tianjin in 1858 inherited the article in the former treaty. Similar articles appeared in the 1861 German treaty, the 1863 Danish treaty, the 1865 Belgian treaty, the 1866 Italian treaty, the 1881 Brazil treaty, and the 1899 Mexican Treaty. The other category was represented by the ChineseAmerican treaty. The Chinese version of Article 21 of the 1844 Treaty of Wangxia said that American criminals “are arrested and interrogated by consulate officials, and punished by American law”,76 but in the standard English version there was not the word “zhuona捉 捉拿(arrest)”, and Article 11 of the 1858 Treaty of Tianjin between China and the United States said that “as to the arrest of criminals for investigations, the arrest can be conducted by local magistrates, or American officials, both viable”,77 therefore Qing government still had power of arresting American criminals in China. Similarly, Britain, Holland, Japan, Spain, and Portugal had similar articles but were not as clear as American treaty in that only trials were mentioned, but arrestment was not mentioned. The difference in the power of arrest occurred only in port cities; for example, for crimes committed inland or criminals fled inland after crimes were committed in port cities, all treaties permitted arrest by Chinese officials and surrendered criminals to nearby consul for trials and punishments. However, just as William B. Reed (1806–1876), the American ambassador commented on consular jurisdiction after the signing of The Treaty of Tianjin that wherever foreigners arrived, “consular jurisdiction go with them; since foreigners had access to inland, and their privilege of immunity is also established. According to the treaty, ‘if they don’t have passports, or there are mistakes, and there are illegal things, they are sent to nearby consuls for punishment, officials on the way may put them in custody, but no punishments are allowed.’ Simply put, this means that a foreigner committed rapes or murders in a place distant from the coast must be gently constrained, and he must be surrendered to a distant place, and tried with no hard evidence by consuls. These are all the drawbacks and dangers in the new system with unrestricted contact”.78 In contrast to the treatment of criminal cases, traditional Chinese law used to adopt a mediatory and admonishing approach in dealing with noncriminal folk conflicts concerning marriage, household, field and debt disputes. After the Opium War, on the one hand influenced by traditional Chinese law and on the other hand influenced by the Western idea of the dual opposition of civil and criminal law, the settlement of mixed cases involving Chinese and foreigners still focused on peaceful mediation, first dissuading people from lawsuits and end litigations. Sometimes there were people not dissuaded, and then Chinese magistrates and consuls would hold joint trials to offer a just decision. In addition, Article 16 of Treaty of Wangxia and Article 24 of Treaty of Tianjin between China and the United States all provided that, Chinese that owe debt to Americans, the Americans could accuse and claim repayment as 75

Wang (1957), Vol. 1, p. 63. Ibid., p. 54. 77 Ibid., p. 91. 78 Dennett (1959), p. 274. 76

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provided; after being informed by consuls, local magistrates should investigate and pay back. If Americans owed money to Chinese, inform the consul to get repayment from the American or directly go to the consul for repayment.79 At that time, civil cases were not dealt with like criminal cases with the doctrine for the defendant, in practice it was not rare that consuls and Chinese magistrates settle civil cases between foreigners from treaty countries and Chinese, the words like “gongyi chaduo 公议 察夺 (just negotiation and decision)”, “huitong shenban 会同审办 (joint trials)” to a large extent refer to the consuls and Chinese officials’ elimination of disputes by administrative measures, the denotation was different from the mixed trials in narrow sense of law. Since the treaties were ambiguous in language, disputes arose. In 1858 (the 8th year of Xianfeng’s reign), Article 16 of the Treaty of Commerce and Navigation between China and Great Britain provided that “the affairs involving both countries, both countries should hold just joint trials to show justice.”80 However, in the original English version, there were no such words; the English version said that officials from both sides should be fair and just. The original text is shown below. Chinese subjects who may be guilty of any criminal act toward British subjects shall be arrested and punished by the Chinese authorities, according to the laws of China, British subjects who may commit any crime in China shall be tried and punished by the counsel, or other functionary authorized thereto, according to the laws of Great Britain. Justice should be equitably and impartially administered on both sides. According to Article 50 of the said treaty, when there are disputes in the interpretation of words the English version binds, the jurisdiction over so-called mixed criminal cases found no evidence in the treaty. In 1875 (the first year of Guangxu’s reign), Augustus Margary, a British interpreter, was killed in Yunnan, Qing government sent officials to investigate, and the British ambassador sent Thomas G. Grosvenor, a counselor, to Yunnan to witness the trial. Grosvenor reported that the governor of Yunnan was suspected of instigation, so the British ambassador coerced with this for privileges; hence, the Agreement of Chefoo between China and Great Britain was finally signed. In this treaty gave up the binding English version of The Treaty of Tianjin and followed the wrong translation of two words in the Chinese version, and strained wrong interpretations, as in Item 3 of Article 2: “It is farther understood that so long as the laws of the two countries differ from each other, there can be but one principle to guide judicial proceedings in mixed cases in China, namely, that the case is tried by the official of the defendant’s nationality; the official of the defendant’s nationality, merely attending to watch the proceedings in the interest of justice. If the officer is dissatisfied with the proceedings, it will be in his power to protest against them in detail. The law administered will be the law of the nationality of the office trying the case. This is the meaning of the word “Hui Tong”, indicating combined action in judicial proceedings in Art. XVI of the Treaty of Tianjin, and

79 80

Wang (1957), Vol. 1, p. 94. Ibid., p. 98.

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this is the course to be, respectively followed by the officers of either nationality.”81 The English version of this item is given below: Section II. Official Intercourse: iii. It is agreed that whenever a crime is committed affecting the person or property of a British subject, whether in the interior or at the open ports, the British Minister shall be free to send officers to the spot to be present at the investigation. —It is farther understood that so long as the laws of the two countries differ from each other, there can be but one principle to guide judicial proceedings in mixed cases in China, namely, that the case is tried by the official of the defendant’s nationality; the official of the defendant’s nationality, merely attending to watch the proceedings in the interest of justice. If the officer is dissatisfied with the proceedings, it will be in his power to protest against them in detail. The law administered will be the law of the nationality of the office trying the case. This is the meaning of the word “Hui Tong”, indicating combined action in judicial proceedings in Art. XVI of the Treaty of Tianjin, and this is the course to be followed by the officers of either nationality. This article clearly provided that the watch of proceedings was applicable to murder and theft cases involving British people in the interior and open ports and indicated that this followed the meaning of “Hui Tong 会同” in Art. XVI of the Treaty of Tianjin, which was limited only to criminal cases; therefore, in the first recognition of the power of watching proceedings, the Qing government did not include civil cases. The Qing government was dim of the distinction of civil and criminal laws, which facilitated the expansion of the power of watching proceedings to mixed civil cases. In 1880 (the 6th year of Guangxu’s reign), when China and the U.S. A signed Supplemental Treaty between the United States and China Concerning Commercial and Judicial Procedure, the power of watching proceedings, was carefully detailed. Article 4 of this treaty is quoted below.82 Treaty of 1880. Art IV. When controversies arise in the Chinese Empire between citizens of the United States and subjects of his Imperial Majesty, which need to be examined and decided by the public officers of the two nations, it is agreed between the governments of the United States and China that such cases shall be tried by the proper officials of the nationality of the defendant. The properly authorized official of the plaintiff’s nationality shall be freely permitted to attend the trial and shall be treated with the courtesy due to his position. He shall be granted all proper facilities for watching the proceedings in the interest of justice. If he so desires, he shall have the right to present, to examine, and to cross examine the witnesses. If he is dissatisfied with the proceedings, he shall be permitted to protest against them in detail. The law administered will be the law of the nationality of the officer trying the case. A careful examination of the English version and the Chinese translation makes the big difference and distortion between the two explicit. The English version only records the examination of witnesses, but the translation version has description of tianchuan zhengjian 添传证见 (adding new witnesses) and zaixing chuanxun 再行 81 82

Wang (1957), Vol. 1, p. 348. Ibid., p. 381.

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传讯 (future interrogations); the English version only records that protest is allowed, but the translation was misinterpreted as “zhuxi bianlun 逐细辩论 (debate item by item)”, and “xiangbao shangxian 详报上宪 (report senior officials in details)” is tampered without original, which seems that the future appeal procedures are to be observed in trials. Compared with the Agreement of Chefoo between China and Great Britain and the Supplemental Treaty between the United States and China Concerning Commercial and Judicial Procedures, the rights of observing trials are much broader in scope. The American delegation signing this treaty was very glad to report to the State Department that “this article is an important and useful rights obtained … Compared to Agreement of Chefoo between China and Great Britain, it is better in form and greater in efficiency.”83 The two said treaties clarify the rights of “observing trials” and “the doctrine for the defendant” in cases involving both foreigners and Chinese. This enables Western powers to gain advantages from both sides. Through “observing trials”, the interests of the accused from one country can be protected; through the doctrine for the defendant, the accused citizen can be protected. Over time, the observation of trials was changed to joint trials and even chief umpires of cases. Everywhere foreign observers intrude, the sovereignty of Chinese jurisdiction was overridden. Although Chinese local magistrates made great efforts to be fair, foreign observers would always arrogantly find a quarrel in straw, and they were happy only when the result was to their liking, so that the trials seemingly held by Chinese officials and observed by foreign officials were gradually changed to be chaired by foreign officials and observed by Chinese officials, the inversion of priority was clear. The judicial principle of “actor sequitur forum rei”, for cases with foreign accusers and Chinese accused, the principle was changed the other way round. Wesley R. Fishel (1919–1977) says in The End of Extraterritoriality in China (Berkeley: University of California Press, 1952) that “in cities like Shanghai and Amoy, the jury assigned to Chinese courts has overridden the intention of the treaty for observing cases to such a degree that jury usually becomes a joint judge with Chinese judges. … the jurisdiction is expanded to a direct governing of the Chinese, … the rights of observing trials are determined by the treaty country’s infringement of Chinese jurisdiction.”84 A foreign lawyer who participated in the trials reported that in such a court, interrogations tend to become a quarrel between the jury and the county magistrate; both sides defend their own emperor and subjects. Sometimes the court quits in quarrels; sometimes people are tired of quarreling in court and pushed back to litigants and ask them to solve disputes by themselves.85 Trials observing rights should be mutual favors. In cases where Chinese people or people without consular jurisdiction are plaintiffs and people from countries with consular jurisdiction are defendants, the Chinese side enjoys the trial observing right as provided in the treaty, but Chinese officials are usually absent out of timidity or laziness or neglect the interests of their citizens; therefore, their rights are waivered, and the trial observing system becomes partial. Foreign officials usually argue actively in Chinese courts, but 83

Qing (1956), Vol. 2, p. 530. Qing (1956), Vol. 2, p. 531. 85 Willoughby (1957), p. 398. 84

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Chinese officials rarely exercise observing rights. As Zheng Guanying says, “Now in all foreign trade cities, there are consuls, as counterparts of local magistrates of districts or counties. When court trials are held, their instructions and positions are equivalent to magistrates. The debt cases can be controlled by them, and small cases can show predilection. Murders are sometimes not punished; debts sometimes are not paid off. To please the merchants and protect their business, consuls will do all they can to help.”86 Xu Fucheng also remarked that foreign consuls are very powerful in China, “cases of murders, debts concerning foreigners are always tried by consuls, and Chinese local magistrates are prevented from trying them. In the past Chinese port cities were unruly mainly due to this fact”.87 The right of observing trials varies from different countries in practice and falls into three categories: the first category consists of Brazil, Mexico, Japan, etc. The treaties signed with these countries provide that citizens of contracted countries are fully governed by courts of these countries, the principle of exclusive government is completely applicable, and therefore mixed cases involving these countries, their officials do not have the right of observing trials in Chinese courts. In addition, these countries obtained the right to observe trials after Britain and the U.S. An in respective treaties, obviously the right here is not an article of most favored nation treatment. Britain and America fall into the second category; they obtained the right of observing trials through provisions in treaties. Most countries fall into the third category, and all other countries enjoying consular jurisdiction belong to this category. Their provisions were copied from the 1844 Treaty of Wangxia; mixed civil cases were jointly tried and punished by foreign consuls and Chinese officials, while mixed criminal cases were not observed.

3.3.1.2

Exclusive Foreigner Cases

This refers to cases involving foreigners from the same country enjoying consular jurisdiction. Regardless of criminal or civil cases, when litigants are all from the same country enjoying consular jurisdiction, such cases are not governed by Chinese law but by consular jurisdiction as provided in treaties. The first provision of this is Article 25 of the Treaty of Wangxia: “The lawsuits of American people caused by property disputes in Chinese port cities shall be investigated and dealt with by consuls of the U.S. A … Chinese shall not intervene.”88 Similar provisions exist in the Treaty of Huangpu, with the only exception of The Sino-Russian Treaty of Tianjin, in which no articles are provided. People such as ambassadors and soldiers enjoy extraterritoriality in accordance with international public law; they shall not subject any judicial decisions of the country they are stationed, and they are not within consular jurisdiction due to modification of the consular jurisdiction system. In international law, consuls do not enjoy extraterritoriality; they should be controlled 86

Zheng (1982), Book 1, p. 425. Xue (1987), p. 333. 88 See Jiao (1991), p. 238. 87

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by consular jurisdiction, but consuls shall be challenged, and self-juridiction shall be avoided by law; therefore, cases involving consuls shall be submitted to courts of their own country. Britain is an exception since Britain has formal courts in China, so turning back ambassadors and consuls to Britain is not necessary. For foreigners from consular jurisdiction countries who are serving in Chinese government, William E. Hall (1835–1894), a British jurist, advocated that, all British people serving obligation countries, shall subject to trials of the obligation countries, but civilian officials are governed only the obligation country only in the scope of administration law, and not immune from the jurisdiction of their native country, while military officers are different in functionary nature, and they shall subject to the jurisdiction of the obligation country. In 1863, the British foreign minister John Russell (1st Earl Russell, 1792–1878), once expressed his opinion about the case of Bowman V. Fitzgray (who was British working for the Chinese government), advocated that British courts did not lose the rights to try him. The China Customs had a provision that foreign officials at the Customs shall obtain permission from the department of General Tariffs before bringing civil and criminal lawsuits, otherwise he was dismissed; in civil cases the accused shall be temporarily suspended from duty, in criminal cases as the accused or a suspect to be summoned by foreign courts, he shall report the case to the department of Tariff, and receive the sentence of native country officials after resignation, under special conditions when procedures are not performed, the Customs shall dimiss him from duty, and renew his duty only after he is sentenced innocent. Foreign officers were mostly consultants and drill masters, and few of them served in the Chinese army; therefore, such cases were quite rare. In the 1st year of Tongzhi’s reign (1862), Henry A. Burgevine (1836–1865), an American, was employed by Qing government in the suppression of Taiping army,89 due to his violation of order and committing crimes, Chinese government informed Anson Burlingame (1820–1870), the American ambassador that Burgevine was an officer in the Chinese government, he committed crimes and should be punished by Chinese law, he was deported by Qing government for throwing himself into the lap of Taiping army, in 1865 (the 4th year of Tongzhi reign) again he came to China and contacted Taiping army, and he was seized and punished by Qing government. Foreigners with Chinese citizenship shall not be protected under consular jurisdiction. No.6 Year 1 of the Journal of Law and Politics records the “Hu Jizeng’s Marriage with a British Girl” in the 3rd year of Xuantong’s reign: “When Hu was in Britain, he married a British girl and returned China. From Shanghai to Chengdu, the girl was dissuaded by British officials and officials of the Department of Tariff at various port cities, but the girl would not listen. When she arrived she found Hu already had a wife. Since he was heir to two families, according to the custom, he was allowed to have two wives; later, they lived peacefully, and she gave birth to a boy and a girl. This event was acquainted by the British consul, the consul thought polygamy was against British law, ordered divorce and sent children back to Britain. The woman rejected. The consul sent a letter to the governor of Sichuan, saying that Hu had a wife and he married another wife; he should be punished by law. In addition, by Chinese law, for one man inheriting two families, 89

Jin and Zhong (1958), p. 129.

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only one should be lineally descent. For polygamy, the step-wife shall be divorced. If she was a concubine, then concubines were not allowed in Britain. If she was a prostitute, then British prostitute should not stay in China. The British ambassador was already contacting the foreign ministry on this affair. Recently, the two wives of Hu sent their reports to the foreign ministry. The British wife said that since she was married to a Chinese, Chinese customs shall be followed. If Hu was not right in having two wives, she would be concubine. The Chinese wife reported that she had no children, so she permitted her husband’s remarriage. If the wife and the concubine must be distinguished, then she would be concubine, and the British wife would be the legal wife. It was said that the British ambassador demanded her acknowledge her British citizenship, getting their wedding documents, before dealing with it. According to Article 5 of our citizenship regulations, once foreign women are married to Chinese, they are deemed to have citizenship in China. Officials of her native country shall have no rights to intervene.”90 At that time, so-called citizens were not limited to natural persons, legal companies were also included, and only the nationality of the company’s legal persons was identified by registration, using the doctrine for the place of registration rather than the doctrine for the member of nationality. Although the members of the organization were natural persons of a country with jurisdiction, if the company was registered in China, the company was also a Chinese legal person and therefore did not enjoy consular jurisdiction. However, foreign companies used to register to the Chinese government to obtain certain privileges on the one hand, and on the other hand, they also registered in their native countries separately, resulting in dual nationality; therefore, jurisdiction conflicts may occur. Even in late Qing, many foreign church universities, for example, Dongwu University, St. John University, Lingnan University, etc. were registered abroad to be applicable in consular jurisdiction, showing contempt of Chinese law, Chinese authorities did not have any say on the administration and education in church universities; therefore, some people called such church universities “foreign cultural settlements” enjoying consular jurisdiction in Chinese territory. According to Article 15 of the 1858 Treaty of Commerce and Navigation between China and Great Britain, “cases involving British citizens, whether personal or property cases, shall be dealt with by British officials.”91 Thus, all people in British colonies were also included in consular jurisdiction. In the 11th year of Guangxu’s reign, China had to recognize Vietnam as a protectorate of France, and Article 16 of the Convention on Commerce along the Yunnan-Annam (Vietnam) Border between China and France signed the next year: “in border places, cases involving Chinese, French and Vietnam shall be jointly tried by Chinese and French officials. For all crimes committed by French and people under its protection, in trading areas, shall be dealt with according to Articles 38, 39 of the treaty signed in the 8th year of Xianfeng’s reign.”92

90

“Hu Jizeng’s Marriage of British Woman”, Journal of Law and Politics, Year 1, No. 1 (on the sixth lunar month 25 of the 3rd year of Xuantong’s reign). 91 Wang (1957), Vol. 1, p. 98. 92 Chu and Liang (1991), p. 225.

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3.3.1.3

Mixed Foreigner Cases

This refers to the cases involving foreigners from different countries with consular jurisdiction and cases involving foreigners from countries with consular jurisdiction and foreigners from countries without treaties or consular jurisdiction. Article 25 of the Treaty of Wangxia provides that “if Americans and merchants or merchants from any other countries in China have disputes, the disputes shall be dealt with according to treaties signed between two foreign countries, Chinese officials should not intervene.”93 From then on, in treaties signed by China with Norway, Denmark, Italy, Spain, France, Belgium, Japan, etc. There are provisions that Chinese officials “shall not intervene”, “need no intervention”, “shall not deal with”, and “have nothing to do with Chinese officials”; therefore, the Chinese government had no jurisdiction over mixed cases involving foreigners and foreigners with consular jurisdiction. However, in treaties signed by China with Britain, Holland, Russia and Portugal, there are not such provisions, if the treaties are strictly interpreted, Chinese government had jurisdiction over mixed cases involving foreigners from the said countries and people from any third countries, but in judicial practice, Chinese government adopted a nonintervention of mixed foreigner cases involving foreigners of countries with consular jurisdiction and people from other countries, the treaties between countries of litigants were followed in such cases, usually consuls from both countries on both sides would mediate, if a compromise could not be achieved, then according to the principle of “actor sequitur forum rei”, the defendant should be charged at the consular court of the defendant, and tried by the law of that country. The time and method of China’s granting of consular jurisdiction is quite different from that of the Near East. This is mainly because the Western law of international treaty and practice was more mature than before, the idea of sovereignty became clearer, and the doctrine of the person was farther from its heyday; therefore, the foreign consular jurisdiction in China was completely based on treaty provisions, different from the consular jurisdiction the Western powers enjoyed in Islamic countries in the Near East. All non-Islamist were governed by international mixed courts in Islamic countries in the Near East; on the other hand, the treaties signed with China were potent only for the countries entering such treaties, without any third country not engaging; therefore, foreign people of countries without treaties or consular jurisdiction were still ruled by the Chinese jurisdiction according to the principle of sovereign territory since their countries did not have treaties including this privilege. From jurisprudence, consular jurisdiction is an exception to the principle of territory, the object is limited to the treaty country citizens and their possessions, the consular jurisdiction established by such countries is aimed to protect interests of their own people, the grant of international judicial power is strictly interpreted as the primary principle of treaty laws, therefore people from countries without such powers could not imitate to elude the territory jurisdiction of the Chinese government. The prevalent system of the person patronized in the Near East was never recognized by the Chinese government, and some treaty countries, including the U.S. A and Britain 93

Wang (1957), Vol. 1, p. 54. See also in Yang (1918), pp. 151, 152.

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also support China in this point. In 1908 (the 34th year of Guangxu’s reign), the Qing government informed all provinces that “foreigners from countries without treaties should abide by Chinese law, they cannot be protected by any other countries.”94 In 1864 (the 3rd year of Tongzhi’s reign), the British emabassador in Beijing also informed consuls in China that “according to laws of most countries, without permission of one’s government, any one cannot by himself get rid of government of his own country and accept jurisdiction of any foreign country, if consuls attempt jurisdiction over foreigners, serious protests will arise from governments of other countries; moreover, British government under Her Majesty never authorized consuls in China to accept this jurisdiction over any foreigners or Chinese. The proposal of such power is inappropriate and unwise.”95 In 1873 (the 12th year of Tongzhi’s reign), although then the American consul at Guangzhou accepted a criminal case of accusing a citizen of a nontreaty country (New Greenland), and the Chinese administration waivered jurisdiction, but the State Secretary still forbid the acceptance by the consul at Guangzhou and instructed that “according to the U.S. law, even in the U.S., courts cannot accept cases out of the willingness of litigants; moreover, in consular courts, this sort of deals are especially not right; because consular courts are courts with slight and limited jurisdiction, with purview only restricted to that provided in congress regulations and treaties signed between the U.S. and China.” “Even if Chinese officials give up jurisdiction of this case, it cannot be interpreted as an increase of the consular purview of the U.S.”96

3.3.2 Foreign Courts in Modern China Organizations executing consular jurisdiction encompass three types, i.e., special formal courts, consular courts and courts made up of ambassadors and officials. Consular courts were conventional organizations executing consular jurisdiction in China, except temporary consular courts of Belgium and Brazil, and there were no consular courts established by Peru, other countries established consular courts as their treaties allowed in Shanghai, Guangzhou, Chongqing, Xiamen (Gulangyu), Yantai, Tianjin, Nanjing, Hankou, etc., usually consuls or assistant consuls acted as judges, or with special judges were appointed. Britain and the U.S.A. had consular courts, and they had special judicial courthouses in Shanghai. The ambassadors also tried immigrants of their countries, but this is not common.

94

Quoted from Zhou (1995), p. 40. Koo (1912), p. 207. Willoughby (1957), p. 352. 96 Liang (1930), p. 53; see also Willoughby (1957), p. 351. 95

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Britain

The first consul at Shanghai, George Balfour (1809–1894), established a consular court at the consulate at Shanghai after his appointment. The British consular courts at various port cities were what was later called “British Provincial Court”, dealing with routine civil cases with objects under 500 pounds beyond the special jurisdiction prescribed by the high court, and imprisonment or custody less than one year, or criminal cases with a penalty under 100 pounds, consul was the only judge, and sometimes an assembly was used for trials. In 1865 (the 4th year of Tongzhi’s reign), the British government assigned Sir Edmund Hornby (1825–1896) as the judge and established H. B. M.’s Supreme Court for China and Japan in Shanghai in place of the former consular court. At first, lawsuits of British immigrants in Japan were also in charge, later because Japan abolished consular jurisdiction, so it was renamed B. M.’s Supreme Court for China. Local people called it the British court. The court had a judge, several assistant judges, all nominated by the Queen, they were chosen from members of the Law Society of England, Scotland and Ireland with an experience over 7 years, the precinct covers all China besides Shanghai. In 1904 (the 30th year of Guangxu’s reign), the British Privy Council issued China Order in Council, and the judge and assistant judges were to circuit consular courts at various places. The applicable cases include civil cases with difficulty or with an object over 500 pounds; criminal cases with a penalty of imprisonment of one year or above or 100 pounds; civil and criminal cases in Shanghai or lawsuits involving Shanghai area and other areas; and special jurisdiction cases such as maritime, bankruptcy, murder, divorce cases, etc. In 1865 (the 4th year of Tongzhi’s reign), the British government established an appeal court at Shanghai, consisting 3 judges, two of which were from the H.B. M’s Supreme Court for China, one from the Hong Kong Court, in emergent cases the court had one or two judges. Before this, appeals of cases tried by consular courts must be brought to Hong Kong court. After the establishment of this court, the purview of the court was the same as appeal courts in Britain. Civil cases tried by provincial consular courts or H. BM’s Supreme Court, with an object above 25 pounds, can be appealed to this court; for cases under 25 pounds, permission must be obtained from the court concerned. For criminal cases, regardless of light or heavy punishments, the appeals must be brought to the appeal court, the cases decided by the appeal court shall be appealed to the Judicial Committee of the Privy Council at London, and only civil cases with an object above 500 pounds with criminal cases must obtain permission from the Privy Council. Decisions were performed in China as a principle, but the performance could also be conducted after returning the criminal to other precincts of Britain; in fact, many criminals were sent to Hong Kong, England and Australia for execution. The death penalty of hanging must be reviewed by the British ambassador in China. In addition, Shanghai also had a police court to deal with violation cases of police by British immigrants.

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The United States of America

Power conflicts give birth to the construction of and the evolution of the law system. Over the past few decades, scholars have tended to believe that the corruption and ignorance of the Qing judicial system and administration was the pretext for consular jurisdiction of foreign powers, and the abolition of consular jurisdiction was the reason for law reform in the late Qing dynasty. However, on the one hand, this view is obviously partial; it is an observation from the evolution of the Chinese system; on the other hand, it contrasts China and the Western world as two opposite dual modes and associates it with the dual modes of tradition and modern, identifying with the “impact-reaction” theory represented by Fairbank, with an overindulgence in the advancedness of introducing Western law categories under the consular jurisdiction system. In fact, the Western judicial model introduced through the Western consular jurisdiction system is not only an external factor but also an organic part of the evolution of the Chinese judicial system itself. The relationship is a dynamic game process with conflicts and competition rather than a relation of active illustration and passive imitation. The improvement, perfection and strengthening of the consular jurisdiction system in China is also related to the complaints and protests of the Chinese government and the common people, with the complication of the Western consular jurisdiction system and the further aggressiveness of Western power, arousing efforts to reform and abolition consular jurisdiction by the Chinese and Chinese governments. After the signing of the Treaty of Wangxia, American consuls were not awarded judicial power. On April 15, 1845, J. Buchanan, the U.S. state secretary, said in his mandate that “it is a self-deception that our consuls in five port cities can interrogate and punish an American citizen for murder of any other crimes. Then, how to deal with it? How can it be if a citizen may avoid legal punishments for murder or other felonies? This fact that punishments are not due for the criminals, not to mention other vice results, I am afraid that there is nothing more irritating for Chinese if they witness this fact. … If we do not violate the treaty by this, then they will never understand.”97 In 1848, the American congress passed an act to award delegates and consuls with judicial power, which were consecutively modified in 1860, 1866 and 1870; in 1870, the modifications were compiled as section 4083 to 4130 in the Code of Modified Federal Regulations. In 1848, John Westey Davis (1799–1859), the second American delegate, arrived in Guangzhou, and he was to build the American consular court there. Davis had been a doctor, with no knowledge of law, and lacking law books to refer to, or lawyers to consult, he had to draft the consular court rules by himself and issued it in the first lunar month of the next year. The rules had it that each consulate should have a consular court, with the consul as judge and a notary and a lawman. However, over a long period, consuls as judges were not familiar with law, as Davis said, “necessary legal conditions are plainly lacking”,98 trials by consuls were not regular, lacking prison facilities were common, and judicial efficiency was also very low. The documents traveled slowly for a long time, sometimes it took as 97 98

Dennett (1959), p. 164. Fishel (1952), p. 13.

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long as duty terms of consuls and delegates, and therefore cases were not decided for a long time. William B. Reed, the first U.S. ambassador to China,99 made the remarks below: “We exacted from China the ‘consular jurisdiction’, so that our law may punish American criminals, but we did authorize our judicial officials the power to punish them. In China, we have consular courts to punish American thieves and murderers, but there was no prison to put criminals in custody. Just as in many other affairs, our consuls have to ask the British or French people for help, but cells of the British and French jails are not sufficient by themselves, then American criminals were released. Therefore, many people want American citizenship as a privilege to get this exemption, then all villains from England, Ireland and Scotland, who can speak our language and provide seemingly infallible qualifications for citizenship, can commit crimes at will, and they are sure that even if the American courts may try them, but there will be no punishments. … Under the condition that the U.S. A refuses or ignores the punishment measures, I think the exacting of ‘consular jurisdiction’ from China is a big shame. The vice in this is no less than slave trade or opium trade. If I did not have a strong belief, … I would truly feel shameful to associate my name with a treaty famous for “consular jurisdiction” as a privilege.”100 In 1906, to compensate for the defects of consular courts, the American congress passed the “act for establishing an American court and specifying of its jurisdiction”, by the end of the year the United States Court for China was established in Shanghai, with a judge, a law officer, a notary, and a clerk. The judge was appointed by the president, with a term of 10 years, with rich experience in law. The court was stationed in Shanghai, but its jurisdiction was all over in China. Every year, there was one session held in Guanghou, Tianjin, and Hankou, similar to the British H.B.M. Supreme Court for China, parallel to local courts in the U.S. By late Qing, the U.S. had 18 consular courts in China in Xiamen, Andong, Guangzhou, Changsha, Yantai, Nanjing, Shanghai, Shantou, Tianjin, Jinan, Qingdao and Yunnan. The cases in charge must involve Americans as the accused; in civil cases, the object in question was limited to 500 U.S. dollars, in criminal cases the limit is a fine less than 100 dollars or imprisonment less than 2 months, or a combined punishment of the two. Before the establishment of courts for China, according to the 1860 Congress Act, appeals from consular courts could be brought to the U.S. ambassador. In 1870, the American Congress provided that appeals from the decision of the ambassador might be brought to the 9th circuit court at California. In 1906, after the establishment of courts for China, the court was in charge of all civil and criminal cases at its first jurisdiction place (i.e., Shanghai), and all civil and criminal cases were not in charge of other consular courts. The jurisdiction over the second trials was appeal cases from various consular courts. Appeals from the court for China could be brought to the Ninth Circuit in 99

Scholars disagree on who was the first U.S. ambassador to China. The first view thinks that Caleb Cushing was the first ambassador, see Wang Kewen, “A Brief Introduction to American Institutions for the Study of Modern Chinese History”, in Zhang (1980), Vol. 2, Historical Materials and History, p. 149. The second view believes that William Bradford Reed became the first ambassador in 1857, see Zhang (1987), p. 15. The third view thinks that Anson Burlingame (1820–1870) became the first ambassador in 1862, see Yang and Yang (1989), p. 528. 100 Yao (1962), Book 1, in: Historical Materials of Modern Economy of China Series, No. 5, p. 400.

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California; further appeals could be brought to the Supreme Court. Criminals with punishments under 3 months of imprisonment were punished in the American prison in Shanghai, criminals with punishments over 3 months of imprisonment would be transported to Manila, the Philippines or the U.S. for execution.

3.3.2.3

France

In 1852, France passed act for extraterritorial affairs, which was further specified in the 1861 maritime regulations, etc. France had 17 consular courts in China, consuls were chief justices, counselors worked as executive officers (l’huissier) and secretaries (le greffier), but the consular court in Beijing was not headed by Beijing consul but by embassy counselor as chief justice. Two local French people were selected as jury to help consuls and focus on business affairs; this is the special feature of the French consular courts. Civil cases with fewer than 100 francs were decided exclusively by the consuls, above which jury might reach a decision; if jury could not be gathered, there could be exceptions. Consular courts issued final decisions for cases under 3000 francs. Criminal cases fell into three categories: delinquencies, misdemeanors and felonies. For delinquencies, chief justice himself made a decision, and no appeals were allowed. Misdemeanors adopted jury system. For felonies of more than 10 years of imprisonment, criminals should be transported to Vietnam’s Saigon and Hanoi courts of appeal for first trials, and consular courts had only power for investigation and preliminary trials. Saigon and Hanoi courts are formal French courts with power to try appeal cases of felonies after first trials by consular courts and second trial cases where the decision of a consular court was not accepted. The final decisions of civil and criminal cases were all made by the Supreme Court at Paris.

3.3.2.4

Japan

Japan had 35 consulates in China, consuls were certainly the judges of consular courts, but in Tianjin, Fengtian (Shenyang), Shanghai, Qingdao, each consulate general had a separate special consul or an assistant consul in charge of justice. Consular courts were in charge of first trials of common civil cases, bankruptcy cases and criminal cases with punishments under 10 years of imprisonment; for felonies deserving a punishment over 10 years of imprisonment, consular courts had only power for investigations and preliminary trials. The first trials for convicted cases belonged to different courts, those cases investigated by the Japanese consular court in Mid-China belonged to Nagasaki court, those investigated by the three northeast provinces (now Heilongjiang, Jilin and Liaoning) belonged to Kantou court, those investigated by Chugokukentou consular courts belonged to Chongjin court in Korea, those investigated by the consular courts for South China belonged to Taiwan, those appeals against decisions of first trials by consular courts would bring the appeals to Nagasaki Court, Kantou Court, Korea Chongjin Court, and Taipei Court, The

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second trials of appeals from the said courts would be brought to the Japan Supreme Court, the Appeal Court of Kantou Superior Court, Korea Supreme Court and Taiwan Supreme Court. The consular courts mostly had prisons for short-term criminals of imprisonment; the criminals of long-term imprisonment would be sent under guard to Japan for execution there.

3.4 Special Institution of Consular Jurisdiction 3.4.1 The Joint Hearing Tribunal 3.4.1.1

The Joint Hearing Tribunal at International Settlement in Shanghai

After the Opium War, the Qing government could no longer maintain the merchant house system to restrict western foreigners in Guangzhou, but facing the new situation with 5 port cities, foreigners in China were controlled by drawing lines in which foreigners would reside. In a sense, settlement was an expansion of merchants’ stores in Guangzhou. Moreover, contemporaries who were proud of being descendants of noble Hans were in mentality reluctant to live together with the so-called “barbarians”, they saw the settlement as a block of smelly people and did not want to be their neighbors. After negotiations between the Circuit Intendant of Shanghai and George Balfour, the British consul, in 1845 (the 25th year of Daoguang’s reign), The Shanghai Land Lease Charter or Land Regulations was issued, this set the example regulation for British settlements in Shanghai. Article 23 of this charter says that since this charter, if the British consul found people breaking this charter, through any merchant’s announcements or others’ documents, or through local officials’ informing the British consul, the consul should investigate carefully, check which provision is violated, whether punishment is right, and then punish according to the treaties and the charter. The consular jurisdiction specified in the treaties is violation of the normal personal principle, but after this charter, foreigners would enjoy territoriality principle privileges in addition to the personal principle, so the British consul might exercise security administrative punishment on citizens of any country in the settlement. However, there were few foreigners in Shanghai, while few Chinese moved to the settlement. The Chinese litigations in the settlement were tried by the Shanghai County yamen, and mixed cases involving foreigners as accusers and Chinese as the accused were also tried by this yamen. In 1853 (the 3rd year of Xianfeng’s reign), Xiaodaohui (an uprising organization) took possessions of Shanghai County, and many Chinese refugees moved to the settlement. All of China was in turbulence; inside foreign settlements in Shanghai, public security was also very chaotic. Chinese and foreigners were constant in conflict, Qing yamen had no energy to cope with the judicial government of the settlements in Shanghai, the consuls of Britain, France and the U.S.A. took this opportunity to replace the Qing

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government and attained jurisdiction together. All Chinese who committed crimes or violated the charter in the settlement were illegally tried by consuls and punished with custody; only those serious cases were transferred to be interrogated by Chinese officials outside the settlement. Only in 1855 (the 5th year of Xianfeng’s reign) were more than 500 cases in which Chinese were the accused tried by the British consul. After Qing government restored the rule of Shanghai, the plain illegal conducts in Shanghai settlements offended the Qing government and the people, they were also suppressed by the British and the American ambassadors in Beijing, the consuls in Shanghai also adjusted their strategy, and specified that: the preliminary trials of Chinese captured in the settlement were conducted the British or American consular courts or by French police judicatory. After investigation and interrogation, the criminals and documents would be transferred to Shanghai magistrate for trials. However, Shanghai yamen did not have clerks translating documents submitted by the settlement police; out of ignorance, some criminals were released with deception after a short custody, some even became recidivists in the settlement, while people from nontreaty countries or without nationality were not under consular jurisdiction in the settlement, so their illegal conduct was hard to check by Shanghai yamen. This caused complaints from the consuls in Shanghai, and the consuls were eager to monopolize the power. In 1863 (the 2nd year of Tongzhi’s reign), George F. Seward (1840–1910), the American consul, signed a charter for the American settlement with Huang Fang, the Circuit Intendant of Shanghai, the charter provided that the capture of any person in the settlement by the Chinese yamen must be signed and confirmed by the American consul, all affairs of nontreaty foreigners should be dealt with by the American consul. In the ninth lunar month of that year, after the merger of the British and American settlements, in December, the Shanghai consuls demanded Huang Fang to recognize the Municipal Council’s jurisdiction over nontreaty foreigners, and Huang Fang permitted the request. By then, consular courts were not formal courts in settlements yet, the organizations were only built in the settlements, governing citizens only from their own countries in the entire consular area, therefore the establishment of police courts to try cases which consular courts had not right to try had various plans proposed by consuls and foreign residents in Shanghai, but since this was against treaties and not feasible, so such proposals were fruitless, finally Harry S. Parkes (1828–1885), the British consul, proposed the establishment of a trial court with Chinese judge in the settlement, all cases involving foreigners’ interests were tried by witness of foreign consuls. This plan was supported by Li Hongzhang, the governor of Jiangsu. On May 1, 1864, Ying Baoshi, the Circuit Intendant of Shanghai, sent an official to hear trials with the British assistant consul at the British consulate, and “North Pidgin Administration Yamen” was established in the settlement, as a branch yamen in the settlements north of the county established by Shanghai Circuit Intendant. At first the administration yamen was in the British consulate, sessions were held every morning. In the beginning, there was a police court and a criminal court; later, a civil court was added. Police cases of pure Chinese litigants were tried by the Chinese lishi tongzhi 理事同知 (administrator); for cases in which foreigners were accusers and Chinese were the accused and criminal cases in which nontreaty foreigners were the

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accused, such cases were tried by the Chinese administrator, with a foreign assessor in company, mixed civil cases in which foreigners were accusers and Chinese were accused, at first consuls and Chinese administrator conducted the cases with documents communicated. Till October, 1864, civil cases in which nontreaty foreigners were accused, were also governed by this court. Only because the administrator was a low-rank official, the circuit inttendants also sent a haifang tongzhi 海防同知 (coast defense subprefectural magistrate) to hold trials in the afternoon, two main trials were held each week on average, the consulate still sent a foreign assessor to serve on a jury. The jurisdiction of criminal cases was limited to a punishment of less than 100 days of custody, 30 days of cangue, 300 floggings and 100 yuan of fine; for civil cases, the object under dispute shall be within 100 yuan.101 Foreign assessors attended trials including only assistant British consuls and American consul general or their interpreters, the British assessors attended 4 trials each week, the American assessor attended 2 trials each week, later since 1866 a German assessor was added, who attended 1 trials each week, at the same time the British assessor attended 3 trials. For cases where the accused was from nontreaty countries, the British and American consuls sent a person to hear the trial. All appeal cases were tried by the Shanghai Circuit Intendants. For cases involving foreign interests, consuls attended the trials. When foreign assessors and Chinese judges had disagreements, such cases were deemed appeal cases to be tried jointly by the Circuit Intendants and the consuls. The decisions were made in Chinese, translated by assessors and given to foreign litigants. The decisions were sealed by the judge before being signed by the judge and assessors, and sometimes reasons for foreign assessors’ supporting the decisions were given in the documents. Even on one verdict of an appeal case, under the signing and seal of Circuit Intendants, British and American consuls added words such as “Approved”. The constitution of the administration yamen originally had an informal charter draft not publicized, without signing by foreign countries and China, when the administration yamen was first established Chinese officials wanted to attain the power, but provisions concerning jurisdiction were soon abolished as waste paper, “the court tried all cases brought there, only when the cases involving felonies that needed power beyond the authority awarded to the court, a request of confirmation was used as a remedy.”102 Foreign assessors were not willing to play a minor role in trials, especially in civil cases western civil law were applied to fill in the blanks in Qing law, moreover since the administration yamen could sentence only to do hard labor since July, 1865, except that only suggestions were made according to the trial transfer system, “the cases were to be tried again by the county magistrate, before sentence and execution”,103 which frustrated the settlement administrators’ hope. Therefore, foreign assessors wanted to elude this and managed to expand the application of hard labor. Criminals punished by doing hard labor increased quickly. A Chinese named Dai who was doing hard labor was abused to death, which aroused protests from Shanghai local officials. Shanghai officials believed that in Chinese 101

Liang (1930), p. 105. Kotenev (1927), p. 52. 103 Xu and Qiu (1992), p. 161. 102

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law, there was not this kind of hard labor as punishment, and the punishment of Chinese by foreign laws was a violation of the treaties104 ; therefore, they wanted to shut down the administration yamen. Meanwhile, during the period of the administration of yamen, the commercial law system developed rapidly with a compromise between Chinese law and Western ideas, and it grew so fast that a new dimension of law was thus opened up. Since 1867, Ying Baoshi, the Shanghai Circuit Intendants, and Charles A. Winchester (1820–1883), the British consul at Shanghai, started negotiating the solution to problems in the practice of administration yamen, rules were made anew for the establishment of formal courts, applications were sent to be approved by the Zongli Yamen of Qing and foreign ambassadors, through repeated modifications, in 1868 based on precedents the Regulation for Joint Trial Officer in Shanghai Settlement was made. Walter H. Medhurst (1822–1885), the British consul at Shanghai, issued and enacted the regulation after receiving instruction of the British ambassador in April 1868. The North Pidgin Administration Yamen was reorganized as the “Shanghai International Settlement Joint Hearing Tribunal” according to this regulation, and the joint trial system by Chinese and foreign countries formally became a special judicial system in foreign settlements in China. Before this, administration yamen was within the British consulate, which was taken by outsiders as an affiliated organ; it was even ridiculed as “la cour mixte anglaise” by the French consul, and by the end of 1868, it was moved to Nanjing Road from the British consulate. The new address became the venue of the joint hearing tribunal. The organization of the joint hearing tribunal was larger than that of the former administration yamen, and the cases tried were broader. The organization and jurisdiction of the Shanghai International Settlement Joint Hearing Tribunal were provided below according to the following regulations: (1) Organization. The joint hearing tribunal was chaired by a subprefectural magistrate appointed by Shanghai Circuit Intendants, who was called yanyuan 谳员 (lawmen). The office consisted of interpreters, translators, clerks, etc., to be employed by the verdict-maker. In addition, one or two foreigners were employed in trials of people from nontreaty countries. Monthly financing was taken from the Circuit Intendants. (2) Cases in charge. Civil and criminal cases where the accused were Chinese or nontreaty country citizens in the settlement, of which civil cases, regardless of debts or business deals, were all interrogated and tried by the tribunal, criminal cases included only violations deserving punishments under cangue and floggings. The cases above exile and imprisonment were dealt with by Shanghai county magistrate, murders were investigated by the county magistrate. (3) Trial methods. In cases where foreigners involved must come to the tribunal, the cases must be interrogated by the judge in company of the consuls or send foreign officials to hear the trial. Cases involving only Chinese were interrogated and tried by Chinese lawmen, and foreign consulates should not intervene. For cases involving Chinese individuals employed by foreigners, consul or consul representatives might hear the trials. For cases involving Chinese and foreigners from nontreaty countries who would be 104

Kuai et al. (1980), p. 378.

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tried by Chinese lawmen, a foreign official was invited to hear the trial. The crimes committed by people from nontreaty countries were tried by Chinese lawmen and reported for confirmation by Shanghai Circuit Intendants and should negotiate with a consul of treaty countries for the trial. (4) Capture and subpoena. Chinese outlaws hidden in foreign settlements, the Chinese lawman directly capturing them, county subpoena were not needed, and foreign police was not needed. Only for Chinese employed by foreigners should the consuls be informed before summoning them to the tribunal, shelter and hiding were not permitted. The Chinese serving the consul should be captured only after permission of the consul. (5) Appeal proceedings. If the lawman’s verdict was not accepted by either side, rehearing was allowed with reports of Shanghai Circuit Intendants and the consul. At that time, the joint hearing tribunal was merely a branch of Shanghai County, with limited power. The Chinese lawman must follow the opinion of superior officials in Shanghai County in his work, and in some cases, the interior police should take simultaneous actions in distress warrant of the defendant’s property, but interior officials often turned a deaf ear with contempt to the demand for assistance from the joint trial tribunal, and their official letters were ignored. Sir Walter H. Medhurst, the consul at Shanghai, thought the joint hearing tribunal was not having enough authority to meet expectations because subprefectural magistrate in charge did not have a high rank.105 In 1875, the consuls in China formed a consensus in meetings that unless the laws were substantially modified to expand the purview of the assessor and draft new criminal law for China; otherwise, there would be little hope for improvement of the joint hearing tribunal. Some British emigrant organizations also presented petitions to the British ambassador for the modification of the treaty, to add a foreign police officer, and to take over the responsibility of the joint hearing tribunal. The aggressive demand of these British people to expand power was the background for Yantai negotiations between Britain and China. However, the restrictions to the jury system in the Agreement of Chefoo between China and Great Britain fell short greatly of the expectations of the settlement authorities. They thought that in comparison with the Regulation for Joint Trial Officer in Shanghai Settlement, not only new power was not obtained, but Chinese officials obtained reciprocal rights to watch proceedings at consular courts. The Regulation for Joint Trial Officer in Shanghai Settlement had already denied the arrest of Chinese criminals in settlements by the demarcation charter signed by the American Consul and Shanghai Circuit Intendants in 1863, but the settlement authorities were reluctant to surrender the interests already obtained. In 1878 (the 4th year of Guangxu’s reign), the joint hearing tribunal ordered bailiffs to arrest a Chinese female criminal to be sent to Shanghai County for interrogations. The Municipal Council protested that all documents, such as arrest or subpoena, should first be sent by the assessor of the joint hearing tribunal himself and executed by the police of the Municipal Council. The settlement authorities moved threateningly forward while Shanghai Circuit Intendants fell back step by step, eventually not only because bailiffs of the joint hearing tribunal might not arrest criminals in the settlement, county bailiffs could also no longer enter the settlement. The consul at 105

Li (1993), p. 357.

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Shanghai wanted to put an end to the trouble by designing a prima facie procedure. All documents to arrest suspects must be issued by the municipal police station; even if the bailiffs from the joint hearing tribunal wanted to arrest them, they could not since there were no documents. In 1883 (the 9th year of Guangxu’s reign), the joint hearing tribunal held a prima facie procedure for the murder committed by Cao Xirong, a policeman of the Municipal Council. After this became a bad example for exceeding authority, similar to international extradition, foreigners used to publicly call it extradition without slicking up, and Chinese society appeared to be a foreign country. The Shanghai magistrates thought that the joint hearing tribunal was an official branch established in the Chinese territory, but the Municipal Council of the settlement thought it an organ governed by both Chinese and foreign sides. In the early 1900s, settlements were like a country within a country in jurisdiction and became a shelter for Chinese criminals to escape arrest by the Qing government and a very active stage for revolutionaries who fought Qing and Manchu. In 1903 (the 29th year of Guangxu’s reign), the Subao case was termed “Guimao big case (癸 癸 卯大狱)” by Zhang Shizhao, the case made a headline intriguing people around the world, it is an important experience in the development of the joint hearing tribunal and a show of the Municipal Council’s persistence in autonomy in the international settlement. The Subao newspaper was full of anti-Manchu articles, with the preface to Revolutionary Army (革 革命军) by the author Zou Rong himself, and Refute Kang Youwei’s Arguments on Revolution (驳 驳康有为论革命书) by Zhang Taiyan, which was hostile in the eyes of Qing government. Wei Guangtao, the governor of Jiangsu, ordered Yuan Shuxun and the Shanghai Circuit Intendants for prohibition and secret arrests and assigned Yu Mingzhen, a special circuit intendant candidate to Shanghai for the case. Yuan Shuxun was under great pressure and he knew it was a thorny affair to arrest people in the settlement, since foreigners long deemed settlements as their sovereign territory, different from arresting people in the interior, he negotiated repeatedly with the consul at Shanghai to obtain documents, to arrest key criminals named by Qing government, an agreement was reached that the arrested people must be tried and imprisoned in the joint hearing tribunal. On the 7th day of the fifth lunar month (July 1), the Subao case-related revolutionaries were arrested and surrendered to the joint hearing tribunal by the municipal police station, Sun Jianchen, the Chinese lawman, and Bertram Giles (1874–1928). The British consul interpreter was a counselor and held a joint trial. The Qing government employed a lawyer named White Copper, while supporters of Zhang Taiyan outside invited a lawyer named Harold Browett to defend. Qing officials were astonished, and they wanted to move the trial to the county. Trials were postponed after negotiations with the British counselor. On the 27th day of the fifth lunar month (July 21), the trial continued when the Qing government lawyer Copper claimed that “we investigated that there are other import proofs in this case, the investigation is not complete yet, today it is not convenient to make claims, after the completion we will negotiate and decide on the time for joint trials.106 The Qing government was busy thinking of extraditing 106

Quoted from Hu (1977), p. 971. “Subao’s Revolutionism in Qing Archives”, in Chinese Society of History (1957), Book 1, pp. 428, 429.

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criminals to Nanjing for trials by themselves, so they wanted to postpone the trial and obtain more time for their actions. The lawyer of the Zhang Taiyan, etc. asked who was the plaintiff himself, the lawman had to reply that “Zhang Taiyan and Zou Rong, etc. are criminals to be arrested by Jiangsu governor. As subprefectural magistrate, I just do as superior officials ordered to”.107 The strange thing that the Qing government deigned to litigate with its subjects became a funny topic at that time. On Qing government’s request for surrender of criminals, North China Daily News commented that “foreigners in the settlement enjoy the privilege once in the settlement; Chinese in the settlement also enjoy the protection once in the settlement, and Chinese officials are not empowered to intervene.”108 Municipal Council announced that this was a settlement affair to be tried by the settlement. The case was even related to international politics, countries such as the U.S.A., France, Russia, etc. permitted the extradition out of their own interests, but only Britain denied. Shortly after Shen Jin, a revolutionary was ordered to be killed by Cixi in Beijing, and public opinion was so loud that foreigners were more reluctant to extradite. The Qing government had to allow the joint hearing tribunal to hold on-site investigations and interrogations in an extraordinary session. From the 15th to 19th day of the tenth lunar month (December 3–7), four extraordinary sessions were held: the judge in chief ws Wang Yaoting, the Shanghai county magistrate, the cojudges were Deng Wenyu, the lawman, and Dennis, the British consul interpreter. In the court debate, Copper, the lawyer for the plaintiff, asked the position of the cojudges, Dennis happily declared that the word “peishenguan” (assessor) had two meanings, the cojudges of the joint hearing tribunal were different from those of the Agreement of Chefoo between China and Great Britain, the latter just sit and watch trials, to protect foreigners, while the former had a power concerning the verdict, without their confirmation the verdict was invalid. The Qing government “plucked up all courage to trade for the life of a couple of revolutionaries, by wasting a lion’s energy in pursuit of a small rabbit.”109 Finally, the punishment was slight. Zhang Taiyan and Zou Rong were sentenced 3 years and 2 years of imprisonment, respectively. Such a conclusion was purely a political deal between the Qing government and foreign diplomats in repeated negotiations behind the curtain; for the late Qing revolutionaries, it was not more intimidating than a perfunctory performance. Jiangsu volume 4 commented later that “previously Subao and Revolutionary Army were radical but had few readers. The common people did not know what they were trying to advocate and what was instigated. Today, after the ban of Subao and the imprisonment of Zhang and Zou, the information was spread everywhere. Meanwhile, the questions like ‘Why was Subao banned? And why Zhang and Zou were imprisoned?’ are asked by common people, we must answer: for anti-Manchu activities. Why Manchu should be fought aganst? Then, we must answer the following question: because the Han nationality 107

“Two Trials of Revolutionaries”, Shen Newspaper, July 23, 1903. The Spirit of Revolution (translated on June 29 in North-China Daily News), see A Collection of Guominriribao (National Daily), Compilation 1, in Luo (1968), A15.1, p. 109. 109 Zhang and Wang (1960), Book 2 of Vol. 1, p. 776. 108

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suffers the unbearable persecution of Manchu, Manchu is the foes of Han nationality. Such questions and answers spread among the people like a fire, and more people are aware of that. So the opinion against Manchu starts to enroot in the people of 400 million.”110 The obstacles and struggles of the settlement administration made for the Subao case completely discredited and humiliated Qing government, which served as the catalyst for the motivation for abolishing consular jurisdiction and the reclaim of the joint hearing tribunal. In 1905 (the 31st year of Guangxu’s reign), workers at the joint hearing tribunal had many bribery and corruption cases, so the Municipal Council assigned a Western policeman or Indian municipal policeman for inspection. Chinese officials thought the solemn court should not be supervised by foreigners, while the Municipal Council thought the Chinese lawmen were stationed in the settlement only out of friendly permission of foreign countries. Foreigners themselves were certainly authorized to access. In addition, there were many prisoners who died from bad conditions in the settlement prison after being imprisoned by the joint hearing tribunal, Zou Rong, a healthy youth, who died in the prison after being imprisoned because of the Subao case, and the municipal police station never informed the Chinese officials. The conflicts increased with time, and eventually by the end of the year, a notorious “Court Trouble Case (大 大闹公堂案)” occurred. Li Huangshi, a Cantonese woman wife of a Sichuan official, took a liner ship on the Yangtze River back to her hometown with 15 girls. They were arrested by the municipal police station. Guan Jiongzhi and Jin Shaocheng, the lawmen, and Bertie Twyman, the assistant British consul, had disputes on the trial. Guan Jiongzhi proposed putting them in custody at the joint hearing tribunal because the proofs were not enough, while Twyman insisted on imprisonment at west prison. Guan refuted that there were no provisions in the Regulation for Joint Trial Officer in Shanghai Settlement, and there was no order from the Circuit Intendants, so he would not allow it. Twyman said arrogantly, “I never knew some Shanghai Circuit Intendants, I only follow orders of the consul.” Guan replied angrily, “Just like what you said, I never knew some British consul”, and he ordered bailiffs of the joint hearing tribunal to send Li Huangshi to guanmei 官媒.111 Twyman arrogantly ordered municipal policemen and seized the suspects and fought with bailiffs of the tribunal, even though Jin Shaocheng was beaten by batons when he stood up to suppress the fight. The court was in a fierce fight, and the bailiffs shut the gate. Municipal policemen got the people but could not go out, they asked Guan for the key, Guan refused sternly: “you can destroy the gate, fight in the tribunal, even kill the officials”,112 and he left the tribunal. Finally, all suspects were taken away by municipal policemen in patrol wagons.113 After that, Yuan Shuxun, 110

“Tut-tut! The Debate between Manchu and Han Nationality”, Jiangsu, No. 4, news, comments of the province, pp. 119, 120. 111 Guanmei, women labors in yamen, responsible for monitoring and guarding women criminals, etc. 112 Pang Guojun. “The Case of Quarrel at Joint Hearing Tribunal by the End of Qing”, see Shanghai Wenshi Museum, The Historical Materials Editing Board of Shanghai Government’s Counselors’ Office (1983), 2, p. 237. 113 See Goodman (1995), p. 187–189.

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Shanghai Circuit Intendants, received a telegraph from Jiangsu governor ordering him to stop the trials by the joint hearing tribunal, informed the Russian consul and the British consul, and demanded the dismissal of Twyman and removal of the head of municipal policemen. At Shanghai, the Cantonese merchant group was very strong. After knowing this, they met at Guangzhao Guild Hall to think of ways to rescue Li Huangshi, and they met Shanghai Circuit Intendants to argue strongly on just grounds. Municipal Council would not apologize, finally when the envoy delegation ordered the release of Li Huangshi from the joint hearing tribunal prison under the protest of Qing government. The municipal police station of Municipal Council released Li Huangshi and directly surrendered to Guangzhao guild hall, and show contempt to the joint hearing tribunal by not delivering to the tribunal. By then there were more than 450 thousand Chinese in the international settlement at Shanghai, many newspapers reported the case immediately after that, rumors and hatred spread quickly in a modern metropolitan environment with a large population density, in addition to the intervention of some students who had studied in Japan and now back in China, the situation was out of control. On January 8, 1906(the 18th day of the twelfth lunar month, in the 31st year of Guangxu’s reign) Shanghai merchants announced a strike, and they besieged the municipal police’s station at Laozha, etc., the municipal police opened fires to suppress, which aroused a big event that shook the government and common people. In March 1906 (the second lunar month of the 32nd year of Guangxu’s reign), under the fierce attack of Shanghai people, the delegates of all countries reached an agreement with the Qing Foreign Ministry, which reiterated the validity of the 1868 (the 7th year of Tongzhi’s reign) Regulation for Joint Trial Officer in Shanghai Settlement to limit the power of the joint hearing tribunal and return to the former charter. According to this agreement, the joint hearing tribunal was authorized only to give sentences under 60 days of imprisonment, the consuls at Shanghai were strongly against it, and Qing government soon compromised and permitted jurisdiction of the office expand to under 5 years of imprisonment.

3.4.1.2

Shanghai French Settlement Joint Hearing Tribunal

After 1865 (the 4th year of Tongzhi’s reign), police offense cases committed by Chinese in the French settlement at Shanghai were tried by the French consul himself; criminal felonies committed by Chinese were within jurisdiction of Chinese government, but Chinese bailiffs’ arrest of criminals in the settlement must obtain subpoena underwritten by the French consul, for mixed civil cases with Chinese accuser and foreign accused or foreign accuser and Chinese accused, such cases were drastically different from the cases above. They were jointly tried by Shanghai Circuit Intendants or his depute and the French consul at the French consulate according to Article 35 of The Treaty of Tianjin between China and France. In drafting Regulation for Joint Trial Officer in Shanghai Settlement, the French consul agreed to organize a joint hearing tribunal at Shanghai, but soon he believed that Article 5 of the protocol of the Regulation was a provision that the Chinese outlaws escaped into the settlement should be arrested by bailiffs assigned by the joint hearing tribunal,

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which was in conflict with the Sino-French treaty and the judicial custom of the French settlement, so in 1869 (the 8th year of Tongzhi’s reign) after consulting the Shanghai Circuit Intendants a separate joint hearing tribunal was established. When the tribunal was first established, a depute appointed by Shanghai Circuit Intendants would hold three trials every week of cases involving both Chinese and foreigners with a French representative at the French consulate. According to the procedures of the Shanghai international settlement joint hearing tribunal, the trials were chaired by officials in different ranks, but the officials of the Sino-French joint trials were equal in rank. Louis Ratard, the French consul, in 1901 (the 27th year of Guangxu’s reign) reported that “in the international settlement, when only Chinese are involved, any foreign joint trial officials do not participate in trials in such cases, this is very logical, since there is not a particular country with privileged jurisdiction. However, in our settlement, the situation is completely different. For such litigations, Chinese joint trial officials must work with the French official, who is usually the chief translator of the consulate, to hold trials. This is quite natural, since we enjoy exclusive jurisdiction here.”114 When the tribunal was first established, it was led by a deputy concurrently acting as the chairman of the Joint Security Bureau (会 会捕局), with approximately 10 green camp soldiers, if Chinese criminals should be arrested in the settlement, the subpoenas should be signed by the French consul, the arrest should be made by the soldiers assigned by the deputy together with French municipal police station’s detectives, later when the Joint Security Bureau was dismissed in 1896 (the 22nd year of Guangxu’s reign), the deputy had no runners to carry out order, so the arresting power went to the municipal police station. For civil and criminal cases tried in the joint hearing tribunal in the international settlement, Chinese were allowed to employ lawyers in defense, but the office in the French settlement only allowed the application for lawyers for civil cases when the debt in dispute was over 1000 yuan. Chinese laws were less applied, and French laws were more dominant in the joint hearing tribunal in the French settlement than in the joint hearing tribunal in the international settlement. A report of the French ambassador disclosed the idea that in the French settlement, any interference with the exclusive French jurisdiction was unwelcome. He said that “since that time (1869), the two joint hearing tribunals have been developing in parallel, without a common path. Our foreign ministry has been hinting that the national color of our judicial organizations shall be maintained. This is also an order that our consul at Shanghai should not attend the joint hearing tribunal for the international settlement as joint trial officials in person or via deputes. The foreign ministry also hopes to avoid other powers to use such a precedent and demand their consuls to attend our joint hearing tribunal as joint trial officials.”115 The two joint hearing tribunals for the international settlement and the French settlement were often in disputes concerning jurisdiction over litigations. The consul group at Shanghai provided the Shanghai Settlement Jurisdiction Charter in 1902 (the 28th year of Guangxu’s reign), which had 4 articles, i.e., for civil and criminal cases or state prisoner cases involving exclusively Chinese, the accuser should accuse at the 114 115

Wu (1978), p. 23. Wu (1978), p. 24.

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joint hearing tribunal where the accused was a resident or tried by the office where the crime scene. For all mixed cases involving Chinese and foreigners, regardless of whether the accused Chinese lived in the international settlement or the French settlement, if the accuser was French, all such cases were tried by the joint hearing tribunal in the French settlement. If the accuser was a non-French foreigner, the trial should be made by the office in the international settlement.

3.4.1.3

Hankou Foreign Affairs Office

There is clear evidence for the earliest time of the emergence of the Hankou Settlement Joint Hearing Tribunal, but the Hankou British settlement had a joint hearing tribunal before the 20th year of Guangxu’s reign (1894); therefore, the German, Japanese, Russian settlements opened after the Jiawu War in Tianjin did not acquire this privilege, while for the German, Russian, Japanese settlements opened in Hankou, the sino-foreign joint trial system was specified in charters for them, when German, Russian, French, Japanese settlements were opened, Hankou had 5 joint hearing tribunals existing at the same time. The Jianghanguan Circuit, based on the approval of the governors-general and governors in Hubei province, reorganized the previous Foreign Neighborhood Administrative Bureau (洋 洋务保甲局, the self-governance legal system for foreigners in settlements) into the Hankou Foreign Affairs Office (汉 汉口洋务公所), usually known as Foreign Street Inspection Office (巡 巡查洋街委员公所). The Foreign Affairs Office had settlement commissioners responsible for arrests and subpoena of suspects in settlements and attending joint trials in settlements. The purview of the Hankou joint hearing tribunals was far beyond that of joint hearing tribunals elsewhere.

3.4.1.4

Gulangyu Joint Hearing Tribunal

In the 28th year of Guangxu’s reign (1902), Xiamen’s Gulangyu international settlement was established. According to Article 12 of the Xiamen Gulangyu Extended Public Land Charter, a joint hearing tribunal was established by China as the case in Shanghai. The Xiamen Circuit Intendants assigned a commissioner in the office, known as “tangzhang 堂长” (tribunal chief), responsible for cases of Chinese residents’ infringe arresting charter and lawsuits of money, bonds and real estate. If the Chinese suspects committed felonies, the commissioner executed preliminary trials before sending the materials to local magistrates. Cases involving foreigners were all tried jointly by the foreign consul or representative and the tribunal commissioner, quite similar to the French settlement joint hearing tribunal in Shanghai, if the commissioner and the actual judge of the cases could not reach a unanimous for the settlement of a case, the appeal should be brought to the joint trial by the Circuit Intendants of Xiamen and the consul. Different from the Shanghai international settlement, for the Chinese employed by foreigners upon the subpoena, if he was not in the house of his foreigner employer, the subpoena did not require the

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signature by the consul in advance, but confirmation by the consul that day was needed.

3.4.2 Dongqing Railway Foreign Affairs General Bureau The Dongqing Railway Foreign Affairs General Bureau was a special joint trial organization. Through the Li-Lobanov Treaty, Russia got the investment privilege of Dongqing Railway (also known as Chinese Eastern Railway), and according to Article 5 of the Contract for Construction and Operation of the Chinese Eastern Railway between China and Russia, it was provided that “all the murder and theft cases happening in the venue of the railway should be managed by local magistrates according to the treaty.”116 However, the article was distorted by Article 7 of the Russian unilaterally drafted Chinese Eastern Railway Company Charter as “jointly tried by Chinese and Russian local magistrates according to the treaty”.117 In the 27th year of Guangxu’s reign (1901), the Russian government got the consular jurisdiction over Russians serving the Dongqing railway at local courts, the Russian government further coerced the Jilin government to sign the Amendments to Charter of Jilin Railway Foreign Affairs General Bureau, establishing an unprecedented railway joint trial system in international law custom. According to the relevant provision in the charter, the foreign affairs general bureau was established in Harbin, as a Chinese yamen, the officials and soldiers were assigned by the general of Jilin and Heilongjiang, chief commissioners and assistant commissions were also assigned, which must be negotiated with the superintendent of the railway company in advance, the financial support for the bureau was paid by the railway company. The foreign affairs general bureau had a jurisdiction over all cases involving the railway company or Chinese residents living within 30 li’s along the railway, including murders, rapes, riots, etc. When there were trivial cases not much against the Chinese law and the railway charter, such cases were tried by the foreign affairs officials assigned by the general bureau together with Russian superintendents of each railway section, for big cases against Chinese law and the railway charter, the general bureau officials and the Russian superintendent in chief of the Chinese Eastern Railway Company or his full-fledged member for the interrogation and trials. After the settlement of the cases, the criminals might be imprisoned in the prison of the general bureau or be tried and punished by nearby local government. If there were felonies with punishment of death penalty or exile or when there were disagreements over trials between the general bureau officials and Russian superintendent in chief, the case should be brought to the General of Jilin and Heilongjiang for trials.

116 117

Wang (1957), Vol. 1, p. 673. Mi (1984), Book 2, p. 356. See also Mi (1980), p. 414.

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3.5 Epilogue: A Fresh Research on the Pedigree of Consular Jurisdiction Pär Cassel completed his doctorate dissertation entitled Rule of Law or Rule of Laws: Legal pluralism and Extraterritoriality in Nineteenth century East Asia, which was an honor dissertation at the law school of Harvard University in 2006. Pär Cassel is mainly influenced by the genealogy of Foucult, with a postmodernist approach to retrieve the origin of modern consular jurisdiction in China to judicial subprefect system in early Qing dynasty, and Qing empire is taken as an empire ruled by diverse laws, with long-term experience in dealing with litigations among different nationalities with the said system, therefore consular jurisdiction system could be easily accepted in modern history. Pär Cassel attempted the reading of extraterritoriality law genealogy from the perspective of a Qing point of view to illustrate the connection with the Mandarin-Han relationship system. He believes that the practice of division and rule of banner people and Han Chinese is a precursor of the division of Chinese and foreigners before the Opium War in Chinese port cities opened. He based on John Griffiths’ concept of ‘weak’ legal pluralism in analyzing the order of many nationalities under the rule of Qing. In his view, after Qing entered inland China, their territory expanded, forming a gigantic empire with many nationalities so that different nationalities would live together in harmony. In places where the eight banner troops were stationed, judicial subprefects were established in areas where Han and Mongolian and other minorities live together to be responsible for litigations involving different nationalities. The division and rule system under different banners means that the Qing Empire had the experience to tolerate the demand of extraterritoriality by foreigners, and a system was established for this problem. The continuity of the traditional system and the treaty port city system is most prominent in the mixed court in Shanghai. Through resorting to the contrast between the Chinese version of treaties and other judicial materials, borrowing and adaptation from the long existing legal concepts and mechanisms in Man-Han law is direct. Not distant from Shanghai, there were four mandarin cities for stationing troops, i.e., Jiangni, Jingkou, Hangzhou, and Zapu, which were preserved until late Qing. In Qing officials’ growing execution of treaties signed with Western countries, solutions to the problems caused by foreigners can be found in Jiangsu without much effort. Pär Cassel believes that separate administration of banner people and Han Chinese was a practice of Manchu before their entrance of Sanhai Pass as the ruler of China, meanwhile it also followed the practice of Ming law, which originated from the trial system for “mixed cases” in Mongolian Yuan dynasty. Mongolians adopted the “personality principle” in jurisdiction, depending on who committed crime rather than on where the crime was committed. To solve disputes among different families, Yuan introduced the “contract engagement system” (yue hui zhi) of joint trials. There are many contents about the contract engagement system and the joint hearing tribunal in the Law of Yuan Dynasty, but only the article concerning “military and civilian litigations” in Qing Law is derived from the Ming law system. This remaining article is just the legal basis for mixed Manchu and Hanchu cases, serving as a framework for

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the “Judicial Sub-Prefect” (理 理事同知). When murders happened involving banner people, local magistrates and judicial subprefect held joint trials (also called “hui shen 会审”). Judicial subprefects had limited power for trials of banner people, not enjoying any regional jurisdiction while not having regional duties; their power was limited even in cases involving banner people. In addition, the Qing government also had Miao Nationality Subprefectural Magistrates, East Nationality Subprefectural Magistrates and West Nationality Subprefectural Magistrates. Chorographies indicate that Coast Defense Subprefectural Magistrates were also responsible for cases involving different nationalities. For example, the Coast Defense Subprefectural Magistrate of Xiangshan County, Guangdong, was responsible for the administration of “foreigners at Macao”. Therefore, Pär Cassel believes that consular jurisdiction is not only a product of Western powers’ coercion of China but also a new lifestyle (modus vivendi). While the Qing government awarded foreign powers extraterritoriality, the Chinese versions of such treaties and other legal literature had a clear impression of Qing law. The Qing government solved problems with a familiar approach, but the future evolution of which was out of their prospect, the inequality was not in the treaties themselves but was caused by the imbalance of powers behind such treaties. The Shanghai joint hearing tribunal was born as an internal court within the Qing administration organ, but passing through a series of crises, it became increasingly “westernized”. Previous studies focus too much on the intention and gains of foreigners while neglecting the local native system and ideas due to their efforts to interpret the establishment of the joint hearing tribunal from the perspective of the foreigners’ policies or from the perspective of “traditional” Chinese rulers while sacrificing other analytical frameworks. The Qing characteristics of the event have not been approached.118 Pär Cassel’s illustration above is a brand new effort and certainly reasonable to some extent. Although the joint hearing tribunal is usually seen as an abnormal trial organ, we should not neglect the gradual evolution of the traditional Chinese joint trial system to the “joint hearing tribunal” that participates and is dominated by foreign consuls because both adopt a division of jurisdiction by the principle of personality. On May 1, 1864 (the 3rd year of Tongzhi’s reign), Bao Yingshi, the Shanghai Circuit Intendants, sent officials to hear the trial with the assistant consul at the British consulate, the joint hearing tribunal originated here. The English name of the joint hearing tribunal was “International Mixed Court at Shanghai”, local Shanghai people called it the first “western yamen” in China, or “new yamen”, but its original name is “Joint Hearing Tribunal at British Settlement”, or “North Pidgin Administration Yamen”, the burgeoning forms of both its name and system are all derived from the system of judicial subprefect. First, the establishment of both Manchu cities and settlements had the intention of cutting away and adopting separate governance; the isolation of Manchu cities was similar to settlements. The Qing government took the eight banner organizations as a border, and the segregation policy prohibited banner people from commercial and marital engagement with other people. A punishment system was adopted, so Manchu and Hanchu were separated in 118

Pär (2003).

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space. A binary administration structure and social system was formed where banner people lived in separate cities, the candidates of officials were of their nationality, their punishments were different, and their careers were also different by provision. Hanchu were called common people, and Manchu were called banner people. Banner people living in Beijing were called capital banner people, while banner people living in provinces and frontier forts were called garrison banner people, those living in Manchu hometown were called inhabiting banner people. According to the law of capital banner people leaving from the capital, capital banner people could not be more than 40 li from the city. Garrison banner people should not be 20 li from the garrison city. If they went to the capital for reasons such as exams, inheritance of official ranks or privileges by descendants, attending tryouts, or visits to relatives in Beijing, the official in charge should submit the portraits and the family data of three generations to the banner; and he should get sealed documents showing his age and portrait to be submitted by himself. For the Manchu people who went with their parents to work in other provinces if their relatives were senior officials, their visits to Beijing must be reported to the banner by their father or elder brothers; relatives of other officials must request the replies of the official in charge, with sealed documents for the visitors’ delivery. After visiting Beijing, they would return, the banner informed the province, with documents to be delivered by the visitor and checked by the responsible official. Free visits without documents or visits to other places or no documents obtained from the responsible official should be punished. Second, according to Qing law, banner officials governed banner people, local magistrates governed common people, and they did not share common duties. The appointment of judicial subpprefects at provincial and garrison banners was aimed at dealing with mixed cases of banner people and common people, i.e., “the mixed cases should be investigated by generals, governors-general, governors and judicial subprefects119 ”. In this aspect, it was not different from the joint hearing tribunal in dealing with mixed cases for foreigners and Chinese; it was a transplant of previous experience by Qing government. Third, the council was similar to what is now a “military-local government contact office”, responsible for coordinating the relation between eight banner soldiers and local people. However, just as a German proverb says, “comparisions are usually bad” (Vergleiche hinken moistens), the analog is reasonable to some degree, but there are inevitable biases. In my view, the judicial subprefect functioned as a buffer between banner people and local Hanchu people. The punishment power of the joint hearing tribunal was limited; the maximum punishment was 100 floggings, the same as the power of judicial subperfect. In the Qing dynasty, mixed cases of banner people and common people were tried by the council, and exile, banishment and imprisonment were rebated as cangue, thrashing, flogging or whipping. In contrast, Regulation for Joint Trial Officer in Shanghai Settlement had very clear provisions for the nature of the joint hearing tribunal, i.e., Shanghai Circuit Intendants “appoints a subprefectural magistrate to work exclusively in the foreign

119

Xiao (1971), Vol. 1, in: Modern Chinese Historical Materials Series, Book 71, 704, p. 66.

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settlement, in charge of debts, fights, thefts, litigations in the settlements”,120 “cases should be tried according to Chinese conventional law. Chinese can be interrogated and put in custody, and punishments under cangue and flogging are permitted”,121 “when Chinese committed felonies that deserves death penalty or above exile and imprisonment”, “they are still tried by the Shanghai county, murders are still investigated by Shanghai county, the appointed official cannot make exclusive decisions”,122 we can see that the joint hearing tribunal was originally a regular trial organ established at the British consulate by an administrator (Coast Defense Subprefectural Magistrate) assigned by the Chinese government. Not only was the Shanghai joint hearing tribunal a derivation from the Administrator Subprefecture, but the situation of Hankou port after opening up was also proof of the close relationship. At that time, there were two subprefectures in what is now Hubei: one subprefecture is the Hefeng subprefecture, as a direct subprefecture under the provincial governor; the other subprefecture is the Xiakou subprefecture, as a local subprefecture. Xiakou (now Hankou) originally belonged to Hanyang County. Later, with the opening of Hankou Port, the local police was very busy, so Xiakou subprefecture was established after Hankou was separated from Hanyang County in 1898. The subprefecture was responsible for the local affairs of Hankou township. The Shanghai joint hearing tribunal was an introduction of a previously conventional administrative organ of Qing government into the foreign settlement, this is obviously a use of its own knowledge resources, we can frankly say that the eventual loss of jurisdiction via joint hearing tribunal was a different thing. Pär Cassel associates consular jurisdiction with the judicial subprefect system due to his discovery that before the Jiawu War, Qing government established consulate in Japan, in the name of “lishi”. We said previously that the term “zhiwaifaquan” (exterritoriality) was first coined by Huang Zunxian; later, the term becomes a standard term. In Japanese National Records: Relations with Neighbor Countries, he thus wrote “people of Western countries move across borders, merchants of country A residing in Country B are governed by local magistrates of Country B, the consuls of Country A just restrict and take care of them; only in Asia, consuls try their own people by their own law, this is what western people call extraterritoriality, meaning the jurisdiction out of their territory.”123 The editor of Collected Works by Huang Zunxian adds a note for the word “lishi” (administrator), saying that it should be “lingshi” (consul).124 In collative terms, the word “should” is used to correct mistakes. This editor does not understand the complex context and covert gist of Huang Zunxian’s use of “lishi”, it is not an error out of ignorance or clerical mistake, in this one sentence the author used both “lingshi” and “lishi”, which usage is consistent in the paragraph 120

Liu (2002), Vol. 348, incorporated in the Editing Board of A Continued Compilation of Sikuquanshu, 820, the historical part, political books, p. 329. 121 Morning News Editing Office and Tsinghua Students’ Union (1986), in: Modern Chinese Historical Materials Series, compilation 3, Book 16, 160, p. 428. 122 Li and Chen (1997), p. 249. 123 Chen (2005), Book 2, p. 986. 124 Ibid.

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and the whole book. This is not a temporary neglect of course, rather such a sentence is used to show the minute difference of the two concepts. Moreover, we should pay attention to the sentence in the second half of the paragraph that appeared repeatedly in memo to the throne written by the Office in Charge of Affairs of All Nations, Li Hongzhang and Guo Songtao, i.e., “simply imitate the cases of Mongolian tribes tried by Lifanyuan 理藩院 (Vassal States Administration Court), and replace imprisonment, exile, flogging and thrashing with custody and fine, set a routine rule to be obeyed by both sides”.125 The meanings here are worth our reflection and close examination. To my knowledge, contemporaries called Qing consulate in Japan as “理 理署” (lishu, administration office) and “理 理事府” (lishifu, court of administration), which was simply called “lishi yamen” by Chinese emigrants in Japan. Zheng Xiaoxu, who later became premier of Manchu State as a traitor, had been an official at the cabinet before he became tongzhi (subprefectural magistrate). In 1891 (the 17th year of Guangxu’s reign), he was appointed as a consul with the request of Li Jingfang, the Chinese ambassador to Japan. From the published Diary of Zheng Xiaoxu we can see that the consul of a mighty empire to Japan was no different from the subprefectural magistrate at Shanghai joint hearing tribunal, besides emigrants affairs, he was also responsible for justice, he compiled monthly litigation records like county magistrates in China. He might deal with, try cases involving Chinese emigrants living in Japan and disputes between Chinese emigrants and Japanese, not only civil cases like marital affairs and debts, even minor criminal cases below thrashing punishment could be executed on court, more serious criminals should be sent under escort to China, and prison was established in the consulate, with bailiffs to investigate cases outside.126 In archives, we can find the arrest warrant issued by lishi (administrator), the forms of petition documents used by consuls, Zheng Xiaoxu’s announcement instructing emigrants about litigation rules, etc. In the handover lists of consuls, even recorded the number of handcuffs and instruments of punishment, etc. In the Japanese literature, there are many judicial activities of Chinese consul in Japan.127 For example, according to Yokohama City History Editing Office’s Historical Materials of Yokohama (Yokohama Zongwuju’s City History Editing Office. Yokohama City History: Historical Materials, Tokyo Tushu Print, 1964), in 1880 upon recognition of consuls of all countries at Yokohama, Japan announced that regardless of nationality, if people were suspected of “prostitution”, the Japanese police might enter the house for investigations. Fan Xipeng, a Chinese consul in Japan, rejected this and insisted that the investigation of Chinese individuals should be executed by Chinese individuals. Meanwhile, after rejecting the Japanese government’s request for investigations, Fan Xipeng immediately informed Chinese at Yokohama that if some people participated in “prostitution” or rented houses to Japanese whores, they would be severely punished, and Chinese patrols who neglected their duties should be punished at the same time. In November and December 1884, Ruan Zutang, the

125

Huang (2005), Book 1, p. 177. Zheng (1993), Book 1, pp. 348–380. 127 See Wang (1988), p. 276. 126

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consul in Japan punished Chen Chengwu, who did business in Japanese communities without permission, by flogging.128 This kind of severe infringement on the jurisdiction of the host country was unimaginable according to modern international law, but at that time, both China and Japan took it as appropriate, which indicates that this “lishi” actually closely resembled the judicial subprefect in the early Qing. In fact, the connection between the treaty port system and Qing’s native dispute management system for conflicts among different nationalities has been examined by Jean Escarra (1885–1955) in his La Chine et le droit international (Paris: A. Pedone, 1931) and Fairbank in Chinese Thought and Institutions (Chicago: The University of Chicago Press, 1957) as cursory supplements.129 In his The Early Treaty System in the Chinese World Order, Fairbank pointed out that “the treaties in 1840–1880s were not only a key to involve China in a world order; they can also be seen as a key to cut away a place for western world inside the world of Chinese.”130 Joseph F. Fletcher (1934–1984) deemed Qing’s treaties signed with Western powers as an extension of privileges awarded to Haohan Khan by Qing in 1836, which was “China’s first unequal treaty”.131 Mark C. Elliott, in his The Manchu Way: The Eight Banners and Ethnic Identity in Late Imperial China (Stanford: Stanford University Press, 2001) also has a discussion of judicial subprefect to help commentators see the system as parallel to extraterritoriality.132 Zhang Shiming, in his Research on Economic Development of Tibet during Qing Dynasty (Beijing: Yanshan Press, 1996), discussed administration systems for people from Nepal and Kashmir who lived in Lahsa. in Tibet in early Qing. The system is worth further examination since it was related to the famous first and second wars at Gurkha. Although this may not constitute experiential knowledge luggage on the treatment of consular jurisdiction by Qing officials, this phenomena should not be neglected in the pluralistic law culture of Qing. According to the prevailing opinion in academia, the consular jurisdiction system originated from the Islamic law tradition in Western Asia; however, the personality administration system in Tibet at that time was probably an impact of that tradition. In Foucault’s 1971 paper “Nietzsche-La généalogie-L’histoire”, the substitution of “source” for “origin” is a key trend of his genealogy. He believed that the issue of Ursprung was too complex, so he explained and furthered the significant opposition between Herkunft (source) and Ursprung (origin) in Nietzche genealogy to fight against the meta-historical deployment of various idealistic meanings and endless teleology to overcome the monistic theory of Ursprung and commence a distributional analysis of structured space and narrate the diverse origin of history. In the early part of this paper, Foucault pointed out that genealogy is obscure, exquisite and patient work on literature. It deals with parchment documents messy, fragmented and repeatedly transcribed, and without considering any single finality, it needs to mark the uniqueness of events and sensitive to the recurrence of events, not for tracking 128

Quoted from Huang (2003). Escarra (1931), p. 5. Fairbank (1957), p. 220–221. Edwards (1980), p. 220–269. 130 Fairbank (1968), p. 258. 131 Fletcher (1978), p. 377ff. 132 Guy (2002). 129

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the evolution curve of events but for rediscovery of different scenarios of different roles played by the events. Perhaps for modern consular jurisdiction research, we should also take this perspective, so multi-interpretation dimensions may emerge, and “history” will smile a more full, warm and elastic smile like Mona Lisa.

References Alabaster. (1906). Notes on Chinese law and practice. Journal of the North China Branch of the Royal Asiatic Society, 38. Beeching. (1975). The Chinese opium wars. Hutchinson. Bitchard. (1936). The crucial years of early Anglo-Chinese relations, 1750–1800. Pullman. Changsun, W., et al. (1983). Tang law interpretations, J. Liu (Ed.). Zhonghua Book Company. Chen, X. (1981). Collective works by Song Jiaoren. Zhonghua Book Company. Chen, Z. (2005). A complete collection of works by Huang Zunxian. Zhonghua Book Company. Chinese Society of History. (1957). Chinese modern historical materials series: Xinhai revolution. Shanghai People’s Publishing House. Christmas, H., & Fitzclarence, G. A. F. (1836). The literary gazette: A weekly journal of literature, science, and the fine arts. H. Colburn. Chu, D., & Liang, D. (1991). A brief collection of treaties between China and other countries: 1689–1949. Heilongjiang People’s Publishing House. Dai, Y. (1966). A brief history of Chinese law. San Min Book Co., Ltd. Dennett. (1959). Americans in Eastern Asia: A critical study of United States’ Policy in the far east in the nineteenth century (C. Yao, Trans). The Commercial Press Bookstore. Edwards. (1980). Ch’ing legal jurisdiction over foreigners. In Essays on China’s legal tradition, J. A. Cohen, et al. (ed.). Princeton University Press. Edwards. (2004). Jurisdiction of foreigners in Qing Dynasty (M. Li, Trans). In D. Gao, et al. (Ed.), American scholars on Chinese legal tradition. Tsinghua University. Escarra. (1931). La Chine et le droit international. A. Pedone. Fairbank. (1957). Synarchy under the Treaties. In J. K. Fairbank (Ed.), Chinese thought and institutions. University of Chicago Press. Fairbank. (1968). The early treaty system in the Chinese world order. In Fairbank (Ed.), The Chinese world order: Traditional China’s foreign relations. Harvard University Press. Fairbank. (1983). The United States and China. Harvard University Pres. First Historical Archives of China. (1992). Archives of opium war. Tianjin Classics Publish. First Historical Archives of China. (1999). Macao issue archives collective works in Ming and Qing Dynasty. People’s Publishing House. Fishel. (1952). The end of extraterritoriality in China. University of California Press. Fletcher. (1978). The heyday of the Ch’ing order in Mongolia, Sinkiang and Tibet. In J. K. Fairbank (Ed.), The Cambridge history of China, Late Ch’ing, 1800–1911, part 1 (Vol. 10). Cambridge University Press. Fu, Z. (1986). An economic history of feudal China. People’s Publishing House. Geng, X. (1930). Extraterritoriality and consular jurisdiction. Public Central University Journal Semimonthly, 1(30). Goodman. (1995). Native place, city, and nation: Regional networks and identities in Shanghai, 1853–1937. University of California Press. Gu, W. (1925). Status of foreigners in China. Foreign Ministry of National Republic of China. Guo, W. (1995). Questions about Jiangnan settlement treaty. In Renmin University Newspaper and Journal Photocopied Data, Modern Chinese History, No. 7. Guy. (2002). Who were the manchus? A review essay. The Journal of Asian Studies, 61(I), 151–64.

References

101

He, C. (1972). Collection of administration articles in Qing Dynasty. In Modern Chinese Historical Materials Series, Book 74, 731. Wenhai Press. Hu, D. (1977). A history of Shanghai journalism development. Shanghai Tongzhi Museum Journal, 2(3). In Modern Chinese historical materials series (Continued), Book 39. Wenhai Press. Huang, H. (2003). The dispatch of Qing ambassador to Japan and the execution of consular jurisdiction. Hebei Academic Journal, 6. Huang, Z. (2005). Japanese Guozhi, Z. Wu, Y. Xu & J. Wang (Ed.). Tianjin People’s Publishing House. Hunter. (1992). Bits of old China (Z. Shen, Trans.). Guangdong People’s Publishing House. Jiao, M. (1991). The first page of Sino-American relation: Before and after the signing of Wangxia treaty in 1844, addendum. Social Sciences Literature Press. Jin, W., & Zhong, D. (1958). Taipingtianguo historical materials in Wu Xu’s archives. ShenghuoDushu-Xinzhi Joint Publishing Company. Kang, D. (2000). Nanjing treaty and the acquisition of jurisdiction by Britain in China. Sichuan Normal College Journal, 5 (social sciences edition). Keeton. (1928). The development of extraterritoriality in China. Kohlhammer. Koo, V. K. W. (1912). The status of aliens in China. Columbia University. Kotenev. (1927). Shanghai, its mixed court and council: Being the history of the Shanghai municipal council and its relations with the Chinese, the practice of the international mixed court, and the inauguration and constitution of the Shanghai provisional court. North China Daily News and Herald Ltd. Kuai, S., et al. (1980). A manuscript of history of Shanghai international settlement. Shanghai People’s Publishing House. Li, B. (1993). A brief profile of Shanghai modern trade and economic development: 1854–1898, a collection of trade reports written by the British consulate at Shanghai. Shanghai Academy of Social Sciences Press. Li, J., & Chen, J. (1997). Records of national humiliation: Unequal treaties between China and Foreign powers. Sichuan People’s Publishing House. Liang, J. (1930). On consular jurisdiction in China. Shanghai The Commercial Press Bookstore. Liang, Q. (2000). Collective works on law by Liang Qichao, Z. Fan (Ed.). China University of Political Science and Law Press. Liang, W., et al. (1993). A selection of and introduction to modern unequal treaties for China. China Radio & Television Publishing House. Liu, F. (1999). Portuguese Dongpota archive museum’s Chinese archives of Macao in Qing Dynasty. Macao Foundation. Liu, J. (2002). The continued encyclopedia of the historical records of the Ch’ing Dynasty, incorporated in the Editing Board of A Continued Compilation of Sikuquanshu, 820, the historical part, political books. Shanghai Classics Publish. Luo, J. (1968). Historical materials series of the national republic, A15. 1. China National Party Central Committee’s Party Historical Materials Editing Board. Mi, R. (1980). Imperialism and Chinese railways: 1847–1949. Shanghai People’s Publishing House. Mi, R. (1984). China modern railway historical materials. Zhonghua Book Company. Morning News Editing Office and Tsinghua Students’ Union (1986). A sad history of May 30. In Modern Chinese historical materials series, compilation 3, Book 16, 160. Wenhai Press. Morse. (1908). The trade and administration of the Chinese empire. Longmans, Green & Co. Morse. (1910). The international relations of the Chinese empire. Longmans, Green & Co. Morse. (1926). Chronicles of the East India company trading to China, 1635–1834 (Vol. 2). Clarendon Press. Morse. (1991). Chronicles of East India company’s trade with China (1635–1834) (The China Customs Historical Studies Center, Trans.). Sun Yat-sen University Press. Morse. (2000). The international relations of the Chinese empire (Vol. 1), (H. Zhang, et al., Trans.). Shanghai Bookstore Press.

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Pär, C. (2003). Excavating extraterritoriality: The‘judicial sub-prefect’ as a Prototype for the Mixed Court in Shanghai. Late Imperial China, 24, 2. Qing, R. (1956). History of the United States’Invasion of China. Shenghuo-Dushu-Xinzhi Joint Publishing Company. Sacred Instructions of 10 Qing Emperors. (1965). Wenhai Press. Sasaki, T. (1983). Research on the opium war (Part for Materials). In Modern Chinese historical materials series (continued), 941. Wenhai Press. Shanghai Wenshi Museum, The Historical Materials Editing Board of Shanghai Government’s Counselors’Office. (1983). Shanghai Chorographic Materials, 2. Shanghai Academy of Social Sciences Press. The Commercial Press Bookstore. (1973). Border treaties between China and Russia. The Commercial Press Bookstore. Veritable Records of Qianlong. (1960–1970). Huawen Bookbureau Ltd. Co. Wang, T. (1957). A collection of old Sino-Foreign treaties (Vol. 1). Shenghuo-Dushu-Xinzhi Joint Publishing Company. Wang, T. (1959). A collection of old Sino-Foreign treaties (Vol. 2). Shenghuo-Dushu-Xinzhi Joint Publishing Company. Wang, X. (1988). Japanese education. Shenghuo-Dushu-Xinzhi Joint Publishing Company. Weng, Y. (1999). Pan Siju’s request for establishing assistant of magistrate at macao and its historical value. Archive Studies Newsletters, 3. Willoughby. (1957). Foreigners’ Privileges and interests in China (S. Wang, Trans.). ShenghuoDushu-Xinzhi Joint Publishing Company. Wu, Z. (1978). Society of Shanghai settlement in Late Qing. Literature, History and Philosophy Press. Xiao, S. (1971). Yongxianlu (Vol. 1). In Modern Chinese historical materials series, Book 71, 704. Wenhai Press. Xie, F. (1995). Exotic civilizations in Tang Dynasty. China Social Sciences Press. Xu, G., & Qiu, J. (1992). Shanghai international settlement system. Shanghai Bookstore Press. Xue, F. (1987). Anthology of Xue Fucheng, F. Ding & X. Wang (Ed.). Shanghai People’s Publishing House. Yang, S., & Yang, Z. (1989). A concise dictionary of who’s who for foreigners. Tianjin Education Press. Yang, Y. (1918). Recent international issues and China. Taidong Book Company. Yao, X. (1962). Historical materials of modern foreign trade of China: 1840–1895, Book 1. In Historical materials of modern economy of China series, No. 5. Zhonghua Book Company. Yin, G., & Zhang, R. (1988). Brief history of macao, C. Zhao (Ed.). Guangdong Higher Education Press. Yin, G., & Zhang, R. (1992). Brief history of macao noted and edited, C. Zhao (Ed.). Cultural Affairs Bureau of the Macao. Zhang, N., & Wang, R. (1960). A collection of contemporary comments for 10 years before xinhai revolution, Book 2 of Vol. 1. Shenghuo-Dushu-Xinzhi Joint Publishing Company. Zhang, X. (1977). Materials of communications between China and the West. Zhonghua Book Company. Zhang, Y. (1980). Compilation of modern Chinese history (Vol. 2). In Historical materials and history. Linking Publishing Co. Zhang, Y. (1987). Wu Tingfang and political reforms in Late Qing. Linking Publishing Co. Zheng, G. (1982). Collective works of Zheng Guanying, D. Xia (Ed.). Shanghai People’s Publishing House. Zheng, X. (1993). Diary of Zheng Xiaoxu, Z. Lao (Ed.). Zhonghua Book Company. Zhou, Y. (1995). Modern treaty system of China. Hunan Normal University Press. Zhu, Y. (1985). Essays in Pingzhou, W. Li (Ed.). Zhonghua Book Company.

Chapter 4

Institutional Constraints and Innovations: The Adjudicative Bureaus (Fashenju) in Late Qing China

Zheng Qin’s paper, “A Survey of State and County Court Proceedings in Qing Dynasty”, was published in the 8th Volume of Qing History Forum edited by the Institute of History, CASS. In this paper, Zheng Qin treats Fashenju as a component of local court procedures.1 Almost parallel to Zheng Qin’s research, Ocko K. Jonathan published a paper titled “I’ll take all the way to Beijing: Capital Appeals in the Qing” in Journal of Asian Studies 47:2 (1988, May). In this paper, Ocko K. Jonathan reveals the nature of Fashenju, its supervisor, and its proper case types. Its functions in judicial procedures are affirmed, and the time limit for its court proceedings is defined in this paper. Dr. Zhao Xiaohua was thus inspired by Ocko K. Jonathan’s paper to provide succinct but rich information about Fashenju in her book titled A Social Survey of Court System in Late Qing Dynasty.2 In 2005, Li Guilian and Hu Zhen published their paper, “A Research on Fashenju in Qing Dynasty”.3 Prof. Li Gui Lian has a deep understanding of the history of modern Chinese law, and the pioneering work in this field has certainly increased our entrance costs and innovation threshold. Nevertheless, this research still has room for deeper digging. We hope that a thorough grasp of data and an intimate description can open new horizons, and the newest evidence can start new perspectives. For example, what is the initial reason for the emergence of Fashenju? What is the original form of it? What are its functions? How is its performance? What attitudes did the emperor, governors-general and governors take toward such organizations? What was the overall trend of this organization in the country during the reign by Jiaqing? When did Fashenju become a widely existed organization? What were the roles it played in the provincial administrative and legal system? How did the Fashenju evolve in the legal system reform? Such questions must be accommodated in the research of this organization. Historicizing is not just proclaiming the rationality and historicity of modernized logic in China; the confusion of history with historicity warned by 1

Zheng (2000), p. 123. Zhao (2001), p. 210. 3 Li and Hu (2006). 2

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A. Giddens leads to dangers of a firm believing that history can only be written as a temporal distortion of social variations. Prasenjit Duara embraces a bifurcated history in the place of a linear history mainly due to the necessity to correct the overwhelming historicity that leaves time to supersede space and an evolutionist history to dominate people’s experience of time. Thus, the historical process can be deemed a complex transaction between the past and the present. As far as this paper concerns, I do not intend to integrate the evolution of Fashenju into a modern, macro and linear historical narration; instead, I want to focus on the radiating folds in historical development of local problems in a micro perspective rather than a macro recognition or grasp of the legal history research in the Qing Dynasty.

4.1 The Origin of Fashenju 4.1.1 Interaction Between People and System: Emperor Jiaqing’s Lift of the Ban on Capital Appeals and its Consequences A. Giddens argued that resources indeed consist of two categories: authoritative resources and allocative resources. Authoritative resources also constitute a “pivot” for social development, with an importance no less than allocative resources. For the Qing Dynasty after the 1850s, the growth of the population witnessed a shortage of both authoritative resources and allocative resources, which gave rise to everincreasing legal disputes, which in turn proliferated capital appeals. During the first lunar month in the 4th year of Jiaqing’s reign (1799), Jiaqing took the opportunity of the death of Qianlong and He Shen’s lack of shelter to put things straight in the imperial court. On the 28th day of the eighth lunar month, he relieved the ban on capital appeals in the name of broadening views and information.4 In the opening and closing of the channel, information supervision became the key to integrating the enormous empire. Therefore, serious cases were tried and reported by the appeal recipient organizations, the appeals returned to provincial government were reported monthly, and all capital appeals were within the view of Jiaqing. Doubtlessly, capital appeals provided an opportunity for the people who suffered injustice from the wrongs and delays of their cases by provincial courts to get justice, but meanwhile this also caused a continuous queue of people on their way to capital appeals, and piles and piles of appeals increased the pressure on the central justice administration resources in Qing so much that it was beyond the capacity. As time went on, there was a great increase in capital appeals. In the 11th year of Jiaqing’s reign, in addition to the appeals reported monthly to the throne, there were 10–30 appeals that were transferred to local governments.5 In the fourth lunar month of the 4 5

Emperor’s Instructions during the Reigns of Jiaqing and Daoguang (2000), Vol. 4, pp. 310, 311. Veritable Records of Jiaqing (1985), (III), Vol. 172, p. 244.

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12th year, the central censorial organization and the central infantry office almost had appeals to be treated every day.6 The lifting of the ban over capital appeals faced the problem of increasing investment for the system reform and the cost-sharing methods. In other words, who will pay? However, during the Jiaqing reign, the national fiscal condition was quite pessimistic due to the military actions in Sichuan and Hubei, the flood of the Yellow River, and the widespread plagues. All these needed investment, and the reserves gradually expired, so the situation was far from optimistic. As Jiaqing said, for the capital appeals of provincial people, serious appeals would be tried by the emperor’s assignments; other trivial appeals would return to provincial courts as a common custom for all provinces.7 In the emperor’s view, of course, it was best if governorsgeneral and governors would try the transferred capital appeals in person, but if it was also understandable for them to assign other officials to do it for them, the costs can be further transplanted. However, governors-general and governors may use the power to assign other people to try for them, and the appeals are transferred to subordinates, while governors-general and governors can get rid of the tedious trials, and with a good reason, because assigned trials are a legal procedure in the judicial system in Qing. Jiaqing was so angry with the laziness of the governors-general and governors and the assignment of their own duties to others that he repeatedly issued imperial orders to severely punish governors-general and governors’ lack of responsibility, but all in vain. For the appeals at higher courts in the province, governors-general and governors sometimes do not try these in person, instead they ask the provincial administration commissioner (buzhengshi), the surveillance commissioner (anchashi) or the circuit intendants (daotai) to try in person, those officials also fail to try in person, they ask local district officials to try in person. On the other hand, the retrial of this kind of case requires a complete set of witnesses and evidence, and independent investigations are needed to check whether the statements are correct; therefore, they incur a great financial burden for participants and local governments. There was a nonofficial opinion in the Qing that this caused the result that “all officials are occupied with cases, and are bothered everyday by shysters, and they cannot make comments calmly, the administration of officials is not disciplined, and the custom is not supervised, this is so lamentable!”8 so they argued that acceptance of appeals at higher courts should be prudent and hoped that the appeals could be tried by the prefectural magistrate or county authorities, with firm belief and trust to demand a strong sense of responsibility. However, if all appeals are assigned to others, then disasters arise, and anger of the people will be fostered. On the other hand, “when suspects are delivered to the government, they must be sent to suburban areas. The officials in suburban areas and outer counties are just friends who have no connections? If there are changes in statements, tortures are used to force compliance with the original statements. The truth of the fact and the reasons are not sought, but 6

Veritable Records of Jiaqing (1985), (III), Vol. 178, p. 341. Veritable Records of Jiaqing (1985), (V), Vol. 371, p. 902. 8 Sheng (1972), Vol. 23, official administration (vol. 6), on big officials, in: Modern Chinese Historical Materials Series, Book 85, 831–849,p. 2466. 7

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friendship is centered. If the original statements are sent to the district government via suburban areas, and the plaintiff denied his former statements at the district court, he was sent back to a nearby suburban area for more severe tortures in the interrogations.”9 Then, the cases may end in different forms: some settle their appeals without justice deserved, some turn into capital appeals, and some cases are delayed. Since governors-general and governors would still assign the original district or county government to try the appeals, the local officials usually tried hard to stick to the former judgment to avoid punishments; therefore former judgments would not be overthrown. To accomplish this, severe tortures forced false statements. Under such circumstances, the wrongs cannot be corrected, and some seek capital appeals to obtain justice. To get justice, the wronged people usually considered capital appeals as their last resort, Jiaqing’s lifting of the ban over capital appeals certainly promoted a hope in the wronged, but after a long and tiring journey to the capital, they presented their petitions to relevant organizations, for one of the two results: either the Board of Punishment’s transfer their appeals to governors-general and governors, or the emperor’s special instruction for governors-general and governors to try the cases. Either solution would return the cases back to the provincial judicial system. In the 17th year of Jiaqing’s reign, Tongxing reported on the accumulation of capital appeals in Shandong, and the emperor had to make another compromise. He not only acquiesced the capital appeals to be recorded and tried by the capital prefecture and first county (ting) but also allowed “Tongxing to select people waiting for positions to try them first, and then supervise trials together with the surveillance commissioner.”10 In the fifth lunar month of the 25th year of Jiaqing’s reign, Qian Zen, the governor of Shandong made a proposal in his memorial to the throne that all capital appeals should be repealed without report or consultations, but Jiaqing did not permit.11 For Jiaqing, capital appeals are a channel for information supervision, but for governors-general and governors, capital appeals became a hot potato for the officials’ future; if not cautiously treated, punishments might fall on them. From the bottom up, the shortage of resources in the Qing and conflicts of interest between the trustor and trustee emerged. Due to limited resources, the central government was certainly not able to send many envoys to try capital appeals, and governors-general and governors’ asking of subordinates to try capital appeals was also a solution to cope with the shortage of local resources. In Qian Zen’s view, the overall closure of the channel of capital appeals was a solution to the dilemma, but Jiaqing did not think that way. Regardless of what compromise he made, Jiaqing still feels no regrets for the opening of capital appeals. The compromise to let the surveillance commissioner and the waiting officials supervised by him try capital appeals would not solve the problem well; instead, officials had more reasons to delay the trials at will, and the accumulated cases became a problem.

9

Booklet to Explain the Accumulation of Cases for Hu Mozhuang, see Bao (1968), Vol. 31, part ii, p. 2175. 10 Veritable Records of Jiaqing (1985), (IV), Vol. 258, pp. 492–493. 11 Veritable Records of Jiaqing (1985), (V), Vol. 371, p. 9207.

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4.1.2 The Accumulation of Cases and Solutions In the 12th year of Jiaqing’s reign, the accumulation of cases found its expression in a memorial written by Jin Guangdi on the 22nd day of the first lunar month. Jin Guangdi, the Jiangxi governor, reported in the memorial12 that 1,610 cases were accumulated in Jiangxi Province’s direct subordinates under the governor. This astonished Jiaqing, on the one hand he ordered investigations, and ordered Qin Chengen and Xian Fu to be evaluated and punished by the Board of Punishment; on the other hand, he demanded governors-general and governors to review and count the cases accumulated and try them quickly. Statistics showed that the accumulation of cases existed to different degrees in every province. Enormous accumulated cases emerged in the normal operation of the administrative and judicial system, and the solution had to be made by the provincial judicial system, but ordinary judicial measures could never solve them. Officials waiting for their positions should be a good resource to help try the accumulated cases. In this way, the accumulated cases in provinces could be removed, and the capital appeals sent back by the emperor could also be solved. This sounds an optimal solution.

4.1.2.1

Jiangxi Provincial Capital’s General Bureau

In the 11th year of Jiaqing’s reign, Jin Guangdi was appointed as the provincial governor of Jiangxi. Based on his long-term service at the Board of Punishment, he rectified provincial governance, and a key measure was to expose the serious accumulation of cases in that province in his memorial to the throne. Around that time, Jin Guangdi made reports about the increase in land cultivation in some counties and the students’ denials to participate in official exams due to conflicts between local native residents and hut dwellers in Wanzai County. This was not accidental since it showed that the accumulation of cases was relevant to the shortage of allocative resources. As Jin Guangdi said, if officials should be sued to neglect duties, then half of officials in Jiangxi should be punished, which is certainly impractical. However, if the accumulation of cases endured, a good discipline was hard to maintain. Therefore, after consulting with Xian Fu, the provincial administration commissioner, and Liuyun, the surveillance commissioner, on the 22nd day of the first lunar month in the 12th year of Jiaqing’s reign, Jin Guangdi proposed the establishment of a general bureau at the provincial capital for the solution of delayed appeals in his memorial to the throne. Jiaqing realized the serious situation and permitted his proposal. On the 12th day of the second lunar month, the emperor issued an instruction to guide the work and required “all accumulated cases in Jiangxi, as suggested by Jin Guangdi, should be investigated quickly and tried by the general bureau established at the provincial capital.”13 12

Jin Guangdi, Governor of Jiangxi, Memo for Settling Unclosed Lawsuits, First Historical Archives of China, Memos Duplicates, Archive No.: 04-01-01-0512-028. 13 Emperor’s Instructions during the Reigns of Jiaqing and Daoguang (2000), Book 12, pp. 86–87.

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Provincial Capital Fashenzhuanju

Information about the provincial Fashenju mainly comes from Qian Zen’s memorial to Jiaqing on the 13th day of the tenth lunar month in the 25th year of Jiaqing’s reign.14 We know that the provincial capital’s Fashenju was established in the 5th year of Jiaqing’s reign and was dismissed on the 15th day of the tenth lunar month. In the 25th year, the cases it dealt with were the returned capital appeals. Except that, we know nothing about it. Both Qian Zen’s memorials and the accumulation of capital appeals in Shandong, which we will mention later, show that this measure was not as effective and that the establishment of this organization was not a common practice among many governors, general and governors.

4.1.2.3

Shandong Governor Yamen Zhuanju

The enormous capital appeals of Shandong were removed and accumulated again, which annoyed the emperor. In the third lunar month of the 25th year of Jiaqing’s reign, the emperor appointed Qian Zen to be the Governor of Shandong to give a strict discipline. On June 22, Qian Zen presented his suggestion “to try capital appeals strictly, duties will be strictly carried out and special bureau will be established”. He tried his best to persuade the emperor to permit the establishment of a bureau for trying the capital appeals and the cases accumulated in the province.15 Qian Zen earnestly ensured the emperor that the organization was temporary and practical. Before this time, Qian Zen had been the surveillance commissioner and the provincial administration commissioner at Zhili and the governor of Jiangxi. When he worked in Zhili, he was praised mainly for his settlement of accumulated cases. Jin Guangdi, the governor of Jiangxi, established an example of Qin Zen when he started a bureau for settling cases. The emperor now assigned Qian Zen to Shandong, in expectation that he could change the situation in Shandong with his feat in settling cases, so political support was awarded, and his advice was accepted. On the 27th day of the sixth lunar month of the year, the emperor issued an instruction for the establishment of this bureau: “There are many appeals in Shandong, the investigation and trials in person also need assistants, the establishment of a special bureau was approved as a temporary organization, the capital appeals are to be interrogated by the governor in person at the provincial capital, and under his supervision, assistants will carry out just trials. Tong Huai, the surveillance commissioner, is responsible for the bureau’s affairs. The assigned bureau officials should be selected from candidates for local

14

here bureau (ju) refers to the governor yamen special bureau established by Qian Zen, governor of Shandong, in the 25th year of Jiaqing. 15 Qian Zen, Governor of Shandong, “Memos for Strict Treatment of Capital Appeals and Establishment of Special Bureau”, First Historical Archives of China, Memos Duplicates, Archive No.:04-01-01-0604-014.

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magistrates, other people currently in positions cannot be employed to avoid their neglect of their own duties.”16

4.1.3 Discussion with the “Common Phenomena” Approach Regardless of the provincial capital bureau of Jiangxi, the governor’s special bureau of Shandong, or Qingliju of Zhili, they are temporary organizations for the accumulated cases. Emperors and governors regarded them as a contingency or an emergency measure for urgent affairs. First, the period for the solution of the problems was short. It was one year for Jiangxi’s bureau. Although the period of Shandong’s bureau was not set, from Qian Zen’s memorials, we know it existed for three months and nine days. Second, emperors and governors regarded this as temporary. Jin Guangdi and Qian Zen, in their accounts of the problem and their suggested solutions in memorials, both emphasized the temporariness of the organization. Jiaqing’s opening of capital appeals was to “screw up” the discipline of the officials, on the issue that governors-general and governors should try cases in person the emperor had no reserve for compromise, so from the beginning he made governors-general and governors clear: the establishment of bureau for settlement of accumulated cases was just a contingency, the bureau was temporary, and other provinces should not follow suit. On the eighth lunar month 25 of the 12th year of Jiaqing’s reign, Wang Zhiyi, the Governors-general of Huguang, in his setting of deadline for the settlement of cases accumulated, he quoted the emperor’s instruction and said that the establishment of general bureau was unnecessary since it might cause abuses.17 From the materials gathered, for the Fashenju of Shandong, the bureau of Jiangxi, the later governor office’s bureau of Shandong, and the Qingliju of Zhili, except for the bureau of Jiangxi, we have no direct evidence; the other three organizations were eventually dismissed. Although we cannot decide on the end of the bureau of Jiangxi due to a lack of materials, the instructions of the emperors and the examples of Shandong and Zhili show that it was probably dismissed. If we take this problem for granted and consider the common features of the above organizations, or a more abstract understanding of their nature, we can generalize them as follows: the provincial trial organizations, in order to solve temporary difficulties (mainly cases accumulated), established temporary agencies staffed by people waiting for positions outside the formal judicial trial organizations. In the 12th year of Jiaqing’s reign, Jin Guangdi proposed the establishment of a bureau for settling cases accumulated, Jiaqing forbid governors-general and governors to follow suit, and encouraged governors-general and governors “should work

16

Veritable Records of Jiaqing (1985), (V), Vol. 372, p. 922. Wang Zhiyi, Governor of Huguang, “Memos for Setting Deadlines to Settle Accumulated Lawsuits”, First Historical Archives of China, Memos Duplicates, Archive No.: 04-01-01-0512-012.

17

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hard in person”.18 However, the accumulation of cases in provinces was so serious that the governor-general and governors, the surveillance commissioners and the provincial administration commissioners could not cope with it; therefore, some governorsgeneral and governors settled the cases accumulated by employing people waiting for positions to assist them in trials. On the 29th day of the seventh lunar month in the 15th year of Jiaqing’s reign, Zhang Xu, the Governor of Jiangsu, in his proposal suggested ways to deal with accumulated cases and articles of the trials.19 From this memorial, we know that Zhang Xu followed the emperor’s instructions and did not establish special organizations such as the bureau of Jiangxi. He achieved good results by employing assistants from candidates for local magistrates in the trials rather than using other formal officials. Jiaqing obviously acquiesced to the governor’s measure. In the sixth lunar month of the 17th year of Jiaqing’s reign, the governor of Shandong requested the trial of cases at the provincial capital by Zhen Wenming, the prefectural magistrate of Yanzhou, and Hu Fuzu of Wuding, but the emperor declined the request. To ensure the settlement of cases in Shandong, Jiaqing provided two options: one of them was to assign the trials to selected people waiting for positions, and the trials were supervised and participated by the governor and the surveillance commissioner.20 This shows that the emperor confirmed the lawfulness of this method, and governors-general and governors could justly employ people waiting for positions to try the cases of the province and even capital appeals. The temporary organizations of Shandong, Jiangxi, etc. were the application of the method “to employ people waiting for positions in trials”, but they emerged as organizations. Bao Shichen worked in Shandong and Jiangxi and had contacts with people such as Jin Guangdi. He pointed out in Booklet to Explain the Accumulation of Cases for Hu Mozhuang: “if prefectural magistrate or the surveillance commissioner review the changes in the verdicts and try the cases with personal interrogations, capable officials are selected for assistance. If the surveillance commissioner is in the province, he has candidates for local magistrates to rely on, among whom there are people familiar with such affairs. Prefectural magistrate also has his apparitors and subordinate officials to call to the office and help the interrogations.”21 In fact, this proposal was historical material writing for somebody else, but this argument also reflected communication among people, such as Jin Guangdi. Since the memorial writers might stand while thinking and report while kneeling, the proposal was still within the permission of the instructions of Jiaqing. Long after this, the central government of Qing still restricted the range of compromise to the people waiting for positions, and this should not influence the normal operation of local government. In the 22nd year of Daoguang’s reign (1842), Wang Fulun, the cabinet waiting scholar, reported 18

Wang Zhiyi, Governor of Huguang, “Memos for Setting Deadlines to Settle Accumulated Lawsuits”, First Historical Archives of China, Memos Duplicates, Archive No.: 04-01-01-0512-012. 19 Zhang Xu, Governor of Jiangsu, “Memos for Settling Accumulated Lawsuits and Setting Articles”, First Historical Archives of China, Memos Duplicates, Archive No.: 04-01-01-0512-007. 20 Veritable Records of Jiaqing (1985), (IV), Vol. 258, pp. 492–493. 21 Booklet to Explain the Accumulation of Cases for Hu Mozhuang, see Bao (1968), Vol. 31(2), pp. 2177–2178.

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that, Chen Ying, the district official of Ningyuanzhou, since his initial work had stayed in his office 3 or 4 months in a year, in other cases he stayed in the provincial capital in the name of dealing with trials assigned, to focus on the drafting of reports. The emperor criticized that district and county officials should love their folks intimately, and how could they leave their districts? Ninyuan is a coastal place near borders and is of vital importance. If Chen Ying stays in the provincial capital, he is actually absent in his office. After Geng Fu is in office, he should investigate why Chen Ying stayed long in the provincial capital and make a detailed report. Soon the report came: Chen Ying came to the provincial capital many times, to do the trials of important cases upon the official orders, and he always returned soon after the conduct, and never did any drafting work, he was still a good official.22 Historical dialectics emphasize that the development of things cannot be smooth but full of twists and turns instead. A. Giddens also emphasizes that in regular activities, there is “reversible time”. He argues that in building various topographical models, the “clock time” cannot be doubtlessly seen as an inherent dimension; instead, it is a phenomenon restricted by the social conditions as well, and it influences the properties of the time-space paths depicted by agents in modern society. The caprice of daily time-space is the key to structuring developed in gradual sedimentation. In the burgeoning period of Fashenju, the establishment and dismissal showed historical folds of extrasystem activities in the controlled time-space crevices of colonization. Although the organizations were dismissed, their emergence and settlement of accumulated cases showed the practicality of this method. Therefore, in the later development of Fashenju, the method that was once put into practice and proved by practice was restored in practice on a large scale, providing a meaningful example for the maturity and perfection of Fashenju. The practice of the above organizations provided a more detailed model than a plain methodological approach for the appearance of many Fashenju’s and their maturity. Here, we must clarify whether in Jiaqing’s reign, such organizations were common in most provinces or exceptions in some provinces. Some researchers thought them as common, and “at least during reign of Jiaqing and Daoguang in late Qing, many provinces established Fashenju”.23 The common existence of Fashenju in the reign of Daoguang is beyond question, but whether it was common during Jiaqing’s reign, we have our reservations or doubts. First, we may look at the evidence for the above conclusion: “during the reign of Jiaqing and Daoguang, Bao Shichen mentioned about the situation of Fashenju: ‘I have worked in many provinces, and witnessed many trials in yanju (Judicial Bureau) held by capable officials. I saw the interrogators spoke loudly. They first demanded confessions and then forced confessions, with lots of painful tortures which left the people crying loudly in the court. How can the truth and justice not be inverted in such cases?’ … Bao Shichen was familiar with laws and rules, he had been a legal advisor to officials and an official himself in Jiangxi, Jiangsu and other provinces. In contrast to Wang Huizu, Bao Shichen worked more often on 22

Veritable Records of Daoguang (1960–1970), Vol. 373, the fifth lunar month of the 25th year of Daoguang’s reign, p. 716. 23 Li and Hu (2006).

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the Board of Punishment and the Surveillance Commission, which were middle- and high-level judicial organizations. From his accounts, the establishment of Fashenju was not a local case, trials conducted with the help of Fashenju was common in many provinces.”24 To decide that Fashenju was a common during Jiaqing’s reign with the account of Bao Shichen and his career in the Jiaqing and Daoguang period seems a little overstatement. If the main evidence of this argument, i.e., the accounts of Bao Shichen, is taken into consideration in the full text of Letter on Judicial Affairs to Second Son,25 the conclusion thus reached should be reconsidered. After reading the entire letter, we know that when Bao Shichen’s second son entered the Fashenju of Jiangsu, he read documents fast with a good memory, but his temper was hot and would not last long, so his father wrote the letter. It aimed to teach him the experience in trials to warn him of injustice caused by a hot temper. In the letter, Bao Shichen mainly related his methods and performance in the trials of the Liao family cases of Nanchang in Jiangxi Province and the accumulated cases of Nanchang city. He also used his experience in youth when seeing the officials torturing for confessions at Governor Zhu Gui’s office as a warning that anger was not good in trials. According to Mr. Bao Shenbo (Shichen) Chronicles, Bao Shichen was only 23 years old when he met Zhu Gui in the 2nd year of Jiaqing’s reign. He did not travel much outside Anhui Province, and the meeting with Zhu Gui was his most distant trip.26 Therefore, combining the internal and external methods of textual criticism, the words that “I have been to many provinces, and saw capable yanju officials doing trials at court” are relevant to the meeting with Zhu Gui in the latter half of the letter, but they could not be considered as one thing. In other words, these are two separate sentences for different situations; otherwise, how can the latter sentence be compatible with the “capable officials” in the former sentence in meaning? What Bao Shichen saw in Zhu Gui’s office was a bad example that he used to warn his son, instead of actual experience that he saw in many provincial Fashenju’s. Thus, the information about Fashenju is just one sentence: “I have been to many provinces and saw capable Fashenju officials doing trials at court”. However, the information from this sentence is so ambiguous that we cannot reach a clear conclusion. The book was published in the 23rd year of Daoguang’s reign. Bao Shichen did trials in Jiangxi in the 15th year of Daoguang’s reign, while he made remarks that “because there are more and more people to support for living, and the way of making a living is narrower day by day, the common jobs are not reliable, while the jobs of legal advisor and fiscal advisor received good paychecks, so I did this as an occupation”27 in the 16th year of Jiaqing. From this, although we cannot reject that the above letter shows the situation in Jiaqing’s reign, we may also assume that when Bao Shichen wrote the letter in the 23rd year of Daoguang’s reign, the letter described the situation in Daoguang’s reign, since it was during Daoguang’s 24

Li and Hu (2006). Bao Shichen, Letters to Second Son on Court Affairs, see Bao (1968), pp. 2237–2241. 26 Hu (1971), pp. 13–20. 27 Hu (1971), p. 54. 25

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reign that Fashenju became common. In addition, there is another possibility: Bao Shichen saw similar organizations in some provinces during Jiaqing’s reign in his travels; he saw more during Daoguang’s reign, when he wrote the letter he used the more popular word “yanju” to show his knowledge about the situation in Jiaqing’s reign and Daoguang’s reign. In Jiaqing’s reign,28 Bao Shichen wrote for Hu Chenggong the Booklet to Explain the Accumulation of Cases for Hu Mozhuang. He performed a careful analysis of the accumulation of cases and suggested that the surveillance commissioner and prefectural offices might employ candidates for local magistrates and apparitors of superior officials to assist in the trials, but he did not mention the establishment of a special bureau for that purpose. Therefore, we can infer that by then, Bao Shichen had never met such organizations, and the evidence of the sentence “I have been to many provinces, and saw capable yanju officials doing trials at court” for the common existence of Xianju during Jiaqing’s reign may refer to his experience during Daoguang’s reign. Based only on Bao Shichen’s experience, we cannot say that during Jiaqing’s reign, there were no such organizations. From the materials of the above organizations we mentioned earlier, the three organizations that emerged after the middle term of Jiaqing’s reign were all approved by the emperor, and there are no other instructions from the emperor elsewhere for the establishment of such organizations in other provinces. In other words, other provinces did not request the establishment of such organizations to the emperor. However, this does not mean that they did not establish them in private. In the 5th year of Jiaqing’s reign, the Fashenju of Shandong was an organization established secretly. However, the author believes that private establishments are not very probable, and such establishments cannot be a common practice in most provinces. In nature, this organization is still a temporary organization staffed by people waiting for positions or the private assistants of chief provincial officials outside the formal trial and judicial organization. To help officials deal with the accumulated cases in the province, the evaluation of the officials, position changes (promotion, resignation, dismissal, banishing to minor posts and redeployment), the number of cases for the office may have a great influence on the emergence of such organizations. Therefore, I tend to have the understanding below: such organizations were temporary, although many provinces might establish by themselves, but they were not common in general.

28

Four Books on Governing Suzhou published by Taipei Wenhai Press does not point out the time of the initial publication, but Pan Jinhan edited Four Arts for the People’s Welfare says the letter was written in a year in Jiaqing’s reign. Bao Shichen (2001), contents, p. 6.

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4.2 Interweaving and Broken Clues: Fashenju Establishment at Large George W. Skinner29 believes that there was no increase in public officials in late Qing; therefore, direct state management in China became increasingly less common, while private organizations such as guilds or clans shared an increasing number of contracts. In “La réglementation administrative et le code pénal mis en tableaux”, Pierre-Étienne Will agrees to Skinner on the one hand that the state machine had more or less a constant number of position “occupants”, but on the other hand, he emphasized that the usable administrative force on the provincial government level was increased dramatically in the form of candidate officials (practitioners), especially in the nineteenth century, more knowledgeable professionals took positions as private secretaries for magistrates, and paid by these magistrates, that is to say, they were the ultimate users. It was them who kept the energy of the state and actually increased its ambitions for social regulation, especially in the law field.30 The Cambridge History of China in the Late Qing sees the population pressure on land as the root of crisis during the first decades in the nineteenth century, and the social problem of overpopulation educed the “overproduction of intellectuals” problem, which was destructive to politics. If population growth led to a ruinous impact on the farmers’ lives, so was its impact on the political system. In this period’s political life, officials at all levels had ferocious competition to obtain promotions and positions. Thus, the normal system of promotion and mobility lagged behind the population increase. On the other hand, the production surplus of intellectuals did not keep up with the growth of the population in terms of both the number of official public positions and the number of candidates from imperial exams. Population surplus was not only the cause of “involution” phenomena called by Philip C. C. Huang for the small-scale peasant economy but also the cause of the political involution in the late Qing. The population explosion not only exacerbated the competition in imperial exams, the costs of the exam increased and the success rate decreased, more people invested much time in the very hard and bitter official career, “a village farmer in the morning, and an imperial courtier in the evening” was a dream hard to realize, so that the rebelling ambition against the imperial court like that of Hong Xiuquan emerged, the students failed in exams became uprising rebels. We will not look into this kind of “break-off” here. However, protectionism in the official circle was enhanced due to the tension between the overproduction of intellectuals and the shortage of resources. Personal relations became a key resource of “life chance” in an official career, officials made use of connections to obtain favors with key officials, corruption increased secretly in colluding with each other, and the power network of Heshen was obvious evidence. The corruption of winners in the official circle and the indignation of losers in imperial exams constituted an inseparable knot.

29 30

Skinner (1977), pp. 19–23. Will (2003), págs. 93–158.

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However, the imperial exam production surplus also implied vitality for the establishment of new organizations such as Fashenju. After the middle period of Qing, there were many people waiting for official county positions in all provinces. Successful candidates in the highest imperial exams belonged to the “tiger class”; they would get positions within 100 days after arriving at the province, while other candidates must patiently wait for positions. Large numbers of people waiting for official positions, becoming deputy officials, being assigned jobs, or participating temporarily in local political, economic and social affairs is a unique phenomenon in Qing but nowhere in other dynasties. They were called then as “drum listeners”. “Drum listening” originally meant the officials who attended the business at yamen. In the morning, officials heard the drum and went to work on time. In the afternoon, the drum was heard again, and officials went home. The process by which the official candidates waited for the signs issued by local magistrates at outer gates to take positions and jobs was later called “drum hearing 听鼓”. “Drum listeners 听鼓者” was an epithet for the local official candidates qualified for official positions but having no vacancies to attend. The people waiting for official positions (houbu 候补) in Qing referred to those people with titles but no vacancies; they engaged in temporary, errand assignments at the central government and local government, but they were free most of the time. The registered officials who “heard the drum” include three kinds of officials: first, the people with titles but having no vacancies, and were distinguished from the officials with actual positions; second, through assignment of the Board of Civil Affairs or being retained by provincial magnates’ memo or consultation letters, those officials had been transferred from the selection stage into the actual appointment stage; third, those officials participated in central government or local government’s long-term or short-term administrations. The latter 2 points distinguish houbu officials (候 候补官员, waiting for actual positions) from huxuan officials (候 候选官员, waiting to be selected) and distinguish actual officials and empty title officials (not selected, only with titles). Houbu officials existed in two forms: one was temporary jobs, and the other was free, but for most houbu officials, free time was much more than the occupied time. Their engagement at local governments mainly includes learning, commissions and errands.31 He Shiqi defined the engagements of local Houbu civil officials as “having no local obligations, but doing local business.”32 Just as Baqi (the banner people) crowded out the pay for green camp soldiers and nurture soldiers being established to solve the living problems of the banner people,33 the establishment of Fashenju not only compensated for the shortage of commissioners in judicial investigations and trials but also solved houbu officials’ lives. The trials of capital appeals and provincial appeals undertaken by houbu officials at provincial capital Fashenju were very common in late Qing. For example, the Sichuan Fashenju was the practice place for board-selected actual officials and provincial 31

Xiao (2008). He Shiqi, 21 Rules for Candidates, see Sheng (1972), Vol. 25, in: Modern Chinese Historical Materials Series, Book 84, 831–849, p. 2579. 33 See Dai and Zhang (1999), pp. 71–101. 32

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houbu civil officials. For the local magistrates, employing legal advisors costs money paid from their own salaries, but Fashenju officials could be paid by the government. Anping County Memo has such a record: “there are lots of cases in the county, all former magistrates used to report to superior officials, to employ 1 or 2 commissioners for trials of civil cases as assistants. When accumulated cases were to be settled, the superior prefectural magistrates would assign commissioners, who would need no salaries.”34 The candidates for official positions actually took away the salaries of local private secretaries. In this sense, the criminal law private secretaries finally retreated from the judicial field because of the competition for living among candidate officials who were generated from the exam economy. It is an internal evolution of the Chinese judicial system, not merely an impact from the Western lawyer and judge system. However, this does not mean that Fashenju commissioners were better than criminal law private secretaries; in contrast, the private secretaries had a private loyalty in reward for the salaries and were more trusted by officials than the Fashenju commissioners in trials. The internal virus in the old system was inherited in the new system, and the increase in staff in governments worsened the exaction of money from the populace. From an etymological perspective, the term “Fashenju” has both a historical connotation and a new connotation in the age. “Fashen” and “ju” are combined to form a new word, which reflects the transition from private secretaries to Fashenju commissioners. Zhuang Yougong’s Pian Tu Lun thus recorded the situation during Qianlong’s reign: in terms of big local vacancies at provincial capital’s first county, there must be 10 people employed, including 1 document-endorsement attendant (gaoqian), 1 interrogator (fashen), 2 court attendants (zhitang), 2 seal attendants (yongyin), 2 registers (haojian), 2 letter writers (shubing) and so on.35 Here, the socalled “gaoqian”, “fashen”, “zhitang”, “yongyin”, “haojian”, and “shubing” are the six work divisions of long-term entourages in local yamen. Since there is a difference concerning the level of official positions and the number of jobs involved, the divisions of work can be different among different yamen. Usually, in large vacancies with many jobs, the division is fine, with more entourages; in medium or small vacancies for relatively simple jobs, the division is also simple with fewer people. According to the book above, Fashen, as the long-term entourages in the first county at a provincial capital, are responsible for the trials of the cases assigned by superior yamen. The first county of a province should be responsible for the public affairs assigned by superior yamen, including the governor-general, the governor, the educational commissioner, the surveillance commissioner and the provincial administration commissioner. Provincial appeals and capital appeals were usually tried by the first county. The magistrate of the first county usually needed many private secretaries familiar with criminal laws, or a special position of “fashen” should be established to try the cases. Therefore, according to this document, “fashen” existed only in the first county yamen at a provincial capital; other counties did not need such a position since they haven’t such trials to deal with. Such private secretaries, entourages named 34 35

Anping County Memos (1995), Taiwan Materials Series, Compilation 2, pp. 90–91. Zhuang Chengfu, “On Unorthodox Careers”, in Zhang and Gu (1988), Book 11, p. 645.

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“fashen”, are doubtlessly the precursors of the Fashenju. According to Zhou Xun’s Shu Hai Talk, we know the situation of private secretaries in Sichuan in Qing, the surveillance commissioner of Sichuan employed three groups of private secretaries: the east group, the west group, by dividing the province into the west part and the east part, the cases of each part was done by a correspondent group, in addition, there was also a fashen group, committed to Fashenju cases.36 This also reflects that in lat Qing, Fashenju actually had a long history. Douglass C. North, in his Structure and Change in Economic History, approached the feedback system in the decrease in the resource benchmark due to explosive population growth.37 Historically speaking, plagues, famines and wars may relieve the pressure on the resource benchmark exerted by the population. Since the breakout of Taiping Rebellion, large-scale wars are volcanic explosions of various conflicts that were hard to vent, the configurations of existing resources were reshuffled, the ruling machine mobilized various resources to cope with the changes in the situation, and many irregular bureaus (jus) mushroomed due to special commissions. There were various kinds of new organizations, which represented the trend of labor division and specialization in the local administration. Zeng Guofan stood out in the training of local militia forces to fight against Taiping forces furiously and became a pillar for the Qing Empire. He attracted a considerable administrative resource, those willing to serve him crowded at his gate. Many talented people from Hunan and Hubei went to work for him as private secretaries in his office, which was unprecedented and could be called “the 1st Commander’s Office in China”. Early in the 3rd year of Xianfeng’s reign, soon after Zeng Guofan arrived at Changsha, Ouyang Zhaoxiong advised him to establish an organization for “officials responsible for public documents and letters”. He accepted this advice, and Shenju was established at the local militia minister’s residence to arrest and kill Hunan people who engaged in activities against Qing or suspects. In the eighth lunar month of the same year, the office moved to Hengzhou. People like Liu Jiande, Li Yunguan, etc. who undertook trial affairs were among the earliest coteries of private secretaries for Zeng. Shenanju stuck to the principle made by Zeng Guofan that bloody killings were necessary to save the dynasty. The massive killings gave Zeng epithets such as “the headcutter Zeng” and “Butcher Zeng”. Under social criticism, he was forced to leave Changsha, but this bloody measure saved Hunan to become a second Guangxi in the social disorder. In the 4th year of Xianfeng’s reign (1854), after Zeng Guofan’s east expedition, Shenanju was renamed Fashenju and survived; sometimes it was also called Fashensuo as a regular organization in the commanding officer’s office. When Zeng Guofan was the governor of Zhili, the accumulated cases and Tianjin religion cases were to be settled, so he established Fashenju for such cases. As seen from the analysis of Zeng Guofan’s commander office, at the historical breakpoints, the newly accrued historical rivulets winded their way in a parallel fashion. During the suppression of Taiping Rebellion, the state violence plainly took the bloody form of military law exercised by Fashenju, and after the warring disasters, 36 37

Zhou (1986), p. 170. North (2002), p. 14.

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many land was deserted and people were dispersed to various places, the economy needed recovery and many jobs needed to be done, the state as a monopolistic and systematic arrangement legally exercised compulsory measures in certain regions, with the chief function to provide law and order. Fashenju was also a key instrument in the division of property rights and the generation of “justice” as public products, which represented multiple features of rule with might and the rule with benevolence in judicature, the relative advantages and the residual values of the state violence potential. Since the scarcity of resources and the space of liberty are closely related, just as Wolfgang Fikentscher has emphasized, the acquisition and retaining (Erwerben und Haben), or “to have something” and “to free from something”, are just complementary, it is particularly necessary for the state to provide authoritative judicial services when the resources are limited. This to some extent explains why after the suppression of Taiping Rebellion, Fashenju was a reliable path and became more common. In the 3rd year of Tongzhi’s reign, He Jin, the Surveillance Commissioner of Anhui, presented a detailed report to the superior authority to explain the situation briefly as follows: since the war broke out, all slaughter and theft cases were all tried by counties according to the new rules, serious offenders were killed, minor offenders were criticized and released, the reports, calls for witnesses, and review of trials were not done case by case. Since provincial capital has been recaptured for over 3 years, the suppression is over. Although it is still difficult to deliver all suspects to the provincial capital, all the normal cases reported and transferred by local governments should be tried according to corresponding laws to avoid rejections by the Board of Punishment. Since many local magistrates are not familiar with laws, when the verdicts are rejected, they become difficult problems. The provincial capital yamen used to have Fashenju. If it is re-established, the assigned cases could be done more carefully, and the cases not done appropriately according to laws could be discussed nearby to avoid frequent rejections. The Anhui government leaders instructed Chen Ju, the prefectural magistrate of Anqing, draft the articles of the organization, which was reported to the surveillance commissioner and was ratified by the two superior authorities, so Fashenju was established in the fifth lunar month of the same year.38 According to chronicles and other data, Fashenju was established in all provinces by the end of the Qing Empire. Relevant accounts can be found for Zhili, Shandong, Shanxi, Henan, Hubei, Hunan, Jiangsu, Jiangxi, Anhui, Zhejiang, Fujian, Shan’xi, Sichuan, Guizhou, Gansu, Xinjiang, Taiwan, Guangdong, Yunnan, Guangxi, Fengtian and Jilin, which also established Fashenju before the provincial governments were established. In the fourth lunar month of the 12th year of Guangxu’s reign, Xi Yuan, the general of Jilin reported to the emperor that the future cases to be reviewed by the surveillance commissioner should be done according to the traditional procedure, difficult cases should be carefully investigated and tried by assigning them to the Jilin provincial capital prefectural magistrate or Fashenju commissioners. This proposal was approved by the emperor.39 In the 10th year of Guangxu’s reign, the 38 39

Feng (2005), p. 748. Veritable records of Guangxu (1985), (V), Vol. 226, pp. 50–51.

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general of Heilongjiang also proposed the establishment of Fashenchu to deal with accumulated cases, but it was rejected by the emperor since the existing surveillance commissioner’s office and the office of revenue and population were enough to deal with such cases. Since then, Fashenju has never been established in this province.40 In addition to Fashenju by the provinces, Shuntianfu, i.e., the capital prefecture, also established Fashenju.41

4.3 Deep Internal Conflicts of Fashenju Whether from the composition and the judicial function or from the measures of motivation and punishments of Fashenju, this organization qualified as a special judicial trial organization, but the political system that combined the administration and judicature made the special organization a strange mixture. Although Fashenju was headed by the provincial capital prefectural magistrate, it was in fact as Zeng Guofan said “a branch of the governor’s office”.42 In the administrative system, the provincial capital prefectural magistrate was responsible for the two provincial commissioners’ offices, and the two provincial commissioners were responsible for the governor. The provincial capital prefectural magistrate office had to report to the commissioners’ office, which would forward to the governor, and decisions were in force only after the approval of the governor. Therefore, the governor himself might modify the constitutional regulations drafted by the provincial capital prefectural magistrate. The surveillance commissioner acted as the direct supervisor of the prefectural magistrate and might change the operations of the Fashenju or provide strict requirements for the internal staff. The provincial capital prefectural magistrate was not entitled to directly change the internal regulations of the Fashenju; in the administrative hierarchy, the provincial capital prefectural magistrate only served as an executive. As seen from the cases dealt with by Fashenju, most cases are capital appeals that were ordered by the emperor or rejected by the Board of Punishment or serious cases for provincial trials. Such cases should be tried by the governor or by the surveillance commissioner and the provincial administration commissioner in person on demand of the governor, but such officials would not try in person; instead, they sent them to yanju of the provincial capital prefectural magistrate’s office. However, the governor would not completely follow the results from Fashenju’s trials, and the governor would execute the power of revision for important cases, especially such cases from capital appeals. The governor would meet the surveillance commissioner and the provincial administration commissioner in discussions 40

According to Li Guilian and Hu Zhen, although Heilongjiang did not establish Fashenju, but caipanchu (judge office) was established, to deal with “appeals from subordinate governments, big cases and small lawsuits”. See Li and Hu (2006), p. 24, note[38]. 41 Veritable records of Tongzhi (1985), (1), Vol. 13, p. 349. 42 Zeng Guofan. Ten Articles for the Settlement of Lawsuits in Zhili, in Sheng (1972), Vol. 25, xingbu5, zhiyu, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4714.

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of such cases, which is the so-called “Sentence Discussion”. The cases completed by Fashenju were recorded in detail and presented to the surveillance commissioner via the prefectural magistrate, and the surveillance commissioner forwarded them to the governor (yuan). If there were missing parts, doubts, or discrepancies between crimes and punishments in the records, the verdicts could be rejected by the surveillance commissioner and the governor for further investigations. Therefore, the Fashenju was in fact a special trial organization for cases assigned by superior officials headed by the provincial capital prefectural magistrate; it was established to deal with cases dispatched by the governor’s office and other officials. The people in the Fashenju were not truly of a leader-subordinate relationship. Either the tidiao 提调, zuoban 坐办, or the commissioners, or the practitioners, they were mostly waiting officials without other practical positions, they could not call each other by official titles. Although tidiao or zuoban was responsible for the office affairs and supervising the commissioners’ trials, commissioners sometimes were not obligated to accept the supervision of tidiao or zuoban completely. In the Uniform Articles of Association of Sichuan, it was reported that “some cases dealt with, whether there are cues or not, are not reported to the prefectural magistrate, or consulted the zuoban, and the commissioners go to report directly the governor, on returning they do not explain to Fashenju officials.”43 From this we can see, the commissioners at the Fashenju did not see the provincial capital prefectural magistrate or zuoban as their direct leaders. Fashenju not only tried the capital appeals assigned by superior officials and the cases rejected by the ministries but was also responsible for the transferred cases from some counties. Although we could not find records of such things in the Fashenju data in Shanxi, Anhui and Sichuan, we discovered that serious manslaughter and theft cases were reviewed by yanju. Many such records can be found in Fujian Provincial Substatutes. As reflected in the Trial Rules for Provincial Capital Cases from Subordinate Governments44 ratified in the 6th year of Tongzhi’s reign, since county officials did not carefully try their original cases, when the cases were rejected for retrials, or because of the delay of the costs or fear of criticism, they became accumulated cases. Therefore, provincial capital cases from subordinates were also tried by yanju, and detailed procedures were performed. Fashenju tried the transferred cases from counties; if there were mistakes or doubts, people could be called back for corrections in retrials and then reported to the surveillance commissioner, who forwarded them to the governor. If there were faults in the cases tried by Fashenju, the surveillance commissioner and the governor might still return them for retrials. If the crime and punishment were commensurate, they were included in the normal judicial procedure, the criminals of manslaughter cases were exiled to fixed places by the governor, and the slaughter cases and tentative banishment verdicts were reviewed by the Board of Punishment. Fashenju tried not only the capital appeals assigned, the cases rejected by the Board of Punishment but also the cases transferred from counties, it became the “duplicate” of the surveillance commissioner, but this 43

Zhong (1977), Sichuan Ordinances and Regulations, compiled the 5th lunar month of the 26th year of Guangxu, in Modern Chinese Historical Materials Series (Continued), Book 48, 480. p. 237. 44 Fujian Provincial Substatutes (1987), pp. 1015–1016.

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“duplicate” was in a dilemma in the provincial administrative and judicial system: it was not a formal organization in the provincial judicial system, but a special auxiliary trial organization indispensable for the provincial judicial system. The trial transfer system in Qing is faulty. As Shiga Shuzo says, since hearing trials did not end after exhausting all procedures, it was the result that provincial appeals and capital appeals could be delayed over a long time. In his sense, Fashenju was merely an external processor attached to the judicial trial machine. Fashenju mostly investigated and tried retrial cases; therefore, people later called it the high courts, and in fact, most of them were reformed to be high courts in late Qing by the influence of foreign countries. This kind of court in the entire judicial system was similar to Western equitable courts, which had operational techniques in trials that were different from the original investigation techniques at local county offices; it needed something like Western “equitable justice”. Taking Bao Shicheng’s manuscripts as an example, in the 23rd year of Daoguang’s reign, he in the “Second Letter on Trial affairs to Second Son”45 mentioned the special “equitable law” in the Fashen cases. He thought, in the Fashen cases, if branches are taken out, the delivery of suspects are necessary; if the deadlines are not kept, the performance results can be a concern, and the delay will victimize the innocent. Doing a good thing or doing a bad one is just close neighbors. Therefore, Bao Shichen advised his son not to tackle the settled cases involved. If the relevant unsettled case has little to do with the main one and people are gathered, it’s appropriate to mention and end it with a few additional words after settling the big case. If the relevant case is serious and complex, it’s appropriate to kick back to the original court to investigate with excuses like the lack of witnesses or evidence. In the detailed account of the 3 cases, Bao Shichen further explained his view in the letter on lawsuits. When Bao Shichen was in Shandong and Jiangsu helping his boss with criminal cases, he always made an agreement in advance that “it is within my humble talents to try a case up to 30% justice, and nothing beyond that”. This preliminary agreement was not known by contemporaries, thought the 30% justice was a too low bottom line, and suspect he said it just out of anger. However, Bao Shichen explained, “When cases go to two provincial chiefs’ offices, then the original court officials become the accused; therefore, if the justice of the case can be counted as 10, the commoners and the officials each have 5. For the 5 officials on behalf, justice cannot be expected. The case was caused by disputes between a common person and another common person, but the official did not give justice, and then the disputes become a struggle also against the officials, and even the justice of the original case isn’t taken care of and specially aimed at justice against the officials. Therefore, the experienced case will just focus on the justice of the original case. When the justice in the case itself can account for 3 in 5, as the saying goes ‘the main body dips down’. When appeals are taken to the provincial level, both the investigation and trial parties are exhausted; even if there is a demand for stops, it is no longer possible. When justice reaches 3 out 5, the honest justifiable ones will feel satisfied. Those very unjustifiable people often depend on officials, when they see justice is shown on the higher level, they 45

Bao (2001), pp. 278–279.

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have nothing to rely on, and they feel not too well, and want to retain 20% of the injustice to conceal their own shame, then how can there be cases that cannot be settled?”46 I want to call this principle of 30% justice “Bao Shichen Justice”, its core is to “protect officials and evaporate common people’s anger without its stagnation”, which could be accepted by the three parties, or had to be accepted within the scope of “affection and reason” (qingli 情理) to end the cases naturally. Appeals for the Chinese are to ventilate their anger or find an answer for themselves. In the transition of the Qing trial transfer system, the transformation of objective facts to legal facts was actually woven and spread through “discourses”, the higher organizations usually could not conduct real reexaminations, they usually conducted a paper review work based on the main evidence provided by lower organizations, as the officials tend to conceal information to higher and lower officials, exchange plots of the case to remove the extra investigations, in the repeated appeals and trials, refusals and retrials the original mistakes were more and more carefully concealed by skillful officials, the initially simple cases might involve more and more false evidence, hence such false cases tend to “have mountains of sound evidence”, and false evidence became real and real ones false, the facts were hidden and false evidence became seamless. Just in this sense, “Bao Shichen Justice” in retrials was a nice compromise when the cost for realizing absolute justice was too high and extralaw feelings as a resource was introduced into the trials to offset the insufficiency of the system and organization. “Bao Shichen Justice” has the settlement of lawsuits against law, which represents a tension in the combination of moralism and utilitarianism. This thinking image (Denkbild) is result-oriented rather than principle-oriented and case oriented rather than ruleoriented. It seeks the Zhongyong (the golden mean) of situation and law, according to Wolfgang Fikentscher’s legal approach of Synepeics necessitates the criticism of Fashenju members’ local hypocrisy in Zeng Guofan’s Ten Articles for the Settlement of Lawsuits in Zhili, with a disproof of the frequent application of “Bao Shichen Justice” in retrials.47 In the conflicts and compromises between abiding laws and going against laws, the judge are not equitable, real situations must be recovered into real considerations, the justice expected by the accusers is described by Bao Shichen as “if county officials deal with cases more fairly, the judgment might reach as much as 80% or 90% of the justice; when it is before the provincial administration commissioner and the surveillance commissioner, there are more obstacles.” In this sense, Fashenju is an additional organization established under the “Huang Zongxi Law”, but the output justice of it must be a limited fair exchange after the calculations of the additional costs of the bureaucrats, which is what we call here “Bao Shichen Justice”. As shown above, Fashenju represents a tendency for judicial professionalization, but it almost always shouldered the function of training professional experts, which shows that professionalization was out of sight. In late Qing, there was a voice to 46

Bao (2001), pp. 274–275. Zeng Guofan: Ten Articles for the Settlement of Lawsuits in Zhili, see Sheng (1972), Vol. 25, xingbu5, zhiyu, in Modern Chinese Historical Materials Series, Book 85, 831–849, pp. 4727–4728.

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“incorporate private secretaries into the public sphere” (幕友归公). According to this point of view, even if private secretaries made mistakes, they just lost their jobs, without intimidating punishments, they could do other jobs, so they were mostly irresponsible and seldom dignified, so those private secretaries should be public servants.48 This suggestion was proposed when Qing had tight finance and the tax collection was weak. The argument was certainly farfetched because the loss of jobs for the contracted private secretaries had risk costs no less than officials’ trivial punishments and warnings. The provinces with Fashenju established a series of sanction measures, and even attendance records were used to regulate the office hours of tidiao, zuoban and commissioners.49 The effects were obvious, but such pseudomodern office management policies were all governed by the disciplines “other governance”. Fashenju commissioners had separate “legal knowlege” and “moral integrity”, and the internal moral orders for honest self-governance were not involved. When people run after wealth, Fashenju commissioners’ sacrifice justice for bribery was even more serious than private secretaries, which became a common practice. For example, as recorded in Du Fengzhi Diary, in the fourth lunar month of the 6th year of Tongzhi’s reign, gentries of Guangning County went the provincial administration commissioner yamen to accuse the overcollection by county officials. Then, the general and surveillance commissioners were one sector, the governor and the provincial administration commissioner were another sector, and the gentries of Guangning took this advantage: “all provincial officials were persuaded with a large sum of money. In addition, even the Fashenju commissioners also took their bribes, to give a slight sentence”.50 This appeal vividly shows the Fashenju officials had sold their duties and conscience for money, the power-and-money deals in justice domain are obvious. The tendency that the rewards increased while punishments decreased reflected the gradual receding of the moral bottomline of Fashenju commissioners. However, if private secretaries cycled in a closed domain in their social rank, they could not jump out, then Fashenju commissioners had no upper limits for their career and promotions, their utilitarianism made them unsatisfied in ranks, and the moral bottomline fell precipitantly. Moreover, Xu Ke’s Extracts from Notes and Newspaper Articles of Qing Dynasty records that “the cases undertaken by Fashenju are capital appeals returned to original provinces, or cases brought up and handed over to Fashenju, the chief of which was always daotai (intendant of circuit) candidates, the tidiao (supervisor) was a candidate for prefectural magistrate, while commissioners were candidates for county officials. There was a fixed number for commissioners, who after several years in service would get their positions and left. They mostly get promotions through connections, with little learning in laws.”51 In a society where “mathematical management” (a term coined by historian Huang Renyu) could not be 48

See Zhou (1958), the ninth lunar month of the 20th year of Guangxu, pp. 3482–3483. Li (1969), Li Wensu Posthumous Letters, letters, Vol. 28, in Modern Chinese Historical Materials Series, Book 37, 363, p. 2064. 50 Diaries of Du Fengzhi, book 3, Diaries at Suijiang, the 12th day of the eighth lunar month, the 6th year of Tongzhi. 51 Xu (1984), Book 3, p. 977. 49

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realized, the Fashenju reward standards for various provinces were gradually digitalized, the evaluation of the trials and the offering of position to candidates are “quantity” rather than “quality” of the cases closed, “interrogators seek prizes for the cases settled”,52 the quantity is certainly a priority, and most people cannot judge fairly according to law and conscience, being busy for achievments to make some wronged cases. Chen Shirong, in Niu Enhui Lawsuit Records, tells a strange case in Gaotai County, Gansu. The case is also called the “Gansu Gaotai Case”, to be justaposed by Qing officials with the “Sichuan Dongxiang Case”.53 In this case, Li Darong, the county magistrate of Gaotai met an accident in a theater, the Gansu Fashenju officials helped each other, and they thought capturing Niu Ba (a leader of the secret society) as an important feat. Large promotions and awards can be acquired, led by the potential promotions and prize, they tortured Niu Enhui to exact a false confession, but when Chen Shirong suggested the redress of the mishandled case, the surveillance commissioner first did not think about the truth of the case, but the risk that all commissioners might be punished, he wanted just avoidance of punishments and his private interests. To get promotions, just as Li Boyuan, a famous novelist in late Qing, described in Live Hell, Yao Ming is a Fashenju official, he flaunts his strict enforcement as an official, and he is grateful to superiors for patronizations, he works hard for rewarding the favor, for the populace is vividly a devil “devouring people live”.54 Fan Zenxiang, in Fanshan Politics Letters: “Reply to Fu Shoushiwei of Xi’an”, says that “Fashenju investigates cases differently from ordinary trials at county governments. The cases concern people’s lives and deaths, and there may be large discrepancies. Even experienced and proficient people may make mistakes, and the selection of appropriate people is very important. In past years, Fashenju had Former Five Ghosts, and New Five Ghosts, for example, He Peifen, Jiao Chengchuo, Du Shuxun, are all listed in the ghost rolls, they are truly black sheep of the Fashenju.”55 Duan Guangqi, in his Chronological Autobiography of Jinghu, mentioned a story: there was a case of grain collection appealed in the capital, when it was returned to the original place for investigations, the surveillance commissioner ordered the prefectural magistrate to assign commissioners for the interrogations, the accuser claimed to be a scholar failed in imperial exams. The commissioner said, “I seek a couplet, the first sentence is ‘The gentleman cherishes punishment’ (君子怀刑), can you find another sentence to complete the couplet?”, in order to frustrate the scholar failing in imperial exams. Unexpectedly, the accuser answered, “The beast compels man (禽兽逼人)”. Duan Guangqing exclaimed that this sentence “is an appropriate curse of officials”.56 The numerous villains in Fashenju had a social image as bad as that!

52

Xu (1984), Book 3, pp. 1104. Sheng (1972), Vol. 101, xing zheng (4), zhiyu (1), in Modern Chinese Historical Materials Series, Book 85, 831–849, pp. 4559–4662. 54 Li (1994), p. 52. 55 Fan (2007), p. 16. 56 Duan (1997), p. 153. 53

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Fashenju itself had many internal conflicts in its mechanism, and as it was also the organization solving social conflicts, it was naturally at the focus of various social conflicts. Therefore, Fashenju had been continuously doubted, criticized and attacked, and sometimes it was even the accused itself. In the 10th year of Daoguang’s reign, Song Zhaogu, a censor, said in his memorial to the throne: most of the cases appeals at yamen of governors, the provincial administration commissioners and the surveillance commissioners were tried by the provincial capital prefecture, which established Fashenju, staffed with private secretaries, all court affairs were judged by it, this might be called as the public apparitors. Now Zhu Qi, a public apparitor of Guiyang, is in fact named Zhu Lang, who abuses his power and conspires with Liu Song (a brother of Liu Kun, a bad apparitor) to conduct misdeeds. This is the earliest account of Fashenju in Veritable Records of the Qing Dynasty.57 In the sixth lunar month of the 1st year of Guangxu’s reign, Chen Yi, a censor, proposed the issue of the low quality of Fashenju officials.58 In the 16th year of Guangxu’s reign, Tang Zhen wrote his Precautions, which was presented to the emperor with Mediocre Words written by Weng Tonghe and Chen Zhi soon after the signing of the Treaty of Shimonoseki. Tang Zhen pointed out, “The reason why the mechanism of the Board of Punishment should be reformed is that if the punishment on theft is serious then the theft will be more hideous and hidden, if the ban on drugs is stricter, the sale of it will go up. … when Fashenju is established, then the injustice of the prefecture and county offices can never be overthrown. As the expenditure of Fashenju is jointly shared by districts and counties, the officials there are also from districts and counties. The partial protection is understandable; I don’t know what the duties of governors, surveillance commissioners, circuit intendants and prefectural magistrates are, and why they must establish Fashenju.”59 What was worse, the criticism about the defects of establishment of new offices almost put an end to Fashenju. Early in the 5th year of Guangxu’s reign, Huang Yuanshan, the investigating censor, urged the emperor in his memo to the throne that newly established offices such as Fashenju should be dismissed as soon as possible since these offices cost public money with many unnecessary employees.60 In the 15th year of Guangxu’s reign, Wu Shouling, a censor, presented his memo to the emperor to dismiss unnecessary bureaus and officials, the Qing central government was aroused to this problem, there were 50 to 60 bureau in the Board of Revenue’s list, of which Fashenju, hushensuo (候审 所), qingsongju (清讼局), keliju (课吏局), bajiaju (保甲局) were in the list. The Board of Revenue and the Board of Civil Affairs replied that “since the establishment of bureaus, during the reign of Xianfeng, the places not recovered in various provinces, could not govern without bureaus, which broke through the traditional demerits of yamen officials. However, when the old habits continue, the bureaus

57

See Emperor’s Instructions during the Reigns of Jiaqing and Daoguang (2000), Book 35, p. 359. Zhou (1958), pp. 90–91. 59 China History Society (1953), (1), p. 180. 60 “Suggestion for Tax Saving”, Cheng (2005), Book 5, p. 97. 58

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also unexpectedly become a demerit”.61 The emperor’s instruction answered that when military logistics are being collected, saving money is important, the provincial bureaus should be dismissed if they could be dismissed, and they should be merged if possible. The remaining offices should have a determined number of officials with a set salary, and even small wastes should be avoided. It is fortunate that almost all provinces have not made good progress in the dismissal and mergers of bureaus, and among the bureaus, Fashenju has a necessary business; therefore, it is not involved substantially. In Huibei, yanju are established in Wuchang and Hanyang, and each has a prefectural magistrate to head the trials. Since cases tried by Hanyang are few, the commissioners there have much free time, out of financial considerations, the surveillance commissioner intended to dismiss the Hanyang Fashenju, and assign two trial assistants to the Fashenju of Wuchang.62 Although Fashenju is not a constant organization, its dismissal involves the positions and salaries of many officials, so it is a thorny problem, and the dismissal is no easy thing. Until the 23rd year of Guangxu’s reign, records show that there were still capital appeals in Hubei conducted by Hanyang prefectural magistrate’s office. Since Daoguang’s reign, the Qing emperors acquiesced the existence of Fashenju at first, then it was regulated for perfection, and finally encouraged Fashenju to work hard for justice. While Zeng Guofan was governor of Zhili, he established Fashenju headed by the surveillance commissioner for trials. He asked Fashenju to stick to the law and drafted Ten Articles for the Settlement of Lawsuits in Zhili to clarify the rules of Fashenju. Zeng Guofan’s establishment of Fashenju and the drafting of the above rules were ratified and supported by the Qing central government, and this was set as a model for promotion. This is a turning point for the Qing emperor to change his attitude toward Fashenju, showing a large-scale regulation of the Fashenju. In late Qing, following this model, many provinces established and regulated Fashenju. In the 1st year of Guangxu’s reign, propelled by the memorial to the throne by Chen Yi, a censor, the emperor issued the order below: “Provincial capital Fashenju should be headed by good officials, from now on provinces should report on the Fashenju officials, their resumes and their responsible cases, for the evaluation by the Board of Punishment. If there are injustices, they shall be punished according to the Regulations.”63 This measure put the trials conducted by provincial Fashenju officials under the supervision of the central government; this is a precursor that the emperor no longer deemed Fashenju a temporary organization. From then on in emperors’ orders, Fashenju was mentioned increasingly, and supervisions or regulations were proposed for some provincial Fashenju. In the emperor’s view, Fashenju had become a key part of the provincial legal system; it was no longer a temporary organization for the settlement of accumulated cases but an indispensable part of the efficient operation of the provincial judicial system. 61

“Board of Civil Appointment Yushi Wu Shouling’s Memo to Appoint Some Officials and Other Candidates to Go Home and the Dismissal of Bureaus”, in Board of Revenue Memos (2004), Book 6, pp. 2655–2656. 62 National Library Materials Duplication Center (2004), (1), p. 263. 63 Veritable Records of Guangxu (1985), (1), Vol. 11, p. 207.

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Fashenju is a result of the provincial bureaucratic system in the “assignment” approach to deal with accumulated cases. Although it was only temporary and special organization in the beginning, it solved the problem unanswerable in the traditional judicial system. With the increase in accumulated cases, the organization became a main legal force in the provincial judicial system because of its practicality and specialty. Governor-general and governors and surveillance commissioners planned it with administrative force and made it mature and complete. Although Fashenju was a special investigation and trial organization supervised by the provincial capital prefectural magistrates, the traditional administration-judicial system made it impressed with the features of the administrative system. Fashenju did not have the features of a modern trial organization; it was only a “duplicate” for the duties of surveillance commissioners, and it was a special organization under the governor to deal with serious cases. Therefore, Fashenju can be seen as a “variation” developed from the traditional administrative-judicial system; when the original judicial system failed to cope with judicial problems in modern society, this organization served as a media or a bridge for the transition toward a new system. In this process, Fashenju was responsible for many judicial problems. On the 20th day of the ninth lunar month, in the 32nd year of Guangxu’s reign (1906), the emperor issued an order to rename Board of Punishment (xingbu) as Ministry of Justice (fabu), and judicial affairs were its special duty, and dalisi (Court of Judicial Review)was renamed daliyuan (Central Judicial Office), to focus on trials, this changed the situation that the Board of Punishment was solely responsible for the judicial trials and judicial administration, which were separated, based on the Daliyuan, provinces established trial court, to replace the traditional trial system of “county—prefecture—surveillance commission—governor” (zhouxian-fu-si-yuan). In the transition, the trial function of Fashenju was dissolved into the new judicial system. However, in the establishment of the trial court, provinces faced two problems, namely, the lack of trial experts and the lack of money. Therefore, in these provinces, the resources of Fashenju were used to establish a new trial court. On the one hand, Fashenju commissioners entered law schools to learn new knowledge so that they could enter the new judicial system; on the other hand, excellent law school graduates could enter the Fashenju as assistants to increase their experience. Fashenju not only provided some legal workers but also a training place for legal workers. Since Fashenju was only a temporary organization when it was first established and most employees were officials waiting for positions, in the reform of the separation of the administrative and the judicial system, Fashenju fell into a dilemma. This situation determined the final cancel or dismissal of Fashenju.

References Anping County Memos. (1995). Taiwan Materials Series, Compilation 2. Datong Book Company. Bao, S. (1968). Four Books on Governing Suzhou. Wenhai Press. Bao, S. (2001). Four Skills for the Common People, J. Pan (Ed.). Zhonghua Book Company.

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Board of Revenue Memos. (2004). National Library Materials Microfilm Copy Center. Cheng, C. (2005). Classified current affairs collections, Book 5. Beijing Library Press. China History Society. (1953). Wuxu Reform (1). Shanghai People’s Publishing House. Dai, Y., & Zhang, S. (1999). China and the world in the 18th century. Liaohai Press. Duan, G. (1997). Chronological autobiography of Jinghu. Zhonghua Book Company. Emperor’s Instructions during the Reigns of Jiaqing and Daoguang. (2000). Guangxi Normal University Press. Fan, Z. (2007). Fanshan Politics Letters. Zhonghua Book Company. Feng, X. (2005). Key political records of Anhui. Huangshan Bookstore. Fujian Provincial Substatutes. (1987). Taiwan documents series. Datong Book Company. Hu, Y. (1971). Mr. Bao Shenbo (Shichen)’s Chronicles. Guangwen Book Academy. Li, B. (1994). Live Hell. Shanghai Bookstore. Li, G., & Hu, Z. (2006).“A survey of Fashenju in the Qing. Comparative Law Studies, 4. Li, P. (1969). Li Wensu Posthumous Letters. In Modern Chinese historical materials series, Book 37, 363. Taipei Wenhai Press. National Library Materials Duplication Center. (2004). Archives of surveillance comission in Qing Dynasty (1). National Library Materials Microfilm Copy Center. North, D. C. (2002). Structure and change in economic history, (Y. Chen, H. Luo, et al.). Shanghai Sanlian Bookstore. Sheng, K. (1972). A collection of essays on national affairs during the Qing Dynasty (Continued), Vol. 25. In Modern Chinese historical materials series, Book 84, 831–849. Wenhai Press. Skinner. (1977). Introduction: Urban development in imperial China. In G. W. Skinner (Ed.). The City in Late Imperial China. Stanford University Press. Veritable Records of Daoguang. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable records of Guangxu. (1985). Zhonghua Book Company. Veritable Records of Jiaqing. (1985). Zhonghua Book Company. Veritable records of Tongzhi. (1985). Zhonghua Book Company. Will, P.-É. (2003). La réglementation administrative et le code pénal mis en tableaux, Études chinoises: bulletin de l’Association française d’études chinoises, N°22. Xiao, Z. (2008). The Negative Impacts of‘ti gu zhe’ (drum hearers) on the Local Official Administration in Late Qing. Nanhua University Journal, 9(5) (social sciences). Xu, K. (1984). Extracts from notes and newspaper articles of Qing Dynasty. Zhonghua Book Company. Zhang, B., & Gu, Y. (1988). Unofficial history of the modern times. Sichuan People’s Publishing House. Zhao, X. (2001). A social survey of the legal court system in the Late Qing. Remin University of China Press. Zheng, Q. (2000). An introduction to the prefecture and county interrogation and trial procedures in Qing. In Studies on the legal system of Qing. China University of Political Science and Law Press. Zhong, Q. (1977). Sichuan ordinances and regulations compiled the 5th lunar month of the 26th year of Guangxu in Modern Chinese historical materials series (Continued), Book 48, 480. Wenhai Press. Zhou, S. (1958). Records from the eastern gate of Guangxu’s Reign. Zhonghua Book Company. Zhou, X. (1986). Shu Hai Talk. Bashu Bookstore.

Chapter 5

A Study on the Execution of Spots in the Late Qing

5.1 Origin of Execution on the Spot The most widely regarded view concerning the start of execution on the spot is found in the Manuscript of Qing History·Treatise on the Penal Law, according to which the start was in “the 3rd year of Xiangfeng’s reign”. Li Guilian, in his paper “Examination of ‘Execution on the Spot’ in Late Qing”, cited the emperor’s instruction on March 13, 1853 (the 3rd year of Xianfeng’s reign) preserved in the manuscript of Cases Reported to the Throne by the Board of Punishment to prove the record in Manuscript of Qing History·Treatise on the Penal Law. The view that “the start was in the 3rd year of Xianfeng’s reign” was mentioned many times in contemporary memorials to the throne submitted by the Board of Punishment and provincial governor-general and governors. In the Board of Punishment’ reply for the abolition of execution on the spot the history of the punishment was reviewed thus “we looked up records and found that the execution on the spot was started in the 3rd year of Xianfeng’s reign, the reason was that in many provinces bandits upraised in large numbers, they conducted robberies without restraint, so the punishment was expedient on that occasion rather than a conventional routine, the governors-general and governors responsible for the administration should know that if things can be settled, they should get rid of the bad habit, follow the conventional procedures of suggestion, response, delivery, investigation, testimony and reports to the throne, they should be prudential in punishments and value people’s lives, they should not excuse themselves by the troubles in the process, and the disturbance caused in imprisonment and follow the old punishment similar to the approach used in warring periods, therefore our ministry made a reply to the memorial submitted by Hu Longxun (the censor), we request the emperor’s order that all provinces should deal with robbery cases according to the conventional routine, the criminals should be sent for the confirmation of responsible superior organizations, and send memorials to the throne, respectively. The criminals should not be executed on the spot, after an agreement is quickly reached the rule will be written in a memorial to the throne, our ministry is responsible for the discussion and review, after the emperor’s permission the routine should be issued to and observed © China Renmin University Press 2021 Z. Shiming, Law, Resources and Time-Space Constructing, https://doi.org/10.1007/978-981-16-8055-7_5

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by all provinces”.1 In terms of the nature of historical materials, Manuscript of Qing History·Treatise on the Penal Law is a “narrative material”, while the contemporary memorials of the Board of Punishment and provincial governors-general and governors are “relic materials”, the latter is a “historical relic”, the reliability of which is doubtless, and from the wording and tone, Manuscript of Qing History·Treatise on the Penal Law is obviously a transcription of the said memorials. Qiu Yuanyou in his paper “Taipingtianguo and the ‘Execution on the Spot’ in Late Qing” makes his assumption based on materials in Historical Records of Qing Government’s Suppression of Taipingtianguo published by the First Historical Archives of China. He thinks that the start of the execution on the spot is not “in the 3rd year of Xianfeng’s reign” when Taipingtianguo founded its capital at Nanjing, but in 1851 after the Jintian Uprising, in Guangxi province where Taipingtianguo revolution first broke out. In fact, Qiu Yuanyou and Li Guilian do not have an essential disagreement here, since Li Guilian’s article infers from the emperor’s instruction in the 3rd year of Xianfeng’s reign, before the emperor’s instruction, executions on the spot had been carried out in some districts in Sichuan, Fujian, and Guangdong. According to Hidemitsu Suzuki, the term “Execution on the Spot” had been in use at least since the mid-Qing. The evidence cited by Hidemitsu Suzuki was “Fujian Taiwan Circuit Intendants Yang Tinghua’s Report to the Throne the Execution on the Spot of the Chief Criminal Who Killed 4 People and Set Fire to Burn up the House and Corpses”.2 In my view, Huangshi, mother of Zheng Keshuang, and Zhushi, wife of Zheng Keshuang, knocked the gate of the palace for an appeal in the 48th year of Kangxi’s reign, their written complaint asked the emperor to order special envoys for a thorough investigation with governors of Fujian and Guangdong, they claimed that if “the property is truly the legacy passed on to my son from his ancestors, then it should be returned as shown on the list. If my statement is a fabrication, then I submit myself to the Board of Punishment for an execution on the spot, to warn the common people”.3 Lan Dingyuan, the author of Luzhou Legal Cases 鹿洲公 案, went to Taiwan for the pacification of the uprising of Zhu Yigui together with Lan Tingzhen, Lan Dingyuan’s cousin, in The Authorized Version of the Records of Pacification of Taiwan, which was written in the 1st year of Yongzheng’s reign, states that the rest of the revolts captured at the front were sent under escort to Xiamen, including Huang Dian, Huang Risheng, Guo Guozheng and so on. Man Bao, the governor, assigned the surveillance commissioner to imprison them at Fuzhou Prison before trials, and they were sentenced execution on the spot.4 According to the Qing procedure, when military actions were completed and large events in politics occurred, the memorials to the throne and the emperor’s decrees were collected in an 1

“Report on the Deadline for Termination of Execution on the Spot for Robbery Cases”, in Sheng (1972), Vol. 100, xingzheng 3, lvli 2, in: Modern Chinese Historical Materials Series, Book 85, 831–849, pp. 4534, 4535. 2 The National Palace Museum in Taipei (1988), Book 58, the 3rd day of the eleventh lunar month in the 48th year of Qianlong’s reign, p. 64. 3 The Institute of History and Philology at Academia Sinica (1972), Compilation 4, Book 3, p. 300. 4 Lan (1977), pp. 64, 65.

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edition to record the details and compiled into books sometimes called fanglue or jilue (brief records) to be authorized anytime by the empror to show great military feats of the empire and to serve as a reference in future military actions. The Authorized Version of the Records of Pacification of Taiwan has a detailed record of the official documents about the Lin Shuangwen Uprising which happened in the 51st year of Qianlong’s reign, the Vol. 29 states that “all bandits captured, such as Bai Run, Lin De, etc., were convicted of fighting together with the revolts, but they were not officials in the uprising group, and they were all executed on the spot”,5 this shows that execution on the spot had been used earlier, but still not widely used. During Daoguang’s reign, the term “execution on the spot” found its way in official documents. I do not want to reduce this permeation to some necessary elements, using economic or political factors to interpret it so that the interpretation fails to stand, this phenomena is obviously quite accidental it is rather a mutual interaction of popular vocabulary and the inheritance and interaction of texts, a result of the weak communities’ joining of the chorus led by some strong advocates. During Daoguang’s reign, due to the special conditions of Chinese frontier communities, besides the said “a small uprising in 5 years, and a big uprising in 10 years”6 in Taiwan, where native people were turbulent before acculturation, people in other frontier regions fought for survival space and economic resources, and local magistrates failed to pacify such confrontations impartially, there were many risings and insurrections, moreover such regions had a weak and crude organizational system, Qing government frequently resorted to “execution on the sport” as an ultimate solution in military suppression. In the 2nd year of Daoguang’s reign, in Qinghai province, the Tibetans to the south of the Yellow River were crowded in a small area, so they invaded the pasture of the Mongolians north to the Yellow River, in the dealing of the so-called “fan’an” (番 番案, case of herdsmen), since there were many lawsuits against Guoluoke herdsmen’ sharing of the loot, the Chengdu General “Nimashan assembled army of Han nationality and aboriginal people and captured the chieftain and his son, along with other notorious bandits, who were all executed on the spot”.7 The expression “execution on the spot” started to spread widely in official documents during Daoguang’s reign. We can also find evidence in Lin Zexu’s official documents when he banned opium in Guangzhou. From Lin Zexu’s article on “Reasons against Western Chiefs’ Refusal to Turn in Foreigners” in his Epistle, we can see that the term “execution on the spot” was a normal usage.8 As stated above, the rise and decline of popular phrases is usually hard to fathom. Sometimes such phrases are popular among the public, while sometimes they vanish immediately after such a widespread distribution. The fact the phrase “execution on the spot” 5

Imperial Records of Appeasing Taiwan (1987), Vol. 29, Taiwan Literature and Historical Materials Series, Book 7, 101, pp. 464, 465. 6 Tang (1999), ziliao (1), in Zhongguodifangzhijicheng, Taiwan fuxianzhi, 1, p. 175. 7 Veritable Records of Daoguang (1960–1970), Vol. 43, the tenth lunar month of the 2nd year of Daoguang’s reign, p. 803. 8 Lin (1947), “Communicate to Foreigners’ Chiefs on the Reasons of Resistance against the British”, pp. 174, 175.

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does not vanish all of a sudden, due to its intimate relation with the system of execution on the spot, and the establishment of that system, just as Hidemitsu Suzuki says, is closely related with Lin Zexu’s “Interrogation and Execution On the Spot of Yixi Criminals Arrested” written in the 28th year of Daoguang’s reign.9 Lin Zexu listed the difficulties in the delivery and trials of criminals, including monetary costs, and the procrastination due to reversals of verdict, escapes and rescue of prisoners by breaking into a jail, and so on. He thinks that the departs responsible for the arrest of criminals are always alert in detaining criminals, but if one wants officials to capture criminals with their best performance, officials should first be free from too much trouble, Lin Zexu suggested that for the captured, if there are ill and injured criminals, or those easy to escape to avoid death penalty, or those with too many adherents, or too powerful for protection on the way of delivery, permission should be awarded to the delivery of them to nearby circuits or prefecture for clear investigations and trials, and then send report to the surveillance commissioner, the governors-general and governors, to check if the punishment and crime are commensurate, the governor will consult the army leader stationed at the site to wait for the emperor’s command of execution on the spot, and the criminals captured can not be rescued or stolen on a distance journey of delivery, and the execution of the criminal at the place of his crime may help redress the injustice of the victims’ relatives, and frighten bad people by the punishment. Daoguang sent Lin Zexu’s advice to the Board of Punishment for further discussions. In the reply from the Board of Punishment, it is said that “the Yixi region of Yunnan province is a remote border area, later except the ordinary murder and theft cases which should follow the traditional routine, if a bandit criminal has many adherents, it is permitted that the criminal is sent under escort to the responsible circuit or prefecture, after interrogations and trials reported to the surveillance commissioner and approved by the governor, the criminal shall be executed on the spot, to warn bad people. … the military appeasement is not completed yet, the remaining bandits shall be severely punished, so the permission time is 5 years, after its expiration, governors-general and governors are still responsible for personal interrogations and trials and reports as the conventional routine, to show limitation and uniformity.”10 Lin Zexu was again an important official after his garrisoning of frontier in Xinjiang. Due to his older age and the sufferings in his rough career as an official, when he became governor of Yunnan and Guizhou, he did not show anything like the powerful momentum when he “destroyed opium at Humen”. In the investigation of the capital appeal case of Du Xiuwen, he was afraid of being seen as a favor of Hui nationality if Han people were punished, and vice versa, a subtle carelessness might be a disaster, so he was very careful and wanted to have suspects and witnesses to the provincial capital for interrogations, but when Shen Zhenda led Han people at Qishao of Baoshan county to fight against the government and rescued the prisoners, 9

Lin Zexu. “Bandits Convicted Should be Executed on the Spot”, in Shao (1980), Vol. 43, neizhengbu 17, xinglv, in Modern Chinese Historical Materials Series, Book 72, 711–720, p. 1705. 10 Veritable Records of Daoguang (1960–1970), Vol. 459, the ninth lunar month of the 28th year of Daoguang’s reign, p. 7979.

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he had to move forces to crack down, as stated in the report above that “bandits have many supporters ready to rescue the prisoners”. The costly delivery of prisoners’ and low officials’ fear toward cases of robbery, as stated in Lin Zexu’s report, is almost an open secret for the government and society. The Qing dynasty adopted a level-by-level case trial and transfer system, but local governments’ lack of budgets made the operation of the system difficult and slow. In the Qing dynasty, delivery was classified into 3 types, namely, delivery for trials to confirm the case, delivery for checks upon fall trials, and delivery for exile as penal servitude. According to the Qing system, prefectures and counties sent criminals to superior governments, one criminal needed two escorts, the expenditure was high for this, for example, the food, medicine, candles and torches, office expenditures and travel tickets at prisons of the surveillance comission, the costs were not allotted by superior government but raised by the prefecture and counties. Especially after the reign of Yongzheng, due to the return of meltage fees to the public coffer (耗 耗羡归公), government costs were taken into the public purse, prefectures and counties did not have independent financial means, and the fiscal principle of the Qing dynasty was seen by Iwai Shigeki, a Japanese scholar, as a “fixed original amount principle”11 without considering economic growth and inflation. With time passes by, prices increase, everything becomes expensive, while salaries and subsidies for all officials and workers remain fixed at the original amounts, prefectures and counties lack money to cover their expenditures in duties. The immensity of the territory of the Qing Empire increases the cost of rule to a large degree unimaginable to modern people. The Qing rulers invested too much in the daks and toll gates to improve the smooth and efficient distribution of information; we can say they exerted their best to keep the empire a body that breathes smoothly and reacts well. Beyond that, in the immense space of the empire, each province has the size of a mid-sized European country, and the delivery of criminals costs far more than a small amount for the delivery of official documents. This flow of people is a key to many problems for the Qing dynasty in the fields of society, politics and law. Due to this lack of administrative resources, local prefectures and counties were capable of paying for short deliveries to save money, and since they did not have money for delivery of criminals to the provincial capital, and money was lost if they wanted to deal with cases, so they usually just have documentary communications, and they even wanted murder cases to be mediated privately by the people involved, they wanted people to report robbery cases in the name of theft cases, incests were not tried even, thus the lower officials were afraid of robbery cases due to lack of money for delivery of felony prisoners, as stated by Lin Zexu. In the 1st year of Guangxu’s reign, Shen Baozhen, a son-in-law of Lin Zexu, expressed the same situation and viewpoint in Jiangsu.12 To solve the financial problem, Qing governments at all levels firmed up the discipline and tried to solve it in system. The first solution is that governors-general and 11

See Iwai (2004), pp. 80–117. Shen Baozhen. “Capture Gelaohui Bandits”, in Ge (1972), Vol. 83, bingzheng 22, jiaofei 2, in Modern Chinese Historical Materials Series, Book 75, 741, pp. 2134, 2135.

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governors should force prefectures and counties to deposit money for future deliveries of criminals.13 The second solution is that if the robbery case was serious, the central government should make governors general and governors raise expenditures. During the 9th year of Daoguang’s reign, the emperor said, “I heard that the coastal areas of Fujian, Guangdong, Jiangsu and Zhejiang, although there are not big pirate ships, piracy is still existent. Local officials are not directly avoiding the capture of the pirates, but usually since there is no money for that, so they belittle the cases and not serious in dealing with such cases. If this is true, how can one give up food for fear of a slight risk? The punishment of bad people and the peace of law-abiding people is the duty of local magistrates. The governors-general and governors shall prepare the budget for the capture of pirates and the operations”.14 In his decrees, Daoguang demanded these governors-general and governors to obtain funds from departments with such budget for arrests without raising the money themselves, other matters should be negotiated as a regulation to add outlays accordingly. However, provincial governors-general and governors’ strategies in response were also futile and ingenious. Two months after receiving the decree, Sun Erzhun, the governor of Fujian and Zhejiang, made a reply in his memo to the throne that foreign pirates captured in Fujian needed no more funds for delivery.15 Daoguang had no sure information about the actual situation and just made a serious but superficial warning without follow-up commands. To my knowledge, there is only a historical record below: in the 17th year of Daoguang’s reign, upon a request made by Governor-general Zhong Xiang, he allotted the incremental salt money of Fujian province at the amount of 20,000 lians of silver, as the outlay for the capture and arrest of pirates at Zhangzhou and Quanzhou.16 This seemed an effort to offset the gap for legal funds when Fujian had an increasingly serious situation of robbery and piracy cases. The third solution was that proposed by Chen Tan, a palace steward (给 给事中), that is, the confiscated official salaries from prefectures and counties were to serve as funds for dealing with cases.17 Chen Tan’s approach to using fines as outlays was strange and unreasonable, and the feasibility was doubtful. Officials’ salaries were still money taken from the common people, the confiscated salaries were just the same, moreover, officials could not serve their duties without an empty belly, and after salaries were confiscated they would exact their accommodations from the people. The fourth solution is the “execution on the spot” proposed by Lin Zexu. The delivery expenditure issue was also a reason 13

Fujian Provincial Regulations (1987), xingzhengli (2), “criminals of counties should be delivered under escort of formally registered bailiffs, the provisions and travel costs should be provided in full amounts”, Taiwan Literature and Historical Materials Series, Book 7, pp. 935, 936. 14 Veritable Records of Daoguang (1960–1970), Vol. 150, Janurary of the 9th year of Daoguang’s reign, p. 2705. 15 Veritable Records of Daoguang (1960–1970), Vol. 154, March of the 9th year of Daoguang’s reign, p. 2775. 16 Veritable Records of Daoguang (1960–1970), Vol. 295, March of the 17th year of Daoguang’s reign, p. 5279. 17 Chen Tan. “Proposal for Alloting Official Salary Fines to Delivery of Criminals”, in Sheng (1972), Vol. 102, xingbu 5, xingzheng, zhiyuzhong, in: Modern Chinese Historical Materials Series, Book 85, 831–849, pp. 4694, 4695.

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for many governors-general and governors to request the preservation of “execution on the spot” after crackdown on the Taiping Rebellion. In the fifth lunar month of the 24th year of Jiaqing’s reign, censor Jiang Yunkuan made four methods for capturing secret societies and bandits: “the Tiandihui in Guangdong province has been a harm of local communities, the capture of them are not exhaustive, recently the society expanded to Yongzhou of Hunan province, in the names of Danzihui and Qingyihui. Since they have many followers, they committed robberies blatantly; they should be captured and punished seriously. The censor stated the four methods of capturing such people, which are all significant. Secret societies and bandits overwhelm local communities. … while it is true that the burden of delivery expenditure is heavy. For every such case settled, there are more than a hundred criminals or at least several dozens of them. If they are sent under escorts, the accommodations fees on the journey is a large amount wasted. Since prefecture and county officials do not have budgets for that, they want to belittle the cases, appease the accuser without punishing criminals, or even accuse the accuser as bringing a false charge. Therefore, church bandits become more fearless; if the problem is to be eliminated, alternative methods should be considered. For prime criminals, they still shall be delivered by prefectural or county under escorts to the provincial capital for trials and punishments, while other criminals shall all be escorted to other places, or punished by the prefecture and county, and the escorted deliveries shall be stopped to save money.”18 In this reform, although “execution on the spot” was not proposed directly, the approach was quite close to that. Modern scholars criticized Lin Zexu and Zeng Guofan for their school of thought in administering affairs due to their color of mercilessness. For example, Song Shu was honored by Tan Citong as a “teacher of emperors 后王 师”, and his masterpiece is Humble Remarks of Liuzike Studio, which was listed in Liang Qichao’s Western Studies Bibliography. Yu Yue praised it as “the descendant of Qianfulun 潜夫论 and Changyan 昌言”.19 In this book, Song Shu pointed out that “someone asked, what about the administration of Fujian people like Lan Dingyuan, Lin Zexu, Shen Baozhen? I answered, ‘all big merciless officials, who are Confucian on the surface but Legalists at the hidden core. They know nothing about the administering method of Confucius and Mencius!’” In addition, Song Shu directed his attack against Zeng Guofan, he criticized that “he appears as an elegant gentleman but actually a merciless official.”20 Song Shu’s view can be used to interpret Lin Zexu’s characteristic psychological reasons for his proposal of “execution on the spot” to solve the fund problem. Zeng Guofan, in his Ten Articles for the Settlement of Lawsuits in Zhili, followed Lin Zexu’s approach when he directly pointed out that “after the capture, there are two methods: if the stolen goods are not expensive and the harm is slight, the criminals shall still be delivered and interrogated as a routine; if the stolen goods are expensive and the harm is great, after requesting a confirmation from the governor, the criminal shall be punished by military law. The prime 18

Veritable Records of Jiaqing (1960–1970), Vol. 358, the fifth lunar month of the 24th year of Jiaqing’s reign, pp. 5254, 5255. 19 Song (2002), p. 13. 20 Song (1993), p. 61.

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criminals tried by the governor shall be delivered to the provincial government first, if the investigations and the trials are clear, the military law is applied immediately, the big robber shall be beheaded and put before public, and the remaining robbers must be frightened.”21 Till the end of Qing, this approach of “execution on the spot” to relieve local governments of the delivery expenditure was popular, for example, Sheng Baozhen said that “for the prefectures and counties distant from the provincial capital, if there are robbery cases, after the verdicts are confirmed and approved by the governor, and checked by the superior prefecture magistrates as true, the criminals are “executed on the spot, to warn the people and the county magistrates won’t waste much money”.22 Huang Renyu sees the fact that the traditional political system could not be mathematically manageable is pivotal for the divergent historical development of Chinese history and Western history. As Huang Renyu points out, morality is the highest power of the world and the ultimate link of truth. Once morality is the criterion, there is no room for further discussion and reasoning. The case shall end here, so Huang Renyu believes that if historians only make moral criticism, the interpretation of history is still not accomplished, and further studies on the structural organization and the functions of the state shall be pursued. As Huang Renyu says, for a large empire, Qing must face a problem of large numbers; when the technology does not evolve, they must make it without precision, trivial matters are left out, without quality in administration. The delivery expenditures in the Qing legal system are a resource-restricted problem unsolvable under a rigid fiscal system, the contradiction of which cannot be solved once for all solely by disciplining, just like taming of a 9-headed snake in Greek mythology, only rule changes may get rid of the “prisoners’ dilemma”. At the core of the solution is the balance of costs and returns. Scholars in the field of fiscal history usually consider the early years of Xianfeng’s reign to be the pivotal point for the transformation of the fiscal system of the Qing dynasty because the implementation of the likin 厘金 system offers room for local fiscal operations. The fiscal system and the contemporary changes in the legal system were closely related. One solution to the lack of delivery expenditures is the adoption of “execution on the spot”, and the other solution is the raising of money through various temporary taxations. Large-scale bloodshedding events such as that of the Dongxiang case also reflect the complexity in solving the insufficiency of legal resources. The government has little room to alternate between the “execution on the spot” and temporary taxations. Common people are fixed in-between, such as falling into Avici hell or between damon and pythias, so it is no surprise that Zhang Yanghao writes pitifully in Shanpoyang: Tongguan Meditations on the Past that “in times of prosperity, common people suffer; in times of decline, common people suffer just the same.”23 21

Zeng Guofan. “Ten Articles for the Settlement of Lawsuits in Zhili”, in: Zeng Guofan (1986), 14, poems and articles, p. 449. 22 Shen Baozhen. “Capture Gelaohui Bandits”, in Ge (1972), Vol. 83, bingzheng 22, jiaofei 2, in Modern Chinese Historical Materials Series, Book 75, 741, p. 2135. 23 See Xu (2007).

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5.2 Implementation of “Execution on the Spot” Shuzo Shiga, Zhang Weiren, Toshihito Tanii and Li Guilian pioneered the research in this field, which mainly focuses on the relation between the central government and local governments in the subject of “execution on the spot”. However, the actual implementation of “execution on the spot” in various provinces has not been investigated, and this research cannot be accomplished by mere scrutiny and review of paper documents and provisions. “Paper law” and “actual law” must be combined, and the transformation rule between them should be examined. Here, I follow the approach of Hidemitsu Suzuki and further provide closer and deeper insight. Li Guilian checked the record in Manuscript of Qing History and discovered an emperor’s decree issued on the 13th day of the 3rd lunar month in the 3rd year of Xiangfeng’s reign in a manuscript entitled “Memos to the Throne of the Board of Punishment” kept in Beijing University Library. Thus, he takes this decree as the starting time of “execution on the spot” system.24 This decree was also seen in Veritable Records of Xianfeng vol. 88. In this decree, the so-called “according to the previous memos of Sichang and Fujian on the crackdown of bandits” refers to two decrees in the second lunar month of the 3rd year of Xiangfeng’s reign. One decree concerns the crackdown of bandits in the memo presented by Yu Rui, the governor of Sichuang. The decree says that in recent years, Sichuang has been cracking down on bandits, and there are many cases adopting “execution on the spot”. Now that the militia are being trained, the criminals shall be punished severely to warn bad people. I hereby order the governor to command subordinates to capture and punish criminals carefully. If there are spies and bandits, after capturing them, they shall be executed on the spot to show deterrence. Local magistrates who spoil and hide bandits or kill good people to deceive shall be reported and punished strictly.25 The other decree is about the memo presented by Yi Liang, the Fuzhou General, concerning the crackdown of bandits in Fujian province. The decree says that “in Sichuan the crackdown of bandits has many cases of “execution on the spot”. Fujian province is covered with mountains and seas, bandits are apt to arise, you can follow the example to deter the bad people.”26 The decree issued on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign mentions “Chen Jinshou’s dispatch of Guangdong village braves 乡勇”, which refers to the memo made by Chen Jinshou, the provincial military commander of Zhili 直隶提督, in the second lunar month of that year on harassment of community at Huangmei, Hubei by village braves, Xianfeng suspected the harassment was conducted by Guangdong village braves dispatched by Xiang Rong at Jiujiang, so he ordered Qishan as imperial commissioner to capture the village braves, and execute them on the spot braves, dispatched by Xiang Rong 24

Manuscripts kept at Beijing University Library, the decree as preface to Xingbuzouan, in Li (2000), p. 161. 25 Veritable Records of Xianfeng (1960–1970), Vol. 86, the second lunar month of the 3rd year of Xianfeng’s reign, p. 1197. 26 Veritable Records of Xianfeng (1960–1970), Vol. 86, the second lunar month of the 3rd year of Xianfeng’s reign, p. 1202.

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village braves, so he ordered people such ordered local rates might happen to asse the village braves, so he ordered when people such that they might also ordered them. This decree is also seen in Vol. 85 of Veritable Records of Xianfeng. From the above, we can see that the decree on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign is a summary of the decrees on “execution on the spot” issued in the second lunar month of that year. The execution on the spot approach temporarily adopted in Sichuan, Fujian, Guangdong after the Taiping Rebellion is herein recognized and extended. Li Guilian believes that this decree is different in that first, it is a military term, “now that we are cracking down on bandits” is a clear statement. Second, it is aimed at stabilizing the social order and preventing harassment of “bandits”, while it is not about military war-fields, where military law rules. Third, the extent is expanded from the three provinces to all other provinces. Fourth, the authorized purview is extended from governors-general and governors to local magistrates at all levels. Based on the 4 points above, Li Guilian concluded that execution on the spot as a system started on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign due to the decree. However, in Guangxu’s reign there was a debate on the abolition of execution on the spot, Ding Baozhen, the governor of Sichuan said that “execution on the spot is used to keep peace, not wholly out of a need for severe punishments in times of military actions”,27 and for the viewpoints of Shuzo Shiga, Zhang Weiren, Qiu Yuanxian and my analysis above, it is obvious that execution on the spot had been popular in Daoguang’s reign, the two viewpoints seem in direct opposition. According to genealogy, the origin is neither noble nor rare, nor the place where truth is. In retrieving the origin and the evolutionary course, we should not embrace the traditional fixed approach. To try and discover “what already was”, our perspective and mind should be broader. In the depiction of the evolutionary course, we should also focus on details and the accidental features of the origin to reach a more objective conclusion. The decree on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign has an aim because bandits “robs and harasses people. If they are not punished severely, how can local communities be safe?”, he also gave the killing of the organized bandits by village braves and local people the same legal consequence with the execution on the spot by local magistrates in adjunction, the focus is on the crackdown of harassments. Thus, the aim of the execution on the spot in this decree is different from that aim of solving the delivery fee problem late in Daoguang’s reign; the two aims are not directly inherited. In this decree, the application condition for execution on the spot is not concrete but is generally expressed as “if bandits are organized and commit blatant robbery”. In addition, the clause “after local magistrates capture them and interrogations are clear, they are executed on the spot” shows that on the discretion of execution on the spot, local magistrates’ interrogation is important. Since there are no specifications on the

27

Shen Newspaper, the 4th day of the third lunar month in the 8th year of Guangxu’s reign (April 21, 1882), Book 20, p. 495.

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concrete proceedings of execution on the spot, this means that room of jurisdictional power is given to local magistrates.28 To make the narration easier, I divide the implementation of execution on the spot into the stages shown below since the 3rd year of Xianfeng’s reign until the end of Qing in various provinces.

5.2.1 From the 3rd Year of Xianfeng to the 2nd Year of Tongzhi’s Reign This period witnessed the prime time for the war between the Qing government and Taiping combatants. During the early years of Xianfeng’s reign, Taipingtianguo started uprising in Guangxi; they won battles and were invincible. Taipingtianguo uprisings and Bailianjiao uprisings are different in that the latter did not have a clear stance, Qing rulers saw them as “vagrant thieves 流贼” who would rob for one day and escape for another, without their own base area, but the former had their own political, military, economic propositions, in opposition to Qing government, Taipingtianguo was rather an enemy country, in Qing rulers’ eyes they were “thieves that usurp the reigning title 窃号之贼”. What was most threatening to the Qing government was that common people “followed like friends” to Taipingtianguo uprisings wherever they arrived, and Hu Linyi, the governor of Hubei, exclaimed that “bad people” usually “are good citizens when our army arrives, while followers of the enemy troops when they arrive”,29 and after the Taiping Rebellion, many anti-governmental uprisings and insurrections came in waves, many cities were encircled, many people refused to pay taxes, and many officials were killed. From etymology, “Destroying law is guilt of riot, and stealing property is guilt of theft (毁则为贼, 窃贿为盗).”30 Zei (enemy) are mainly traitors, murders and injurers; hui, refers properties, therefore the act of taking properties and money is called “dao” (thieves). Later, the meaning of zei gradually turns into property-harming crimes, but the original meaning does not vanish all at once. During the reigns of Jiaqing and Daoguang, Liu Heng, in the Prefectural and County Magistrates’ Guide, pointed out that “the law has it that those who pluck fruits without permission cannot be called zei. This is a usual happening in neighborhoods, and it is pardonable, and the punishments should be slight”.31 Wang Youhuai, in his book Essentials for Handling Cases pointed out the pragmatic difference of dao and zei in Qing dynasty: “according to law taking things publicly or secretly are all dao, so dao is a general term including robbery and stealing, but in everyday language robbers and thieves are separate terms, in dealing with cases, everyday language is followed, and documents concerning stealing cases do not use 28

Suzuki (2004). Shen and Zhu (1936), zouyi 14, p. 144. Wang (1988), Vol. 2, p. 72. 30 Zuozhuan,·the 18th year of Wengong, in Guan (2007), 2, p. 157. 31 Liu (1851–1861), “Reasons that the self-arrests by people themselves are better than captures by bailiffs, and false charges should be prohibitted.”, p. 68. 29

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the word dao, lest stealing can be confused as robbery”.32 All peasant uprisings in Chinese history were slandered by rulers as zei (rebels) or fei (gangsters), kou (bandits) or dao (robber), Taipingtianguo was no exception, and the uprisings were called “yuefei 粤匪” and “nianfei 捻匪”. Therefore, in the decree on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign, in the official document concerning “execution on the spot”, the term “feidao” probably refers to the peasant uprising across the country at that time. Xianfeng instinctively used killing policies when facing the chaotic situation, and since he was young and hot-tempered, he relied on hawkish officials such as Su Song. During his reign, the policies tended to be increasingly stringent. From historical records, I find that after successful captures of cities, Taiping combatants usually freed prisoners, who were victims of the governmental violent machine, and tended to vent their anger at Qing government after being released by Taiping combatants, therefore Qing government tend to kill felony prisoners on the spot in prisons near the forces of Taiping army due to shortage in administrative resources, in order to prevent the spread of “fei luan 匪乱” (bandits’ chaos). This massive slaughter actually meant the rulers’ incompetence to face the situation and they had to kill prisoners. In the eleventh lunar month of the 3rd year of Xianfeng’s reign, Xianfeng issued a decree upon the report from Yi Xing, the general of Shengjing, on the dealing with robbers, the decree confessed that “later when in the province there are criminals unpardonable, execution on the spot shall be used, maybe the people will be frightened in this way. I am not predisposed to severe punishments, but out of the bad order of the time, I have to make this choice. If bad people are not strictly eliminated, good people cannot feel safe”.33 In the twelfth lunar month of that year, He Shaoji, the Sichuan provincial education commissioner reported to the emperor about Yu Rui, the governor-general of Sichuan, had drawbacks in the implementation of execution on the spot, he said that “in the sixth lunar month, the governor again ordered that the bandits previously captured by subordinate officials can be executed on the spot only if the prime criminals are more than 10 in number, and most of whom are unpardonable criminals, which does comply with former regulation issued. Strict applications and merciful applications can be very different. I am afraid that local magistrates thus have excuses to deceive and neglect the case. When bandits know this news, they will be more blatant. Now the civil defense is in a tight time, it is hard to prevent spies from within, how can the punishment be strict or slight based on the number of bandits? If local magistrates always excuse by the large sum of delivery and investigation fees and deceive the actual situation, who should be responsible for the trouble caused later?”34 Xianfeng thought Yu Rui was too lenient in dealing with local affairs; to hesitant in taking actions, he demanded Yu Rui to strictly carry out the regulation of execution on the spot. The northern expedition of Taiping combatants 32

Wang (1997), p. 762. Veritable Records of Xianfeng (1960–1970), Vol. 113, the eleventh lunar month of the 3rd year of Xianfeng’s reign, pp. 1866, 1867. 34 Veritable Records of Xianfeng (1960–1970), Vol. 115, the twelfth lunar month of the 3rd year of Xianfeng’s reign, p. 1915. 33

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fought bravely, but since they fought in a distant area without good logistics, their situation was worse when encircled and attacked by Qing army. In the fifth lunar month of the 4th year of Xianfeng’s reign, Chang Zeng, the governor-general of the east grand canal 河东河道总督, reported that “the bandits invaded north, and they colluded with local bandits and took away many good people. After our suppression with army, the remaining bandits were dispersed. Except those old rebels who are unpardonable, and be punished immediately, other people taken along the way by bandits shall be checked and interrogated before making different punishments. … I suggest the governors-general and governors to negotiate a charter for officials to follow.”35 However, Xianfeng thought otherwise in his reply, he said that “your suggestion is too stubbornly stuck to tradition, now we have a criminal captured at Hekou, he is tried and is truly a leader in the bandits, he should be executed on the spot, and his head should be shown to the public. If he was treated as a normal felony criminal and delivered to Kaifeng and on the way he might be rescued or escape, this would be a mistake by stubbornly sticking to law. Later, when such criminals are captured, trials and punishments should be done immediately, and no delivery is needed. Other criminals may have committed serious or slight crimes, so it is difficult to draw a standard charter for this.”36 During this period, the emperor’s decrees have no clear stipulations on the concrete proceedings of execution on the spot, and his viewpoint concerning execution on the spot tends to be strict. For the implementation of execution on the spot in various provinces, he warns officials not to be merciful at all. For this reason, Zeng Guofan taught subordinates that in execution on the spot of the followers of Taipingtianguo, “should be killed as weeds, to make people afraid us more than the bandits”.37 During this period, the system execution on the spot has another feature in that the criminals are not classified into prime criminals and accessory criminals. In other words, the execution on the spot in the proceeding law and “nondistinction of prime and accessary criminals” in substantial law are intimately related. This is the reason that during Dongzhi and Guangxu’s reign, there was a debate concerning the abolition of execution on the spot, when Sun Yejing, a director of studies at directorate of education, and Hu Longxun, a censor, advocated the recovery of “the distinction of prime criminals and accessory criminals”, which is a tradition. Sun Yejing and Hu Longxun mentioned the “nondistinction of prime and accessory criminals”, which is a new regulation for strict punishment of robbery cases stipulated in the second lunar month of the 5th year of Xianfeng’s reign. This new regulation was established in the spirit that legislation should cater to the need of the time, based on the fact that after the nondistinction of prime and accessory criminals made in Kangxi and Yongzheng’s reign was modified during Qianlong’s reign, local magistrates were not good at applying it, in every case, the criminals keeping watch or keeping the things stolen were much larger in number than people who did the actual crime of 35

Veritable Records of Xianfeng (1960–1970), Vol. 129, the fifth lunar month of the 4th year of Xianfeng’s reign, p. 2248. 36 Ibid. 37 Zeng (1990), letters, 1, p. 541. See also Luo (1984), p. 54.

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burglary, even the criminals who fell ill and dead in the escape were recognized as unpardonable by law, and the criminals captured were pardonable, and so bad people escaped punishments and they did more crimes, therefore it stipulated that: later when there are robbery cases, “if the robbery is committed, all the criminals getting shares in the stolen things should be beheaded, without distinction of prime and accessory criminals who do not share the watch-keep and keep accompanying things should be beheaded as the criminals. For example, the only exception to this provision is the people under 15 years of age who are seduced in thefts and therefore pardonable. Moreover, the new regulation also specifies that for felonies such as group armed robberies, significant violence of many people, regardless of whether committed day or night, all criminals, including prime criminals and accessory criminals, should be beheaded.38 Tang Rensen, a censor at that time, even asked for execution on the spot with no other admittance, prefectural and county magistrates should be allowed to do it at their convenience, but the supreme Qing rulers thought this was not prudent in punishments, and the proposal was not accepted. During the early years of Xianfeng’s reign, since Taiping Army captured the middle and lower reaches of the Yangtze River, the capitation, taxes on salt, customs, and miscellaneous taxes could not be collected regularly, so that “land taxes and capitation are usually not collected in full sum, the taxation are just fictional”.39 Qing government was short of money in times of military actions, the financial need was urgent, long-term budget items were sacrificed to the urgent needs, future incomes were taken in advance, in the beginning official positions were sold for soldiers’ pay and provisions, but 3 years after the encouragement of donations, the income was less than before, and this approach was no longer reliable. In addition the subsidies to officials were cut, the development of silver mines, pawn principals were raised, store rents were collected, dozens of ways were used to cover the gap in deficit, every meager means were tried and exacted, but the military budget could not be met, so in addition to likin system, large-denomination coins and “da qing bao chao”(a check that cannot be converted into cash) to overcome the impending difficulty with the stringent ways of robbers. Karl Marx, in his Manuscript on Economics 1857–1858, says that “if paper money is named in gold and silver, that means it can be exchanged into the amount of gold and silver denominated, whether it can be cased in law or not. If paper money is not like this, it will depreciate.40 ” In Capital, Marx mentions over 680 people around the world, among whom the only Chinese is Wang Maoyin, the vice minister of the Board of Revenue and Population in Xiangfeng’s reign. Wang Maoyin was against the big denomination money (one coin for 100 coins, 500 coins and 1000 coins, he pointed out that “the biggest trouble is private coiners … if cunning people make two big coins with 4 lians of copper, which is equivalent of 1 lian of official silver, the state will lose much money. Traditionally, 1000 coins are 120 lians in weight, when melt it is 60 lians, if the amount is used to make coins acting for 1000 38

Veritable Records of Xianfeng (1960–1970), Vol. 159, the second lunar month of the 5th year of Xianfeng’s reign, p. 2718. 39 Wu Zhaoxin et al. (1994), Book 2, p. 420. 40 Marx and Engels (1998), Vol. 31, p. 300.

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coins, money worthy of 30,000 coins are made.”41 According to this, melting 1000 regular coins can be made into 30 coins, one of which worth 1000 coins, the total money in use is 30,000 coins, such a high profit made private coiners wild. Since the issue of big-denomination coins, since they are “less in weight, more in value, more profit”,42 “in less than a year, private coin-making is exuberant. At Zhangjiagang, Changxidian or within Xishan area of Tongzhou, private coiners are making their coins”,43 they were even “so daring that they established furnace in the marketplace during day time. Local magistrates were afraid that the coiners were large in number, so they were not captured”,44 in the capital “the price of bellows, sand jars used by furnacemen went up quickly”.45 At that time, not only did common people take the risks of making coins privately, many local magistrates also engage in making coins. In the fall of the 5th year of Xianfeng’s reign (1855), Huang Junzai passed Qingjiang, he heard a carriage coming; he saw the goods on it were coins. He asked: what is your business? The owner answered: making coins. He asked: why you make coins with coins? The businessman answered the following question: public money is not enough, the government cannot obtain enough funds, traditional coins are melt to make large-denomination coins, one coin for 10 coins, with the costs deducted, and a 40–50% profit can be attained. During the winter of the same year, Huang passed Qingjiang again, he met a carriage coming, and he saw big-denomination coins in it. Huang asked: what is your business? The owner answered: coin-making. Huang asked: why make coins again with big-denomination coins? The owner answered that large-denomination coins could not circulate; when taxpayers buy them, the face value of 10 coins was just 1 or 2 coins. Now, the owner melts the large-denomination coins into traditional coins and makes them less weight. By adding lead sand, after deducting the costs, 1 large-denomination coin can be made into 3 or 4 traditional coins.46 Since “privately made coins were mixed, bad businessmen had a monopoly, the one-for-ten iron coins gradually moved out of circulation, common people just took this opportunity and everyday 100–200 coins were used, but nowhere to buy food with them. Food stores were mostly closed, poor people made troubles for this and some committed suicide in extreme cases”.47 On the one hand, people claimed publicly in the marketplace that “new Xianfeng (i.e., big-denomination Xianfeng coins newly made) are not acceptable”,48 the prices of things rocketed, “there was a heated debate against the use of big-denomination coins. While privately made small 41

Wang (1991), p. 99. The Editing Team of Historical Materials of Finance at the Office of Consultants, Chinese People’s Bank (1964), Compilation 1, Book 1, p. 264. 43 Zhou et al. (1987), Vol. 59, jingzhengzhi 6, qianfa, p. 2093. 44 The Editing Team of Historical Materials of Finance at the Office of Consultants, Chinese People’s Bank (1964), Compilation 1, Book 1, p. 307. 45 The Editing Team of Historical Materials of Finance at the Office of Consultants, Chinese People’s Bank (1964), Compilation 1, Book 1, p. 264. 46 Huang (1895), Vol. 2, “daqian”, p. 1. 47 The Editing Team of Historical Materials of Finance At the Office of Consultants, Chinese People’s Bank (1964), Compilation 1, Book 1, p. 279. 48 Ke (1959), p. 24. 42

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coins, nicknamed “ducks on water”, now became the currency, more acceptable than the state-made coins”.49 Some scholars think that the coin system during Xianfeng’s period was far more chaotic than that during Wang Mang’s reign in the Han dynasty; its baneful influence was widespread and more serious than the likin (internal tax on the transit of goods). A regulation was made in the 7th year of Xianfeng’s reign that if private coiners were captured, “they shall be beheaded on the spot after trials without distinction of prime criminals and accessory criminals to deter the bad people from this business”.50 The money law of Xianfeng’s government is just the protection of the interests of the government itself, rather than the interests and life of the people, overissuing coins without limitation is just like drinking poison to quench thirst, the inevitable result is that both the government and the people are harmed and troubled. The harsh punishments themselves are an indication of the prevalence of private coin-making business. Once there is a profit, people will go for it, private coiners risk lives for the profit, this proves the truth in Thomas Dunning’s famous remarks cited by Karl Marx in Capital below: “With adequate profit, capital is very bold. A certain 10% will ensure its employment anywhere; 20% certain will produce eagerness; 50%, positive audacity; 100% will make it ready to trample on all human laws; 300%, and there is not a crime at which it will scruple, nor a risk it will not run, even to the chance of its owner being hanged.”51 There is an old saying that “nobody will do businesses that lose money, somebody will do business that lose his head.” The key is the balance of costs and returns. Since prime criminals and accessory criminals were not distinguished in punishments for private coiners, they were all executed on the spot. During Xianfeng’s reign, in Zhili, some families were even all beheaded, and their heads were shown in public. The ruthlessness in the execution on the spot without distinction of prime criminals and accessory criminals and the interaction of legal rules and social resources can be seen in this case. The frequent provisions of execution on the spot without distinction of prime and accessory criminals show a trend of a sharp increase in heavy punishments. For example, in the sixth lunar month of the 7th year of Xianfeng’s reign, Tian Tingxiang reported to the emperor that local bad peddlers abounded and requested a harsh punishment to cope with the situation. The emperor’s decree instructed that “Tianjin and Hejian of Zhili are adjacent to Shandong, there used to be many bad salt smugglers, one group may have hundreds of people. When they are stopped by commercial inspectors, they defend against being arrested and rob things, they are too bold. When soldiers go to capture them, some of them are captured, but others escape. If severe punishments are not used, how can violent people be contained and how can local people get peace? In the future, in these regions and adjacent places of Shandong, commerce patrolmen will be allowed to use rifles when they cooperate with soldiers in the capture of bandits. If there are a large group of bad peddlers who 49

The Editing Team of Historical Materials of Finance at the Office of Consultants, Chinese People’s Bank (1964), Compilation 1, Book 1, p. 271. 50 Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 823, xingbu, xinglvzhawei, sizhutongqian 2, p. 15,403. 51 Dunning (1860), p. 35–36.

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refuse to be arrested, they should be killed on the spot without further admittance. In their routine suppression of smuggling, conventional procedures should be followed. Regarding the capture of bad peddlers by local magistrates, if there are large groups of smugglers, up to dozens or hundreds of people, and committed bad robbery, then they should be punished as bandits, who should be killed on the spot after trials. For normal thefts of salt plants rather than smuggling in large groups, the conventional measures should be adopted to show the difference.”52 In the fifth lunar month of the 9th year of Xianfeng’s reign, the emperor knowing that there had been horse robbers in Rehe, he granted that “in the future, in Rehe, if thieves and robbers refuse to be captured by weapons, they should be killed on the spot without further admittance. If trials show that they are in large groups engaging in robbery, they should be killed on the spot before showing their heads to deter bad people. The common thieves shall still be punished by conventional regulations.”53 The decree issued on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign was quite surprising and confusing in saying that militia and civilians might kill bandits without investigations, and local magistrates might also conduct execution on the spot. In the decree issued in the 7th year of Xianfeng that quoted above on the execution of salt smugglers on the spot in Tianjin and Hejian without distinction of prime and accessory criminals, Xianfeng still emphasized that “the governor shall order all such prefectural and county magistrates to militia, together with soldiers, without a restriction of borders, to cooperate in the capture of outlaws, making those famous smugglers unable to escape from punishments.” We can see that the decree issued on the 13th day of the third lunar month in the 3rd year of Xianfeng on the interpretation of execution on the spot, in terms of methodology a historical interpretation of legislation is necessary to put this decree in the contemporary context of it. In the face, after Taiping Rebellion, the Qing government mobilized all possible ruling resources to cope with the crisis. Almost immediately before issuance of the decree on the implementation of execution on the spot, there was another decree on the large-scale training of militia, so the two measures in quick succession were closely related. Militia played a key role in the suppression of Bailianjiao uprising during Jiaqing’s reign. On the 6th day of the third lunar month in the 3rd year of Xianfeng’s reign, six days before the decree on execution on the spot, Xianfeng made another step in mobilizing the lower local community on the basis of the neighborhood administrative system by issuing the decree of training militia. This is the symbol for large-scale training of militia across the nation. Militia can be divided into two types: official civil corp “trained under the decree” and folk militia “organized to protect local neighborhoods”. In the eyes of Qing rulers, if “the militia are well-trained, each individual and each family defend themselves, so bandits will be isolated day by day and when they lack food, soldiers will be used to suppress them, and there will be no risks of suppressing some bandits and 52

Veritable Records of Xianfeng (1960–1970), Vol. 230, the sixth lunar month of the 7th year of Xianfeng’s reign, p. 3706. 53 Veritable Records of Xianfeng (1960–1970), Vol. 283, the fifth lunar month of the 9th year of Xianfeng’s reign, p. 4538.

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neglecting others.”54 This is actually the contention with Taipingtianguo for the plebs. Contemporaries had a saying that “one more person in the militia, and one fewer in the bandits”,55 which indicates this intention, even Zeng Guofan agreed that when militia “now killed a leading bandit, when official army comes, there will not be hundreds of people following the bandit, this is truly effective56 ”. However, the government’s trust of Zeng Guofan in the training of militia is similar to the issuance of more currency at will; it is a bad strategy when there is no way out. Militia is a twoedged couteau; they can be used to suppress bandits and uprisers to defend villages, but they are also apt to change sides and attack the government. During the Taiping Rebellion period, many local militia collected rents of land in private and established courts secretly, and local disputes were tried by arbitration and lawsuits were accepted without permission: “power makes them proud, not only that local magistrates are not capable of determining punishments, but even local people only know the power of leaders of militia rather than the command of local magistrates”,57 officials could not try cases and laws were not implemented. There were many “fake militia” denounced by the government as “law-breaking” or “gangster militia” committing illegal things against the government. Qing rulers often called them by the term “militia bandits” in legal documents and directly denounced them as “open as militia, and bandits in secrete”,58 “militia may intrigue with bandits”,59 which indicates that militia were just like big bandits, sometimes they were doing the same thing as the bandits they were to capture. The decree on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign concerning execution on the spot not only transferred the power of capital punishment from the emperor to provincial governors-general and governors but also to prefectural and county magistrates, local gents and militia leaders, the procedure of capital punishment was simplified to the extreme, from the execution on the spot after trials to the killing on the spot without further admittance, there was a fuzzy border between justice and military killing. In the 3rd year of Xianfeng’s reign, Zeng Guofan thought that during this turbulent time, “harsh measures must be adopted to save the people”,60 he requested the emperor to give up conventional laws and adopt execution on the spot for various “bandits”, including religious sect bandits, robbery bandits, ruffians, and guerrillas. For this proposal, Zeng Guofan was scolded in the name of killing innocent people, but he still established shi a ju 审案局 (case trial bureau) and appointed special people for the interrogations and 54

First Historical Archives of China (1995), Book 18, p. 441. Quoted from Song Guiying. “A Study on Shandong Civil Corps in Late Qing”, Zhejiang University doctorate dissertation, 2006, p. 62. 56 Zeng (1994), zougao (1), “Invitation of He Guizhen for training civil corps in border areas between Hubei and Anhui” (the 21st day of the eighth lunar month in the 5th year of Xianfeng’s reign), p. 515. 57 Veritable Records of Tongzhi (1960–1970), Vol. 85, the eleventh lunar month of the 2nd year of Tongzhi’s reign, p. 2241. 58 Wang (1989). 59 Xia (1957), Vol. 56, jishi, p. 13. 60 Li and Li (2003), zougao, Vol. 2, “severe punishment of bandits to pacify local communities”, p. 39. 55

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trials. This was a relatively regular case among all provinces, while other local militia in other provinces took the decree issued on the 13th day of the third lunar month for the execution on the spot as a permission “to kill people legally”, and shocking cruelties were more severe than that. Zou Minghe, the governor of Guangxi, in the tenth lunar month of the 1st year of Xianfeng’s reign, reported that “since the first lunar month, there have been over 1500 bandits killed on the spot after confirming felonies by soldiers and militia, the number does not include those killed in war and those died from wounds.”61 Only in a province such as Guangxi were over 1500 so-called “bandits” executed on the spot, which could not be possible during Yongzheng and Qianlong’s reign. The militia and even Qing army dared “execution on the spot”. For example, in Shandong, during the 11th year of Xianfeng’s reign, Li Jihe, militia in Zhangqiu killed 4 soldiers named Gao Dianyuan, Luo Qingtai, etc. from Jiyang with a hay cutter. In the eighth lunar month of that year, at Sunjiaza in northwestern Zouping, folk militia led by Sun Chuanxiu, etc. organized 2000 people and killed 26 scouts assigned by Senggelinqin, robbed their horses and uniforms and thrown their corpses into Hushanbu Lake.62 Therefore, the authorization of execution on the spot to militia might lead to unjust punishments. However, since there were almost no stipulations to regulate the execution on the spot, the treatments at various places were in a disorder, while for the injustice thus caused, victims could not get judicial help through appeals. In the 3rd year of Tongzhi’s reign (1864), on the eve of the defeat of Taipingtianguo, also 10 years after the implementation of the execution on the spot, Zeng Guofan, in a reply letter, clearly said that when there were many bandits uprose in various provinces during Xianfeng’s reign, “prefectures and counties trained militia to capture bandits, mostly having the decree of ‘killing on the spot without further admittance’, or letter of ‘permission to deal in a military law manner’. If later verdicts are reversed, there will be many troubles; the order will be worse and the political system will be hindered.”63 In this manner, the innocent people killed on the spot as bandits during the bloody period of Xianfeng’s reign will never be exonerated.

5.2.2 From the 2nd Year of Tongzhi to the 8th Year of Guangxu’s Reign Since the start of military suppression in Xianfeng’s reign, the training of militia in provinces had little effect, and possible drawbacks might be evolving from it. In the 6th year of Xianfeng’s reign, the elite in the Qing government had a serious examination of the mistakes in the training of militia. The drawbacks of militia were criticized by contemporary people, and with the completion of the suppression, even 61

First Historical Archives of China (1990), Book 2, p. 441. See Zhang et al. (1970), Vol. 22, Book 2, tuanfei 3, in: Modern Chinese Historical Materials Series, Book 55, 543, p. 1241. 63 Zeng (1994), 13, pidu, p. 388. 62

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formal armies such as Xiangjun and Huaijun faced disarmament; militia was no longer dynamic and was declining. With this, the informal power of execution on the spot enjoyed by militia leaders and gents was deprived; the official power of execution on the spot was no longer trusted to these people. This is the interesting transition of the system of execution on the spot during this period in provinces. In the eleventh lunar month of the 2nd year of Tongzhi’s reign, Mao Hongbin, governor-general of Guangdong and Guangxi, requested the modification of the punishment procedures for felonies like robbery. The emperor ordered that “there are usually several felonies like robbery in Guangdong in a day, but only a few criminals are caught, the criminals caught are usually reported with illness, and soon reported to be dead, the reason is mainly that local magistrates are not strict with the capture or even they fear that felonies are punished too severely, so they want to evade their duties perfunctorily by a traditional measure to let those notorious criminals die in the prison rather than be executed in public … in the future, for the uprisers and robbers captured in distant palces in Guangdong, except in Guangzhou and Fogang under direct subprefectural magistrate, especially the uprisers following Taipingtianguo, fighters against official army, hard-boiled robbers, armed mobs in group, resistants of arrest who injure quick policemen, and criminals deserving capital punishment, after trials by the prefectural and county magistrates, the criminals should be delivered to be reexamined by superior government in charge, after getting the confessions and details, this governor should check the details and issue order for execution on the spot. After military suppression is complete and there are no more uprisers, conventional procedures shall be requested for application. Other ordinary cases of murders or robbery shall stick to the conventional procedures of investigation and delivery according to the former system.”64 There are at least three significant points in the permission of the trial-and-review procedures of execution on the sport in Guangdong province made in the eleventh lunar month of the 2nd year of Tongzhi’s reign: first, this procedure means a negation of the lack of concrete procedures in the decree on execution on the spot on the 13th day of the third lunar month in the 3rd year of Xianfeng’s reign, it is actually a contraction and restriction of the power of decision for execution on the spot, which implies a division of power between provincial governments and local prefectural and county governments and even militia and gents. Second, the procedure is to some degree coming in one continuous line or similar to the trial-and-review procedure and the purview of decision proposed by Lin Zexu in Yunnan during Daoguang’s reign, showing a complex relation with ruptures and inheritance of the legal system. Third, this procedure can almost be deemed a normal example for trial-and-review operations long practiced for execution on the spot during late Qing. Until the 11th year of Guangxu’s reign (1885), Zhang Zhidong’s request for the procedure of execution on the spot in Guangdong also stipulated that “if it is far from the provincial capital, after trials by prefectural and county magistrates, considering the distance, if the circuit intendants and prefect of a superior prefecture (zhifu) work in the same city, the cases shall be reviewed by the regional inspector or prefect of a superior prefecture. If they are not in the same city, the cases 64

Zhu (1958), p. 56.

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shall be reviewed by a nearest circuit intendants or prefect of a superior prefecture. If there are many criminals and journey is distant, circuit intendants and prefect of a superior prefecture shall go there for the review, confessions shall be recorded and reported. After the governor checks and confirms the case, he orders execution on the spot. … For counties under Guangzhou prefecture and the two places of Fogan, Chixi under administration, the criminals are still delivered to the provincial capital after trials and interrogations, after reviews and reports, the surveillance commissioner shall conduct review trials together with Division of Military Affairs (营 营务 处) and other relevant agencies, after a report and check, then order execution on the spot”.65 Comparing the two procedures above, the latter has an exceptional region of Chixiting, but from Veritable Records of Tongzhi vol. 231, we know that Chixi, as a direct administration area, was separated from Xingning County during the 8th year of Tongzhi’s reign. Although the latter has a different application scope for execution on the spot from the former, the stipulations concerning delivery and trials of execution on the spot remain the same, which indicates that the trial-and-review procedure on execution on the spot ratified in the eleventh lunar month of the 2nd year of Tongzhi’s reign for Guangdong Province had been implemented consistently for a long time. The procedure for execution on the spot ratified in the eleventh lunar month of the 2nd year of Tongzhi’s reign for Guangdong is actually only a precursor for regulating the system of execution on the spot. The exacting of power from the militia and gents after the suppression of Taipingtianguo is relatively smooth, as seen in historical documents. However, on the other hand, the restriction of the power endowed for local prefectural and county magistrates during wartime is rather difficult than it seems, largely because of the agency costs. In the 2nd year of Tongzhi’s reign, in Tongzhou, Jiangsu Province, there was a case wherein Sheng Guangda, a religious sect leader, was charged of intriguing uprisors. Since Huang Jinshao, the subprefectural magistrate of Tongzhou perfunctorily beheaded accessory criminals Cai Zhiliang, etc. on the spot before Huang Jinshao, the prime criminal, was captured, therefore, Wu Tang, the governor of Jiangsu, reported the mistake to the emperor, Huang Jinshao was to be punished by the Board of Civil Affairs. After Sheng Guangda, etc. were captured, according to Wu Tang’s request, Huang Jinshao did not wrong the criminals in execution on the spot, and the capture was quick, so the merits and demerits offset, and the punishment previously discussed was exempted.66 This case indicates that although out of other relevant reasons of excuses, provincial governors-general and governors had the measure of impeaching prefectural and county magistrates to restrict the actual power of execution on the spot formed during the war in the later period of the suppression of Taipingtianguo. From the 1st year of Tongzhi’s reign, He Fuxian, the censor, impeached Jiang Maoxun, the deputy county magistrate of 65

Zhang (1982), Vol. 13, “Request for the Drafting of Execution on the Spot Regulation in Robbery Cases”, the twelfth lunar month of the 11th year of Guangxu’s reign, Modern Chinese Historical Materials Series, 452–456, p. 1193. 66 See Veritable Records of Tongzhi (1960–1970), Vol. 78, the ninth lunar month of the 2nd year of Tongzhi’s reign, p. 2056.

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Shuyang in Jiangsu Province for corruption and neglecting people’s lives, the case was investigated carefully, and until the 4th year of Tongzhi’s reign a conclusion was finally reached about the fact below: Xu Dejia, and his wife were criminals helping bandits to loot the local community, and Jiang Maoxun considering “Nian bandits were closing in”, “upon requests made by militia”, executed the criminals on the spot, and the case was not investigated carefully as required. The emperor instructed that “in this case Jiang Maoxun did not investigate carefully before executing Xu Dejia, etc. since they helped bandits. Although the case was not conducted as required, since the Nian bandits were near, he made the decision to weed out the wicked for the peace of law-abiding ones; if he was removed from office, I am afraid that later local magistrates may hesitate in emergencies. At my mercy, Jiang Maoxun shall not be removed from office, but his mistake shall be discussed by the Board of Civil Affairs for a punishment, but the punishment shall be considerate”.67 It is remarkable that although Jiang Maoxun got away without punishment and luckily retained his office, the supreme ruler of Qing made a decision that may cause further problems. There are two implications: one is that the official impeached is truly faulty in being too cruel; the other implication is that the warning of the official and other local magistrates, the punishment is not strict only because the war is not completely finished yet, the attitude of the government is represented. Wu Dating, whose alias are Tongyun, is a person from Yuanling in Hunan Province. In the 5th year of Tongzhi’s reign, he was appointed a military defense circuit and surveillance commissioner of Taiwan. In his book Autobiographic Chronicles of Xiaoyouyushanguan Host (小 小酉腴山馆主人自著年谱), under entry for the twelfth lunar month of the 5th year of Tongzhi’s reign, he recorded the secret of local magistrates in implementing the trial-and-review of execution on the spot. It is recorded that “before this, there was a case, a criminal in Zhanghua resisted arrest and killed an official, the prime criminals were not captured, so the county magistrate was removed from office and ordered to capture criminals, several criminals were caught, and a criminal named Chen Wen was tried and decided as the prime criminal; after being reviewed by the prefect of a superior prefecture, he would be executed soon. The convention is that criminals to be beheaded should be tried and they sign on the confession and verdicts before the execution; when Chen Wen was tried, he cried for being wronged. I read the documents carefully and knew that the prime criminal was Chen Lu, Chen Wen was his family relative; he was to be wronged and killed as the prime criminal, so he pleaded not guilty. The cases were sent back to the prefect of a superior prefecture for a retrial, the prefect of a superior prefecture still stuck to the former decision, and perfunctorily requested to be reported by circuit inttendants. Again, I rejected the request, and I must have the prime criminal for punishment. Long after that, the prime criminal was not captured, and the county magistrated completely cooking the ‘case’ of the criminal. The times marked on the documents were antedated and reported to superior officials. They secretly bribed at the provincial government to avoid punishments. Finally, the governor sent a letter 67

See Veritable Records of Tongzhi (1960–1970), Vol. 135, the fourth lunar month of the 4th year of Tongzhi’s reign, p. 3340.

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of command saying that the criminal was surely the prime criminal with enough evidence. He was to be executed on the spot by the circuit intendants and made a separate report. I strongly stuck to my original opinion and reported the details of the incident carefully. The governor had to report to the emperor and ordered the county magistrate to capture the real criminal within a deadline; but Chen Wen’s crime could not be reduced, and he now got his justice”.68 Similar to the Huang Jinshao case mentioned above that occurred in the 2nd year of Tongzhi’s reign, the case recorded in the Autobiographical Chronicles of Xiaoyouyushanguan Host is also doubted because of execution of the accessory criminal on the spot before capturing the prime criminal by magistrates. County magistrates tried their best to execute accessory criminals on the spot mainly because they wanted to avoid punishments for being inefficient in arresting criminals. In the 6th year of Tongzhi’s reign (1867), Ding Richang was promoted to be the governor of Jiangsu. He worked hard to regulate the abuse of power by county magistrates to apply execution on the spot. There was a case in Shanyang County at that time in which a man was murdered, suspectedly by feuds. One of the criminals was Tian Xingyuan, a former soldier. He was sentenced to death without a careful investigation and trial; he was to be executed on the spot. Ding Richang read the report of the case and found it suspectable, so he immediately ordered Shanyang County to keep the criminal in prison while waiting for interrogations, but unfortunately, Shanyang County magistrated Tian Xingyuan after reporting to the director-general of grain transport 漕运总督 to the capital, who was punishing severely of disbanded soldiers. Ding Richang was very angry about this, he ordered to record the county magistrate’s misconduct as a severe offence, and told the Huaian prefectural magistrate that “the Shanyang county magistrate is so cruel about people’s lives, his heart is bad, I hope you will carry out investigations secretly, and determine the truth of the case, lest that Tian Xingyuan’s ghost will not rest in his tomb. We are government officials of the people, we should embrace the heavenly creator’s virtue of protecting life, and how can people’s lives be sacrificed to getting favor of superiors? This magistrate wanted to flatter the director-general of grain transport in his work of punishing disbanded soldiers, and he wanted to be the butcher, but the inspector wants to punish criminals severely, it’s nothing to do with innocent people. I had sent the county magistrate a letter asking him not to be perfunctory, if Tian Xingyuan is truly guilty, he should wait a while for the review of the case by officials appointed, but he was so bold and his execution was so cruel! Laws rule the world, and spirits or gods rule the lower world, the county magistrate cannot be pardoned by both.”69 In this case, the Shanyang county magistrated so hastily beheaded the criminal on the spot regardless of superior officials’ order; it is probable that local magistrates have private wishes to avoid punishments like the case of Chen Wen of Zhanghua mentioned above. Since this sort of execution on the spot frequently caused wronged 68

Wu (2009a), Vol. 1, in Taiwan Literature and Historical Materials Series, Book 9 (188), p. 43. “Execution of the criminal named Tian Xingyuan by the Magistrate of Shanyang county after getting approval from the governor responsible for water transport of tax-grain to the capital”, in Ding (1969), Vol. 10, Zhonghuawenshi Series, 47, pp. 333–336.

69

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cases, Ding Richang consulted with Zeng Guofan, the governor-general of Jiangsu and Jiangxi, and he hoped they should jointly order the prohibition of execution on the spot.70 Zeng Guofan praised Ding Richang for his talents but dispised him for his virtue, and he thought Ding was not qualified as a senior official. Ding’s proposal was not fully accepted, but later he issued the announcement with Ding, in which local magistrates were required to deal with ordinary murder and robbery cases except those group robbery cases involving disbanded soldiers: “the cases should be tried and reviewed as routine, execution on the spot should not be request at will by empty excuses that the criminals had been soldiers, this is to show prudence”.71 According to Lin Daquan, an assistant of Ding Richang, during Ding Richang’s term as governor of Jiangsu, he assigned officials to review and reverse verdicts of over 40 suspected cases to apply execution on the spot only for counties north to the Yangtse River.72 Ding’s action in Jiangsu shows that after the war execution on the spot was mainly applied on disbanded soldiers, the difficulty in correcting the abuse of execution on the spot on the county level. The suppression of Taipingtianguo gave the governors-general and governors autocracy, while the grantings to execution on the spot became normal. During this period, the system of execution on the spot had another feature; that is, the numbers and crimes were usually reported to the central government concerning cases of execution on the spot. Taking Guangdong as an example, in the 2nd year of Tongzhi’s reign, Mao Hongbin, governor-general of Guangdong and Guangxi, and Guo Songtao, the governor of Guangdong, requested the modification procedure for felony cases such as robbery, and the emperor permitted their draft procedure. According to this procedure, the number and details of criminals executed on the spot should be reported once in three months, and the cases should be accumulated gradually. Hidemitsu Suzuki quotes the archives of the Board of Punishment that “in the 10th and the 25th years of Guangxu’s reign, Guangdong governors regularly reported the list of criminals executed on the spot in a season and complemented them with supplemented confessions and investigation documents”, such records may show that since the 2nd year of Tongzhi’s reign, Guangdong province started a regular seasonal report system: “for robbery criminals executed by Guangdong province, since the 80th report made on the 22nd day of the fourth lunar month in the 9th year of Guangxu’s reign, and then from the 23rd day of the fourth lunar month to the 8th day of the fifth lunar month, when the conventional procedure was recovered. From the 9th day of the fifth lunar month to the 8th day of the eighth lunar month in the 9th year of Guangxu’s reign, this is the 81st period of 3 months. … all uprisers and robbery criminals captured, tried and executed on the spot are listed by their names and upon the expiration of the 81st period, for the wise view of

70

“Consultatation on the regulation of execution on the spot”, in Ding (1969), Vol. 11, Zhonghuawenshi Series, 47, pp. 364–366. 71 “Joint order on prohibition of execution on the spot”, in Ding (1969), Vol. 16, Zhonghuawenshi Series, 47, p. 473. 72 Ding (1969), Vol. 24, Zhonghuawenshi Series, 47, notes on p. 744.

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the Majesty’s mother and his Majesty.”73 However, Guangdong province’s seasonal reporting method cannot be deduced as a normal status from accidental happenings. There are three reasons for this point: Firstly, in official legal documents such as Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty, etc. we cannot find such a universal regulation for this. Secondly, in the discussion about execution on the spot during Guangxu’s reign, the proposal presented by the Board of Punishment clearly stated that “in the 5th year of Guangxu’s reign, bandits and robbers captured by provinces, some were reported regularly, some claimed execution on the spot by law, and some normal thieves were captured, tried and beheaded directly, before reporting to the superior officials, and the presentation of confession materials and documents was not uniform, so that we advise the division by the distance to the provincial capital in the application of execution on the spot, and the delivery for review at the provincial capital. The suggestion was approved and issued for application; now several years have passed. The annual number of cases of execution on the spot is several thousands and hundreds, some of which are certainly unpardonable, but we are not certain whether there must be no pardonable cases. Since provinces do not report to our ministry as required, and the documents are probably not reported, whether they are pardonable or not, the Board of Punishment never knows.”74 This indicates that the regulation of the Board of Punishment during the 5th year of Guangxu’s reign did not solve the uniform reports and requirements for execution on the spot in various provinces. Thirdly, after the prohibition of execution on the spot in provinces except Gansu and Guangxi, the alternative procedures of some provinces were still different in reporting executions on the spot to the central government. For example, Zhejiang Province reported the cases of execution on the spot by the end of each year with a list; Henan Province reported at any time they liked; and Shandong Province reported seasonal reports.

5.3 Debates on Execution on the Spot The Manuscript of Qing History-Treatise on the Penal Law records that the termination of execution on the spot was proposed by Hu Longxun and Chen Qitai during the 7th and 8th years of Guangxu’s reign. However, this is not the case, the time is much earlier. In the 8th year of Tongzhi’s reign (1869), the 2nd year after the suppression of the Nianjun uprising, Yuan Fangcheng, the censor, requested the termination of execution on the spot. Yuan started his official career through a regular imperial examination system, and he was very angry with the donation system, which caused the phenomenon of “donating a large amount of money for appointment and

73

Suzuki (2004). Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, yousijuequ 7, p. 15659.

74

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promotion”75 since the suppression of Taipingtianguo caused an immediate need for the government to compensate for the fiscal deficiency. He proposed putting things straight for people who were promoted by way of military services and bribery. The Qing government issued a decree in response to Yuang’s proposal that reads “previously due to lack of fiscal resources in military actions, the bandits captured by local magistrates were executed on the spot. This was an expediential policy. The policy still applies in places in military actions, but for provinces where bandits are eliminated, the felony criminals captured should be tried and reviewed by superior officials as provided in former regulations to show the valuing of people’s lives.”76 After the completion of large-scale “military actions”, the government certainly wanted to centralize the power, but it is well known that after the Xinyou coup, Cixi started with a benevolent rule to avoid the hatred caused by tyranny of Sushun, so the senior frontier officials who were promoted due to their military feats would not be embarrassed. At that time, Yuan Fangchen was a lower official as the censor, direct discussion of political affairs was a resource for him, and a good way to accumulate political resources, but since he was much lower in position than Zeng Guofan, the key governor of Zhili, so his proposal was not taken seriously. In the fifth lunar month of the same year, Zeng Guofan reported that “though military actions in Zhili are over, but there are still many disbanded bandits, who are violent and easily instigated. They should be punished harshly and quickly. If local magistrates capture bandits and they must be interrogated and delivered for reviews, the execution of these violent people is not only slow, and in imprisonment or on the way of delivery, there might be accidents, and the criminals might escape. Therefore, I suggest that the approved procedure should still be maintained.”77 In the 12th year of Tongzhi’s reign (1873), Deng Qinglin, another censor, again made a report to request the recovery of conventional laws for the thieves and bandits captured in provinces where military actions were over, and execution on the spot should be terminated. Qing government transferred Deng’s report to the Board of Punishment for consultations. The Board of Punishment felt it difficult to make a decision: “Although military actions are over, but there are still robbery and bandit cases. If the old system is recovered all at the same time, we are afraid that this is difficult”,78 so they did not agree to terminate execution on the spot depending on the termination of military actions, and they advised circulating Deng’s report to provincial governors-general and governors for consultations. The termination of the execution on the spot and recovery of the old system should be a decision made by provincial governments. However, the responses of provincial governors-general and governors were almost unanimous; they opposed the termination of execution on the spot and maintained that it should 75

Yuan Fangcheng. “Suggestions on Disciplining the Administration of Officials” (the 8th year of Tongzhi), in Sheng (1972), Vol. 18, lizheng 1, lilun 1, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 1964. 76 Veritable Records of Tongzhi (1960–1970), Vol. 252, February of the 8th year of Tongzhi’s reign, p. 5475. 77 Veritable Records of Tongzhi (1960–1970), Vol. 259, the fifth lunar month of the 8th year of Tongzhi’s reign, pp. 5555, 5556. 78 Zhu (1958), p. 56.

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be applicable with restrictions.79 In addition, Wang Xiancheng, a steward palace, Bao Yuanshen and Xia Tongshan, two vice ministers in succession, suggested the recovery of the old system. The Board of Punishment decided that the proposal should be considered later after an observation of several years.80 From this, we can see that there are disagreements between the concerns of the Board of Punishment and the advice offered by the consultants, who focused on the justice in punishments, while the Board of Punishment and provincial governors-general and governors had a tendency to apply severe punishments in a chaotic world, but their concerns about the procedure of execution on the spot were mainly about their own power. During the early years of Guangxu’s reign, “Jiangning Sanpailou Case 江宁三 牌楼案”, “Yu Case 豫案” and the “Case of Yang Naiwu and Xiao Baicai 杨乃 武与小放菜案” occurred in immediate succession and caused a shock to society and the government. In the 8th year of Tongzhi’s reign (1869) and in the 12th year (1873), the termination of “execution on the spot” was postponed twice for various reasons, but when cases involving unjust and wrong charges were common, the abolition of execution on the spot was again put on the schedule, and the censors’ proposal for terminating execution on the spot was put on the desk of the emperor. In the seventh lunar month of the 7th year of Guangxu’s reign (1881), Hu Longxun, the censor of Shandong, first made a report to recover the old system for robbery and theft cases, opening up the curtain for disputes concerning “execution on the spot”. Hu Longxun pointed out that during Tongzhi’s reign, “military actions were gradually over, but robbery was still not extinghished, the law enforcement officials had to punish severely in that case”,81 but now, “military actions have been over for long, people live peacefully in their professions. Education and administration in provinces are in a good order. So now it is just the right time for the state to recover the order and old system to show mercy of the ruler, delay should not be allowed.”82 In this report, Hu Longxun did not make direct arguments on the termination of execution on the spot; he just suggested the abolition of the rule that “for robbery committed, criminals should be beheaded without distinction of prime criminals and accessory criminals” established earlier in Xianfeng’s reign, and he advised recovery of the old system that “distinguishes prime criminals from accessory criminals”. The Board of Punishment did not agree to this, they said that “robbery cases in provinces used to be reported by local magistrates to their superior officials, and

79 See Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, pp. 15660, 15661. 80 The Ministry of Punishments. “Inspector Hu Longxu’s Suggestion to Distinguish the Prime and Accessory Criminals for Robbery Cases by the Traditional Regulatoin”, New Regulations Reported by the Ministry of Punishments, (zengxiu xingbuzoudingxinzhang), (kept at RUC library), Vol. 2, the 7th year of Guangxu’s reign. 81 The Ministry of Punishments. “A Report on the Regulation for Distinction of Prime and Accessory Criminals in Robbery Cases as Suggested”, in Sheng (1972). Vol. 100, xingzheng 3, lvli 2, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4525. 82 Shen Newspaper, the 14th day of the seventh lunar month, xinsi year of Guangxu’s reign (September 7 of 1881), Book 19, p. 274.

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delivered to the provincial capital for interrogations and reviews, the governorsgeneral and governors used to report to the emperor, respectively”,83 “after a detailed discussion of the daxueshi (grand academician) with three judicial departments, after getting approvals from the ministry, the governors-general and governors started the execution and punishments”,84 but since the military actions, “since there was this procedure for execution on the spot provided for this”, so since then provinces “do not deliver and review and execute on the spot even for common robbery cases. Only one or two out of ten cases, there are no documents reported, and the conventional precedent becomes empty.”85 The conclusion of the Board of Punishment is that “law should be good if excessivity is removed, the things must be dealt with in an order of priority, if reasonable parts of the old system must be recovered, and then the procedure of execution on the spot should be terminated in the first place”.86 We can see that the Board of Punishment was trying to avoid the point and saying other things, the focused topic of the debate was transferred to the proposal for the termination of “execution on the spot”, while Hu Longxun’s report created an opportunity for public discussion to retain the power of review and decision for the Board of Punishment and the central government in death penalty cases. Early in the 5th year of Guangxu’s reign (1879), since “military actions were busy, expediential measures were used, there were such cases in all provinces. Some cases were regularly reported, some cases were claimed to be executed legally on the spot, and even some criminals captured and tried in common robbery cases were executed by county magistrates before reporting superior officials to send documents and confessions to the Board of Punishment. The procedures were different. As for all officials who conducted crimes, they should be reported to the emperor for approval, now in some provinces they are also executed on the spot, the procedures were very different, it seems the punishments are not prudent”, the Board of Punishment reported to the emperor and got an approval that “later in capturing horse robbers and bandits, and robbers who use weapons, if it is truly far from the provincial capitals, and the delivery journey can be dangerous, such criminals should be delivered to nearby superior prefectural magistrates or circuit intendants for a review of the cases, the delivery of such criminals to provincial capitals is exempted. After the superior governments’ confirmation of the cases, the cases are reported to provincial governors-general and governors before execution on the spot, and such cases are reported each season. When robbery cases become rare in the future, they are still 83

The Ministry of Punishments. “A Report on the Regulation for Distinction of Prime and Accessory Criminals in Robbery Cases as Suggested”, in Sheng (1972), Vol. 100, xingzheng 3, lvli 2, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4527. 84 The Ministry of Punishments. “A Report on the Regulation for Distinction of Prime and Accessory Criminals in Robbery Cases as Suggested”, in Sheng (1972), Vol. 100, xingzheng 3, lvli 2, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4528. See also in Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, p. 15659. 85 Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, p. 15,659. 86 Ibid.

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conducted according to traditional procedures. For such criminals and corrupt officials captured in counties near the provincial capital, the magistrates in charge should report details to superior officials, such criminals are to delivered to the provincial capital, provincial governors-general and governors should report to the emperor separately, and the criminals should be executed after getting approval from the emperor, in order to show the valuing of life and prudence in punishments.”87 The decision was made in the 5th year of Guangxu’s reign (1879), this is the Procedure ) many scholars will mention frequently, the of Execution on the Spot ( full name of which is Procedure for Execution on the Spot for Bandits and Robbers ). An examination of this Caught in Provinces ( provision, this procedure drafted in the 5th year of Guangxu’s reign, was to regulate details of execution on the spot rather than the demolition of the system. However, after application of the procedure over two years, it was not effective, and the Board of Punishment as the supreme judicial organization was embarrassed. “Over years, the annual number of cases of execution on the spot is several thousands and hundreds, and some of which are certainly unpardonable, but we are not certain whether there must be no pardonable ones.”88 “Since provinces do not report to our ministry as required, and the documents are probably not reported, whether they are pardonable or not, the Board of Punishment never knows how to review and approve them.”89 The Board of Punishment believed that, Hu Longxun’s report to the emperor suggesting “the recovery of previous procedure, it was recovered but it was ineffective”, so they changed strategies and directly advocated the termination of the procedure for execution on the spot, they said that “please order governorsgeneral, provincial governors, generals, commander-in-chiefs of “eight banners” and prefectural magistrates of all provinces to inform local officials to report cases of gang robbery with weapons to superior officials for reviews as the conventional procedure provided, the reports to the emperor and requests for approval should be conducted separately, and executions should not be done before that, the issue should be discussed and reported, and waiting for the reply from the Board of Punishment for a regular decision”.90 The plan proposed by the Board of Punishment was objected by all senior frontier officials, who emphasized the special features of their provinces and thought execution on the spot should not be terminated. For example, Li Hongzhang, the governor of Zhili, responded that if “violent horse robbers, pirates, bandits, disbanded soldiers could not be executed on the spot”,91 the peaceful order 87

Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, pp. 15658, 15659. 88 The Ministry of Punishments. “A Report on the Regulation for Distinction of Prime and Accessory Criminals in Robbery Cases as Suggested”, in Sheng (1972), Vol. 100, xingzheng 3, lvli 2, in Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4528. 89 Ibid. 90 Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, p. 15659. 91 Li (1998), zougao, Vol. 42, “Memo to the Throne on the Recovery of Reulation of Execution on the Spot” (the 26th day of the tenth lunar month in the 7th year of Guangxu’s reign), p. 1671.

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of Zhili cannot be maintained. Similar to Li Hongzhang, Zuo Zongtang, governorgeneral of Jiangsu and Jiangxi, and Wei Rongguang, governor of Jiangsu, jointly reported that execution on the spot could not be terminated for Jiangsu, considering geographical environment and social impacts, they demanded the continuous application of the procedure of execution on the spot for felonies like gang robbery with weapons, big robbers, disbanded soldiers, hard-boiled salt smugglers in Jiangsu. Mingan, general of Jilin, Enfu, general of Shenjing and vice minister of the Board of Revenue and Population, Ren Daorong, governor of Shandong, also expressed the idea that the conventional procedure of execution on the spot cannot be recovered immediately. In the second lunar month of the 8th year of Guangxu’s reign (1882), Chen Qitai, the censor, presented a memo to the throne that said: In the past, since the uprising Nian bandits were swarming, severe punishments should be justified in the suppression. Now the country has been peaceful for almost 12 years, people are peaceful together, and start to rest for life, at this time the distinction of prime criminals and accessory criminals may not be recovered as suggested, but the termination of execution on the spot could be made first. So I suggest the conventional investigation and delivery of criminals as the old regulation requires, which should be reported to the throne, to show importance of punishment laws, and local magistrates should not be in charge of the power of life and death for long, and people should not be executed so carelessly.92 While provincial governors-general and governors reported that the procedure of execution on the spot could not be terminated at once, Chen Qitai went out the way to analyze the reasons why provincial governors-general and governors refused to recover the old system, he pungently pointed out the threat of execution on the spot brought to the society, and strongly criticized the malpractice of execution on the spot and requested the termination of it. Although the backseat driver of Chen Qitai’s report to the emperor and the preparation of it are beyond our research, it clearly indicated that central government departments would not acquiesce in the unanimous conspiracy of provincial governors-general and governors. After Chen Qitai, Xie Qianheng, a censor, also advocated the termination of execution on the spot in his report.93 Based on the Sanpailou case, Xie’s report criticized the negative effects of the procedure of execution on the spot; later, he retreated to advance, he avoided the aggressiveness of provincial governors-general and governors, he analyzed the causes of injustice by a close examination of the relation between the procedure’s establishment and military actions. To empty the reasons for the procedure, since execution on the spot was established for military reasons, then the abolition of execution on the spot should depend on whether there were still military actions in 92

The Ministry of Punishments. “Inspector Hu Longxu’s Suggestion to Distinguish the Prime and Accessory Criminals for Robbery Cases by the Traditional Regulatoin”, New Regulations Reported by the Ministry of Punishments, (zengxiu xingbuzoudingxinzhang), (kept at RUC library), Vol. 2, the 7th year of Guangxu’s reign. 93 The Ministry of Punishments. “The Deadline for the Termination of Execution on the Spot for Robbery Cases as Suggested”, in Wang and Wang (1969), Vol. 57, xingzhenglei·lvli, Modern Chinese Historical Materials Series, Book 34, 331, pp. 2886, 2887.

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a province, the persuasion was very skillful, thus invalidating provincial governorsgeneral and governors’ reasons to postpone the termination. The report pointed out a practical, conditional approach to the problem: the procedure was established for military actions, so the abolition should be conducted by determining whether there were still military actions in a province. In the second lunar month of the 8th year of Guangxu’s reign, the Qing government commanded the Board of Punishment to consider and discuss Chen Qitai’s report with replies made by provincial governors-general and governors to Hu Longxun’s report to make a report to the emperor. In the fourth lunar month of the 8th year of Guangxu’s reign, the Board of Punishment had a comprehensive balance of the merits and demerits of all the reports and replies, and they proposed an opinion of limitation: the application of execution on the spot was temporarily approved for Gansu province where there were military actions, and Guangxi province where was the starting place of Taipingtianguo, and Vietnam bandits should be eliminated, and for bandits, horse bandits, religious bandits, and serious disbanded soldier cases and uprisors in other provinces. These felonies should be reported immediately, documents should be presented to the Board of Punishment for reviews and confirmations, while for other ordinary cases, if they had been reported already, they should be conducted in the previous procedure. If they had not been reported, one year was allowed for all cases to return to the traditional system. If the alibi was truly distant from the provincial capital, and the journey of delivery might be troublesome, the criminals should follow the capital punishment system and be delivered to the circuit intendants or provincial governors-general and governors for trials, their cases should be reported by provincial governors-general and governors, they should not be beheaded in advance as of the procedure of execution on the spot, in order to show the rule of law and prevention of injustice and abuse.94 In the 8th year of Guangxu’s reign (1882), the Board of Punishment issued the regulation of “execution on the spot”, which was a limitation to the Procedure of Execution on the Spot drafted in the 5th year of Guangxu’s reign (1879). In the new regulation, first, a transitional period was stipulated for the general abolition of execution on the spot; second, exceptions were specified for the application in terms of space (Gansu and Guangxi), and exceptions for objects in the temporary application of execution on the spot in other provinces (six kinds of cases, i.e., brigands, horse bandits, religious bandits, disbanded soldiers’ felonies, and uprisors). The six kinds of cases stipulated in this regulation were still general, the signified could be larger of smaller at will, so the practicality of it was not good and hard to follow in operations, therefore later all provinces requested the provincial regulations of execution on the spot. On the other hand, although this regulation gave a “waiting for abolition” sentence to the system of execution on the spot, the six applicable kinds of cases as an exception actually offset the transitional period of one year, making execution on the spot an “eternal respite” year after year. Late Qing, just as Li Guilian pointed out, was full of internal and external troubles, “military actions” were continuous, during this period 94

Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 850, xingbu, xinglvduanyu, gujingukanpingren, p. 15660.

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“brigands, horse bandits, religious bandits, disbanded soldiers” were never killed completely, when some were killed more of them came out, therefore the termination of execution on the spot did not come until the country was peaceful again, which was impossible. In the reply of the Board of Punishment, it said that the procedure “should not be expedientially taken as a lasting norm” for execution on the spot, but this was a mysterious breaking of the promise by the Board of Punishment itself. The debate on the abolition of execution on the spot in the 8th year of Guangxu’s reign involved many senior officials of the Qing government. Later, in the interval of Guangxu’s reign and Xuantong’s reign, the dispute remained. In the ninth lunar month of the 24th year of Guangxu’s reign (1898), the Wuxu Political Reform failed, and Guangxu was in house arrest. Cixi was in power again and issued a decree that although prime criminals and accessory criminals were all criminals, they still should be distinguished, and mercy should be given to alleviate the punishment for the accessory criminals, the Privy Council should discuss with the three judicial departments to find a suitable resolution. The Privy Council and the three judicial departments replied that “the procedure of execution on the spot was expediential and was not made as a fixed law. Officials of local governments were afraid of the delivery and investigations of criminals, they wanted convenience and applied it, there might be people killed perfunctorily. In the future, except for its application in provinces with military actions and in serious cases committed by brigands, horse bandits, religious bandits and disbanded soldiers, execution on the spot, other ordinary cases should follow the old system.”95 In the fourth lunar month of the 1st year of Xuantong’s reign, Wu Weibing, a censor, again reported to demand the termination of execution on the spot. The debate on execution on the spot during Xuantong’s reign had a key characteristic in that the debate not only involved the old system but also considerations about foreign powers in China and Western democracy. Both sides strengthened their arguments on this point. In the tenth lunar month of the 1st year of Guangxu’s reign, on the reply made by the Committee of Ministers of the Cabinet (内 内阁会议政务处) to Wu Weibing’s memorial to the throne on the recovery of old system for ordinary cases, Yuan Shuxun, the deputy governor-general of Guangdong and Guangxi presented a memorial to the throne that claimed “the robbers in east part of Guangdon are different from other provinces, the bad people are various in kinds, besides religious bandits, and brigands and disbanded soldiers, and recently there were also hidden revolutionaries. Last year, when a business ship was robbed in Xijiang, foreigners even sent soldiers to deprive our power of arrest. Now the capture is under way, and we should not relax. If the old system was recovered, then the cases should be turned over from county governments to prefectural governments before transferring to the provincial governments, and finally to the Board of Punishment, the time should be at least half a year, if it is so late, how can bandits be deterred. … so the old system should be recovered later, now the alternative procedure should be still be used. If the crime of bandits should deserve execution on the spot and match the present procedure of the Board of Punishment, then execution on the spot should 95

Veritable Records of Guangxu (1960–1970), Vol. 430, the ninth lunar month of the 24th year of Guangxu’s reign, pp. 3927, 3928.

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be used.”96 In the twelfth lunar month of the 2nd year of Xuantong’s reign, Bao Fen, the governor of Henan, opposed the termination and claimed that “if the procedure of execution on the spot was abolished all at once, then bandits will be fearless and peace is difficult to achieve”, therefore he proposed that “ideals are luxuries and taking them seriously may be detrimental.”97 On October 14, 1909, Guangdong Council was established. After that, Chen Jiongming was a standing member of the council, a member of the law review committee, and a member of the research society of the council. He actively used this forum of the council to promote social reform, promote benefits and abolish harm. In the 1st annual meeting held in November of 1909, Chen Jiongming presented the Bill for Termination of Execution on the Spot. He pointed out that “the procedure of execution on the spot is not a formal law of the state, it is a provincial regulation, it was expedient in the turbulent time in the 3rd year of Xianfeng’s reign, it has remained for years and many negative effects come with it. … Now the actual procedure of dealing with robbery cases is contradictory to the procedure made by the Board of Punishment, the negative effects are serious.”98 Western law resources were used as a reference system to reflect on the practice in China. The debate dragged on for nearly 40 years, and the focus was on whether and how the abolition was executed. In this debate, there were two sides: one was the central government, and the other was the local government. In the central government, the Board of Punishment and the censors formed a side, while provincial governorsgeneral and governors formed another side. In this debate on execution on the spot, the issue of abolition itself focused on the destiny of the state, the people and the ruler. The destiny of the state refers to the balance between the abolition of execution on the spot and the stable rule of the state by deterring felonies; the destiny of the people refers to balance between the interest in people’s life and judicial costs like delivery costs of criminals; the so-called destiny of the ruler refers to the division of power between the central government’s power of issuing orders and local governments’ implementation of the orders. In the 8th year of Guangxu’s reign, the Board of Punishment presented the Report on the Termination of Execution on the Spot with Limitations (遵 遵议盗案就地正法 章程拟限停止疏), which used half of its length to summarize the reasons given by provincial governments in their replies: “now the replies of various provinces are different, Zhili says the northwest part of it is near the frontier, and the east part is the coast, horse bandits and pirates make troubles, the three regions, namely, Zhangjiakou, Dushikou, Duolunnuoer, are vast in area, bandits are bold, and violent robbers haunt the southwest part, last summer, Sun Zhenbang from Rehe assembled hundreds of people and entrenched the hunting ground, although many criminals were killed but the chief has not been captured yet. In the report made by Fenian, they say that the coastal areas are not peaceful, while in the central part, there are disbanded 96

Political Records of Xuantong (1960–1970), Vol. 23, the tenth lunar month the 1st year of Xuantong’s reign, p. 409. 97 Ibid. pp. 803, 804. 98 Duan and Ni (2007), Book 1, p. 19.

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soldiers and bandits not captured. Heilongjiang says that hundreds of horse bandits swarm there. Shan’xi reports that the Hui nationality knows nothing about law and hundreds of people conduct crimes in groups. Hunan and Hubei say that disbanded soldiers make living by robbery; the Xiaodao sect and the Gelao sect are large in number. Shanxi says that it is near Xinjiang, horse bandits and disbanded soldiers haunt. In the fourth lunar month last year, daytime robbery, killing of officials and rescuing of felony prisoners happen frequently. Shandong says that the southwest of the province is the original place for Nian uprisings, the northeast part is near the ocean, and bandits and robbers haunt there. Anhui says that Taiping capitulators are dispersed in different places, disbanded soldiers gather here and Gelao sect and Zai bandits are everywhere. Guangxi reports that it is the place causing great trouble, people are violent; those big criminals not captured are attempting revolting again. Guangdong says that establishments of parties and sects are prevalent, they even rely on foreign powers, and they live in forests as their houses, last year Tian Guangde, etc. rose in revolt with some people. Sichuan reports that Gelao bandits, Sect bandits and violent bandits abound; in addition to disbanded soldiers and militia, they frequently assemble to do bad things. Jiangsu reports that the river and coastal areas have many ports, Chinese and foreigners live together, and bad people hide there. Henan Province says that subordinate regions such as Guide, Chenzhou, Nanyang, Ruyang and Guangshan have many escaped Nian bandits, while in the mountainous places of Henanfu, Shanzhou and Ruzhou, disbanded soldiers commit robbery frequently, and the situation north of the Yellow River is also similar to this. Jiangxi Province says that Zhai bandits and local bandits commit robbery and murders, and disbanded soldiers also commit robbery. Yunnan says that disorder has lasted for 20 years, the situation is just becoming peaceful, external bandits and internal bad people help each other and the situation cannot be changed all at once. Other provinces like Guizhou did not report to the Board of Punishment, but since these provinces are neighboring to the provinces that have made their replies, so the situation for all provinces is similar.”99 Public consensus makes believe. In addition, provincial governors-general and governors spoke their voice louder on the issue of suppressing bandits since they were truly angry, the Board of Punishment could not complain on this point, and they would not clearly show their disagreement, because both sides shared common goals in suppressing bandits, in the report of the Board of Punishment it was said that provincial governors-general and governors’ replies “are certainly true”, and both sides “happened to have the same view”. In the debate on the abolition of execution on the spot, although the Board of Punishment and the censors could use “the proviso” to negate, the voice was not strongly enough, provincial governors-general and governors gained upper hand in this debate in terms of arguments and momentum.

99

The Ministry of Punishments. “The Deadline for the Termination of Execution on the Spot for Robbery Cases as Suggested”, in Wang and Wang (1969), Vol. 57, xingzhenglei·lvli, Modern Chinese Historical Materials Series, Book 34, 331, p. 2887.

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5.4 Reasons Why Execution on the Spot Could Not be Abolished in Late Qing In German laws, the principle of proportionality (Grundsatz der Verhältnismäβigkeit) is the “Principle of Crown” in administration law, just as the good faith principle is “King’s Article” in civil law. The principle of proportionality is generally understood as a coordination of means and ends, i.e., a balance between the ends of all government acts and the burden on the citizens incurred by such measures in pursuing that end. Under the principle of proportionality, to achieve ends by any state means fair or foul should be strictly restricted. It is generally agreed that the principle of proportionality has both a broad sense and a narrow sense; in a broad sense, the principle has 3 subprinciples: the principle of suitability (Geeignetheit), the principle of necessity (Erforderlichkeit) and the principle in a narrow sense (Grundsatz der Verhaeltnismäßigkeit i.e.S.). This division originated in the Pharmacy Case (Apothekenurteil) in Germany in 1958. At that time, the state of Bavaria promulgated the “Apothecary Control Law” (Apothekengesetz). To avoid malignant competition among drugstores to maintain people’s health, a limitation was imposed on the opening of drugstores, and access to the application for opening drugstores must be determined by whether there was market demand for them (i.e., whether there were too many drugstores already in the market). The Federal Constitutional Court of Germany (Bundesverfassungsgerichts, BVerfG), in the decision of the cases, believes that the state control of professional rights must be divided into “control related to professional exersion”, “subjectively important licensing conditions” and “objectively important licensing conditions”. The strength of state intervention should gradually escalate in that order to establish the “three stage theory” (die Dreistufentheorie) to conduct a stage-bystage review of the principles of “suitability”, “necessity” and “proportionality” in the measures to control freedom of profession. Later, in the judicial practice of courts, the contents of the principle evolved out of this “3-stage theory”, which are also called 3 “constitutional principles” (Teilgrundsätze). Among these, the principle of suitability is also called the “principle of appropriateness”, i.e., the measures (means) should facilitate the achievement of the ends, and the measures (means) should be correct. This principle emphasizes the requirement on the “orientation of ends”. The principle of necessity is also called the principle of minimal harm or irreplaceability or mildest measures. It refers to the principle for administrative organs or legislature to choose a measure out of various measures for an end. The measure of choice should not go against or compromise the effectiveness of the end while choosing the measure with minimal harm after considering the optional measures from the perspective of “empirical causality”. The principle of proportionality in the narrow sense is also called the principle of symmetry, the principle of scale, the principle of appropriateness, the principle of balance between law and interests, the principle of proportional fitness or the principle of balance, which means that a public power measure is necessary but the measure cannot be out of proportion to the ends it seeks, or the means must be in a proportion to the ends. In other words, the harm brought by public power behavior cannot go beyond the benefits it brings to the ends. It is

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inevitable that there may be illegal interests incurred in the pursuit of social welfare by the public power, the principle of proportionality in the narrow sense requires that within the constitutional order of value, a “balance of interests” must be conducted between the actual interests of the above measure and the harm that people suffer, if the harm or sacrifice may be paid off the interests gained by public power, and the balance should be far worthwhile then within the reasonable degree of people’s tolerance, otherwise, the administration of public power is in the risk of being illegal or unconstitutional. The principle of suitability and the principle of necessity must have a premise of obeying the legal ends, but the principle of proportionality in the narrow sense is not restricted by the predestinate ends, so if the side effect of a measure for an end is so strong that it severely infringes fundamental rights, the pursuit of such an end should be abandoned. Lothar Hirschberg, a German scholar, believes that the principle of suitability and the principle of necessity have a premise of an “actual” form of an “ends-means” relationship, but the principal of “proportionality” transcends this kind of “actual causality” to the level of “value judgment”. The principles of necessity and suitability lean to the application of empirical rules, while the principle of proportionality in the narrow sense leans to value orientations. Since necessary means are considered together with the side effect (burden on the people), this means generating value that can be compared and considered with that of ends. Since the means are endowed with value, they rise to the level of ends to become a consideration of ends and a comparison between different ends. Therefore, the principle of proportionality in the narrow sense actually adjusts a relation among “ends and ends”, Hirschberg calls this “the justification of means by ends” (der Zweck heiligt die Mittel).100 Peter Lerche, another German scholar, doubts the mainstream view of the “3-stage theory”, he believes that suitability is the premise (Vorfrage) for necessity, all suitable means should be considered to determine a necessary means, the principle of suitability has been considered in the choosing necessary means, therefore, the only distinction to be made is between the principle of necessity and the principle of proportionality in the narrow sense. This kind of so-called “dualist approach” thinks that necessity and proportionality may stand because they have suitability as a premise; therefore, no other principle should be established as their premise. The principle of suitability is no more than an adjunct to the principle of necessity and the principle of proportionality in the narrow sense, and its functions are not so substantial. In the U.S., court decisions often embody the principle of proportionality, only in a slightly different name, or called a “less drastic means”, or called the “less restrictive alternative principle”; therefore, some scholars call this principle of proportionality a natural law in the human heart. Although as shown above, the principle of proportionality is a key theory for modern continental law system jurisprudence, this consideration for means, ends and the balance of different legal interests was actually also addressed in the debate on execution on the spot in late Qing. Between the ends of suppressing robbery and the means of execution on the spot, various levels of suitability, necessity and intentionality, etc. were also taken into people’s view in the debate. In the Yuan 100

See Hirschberg (1981), S:72 f., S:132 f. S:153 f.

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dynasty, Chen Tianxiang thus commented that “the state and the people are a whole just like a body of a man, people are the blood and energy of the state, the state is the skin and body of the people, if the blood and energy are sufficient then the body is healthy and strong, otherwise the body is weak and diseased, the body can never be plentiful and healthy by wasting its blood and energy. Therefore, if the people are rich the state is rich, if the people are poor then the state is poor, if the people are peaceful then the state is peaceful, if the people are in difficulty then the state is in difficulty.”101 In Shang Shu, the idea that “the people are the root of the state, when the root is firm the state is peaceful”102 is a permanent warning for all Chinese rulers. The fate of state and the destiny of the people rise and decline simultaneously, the strategy of state is actually related with the liveliness of the people, the peace and danger of the state lies just in the support or opposition of the people, therefore the Qing rulers promoted the idea that “the one ruler is only to bring order to the world, how can it be if the world serves the one ruler” to love the people through diligent administration. Of course, it is easily said than done, and traditional Chinese classical hermeneutic theory emphasizes “what is aspired is reverse to what is expressed”, in many cases, what is wanted in political slogans by rulers actually reflects the want and room of improvement of it in this aspect, otherwise how can it be promoted in such a big way. In other words, the implications in this kind of political slogan should be interpreted in a “reverse” or “complementary” way. The life of a state lies in a stable rule, which is maintained by and based on the sacrificing of individual citizens. Although the life of a state and the life of the people are inherently one thing, contradictions exist between them in certain situations. Any state, as pointed out by Douglas North, has a “violence potential”, and the rulers who profess to “obey the people’s support politely to be ruler of them” often sacrifice the life of individual citizens to sustain a stable rule as a prior demand of rulers themselves, showing the blood-thirsty face to realize a long and stable rule or an aspiration for self-realization on a higher level, but through showing the mercy of people’s life through “public punishments to complement the civilization or cultivation”. In the debate on execution on the spot in late Qing, the suppression of anti-governmental activities to maintain a stable rule and the procedural prudence on people’s lives and deaths were balanced; the former was certainly urgent, and the latter had to be postponed and should be attempted in the long run, since it was trivial. After the population explosion in the eighteenth century in China, the large population of “400 million” certainly had an enormous impact on the structural imbalance of configurational resources of the Qing Empire after the reign of Daoguang. This overpopulation situation led to people being the destitution and further depreciated the lives of common people who lived in a difficult moor of destiny. Wu Si, in his The Law of Blood Exchange, thus writes: “generally speaking, physical resources are merely ‘external things besides the body’, however, with the scarcity of resources gradually approaches and even breaks through the bottom-line for sustenance of 101

Chen (1998). “On Evil Things of Lu Shirong”, p. 247. See also Song et al. (1976), Vol. 168, liezhuan 55, p. 3945. 102 Shangshu·Yuxiashu, in Chen et al. (2000), p. 343.

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survival, the external things gradually become ‘things that equal the body’, and the ‘life resources’ determining life or death, the productive materials providing ‘life resources’ become life properties. In a social game where resources have already been carved up, the bottom-line for survival is a bloody line. Below that blood line, all physical resources become life properties, a bowl of rice can secure a day’s life, and a cup of water may also mean the life of a person. The breaking of the blood line always means blood-shedding tragedies, otherwise one dies from lack of blood, or one gains life through threatening others and robbing their life properties”.103 The people are the root of the state, while people must have food to sustain their life. Since land is the basic resource for life of farmers, when there is an extreme scarcity of “life properties”, the large number of jobless, vagrant people who “has no money but only a life”, live an abject life without means to sustain their life, most of them finally go on a way of life to get life properties risking their lives, they become bandits, who make their living by engaging in dangerous business of licking blood from knives. Wu Si’s concept of “blood exchange” refers to the costs readily paid by people to keep one’s life, i.e., the reward to pay for life, representing the exchange between life resources. According to Wu Si, in a society whose bottom-line of life is broken, the distinction between government and bandits is hard to delineate clearly, and the border between bandits and good people is also hard to divide. In the life-ordeath struggles between the Qing government and Taipingtianguo, the destruction of good and bad alike and the plunging of people into an abyss of misery exemplify the trivial value of life. For this reason, there is a Chinese saying that “better be a dog in a peaceful society rather than a man in a disastrous world”.104 Many parvenuses succeeded in obtaining official positions with bloody military feats; they kill people like cutting melons or vegetables, and just as Huang Renyu says, even Zeng Guofan was a historical agent incapable of managing large numbers in coping with them. In Hunan, Zeng Guofan killed many people, and he made the confession below: “It is well known that there are many bandits in Hunan. Last year when Guangdong uprisings entered this province, those people who joined the Tiandihui mostly followed the uprisings, but there are still evil people left over. In addition, there are also Chuanzihui, Hongheihui, Banbianqianhui, Yiguxianghui, etc., these people form gangs, and gather in mountains, the bandits originate especially in the southeast part of the province, in places like Hengyang, Yongzhou, Chenzhou, Guiyang, and in the southwest part like Baoqing, Jingzhou and Wanshan. Since in recent years the responsible departments know that the religious sect bandits cannot be suppressed, and they don’t want to take the responsibility of causing disasters on themselves, so they try to gloss over the trouble, and drag out a temporary peaceful rule, and cases are accumulated over decades and still postpone the dealing of them, and people who should be executed are left over and let them free from bad conducts, so now they become big bandits. Now knaves in villages are unscrupulous and violent. They saw that most of those prime criminals in murder and robbery cases had been free from punishments by law, and recently Guangdong bandits and local bandits did 103 104

Wu (2009b), pp. 34, 35. Feng (2002), Book 1, p. 305.

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bad things without being punishments, so they believe that laws and officials are not formidable, they are rumor mangers in their daily life, and robbers in day time, they become fearless. Without severe punishments and killings, their evil ambitions cannot be frustrated, and their bad hopes cannot be extinguished. In my humble opinion, if severe punishments must be used to kill violent and evil people and secure a peaceful life for good people, even if I will be denounced as a ruthless killer, I will not refuse to do that. If all the cases are to be dealt with, and the suppression may be very thorny, I will not refuse to do that.”105 In ancient China, killing people is always seen as “yin shi 阴事” (infernal things). In executions of criminals in peaceful years, county magistrates would go to the temple of town god to burn joss sticks and have a ceremony of pai ya 排衙 (a ceremony to show prestige by shouting slogans by yamen runners). However, in the suppression of Taipingtianguo, just as Hu Linyi said, “when bandits are everywhere, you cannot escape in a rebellious state or place. If I don’t kill the bandits, they will kill me”,106 the affair-administering school of thoughts was reduced to “the career of slaughery” in civil wars. The Qing emperors and officials ran amok in their writings, they mostly adopt the view that “if killing is necessary but not done, then big troubles will follow”, they believed that cruel punishments were the biggest “ren 仁”(benevolence), i.e., the theory made by Hu Linyi that “by the policy of actual killing to realize the intention of not killing, and killing becomes a means for rescuing people from death penalty”.107 According to Zeng Guofan’s formula for execution on the spot, if these people deserving death were not eliminated, there would be more lives lost; thus, killing is a means to save people’s lives, and the return outweighs the costs, so it is “a necessary evil”. When the Taipingtianguo army was most active in Hunan, Liu Ruyu, county magistrate of Ningyuan, claimed “killing of 1247 bandits” during the 2nd year and the 5th year of Xianfeng’s reign, he did things similar to Zeng Guofan, who became a saint for killing people, and he also resembled Zeng in his arguments. He said that “when I was first in office, I felt pitiful when the bandits captured were executed. Later I heard Hu Tinghuai108 (county magistrate of Lingling) said that ‘we conduct killing but have no intention of killing’, I reflected my own original intention and felt consoled. … Every moment when the crime was confirmed by criminals’ confessions, I would remember that ‘if I did not kill this criminal today, later he would kill hundreds of

105

Zeng Guofan. “Suggestions for Severe Punishments of Bandit to Secure Peace”, in He (1972), Vol. 39, bingzheng, dili, in Modern Chinese Historical Materials Series, Book 77, 761, pp. 713, 714. 106 Hu (1999), (2), shudu, pizha, jiashu, shiwenlianyu, p. 580. 107 Hu Linyi. “Comment on Capture of Bandits by Daye County”, in Hu (1999), (2), shudu, pizha, jiashu, shiwenlianyu, pp. 1006, 1007. 108 This refers to Hu Tinghuai, the contemporary county magistrate. The basis for the inference is that, in Luowenzhonggongzougao, Vol. 1, “A Report on the Employment of Army in Eliminating Bandits in Guangdong” (the 11th day of the ninth lunar month in the 4th year of Xianfeng’s reign), in Yang Shulin (1979b), in Modern Chinese Historical Materials Series (Continued), Book 65, 641–649, p. 4085.

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people later’”.109 Zhang Zhidong, in advocating execution on the spot, also pointed out that “I secretly embrace the idea that in dealing with good people, slow and gentle means would be used in administration, while in punishing bad people, quick and decisive actions are good. If local magistrates can truly be sincere in dealing with trials or collecting of taxes, while not using tough measures, then the good and civilized people would die unseen, then in one province, in one year, the people who save their life can amount to hundreds, the justice lies not in the delaying the death of dozens of violent bandits, but for prudent treasuring of other people’s life.”110 From this point, we can see the return-and-costs logic in the evaluation of people’s lives made by the local officials. The weaponed strife between families in Fujian and Guangdong was severely suppressed by government since the middle period of Qing; at that time, the terms “execution in advance of the emperor’s letter of confirmation” and “execution on the spot” in late Qing were closely related to this kind of strife. In the ninth lunar month of the 9th year of Xianfeng’s reign (1859), Xianfeng met Zhang Jixin, the provincial administration commissioner of Fujian, at Qingyin Study on the Yuquan hill in Beijing, the emperor asked about the weaponed strife. This conversation is recorded in Zhang Jixin’s Seeings and Hearings among Officials during Daoguang and Xianfeng’s Reigns (dao xian huan hai jian wen lu), as briefly shown below: His Majesty asked, “How was the weaponed strife like?” Zhang answered: “… a big family bullied a small family, who would not kiss the rod, and small families of dozens of villages would fight back the big family.” His Majesty asked, “Didn’t local magistrate go to stop that?” Zhang answered, “When I passed Huian, I saw the start of such strife, the people were in good order. The large family flew red flags, and the small family flew white flags. All weapons were used, including spears, fireguns, knives and shafts. They advanced when they heard gongs and retreated upon seeing balefires. When the strife was fierce, they did not stop even if magistrates forbid them …” His Majesty asked, “How can they settle it if there are casualties?” Zhang answered, “If the big family kill 20 people from the small family, and the small family only kill 10 people from the big family, after a one-for-one payoff, they would ask for recompensation for the lives, and would bring lawsuits to the government …” His Majesty asked: “how much is paid for one life?” Zhang answered, “I heard that the employer paid the parents of the dead 30 yang yuan (Spanish silver yuan) and established a memorial tablet of loyalty in the ancestral temple.”111 109

Liu Ruyu. Official Documents Drafted by Me (zizhiguanshuoucun), Vol. 1, “Reply to Luo Zhongcheng on Strict Capture of Fled Criminals” (the ninth lunar month of the 5th year of Xianfeng’s reign), in Liu (1972), in Modern Chinese Historical Materials Series, Book 77, 764–765, p. 21. 110 Zhang Zhidong. “On the Execution of Baojia Law and the Draft of the Regulation for Execution on the Spot”, in Zhang (1980), zouyi, Vol. 6, pp. 638, 639. 111 Zhang (1981), p. 266.

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There were many reasons for weaponed strife between families in Fujian and Guangdon, but the main reasons lied in the struggle for resources, which could be classified into three categories, i.e., land and water; markets and docks; geomantic omen and burying ground. Family weaponed strifes vainfully cost resources and empoverished common people, the contemporaries said that “after one fight the rich is no longer rich, a second fight empoverishes the rich, and a third fight causes the death and exile of the poor”,112 this is a correct expression of the idea, in some cases when people were extremely poor and competed with life, they narrowed their view and was biased. Du Fengzhi was a county magistrate at Guangning, Sikuai, and Nanhai during the reigns of Tongzhi and Guangxu. In his diary, we found that the land was fertile, and produces were rich. It was not difficult to make a living in Guangdong, but there were many robbers and few beggars, and the robbers were not always poor people. As shown in Zhang Jixin’s Seeings and Hearings among Officials during Daoguang and Xianfeng’s Reigns, after weaponed strifes the recompensation for a dead person was only 30 yang yuan, we have to infer that the depreciation of the value of an individual life was one of the factors contributing to such weaponed strifes, since the lower price of life lowered the costs of such strifes, for the same reason, the judicial documents concerning such cases in Fujian and Guangdong reflected the fact that after such strifes people’s life was bought to be substituted real killers. In a more commercialized region such as Fujian and Guangdong, the life of people did not worth much money, the victims’ lives were cheap and the recompensation was low in price, when the government tried to capture the killers, the killers did not have to pay much to find others to substitute them, therefore during Daoguang’s reign the situation was common as Yao Ying’s described below “in a day there are sometimes deaths of over 10 people, and over 1000 people die in a year, it is so tragical that the bowels of the dead were even revealed. The neighboring places all become warfields”.113 At that time, in addition to the application of execution on the spot for family weaponed strifes and bandits alike, in late Qing, there was another surprisingly cruel reality, that is, the “selling of piglets” (贩 贩卖猪仔, people bought to substitute killers for execution). The low price of life caused a despise on life in weaponed strifes and selling of piglets, and this in turn caused the long existence of execution on the spot in Fujian and Guangdong, meanwhile local officials subconsciously lowered their awe to the value of life in the advocation and implementation of the system of execution on the spot. Examined in light of the abovementioned “principle of proportionality”, the balance between the costs and return of law was problematic for that debate. Liang Qichao, as a person from Guangdong, was familiar with the situation in his hometown. In his article “Brief Introduction to Li Hongzhang’s Actions”, he criticized Li for his opportunist style. We can see that the bias occurring in the balance from the perspective of local magistrate was not accidental: Before Li Hongzhang became the governor of Guangdong, Li Hanzhang and Tan Zhonglin were the governor, the administration was extremely disordered, robbers swarmed and 112

Chen (1983), p. 93. Yao (1974), Vol. 4, “xie zhou zhangzhou shu”, in: Modern Chinese Historical Materials Series (Continued), Book 6, 51, p. 168.

113

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bandits bushroomed as weeds. When Li Hongzhang took office, he was strict and quick in recovering the system of execution on the spot, to implement it severely, many people were killed, men of honor were sick of his hard dealings, but robbers were afraid of hard measures, they died or fled, the place was slightly peaceful. However, the most baneful influence on the Guangdong people was levying the gambling tax to cover the fiscal deficit. The robbery in Guangdong was serious due to the popularity of gambling; robbers were almost gamblers, and gamblers were almost robbers. Li Hongzhang encouraged gambling; he claimed that it could “raise money for capturing robbers”, he meant taxing on the wager, and he raised money for capturing robbers. This was just like that he was afraid that people were unwilling to do robbery and teach them to rob, and when they committed robbery then he killed them, it can at least be said that Li was heartless. Mencius said that “when people are trapped in crimes, the ruler follows them to kill, this is a deceiving of the people.” The punishments without previous education are a deceiving of the people, how could Li encourage people to gamble and then kill them! An ineffective remedy like stopping boiling water with getting hot soup out before putting back again, or fight a fire with a bunch of firewood, was he foolish due to his old age? Otherwise, how could he lose his integrity in his old age, ruin morality, and destroy his honor, only to be denounced by people in future generations? One might argue: Li Hongzhang knew that the custom of gambling could not be eliminated, and he thought the gambling custom could be exploited to raise money for administration. Although the goaty custom was not easy to eliminate, I never heard that governments could establish whorehouses; robbery was serious, but I never heard that governments may establish robbing organizations. Li Hongzhang maybe knew these principles, but he still did such things, so this is known as merely heartless.114

In the debate on the execution on the spot, the most powerful reason against execution on the spot proposed by the Board of Punishment and the censors was that once there was a wrong execution, “then since the dead cannot come back, there is no way to exonerate an executed from a miscarriage of justice”.115 In the inner balance of local magistrates, saving the life of commoners was no more important than saving money spent in delivery, which was succinctly pointed out in the emperor’s decree issued in the 24th year of Guangxu’s reign. The decree said, “The procedure of execution on the spot was an expediential thing, which is not made a normal law, local magistrates are afraid of deliveries for reviews, they take shortcuts and faulty executions are possibly unavoidable.”116 Since the careful protection of people’s life is doubtlessly a morality, in contrast, to preservation of the power for execution on the spot due to lack of money for deliveries is hardly persuasive, therefore local magistrates tended to avoid this key point in the debate but to argue for their opinion by the economic losses in deliveries and the suppression of robbery and the inefficiency in capture of criminals. Li Hongzhang, in his memorial to the throne, suggested the preservation of the system of execution on the spot, he mentioned that “the levelby-level delivery-and-review system” was no longer suitable in some aspects for the time, and he made a contrast with the system of “execution on the spot” in that “if repeated deliveries are made, and the capital punishments are delayed, I am afraid that 114

Liang (2003), p. 114. The Ministry of Punishments. “Report on the Deadline for Termination of Execution on the Spot for Robbery Cases”, in Sheng (1972), Vol. 100, xingzheng 3, lvli 2, in: Modern Chinese Historical Materials Series, Book 85, 831–849, p. 4532. 116 Liu (1996), Vol. 244, p. 22. 115

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accidents may happen on the way or in prisons, and the victims see that the criminals’ committing of crimes but not the execution of them, this is not enough for victims to feel consoled and not enough to deter other bad people.”117 On this point, Ding Baozhen, the governor-general of Sichuan, also shared this view. He deemed that “Sichuan has been implementing costly execution on the spot for years, but robbery cases are still large in number, if the old system was to be recovered soon, deliveries and would be conducted before the delay and costly executies. I am afraid that local magistrates cannot pay that expenditure, and they would give up punishments, when the crimes are later discovered and local magistrates are criticized, local community must have been harmed, this is not a way to weed out the wicked and let good people live in peace, moreover, executions may prevent killings.”118 According to the view held by some historians of political system, the ancient centralism in China culminated in Qing dynasty, the key manifestation lies in the mature and complete political system, in which the big officials and small officials restrict each other and the internal officials and external officials cross-check each other, and the senior official system was characterized by “da quan 达权”(power authorization) and “fen ji 分寄” (power division). The system of restriction between large officials and small officials refers to the governance and separation of powers; governance lets large officials rule minor officials, while power separation allows minor officials to resist large officials. The “cross-check of internal and external officials” refers to the rule of “the governors-general and governors for external provinces, and the rule of the six ministries in the internal authorities”,119 the integrated governance and separate authorizations are combined in the power authorization: the administrative power is under the integrated governance of the six ministries of the central government, this is the so-called “ministers governing the normal (部 部臣 守经)”; the power of local administration is assigned to governors-general and governors, this is the so-called “provincial governors being authorized for expediency (疆 疆 吏达权)”.120 Since after the Qin dynasty, China had been a centralist state, scholars are not to the point when they generalize the cross-check of the central government and provincial government by the power separation system. From a jurisprudent perspective focusing on the different origins of power, the federal system and regional autonomy system are the “power separation” system, while the confederal system and centralized system are the “power authorization” system. Accordingly, Luo Yudong, a scholar during the national republic period, advocated a “san quan 散权” (power dissemination) theory, in which “power dissemination” is distinguished from “power separation 分权”. This is a sound distinction. The power originally belonged to the

117

Shen Newspaper, the 9th day of the twelfth lunar month in the Xinsi year of Guangxu’s reign, (January 28, 1882), Book 20, p. 110. 118 Shen Newspaper, the 9th day of the 3rt lunar month in the 8th year of Guangxu’s reign (April 21, 1882), Book 20, p. 495. 119 Zhu (1996), Guangxu 39, in Continuation of the Complete Collection of Four Treasurie, 383, shibu biannianlei, p. 391. 120 Liu (1998).

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sovereign, but he could not exercise the power; therefore, he disseminated it to provincial governments. This is the so-called “san quan”. In contrast, power separation refers to the local governments’ sharing part of the power of the central government by law, while except for this part of power allowed for local governments, the rule of local regions is still within the power of the central government.121 In the Qing system, the administration of external provinces was in charge of governors-general and governors, while the policies were formed by the central government, and the ministers took charge of the matter. Under normal conditions, governors-general and governors’ purview was the aspects like persecution, official management, chrematistics and public security, etc., the power usually would not expand, but in emergencies, since the emperor and the central government could not directly get information about the provinces, governors-general and governors could get the power of dealing with matters through requesting for permission from the emperor by writing memo to the throne, the so-called “shi quan” (power of dealing with matters) beyond the routine official power. In other words, governors-general and governors’ power originated from authorization by the emperor, governors-general and governors were responsible for promulgation and implementation of the emperor’s command, but the room for action could be acquired by requests in memorials to the throne. This shows that the system has certain flexibility and room for evolution. In the routinization process, the system itself was in a continuous process of structuralization, and after the beginning of the military suppression of Taipingtianguo, the original ruling machine was largely thrown into confusion. To appease and control the rebels, Qing rulers had to mobilize all resources within reach, and governors-general and governors were granted the fiscal power of “raising army provisions in their own region” and the judicial power of “execution on the spot” and power of other matters. For example, governors-general and governors such as Zeng Guofan, Zuo Zongtang, Li Hongzhang, etc. were able to suppress Taipingtianguo with power in such matters, and the Qing government was safe again from turbulence; it did not collapse in an unstable situation. However, the feat in the regeneration of the Qing Empire empowered the governors-general and governors an influential power of discourse in the government, and the power pattern became “more overwhelmingly favoring to senior governors”, as Zeng Guofan said. Although Zeng Guofan et al. repeatedly expressed their loyalty toward the government, the doubts in this power pattern cannot be removed with empty and general words. During the reigns of Kangxi, Yongzheng and Qianlong, for crimes involving capital punishments of many people or serious felonies, even senior governors were not awarded with the power of life and death, which was held solely by the emperor, this was the so-called privilege that wars were only declared by the emperor, “only the emperor has the power of life and death”, the capital punishments must be approved by the Board of Punishment and executed by the order of the emperor himself, but the system of execution on the spot in late Qing caused a serious conflict between the room of action for promulgating the emperor’s order and the origin of the power for the room of action, i.e., the emperor’s order itself. In the case of Yang Naiwu and Madam Gebi, the public opinion was in 121

See Luo (1933).

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an uproar, the Qing government also actually felt that “the governors-general and governors today are like vassal states in Ming dynasty, their responsibilities should be definite, but their power of action cannot be too weighty”,122 so Qing government caught this opportunity and issued 13 decrees in succession for the review of the case till justice was brought back, provincial governors-general and governors were given a deliberate warning through a concrete case, to show the intention and determination of the central government. On the twelfth lunar month 27 of the 2nd year of Guangxu’s reign, Wang Xin, a censor, in his memorial to the throne entitled “Request for Harsh Punishment of Senior Officials Responsible for Deception in Trials of Key Cases”, he berated directly that “Hu Ruilan, Yang Chanjun dared doing this deception mainly because the two empress dowagers attend to state affairs behind a screen, since the enthronement of the emperor in his immature age, the big state affairs are not dealt by himself, so the contempt for law and the deception of the emperor is blatant. The crime is not only like ordinary cases and merely the proportion of slight and severe punishments or life and death should be considered?”123 He pointed out that “if senior officials gang up in cliques, the central government has the trouble of isolation”,124 in the end, he proposed a harsh punishment of Yang Changjun and Hu Ruilan “to bring rule of imperial law to the whole nation, as an obvious warning for the future. Maybe by doing this all the officials should be fearful of punishments and the discipline of the central government can be braced up”.125 After the settlement of the Wang Shuwen cases in Henan province, Li Henian still argued and excused for himself at the Board of Punishment, the three judicial departments directly rejected his excuses by saying that in dealing with cases in such a way “the governors-general and governors in provinces has a minor mistake in treating life of people with no respect; the crime is serious for starting the senior provincial governors-general and governors’ deception of the central government. Now that in all matters the provincial officials are more powerful than the central government, while this situation has been formed for a long time, but there has never been people who made such blatant excuses for their faults”.126 Seen from the treatments of the Yang Naiwu case and the Wang Shuwen case, the central government deliberately aimed to warn governors-general and governors by the punishments, with an intention to reverse the situation of “local high-ranking officials’ contempt for te central government”, to avoid the evil consequence of the downward hand-over of power and the authority of the central government. In the debate on the abolition of execution on the spot, the Board of Punishment sharply retorted that “who can tell when bandits will be completely eliminated? Year in and year out, this happens, simplicity is used at ease and the power of life and death is decided by minor officials, this is

122

Zhu (1958), p. 4240. Zhu (1986), p. 5. 124 Ibid. p. 6. 125 Ibid. 126 Zhao (1924), Vol. 5. 123

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not a way of showing prudence over people’s life.”127 One of the most key reasons for the objection for the abolition of the system of execution on the spot was that provincial governors-general and governors’ favor of killing and treating a person’s life as a not worthing straw, although this reason was known clearly by all but few people expressed this in public, while this involved the essence of the debate. According to Maslow’s hierarchy of needs, needs are categorized into 5 kinds, i.e., physiological needs, need for security, socializing need, need for dignity and need for self-realization, in a continuous sequence from lower levels to higher levels. If we take state as an organic whole, like a natural individual, need for security is also an essential need for a state. Especially for a large country such as China, this political spatial framework dictated the surpass of a peaceful and stable environment over other political values, even today China still deems stability as a top priority in terms of political principles. In late Qing, the provinces were not peaceful, and the social security condition was bad. Various sects, parties, bandits, and weaponed strifes posed a dangerous threat to the rule. If not treated carefully, the threat may expand beyond control, and when military actions come in quick succession, large troubles may be formed. Whether the system of execution on the spot should be abolished or not, the suppression of bandits is always the top priority; otherwise, if problems arise, who should be responsible? For this reason, provincial governorsgeneral and governors argued for the preservation of execution on the spot with the most favorable reason that the cases of bandits were still frequent.

5.5 Understanding Execution on the Spot by Legtimacy R. Pound, a famous jurist, pointed out that law must be stable, but meanwhile law cannot be stagnant. The top question to be solved by thinkers of law is how to coordinate the thought for the fossilization law and the thought for the changes, evolution and making of new laws.128 In fact, this is also the first question to be solved in legal systems and judicial practices; therefore, it is also the focus of historical studies of legal rule. From a realistic perspective, law is ever changing. Confucians and Legalism had a unanimous consensus on this point that law must change to cope with the change in time. The famous political saying advocated by legalists is that “the rule is stable if the law may change with time”,129 while Confucians emphasize “the punishments should be severe or slight, seeking only equality results in unequality, there should be normal and expediential requirements”,130 “tolerance

127

Zhu (1958), the dingsi day of the fourth lunar month in the 8th year of Guangxu’s reign, report to the throne by the Ministry of Punishments, p. 1318. 128 Pound (1989), pp. 1, 2. 129 Tang (1930), xinduo, p. 134. 130 Quoted from Shangshu·Lvxing, in Jiang and Qian (1991), p. 441.

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and severity should be used in complementation”.131 In Zhou Li, a book believed to be completed during the Warring States period and the Han dynasty argues for the relation between the time and the law, as shown below: “slight punishments for newly acquired states, normal punishments for states appeased, while harsh punishments should be used for turbulent states.”132 Thus, the pursuit for stability rather than literalism becomes characteristic of ancient Chinese laws. Thus far as the evolution of law with time in Qing dynasty is concerned, another level concerning the flexibility in legislature lies in the flexibility in the implemnentation of laws by the ruling group, i.e., the balance between “conviction via literal clauses of law 守文定罪” and “punishments beyond law 法外行刑”. Especially in cases involving “politics” or “current situations”, the “certainty” of law would be compromised. In the traditional Chinese sociopolitical system, the ruling group always adopted a pragmatic attitude driven by their interests, expediential exercise would be used to cope with the current situation, modifications would be made to the law as the ruling instrument in addition to the inheritance of law, and this is the so-called “situational punishments”. As Liu Song in the Jin dynasty said, “the emperor and his subjects have respective responsibilities, the law must be obeyed, so the responsible officials must abide by law literally; there are incompleteness in the provisions of law, so that senior officials should solve the hysteresis; there are expediential needs, so that the emperor decides on the expediential measures”.133 Theoretically, the supreme rulers of Qing should “follow the heaven 法天” in governance, to represent the self-exerting room of flexibility to maintain social stability and concrete changes in pursuit of targets and authorizing local administrative organs with certain room for flexibility, while the provincial governors-general and governors should “follow man 法人”, to keep the balance of various parties by a middle-of-the-road flexibility, while the lower level county magistrates should “follow the earth 法地”, to carry out the central government’s provisions relatively strictly. According to this theory, the emperor’s decrees in the Qing dynasty were the supreme origins of law, the emperor controlled the supreme judicial power of the nation, law changed with the emperor’s words, so the flexibility in the execution on the spot was to some extent reasonable. This is not only a representation of arbitrariness in the “rule by man” for the absolutism system and the question of letting law negative. In the Qing dynasty, execution on the spot as a judicial system acquired its “legitimacy” from the authorization of the emperor. Law has a color of violent in itself; it is a combination of “reason” and “power”. There are two opposite views concerning its connection with wars in academic circles. One view holds that “law is silent before armed forces” (Inter arma enim silent leges), that is, “when artillery roars, law escapes”, this view is prevalent in all countries; the other view believes that wars promote the evolution of law. Heinrich Gotthardt von Treitschke (1834–1896), a German historian and politician, had a famous saying against this, he said that “wars are father of culture, and mother of 131

The story comes from Zuozhuan·the 20th year of Zhaogong, in Kong (2001), Book 2, pp. 2842, 2843. 132 The expression comes from Zhouli·Qiuguan·Dasikou, in Chen (2006), p. 80. 133 Yang (1979a), Compilation 1, Book 4, p. 2598.

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creativity”. However, for both views, the idea that wars might bring changes to law is correct. When Qing rulers fought to rule interests in moments of life and death, law was often abandoned. Such measures were very obvious when Qing first entered the inner land through Sanhaiguan. Instead of adopting a traditional view, I will not treat the issue of legitimacy as a still and metaphysical object for studies but as an ever-changing dynamic process. “Legitimacy” is not something native, but when “the people have ‘an experience for a reasonable period’ for a regime, they accept its discipline, and get ‘symbolic rewards’ from it, then the regime acquires its legitimacy”.134 Therefore, “legitimacy” is a process of gradual acquisition. As Fredman said, “one approach in learning legitimacy is through behaviors. Laws supported with threats of force generate behaviors, which are repeated, before laws become customs after people’s familiarity of them, and a coral reef of behaviors is established.”135 Qing is a dynasty established by minority rulers after their conquer of the central plains, in the very beginning they learned from the corruptions of Ming dynasty to avoid having the same mistakes, the supreme rulers had been always conscious of their identity as an ethnic minority, less taxation and free labor was demanded, Confucianism and Chinese traditional cultural were embraced to weaken the ethnic conflicts in a series of policies. Among them, just as modern Western liberalists advocate the “downsizing of the government” was a measure for this end, while the prosperity during reigns of Kangxi, Yongzheng and Qianlong was a result of their efforts, their legitimacy was proved by socioeconomic development, the Han people also started to recognize its legitimacy after the transfer of power from Ming dynasty to the new government of Qing. Before Qing, despotism had never culminated like this. During the Han dynasty, “local magistrates might kill without reporting to the emperor”,136 local magistrates in the Sui dynasty and Tang dynasty had the power to kill, until the Song dynasty, “the restriction upon the power of killing of local magistrates started to be seriously monitored”.137 Therefore, now and then there were officials’ voices against emperors’ dealing with trials and punishments in person. However, since Qing entered Sanhaiguan, although there were twists and turns in the establishment of despotism, it rapidly reached an unprecedented height. In the legal procedures, “the power of life and death was within the purview of the emperor” was actually realized, and the voice against the personal dealing with punishments by the emperor was throttled. In law, only the emperor had the power of life and death in the nation. During the middle period of Qing, all death penalty cases should be reported to the emperor in “special case reports” by provincial governors-general and governors, and the emperor ordered the three judicial departments to review and confirm the cases, after which reports were made to the emperor again, before the decisions were made by the emperor. According to the estimation by Zheng Qin, there were over 3000 death penalty cases in one year in Qing dynasty, the provincial governors-general and 134

Merelman (1966). Fredman (1994), p. 144. 136 Zhao (1990), “Cishi and Local Magistrates May Kill Without Report to the Throne”, p. 250. 137 Ibid. p. 291. 135

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governors and the Board of Punishment would made two detailed reports for each case, so there were approximately 6000 case reports, such reports should not be made in days such as neighborhood sacrifice-offering days, days to pay tribute to cemeteries or temples of previous emperors, days offering sacrifices to temples of heaven and earth, the death days of ancestors, the Wanshousheng festivals, days making patrols, days for returning to the capital, and other festival days, so the emperor should treat more than 10 cases everyday, so that today we have the largest number of decisions on reports of punishments in the Qing archives consisting of 9 million documents. In addition, according to the Qing routine, all the death penalty cases should be collectively memorialized by the Board of Punishment by the end of each year, yellow booklets were separately made for various provinces, in 6 categories, i.e., robbers, salt smugglers, rapes, murders, manslaughters, and offence against reputation and incests, etc., for each case, the name of the criminal, the native place, the brief of the case and the trial process should be listed, the documents were entitled “Bill of Cases of Robbery, Execution and Hanging for All Provinces 各省盗斩绞等案清册”. The Memorialized Collectively (汇 汇题) made by the Board of Punishment concerning judicial trials is an indispensable legal procedure to allow the emperor to monitor judicial trial matters in the nation, and legitimacy was finally demonstrated in this way. As Zheng Qin said, Qing emperors’ decisions regarding death penalty cases were rarely willful in contrast to some emperors before Qing; it shows an institutionalization of despotism in its mature development in the Qing dynasty rather than a restriction of despotism. Qing’s level-by-level review system, the autumn assizes, etc. certainly showed stiffness in pattern, overelaborate formalities in procedure, but it functioned well in securing that cases were tried according to legal procedures, and the practice of favoritism against law of officials was prevented.138 Behind this “most prudent and detailed” treatment of death penalty cases, the emperor’s power had already expanded into the judicial field. For this reason, during Daoguang’s reign, Mei Cengliang said that “the country has been prosperous and harmonious without minor crimes for 170 years. The territory is enormous with a border of over 100,000 li, and the administration is exercised by the head of the central government. All provincial governors-general and governors do things with awe to the emperor as if he is nearby. The emperor’s commands are sent to subordinate officials in a level-bylevel way, the command documents drafted by civil officials keep officials obedient as sons or grandsons, without replies from the emperor, lower officials cannot do anything with any minor things. The duties and powers are united in one, the discipline is strict, which is incomparable in ancient history.”139 This account can be deemed a real demonstration of despotism during the reigns of Kangxi, Yongzheng and Qianlong in the Qing dynasty. We agree that “legitimacy” and “legitimation” are two slightly different concepts, similar to “modernity” and “modernization”; the former refers to a property on the paradigmatic level, while the latter refers to the strategy or process in the pursuit of such a property; however, Habermas did not draw a clear line between the two 138 139

Zheng (2000), pp. 75–83. Mei (1918), Vol. 2, “Shangfangshangshu”, p. 1.

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concepts.140 In modern times, realist jurists in Scandinavian countries, in their opposition to what they call “the method of justice”, proposed a similar view as Fredman’s upon the shaping of legitimacy, they deemed that: law is not an effort to realize justice, but made by necessary social needs or out of pressure from social groups. One of their representatives, Axel Anders Theodor Hägerström (1868–1939), pointed out that value judgment is merely a judgment based on its literal form. A science on oughtness cannot exist, and the research on real principles of justice is merely a fantasy.141 Vilhelm Lundstedt (1882–1955), another representative, clearly claimed that justice was merely an emotion of the bearers of law, while this emotion was generated by customary and dominant ideology, i.e., legal order is satisfying. “The sense of justice cannot direct law; in contrast, it is directed by law.”142 Among the three concepts of legality, legitimacy and authority, the strength of subjective value judgment rises like a ladder. The subjective color of legitimacy comes between that of legality and authority. The legitimacy of political rule originates from the “consent” of the ruler, but this consent is always a variant rather than a constant. There was tension between the costs of Qing’s level-by-level check and review system and the rigid fiscal approach adopted to ease up the anti-Manchu emotion of Han nationality. This is the economic reason for the occurrence of execution on the spot. In the late period of Qing, Bailianjiao and Taipingtianguo divested the prosperous Qing dynasty of its magnificent appearance, the corruption of Qing’s rule was shown in its true colors, its legitimacy was eroded, the occurrence of execution on the spot in military actions could be deemed as a bulgy demonstration of “naked power”. Early in the suppression of Taipingtianguo, execution on the spot was introduced as a brand-new system into social life; it was gradually known and understood by people in various ways. Since the execution on the spot was conducted by the government, whose administration was taken by people as just and acceptable, henceforth execution on the spot got its recognition from the people and its jurisprudential basis. For a brandnew system, since its imperfections, so the root of its legitimacy was not deep, but in a turbulent disturbance, when the psychological threshold was raised for the people, execution on the spot was accepted by chance. There is a popular saying among German jurists that goes like this: “expedient measures are mostly fallacies” (Notlösungen sind oft Fehllösungen!). As a tough law, execution on the spot was an expediency adopted by the government to rescue the crisis of legitimacy, but the expedential measure later became a problem that could not be solved, just like tigers out of cages, it was hard to take them back into cages again, so that the ruling group fell into the “prisoner’s dilemma”, they attended to one thing and lose another, a perfect and versatile solution was impossible. Everytime when society is in emergencies, the ruling regime always tends to adopt the most efficient and rapid measures and means to control and minimize the hazards caused to 140

The expression “legal justice”(falv zhengyi) mainly has two connotations: one is what Fuller meant by “legality”, another is judicial justice or justice according to 1aw. See Tanaka (1994), p. 188. 141 Hägerström (1953), p. xi. 142 Lundstedt (1956), p. 203.

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its legitimacy. Since such means arise out of emergencies, rulers often emphasize the efficiency of such measures, and this situation determines that such measures must be violent. Qing rulers had to kill many people in large-scale suppression of peasants’ uprising forces and bandits to stop violence. This was a sudden huge profit of violence for the Qing rulers, but meanwhile, ruthless suppression also made the execution on the spot itself a “naked violence”, it was no different from drinking poison to quench thirst. Just as ancient military thinkers said, “killing 10,000 enemies costs the death of 8000 soldiers on one’s own side”, fierce opposition had to terminate the legitimacy of rulers themselves; it became a “double-bladed sword” hurting the legitimacy of the rulers. Moreover, in the operations of such measures, they were often abused due to carelessness or man-made fallacies. For example, the wronged cases caused by execution on the spot are clear evidence of this situation. In contrast to the level-bylevel check and review system, execution on the spot might save costs for trials and deliveries for reviews, but the thrift was at the cost of the reduction of the opportunity of remedies on the part of the death penalty victims, the transition from direct trials to reviews of written documents of cases meant the lack of reviewing process by the central judicial departments, and the chance of correcting wrong decisions was greatly reduced. The establishment of execution on the spot made the death penalty lose its proper control, the original system of trying and autumn assizes of death penalty cases was invalidated, only one or two cases out 10 were included in legal procedures, every year thousands of people were executed “beyond law”. The everincreasing and willful executions on the spot made many criminal cases avoid normal judicial review procedures and solve by themselves. The conventional functions of judicial trials and persecution of surveillance commissioners were greatly weakened. A society propelled only by legal punishments and formal punishments is like a society with bones having frictions among them. Therefore, certain cartilage must be present to relieve sudden ruthless strikes.143 In some sense, the frequency and speed of executions can be deemed an indication of the level of civilization of a state. When the death penalty abounds in a state’s law, the state cannot be peaceful and secure. Under the coercive policy of violent execution on the spot, law was complained by people, punishers made their punishments but the criminals still committed crimes, both the encouragement for good people and punishments for the bad people cannot be done, ancient Chinese said that punishments were used to having no criminals to punish, but now the punishments brings more criminals, so punishments lead to more punishments. However, when people feel desperate and no longer fear death, how can the ruler deter them with death? Once in this situation, when the people firmly believe that “why this day is not over yet, by then I want to die together with you”,144 then even if punishments pile up, numerous people are executed, the situation will not change, but be filled with the sanguinary scenes and long-term rule is cut short. When “lawless laws” are prevalent, the situation in which “punishment power is weight in provinces but slight in the capital” in judicial trials occurs, which even greatly weakens the legitimacy of rule by a dynasty. In an age of injustice (Unrecht), 143 144

Epstein (2004), p. 449. Quoted from Shangshu·Tangshi, in Jiang and Qian (1991), p. 112.

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there are many tragedies caused by unjust judgments. From this, it will be seen that any systems or measures have merits and demerits; when the advantages and merits overweight that of other systems, then the demerits and hazards it brings to society will be more severe in degree.

References Chen, S. (1983). Records of customs, (edited together with Licehuichao by Deng Chuan’an and Yang Lifu). Bibliography and Document Publishing House. Chen, S. (2006). Zhouli·Yili·Liji. Yuelu Press. Chen, T. (1998). On evil things of Lu Shirong. In D. Chen, S. Qiu & Z. He (Eds.) Memos and suggestions to the throne in Yuan Dynasty. Zhejiang Classics Publish. Chen, X., et al. (2000). Sishuwujingquanyi. Zhongzhou Classics Publish. Ding, R. (1969). Public documents for governing Jiangsu (Vol. 10), Zhonghuawenshi Series, 47. Huawen Bookbureau Ltd. Co. Duan, Y., & Ni, J. (2007). A collection of works by Chen Jiongming, Book 1. Sun Yat-sen University Press. Dunning, T. J. (1860). Trade’s unions and strikes: Their philosophy and intention. M. Harley. Epstein. (2004). Simple rules for a complex world (X. Liu, Trans.). China University of Political Science and Law Press. Feng, M. (2002). Stories to awaken men. Great Wall Publishing House. First Historical Archives of China. (1990). Historical archives of Qing government’s suppression of Taipingtianguo. Guangming Daily Press. First Historical Archives of China. (1995). Archives of Qing government’s suppression of Taipingtianguo, Book 18. Social Sciences Literature Press. Fredman. (1994). The legal system: A social science perspective (Q. Li & X. Lin, Trans.). China University of Political Science and Law Press. Fujian Provincial Regulations. (1987). Taiwan literature and historical materials series, Book 7. Datong Book Company. Ge, S. (1972). A collection of articles on administration in Qing Dynasty (Continued) (Vol. 83), bingzheng 22, jiaofei 2. In Modern Chinese historical materials series, Book 75, 741. Wenhai Press. Guan, S. (2007). Baihuasishuwujing. Changchun Press. Hägerström. (1953). Inquiries into the nature of law and morals. Almqvist & Wiksell. He, L. (1972). 4 collections of articles on administration in Qing Dynasty (Vol. 39), bingzheng, dili. In Modern chinese historical materials series, Book 77, 761. Wenhai Press. Hirschberg. (1981). Der Grundsatz der Verhältnismäßigkeit. Schwartz. Hu, L. (1999). A collection of Hu Linyi’s wroks. Yuelu Press. Huang, J. (1895). Jinhudunmo, printed by Shanghai Saoyeshanfang in the 21st year of Guangxu’s reign. Imperial Records of Appeasing Taiwan. (1987). Taiwan literature and historical materials series, Book 7, 101. Datong Book Company. Imperially endorsed precedents of the collected statutes of the Great Qing Dynasty (1976). Guangxu Ed. Xingwenfeng Press. Iwai, S. (2004). A study on the history of Chinese finance. Kyoto University Press. Jiang, H., & Qian, Z. (1991). Jinguwenshangshuquanyi. Guizhou People’s Publishing House. Ke, W. (1959). Louwangyongyuji (Works by a fish that escaped from the net), L. Qi (ed.). Zhonghua Book Company. Kong, L. (2001). Wujing Zhushi. Shandong Education Publishing.

References

181

Lan, D. (1977). Pingtaijilue. In Modern chinese historical materials series (Continued), Book 41, 405. Wenhai Press. Li, G. (2000). Biography of Shen Jiaben. Law Press. Li, H., & Li, H. (2003). Complete works by Zeng Guofan. China Huaqiao Press. Li, H. (1998). Complete works by Li Hongzhang, zougao (Vol. 42). Times Literature and Art Publishing House. Liang, Q. (2003). The biography of Li Hongzhang. Jiangxi People’s Publishing House. Lin, Z. (1947). Xinjilu. Shengzhou Guoguangshe Press. Liu, H. (1851–1861). The guidance note for local magistrates. Huanhaizhinan version. Liu, J. (1996). The continued encyclopedia of the historical records of the Ch’ing Dynasty. In Continuation of the complete collection of four treasurie (Editing Board), 819, shibu·zhengshulei (Vol. 244). Shanghai Classics Publish. Liu, R. (1972). Official documents drafted by Qingshentang. Modern Chinese Historical Materials Series, Book 77, 764–765. Wenhai Press. Liu, W. (1998). The changes of power for governors 40 years before the Jiawu War. Modern History Research, 2. Lundstedt. (1956). Legal thinking revised: My views on law. Almqvist & Wicksell. Luo, E. (1984). A treatise on the Xiang Army. Zhonghua Book Company. Luo, Y. (1933). Remedial plans for public finance during Guangxu’s Reign. In: A collection of papers on modern Chinese economic history (Vol. 1, No. 2). Marx, & Engels. (1998). Complete works by Marx and Engels (China Comunist Party Central Committee’s Translation Bureau for Works of Marx, Engels, Lenon and Statlin, Trans.) (Vol. 31). People’s Publishing House. Mei, C. (1918). Baijianshanfangwenji, revised by Jiang Guobang in the 7th year of the National Republic. Merelman. (1966). Learning and legitimacy. American Political Science Review, 60(3). Political Records of Xuantong. (1960–1970). Huawen Bookbureau Ltd. Co. Pound. (1989). Interpretations of history of law (Y. Cao & Z. Yang, Trans.). Huaxia Publishing Company. Shao, Z. (1980). A collection of articles on administration in Qing Dynasty (Vol. 43), neizhengbu 17, xinglv. In Modern Chinese historical materials series, Book 72, 711–720. Wenhai Press. Shen, Z., & Zhu, P. (1936). Complete collection of works by Hu Linyi. Dadong Book Company. Sheng, K. (1972). A collection of articles on administration in Qing Dynasty (Continued). In Modern Chinese historical materials series, Book 85, 831–849. Wenhai Press. Song, L., et al. (1976). The history of Yuan. Zhonghua Book Company. Song, S. (1993). Songshuji. Zhonghua Book Company. Song, S. (2002). Liuzhaibiyi, in the 19th year of Guangxu’s reign, with an epilogue by Yu Yue. In the Editing Board of Continuation of the Complete Collection of Four Treasurie. Continuation of the complete collection of four treasurie, 953, zibu·rujialei. Shanghai Classics Publish. Suzuki, H. (2004). A research on execution of the spot in Late Qing. In The memoirs of the institute for oriental culture, Book 145, March. Tanaka, S. (1994). Lectures of Jurisprudence. Yuhikaku Publishing Co. Tang, J. (1930). Hanfeizi, xinduo. In Y. Wang (ed.) Wan You Wen Ku, Compilation 1, 1000. The Commercial Press Bookstore. Tang, J. (1999). Guangxu Taiwan Tongzhi. In Zhongguodifangzhijicheng, Taiwan fuxianzhi, 1. Shanghai Bookstore Press. The Editing Team of Historical Materials of Finance at the Office of Consultants, Chinese People’s Bank. (1964). Chinese modern currency historical materials. Zhonghua Book Company. The Institute of History and Philology at Academia Sinica. (1972). Historical materials of Ming and Qing. Weixin Book Company. The National Palace Museum in Taipei. (1988). Memos to the Throne in Gongzhongdang during Qianlong’s Reign. Taipei Palace Museum. Veritable Records of Daoguang. (1960–1970). Huawen Bookbureau Ltd. Co.

182

5 A Study on the Execution of Spots in the Late Qing

Veritable Records of Guangxu. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Jiaqing. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Tongzhi. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Xianfeng. (1960–1970). Huawen Bookbureau Ltd. Co. Wang, M. (1991). Wangsilangzuoyi, X. Zhang (Ed.). Huangshan Bookstore. Wang, S. (1988). Huwenzhonggongfueji. Yuelu Press. Wang, X. (1989). New discoveries of historical materials of Hui and Party: the Tiandihui name book kept by Yang Zaijiang in Yulin county, Guangxi. Academic Forum, 3. Wang, Y., & Wang, S. (1969). Memos and suggestions to the Throne in the reigns of Daoguang, Xianfeng, Tongzhi and Guangxu in Qing Dynasty (Vol. 57), xingzhenglei·lvli. Modern Chinese historical materials series, Book 34, 331. Wenhai Press. Wang, Y. (1997). Essentials for handling cases. In the Editing Board of Complete Apothgems of Officials (Ed.), Complete apothgems of officials, Book 4. Huangshan Bookstore. Wu, D. (2009a). Xiaoyoushanguan owner’s chronicle of his own life (Vol. 1). In Taiwan Literature and Historical Materials Series, Book 9 (188). People’s Daily Press. Wu, S. (2009b). The law of blood exchange: The game of survival in Chinese history. Language & Culture Press. Wu, Z., et al. (1994). China fiscal finance almanac. China Financial & Economical Publishing House. Xia, J. (1957). Xunzhoufuzhi compiled in Guangxu’s Reign. Museum of Guangxi Zhuang Nationality Autonomous Region. Xu, D. (2007). The Minben Ideas and Values in Shanpoyang·Tongguanhuaigu. Shandong Social Sciences, 9. Yang, J. (1979a). Historical materials of Chinese law. Dingwen Book Company. Yang, S. (1979b). Complete works by Zuo Zongtang. In Modern Chinese historical materials series (Continued), Book 65, 641–649. Wenhai Press. Yao, Y. (1974). Zhongfutang Quanji·Dongming Wenji. In Modern Chinese historical materials series (Continued), Book 6, 51. Wenhai Press. Zeng, G.(1986). Complete Works by Zeng Guofan. Yuelu Press. Zeng, G. (1994). Complete works by Zeng Guofan. Yuelu Press. Zhang, J. (1981). Seeings and hearings of officialdom in Daoguang and Xianfeng’s Reign, C. Du & X. Zhang (Eds.). Zhonghua Book Company. Zhang, Y., et al. (1970). Shandongjunxingjilue. In Modern Chinese historical materials series, Book 55, 543. Wenhai Press. Zhang, Z. (1980). Complete works by Zhang Zhidong, S. Wang (Ed.). Wenhai Press. Zhang, Z. (1982). Complete works by Zhangzhidong. In S. Wang (ed.), Modern Chinese historical materials series (Vol. 13, pp. 452–456). Wenhai Press. Zhao, S. (1924). Shenzhaiwenji, B. Wang (Ed.), printed in the 13th year of the National Republic by a Zhao in Xi’an. Zhao, Y. (1990). Gaiyucongkao, B. Luan & Z. Lv (Ed.). Hebei People’s Publishing House. Zheng, Q. (2000). A research on the legal system in Qing Dynasty. China University of Political Science and Law Press. Zhou, J., et al. (1987). Guangxu Shuntianfuzhi. Beijing Classics Publish. Zhu, S. (1958). Records from the eastern gate of Guangxu’s Reign. Zhonghua Book Company. Zhu, S. (1986). The wronged case of Yang Naiwu. Yuelu Press. Zhu, S. (1996). The continuation of records from the eastern gate. In Continuation of the complete collection of four treasurie (Editing Board), 383, Shibu Biannianlei. Shanghai Classics Publish.

Chapter 6

Painting and Photography in Foreigners’ Construction of an Image of Qing Dynasty Law

In recent years, with the spread of the internet and a boom in auction markets, we have seen the coming of an era of so-called “picture-reading.” It is no surprise, then, that paintings and photos having to do with Qing justice have confronted us to be “read.” Both scholars and nonscholars have been attracted to them, and they have naturally believed that such pictures show real historical scenes. In modern times, thinkers in China have striven to reform their laws, which were perceived as stemming traditionally from power bases. The old legal system has been contrasted with Western legal culture, and in this contrast, the images of Qing justice have served as powerful evidence. However, in the past decade or so, Western scholars, for example, James L. Hevia, have been devoting critical analysis to some of these images from a postcolonial perspective, and there is still room for further detailed research that utilizes available Chinese data. In my own approach to learning about history through images, it has become apparent that (1) foreigners’ negative emotions have experienced a continuing period of construction, much as the way in which the diamond (and other gems) have been artfully made into a symbol of personal love and devotion by commercial advertising; (2) the construction by foreigners of this sort of imagery regarding Qing justice in fact directly or indirectly served the establishment and maintenance of Western extraterritoriality in China; and (3) the seemingly real images or pictures hold an untold back story and convey a serious distortion of the truth.

6.1 The Painters 6.1.1 George Henry Mason’s Punishments of China During the 1790s, an Englishman named George Henry Mason skillfully compiled a work titled The Punishments of China, Illustrated by Twenty-Two Engravings: With Explanations in English and French. According to Yang Zhifeng’s account in © China Renmin University Press 2021 Z. Shiming, Law, Resources and Time-Space Constructing, https://doi.org/10.1007/978-981-16-8055-7_6

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Fragmentary Images of Empire, the title page of that book said that Mason was a major of the British 102nd Regiment, but his biographical details are not known, and we cannot find relevant information. Moreover, some suspect the name itself was an invention. However, Yang’s statements may not be true.1 I can find Mason’s whereabouts in the literature of eighteenth-century Britain: he served in the British army in 1796 and 1798 for the East India Company, and his name appeared in the plan calendar and army staff rolls of the Company.2 His book spread out to many European countries, in both English and French, and was later translated into German. Because it achieved some popularity, how could its publisher invent an author? Surely, he would have attracted criticism from soldiers of the 102nd still alive at the time. Punishments of China were first published in 1801 in London, with 22 pictures in all, showing actions such as inquisition by torture, arresting criminals, interrogations and thrashings, flogging, imprisonment, exile and execution. Some pictures show cruel scenes of the cutting of foot tendons, the cangue bed (枷床), etc. At the time, when Chinese scholars saw the illustrations, they felt that it was important information, praising the book as a milestone, an eternal classic in Western art history, and invaluable information for the study of the criminal punishment system of Qing. In their view, Western painters truthfully represented scenes of sanctioned violence. Thus, the images in Punishments of China offer an opportunity to review history, since not a single mainstream Chinese painter could have created similar scenes.3 We cannot directly or precisely calibrate Chinese culture to Western standards. According to Foucault, since the 1890s, government punishment and torture have become increasingly invisible and less accessible to public scrutiny. In ancient China, Confucianism emphasized that “punishment is conducted to prevent punishments.” We have depictions of punishment in ancient China, but the situation later in Qing was special because literary inquisitions were frequent. The Qing government was strict in its inspection of forbidden aspects found in books. The scenes depicted in Punishments of China were not seen as trivial in the eyes of scholars and officials, but in the eyes of the government, it was a “forbidden book” with a bad intention; thus, books of this type could not be distributed in China. After publication, Punishments of China attracted foreigners’ attention. It has long been deemed precious material for research on Chinese law. However, its veracity came under doubt. After its publication, certain reviews pointed out that the editing was skillful, and the color and etchings well done, but readers could not be guaranteed of the pictures’ accuracy or that they were taken directly from real events. It was also mentioned that the book did serve to satisfy Western readers’ feelings and tastes.4 1

Yang (2009), p. 55. The East India Kalendar, or, Asiatic register for Bengal, Madras, Bombay, Fort Marlborough, China, and St. Helena, London, M, DCC, XCVIII, 1798, p.112. East India Company, Headquarters, Choultry Plain, thirteenth July, M.DCC.XCVI. General orders, by the Commander in Chief, Madras, M.DCC.XCVI, 1796, p. 6. 3 Tian and Li (2007), p. 123. 4 Monthly Magazine or British Register, Vol. 11, 1, p. 85. 2

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After translating the Great Qing Code, George Thomas Staunton claimed that Punishments of China copied Chinese depictions. He thought that in some aspects Mason used his imagination, which was based on stereotypes of cruelty and barbarianism.5 Such descriptions are very misleading. The creator of the pictures in Punishments of China was in fact not Mason. In contrast to William Alexander’s paintings and although people’s faces in certain illustrations in Punishments of China show Western features, its Chinese style is rather obvious. Even the Chinese characters are skillfully written, thus different from the picture-like Chinese characters drawn by Alexander; thus, it seems that they could not have been done by someone from the Western painting tradition. If this is true, then the conclusion that they represent what scholars have thought to have been Westerners’ own views of late-Qing Chinese law culture seems quite untenable. In fact, recent findings in the history of art also prove that our doubt is reasonable. Thus, we can safely say that all the pictures in Mason’s book were painted by a Chinese painter named Pu Gua. They were originally Chinese products rather than foreigners’ products and were a genre called export paintings. Many Westerners visiting China in the nineteenth century mistook this sort of painting as a rice-paper medium, but through field investigation, art historians have started to correct the category and now believe they were watercolor paintings on pith. At that time, Western visitors at Guangzhou admired this genre, believing that it reflected Chinese society, and they bought numerous examples to commemorate their trip or to sell or to give as gifts. Export-painting studios did spring up in Guangzhou and became very popular. Samuel Wells Williams, an American missionary, discovered in 1847 that 2000– 3000 painters were employed in these Guangzhou studios.6 According to historical data, approximately thirteen large foreign companies took part, under names such as Zhougua, Xinggua, Pugua, etc. In the nineteenth century, Westerners in China referred to such painters using the English affix “qua” after the brand names, and most painters signed their paintings according to this name, for example, “Puqua,” “Lamqua,” and “Tingua.” Sometimes the signing word varied in spelling, with names such as “Lin Gua” and “Ting Gua.” Among the painters who were good at drawing export pictures for “meals,” Pu Gua was rather famous. Due to the lack of documentary literature, we know little about him. However, we do know that William Alexander, the painter with the British delegation headed by Lord Macartney (George Macartney, 1737–1806), had frequently visited Chinese painters’ studios that were making statues in the European style in Guangzhou, and he had met Pu Gua. According to William Alexander’s diary, on his arrival at Guangzhou on December 12, 1793, he met Pu Gua and Camfou, two export-picture painters at Guangzhou. So it seems almost certainly to me that at the end of the eighteenth century, a British man named Mason purchased a large number of export paintings by Pu Gua, and that if he did not actually buy out Pu Gua’s whole stock, he was certainly one of the most important clients of Pu Gua. It should be noted that the purchase of export paintings, such as Mason’s, was not rare. Around 5 6

Staunton(1810), Translator’s Preface, pp. XXVI—XXVII. Williams (1861), p. 175.

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this time, clerks of the East India Company purchased such paintings when they visited Guangzhou, and this activity was not limited to Guangzhou but also reached local studios in Southeast Asia and Japan. I myself have seen more export paintings showing Qing-dynasty punishments than Punishments of China shows us—perhaps approximately 30 or more. Of course, quality and condition vary greatly. According to Craig Clunas, George Henry Mason had been a young soldier in Madras, India, but because of an injury in 1790, under a doctor’s advice, he went to south China for recuperation. He selected Guangzhou for this purpose, staying for a while as a guest of William Fitzhugh and James Drummond, merchants of the East India Company; it was during this period that he bought the paintings of Pu Gua’s studio.7 In the preface of his book, Mason said that the paintings he collected were originally his private collection and not for publication. After keeping them for a decade, under the encouragement of friends, he eventually offered them to a publisher. William Miller, this publisher, had earlier in his career made a fortune by publishing albums of paintings that depicted costumes of various countries with English and French notes. In the year before the publication of Punishments of China, Mason published The Costume of China: Illustrated by Sixty Engravings with Explanations in English and French (1800), which probably encouraged him to offer up Punishments of China. There were sixty colored engravings in Costume of China that portrayed peoples of various trades, and under each painting was the signature “Pu Qua, Canton, Delin” to indicate that the collection of engravings was formed in reference to Pu Gua’s paintings. Although there were no such direct signatures in Punishments of China, they ought to have been similar to those in Costume of China. The latter work brought William Miller such a great success that William Alexander would publish his paintings in a book with the same title, namely, The Costume of China, Illustrated in Forty-eight Colored Engravings (1805). This point may prove the connection between the two books published by Mason. Due to space limitations, we will take up only Painting 13 in Punishments of China (see Fig. 6.1) as an example. From this illustration, we know that through early exposure to estern painting styles, the painter uses skills, ideas, and arrangements that are different from the traditional Chinese style. The features of Western realism are there—scenography, chiaroscuro, projection, etc.—while simultaneously using Chinese line-drawing skills. This painting might have been adapted when it was engraved by Western artisans, but the Chinese characters that we see on the cangue seals are probably not from a cursory copying by Westerners: for example, “两广部堂示” (“by order of the Governors-general of Guangdong and Guangxi”) in the upper part, the text “吾恶 土豪混名插翅虎枷号示众” (“the evil villain nicknamed ‘winged tiger’ should be put in the cangue in public”) on the left, and “吾恶土豪混名插翅虎枷号三日责放” (“the evil villain nicknamed ‘winged tiger’ should be put in the cangue for 3 days before being beated and freed”) on the right. Mason titled this painting “Punishment

7

Clunas (1984), p. 33–42.

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Fig. 6.1 Punishment of the wooden collar. Source George Henry Mason, The Punishments of China, Illustrated By Twenty-Two Engravings: With Explanations in English and French, 13

of the Wooden Collar,” and the explanation given is one of the most detailed among all the paintings in the book.8 The cangue was originally used for detaining prisoners. Since the time of the Sui (581–618), all dynasties had detailed regulations for the size of the cangue. It was established as a primary punishment only later, in the reign of Ming Taizu, 1368–98, when the Great Ming Code (大明律) stipulated, in regard to the examination system, that students and officials who took the examinations found secretly hiding papers, or using silver to pay someone to write their examination papers would be punished by the Judicial Office; they would be put in the cangue for a month before converting them to commoner status at the expiration of the punishment. The use of cangue was more frequent during the Qing. According to the Manuscript of Qing History·Treatise on the Penal Law (清史稿·刑法志), the regulation of trials in Ming times saw the cangue used in addition to the main punishment to induce humiliation. In the system of punishment for the Qing dynasty, the following were either inherited from before Ming or were newly invented by the Ming: hanging, expulsion, deportation, cangue, face tattooing, atoning for one’s crime, dismembering the body, beheading with public display, killing with corpse display, and the like. None of them was a just and correct punishment. In the eighth year of Kangxi’s reign (1669), the Board of Punishment suggested that only thin chains rather than long cangues should be used for prisoners, and the cangue was only used for executions. The periods at first were no more than 1, 2 or 3 months, but later, the periods extended to years or even lifetimes. At first, the weight of heavy cangues was 70 jin, and the weight of light cangues was 60 jin. In the fifth year of Qianlong’s reign (1740), the weight of the cangue was made 25 jin as standard, but in the regulations, there were still stipulations for 8

See the English original at http://boingboing.net/208/01/04/the-punishments-of-c.html. Accessed March 25, 2009.

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using heavy cangues of 100 jin. Since the Jiaqing reign, heavy cangues were at most 35 in weight, but in Sichuan, Hubei, Henan, Anhui and Guangdong provinces, there was a newly invented instrument of torture, which was a large block of stone with an iron bar fixed to it. In a time when laws in late Qing were modified, the cangue punishment was removed from law. There are many points in the descriptions in Manuscript of Qing History·Treatise on the Penal Law that deserve deliberation, but generally speaking cangue punishment in the Qing dynasty is truthfully reflected. For Painting 13 in Punishments of China, according to contemporary law when this picture was made, traditional, especially heavy, cangues were used only for specific crimes, and other cangues were 25 jin in weight.9 In the first year of Qianlong’s reign, it was agreed that various yamen would use diverse torture instruments, made case by case, without a common convention. The instruments of torture used by the Board of Punishment were also devised over years; there was no standard to refer to, and so they were not the same in weight and length. In the tenth lunar month of the thirteent year of Yongzheng (1735), the Ministry appointed a special official to be in charge of the renovation of such instruments, and the standard came into being. However, in provinces and counties, there were no standards, and since there were no official assessments by superiors and there were no special checks, instruments of torture ultimately were of different weights. Later instruments of torture did follow specifications: short sticks for clamping legs (短夹棍) and heavy cangues made of large planks (大板重枷) were not allowed; when the circuit intendants went to counties for assessments, such instruments should have been checked carefully. If illegal instruments were found, officials would be criticized and misconduct reported; in cases of abuse of punishments, the official would be removed from office. In collecting money and food supplies, violators would be punished by the small-plank light cangue (小板轻枷) to show a gentle punishment, and when the money and supplies were fully paid before deadline, the violator would be released immediately. Later, when officials responsible used heavy cangues made of big planks for a harsh punishment, the governor would have to investigate and criticize carefully. In the specification made in the fifth year of Qianlong (1740), there were no standards such as “fixed sizes and designs of sticks for tightening legs, sticks for squeezing fingers, the cangues or bamboo ferules, which were marked, sealed and distributed by the government,”10 so it is understandable that in Painting 13 it is not thus marked. As provided, the crime conducted by the criminal was written on the cangue to warn and admonish. This is seal slip, also called a “seal cover,” which cannot be broken or creased. Mason obviously knew little Chinese, so he did not understand the characters on the seal by Pu Gua. The seal strip painted by Pu Gua was not consistent with Qing law; it had no official seals but three red circles, resembling the confession of a criminal paraded through the streets. The characters saying “evil villain nicknamed ‘Winged Tiger’ should be put in the cangue in public” might be Pu Gua’s venting of anger, that is, to humiliate the person by satirizing that he 9

Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976). Guangxu edition, Vol. 723, xingbu, minglilv, wuxing, p. 14429. 10 Ibid., Vol. 839, 15547.

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was put into the cage like a captured tiger. In the sixth lunar month of Qianglong 13 (1748), the emperor Qianlong instructed the governor of Jiangsu that when bad criminals in the capital harm the local community, there was a convention for unending cangue punishment at various city gates. The accomplices in two cases were referred to in private as Lu Gaozaozi陆高枣子, Huai Zaozi坏枣子, etc.: they were called rascals, and it was stated that they should all be cangued without limit to warn other scalawags.11 From this, since the criminal was called “evil villain nicknamed ‘winged tiger’” on Painting 13, even if he was not infamous and “delivered to the provincial capital for long periods of punishment in heavy cangues,” he could not have been “3 days in cangue,” as written on the seal strip. In my view, there is nothing like “3 days in cangue” in the Qing literature, so Pu Gua seems to have played with words for amusement. We can see that the colloquial phrase “责放” (zefang, beating before freeing) was used in the right seal strip, showing that as a painter, Pu Gua was not an educated man. If it is an official seal strip, the expression “责释” (ze shi, beating before release) would have been used. Taking all the pictures in the album together, it seems that legal punishments and illegal cruel punishments were not distinguished, outdated information, and contemporary reforms of the time were mixed together, with mistakes and seldom seen materials woven in. For Painting 13, Mason claimed that after a criminal was put in the wooden cangue, he could not see his feet, and his hands could not reach his mouth. Day and night he would be in this special instrument of torture, not allowed to be in a densely populated area, not even allowed to have a rest; a bailiff supervised him and continuously pressed on him. This explanation obscures the difference between felons paraded in the streets in pillories and tax violators who were usually put in the cangue during daytime and released at night. However, Mason’s explanation of the reduction of the pressure of the wooden cangue on the body by a shoulder-high parapet chair that supported the weight of the wooden cangue helped the readers’ general understanding. Since the painting at first sight reminds people of illegal torture instruments such as the jia chuang (“box bed” 匣床), the invention of an attempt to provide a certain kind of relief of physical pain could not prevent people from becoming convinced that things had reached their limit and were now improving. In addition, in a work titled Siyitang Diary, Zhou Shouchang, a Qing official who was cabinet scholar and vice minister of the Board of Rites, spoke of “the abolition of illegal punishments by emperors of this dynasty”. In the 3rd year of the Shunzhi reign, cutting of foot tendons was demolished. The old tradition in which all whose capital punishment was diminished should be flogged 100 times, with ears and nose pierced. Immediately, the emperor commanded that “ears and nose are prominent parts of body; this rule is abolished forever.” In the 18th year, box beds, head hoops, and large ferules made of bamboo, including roots, bamboo picks, and irons, were forbidden in punishments. In the 37th year of Kangxi, large chains, short nipping sticks (approximately 1 foot in length), large 11

Veritable Records of Qianlong (1960–1970), Vol. 316, the 6th lunar month in the 13th year of Qianlong’s reign, p. 4640.

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Fig. 6.2 Hamstringing a malefactor. Source George Henry Mason, The Punishments of China, Illustrated By Twenty-Two Engravings: With Explanations in English and French, 17

cangues (130 jin in weight), and tile-shaped heavy bamboo ferules were forbidden. In the 15th year of Jiaqing, Shibangchui (十棒棰, 10 wooden clubs) was prohibited. In the 15th year, stretching on wooden scaffolds, hanging in suspension, and piercing fingers by needles were prohibited.12 According to history, in the intercalary sixth lunar month of the 2nd year of the Shunzhi reign (1645), the Qing government abolished the punishment of cutting foot tendons, based on the proposal by Li Shikun, the palace steward for the justice sections. This punishment was revived once during Kangxi’s reign, but in the fourth lunar month of the 3rd year of Yongzheng, the emperor enjoined tendon cutting for escaped outlaws.13 In the 3rd year of the Qianlong reign (1738), it was agreed that since the foot tendon cut had been abolished, then as regards criminals who stole ginseng in Shengjing, etc., originally having been punished by cutting the foot tendon, their punishment should be changed to 100 floggings and 3000 li distance of exile, as providedin law. Punishments of China were different from what was described by Zhou Shouchang, above, since it depicts punishments such as tendon cutting that were enjoined at that time; see Painting 17 of the hamstringing of a malefactor (Fig. 6.2). This image would have appealed to the visual interests of Western readers. However, Mason described a kind of mortar named “chunlan” (春 兰) used by bailiffs in hamstringing as a hemostat on the wound; this is valuable material for our research into cruelty in China. After mid-Qing, there was an increase in the activities of anti-Qing organized societies. The Manuscript of Qing History·Treatise on the Penal Law, previously cited, mentions the spread of the use of stone blocks fixed with iron bars in Sichuan, Hubei, Henan, Shandong, Anhui, Guangdong, etc. For example, in the fifth lunar month of the 6th year of Daoguang (1826), according to a memo to the throne presented by Na Yancheng, governor of Zhili, the Qing court permitted severe punishment in Zhili 12

Zhou Shouchang (1987), pp. 121–22. Veritable Records of Yongzheng (1960–1970), Vol. 29, February of the 3rd year of Yongzheng’s reign, p. 424.

13

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Fig. 6.3 A malefactor chained to an iron bar. Source George Henry Mason, The Punishments of China, Illustrated By Twenty-Two Engravings: With Explanations in English and French, 12

for theft: the provision was that if a criminal had more than 4 thefts, or more than 3 recommitments, with more than 4 accomplices and with swords, they should be punished by floggings and cangues according to the theft value, and after the punishment fastened for one year to an iron bar 40 jin in weight.14 This new punishment was more cruel than the cangue; it was depicted in Painting 12 of Punishments of China, showing “A Malefactor Chained to an Iron Bar” (Fig. 6.3). We can say that the picture is the only image of this punishment and reflects individually evolved new developments in the criminal codes during the reigns of Jiaqing and Daoguang. Stories of export picture painters in Guangzhou, such as Pu Gua, are not found in historical records. As professional folk painters, they lived a poor life in cities. They had studios near the Thirteen Foreign Trading Companies area in Guangzhou, and with their traditional Chinese painting skills, they copied Western sketches for Westerners or painted pictures on various themes and thereby made a living. Similar to the Spring Festival painters and porcelain workers, they lived on their arts, producing handicrafts in the small business economy. Their watercolor pictures on pith imitated Western painting styles, but traditional Chinese realistic painting techniques were mingled, and thus their art style was both realistic and decorative. For scholars today, who have long confined themselves to a black and white world, such pictorial arts provide a good opportunity to restore visual perspectives to a time without cameras and recorders. Before the appearance of photography in China, freehand expressive Chinese paintings did not pay much attention to a realistic depiction of details, and in this sense, export paintings were “hand-painted photos” of Qing China. For this reason, in European museums, export paintings were kept as precious items. It is a common belief that a picture tells more than a thousand words, but effective academic research should be different from purely “amateur enjoyment”; we should use a comparative and critical approach to such images and find the void within Mason’s texts and pictures. We should reveal the deeper thoughts expressed and 14

See Veritable Records of Daoguang (1960–1970), Vol. 98, May of the 6th year of Daoguang’s reign, p. 1769.

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hidden behind the texts, rather than speculate out of curiosity as to how people in the past misunderstood them. Under the pressure of literary inquisition during the Qing, most intellectuals were not free to express public opinion; probably from their instinct for self-preservation, they deliberately avoided certain sensitive issues, but the export painters were peripheral people living at the bottom of society. In their minds, they had nothing to do with the Qing court. Thus, when this sort of independent mentality of a “non-Chinese” Chinese came in contact with an actual non-Chinese, the infamy of the dark judicial system of the empire could spread abroad from the coastal province of Guangdong. Since the market-based painters had the advantage of close observation, they could reveal phenomena beyond Westerners’ depictions; therefore, Punishments of China did not fall into the three set patterns—depicting interrogations, flogging with the bamboo, and cangueing, but showed numerous cruel punishments. However, due to their lack of knowledge about the legal culture, any understanding of the complex Qing judicial ecology by folk painters who painted export pictures at Guangzhou was of course limited. Deeply nested judicial operations, such as drafting sentences, making investigations, arrests, trials and transfers under escort, are not apparent. In the paintings of Punishments of China, the painter’s view as a “commoner” emerges in this way. However, we can also see it as a lowly Chinese artisan’s scathing comment on the official judicial system. At this time, with the expansion of Western colonies and Europeans’ global travel, adventure, and sightseeing, China was a new cultural continent waiting to be explored. Before the invention of photography, paintings were the best media for Westerners to gain an understanding of China. Exported realistic paintings served as postcards do for today’s tourists, as a faithful representation of life in Guangzhou then. Export picture painters such as Pu Gua were folk artists whose involvement in this art was not out of self-conscious interest in art itself but mainly for money. Their large customers were the Westerners who visited China; their painting was supported directly by the consumers of their arts, and the employment and monetary relations between them made the export painters anxious about flatterning their Western buyers. They adopted scenography in painting British, French or Dutch-style pictures, depending on the requirements and tastes of the Western clients, rather any active exertion of cultural ideas and artistic notions of the painters themselves. Their depiction of cruel Chinese punishments was not intended to express ideas about art or life but rather an anxiety to satisfy their clients’ tastes purely to better succeed in business. The themes of cruel punishment were “pursued” simply because they were radical and visually exciting; they made readers terrified and provided painters with much room for their visual expression, as well as providing “selling points.” Therefore, they were easily “introduced into pictures,” and they were treasured by Western visitors in China and exported overseas. As Timothy Brook has said, Chinese watercolor painters soon learned what to sell and were happy to let the aesthetic and ethical tastes of Europeans determine what “China” should look like. It was merely giving

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Westerners their own way of assessing various aspects of Chinese life in visual media.15 The modern Western stereotype of Chinese criminal punishments was largely shaped by the engravings published by George Henry Mason in Punishments of China. Shelagh Vainker argues that the published engravings show two stages of Westernization: the first stage was in Pu Gua’s studio, where watercolor paintings were made; the second stage was the various modifications made by James Dadley, a British painter and engraver, who produced the engravings. The size of the watercolor on pith was no larger than 30 × 20 cm—not suitable for complex themes; therefore, the pictures focused on human figures, and the background was empty. In any case, the background was concealed and omitted in Punishments of China. The abstract perception of the readers of these images, with no backgrounds, certainly induced a misunderstanding that such punishments were standardized in China. Mason claimed that in deciding which pictures were to be included for publication, he tried to avoid the spontaneous “sense of violence” felt by Europeans when confronting depictions of actual cruelty. If we look at some other watercolors (not by Pu) that still exist and compare them with Pu’s work as published by Mason, then the “other” ones are sometimes even harsher and bloodier. While Pu Gua spared no efforts to expose the dark side of the judicial practices of the Qing dynasty, Mason’s attitude was relatively mild. In his book, he managed to connect the actual methods of punishment with social ideas and ideologies in China; that is, he tried with the paintings to provide a deeper interpretation of Confucianism as conveyed in Western literature.16 However, Pu Gua’s background-less paintings and the readers’ direct contact with visual images would make Mason’s Confucian asides count for little. Regardless of soldier, merchant, missionary or scientist, when Western readers returned from China, they brought with them stories and records, which already constituted a point of view. Through such an ideological framework, local Europeans formed imaginary ideas and views of China, its people, and customs. Theoretically, any individual may have boundless room for selecting images, but the selection itself is full of imaginary and emotional catharses. Readers’ lines of sight are interwoven with those of the author and the editor. In many ways, the expectations of readers and various on-site elements are introduced into the textual space in all future readings.

6.1.2 William Alexander’s Paintings Lord Macartney had scientists, technicians and artists in his delegation to China. William Alexander, the painter on the delegation, was very curious to capture what he saw in the new world and painted many charcoal drawings, watercolors, and sketches. After his return to Britain, he painted a series of genre paintings about 15 16

Timothy Brook et al. (2008), p. 25. Mason (1801), preface.

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China—representations of its people and scenes. The Macartney delegation inspired books concerning the visit, and quite a number of those were illustrated with William Alexander’s paintings and printed in copper engravings. Such books included Sir George Staunton’s An Authentic Account of an Embassy from the King of Great Britain to the Emperor of China (1797) and John Barrow’s A Journal of an Embassy from the King of Great Britain to the Emperor of China in the years 1792, 1793, and 1794, respectively, by the Earl of Macartney (1804). Later, William Alexander published two collections of paintings—The Costume of China, illustrated in FortyEight Colored Engravings (1805), and Picturesque Representations of the Dress and Manners of the Chinese. Illustrated in Fifty Colored Engravings with Descriptions (1814). Although Alexander was not an elite painter, he had received serious professional training and possessed a style drastically different from that shown in Mason’s Costume of China and Punishments of China. George Henry Mason’s two works and Alexander’s Costume of China were all published by William Miller, and as mentioned earlier, it was commercially successful for Miller and caused Alexander to appropriate new wordings for his book titles by Alexander’s other publishers. Modern Chinese scholars usually think that the Macartney Embassy to China was the absolute English precedent and that the texts and pictures of the embassy were the very first source materials by which the British could learn about the Qing Empire. However, we have discussed that Mason came to China in approximately 1790, that is, earlier than the Macartney Embassy. Moreover, the publication of Mason’s Costume of China and Punishments of China also predated that of Alexander’s Costume of China. Therefore, in a genealogy of images of the Qing judicial system, what Chinese scholars call “Alexander pictures” in fact must be placed after the so-called “Mason pictures”; the sequence should not be reversed. This is not only a sequence in time but also a key to another issue, namely, that the initial British construction of a discourse about cruel Chinese punishments was related to the exposure of aspects of Qing law being made by Chinese themselves. The long resonance of the flourishing ages of Kangxi, Yongzheng, and Qianlong was still in effect when lower-tier folk artisans such as Pu Gua spread ideas about the cruelty of the government. To satisfy their Western customers and tastes, they adopted Western skills for the production of glass painting, porcelain decoration, hand-painted wall papers and watercolors. However, it was the watercolors of punishments that seem to have opened a virtual space for China’s lower classes to narrate something compelling and possibly problematic in Chinese society—to some degree a grassroots criticism of a harsh reality. Perhaps surprisingly, Westerners had a keen interest, no doubt for reasons not limited to aesthetic pleasure, but perhaps related as well to the burgeoning British and European interest in philosophies of culture and governance. It was also leisured Westerners’ first visit to an unknown world, requiring local guides, and upon obtaining such local knowledge, including cartography, colonial conquest could be imagined more easily.17 The West’s extraterritorial expansions in China may be said to have originated in the stimulating images received from these Chinese artisans.

17

Bruno Latour (1988), pp. 219–228.

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Some scholars conceive that upon returning from Beijing, the painters in the Macartney Embassy painted and drew about what they saw during their visit, including the arrangements of government in their operations and rites, as well as important institutions such as the military and the justice system’s interrogations and punishments, including “Cangue Punishment in Public,” “Piercing Ears and Standing for Display on the Streets,” and “Exile for Penal Servitude.” Their paintings were varied in theme and vivid in depiction; they were not only images of Chinese judicial activities for Western readers but also remain as important visual information for today’s research. However, Alexander’s paintings did not contain much about the Qing judiciary; it was not comparable to Mason’s Punishments of China. One of the reasons is that when the embassy left Beijing, on their way southward along the Beijing-Hangzhou Grand Canal, Qianlong had repeatedly sent secret orders to the escorting and senior officials on the way to monitor closely and prevent the British from staying at places other than those arranged or to linger on banks for any excuse. The embassy’s activities were to be strictly controlled; it was impossible for Alexander to “visit and paint pictures at many places in China,” and thus he could not be familiar with the inside corruption of Qing’s judiciary, as was Pu Gua. This is one probable reason to support the idea that Alexander copied images from Pu Gua’s paintings. William Alexander might have seen Pu Gua’s paintings published by the same publisher, William Miller. Therefore, on the one hand, Alexander’s paintings can be said to be an impressionistic creation about China entirely by the British without borrowing from paintings imported from China, yet on the other hand, they can also be said to be a “localized” approach to the construction of cruel punishments in China: they were mainstream Western in style, but certain parts of the contents were connected to export paintings. It is interesting to note that in William Alexander’s watercolors, there is one entitled “Punishment by Wearing the Cangue” (see Fig. 6.4). It shows a criminal sitting in the so-called “special chair and public cangue punishment.” The composition is similar to that of Pu Gua (see Fig. 6.1) but with a background. Backgrounds were in all William Alexander’s paintings—houses and shops along the Grand Canal, flags and banners, and vague mountains in the distance; this reflects Alexander’s skill in representing cross-cultural scenes. The prisoner in the picture of Alexander was set up high; he wore a costume similar to that shown in Pu Gua’s pictures; the only difference was that the facial features blended Chinese and Western characteristics, as in Alexander’s other pictures. Huang Yinong once pointed out that Alexander’s paintings “often have people with similar faces.”18 Behind the criminal, we see a wooden tablet, indicating his crime and punishment, but obviously Alexander knew little Chinese, so he imitated the look of Chinese characters by painting some black lines on the tablet, which neither the British nor the Chinese could understand since they were merely sham characters. However, there were obvious inconsistencies in Alexander’s creation: if it was truly a cangue chair rather than what Western 18

Huang Yinong, “Yingguo huajia William Alexander (1767–1816) yanzhong de daqing diguo (The Qing Empire in the Eyes of William Alexander [1767–1816], A British Painter),” http://com mon.tnnua.edu.tw, accessed January 25, 2010.

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Fig. 6.4 Punishment by wearing the cangue. Source Liu Lu and Wu Fangsi, Diguo lüeying: Yingguo fanghua shituan huabi xia de Qingdai Zhongguo, 133

researchers of Chinese criminal codes call a “cangue supported by pillars,” then the observation by Liu and Wu that “the depiction in the picture is not typical, but is much less painful than in usual conditions”19 is no longer plausible, since the cangue functioned like the standing cage (also called a standing cangue), in which the criminal could not walk freely; this was more cruel than the usual cangue because he could not move to a high place along the river bank by himself. Moreover, to show his originality, William Alexander replaced the food bowl and long ladle beside the prisoner in Pu Gua’s picture (see Fig. 6.1) with a small bamboo basket and a stick. In Alexander’s picture, i.e., the so-called “cangue chair” picture (see Fig. 6.4), which depicts a simple kind of punishment, the painting skills are quite different from the elaborations used for the picture entitled “Exiled Man,” which we will analyze below. This carelessness could be attributed to the haste of the painter in imitating Pu Gua. William Alexander’s pictures could not provide a photolike record of all that he saw in China. He had not finished even a single picture when he was in China; he just painted sketches of trivial elements, for example, the foot of a woman and her costume, children and a pagoda, etc., to be pieced together in creation after his return to Britain. In the strict sense, his creation was a memory of impressions, similar to memoir writers who had been with the embassy to China. Even though the images were real, Alexander’s painting method can only be correctly called “historic paintings,” following Huang Yinong. Historic paintings, which one can see displayed in numerous historical museums, are a narration of history through images; and the painter especially seeks to advance, picture by picture a narrative, even if that means any individual scene might be far from the reality, as best attested. Huang Yinong 19

Liu and Wu (2006), p. 133.

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has performed detailed analyses of some of William Alexander’s historic paintings concerning the presenting of the Macartney Embassy to Qianlong at the Mountain Resort in Chengde, and these tell much. These paintings involve the famous incident surrounding the performance of specific rites demanded by Qing imperial etiquette, and they touch upon the history of the China-Western relation. They are widely used by historians worldwide as important evidence. However, Alexander was not present at the incident and thus cannot be considered a witness to this historical touchstone. Huang Yinong found many mistakes in the evidence of light and shadow, place and direction, and positions of people, as well as the types of official uniform; his view is persuasive.20 Even in such important paintings, there are so many mistakes that the truthfulness of many other generically related paintings must be put in doubt. From a semiological view, paintings are prescribed icons, the composition and arrangement of which are mostly determined by the painter’s life situation, his own ideas, and his arrangement of the story. The information reflected in them is probably a mere invention of the painter or an artistic production through his abstraction of the real world, not necessarily a truthful description, and therefore not always credible. Taking the “Piercing Ears and Standing for Display on the Streets” picture as an example, some scholars consider it a vivid record of Chinese judicial activities in the eyes of Westerners. However, in my view, this picture is probably another recreation of an ear-piercing picture originally painted by export picture-artisans like Pu Gua. This particular punishment, the piercing of ears and noses, would leave a lifetime wound. It did exist before the Qing government, but according to Zhou Shouchang’s records in Shiyitang Diary, early in the 3rd year of the Shunzhi reign (1646), it was already officially abolished and was never used after that. The punishment not only created physical destruction of the body, but more importantly, it was in direct opposition to Confucianism. The Classic of Filial Piety (孝经) says that “one’s body, skin and hair are inherited from parents, therefore they should not be damaged.”21 Even Qing local officials were reckless and often used what modern scholars call “legal” victimization in which they killed prisoners by illness or malnutrition; they could not risk imposing so many harsh punishments and become susceptible to impeachment. The above punishment, by leaving physical damage, easily became evidence, not like the punishment of connected cangues (联枷), which was forbidden by the Qing government but was only occasionally used in late Qing. If the victim appealed, then the officials responsible could not escape follow-up investigations. Thus, due to the risk of imposing these illegal, or unjustified, punishments, they were not often carried out or arbitrarily. For example, a certain official named Duan Guangqing, who had expertise in the area of sanctioned legal violence, imposed the cangue as punishment upon an opium shopkeeper. It satisfied some people, but his assistant worried that it might cause trouble.22 Local magistrates were, in this way, constricted.

20

Huang Yinong, op. cit. Wang (1998), p. 2. 22 Duan (1960), p. 14. 21

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Fig. 6.5 A man banished to do forced labor in a remote place. Source William Alexander, The Costume of China: Illustrated in Forty-eight Colored Engravings, 10

Following William Alexander’s explanation of a picture of ear piercing, it was depiction of a Chinese who had offended a member of the Macartney Embassy. After being flogged 50 times, he received an additional punishment: his ears were first branded by iron and then pierced by a sharp nail. However, according to the Great Qing Code, the punishment actually was 100 lashes at most, and in a 40% reduction, numbers smaller than 5 were omitted, so that 100 would have amounted to only 40, and 50 lashes were an impossible number according to actual code. Moreover, socalled additional punishment was also impossible, as demonstrated in Alexander’s picture “Trial of a Prostitute.” It is incredible that the local magistrate wore a round embroidered chest patch on his uniform and that he was not trying the woman at the yamen reception hall but in an open field somewhere. According to Qing statues, only members of the royal family and with a rank of Beizi (贝子) or above were allowed round patches on official uniforms. If they were truly royal family members, it was completely impossible for them to be local magistrates in a place south of the Yangtze River, as depicted in the picture. Such errors against common knowledge were not rare in Western painters’ works in the nineteenth century after William Alexander. For example, in a watercolor named Punishments of China, a male victim, naked above the waist, was punished by having his fingers squeezed by sticks in front of a Western cross. We can see that the painter did not understand that fingersqueezing was exclusively for female criminals who had lied in their confessions. When modern Chinese scholars consider William Alexander’s pictures, many of them criticize early Chinese painters for their disposition toward sentimental paintings and trivial things such as flowers, birds, fish and insects. They would not have deigned depicting punishment scenes, and accounts of the traditional “five punishments” are mostly seen as textual records but rarely as vivid images. This contrasts with the value found in William Alexander’s “A Man Banished to Do Forced Labor in a Remote Place” (see Fig. 6.5). The picture was used as an illustration in a book by Samuel Holmes,23 later published in Alexander’s Costume of China. The image is of a bailiff escorting a criminal in a wooden cangue—to be exiled to “a place distant from 23

Holmes (1798).

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Fig. 6.6 Military exile. Source http://www.kongfz. cn/21872175/pic/, accessed March 21, 2010

cities.” Ancient China was not devoid of paintings of “five punishments,” but they were of a completely different style. For example, consider Daqing xinglü tushuo ( 大清刑律图說) by Xu Wenda and Huang Renji. In contrast to Alexander’s work just mentioned, the depiction of military exile in Daqing xinglü tushuo (see Fig. 6.6) does indicate the severity of punishment, but it was not intended to emphasize the cruelty of the Qing penal code. In contrast, it was used to promote the idea that knowledge of the panel code helped in administering the people. These were utterly different motivations.

6.1.3 Thomas Allom’s Engravings John Francis Davis, back in 1822, exclaimed that the British understanding of China was quite limited in comparison with the European continent’s understanding of China. He pointed out that “in the overall knowledge of us Englishmen, the knowledge about the Chinese empire is negligible. We trade with China so regularly, but before the Macartney Embassy, we knew virtually nothing about the Chinese people. The French carried out research about the people almost a century before and achieved some progress. Strangely enough Britain was indifferent to this field.”24 The Macartney Embassy to China was undoubtedly a milestone in the British understanding of China. In modern times, Western colonialists and historians called China before the Opium War “old China,” as opposed to “modern China,” which was opened up to Western powers by means of unequal treaties. William C. Hunter, an American who went to Guangzhou in 1825 at the age of 13, began to be employed in 1829 by an American company and worked for over 20 years there and in Macao and Hong 24

Davis (1822), pp. 1–2.

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Kong. This foreign merchant had been in China long before the Opium War, and in his late years, he wrote a widely read book titled Bits of Old China (1885). At that time, even so-called “Chinese experts”, such as William Hunter, did not have an accurate understanding of China. For example, in his book, he praised the absence of lawyers and jurors in the Chinese trial system and regarded it as a good example for Western countries.25 During the time of the Opium War, English press coverage made the subject of China a burning public issue. The Illustrated London News published articles and pictures of the British victory and of Chinese technical originality and its inferior industrial level in comparison with Britain. Just one year before the end of the Opium War, there was a large-scale Chinese exhibition at Hyde Park; visitors could have close contact with China and form clearer and more accurate perceptions of China than any obtained from books.26 After the war, visual presentations of China opened a window to the “Celestial Empire” for Victorian viewers and readers. Fisher, Son and Co. published in 1843, in London, Thomas Allom’s China, in a Series of Views, Displaying the Scenery, Architecture, and Social Habits of that Ancient Empire, to promote the Victorian interest in a newly opened and seemingly accessible China, claiming the ability to provide an “original and authentic” view of the empire. This became one of the most well-known works about China in the nineteenth century. According to Diana Brooks, during this period, the British middle class had an increasing demand for such albums, particularly those on local history and tourism, and an increasing number of people were financially prepared to make pleasure tours—even trips abroad. For the publication of the album by Fisher, Son and Co., Allom was the right person. He was an architect, a founding member of the Royal Institute of British Architects. He had participated in many projects, such as the renovation of Westminster Palace. A number of his churches, libraries, and trade schools for the poor still exist in London and Liverpool, among other cities. Meanwhile, he was a designer of topographical illustrations, especially good at fine scenery illustrations and realistic depictions of buildings; he traveled and conducted research in Anatolia, Syria, and Palestine. China, in a series of views, was leather-covered and gold-embedded; it contained 128 metal-plate engravings made with high quality, and the binding was very fine. The work introduced to Europeans’ eyes a China that was about scenery, buildings and sociality. Some Chinese scholars consider that certain of Thomas Allom’s engravings are vivid depictions of actions taken by local legal bureaus made from actual observation by a visiting Westerner at Guangzhou; they claim that Allom had been in China as a visitor and that after his return to Britain he cooperated with Newenham Wright, a missionary, in the publication of the book. In their view, Allom’s works are exquisite, and unless he had been in China in person, how could he know such details? However, key historical facts were merely taken for granted, and evidence was not checked out in making such hasty judgments. As a matter of fact, he had never been in China; he merely repainted nineteenth century China according to other artists. His paintings 25 26

Hunter (1992), p. 131. Jacobson (1993), p. 199.

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were borrowings, including sketches by Lieutenant Frederick White, Captain R.N. Stoddart, R. Varnham, and August Borget’s pencil sketches in Sketches of China and the Chinese and paintings by William Alexander. Although Allom did not visit China and interview Chinese people, he was brave enough to depict Chinese things. This tactic was taken as well by the Japanese painter Okadagi Yokuzan, who never visited China but painted the album titled Beautiful Sceneries of China. We can see that painters like these essentially could “paint what they knew” rather than “what they saw.” If painters can make a close observation on site in person, it is certainly the better way; but if they cannot, then the imagination based on relevant information of course can suffice—it all comes down to the mentality of the painter. Thomas Allom painted a picture about the “Punishment of the Pan-Tze or Bastinado” (see Fig. 6.7). The metal engraving familiar today was done by W. Weatherhead. This illustration has become iconic for Westerners today concerning the area of early Chinese criminal and penal law. The zhangchi (杖笞) is translated as “bastinado,” which is Spanish, meaning literally a “beating stick”; it refers to a specific punishment of criminals’ bare soles with sticks or whips. The focus of Thomas Allom’s painting centers on the bastinado itself, which was transplanted from someone else’s simpler painting of it. The image was virtually completely transplanted from the original, but the bastinado was made longer than standard bastinados in the Qing; the large bamboo paddle was arbitrarily converted into a crooked stick. Numerous human figures and a complex background were inserted into his painting, and the central figure was no longer the beaten criminal but the supervising officials outside a decorated archway. At this distance, coconut palm trees, seen only in South China, are clearly recognizable. It seems to indicate that the scene reflected judicial activities at Guangzhou, but the decorated archway seems to be a building at Hangzhou, previously painted by William Alexander. Allom managed to provide a utopian vision and represent an entire field of knowledge in a certain space. In his painting of the bastinado punishment, behind the officials Fig. 6.7 Punishment of the Pan-Tze or Bstinado. Source http://world4.eu/chinese-sce neries-19th-century/, accessed March 21, 2010

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Fig. 6.8 Punishment of the Tcha or Cangue, Ting-hai. Source http://617454366. blog.163.com/blog/static/ 563345362008221058 22794/, accessed March 21, 2010

and the decorated archway, the city walls are high with a hint of the guards on them. The distant mountains behind the city are more fanciful. Here, the winding mountains hide the distant horizon, and the vision fades into distant mountain mist, virtually obstructing the viewers’ ability to reach the horizon. Mountains, city walls, city gate towers, and the distant horizon all fade out with the winding mountains; they symbolize the distance and inaccessibility of China, probably connoting the oppressed state of China as a non-British alien space. It probably inspired the Western imagination to think that bureaucracy and corruption in China restricted trade and the freedom of the people.27 Allom’s cangue depiction (Fig. 6.8) became a famous etching in its day. Modern Chinese scholars have not noticed that in the title, the painter definitely places the scene in Ting-hai (Dinghai), so the claim that this painting undoubtedly exhibited the execution of the punishment of cangue in a busy Guangzhou marketplace during the Qing dynasty is only a subjective guess. Because Staunton previously, in An Authentic Account of an Embassy from the King of Great Britain to the Emperor of China (mentioned above), called Ting Hai the “Oriental Venice,” saying that “the city streets are very narrow, like small lanes, paved with square stones. Houses are very low, mostly bungalows,”28 and so on, Thomas Allom could manage to show Ting Hai with those characteristics. Moreover, both Mason’s and William Alexander’s albums emphasized the cangued criminal as walking with relatives; the latter would help relieve the pain by holding up the corners of the cangue, and the criminal could not eat so he had to be fed. These notions were combined in Allom’s painting. Since they were Westerners’ paintings, the costumes were obviously Western in style. Although Allsom’s work exhibited a consistent style and his free imagination made the painting so brilliant that he could achieve a highly dramatic effect, from the perspective of Qing legal history, the punishment exhibited was quite compatible with actual Qing law. 27

See Amanda Sciampacone, “From Utopian Visions to Tourist Scenes: Thomas Allom’s Representations of China,” http://bronwenwilson.com, accessed March 21, 2010. 28 Staunton (1963), p.216.

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Manchus were mainly responsible for the widespread use of whipping during the Qing Dynasty. In the early days of the dynasty, there was capital punishment for felonies and for relatively minor crimes—whipping. Prior to the Manchu conquest, the previous laws allowed for whipping criminals, and there were no rules for the classification of crimes and the combination of hanging and decapitation; only decapitation was used for death sentences. Later, Dorgon, the prince regent, adopted a suggestion by Liu Yindong, the Shuntian inspector, to follow the Ming Code. Liu believed that whipping seemed too lenient as a form of intimidation. However, Manchu banner people and the Han people were punished differently for the same crimes. For bastinado crimes, the banner people and their servants were just whipped; three whippings equaled one beating with bastinado. While the banner bastinado treatment was converted into whippings, the criminals deserving of military exile or imprisonment were not sent off but put in cangue instead. Therefore, the “Cangue and Whipping” (枷号鞭责) were usually combined as a product of the merging of laws applicable to Manchu people with those for Han people. However, at that time, Ting Hai was governed by a garrison commander, without a banner army stationed there. Taking this into consideration, the painter of this picture seemed ignorant of the diverging structure of Manchu–Han law in the Qing Empire.

6.2 The Photographers: Thomson and Saunders Photographs have been considered “historical documents” as a type of evidence for “facts present and past.” Their visual images create impact by imparting a feeling for the scene and for certainty, something attainable only in a less visceral way through linguistic description. Images leave a strong first impression; in other words, one thinks that there must have been something real that confirms the image one encounters—hard facts for particular things. Pierre Bourdieu stated that “photography is considered to be a perfectly realistic and objective recording of the visible world because (from its origin) it has been assigned social uses that are held to be ‘realistic’ and ‘objective.’ And if it has immediately presented itself with all the appearances of a ‘symbolic communication without syntax,’ in short a ‘natural language’.”29 Our fascination for visual images is connected with the feeling that the meaning of an image is transparent, immediate and instantaneous. Through images, the world seems easily understood, and people and things everywhere are increasingly covered by media. The world is being photographed. In 1938, Heidegger pointed out in The Age of World Images that “essentially, the world image does not refer to an image of the world, but it indicates that the world has been apprehended as image.”30 In my view, the so-called apprehension of the world as an image refers to the visualization of the world with technology. 29

Gu Zheng (2007), p. 63. The original German is: Weltbild, wesentlich verstanden, meint daher nicht ein Bild von der Welt, sondern die Welt als Bild begriffen. Martin Heidegger (1977), S.89.

30

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Before photography was introduced into China, people preserved the figurative shapes of apparent things aided by the medium of handmade illustrations by traditional master artists. Painting living people was called “xiaozhao”小照, and of the dead was called “yingxiang” 影像; thus, the forerunner of “照相” (photography) was “照像,” a blend of two phrases.31 Soon after photography was invented, it was introduced into China by Western colonialists who desired to witness ongoing affairs that amounted to modern Chinese history. Although there is a claim that before a late date in the first Opium War, daguerreotype had been introduced into China, nonetheless the earliest extant photography made in China was that produced by a Frenchman named Jules Alphonse Eugène Itier, who came to China with the French envoy and minister plenipotentiary Théodore de Lagrené and participated in the signing of the Huangpu Treaty. He used a clumsy camera to photograph the representatives on both sides, i.e., Lagrené and Qiying, the governors-general of Guangdong and Guangxi. From this, we can see that in some sense, the introduction of photography and the construction of modern extraterritoriality were closely linked. Daniel Headrick’s well-known work The Tools of Empire: Technology and European Imperialism in the Nineteenth Century discusses various nineteenth-century inventions that enabled European expansion of empires. He listed breechloader, Gatling gun, steam boats, and quinine, which were deemed indispensable tools for colonialization. In the same way, in Headrick’s view, photography was a tool of those empires. News photos, color lithographic pictures, slides, stereoscope, films, and illustrated post cards traveled outward, bringing pictures of the new imperialism into the view of a Western public.32 The long period of China’s closure to international intercourse made China a mysterious, ancient, and oriental superpower in the Western imagination. After Jules Itier, many Western photographers visited China out of curiosity and in pursuit of a “new continent” for their photography. Certain radical postmodernists associate the gun and the camera with colonialism, attempting to reveal the connection between the civil and the military in the conquest of distant colonies. Susan Sontag pointed out that there were occasions when expressions used in photography and hunting coincided, for example, that “snapshot” meant a military skill before meaning a quick photograph. He Boying has also stated that “the China recorded in the colonial age by cameras, is more a selective appreciation of China rather than an authentic replication of China at that time.”33 The living images recorded by foreigners’ cameras not only constructed Western impressions of China and Chinese people as a distant country and people, strengthening contemporary Western mental images of Chinese culture, but they still force today’s Chinese to interpret the past by employing such photos, after nearly two hundred years. We can take as an example John Thomson, a famous British photographer, who departed Hong Kong from 1869 to 1871 to make a journey to Guangzhou, Taiwan, Shantou, Amoy, Fuzhou, Shanghai, Ningbo, and Nanjing. He carried heavy photographic instruments and traveled to many different places in China, carefully 31

Chen et al. (1990), p. 2. Landau and Kaspin (2002), p. 142. 33 He (2008), p. 3. 32

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photographing local conditions and customs. After returning to England, Thomson made his photos into illustrations using collodion solution and published a fourvolume book, Illustrations of China and Its People, which introduced scenarios of remote Chinese regions to the Western world.34 Before 1860, photography was limited to several coastal port cities in South China, and foreigners were still not allowed to enter North China without permission. Du Jiutian, the author of The New Photography (照相新编), stated in the preface that when photography was introduced into China, it was still the wet-collodion plate method; the technique was so complicated that few people could master it.35 Since Thompson used it at that time, he needed a large set of devices and therefore employed eight servants as porters. At that time, few foreigners entered hinterland China, and even fewer could record what they saw with cameras; thus, his photos affected a profound influence in Europe. Thomson was fairly friendly to China, and he was called by the nickname “China’s Thomson” in London. Some modern Chinese collectors call him “Humanity’s Thomson”, but the Westerners’ pentient for novelty-seeking was still there in his photos, which belonged to a European visual impression of China. China reflected in his photos was rarely China in the eyes of the Chinese. At that time, Mason’s Punishments of China had a strong influence on photographers such as Thomson. As William Schupbach pointed out, Thomson did not and would not eliminate the influence of such publications. The binding of Thomson’s large work was luxurious (gold blocking) and obviously made possible by retired businessmen who had worked in China and were collectors of Chinese porcelain. According to Roland Barthes, photos are perfect “perfect analogs,” and the conveying of the surface of the object for photography is a kind of literal reality. In addition to the denotation as a direct description of the object, photography also has concealed “connotations,”, i.e., hidden meanings in the photos, the generation and interpretation of which involve the subject of how a whole society communicates among people. It is obvious that the photos taken by Thomson in the late Qing period were for Westerners to appreciate relics, and his cangue photos from Shanghai were not different from those taken by William Saunders, whom we discuss below. Both Thomson and Saunders were among the best photographers in China in the nineteenth century. However, they were different kinds of people to a large extent. If we say Thomson was more concerned with fame and Saunders showed a stronger and direct interest in money, then this is how Western scholars eventually tagged Saunders as a “commercial photographer.” From 1862 to 1887, Saunders opened his “Saunders Photography Studios” 森泰像館, which was engaged in portrait photos; at the same time, he produced photographs of current news and social customs, such as officials on their trips and criminals at punishment grounds. His photos were made into postcards, and he regularly contributed to Western magazines such as Far East and Illustrated London News. His studio was one of the first established by a foreigner in China. The dates that studios were established are hard to determine, but scholarship has found a Chinese advertisement for the opening of Saunders’ studio 34 35

Su (2007). Hu and Ma (1987), p. 69.

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Fig. 6.9 A courtroom scene, approximately 1865–72. Source http://www.epailive. com/items/4/3/3677111. shtml, accessed February 1, 2010

in Shanghai Gazette 上海新报 of March 7, 1863.36 The behavior of Thomson was expressed accurately by the title of his popular book Through China with a camera. Thomson sold his studio and traveled to the interior of China for his photographic works, and by sharp contrast, Saunders actually, for the most part, made photos inside his studio, and he contributed to newspapers in London. He was famous for his series titled Portfolio of Sketches of Chinese Life and Character, and he employed Chinese to act different roles in front of the camera. He even took photos of beggars by putting straws on the floor of the studio to affect a life scene. With increasing numbers of Western travelers to Africa, India and the Far East, the demand for photographs of foreign countries was on the rise. In addition to foot binding and opium smoking, gruesome sanctioned violence in China’s penal system was a hot subject for Western photographers, and photos of beheadings and cangueing met this market demand. Saunders was adept at setting scenes in his studio in Shanghai, realizing quite well the commercial potential of his products. An even wider Western audience could see his photos after they were engraved and printed in books, and among such readers were those who, preferring to peek in private, thus tended toward this book-form of photography. That a photography master was so complicit with his magazine editors and his perceived mass readership reflected a speculation for profits in Saunders’ photographic work. Therefore, we say that in a certain sense, Saunders was a “movie director.” The fact that Saunders was the first photographer who photographed an execution scene clearly showed this strong desire for profits. Figures 6.9 and 6.10 are photos from the personal website of Dennis George Crow, a major collector of early Chinese photography; both are titled “A Courtroom Scene,” and the date of production is marked as 1865–72. Both photos have been used as direct evidence for a truthful description of historical facts, but with a closer examination, there appear to be mistakes. The door behind the scene in Figs. 6.9 and 6.10 is the same and is Western in style, and it is probable that the room was the same one for Saunders’ photo of the connected cangue. In 36

Allen and Fryer (1990), p. 398. See also Zhang (2002).

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Fig. 6.10 A Courtroom Scene, approximately 1865–72. Source http://www. epailive.com/items/4/3/561 2649.shtml, accessed February 1, 2010

Figs. 6.9 and 6.10, stick leaning on the wall was used to hang up pictures, and in the background cords used for hanging pictures and couplets, it can be seen clearly. It is plausible that this forked stick for hanging things on walls should have been removed but that the photographer forgot to do it. Usually, the screen behind the official desk and the chair of county magistrates consisted of hinged folding leafs, which depicted nature images and were called “Paintings of the Sea and Morning Sun” ( 海水朝日图); it meant that the official was “pure and honest as the sea, and as wise and bright as the Sun and the Moon.” Above the screen there would hang a plaque saying “A Bright Mirror Hangs High” (明镜高悬), and on the official’s desk there would usually be pieces of stationery, court bamboo-slips, and the wood knocker for imposing silence. In both photos, there were no such things on the desk; instead, there was a water-pipe box, which was commonly seen in studios. In Fig. 6.10, the official table was almost as wide as the chair, and it seems that the table was the square kitchen table of another photo, called “Studio Portrait of a Family Eating.”37 In Fig. 6.9 the official table was just covered with a cloth which carries the phrase “月 光之大,” seen from the exposed part the same kitchen table was used. In Fig. 6.9, the painting hanging behind is a printed engraving, and the text of the couplet was written by Deng Shiru, a great calligrapher of Qing times. The original couplet, namely, “春 风大雅能容物, 秋水文章不染尘”, was originally hung in his bedroom in Anhui. Deng Shiru’s calligraphy was famous, and his couplets were rich and instructive; therefore, it is possible that this couplet was particularly popular. However, according to the custom of Chinese couplet writing, the last character of the leading sentence should be spoken with the oblique tone, while the last character of the following sentence should be of the level tone; the lead sentence should be put on the right, while the second sentence should be on the left. In Fig. 6.9, the second sentence was put on the right, a mistake against common sense. Chinese officials and scholars were quite familiar with this practice; only foreigners would have made such an obvious mistake, demonstrating that the photo was created for far-away foreigners 37

http://www.dennisgeorgecrow.com, accessed February 1, 2010.

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and that the photographer was not aware of the mistake. Even in the inner courtroom, yamen couplets should also be concerned with notions of justice, love of the people, and good administration; however, here, the phrases “春风大雅能容物, 秋水文章 不染尘” are usually categorized by scholars as a compliment or decoration couplet. Finally, if it was truly the closed-off warming chamber of a yamen inner court (also called the rear court), then it was impossible for the photographer to have entered this room. According to the Qing ritual, hats were commonly known as “big hats,” and there were two styles. One was the warm hat worn in winter; the other was the summer cool hat. The latter was shaped like a cone, with no brim; it was commonly called trumpetstyle, mostly made with rattan and bamboo materials. The exterior was wrapped with silk, mostly white. The warm hat was circular, with a brim, usually made of leather, although some were made with wool or satin. Officials would wear different warm hats, depending on the weather. According to Fuchadunchong, “in the third month of the lunar year, people change to the wearing of cool hats, in the eighth month of the lunar year people change to warm hats again, and upon such occasions the Board of Rites would present a memorial to the throne.”38 On that occasion, upon receiving the emperor’s order at the palace gate, all officials had to change costume according to the provisions; these laws were strict. However, the chief judge in Fig. 6.10 wears a warm hat and casual clothes, while to the right the assistant judge wears a cool hat and an official uniform, this was against the rites for the meetings among officials, and the costumes also went against the regulation for officials when participating in trials. Furthermore, since in both photos there were people with folding fans, it must have been already summer, so that it is certainly nonsensical that an official wearing a warm hat might meet an official wearing a cool hat on this occasion. In fact, officials wore sunglasses on the execution ground to show that they could not bear to see an execution. However, in a photo, obviously imitating to Saunders’ “courtroom trial,” the chief judge wears sunglasses: this seems incredible. The emergence of photography often prompted a certain notion about reality: people tended to believe that the camera and its photographic images were a magic tool for truthful records of things and events, thus eliminating lies and distortions. However, facts would eventually prove that a photo might be just as dishonest as its maker. Photos are similar to paintings, the objects of which can be distorted, idealized, beautified or simplified. Technically speaking, photos can be faked, and such “shams” can be forged to tamper with history. Régine Thiriez, a French expert on early photos of China, believes that although restricted by photographic procedures, William Saunders’ photos of daily life in China were mostly made with posings, but they provided a standard reflection of nineteenth-century China and facilitated the spread of Chinese customs and knowledge. Régine Thiriez’s basic idea, then, concerns how photos taken in the earliest decades were made using poses designed by the photographer. Talking exclusively in terms of photography, this issue can be summarized as follows: reliable records about the judicial affairs of the late Qing empire were made in steps: (1) making poses and/or (2) reconstructing a scene. A 38

Fucha (1981), huanji, p. 60.

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scene was both a result of an arrangement and a fact under reconstruction; this was due to the restrictions of photography itself. Since at that time all the objects for photography were static buildings and objects, the technology could not capture the dynamism of people. To simulate time exposure, people had to freeze their bodies for a long period (hence “making poses”). Second, since there was no electric light, details had to be very clear, and much natural light was required. This created the need to carefully arrange details to obtain the optimal effect in an effective scene. Later, Saunders photographed on the streets of the foreign concession in Shanghai, including photos of punishments in the cangue, but in the period from 1865 to 1870, almost all of his early photos were made in private environments and the courtyard of his studio. Régine Thiriez in effect changes the issue of Saunders’ accurate reflection of Chinese customs to another question: “Was Saunders reliable?” Based on the general performance of Saunders in his career, Régine Thiriez gave a positive answer of “Yes.”39 I cannot agree with Régine Thiriez on this point. In fact, in the first decades after the invention of the camera, making poses and reconstructions was understandable for technical reasons; even today, we still create such photos. However, there is a limit to them. Given my analysis, above, the sham involved in photos of a pseudocourtroom has been neglected by foreign experts such as Régine Thiriez. If Saunders had been a serious photographer, he could not have taken photos in such a rough-and-ready way. This was closely related to Saunders’ desire for profit. Even if we follow Thiriez in recognizing the reliability of Saunders’ photographing behavior, still the flaws in his photos are enough to prove that he knew little about the basics of Chinese culture. With a sheer ignorance of traditional Chinese culture, the photographer’s reliable moral character was no proof of the reliability of his photos. In the same way, although intentional and negligent homicides differ, they are both fatal. While I believe that at that time technical conditions excluded certain kinds of photography outdoors, there was the counterevidence of Thomson, whose technical skills helped him to photograph while traveling. The key was that Saunders was not as serious as Thomson in his intention to understand Chinese society and in his professional attitude. Saunders mainly took a lucrative rather than truthful perspective in the reflection of the typical Chinese ways in judicial activities. For Western magazines such as Far East and Illustrated London News, the editors’ tastes determined the commercial positioning of Saunders’ photos. For this reason, Saunders tried to transplant Chinese social scenes into his photographs. Behind his photographic decisions was a background of Western tastes and commercial-driven media, much like the curtain used for photographing courtroom scenes that was emplaced by Saunders in his studio. Such “custom photos,” which intended to meet the curiosity of Westerners, reflected the social life at that time to some extent and may be seen as “documentary” to some degree, but they were a kind of “ideological photography” rather than a “documentary photography.” The photographer here was more like a director of a movie. He employed beggars, sluts, or hired hands as actors, 39 Régine Thiriez, “The 19th Century Photograph as a Reflection of Reality,” http://turandot.ishlyon.cnrs.fr, accessed January 15, 2010.

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Fig. 6.11 The manner of beheading. Source https://en. wikipedia.org/wiki/Wil liam_Saunders_(), accessed March 21, 2010

and each of his photos had a theme created by himself and was mostly produced indoors. The creation of such predesigned photos indoors would have been fine, but the key is that the quality could have been better. On the one hand, Saunders tried his best to flatter the Western public’s psychology, and on the other hand, in areas where Westerners had no experience, he used reckless inventions to fool people. His willful photographic fancy made for ridiculous deceptions.

6.3 The Photos of Executions Just as the well-known cultural critic Susan Sontag said in Regarding the Pain of Others, since the invention of the camera in 1839, photographs have been associated with death40 in spreading the produced terror of massive killings. Directness and authority are much better than textual narrations.41 Real scenes of decapitation in China were not allowed to be photographed on site until the 1890s. However, before that time, due to his great fortunes, William Saunders hired Chinese to produce the first photo of decapitation in China for the commercial market (Fig. 6.11) to satisfy the demand of the Western market. As to the posed photographs made in studio, Sanders had many imitators, but the time, energy, and money spent arranging scenes of public decapitation were beyond most photographers, not to mention that more than sixty people were involved in it. Facing high costs, an imitator would fail even in small-scale production; therefore, this photo made by Chinese was never imitated by his competitors. After Saunders’ pioneering work, there were numerous images of punishments and decapitation. The trend became so overwhelming that in 2006, a dealer at a European itinerant postcard fair stated that photos of oriental executions had been 40 41

Sontag (2006), p. 20. Ibid., 21.

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Fig. 6.12 Group photo of Hong Kong officials on the scene. Source James Louis Hevia, English Lessons: The Pedagogy of Imperialism in Nineteenth-Century China, 190

as popular as photos that exposed Victorian women’s necks and shoulders and even photos of puppies. The popularity of such images of punishment and decapitation reveals Western tastes rather than actual judicial actions in China. The photographers or publishers of postcards were mainly foreigners, whose Western perspective there was certainly a China, therefore the themes focused on areas of cultural differences between East and West. The spread of these photos of China among Europeans was by econcerted arrangement and under a historical shadow rooted in the construction of a consensus for extraterritoriality in China. However, they are still regarded as a classic moment by Western scholars; their preservation today is considered a monument to truthful memory. Through such works, we can also see that in the nineteenth century, photography was introduced into the field of mass media and exerted its functions. It provided rationality visual support for the rule of imperialism, and it steered a generation to produce an actual hallucination based on superficial falsehood while establishing Westerners’ visual impressions of a distant country and its people to strengthen a stereotyped imagination of Chinese culture. After Saunders, there were more photos of executions in China, so that such images overwhelmed books, magazines and archives. In He Boying’s book, Images of the Old Days: China on Early Photos and Postcards of the Western World, there is a picture entitled “On May 11, 1891, Pirates of Namoa were executed in Hong Kong, with Western spectators”42 (Fig. 6.12). On the same page, it was reprinted, showing a smaller size on a postcard, only colored by hand. The photo was also used by James Louis Hevia in English Lessons: The Pedagogy of Imperialism in Nineteenth-Century China,43 which was reprinted from Frank Leslie’s Illustrated Weekly (July 21, 1900) published in New York, which titled the photo “The Thirst of Chinaman for the Human Blood.” As discussed above, during the late Ming and Qing dynasties, pirates molested the southeast coast. During Qianlong’s reign, a new law against pirates was laid down. Especially after the reign of Jiaqing and Daoguang, Western and Chinese pirates converged to perpetrate outrages. The trigger of the Second Opium War, i.e., the “The Arrow Incident,” was related to such pirates. Guangzhou coastal guards captured pirates on that ship. Legal and military issues intermingled in the event. 42 43

He (2008), p. 81. Hevia (2003), p. 190.

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After the “Arrow Incident” pirates drastically changed their methods. They disguised themselves as passengers and embarked ships, then at an appointed time and place, pirated ships attacked from outside, and the disguised pirates onboard would threaten the captain and crew. Such tactics were still used by pirates even as late as 1931. The most notorious case was the S.S. Namoa Hijack case of 1890. S.S. Namoa was a passenger liner of the Douglas, Lapraik, and Co. On December 10, 1890, it departed Hong Kong for Shantou, with 5 first-class passengers and 220 in tourist class. Pirates disguised as passengers occupied the cab, the engine room and the captain room, while 6 collaborating pirate boats came around the liner. The captain, the second mate and a Western passenger resisted and were killed; the pirates then fled with loot. Later, the Hong Kong administration requested that the Chinese government apprehend the pirates. On April 17, 1891, Fang Yu, assistant general of Kowloon, informed the Hong Kong government that 19 pirates were captured. When the latter were executed, British officials at Hong Kong were invited to view the execution. The Hong Kong administration sent 5 officials (the police chief, the ship administration department, and the Chinese department) to Kowloon for this, and the result was photos such as “Group Photo of Hong Kong Officials on the Scene” (see Fig. 6.12), which has been published in modern works.44 The execution took place on the beach off Jiulong City, and the executioner was invited from Fujian. Many Hong Kong island residents, from the Victoria Gulf to Jiulong, came to watch. In the widely circulated photo, 8 bodies just decapitated lying on the beach, and eyes open blindly to the sky. Coincidentally, behind the 8 corpses were 8 spectators. Down at the feet of the British spectators were the bloody corpses, like dead animals, while the British spectators were seemingly having a Sunday outing. The intention of presenting Western colonial power at a high vantage point is obvious. Hong Kong (actually the Jiulong Peninsula), the crown colony of the British Empire, presented what Orientalists have called interesting photoscapes of a foreign country. In contrast to this kind of photograph, the postcard was processed and revised; its atmosphere was more plainly constructed. The main modification was that the chain of mountains in the background was artificially decorated with colors to add sedulously conceived peacefulness. The garments of the pirates executed were also tinged with various colors. To make it more real and credible for the audience, a flag with an icon was flying at the right top of the postcard. Such a method gives a sense of beauty to the postcard and a mysterious tone of a distant oriental country that implies that the British were the supreme power in the Far East. When reprinted and copied on magazines and postcards and spread among the reading public in English-speaking countries, it was an invitation to view violent and bloody killings from a safe and comfortable distance. Here, I do not intend to rewrite the history of this period or criticize the indifference of the colonialists by taking the stance of a postcolonialist critic. There is always a means of compensation in the law. Here, the passengers fell victim in the S.S. Namoa hijacks were commoners returning to their hometown in Fujian for family reunions during the Spring Festival. It was rational 44

Wu (1986), p. 72.

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that the pirates were executed for their crime. However, the fact that the event was widely spread about under the title of “bloody Chinamen” makes us wonder: what is actually revealed behind the association of the bloody decapitation and the photo replicated in magazines and postcards? In this public execution, what is the operating mechanism behind English Lessons? How can we find the elegant “civilization” boasted as represented by Western countries in such a bloody scene? Who are the students?45 In my view, this image “which is always condemned by Westerners as barbarian” was a result of a long construction of a discourse coming from modern Western colonialism. If the pirates in the S.S. The Namoa case lived in a distant border area of the empire, and then the following case involved government officials and occurred in Beijing. The low rebels of Yihetuan and senior Qing government officials were closely interwoven in a life-and-death competition for power in which public executions became routine. In the half month from July 15 to July 31, 1900, in crimes associated with the rebellion of Bailianjiao, over 100 innocent people were executed at the Caishikou execution ground. On July 31, the third execution of Bailianjiao rebels was carried out at Caishikou. Over 30 men and women, adults and children, were killed. They were “mainly countryside villagers, upon execution they called out to their relatives, and cried painfully. The situation was bloody beyond words. Among them there must have been some innocents. It was truly an evil committed by Yihetuan.”46 After the occupation of Beijing by allied forces of 8 countries, the officials who once supported Yihetuan were punished. We have many photos of the execution of the Yihetuan rebels, constituting a bloody piece of Chinese history (Figs. 6.13 and 6.14). However, little is known about the life of the lowly Yihetuan people who were decapitated; their corpses were anonymous and oblivious in history. So were the photographers: the process and context for the photos are also unknown. Only textual evidence of the execution of Qi Xiu and Xu Chengyu can be found in the detailed narration of Gengxin tilao biji by Bai Zengzhuo. On that day, foreign spectators crowded to see the execution, and many of them took photos.47 This execution-ground photography was important in allowing Western powers to leave records of military victories. Conquest and executions were closely connected and even indispensable. Embassies and military officers were carrying out a systematic punishment, and consequently, governments, monarches and even the common people of the victorious countries expected the staging of these scenes. Diplomats, military commanders and the photographers for the Western powers were eager to enjoy the victory feast as senior officials of the defeated polity were executed: photography as a recording method was thus part of the punishment system. When the officials were sentenced to death upon demand of ambassadors of various countries, it was recorded that “On this day soldiers of various countries were assigned to guard. All Western spectators stood on roofs and took photos on three occasions: the first time was in the shed for executions, the second time when victims begged 45

See Hevia (2003), p. 3. Zhong (1978), p. 27. 47 Bai (1977), pp. 44–46. 46

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Fig. 6.13 The execution of a senior official. Source http:// jds.cass.cn/Item/20599. aspx#Title, accessed February 20, 2010

Fig. 6.14 Execution of a Chinese official by the Allied Forces. Source James Louis Hevia, English Lessons: The Pedagogy of Imperialism in Nineteenth-Century China, 280

for mercy from the emperor, the last one on the execution ground.”48 This scene was called in some academic works as the first one in more than 500 years since Caishikou was made an execution ground, it was also the climax of the bloody storm. I recognize that the two photos above were records of the execution of Qi Xiu and Xu Chengyu. It seems incorrect that some scholars title the photos “Execution of Yihetuan Members under Supervision of the British Army” and “Slaughter of Yihetuan Members at Caishikou.” In Fig. 6.13, seen from the age and the costume of the victim and the respect expressed by people seeing him off, the victim was certainly not a Yihetuan member, but a senior official of Qing. In the first photo, 48

Yang (1964), p. 41.

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what the attendant gave the victim to drink in the bowl might be what was usually called “hedingxue” (鶴頂血, crane-head blood). The background and perspectives of the second and third photos proved that the three photos were of a series. In Fig. 6.14, the executed was covered with a good-quality mat, and execution assistants knelt by the corpse. These details showed that the decapitated was not a common person. When we compare this photo with photos of execution of other Yihetuan members, the difference in age and rank was obvious. Therefore, I believe that it is correct for some scholars to title the first and the second photos separately as “The Execution of a Senior Official,” or “Execution of a Chinese Official by the Allied Forces.” The reason why among similar photos these two photos were spread most widely was also because of the particularity of the contents they reflected. Using British records, James Hevia, in English Lessons: The Pedagogy of Imperialism in 19th-Century China, also discovered that the man decapitated was a Qing official. After an examination of the photo, Ross M.A. Wilson at the costume and emblem department of the Canadian War Museum in Ottawa believed that the three British soldiers in the photo were all sergeants, probably from the Royal Horse Artillery Army.49 The textual and graphic information provided by this scene was forever situated in modern Chinese history. Here, I wish to stress that a new type of photography became a turning point for the reform of law in the late Qing, and it turned up impressively in Shen Jiaben’s memorial to the throne requesting a modification of laws. He proposed using it as persuasive evidence for his arguments. In his memorial, Shen pointed out that previously public executions were to demonstrate the state’s power, to frighten spectators and warn them. However, gradually, they lost the ancient notion that punishments helped civilization, and the power of law became profaned: “Hardened criminals are sad but unflinching in executions: knives, saws, axes, tomahawks are regarded as just so-so; upon execution they even vituperate, advance triumphantly while singing songs loudly with an imperturbable expression. This provides inspiration to potential bad actors, who become more ferocious; when common people are familiar with this, they gradually become cruel.”50 At Caishikou in Beijing, “when executions were carried out, not only did common people crowd and clamor, but foreigners too were curious and ascended onto roofs to watch; sometimes they were sarcastic in private discussions, they took photos and left. This is not consistent with policy and may cause other disturbances.”51 Therefore, Shen recommended closed-off executions prevalent in most Western countries. Security would be provided and accidents prevented; the common people would be more likely be better for not seeing such cruelty. Generally, the executions at Caishikou were in itself a topic of discussion, and the fact that Western photographers claimed a role, using contemporary technology, made the event a focus of attention for the government and the public. We can say that the account given in Shen Jiaben’s Biantong xingxing

49

Hevia (2003), p. 2. Shen Jiaben, “Biantong xingxing jiuzhi yi,” in Shen (1985), p. 2061. 51 Ibid. 50

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jiuzhi yi (On being flexible for the old regulation of execution) was a painful reflection of Western photography. However, if we look more deeply, it is not hard to reach this conclusion: Shen Jiaben’s Biantong xingxing jiuzhi yi was not simply a rhetorical device that associated photography with modification of the law. The blood-thirsty icon of Qing law constructed by photography became an objective fact and part of the collective consciousness, which penetrated people’s hearts and eventually led to the commencement of legal modifications. Through an attempt to clarify the overall image revealed in Western pictures and the distribution and spread of such images, we find that an institutional fact was created by symbolic representations (especially via linguistic representation). As Susan Sontag asserts, capitalist society needs a photography-based culture. It must provide large amounts of entertainment to stimulate people. The pain of class, race, and sexual struggle must be blunted or appeased through such a stupor. It also gathers endless information to better exploit natural resources, to improve productivity, to maintain order, to wage wars, and to provide jobs for politicians. The dual function of cameras makes reality subjective and makes the subjective objective so that these requirements are perfectly met and enhanced. The camera restricts reality in two ways, which are indispensable for the operation of a developed industrial society: it is seen as a scenario (for the public) and as a supervised object (for rulers). The production of images also provides a ruling ideology. Social reform is substituted by manipulation of images.52 Everyday, Westerners had neither time nor competence to understand the traditional Chinese idea of criminal punishment. What attracted their eyes suited their sensual needs. The Western camera became a critical weapon toward Chinese legal culture. By casting light on Western civilization, photographers taunted the backwardness of Qing legal culture as they did the long pigtails worn by Qing people; they sought novelty in their representations. Textual accounts, graphic narrations, and numerous groundless fantasies accumulated over years; thus, an outdated routine became prevalent in the reconstruction of a realm of meaning full of strange illusions. The long-standing and civilized China, and its people, became bloodthirsty, barbarian, pitiful and lamentable, needing redemption by the West. The backwardness of traditional Chinese legal culture was in part an artificial construction. A rumor may be distorted and regarded as truth, while China’s political corruption and economic underdevelopment were enough to make this country a shabby foundling. The modification of laws was aimed at eventual prosperity and military power. It is necessary for revolutionaries or reformers to describe traditional laws as negative to rationalize themselves. This negative description exaggerates the negative elements, which consciously or unconsciously converged with the image constructed by Westerners in their zoetropes, which were a construction of a kind of social fact. It was a relatively recent invention of language intended to stereotype an impression 52

John Burger, “The Uses of Photography—To Susan Sontag,” Xiang Juanjuan (translated), in Gu Zheng (2007), p. 105.

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of Western prosperity—a blurred, foggy vision of Western powers in the eyes of Chinese. Ends and means became out of joint, and later historical events proved this out.

References Allen, Y. J., & Fryer, J. (1990). Shanghai Gazette, Modern Chinese Historical Series, Book 59, 581–590. Wenhai Press. Bai, Z. (1977). Gengxintilaobiji. In Modern Chinese historical materials series (Continued), Book 37, 365–6. Wenhai Press. Brook, et al. (2008). Death by a Thousand Cuts. Harvard University Press. Chen, S., et al. (1990). The history of Chinese photography: 1840–1937. Photographer Press. Clunas. (1984). Chinese export watercolors. Victoria and Albert Museum. Davis. (1822). Chinese novels, translated from the originals: To which are added proverbs and moral maxims. J. Murray. Duan, J. (1960). Chronological autobiography of Jinghu. Zhonghua Book Company. Fucha, D. (1981). Yanjingsuishiji (published together with Pan Rongbi’s Dijingsuishijisheng, etc.). Beijing Classics Publish. Gu, Z. (2007). Papers on Western Photography, revised version. Zhejiang Photographic Press. He, B. (2008). Images of the old days: China on early photos and postcards of the western world (G. Zhang, Trans). Oriental Publishing Center. Heidegger. (1977). “Die Zeit des Weltbildes,” in idem, Gesamtausgabe, Bd. 5. Vittorio Klostermann Verlag. Hevia. (2003). English lessons: The pedagogy of imperialism in nineteenth-century China. Duke University Press. Holmes. (1798). The Journal of Mr. Samuel Holmes, Serjeant-Major of the XIth Light Dragoons, during his Attendance, as one of the Guard on Lord Macartney’s Embassy to China and Tartary, 1792–1793. W. Bulmer. Hu, Z., & Ma, Y. (1987). The history of Chinese photography: 1840–1937. China Photographic Publishing House. Hunter. (1992). Bits of old China (Z. Shen, Trans). Guangdong People’s Publishing House. Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty. (1976). Guangxu edition, xingbu, minglilv, wuxing (Vol. 723). Xinwenfeng Press. Jacobson. (1993). Chinoiserie. Phaidon Press. Landau, P., & Kaspin, D. (2002). Images and empires: Visuality in colonial and postcolonial Africa. University of California Press. Latour. (1988). Science in action: How to follow scientists and engineers through society. Harvard University Press. Liu, L., & Wu, F. (2006). Pictures of an empire: China in Qing Dynasty in paintings by painters of the british embassy to China. Renmin University Press. Mason. (1801). The punishments of China, illustrated by twenty-two engravings: With explanations in english and French. William Miller. Shen, J. (1985). A study on criminal laws of all dynasties. Zhonghua Book Company. Sontag, S. (2006). Regarding the pain of others (C. Huang, Trans). Shanghai Translation Publishing House. Staunton. (1810). Ta Tsing leu lee, being the fundamental laws, and a selection from the supplementary statutes, of the penal code of China. T. Cadell & W. Davies. Staunton. (1963). An authentic account of an embassy from the king of great britain to the emperor of China (D. Ye, Trans). The Commercial Press Bookstore. Su, S. (2007). Records of photographers in Late Qing. Journal of National Museum of China, 2.

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Tian, T., & Li, Z. (2007). Contact and collision: Chinese law in western eyes since the 16th century. Peking University Press. Veritable Records of Daoguang. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Qianlong. (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Yongzheng. (1960–1970). Huawen Bookbureau Ltd. Co. Wang, S. (1998). Xiaojing yizhu. Shanghai Classics Publish. Williams. (1861). The middle kingdom. John Wiley. Wu, Q. (1986). The evolution of photography in China. Xinhua Publishing House. Yang, D. (1964). Gengzidashiji. In The modern Chinese history staff of the Department of History at Beijing University (Ed.) Historical materials series of Yihetuan movement, Book 1. Zhonghua Book Company. Yang, Z. (2009). Fragmentary images of empire: Treasury of valuable works on the western arrival in China. Unity Press. Zhang, W. (2002). Pioneering photograph studios in Shanghai. Archives and History, 4. Zhong, F. (1978). Gengzijishi. In The Modern History Materials Editing Board of the Institute of Modern History at the China Academy of Social Sciences (Ed.) Gengzijishi. Zhonghua Book Company. Zhou, S. (1987). Shiyitang diary. Zhonghua Book Company.

Chapter 7

Re-examination of Abolishing Consular Jurisdiction as the Start of Law Modification in Late Qing

In recent years, many young scholars specializing in historical studies of law challenged the stereotyped ideas forged by their predecessors. The cause of law reform and modification in the late Qing dynasty is one of the controversial subjects under challenge. It has been long that most scholars view consular jurisdiction as the main incentive of the law reform because in the process of revising the treaties of commerce between the Qing government and other countries, Britain proposed conditional promise that if the Qing government reformed its jurisdiction to “perfection”,1 Britain would give up extraterritoriality. Persuaded by the deceptive promise, the Qing government soon assigned Shen Jiaben and Wu Tingfang as law ministers for the modification of contemporary laws and regulations with a reference to those of other countries. In 1922, Jiang Yong, in his Legal System in the Last 50 Years, described the law modification in late Qing as quoted below: “in the 28th year of Guangxu’s reign, Lv Haihuan and Sheng Xuanhuai were assigned by the government to revise the treaties of commerce with foreign countries, Britain, Japan and the United States argued that in cases where the Chinese law coincided with those foreign laws, they would give up their consular jurisdiction. Consequently, Yuan Shikai, the governor of Zhili, together with Zhang Zhidong, the governor-general of Huguang, and Liu Kunyi, the governor-general of Liangjiang, presented a memorial to the throne and recommended people for law reform. In the 28th year of Guangxu’s reign, Sheng Jiaben and Wu Tingfang commissioned the law reform. However, from the 28th year to the 31st year of Guangxu’s reign, they concentrated only on modifying old laws and translation of law books.”2 Since Jiang Yong himself was involved in the law reform in late Qing, as a pundit in jurisdiction and law science, his assertion here is viewed true and much quoted by other younger writers. According to the 1

Article 12 of the Treaty of Commerce and Navigation Renewed between China and Britain, see in Daqing Fagui Daquan (1972), the foreign ministry, treaties, p. 2160. 2 Jiang Yong. “Rule of Law in China in 50 Years”. Shen Newspaper, the 1922 special number for the 50th anniversary of the newspaper.

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Manuscript of Qing History, the law reform in late Qing “started after the Gengzi year in Guangxu’s reign, foreign countries revised their treaties, our people strove and contended for the removal of consular jurisdiction, while foreign delegates were reluctant to give up and found an excuse that the Chinese legal system was imperfect. Facing arduous appeal, foreign delegates declared that if Chinese jurisdiction improved in the future, they would give up consular jurisdiction. The declaration was recorded in the treaties as a guarantee. Therefore, in the 28th year of Guangxu’s reign, the Law Drafting Committee was established: ‘in accordance with the negotiations, foreign laws should be consulted to find universal principles’. The aim was to modify laws so that foreign countries should abide by them.”3 The description has inappropriateness and requires reconsiderations. In 2004, Chen Yaping published his paper “Renewed Treaty of Commerce and Navigation between Britain and China and Legal Reform in the late Qing” published in Qing History Studies No. 1, Gao Hancheng published his paper “Revisiting the Motivation for Legal Reform in the Late Qing: Zhang Zhidong and Consular Jurisdiction” in Qing History Studies No. 4. These two papers were mainly based on the fact that the Renewed Treaty of Commerce and Navigation between Britain and China (also called Mackay Treaty) was signed on the 4th day of the eighth lunar month, the 28th year of Guangxu’s reign (September 5, 1902), but early on the 10th day of the twelfth, the 26th year of Guangxu’s reign (January 29, 1901), Cixi issued the “Law Reform Decree” on her way back from refuge after the Gengzi Event, the two events are 1 year and 8 months apart, the treaty was also half a year earlier than the 2nd day of the second lunar month, the 28th year of Guangxu (March 11, 1902), when the Qing government promulgated the “Decree for Law Reform”, it was obvious that the temporal sequence should not be reverted. Therefore, the writers rejected the idea that the abolition of consular jurisdiction was the direct cause for law reform in late Qing, holding that the Qing government’s decision for law reform was not a consequence of Article 12 of the Mackay Treaty, the traditional view took subsequent event as the cause of a previous event, the later treaty article was mistaken for the father of a previous decision, the logical fallacy in history herein has a serious damage to the judgment of the law reform in late Qing. Based on the papers by Chen and Gao, I want to expatiate my tentative view of this new opinion based on my attempt over these years.

7.1 The Commencement of Law Reform in Late Qing In my view, Manuscript of Qing History Treatise on the Penal Law has the following record in disagreement with the description above. Perhaps the record was not carefully integrated by the editors, but it is more compatible with historical facts: “in the 26th year of Guangxu’s reign, the foreign allied forces entered Beijing, the royal family fled to the west. People with worries about the situation agreed that China must learn from Europe and America to be powerful. Thus, many commentators on 3

Zhao et al. (1977), Vol. 144, xingfazhi, pp. 4216–4217.

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current affairs frequently talked about laws. In the 28th year of Guangxu’s reign, Yuan Shikai, the governor general of Zhili, Liu Kunyi, the governor general of Liangjiang, and Zhang Zhidong, the governor general of Huguang, jointly recommended Shen Jiaben, a vice minister of the Board of Punishment, and Wu Tingfang, the ambassador to the U.S., for the modification of laws to bridge the Western and Chinese principles. The recommendation was accepted by the emperor, and the existing laws should be drafted with reference to the laws of other countries in accordance with the requirements proposed in commercial treaty negotiations so that the law may be applicable to people of all countries and helpful in the administration. From then on, law researchers focused on the consular jurisdiction.”4 After the Gengzi Event, on January 29, 1901, Cixi, who fled to Xi’an, issued a “Decree for Law Reform” in the name of Guangxu, the emperor, in which the decision was made to eliminate stereotyped customs, modify laws, establish a committee for law drafting work, in accordance with negotiations with foreign countries, the Privy Council, the Grand Secretaries, the ministers, the ambassadors, the provincial governors-general and governors of all provinces were encouraged to make their reports and give advice on that. This can be deemed a mobilization order for new administration and law reform in the late Qing. On the one hand, although Cixi suppressed the Wuxu Reform, she failed to avail the power of Yihetuan to drive away foreign troops, so she had to change her political tactics. On the other hand, she did not come up with a new tactic, so her main intention was to repair with traditional political tricks, and the Western laws’ transplantation was not at the core. Since the negative shadow of the Wuxu Coup two years before was still in people’s mind, provincial governors-general and governors took much time guessing the aim of the central government. Several days before the issue of the Decree for Law Reform, through telegraphs from Duanfang and Yuan Shikai, Zhang Zhidong knew the rough ideas of the decree. After receiving the imperial order, he gathered from many sources that the decree was out of “the emperor”, so in his telegraph to Lu Chuanlin, the Privy Council leader, he insisted on mentioning “Western laws’ transplanting”.5 He thought that law reform was not a mere renovation of rules. The adoption of Western laws was clearly stated in the decree. In the future, the fate of the country would lie in self-prosperity or peaceful foreign relations, so the old laws must be modified greatly in an imitation of Western laws. If Western laws were not consulted, the reform would be nothing but a mere recompilation of old laws. Lu Chuanlin replied in his telegraph that this was a great change, a big deal of efforts must be made to get rid of traditional drawbacks and make the new laws applicable in practice. Liu Kunyi and Zhang Zhidong consequently presented three memorials to the throne about the reform on the 27th day of the fifth lunar month (July 12), the 4th day of the sixth lunar month (July 19), and the 5th day of the sixth lunar month (July 20), which were written by Zhang Zhidong with the assistance of Zheng Xiaoxu, Liang Dingfen, Huang Shaoqi. The three memorials set the keynote for implementing the reform in late Qing.

4 5

Zhao et al. (1977), Vol. 144, xingfazhi, p. 4178. Zhang (1998), Book 10, a letter to Minister Lu at Xi’an, p. 8526.

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The three memorials presented jointly by Liangjiang and Huguang include the memorials entitled “Human Resources is a Priority for Political Reform”, “Twelve Suggestions on the Modification of Chinese Law”, and “Twelve Suggestions on the Adoption of Western Law”. The three memorials are different in subject matters, gradual in progression, the modification of Chinese law and the adoption of Western law were reported in two separate memorials, the structure was deliberate, to show an obedient strategy in making suggestions to Cixi. In addition, Kang Youwei’s reform was criticized as nonsensical and ignorant of Western administration and Western sciences, the ignorance caused disorders and sabotage, by contrast their modifications were quite another thing. The second memorial proposed showing mercy on punishments. The victory or defeat in wars are related to judicial activities, which is connected with “minqi 民气” (people’s spirit) and “guoshi 国势” (state power). In addition, the connection between extraterritoriality, social problems such as religious cases and the Gengzi Event is reconsidered, a Chinese-western contrast is made, foreigners “had personally experienced prisons in counties, and witnessed interrogations, they were much worried that suspects were not treated as human beings”,6 the Western view served as pressure for the reform of the domestic jurisdiction, and the interaction between extraterritoriality and modification of domestic law was indirectly approached. In addition, in the third memo, Liu Kunyi and Zhang Zhidong also proposed plans for drafting laws for mines, roads, business and foreign affairs. It was emphasized that the drastic difference between China and foreign countries necessitated laws concerning foreign affairs. The director for drafting laws should call foreign ambassadors and invite famous lawyers of various countries, one lawyer from each large country, as teachers in law compilation at the yamen, laws of mines, railroads, and businesses of different countries should be referenced in drafting legal articles for China divided into systematic categories. The compilation should be completed within a year before the director of the yamen finishes it for approval by the emperor, and the law would be communicated to all countries and promulgated. The reclaiming of extraterritoriality was not explicitly declared, but such an intention was clear, that is, this would serve as a legal basis for reclaiming extraterritoriality. The Qing government accepted the suggestion of drafting new laws, and then the emperor issued the first decree on law reform on March 11, 1902, which is well known. It said that “Since the Han dynasty and Tang dynasty, Chinese laws have been subjected to modification in each dynasty. Our dynasty’s Great Qing Code with Substatutes is justified and complete in itself. Since ways of administration should be accustomed to the time, today we have a different environment than what we had, the laws must be adjusted to make them perfect in implementation. However, in recent years, industries have been developing fast, and business involves a larger market, so laws concerning mines, railroads and business should be modified and put in separate laws. Our ambassadors should take foreign laws from different countries to the Foreign Affairs Ministry for consultation, Yuan Shikai, Liu Kunyi, Zhang Zhidong should recommend and send 6

Ding et al. (1994), the memorial on the modification of 12 articles for the reform (the 4th day of the sixth lunar month in the 27th year of Guangxu’s reign), p. 587.

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experts familiar with Chinese law and foreign law to Beijing, they will be selected for law-compiling houses, the laws compiled shall be promulgated after getting the emperor’s approval.”7 Obviously, this was Qing government’s response to the third memorial to the throne; the law modification was mainly justified in terms of new trends in economic development. The academic circle often quotes the above decree for modification of laws, which can be found readily in many books, while paying little attention to the memorial for which the said decree is a reply, so they ignore the reason why Zhang Zhidong et al. were particularly required to recommend experts. In addition, the reason that some scholars argue that the law modification in the beginning was meant to abolish inquisition by torture is also caused by a neglect in understanding the three memorials jointly presented by the governors-general of Lianjiang and Huguang, which is the very spur for modifications. Yuan Shikai, Liu Kunyi, and Zhang Zhidong recommended Shen Jiaben, a Chinese law expert, and Wu Tingfang, a Western law expert. On the 13th day of the fifth lunar month, the Qing government issued another decree: “Now there are many foreign affairs negotiations, Shen Jiaben and Wu Tingfang are hereby ordered to modify all current laws and regulations in accordance with the agreements in negotiations after consulting foreign laws, the work must be careful and the laws must be modified well, so that they may be applicable for all countries alike, and helpful for administration. After that, the final draft will be issued by the emperor, whose approval is needed before the promulgation.”8 In the two decrees above, consular jurisdiction was not mentioned, and we cannot arbitrarily conclude that the “foreign affairs negotiations” refer to the reclaiming of consular jurisdiction proposed by Zhang Zhidong in his talks with Mackay in Wuhan two months later. Meanwhile, we cannot imply that the Qing government did not propose reclaiming consular jurisdiction in such negotiations because during the years 1900 and 1901, Qing’s rule was destroyed, and the modification of laws served as a hope for better domestic administration; gradually, the regime and economic interests could be reclaimed. In this round of negotiations, Robert Hart proposed a plan involving the issue of extraterritoriality.

7.2 The Origin of Article 12 of the Sino-British Commercial Treaty Before the Gengzi Event, the negotiations between China and Britain concerning the modification of customs regulations had already started on a schedule, and a joint committee had been established for that purpose. Article 11 of the Xinchou Treaty signed in 1901 specified that “The Chinese Government has agreed to negotiate the amendments deemed necessary by the foreign Governments to the Treaties 7

Veritable Records of Guangxu (1960–1970), Vol. 495, the second lunar month in the 28th year of Guangxu’s reign, p. 4556. 8 Veritable Records of Guangxu (1960–1970), Vol. 498, the fourth lunar month of the 28th year of Guangxu’s reign, p. 4584.

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of Commerce and Navigation and the other subjects concerning commercial relations with the object of facilitating them.”9 Hence, China and Britain decided to carry out negotiations on trade treaties in Shanghai. On September 28, 1901, the British government sent a delegate headed by James L. Mackay to China for talks on trade treaties. On the 1st day of the tenth lunar month of the same year, since Qing government was urgent in paying retributions according to the Xinchou Treaty, the government was extremely short of fiscal resources for that purpose, Qing government also wanted to get more income by increasing the customs, so the government appointed Sheng Xuanhuai as the responsible official for dealing with trade and customs affairs, he was in charge of negotiations concerning treaties of commerce and modifications to import customs regulations. In addition, Liu Kunyi and Zhang Zhidong were assigned as consultants to him in making decisions. On February 23, 1902, the Qing government appointed Lv Haihuan as another official responsible for the negotiations on trade treaties. The first talk started on the 1st day of the twelfth lunar month in the 27th year of Guangxu’s reign (January 10, 1902). In the first stage, the British delegate brought up two proposals, i.e., “Establishing maritime law and business law yamen” and “Modifications to the Shanghai Mixed Court”, which was a clear indication that Britain attempted more political control of China and the intervention of the legal affairs of China. Mackay suggested that British people might buy or rent land and houses for living, trade, production and installing machines. He also mentioned that Britain imposed no limit on Chinese merchants anywhere in Britain. Sheng Xuanhuai clearly rejected the proposals because “Chinese did not enjoy extraterritoriality in Britain”.10 “Sheng Xuanhuai considered this demand to be too premature, and as long as extraterritoriality existed, China could not accept that proposal. He said that Chinese laws would be modified soon to be more in line with the laws of other countries. In the future, if foreigners could be governed by local officials like they were in Japan, this privilege might be awarded.”11 Hereby, Sheng Xuanhuai mentioned that China had decided to modify law. He used the Qing government’s decision on law modifications as a reason for rejecting the demand brought up by Mackay. It is obvious that the Qing government’s decision on law modifications came earlier than the discussion of extraterritoriality in the negotiations about the Sino-British Commercial Treaty; moreover, the extraterritoriality issue was not brought up for the first time by Zhang Zhidong after Mackay’s visit to Hubei. By the end of the fifth lunar month in the 28th year of Guangxu’s reign, both sides had already held over 60 joint meetings, in which acceptance and rejection, modifications and canceling of modifications occurred repeatedly without a significant outcome. Since the Yangtze River region was the focus of the modifications to the trade treaties, Sheng Xuanhuai invited Mackay for face-to-face meetings with 9

Wang (1959), Book 1, p. 1007. The Editing Board of the Modern Chinese Economic History Materials Series (1994), W.F.Tyler’s No.1338 report to Hart and the memo of the 6th meeting on January 28, 1902, p. 33. 11 The memo of the first treaty modification meeting between China and Britain, in the Editing Board of Modern Chinese Economic History Materials Series (1994), p. 21. 10

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Liu Kunyi in Jiangxi and Zhang Zhidong in Hubei. It was during the meeting in Wuchang, capital of Hubei Province, that the talks made great progress; breakthroughs were made in removing the previously suspended key obstacles. On the last day of the meeting at Wuchang, Zhang Zhidong proposed Britain’s giving up of consular jurisdiction. Zhang Zhidong thus described the meeting as follows: … So I told Mackay that “since your arrival in Hubei, agreement was reached on many articles by both sides. Today, you asked me to talk about affairs irrelevant with the increase of customs. Such interests were all what Britain asked from China. China should also ask for something from Britain to make it a fair deal. If you refuse Chinese interests, I will not continue our negotiations. There will be no talks today.” At first Mackay considered this problematic, he said that “in this treaty only Britain shall demand something from China, rather than that China demand from Britain.” After my persistent insistence, he allowed my requirement. So I asked to talk about two articles. First, after China modified its laws, British people in China should be governed by the Chinese government. Second, foreign governments should send their people to join Chinese officials for investigations into religious affairs in provinces for a good solution to that issue. The article was talked and agreed to enter the treaty as Article 12.12 Robert Edward Bredon, the vice inspector-general of the Imperial Maritime Customs Service, made a report to Robert Hart, the inspector-general, in which the meeting between Mackay and Zhang Zhidong on July 17, 1902 at Wuchang Textile Mill was recorded, especially concerning this discussion: Mackay: I think today we’d better talk about Article 11. Sheng Xuanhai promised that I would stay at Hankou for only two days, but now I have been here for too long. Liang Dunyan: You spent 8 months without solving any problems! However, here in several days you have already settled many articles through negotiations! People would say Sheng Xuanhuai and Lv Haihuan were very careful, while Zhang Zhidong was more liberal in talks; he accepted all your conditions! Zhang said that you must provide something for him to show his worthiness. He brought up two items. One is about extraterritoriality. We want to modify our law, and we will appoint commissioners for that purpose. Are you willing to accept that all foreigners will be governed by Chinese law after our modifications? Another issue is about religious activities … Mackay: Can you make your proposals in written form? Zhang Zhidong: During the first few years, China will probably invite and employee foreign judges.13 On the 20th day of the sixth lunar month (July 24), Qing government ratified Zhang Zhidong’s suggestion: “the two articles concerning law modifications and the inviting of foreigners for investigations of religious activities shall enter the treaty.”14 The final treaty provided that “China having expressed a strong desire to reform her judicial 12

Zhang (1998), p. 2251. Pei Shikai. “A Brief Account of the Meeting between Mackay and Zhang Zhidong on July 17, 1902 at Wuchang Cotton Mill.” In the Editing Board of Modern Chinese Economic History Materials Series (1994), pp. 137–139. 14 Wang and Wang (1985), Vol. 159, Foreign Ministry’s telegram to Liu, Zhang, Lv, Sheng on the acceptance of the 2 articles on religious activities in the treaty, Modern Chinese Historical Materials Series, Compilation 3, Book 2, 16, p. 2656. 13

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system, and to bring it into accord with that of Western nations, Great Britain agrees to give every assistance to such reform, and she will also be prepared to relinquish her extraterritorial rights when she is satisfied that the state of Chinese laws, the arrangement for their administration, and other conditions warrant her in doing.”15 The expression “Great Britain agrees to give every assistance to such reform” clearly shows that the foreign powers started their support for the law modifications, and the decision for modifying laws had existed long before that moment. The promise made by foreign powers was merely a cake drawn for appeasing hunger, but it was the first time that foreign powers promised to give up privileges. This is also the first time that abolition of extraterritoriality was recorded in a treaty binding on both sides. Doubtlessly, there was a slim hope for taking back consular jurisdiction, which became a propellant for law modifications. Shen Jiaben and Wu Tingfang also considered this “a key to the reform for prosperity.”16 It is clear that Article 12 of the Sino-British Commercial Treaty was proposed by the Chinese party rather than an olive branch first extended by the British to reform China. As a main designer of law modification in late Qing, Zhang Zhidong brought up this article to facilitate the law reform under way at that moment, the law reform for prosperity was meant to abolish extraterritoriality in the long run, this was the unmentioned but actual aim of the reform, however in Article 12 of the Commercial Treaty, this point was made very clear, which greatly encouraged the enthusiasm for reform and modification of law. The signing of the Commercial Treaty followed the Qing government’s decision to reform laws, but the aim of abolishing extraterritoriality was incorporated early in the commencement of the reform and modification of law. This was clearly a key in the reform and modification of law; otherwise, Zhang Zhidong’s proposal on this issue would be groundless and too imprudent. The treaty revision and the assignment of Shen Jiaben and Wu Tingfang occurred at the same time, and both events were in the mind of the supreme rulers of Qing, Zhang Zhidong, Shen Jiaben, Sheng Xuanhuai and under their consideration. When Zhang Zhidong, Liu Kunyi and Yuan Shikai jointly recommended Shen Jiaben and Wu Tingfang for the reform and modification of law, Zhang Zhidong said clearly in his telegram that the law modification was related to the Commercial Treaty negotiations. In this sense, Jiang Yong’s description was not consistent with the facts, but his traditional view should not be challenged only by simplifying the complex cause-effect relationship in history.

15

The official version of this treaty is the English version, which can be seen in T’oung Pao, Second Series, Vol. 3, No. 5 (1902), pp. 324–335.The Chinese version can be seen in Wang Tieya (1959), Book 2, p.109. 16 Shen Jiaben. “On Deleting Harsh Punishments in Laws.” In Shen (n.d.), Vol. 1, p. 2.

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7.3 Influence of Robert Hart The methodology of historical textual research requires a comprehensive view of the sources and results. The traditional view that the abolition of consular jurisdiction served as an urgent cause for the modernization of Chinese law cannot be rejected imprudently by such superficial efforts, and our field of vision must be broadened. It seems that there is a necessity for considering previous views carefully. Before Chen Yaping and Gao Hancheng published their papers, I checked the translation of these from the Land of Sinim: Essays on the Chinese Question, a book translated by Prof. Ye Fengmei and originally written by Robert Hart, who played an important role in the Mackay Treaty. I discovered that the view about extraterritoriality in this book had a clear influence on the later Mackay Treaty and the law modification in late Qing. As a schemer, Hart participated in the imposition of many unequal treaties on the Qing government and helped the Qing government abide by such treaties. He was obviously aware of the negative psychology and sentiments of the Chinese government and the Chinese people against such unequal treaties, but since he was the inspector-general of the Imperial Maritime Customs Service, which was the focus of the conflicts between China and foreign countries. From his own particular standpoint, he wanted to solve the conflicts in Chinese law and Western law due to extraterritoriality. Hart’s biographer, Lester Knox Little, also the last foreign inspector-general of the Customs in China, pointed out in the introduction to the book The I. G. in Peking: Letters of Robert Hart, Chinese Maritime Customs, 1868–1907 edited by John K. Fairbank et al. that Hart “came out strongly for the abolition of extraterritoriality.”17 Hart was also proud of himself on this point. On January 23, 1876, 40-year-old Hart submitted a proposal entitled “The Brief Guidelines for Customs Collecting at Trading Ports” to the Office in Charge of Affairs of All Nations.18 He expressed his basic view concerning the problems in China during this period. The brief guideline had 5 sections, i.e., the introduction, the commerce, the judicial actions, the administration, and the final discussions. In the section about “judicial actions”, Hart listed the complaints both of the Chinese side and the foreigner side concerning judicial administration. He said that where questions affecting right to life had arisen, foreigners might complain that Chinese officials would not capture or interrogate criminals on behalf of foreigners, the criminals would not be punished, or merely punished slightly for serious felonies, or the real criminals would be allowed to escape and other friendless wretches substituted. On the other hand, Chinese in turn complained that foreigners assaulted Chinese with impunity. In murder cases, foreign officials would substitute the criminal with somebody else, try to shelter him, or decide it as manslaughter. If punishments should be conducted according to Chinese law, foreign officials simply released the convict after putting him in custody for a few more days. If a foreigner was killed, foreign 17

Fairbank et al. (1975), Introduction by L. K. Little, p.27. See Chinese Customs Service (1938), Vol. 4, pp. 402–454. In Hart (2005), Appendix 2, pp. 147– 190.

18

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officials would hurriedly capture the Chinese criminal for immediate execution. If a Chinese individual was killed by a foreigner, foreign officials would tend to pay money to support the bereaved family, and then the foreign criminal would not be executed. There are many such complaints.19 Both Chinese and foreigners had complaints, why? Hart answered that cases involving Chinese people and foreigners were not without legal provisions or crime definitions, but there was no common and uniform procedure for actual cases involving both Chinese people and foreigners.20 Regardless of murders or property disputes, such complaints abound. The foreigner complained that the Chinese authorities were dilatory, would shield their own people, refused justice, and complained that the foreign officials feared offending their own nationals, believed the foreign and rejected the Chinese evidence, decided unfairly. More especially the Chinese felt aggrieved when he saw that a foreigner who had a claim against a China. Man was never content till he had done his utmost to wring the whole amount from the family, friends, or securities of the debtor, while the Chinese who had a claim against a foreigner was required to accept a decision which made the debtor a bankrupt, and gave the creditor either nothing at all or only so much percent. In addition, when Chinese had property disputes among themselves, involving no foreigners, some Chinese would tend to pay some bribes to involve foreigners in the case, the result being that, when the machinery of a Consular Court was set in operation, one Chinese was enabled to do injustice to another, and effectually screened himself behind the foreigner.21 This is not because of the ideological color affecting previous scholars that they criticized Hart for showing a selfless face by a criticism of both sides; rather, this is a necessary result due to his “horse-riding theory”. In fact, both Chinese and foreign sides felt the inconvenience due to extraterritoriality, not only the Chinese suffered from it, foreigners were also cornered in doing what they should do otherwise. It was obvious that consular jurisdiction was an unreasonable system that should be abolished. However, both the Chinese government and foreign governments had no intention for this, and they only felt a necessity for remedies and patch-ups. Therefore, Hart proposed four kinds of suggestions. The first series of suggestions was to establish common legal procedures. The disputes between foreigners, and in which Chinese were not concerned, should continue to be heard and arranged by foreign authorities. For the arrangement of all questions affecting person or property, which concerned both foreigners and natives, a common code should be drawn up. In each treaty port city, a joint trial court should be established for the execution of the common law. If this series of suggestions were rejected, Hart proposed the second series of suggestions, i.e., in all cases involving both natives and foreigners, consuls and native magistrates would sit together as president and assessor, the former presiding when the defendant was a foreigner, and the latter when he was a native— that is to say, each in his own Court. This was another varied form of mixed court system; without integrating law, the applied law is the law of the defendant’s native 19

Hart (2005), Appendix 2, p. 170. Ibid. 21 Ibid. pp. 170–171. 20

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country. The third series of suggestions presupposed the rejection of the two series above, and a common procedure was impossible, then there was only one solution left, i.e., for all murders, local courts should conduct complete investigations before delivering the proceedings to Peking for decision, in which the murderers should be punished rather than charged with a fine for the punishments they deserved. In the fourth series of suggestions, there would be only communication of the written complaints. Among the four series, Hart preferred the first series, i.e., adopting a common code, a common procedure, a common penalty and a common court.22 This plan was a positive improvement on the existing consular jurisdiction, which would be weakened and restricted, and it was mentioned that foreigners should be governed by local magistrates. In Hart’s view, if there were no improvements in the future, foreigners would retain their unlimited extraterritoriality; if improvements in the future were possible, foreigners would enjoy only limited extraterritoriality. Before submitting his proposal to the Office in Charge of Affairs of All Nations, Hart wrote to James D. Campbell that he had thought over this report, so at that time he finished it quickly in one sitting; it was not a closed conclusion, however, it would call up discussions about many concrete issues, and those people who wanted to write on China might find endless materials out of it.23 From this, we can see that Hart seemed uncertain about the adoption of his suggestions by the Qing government, and it was only meant to arouse more discussion. Just as he expected, it was not accepted; in the future, scholars hold quite different views on his suggestions. In the eighth lunar month of the 3rd year of Guangxu’s reign, Guo Songtao, the ambassador to Britain, was assigned to deal with the British ship case at Zhenjiang. He felt the necessity of maritime law, maybe Hart’s suggestion arrived late to the embassy in Britain, so Guo also had the same idea, and he presented a memorial to the throne entitled “A Request for Compiling Regulations for Trade”. He advocated following Western law for the Office in Charge of Affairs of All Nations in compiling a book of regulations for trade after consulting trade law of other nations. In Guo’s memorial, he highly appreciated Hart’s comprehensive solutions, especially the analysis of the commercial environment, communication channels and judicial stipulations, which were key to the contact between China and foreign countries. It was appropriate to define and promulgate relevant regulations so that foreign countries’ suspicion of China could be released and local magistrates of trading ports could be frank with the central government, just in applying laws, careful in investigations and punishments. When they had regulations to follow in dealing with foreign affairs, they would not be bewildered and hesitant, and disputes could be avoided. He pointed out that two high-ranking clerks from the Board of Revenue and Population and the Board of Punishment should be appointed together with two experts in Western laws for the compilation of such laws. The Imperial Maritime Customs Service and the Commissioner of Trade for the Northern Ports Southern Ports would be involved in the process; the Office in Charge of Affairs of All Nations would approve and 22

Hart (2005), Appendix 2, pp. 172–175. No. 2 Historical Archives Museum of China, Modern History Institute of Chinese Academy of Social Sciences (1990), Book 1, Hart’s letter to Campbell on January 17, 1876, p. 342.

23

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promulgate the laws to all provinces. A concise collection of cases would be published to demonstrate guidelines and promulgate to foreign ambassadors in Beijing so that there would be examples to follow in dealing with all cases involving foreigners. The disputes caused by the flurries and hesitations in dealing with such cases might be avoided.24 Just as the Office in Charge of Affairs of All Nations replied to Guo Songtao’s suggestions, “the drafting of common regulations for both China and foreign countries is not decided only by our government”.25 This was not a unilateral activity of the Chinese government; it involved the observance and revisions of the existing treaties. The modification of laws was closely related to the modification of treaties. For the Qing government, the former was the precondition for the latter. However, for the Western powers, the revision of treaties was against their own interest, and the modification of laws was surely a shield for their interest. Thus, there was a recurring cycle, forming an inextricable deadlock. The dialog between Zhang Zhidong and Mackay was essentially a repetition of the dialog between Wen Xiang and Rutherford Alcock,26 and the reply of the Office in Charge of Affairs of All Nations clearly anticipated Zhang Zhidong’s arguments against Shen Jiaben during the modification of law in late Qing. In the memorial to the throne entitled “The Office in Charge of Affairs of All Nations Report on Trade Regulations”, foreign ambassadors strongly supported the regulations in their own interests in treaties, while they found all excuses against regulations in the interests of China. Western countries “always respect only military powers. In dealing with China, they also stick to that principle. If we are not more powerful than them, it is difficult to win our interests with arguments in modifications of such regulations. Thus, even if the foreign ambassadors agreed to the modification of such regulations, the regulations cannot be observed by them when China has disputes with them.”27 In fact, the modification of laws and the revision of treaties were indispensable, while the modification of treaties must have power as a support. However, hesitative and conservative measures would lead to chronic suicide by exhausting mild tardiness in the process of repeated planning and numerous contemplations inside a previous framework. Extraterritoriality and conflicts between religious believers and nonbelievers finally resulted in blind anti-foreign activities of Yihetuan (the Boxers). At that moment, Hart took refuge in the British embassy, listening to sporadic gunshots, he had a cool reflection on this incident, he analyzed the future trend, and wrote his thoughts on telegrams to famous American and European magazines on current affairs, such as The Fortnightly Review, Cosmopolitan and North American Review. For the Western world, his articles were important news sources about Beijing in 24

Wang and Wang (1985), Vol. 11, “Guo Songtao’s Request for Drafting Trade Regulations”(the 27th day of the eighth lunar month, the 3rd year of Guangxu’s reign), Modern Chinese Historical Materials Series, Compilation 3, Book 2, 11, pp. 209, 210, 211. 25 Ibid. 219. 26 See Zhang (1987),Vol. 11, Late Qing (1800–1911), Book 2, p. 208. 27 Wang and Wang (1985), Vol.11, “The Office in Charge of Affairs of All Nations Report on Trade Regulations”(the 20th day of the ninth lunar month, the 3rd year of Guangxu’s reign), Modern Chinese Historical Materials Series, Compilation 3, Book 2, 11, p. 218.

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turmoil, when their embassies were surrounded and later the allied forces occupied Beijing. The papers that appeared in succession were published in a collection by The Fortnightly Review on April 3, 1901 entitled “These from the Land of Sinim: Essays on the Chinese Question”, which is the only book Hart published in his lifetime. In these articles, Hart reiterated his views in his proposal presented to the Office in Charge of Affairs of All Nations entitled “The Brief Guidelines for Customscollecting at Trading Ports”. He believed that foreigners could not hope to retain their extraterritoriality forever, and a more comprehensive, rational and consistent approach would produce better results. Once extraterritoriality was given up, the relationship would soon change, complaints would be over, goodwill and fraternity would follow, trade would be freely permitted everywhere, the investments of capital and the development of internal resource meet with no unnecessary obstacles.28 In Hart’s view, on behalf of foreigners’ interests and business requirements, the retention of extraterritoriality and foreigners’ own courts on the land of China had been and still would be a makeshift, even an indispensable condition. However, in the eyes of Chinese, this was a spear rather than a shield. Before taking off this spear, foreigners could not live comfortable in China, and Chinese would not truly welcome this kind of relation with foreign countries. Here, Hart quoted Wen Xiang’s classic expression: “Do away with your extraterritoriality clause, and merchant and missionary may settle anywhere and everywhere; but retain it, and we must do our best to confine you and our trouble to the treaty ports!”29 Hart’s proposal entitled “The Brief Guidelines for Customs-collecting at Trading Ports” was an internal material submitted to the Office in Charge of Affairs of All Nations. In contrast, Hart’s articles were widely spread by Western media. They had an influence on the foreigners and their governments. This influence was demonstrated clearly in Mackay’s negotiations of trade treaties. In terms of theory travel, Wen Xiang’s view influenced Hart, through the latter’s absorption, renovation with his own characteristic ideas the view was spread internationally, then as a boomerang it influenced the Sino-British negotiations on trade treaties, and the British promised to give up extraterritoriality. These articles influenced Western public opinion and policy concerning China. Hart received an internal report that said that “a report from Zhenjiang says that Chirol on Thames30 said in Britain that the article had ‘gigantic influence’ on the British public. This made the government adopt a milder attitude toward China; a cabinet member in the government told a journalist at Thames that ‘G.E. Morrison could vituperate at will, but facing Sir Hart’s article, we cannot follow Morrison’s suggestions. It is truly helpful.”31 It can be claimed that Hart set the basis for the Sino-British negotiations. In the negotiations, the key agreement on the abolition of likin and increase of tariff rates was reached due to Hart’s arguments in his article “On the Problem of Transit Dues”. In that summer of turmoil and war, Hart not 28

Hart (2005), p. 92. Hart (2005), p. 45. 30 Ignatius Valentine Chirol. 31 No. 2 Historical Archives Museum of China, Modern History Institute of Chinese Academy of Social Sciences (1995), Vol. 7, p. 165. 29

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only thought over the framework for the abolition of likin and increase of tariff rates after the war but also planned the method for Mackay in the treaty negotiations later in his These from the Land of Sinim. He repeatedly pointed out that the previous treaties with China were drafted by foreign negotiators. The treaties were either commanding in style or cursory in drafting or signing so that they neglected or had no careful investigations about problems or cases in different provinces. The privileges won from China caused antipathy and would eventually fail, since such privileges were not obtained without considering the provinces, the components of the nation, without getting their approval.32 Later, Mackay went to Jiangxi and Hubei for interviews with Liu Kunyi and Zhang Zhidong, and Hart’s negotiation roadmap was followed here. Hart’s ideas were not only adopted by Sheng Xuanhuai in the preliminary negotiations on extraterritoriality but also influential in Mackay and British governments’ acceptance of Zhang Zhidong’s suggestions in return. In the 24 articles proposed first by the British, there was a precondition that “maritime laws and business law yamen should be established”.33 Based on his consistent view, Hart suggested the Qing government that “this proposal is very good, if special articles are included in the treaty, then it should be added that ‘when laws and regulations are modified and refined, the articles involving extraterritoriality should be abolished after the establishment of the yamen.”34 It was due to this suggestion that Zhang Zhidong formally proposed the addition of two articles in the treaty in his negotiation with Mackay at the Wuchang Textile Mill. One of the two articles was about extraterritoriality as an exchange for accepting Mackay’s requirements. It was very interesting that in These from the Land of Sinim Hart suggested that after war there was only one rule of gold, i.e., the principle of “Do unto others as you would have others do to you” should be applied in international relations to remove the existing imbalance.35 This was written in the 14th article of the Mackay Treaty as follows: “Chinese emperors of all dynasties solemnly recognized that Christianity is meant to encourage people for goodness, if you want impose something on others, then you should take it on your own”,36 which clearly shows that Hart’s These from the Land of Sinim had a profound influence on Mackay treaty. In the Land of Sinim, Hart reviewed and prospected the turn of the centuries. He pointed out that “time will, of course, remedy matters in its own way: wisdom and forbearance may happily ward off collision and catastrophe, while various reformssuch as the Footai Tseng Ho advocated in his memorial for a new code of laws just before the conservative wave swept him away two years ago-may gradually assimilate Chinese procedure to that of the other sections of the civilized world, and the West may then consider itself at liberty to regard China in another light, cancel the differential treatment now held necessary for the protection of the foreigner on 32

Hart (2005), p. 48. Zhang (1998), telegrams, Sheng’s telegram me and to Liu, received in the afternoon on the 3rd day of the twelfth lunar month, the 27th year of Guangxu’s reign, p. 8695. 34 Quoted from Wang (1996). 35 Hart (2005), p. 90. 36 The Editing Board of Modern Chinese Economic Historical Materials Series (1994), p. 168. 33

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Chinese soil, and, by recognizing and re-establishing essential harmony, eradicate the root of discord.”37 He claimed that after 60 years the treaty relation between Chinese government and other countries should put on new clothes rather than make patches on the clon!38 In the book, the paper “China, Reform and the Powers” was Hart’s favorite and the most useful treatise, which admitted that those governments that recognized extraterritoriality must make a statement that appropriate measures would eventually be taken to abolish extraterritoriality. It is obvious that the recognition of Article 12 of the Mackay treaty by the British government was in response to Hart’s call for Western powers to take measures to abolish extraterritoriality. Hart thus concluded the treatise “just as I open the last words, Chinese telegraphists at Sian are flashing the full text of a reform edict to every part of the Empire. Its form and manner of stating the question are essentially Chinese, but its meaning is obvious.”39 Interwoven with so many events, we have to think that either Fairbank’s “impact– response” mode or Paul A. Cohen’s approach of “discovering history in China” fail in a comprehensive revelation of the complex scenario here, which was filled with both conflicts and compromises; both tentative interactions and haply coincidence in views.

7.4 A Further Expansion of View Above, we have proven that the challenges to traditional views in recent years have their ground, but an overall negation of traditional views for a minor mistake is not appropriate; otherwise, overcorrections by ourselves will result in an incomplete view of the whole scenario. The discussions on law modifications and the abolition of extraterritoriality were set out in detail in Hart’s These from the Land of Sinim. Meanwhile, these topics had been developing in the reports of the Office in Charge of Affairs of All Nations, the guidelines of Hart, and Li Hongzhang’s replies early in Guangxu’s reign. If we extend our views and broaden our visual field, we can find that the complexity between the two subjects is far greater than this. Some scholars noticed that Chinese officials and common people had proposals for eliminating extraterritoriality and modifying laws before the Late Qing Reform. This indicates that these ideas had their origins in themselves; therefore, we cannot deny the traditional view by the fact that the signing of Mackay Treaty came later than the promulgation of the emperor’s order for modification of law. According to Cohen, Wang Tao was the first person who advocated the abolition of extraterritoriality; he was indignant that extraterritoriality was not implemented in Europe but only in Turkey, Japan and China.40 At that time, Wang Tao coined the term “e wai quan li” (extra power) to refer to extraterritoriality, and he wrote special 37

Hart (2005), p. 107. Ibid. p. 83. 39 Ibid. 138. 40 See Cohen (1998), p. 210. 38

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treatise on the method and approaches in abolishing the “extra power”.41 According to Wang Tao, foreign merchants and missionaries should be allowed free access, but foreigners in China should be governed by Chinese laws, and all privileges must be abolished. All patriotic officials and people should continue working for that purpose until success is achieved.42 For concrete approaches, Wang Tao advocated using diplomatic negotiations and Western laws to reclaim power. Wang Tao’s thoughts were considered by Cohen as an important basis for the construction of Chinacentered history. Based on his research on Wang Tao, Cohen reflected on externally oriented research on China by predecessors represented by Fairbank. Regardless, ideas are contagious in human interactions, and many famous people in modern Chinese history advocate the abolition of extraterritoriality and the modification of laws contacted Wang Tao; therefore, taking Wang Tao as the cut-in point in research on the construction of this discourse dimension is surely a feasible approach. It seems that before 1882, Zheng Guanying had seriously criticized foreigners’ extraterritoriality in China. He believed that since foreigners were doing business and living in China, they should follow Chinese rules. Regarding consular jurisdiction, he advised the Qing government to reform and draft regulations to maintain justice in legal activities. He said that “we should invite famous foreign lawyers, famous domestic legalists and officials’ assistants for legal affairs, together with Chinese translators familiar with laws, for the common compilation of Chinese and Western laws, which should be fair and just, to draft laws for trading port cities. The laws should be promulgated in Chinese and foreign languages. All cases involving both Chinese and foreigners at trading port cities should be tried by this compilation of laws, and all punishments should be consistent according to the laws. In that way, our people will not always suffer, and foreigners will not always enjoy privileges in trials. Gradually foreigners will be governed by our officials, and our original autonomy will recover.”43 By careful contemplation, in Zheng Guanyin’s view, the best solution is employing prestigious experts who are familiar with Western laws and Qing laws and respectful in character in both Western countries and China. Such people should use their expertise and draft laws balancing Western laws and Chinese laws. After consultation with foreign officials, the laws could be perfected and applicable everywhere so that both Chinese and foreigners abide by the laws and peace could be achieved. If this solution fails, the worst solution is using only foreign laws in governing them. Governing foreigners with foreign laws will make privileges and bias avoidable, Chinese will also receive mild punishments according to foreign laws, all in all, the punishments are equal for both Chinese and foreigners. In cases involving Chinese people and foreigners, the sentence would be just and fair, and punishments would be made by law.44 In modern Chinese history, Huang Zunxian was a key advocate for the abolition of extraterritoriality for Western countries. He is unavoidable in almost all reviews on 41

Wang (1998), p. 150. Ibid. 43 Xia (1988), Book 1, p. 503. 44 Ibid. 42

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extraterritoriality, since the term “zhiwaifaquan” (extraterritoriality) was first coined and used by him. Huang Zunxian shared a similar view with Zheng Guanying on the concrete method in reclaiming “zhiwaifaquan”. They advocated the change and adaptation of Chinese law to Western laws. “If we take in all common provisions for all nations, translate their books, and establish a special law for lawsuits involving both foreigners and Chinese, we deliver identical punishments for offences just like foreigners, we adopt their law in governing our people. Even if they are arrogant how can they deny their own laws?” In time when China is strong, the Chinese government can follow international conventions: “all business activities and civil people will be governed by local magistrates”.45 If Qing easily offered consular jurisdiction out of consideration for easy administration, then when this kind of diversification in law resulted in conflict and there was a need to transcend this system but the national power was not strong enough to provide the resources, Chinese practically selected Western laws in implementation and thus realized the deconstruction of consular jurisdiction for Western countries. The law reform in late Qing is a historical consequence of such logic. It can be inferred from the common approach enjoying widespread identification by contemporary intellectuals that the meaning of concepts such as so-called sovereignty was actually a tool against Western powers. However, the complexity of the abolition of extraterritoriality was greater than that. Before the Jiawu War, China also enjoyed consular jurisdiction in Japan. If we admit that Huang Zunxian was still a counsellor when he was in Japan, while Zheng Xiaoxu was exclusively responsible for foreign affairs in Japan, who dealt with cases every day, when Huang Zunxian was ambassador to Singapore later, he also actively conducted consular jurisdiction when he was a chief consul there. We can find that Qing also conducted consular jurisdiction in Singapore just as in Japan, for disputes concerning property, debts, gambles and fights, The Great Qing Code with Substatutes was followed in the punishments for all courts alike. It can be safely said that Qing government fought against consular jurisdiction brought to Far East by Western powers from their colonies, while Qing government also used this system for its own national interests, just like a bird fluttering in a cage, while trying to break free from the cage for the open sky. In the movement for abolishing extraterritoriality in modern history of China, to a large extent, people were encouraged by the Japanese successful experience. After the Jiawu War, Chinese people respected Japanese removal of consular jurisdiction. In the Reform of Wuxu, Kang Youwei presented a memorial to Guangxu. He suggested the establishment of a law bureau; he wrote that “since our law is different from all other countries, extraterritoriality cannot be reclaimed for that reason. Moreover, our traditional law does not have a distinction between civil law and criminal law, and our business law and maritime law are not perfect and are not compatible with those of other countries. Since the congress is not open yet, we’d better assign officials and

45

Huang (1890), Vol. 7, p. 23.

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experts for the drafting of laws, which is why I requested for the immediate establishment of the bureau of law.”46 To a large extent, Kang Youwei made these proposals due to the success of the Japanese reform while sharing some points with Hart’s guideline proposals to the Office in Charge of Affairs of All Nations. Therefore, Hart showed his appreciations for Kang’s proposals above. After Guangxu was irritated by the Board of Rites for the interception of Wang Zhao’s written statement to Guangxu, a key reform measure started by allowing the presentation of written statements to the emperor by all officials, scholars and common people alike. According to the research by Mao Haijian, in approximately 6 months, 567 written statements were presented by 457 people. Currently, 275 written statements are preserved in originals or duplicates.47 Among these written statements to the emperor, the issue of following Japan in making law modifications was widely considered in their proposals. For example, Tao Fulv, an expectant appointee secretary of the Board of Revenue and Population, thus wrote in his statement: “according to Western laws, international trade is legitimate all over a country, foreigners are allowed to reside and do business in inland areas, and they are governed by the country they are in.” “Now in the treaty signed between Japan and Western countries, there is such an article.”48 In his written statement, Tao Fulv largely learned from the Japanese experience. He proposed the reform of criminal laws and rites, Western laws and rites should be used as references to make them universal for both Chinese and westerners, and then Western powers no longer had the excuse for retaining consular jurisdiction, consuls were responsible for protecting trade while having no power for trials of civil cases. He Shouzhang, a provincial graduate from Shanyin County, Shaoxing Prefecture, Zhejiang Province, stated that in Western countries, foreigners must obey local law, while in oriental countries, they enjoyed “xiawaifaquan” (extraterritoriality). The existence of extraterritoriality in trading ports resulted in differences in punishments for the same offences in cases involving Chinese and foreigners; usually, the punishments were more serious according to our law but less serious according to foreign laws. So the difference in punishments caused complaints. After Japan modified laws, the previous treaty was removed. Now that the emperor had ordered modifications of regulations of the six ministries, I suggest that ambassadors should be sent to foreign countries to translate their laws and present to the Office in Charge of Affairs of All Nations. After careful drafting and approval from the emperor, we should consult foreign ambassadors of all countries before promulgating them in international trading ports for dealing with cases involving both Chinese and foreigners. In that case, extraterritoriality would be removed automatically. In the future, when the treaty should be renewed, we could adopt the trading law of all countries, and

46

Kang Youwei. “A Request for Opening the Lawmaking Bureau and Exercising New Administration.” In Tang (1981), Book 1, p. 352. 47 See Mao(2004). 48 Ming Qing Archives of National Archives Bureau (1958), a short letter by Tao Fulv, a candidate for the Board of Revenue and Population, p. 41.

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the administration of local governments could be easily recognized.49 He Shouzhang also mentioned the Japanese experience in the correction of such treaties in his written statement, while the abolition of consular jurisdiction was pointed out more clearly than Tao Fulv. Obviously, he was very familiar with Huang Zunxian’s arguments on this issue in his book The National Records of Japan. Reclaiming extraterritoriality ranked first among the key problems that were considered the most urgent in diplomatic negotiations. As Diplomatic Review pointed out, the most vital and deadly cause of disease was nothing but foreign countries’ extraterritoriality. In other words, the most succinct and efficacious recipe was nothing but reclaiming extraterritoriality.50 Reclaiming extraterritoriality was a key motivator for law modifications in the late Qing. The aim was to clarify the gulf and conflicts between Chinese laws and Western laws and establish a legal system “universal in both China and foreign countries”. On the hand, Western powers’ promise of giving up consular jurisdiction on the precondition of China’s modifications of laws also greatly encouraged and accelerated the law modification process. Since westerners thought China’s severe punishments were not lenient, reformist for law modifications aimed at reclaiming extraterritoriality by catering to foreigners’ view. The consequent law reform in China proceeded in the stardust of “reclaiming consular jurisdiction by modification of laws”. So much so that modern law science scholars deem this reform a long-term show of lawmaking. Hu Sijing, in Complete Records of National News Vol. 4, under the item entitled “governors’ new trend”, gave the picture below: “drafts of new laws were written by Okada Asatar¯o, a Japanese lawyer. The historical retrospection was quoted from Xue Yunsheng’s manuscript, written by Dong Kang, a director of the Ministry of Justice. After prove reading, the draft was promulgated to all provinces, provincial officials all knew its fallacy and impracticality, and all the provinces replied with criticism and refutations. Their responses were resonant without previous communications. Only Yuan Shuxun, the provincial governor of Shandong, had a new comment that ‘these are all trivial ideas; the key point is something else. What is it for? The key point is that if laws are not modified anew, extraterritoriality cannot be reclaimed.’ Domestic advocates and foreign officials instigated with untruthful prospects and promises, which were then taken as a strong reason for law modifications.”51 The intricate and complex relation between the law modifications in late Qing and the reclamation of extraterritoriality can be so delicate in his view.

49

Yang (1973), Book 5, a letter of advice by He Shouzhang, a candidate for imperial exams at Shanyin County, Shaoxing, Zhejiang province, p. 83. 50 Diplomatic Review, No. 49 (Quimao No.15), July 9, 1903 (the 15th day the fifth leap lunar month in the 29th year of Guangxu’s reign. 51 Hu (2007), Vol. 4, p. 122.

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7.5 Further Discussions Contemporary Chinese had the idea of following the suit of Japan, but China was different from Japan. Japan was actively engaged in modification of its laws to abolish consular jurisdiction, the reason was that Japan was forced to open up and in the first unequal treaties signed with Western powers it was clearly specified that consular jurisdiction was merely a transitory measure, which should be abolished after 5 years when Japan perfected its laws. There was a definite timetable and route map for the abolition of consular jurisdiction, so it was easy to stimulate unanimous enthusiasm among all Japanese people, rulers and commoners to strive for that target. In contrast, it was difficult for China to eliminate problems and consular jurisdiction by one sweeping effort. Even Article 12 of Mackay Treaty was a very general and vague provision, allowing a large room for foreign powers’ arbitrary denying of Chinese demand for taking back consular jurisdiction, and the judicial reform and law modification in China was in a contradictory dilemma. The reclamation of consular jurisdiction was meant to solve conflicts in laws and cultures, but due to the inequality of power, the reform of giving up Chinese systems and imitating foreign systems will fall into an inextricable pit, leading to legal cultural conflicts that are more fundamental. In recent years, academic circle research on the cause of the law modification in the late Qing has included some new, challenging approaches, but the traditional view that “the cause lies in the abolition of consular jurisdiction” remains strong and sound.

References Chinese Customs Service. (1938). Documents illustrative of the origin, development and activities of the Chinese customs service. Statistical Department of the Inspectorate General. Cohen. (1998). Between tradition and modernity: Wang Tao and reform in Late Chi’ng China (Y. Lei & J. Luo Trans.). Jiangsu People’s Publishing House. Daqing Fagui Daquan. (1972). Gaozheng Press. Ding, S., et al. (1994). A comprehensive collection of memorials to the throne of all dynasties. Harbin Press. Fairbank, et al. (1975). The I. G. in Peking: Letters of Robert Hart, Chinese Maritime Customs, 1868–1907. Belknap Press of Harvard University Press. Hart. (2005). These from the Land of Sinim (F. Ye, Trans.). Tianjin Classics Press. Hu, S. (2007). Complete records of National News. Zhonghua Book Company. Huang, Z. (1890). National records of Japan. Yangcheng Fuwenzhai Press, the 16th year of Guangxu’s reign. Mao, H. (2004). A research on the written advices submitted by officials, scholars and commoners during Wuxu reform. In A collection of essays on the Ming and Qing Dynasties, No. 5. Forbidden City Press. Ming Qing Archives of National Archives Bureau. (1958). Archives and materials of Wuxu reform. Zhonghua Book Company. No. 2 Historical Archives Museum of China, Modern History Institute of Chinese Academy of Social Sciences. (1990). Secret archives of china customs, compilation of letters and telegrams of Hart and J. D. Campbell (1874–1907). Zhonghua Book Company.

References

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Shen, J. (n. d.). Posthumous works by Shenjiyi·Jiyi Wencun (Vol. 1), printed during the National Republic time. Tang, Z. (1981). Kang Youwei on political issues, Book 1. Zhonghua Book Company. The Editing Board of Modern Chinese Economic Historical Materials Series. (1994). Commercial treaty negotiations after the Xinchou treaty. Zhonghua Book Company. Veritable Records of Guangxu. (1960–1970). Huawen Bookbureau Ltd. Co. Wang, D. (1996). The negotiations and signing of mackay treaty. Academic Monthly, 4. Wang, T. (1998). Anthology of Taoyuan abolishing extraterritoriality, commented and annotated by Chen Heng, Fang Pinger, Zhengzhou: Zhongzhou Classics Press. Wang, T. (1959). A compilation of old treaties between China and foreign countries. Shenhuo Dushu Xinzhi Sanlian Shudian Press. Wang, Y., & Wang, L. (1985). Diplomatic historical materials of Late Qing (Vol. 11). In Modern Chinese historical materials series, compilation 3, Book 2, 11. Wenhai Press. Xia, D. (1988). Collective works of Zheng Guanyin. Shanghai People’s Publishing House. Yang, J. (1973). Compilation of literature of Wuxu reform. Dingwen Press. Zhang, Y. (1987). A Cambridge history of China (Vol. 11), Late Qing (1800–1911), Book 2. Nantian Book Company. Zhang, Z. (1998). A complete collection of Zhang Zhidong. Hebei People’s Publishing House. Zhao, E., et al. (1977). Manuscript of Qing history. Zhonghua Book Company.

Chapter 8

Conclusion

The departure for the research of the judicial reform in late Qing has to be retraced from certain preconditions already existing in Qing society prior to the Opium War, using the Synepeik Method advocated by W. Fikentscher in the examination by referring to previous derivations. By tracking the evolution of the judicial system in the late Qing to its source, Qianlong’s reign should be taken as the point of departure, and the punishment silver discussion system late in Qianlong’s reign should be taken into consideration. When the academic circle talks about Qing history, the probitfostering silver system implemented during Yongzheng’s reign is widely honored, but the punishment silver system during Qianlong’s reign is largely out of sight. In fact, the punishment silver system in Qianlong’s reign is actually the key to the judicial system evolution in late Qing. The punishment silver was also known as “voluntary punishment discussion silver”, “self-requested punishment silver”, “selfdiscussed punishment silver”, etc. In official books of the Qing dynasty, for example, Biographies in Qing History, Veritable Records of Qianlong, and other writings of late writers, it is also called “punishment silver”, “fine”, and “punishment items”. In retrospection, whose trouble was caused by the bane of this frequently criticized malpractice? The Manuscript of Qing History records that “when Qianlong was old, when provincial governors-general and governors were censured for abuse of power, they were asked to pay fines to atone for their crimes.”1 In the 1930s, the Secret Records of the Privy Council were published, and then people started to have a clear understanding of the background of the “punishment silver” system during Qianlong’s reign. Upon the publication of the Secret Records, Wenxian Congbian commented that “Secret Records is one of the documentations of the Privy Council, mainly about high officials’ turning in of silver after self-requested punishment … the Board of Revenue and Population would not come down on the money of selfpunishment, while the fine was collected by the Privy Council to turn in the Internal Affairs Department, so the self-punishment silver was actually a special income for the Internal Affairs Department. Moreover, at the end of the self-punishment 1

Zhao et al. (1977), Vol. 322, Biography 109, p. 10,799.

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documents, ‘the previous document is kept at the Secret Record Department’ or ‘the previous document was collected by the Secret Record Department’, so there was a special organ for the management of self-punishment silver and documents, under the name of Secret Record Department.”2 Mou Runsun, a Hong Kong scholar, in his paper “On Corruption during Qianlong’ Reign” believes that although Secret Records are not fully recovered, the earliest record of self-punishment silver was made in 1780 (the 45th year of Qianlong’s reign), this practice started at this period, while He Shen found his favor with Qianlong in 1775 (the 40th year of Qianlong’s reign), in 1777 (the 42nd year of Qianlong’s reign) He Shen was appointed as the left vice minister of the Board of Revenues and Population, and minister of the Board in 1780 (the 45th year of Qianlong’s reign), this self-punishment silver fine practice was probably devised by He Shen for Qianlong after he became the minister in the 45th year of Qianlong’s reign.3 However, in fact, self-punishment silver fines had precedents not later than 1763 (the 28th year of Qianlong’s reign), as recorded in Gongzhongdang (Internal Archives of the Palace). In that year, Hongzhan (Prince Guo) privately entrusted the supervisor of tax and weave to purchase ceremonial robes, official uniforms and actresses, the thing was exposed, and Gongzhongdang records it as below: on the 17th day of the sixth lunar month of the 28th year of Qianlong’s reign, the privy counselor communicated Qianlong’s instruction on the 10th day of the sixth lunar month of the 28th year of Qianlong’s reign that “Sazai purchased official uniforms made of silk tapestry with cut designs for Beile Hongzhan, and purchase actresses with borrowed silver, which was not reported, the shameless jobbery, command has been issued to take him back to the capital … The punishment to Sazai should be decided and Gao Heng was ordered to send the decree and report in response.” Sazai knelt and claimed that “he was willing to pay 10,000 lian of silver as a fine, and sincerely asked his majesty’s mercy for a period of two years to make full payment”.4 Except that the words are not regular as later cases, it can be seen from the fact that Qianlong ordered Sazai “to draft a self-punishment” and Sazai “was willing to pay the silver”, that the self-punishment silver system was mature in basic characteristics. Among provincial governors-general and governors, Gao Jin seemed to be the first to pay the selfpunishment silver. In 1768 (the 33rd year of Qianlong’s reign) there was the case of Lianhuai Salt Administration Corruption Case (两淮提引案), Gao Jin, the governorgeneral of Jiangsu and Jiangxi, due to troubles made by his brother Gao Heng, voluntarily came and requested serious punishment from the Board of Punishment, Qianlong commented in a decree that “punishment of the Board of Punishment will be no more than removal of your office, you should discuss the punishment by yourself!”5 Gao Jin made his reply in return that “I can only kneel and request your Majesty to allow me to turn in 20,000 lian of silver in compensation for my crime … only that my property is no more than 20,000 lian, I am afraid that emergent sale 2

The Literature Depart of the Palace Museum (1935). For details see Mou (1987), pp. 445–462. 4 The National Palace Museum in Taipei (1983), Book 18, p. 279. 5 The National Palace Museum in Taipei (1983), Book 31, p. 281. 3

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would not get a fair price, I truly did wrong in the trial of Duan Chenggong, upon your permission I turned in the punishment silver over a period of 4 years, this time I have to beg for your mercy to allow me to follow Duan Chenggong’s punishment case, and 5000 lian will be reduced and turned in annually from the probity-fostering silver, the punishment silver will be paid off in 4 years.”6 The memorial to the throne mentioned the case of Duan Chenggong, the subprefectural magistrate of Suzhou, whose connivance at his servants’ suppression of common people was accused in 1766 (the 31st year of Qianlong’s reign). As seen from the foregoing discussion, the self-punishment silver was not an invention of Qianlong; it had been in practice before He Shen found his favor. In the shallow social background, most people attribute the faults to He Shen. The claim that He Shen invented the self-punishment silver system is a contagious mistake among the public falling short of historical evidence. Certainly, it is a fact that He Shen had acted as transactor of punishment silver for a long period and racked his brains to enrich Qianlong’s private exchequer, but He Shan was by no means the first introducer of the system. Scholars should not seek superficial moral joy by bedabbling He Shen with all bad things because He Shen is notorious for corruption. According to the system of memorial to the throne in Qing dynasty, all subordinate officials without qualification for directly sending memorials to the throne and provincial governors-general and governors removed from posts should send their memorials via other senior officials and decide the amount of self-punishment silver. From the facts revealed in the Secret Records kept in First Historical Archives of China, He Shen sent the largest number of memorials to the throne in place of other officials about self-punishment silver cases, but Fu Changan, Agui, Fu Kangan, Mingxing, Fu Lehun, etc. also sent memorials to the throne for others, while the moral character of Agui was never criticized by later generations. Qianlong himself once denied the self-punishment silver as a system; he claimed that the self-punishment silver “was only implemented at times, not a normal practice.”7 While in fact the initial self-punishment system was not mature and complete at first, but with repeated applications in daily practice, He Shen, etc. made further regulations for this system, not only special organs and people to be on strict duty, check and regularly summarize and report such cases, and with special objects for self-punishment and an exchequer to turn in silver but also they had a complete selfpunishment silver procedures that lasted a long period, therefore, its existence as a system is an undeniable fact. First, the self-punishment silver system is different from the salary fine system consistent in the Qing dynasty; it is only a product of the particular period in late Qianlong’s reign. Second, the self-punishment silver system was executed by a different organ than the salary fine system. The salary fine was ruled by the Board of Civil Affairs, but the fine was collected by the Board of Revenues and Population. In contrast, self-punishment silver was dealt with by the Privy Council and directly managed by the “Secret Record Department” under it. He Shen, Fu 6

The National Palace Museum in Taipei (1983), Book 31, p. 537. Wang (2002), Qianlong 112, in: A Continued Compilation of Sikuquanshu, 374, the historical part, almanacs, p. 213.

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Changan, and the privy counselors were responsible in person. It can be seen from the Secret Records that the Secret Records Department was an informal organ with special functions, with clerks and warehousemen, directly under the Privy Council. Generally, the salary fine system applied to officials of all ranks, and the punishment silver system was mainly applied to senior local officials such as governors-general and governors. In the Secret Records, the objects for self-punishment silver also included buzhengshi (the provincial administration commissioner), yanzheng (the salt supervisor), zhizao (the superintendent of imperial silk manufacturing) and other officials, even some very rich merchants, for example, businessmen dealing in salt and ginseng. Some cases of punishment silver had some barely lawful reasons, while some cases had ridiculous names, mostly without plausible reasons; the reasons were very absurd. The victims usually exaggerated their crimes in order that “their silver may compensate just a minor part of their crime”.8 It seemed that the crime was too serious, but in fact it was a heavy punishment for a minor mistake. It was an easy excuse to pay a large sum of silver to show the emperor the victim’s honesty and loyalty of discipline, and the victim wanted to bribe peace by such active “tax payment”. This sort of thing, such as self-requested paying of silver to compensate for crimes not commanded for self-punishments by the imperial decrees, became increasingly common during the late years of Qianlong’s reign. For example, in 1783 (the 48th year of Qianlong’s reign), He Yucheng, governor of Henan, claimed that his memorial was contaminated with incense ash, which was so awful that he earnestly requested “a fine of 30,000 lian silver”, the emperor decreed: “20,000 lian is exempted, the remaining 10,000 lian should be submitted to the Internal Affairs Department”, He Yucheng still felt “my humble and enthusiastic request for punishment was not fulfilled to the least”, again he requested “except the first presentation of 10,000 lian as allowed, I will ask for your kindly permission to give the 20,000 lian to be delivered to the Internal Affairs Department by installments for confiscation.”9 In the salary fine system, the fine was deducted from salaries of officials. The self-punishment silver system was different in payment, mainly in three payment methods: the first method was self-punishment and self payment, the second was self-punishment and payment by relatives, the third was the payment by himself and his relatives in proportions.10 The self-punishment silver was different in nature from the “conscience money paid (纳 纳赎)” and “conscience money donated (捐 捐赎)” in the Great Qing Code with Substatutes. Qing inherited the Ming system, and the conscience money fell into three kinds, i.e., paid, collected, and expired. In 1725 (the 3rd year of Yongzheng’s reign), there was a rule that “all civil and military officials who were dismissed but with a balance debt, and those having punishments of thrashing and flogging or exile or death penalties beyond the dismissal, should pay expiation within his potential, if he failed to pay the conscience money, he would be punished as he was impotent, while corrupted subordinates and bailiffs are not allowed to pay the 8

Guo and Zheng (1997), Book 8, p. 65. The National Palace Museum in Taipei (1983), Book 57, p. 331. 10 See Lin (1986). 9

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conscience money.”11 It is thus clear that for the civil and military officials who pay the conscience money, they must have broken the criminal law, and should be punished by law, while reason for extorting punishment silver is usually some minor mistakes. According to the pay-off punishment abatement rule provided in the 3rd year of Yongzheng’s reign, those who took money and foodstuff into their own possession, for those below 1000 lian, the sentence was still to be killed in the crime of inside job, with an additional imprisonment of 5 years; those above 1000 lian was sentenced to death and waiting in the prison, to be killed in fall, which was not pardoned when there was a mercy to pardon. Those who stole and defalcated, after the compensation being paid off within a year, the criminal should be punished with an abatement of one level to be exempted from death penalty; the criminal deserving to be exiled, banished or imprisoned was not to be punished; for those who paid off above 300 lian, the punishment was discussed by the collecting officials. If the fine was not paid off, his punishment shall be discussed by the Board of Punishment, and the money was collected to atone for his crime. The criminal’s punishment was suspended for a year to pay off. After paying off, the death penalty was exempted and punished by a punishment lighter, and other punishments, such as exile, banishment and imprisonment, would also be lessened. If it was not paid off, the criminals deserving exile or banishment or imprisonment shall be exiled at once. The death penalty criminals were superintended in the payment. Officials responsible for the collection and overseeing of the payment should be surrendered to the Board of Punishment for discussion of their own punishments.12 The previously very strict law punishing inside jobs became loose after this modification. After his enthronement, Qianlong considered that repayment of illicit money and the reduction of death penalties, etc. was not enough to alert the corrupted officials, if only the deadline for repayment was postponed again and again, it seemed that the collection of public money was more important than the law, the punishment by law could not be serious and neglect would be started, posing a big danger to the administration of officials, but he knew that the set rules drafted by ancestors should not be modified easily, so he temporarily acquiesced it. In the 22nd year of Qianlong’s reign, Qianlong was reading the list of Hunan officials for the autumn assizes, when he found Yang Hao, the former provincial governor of Hunan, who took 3000 lian of silver and was sentenced to death but waiting in jail, his execution was postponed since he repaid the money before the deadline, Qianlong trembled with anger, and ordered an immediate execution of Yang Hao at Hunan, Jiang Bing, the former provincial administration commissioner of Hunan, was originally sentenced to be removed from office and confiscate his property, now was surrendered to the Board of Punishment in Beijing, officials who participated in the trial from the three judicial departments were all punished by the Board of Punishment, Qianlong also issued a decree criticizing the danger of this rule to the administration of officials, which said: “provincial governors 11

Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 724, xingbu, minglilv, shuxing, p. 14440. 12 Imperially Endorsed Precedents of the Collected Statutes of the Great Qing Dynasty (1976), Guangxu edition, Vol. 724, xingbu, xinglvzeidao, monitors’ embezzling of tax or grain, p. 15001.

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are so corrupted but are allowed to repay illicit money within deadlines, and all are given mitigation of penalties, then provincial governors-general and governors will see embezzlement as ordinary offence, they will skimp and steal at will, in case they are not discovered, they are safe, even if it is revealed, they can pay off the embezzled money within deadlines and exempted from death, thus how can the officials be disciplined?”13 In Qianlong’s view, the repayment of embezzlement might be applicable for minor officials, but governors and senior officials should set example for the whole province, they were even so greedy to embezzle such large amounts, the money embezzled was extorted from common people, and their death penalty could be exempted by repayment of such amounts within deadlines, this was hard to stand and accommodate in common sense. In the ninth lunar month of the next year, on the case of corruption of Niu Cichang, a former circuit intendant, Qianlong issued the following allocution for the administration of officials: “The criminal is a big magistrate, he embezzled the public purse into his own pocket, the amount is 10000 lian, he is sentenced to death and waiting in prison. Since he repaid within the deadline, his penalty was lessened and exiled to military fort. Although this is a traditional treatment, I consider the rule of lessening the punishment after paying off the embezzled money to be appropriate. If he peculates the public money, he is pardonable. If he steals what is entrusted to his care and is so shameless, he spoiled the decency of officials. How can his punishment be lessened only because he paid back the money within the deadline? Moreover, laws are set to prevent crimes, rather than counting of public money, maybe some people will say if the punishment is not lessened who will pay off the embezzled money? This practice emphasizes public money and overlooks the discipline of officials. In addition, it is not impossible that the question is asked by a civil official, with this excuse the corruption will be overwhelming, suppose if a man knows that punishments cannot be pardoned once a crime is committed, then who will offend the law? More people will be saved by knowing this. From now on, the former rule is still applicable for peculations and mildewed grains in barns and pardonable cases; for the embezzlement of money into their own pockets, the rule of lessening punishments for payoffs within deadlines shall be abolished forever. As to Niu Cichang, since he committed crime before setting this regulation, so he can be exempted from death penalty, he is still exiled to the military fort for three years, and requests my decree later”.14 Over two decades of efforts, Qianlong overcame various obstacles and deleted the “lessening of punishments for paying off embezzled money”, which encouraged and tolerated bribery from the Great Qing Code with Substatutes, and replaced it with a new rule that “punishments cannot be lessened for paying off embezzled money”. In decades after this, Qianlong stuck to his opinion, and he was not interfered with by others’ suggestions. The previous rule of “lessening punishments for paying off embezzled money” could not be restored, which led to the death of many greedy high-rank 13

Veritable Records of Qianlong (1960–1970), Vol. 546, the ninth lunar month of the 22nd year of Qianlong’s reign, p. 7966. 14 Veritable Records of Qianlong (1960–1970), Vol. 570, the ninth lunar month of the 23rd year of Qianlong’s reign, pp. 8361, 8362.

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officials after the middle of Qianlong’s reign, and the number of beheaded senior officials was the largest in the Qing dynasty. Since Qianlong was so decisive in anti-corruption, on one hand he deleted the rule of “lessening punishments after paying off the embezzled money” from the Great Qing Code with Substatutes, emphasizing the severe punishment of corruption by law without sparing a way for life of corrupt officials, the punishment is truly severe, but then he created the self-punishment silver system, it is hard to imagine. Why is there such a controversy in Qianlong? How can this be interpreted? We cannot excuse him for his fatuity due to old age. Sixty years of reign is certainly not a short period, any statesman in his old age might be fatuous, but we can see that this system existed before the middle of his reign, rather in his old age, almost without a time lag after the abolition of the old rule of lessening punishments. In a dialectic view, the self-punishment system created by Qianlong seemed an instrument to renovate his rule. The opposite extremes meet in a maze; they complement each other and exist side by side. Qianlong once explained that “I select provincial governors-general and governors in a simple way mainly because there are no suitable candidates, and if they are not corrupt as a group, since I treasure people with abilities, if they happen to make mistakes, I often take their demerits for granted and use them, … for the faults they have, if not unpardonable by law, the punishments are discussed and considered the circumstances, to show gentle punishment.”15 Qianlong frankly pointed out that “provincial governors-general and governors receive large salaries, since they do not take up their duties, so the confiscated money as punishments is taken from their own purses, for atonement of their crimes.”16 With the strict execution of law and harsh administration in the middle of Qianlong’s reign, Qianlong felt that the amount of fine from salaries was too small to monish silver the officials, so he added punishment often beyond law, if there were some offences, the reign, Qianlong felt that the fine from salaries was too small to adren. The original intention of Qianlong was to “suffer more”, by using a punishment maintaining the officials’ face and showing the emperor’s reciprocal stateliness, he did not want to change it into a financial system.if we use Fikentcher’s Synepeik Method, we can see from Qianlong’s thinking mode that after coming into power. Qianlong wanted to overthrow the idea in Liji Daxue that “officials amassing wealth by heavy taxation are worse than larcenous officials. This is because the state does not take money as profits but takes justice as profits”.17 Qianlong thought the larcenous officials and officials amassing wealth by extorting the people committed crimes that deserve equal punishments. To change the officials’ trend to steal from the fisc rather than extorting from the people, the “embezzlement” and “corruption” of extorting from the people were equally harmful; therefore, the abolition of the rule of lessening punishments by Qianlong in the 23rd year of his 15

Veritable Records of Qianlong (1960–1970), Vol. 1367, the eleventh lunar month of the 55th year of Qianlong’s reign, pp. 20314, 20315. 16 The Department of Literature of the Palace Museum (1935). See also Veritable Records of Qianlong (1960–1970), Vol. 1367, the eleventh lunar month of the 55th year of Qianlong’s reign, p. 20314. 17 Zhu (1983), p. 13.

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reign. Thus, the creation of self-punishment silver by Qianlong and the deletion of the former rule in the Great Qing Code with Substatutes made in the 3rd year of Yongzheng’s reign are consistent, and the former is a logical derivation from the latter. The abolition of the rule of lessening punishments for payoffs set in the 3rd year of Yongzheng’s reign and the invention of self-punishment silver seem to be two polarities of strictness and tolerance of corruption in an implausible whole. We must interpret this institutional design from the thinking mode of Qianlong himself. To guarantee efficient operation of the centralized power system, Qing law was constantly added with amendments such as patches on a garment, which became increasingly thick and fast. In Qianlong’s view, larcenous officials and corrupt officials are commensal; if an official is larcenous, he must also extort from the common people. If Yongzheng was strict in administration, then the abolition of the said punishment lessening rule by Qianlong made corruption a crime not pardonable, and the invention of the self-punishment silver system to nitpick minor misdemeanors realized an environment of “no fish can live in a pond of water which is too clear and innutrient to feed fish”. However, this system is also problematic in close examination, with loopholes and wrong orientations. Since the self-punishment silver was aimed at high-rank provincial governors-general and governors, the candidates of this rank were truly hard to find, only competent people can cope with their duties, therefore Qianlong’s consideration was sometimes reasonable, but this penalty fine would not encourage provincial governors-general and governors who pay the selfpunishment silver to have a new mentality and correct their wrongdoings, on the contrary they would go in a dangerous trend in their career. If they are still in office while they are punished, they have provinces to parasitize; they can easily extort from their subordinates and amass wealth with their power. In other words, the selfpunishment silver system did not result in a prevention of corruption and protect officials by encouraging them to correct their misdeeds but changed officials carriers and contagious individuals of more fatal bacteria in the bureaucratic body. From this point, how can this measure not be a fruitless approach? This is a historical examination by applying Wolfgang Fikentscher’s Synepeik Method. This system has two deadly loopholes in nature: first, it goes against the principle of catching large cases and letting minor cases pass, some blunderers are punished for their involuntary mistakes, obviously it is an overrun of punishments; second, it goes against the principle of putting justice before money, by encouraging senior provincial officials to trade money for national law. Zheng Xuan, in his Guidelines of the Book of Changes (易 易赞), explained three meanings of the term Yi: first, it is simple; second, it changes with time; third, it is constant.18 Hanfeizi also says that more ants will be attracted if you want to get rid of ants by attracting them away with a bone; if you want to drive away flies with a fish, more flies will come.19 From the perspective of economics of law, the obeyance of law is more interest motivated rather than a respect and awe for law. 18 19

See The Editing Board of Shangdong Chorography, Zhuzi Mingjia Zhi (2003), p. 124. Hanfeizi·Waichushuoxia, in Zhuzi Jicheng (1996), 7, p. 240.

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As Cardozo says in Growth of Law, “The law, like the traveler, must be ready for the tomorrow”,20 simplicity of law is a balance between costs of governance and social motivation, encouragement provided by inconsideration leads to inefficient configuration of resources. The “spring effect” aroused by this system will not only cause the officials facing self-punishment silver to impute the costs to subordinate officials, therefore the admonition of senior officials is not achieved, but with a rebound effect when honest officials have to greedy ones, and provincial governorsgeneral and governors were encouraged to focus on money matters and amass wealth, they must extort money to pay the punishment fine, by find a harbor of refuge in money to avoid punishment by law, even shrew as Qianlong he was also trapped in the labyrinth, the prevention of corruption became actually the place fostering corruption, this is largely caused by the general trend. Regarding only the statistics in the existing Secret Records, in a period of 13 years, there were 68 cases of large self-punishment silver and 5 cases in a year on average. Among them, 37 governors-general and governors submitted self-punishment silver, i.e., one out three governors-general and governors in the country paid the punishment silver. Yin Zhuangtu pointed out that “recently severe punishment does not show warnings and corruption seems encouraged, if governors-general and governors are not dismissed by the emperor after they committed crimes, they are punished only by paying tens of thousands lian of silver to the fisc. Therefore, there are officials who request a fine of larger amounts of silver … Arrogant and unlawful governors-general and governors would take this excuse to pursue personal wealth, even the officials who wanted to be incorruptible would have to seek help from subordinates. In the future if there are big corruption cases, they would have to protect the criminals.”21 During Qianlong’s reign, the rules were strict, besides paying for the shortages of fisc by officials; there were many cases where self-punishment silver and salary fine were combined in punishments. For senior officials such as governors-general and governors, paying defalcations, salary reductions, salary fines and self-punishment silver burdened the same official so that officials “have no salaries to foster honesty” and attend to the office on an empty stomach. However, senior provincial officials could not pay such large amounts of self-punishment silver by himself; therefore, they had to extort by power from subordinate officials, who in turn had to extort from common people. If the amount was not enough, punishments would follow; therefore, the limited wealth of common people was for the endless exaction of officials. As a result, high rank officials extorted subordinate officials, and lower rank officials offered money to the superior officials. The money did not fall from heaven, and how can the local magistrates be uncorrupted? Therefore, it became not only a reason for magistrates to exploit common people, and most part of the exploitation was not put in their own pockets but presented to their superiors, while senior officials like governors-general and governors extorted from subordinated not only for their own benefits but also for bribing He Shen, thus officials became corrupt rank by rank, bribery was public to flatter superior officials with money extorted 20 21

Benjamin N. Cardozo (1924), pp. 19–20. Zhao et al. (1977), Vol. 322, Biography 109, p. 10799.

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from subordinates, just like open trade. During Qianlong’s reign, the rivalry between people and the system was too fierce; on the one hand, there were strict punishments, while on the other hand, corruption was extremely serious among many officials. At that time, the reason why defaulcations were numerous in all provinces was actually closely related to the self-punishment silver system. We can safely say that the selfpunishment silver system represented the culmination of the totalitarian system and the cause of the toppled totalitarian system. The totalitarianism of Qianlong’s reign reached its climax while also declining for this reason. Jia Yi said that some action might invite disasters and some laws might encourage crimes, it is right in this situation. The decline of a country lies in corrupt officials; officials lose their virtues mainly because of spoiling and bribery.22 In late Qing, Xue Fucheng pointed out that during Qianlong’s reign, governors-general and governors such as Guo Tai, Wang Tanwang, Chen Huizu, Fu Song, Wu Lana, Fu Lin, etc. embezzled large amounts of money, many officials were severely punished for defalcations, when their property was confiscated, the amounts used to reach millions of lian, which was rare in other dynasties. “Qianlong was intelligent, the law was strict, … but with more officials killed, there came more corrupt officials. Some officials were apprehensive and fearful about being caught and punished, and they had to extort more and bribe more to make life secure in obscure ways. It is not human nature of that time that made people corrupt, but there were heartfelt urgency driving them, so they had to be corrupt.”23 He made this comment when he was discussing the corruption of He Shen. It is logic to infer that the so-called “heartfelt urgency driving them” refers to the fact that governorsgeneral and governors had to expropriate large amounts and presented them to senior officials like He Shen so that they might find shelter there, but when He Shen was found guilty, they could not escape the punishments by law. However, if officials of all ranks had “a heartfelt urgency driving them”, then the biggest “drive” that they could not complain and dared not complain was from Qianlong himself. Qianlong approved the self-punishment silver as a system, and the extent of the punishment was greatly expanded. Large blunders, such as defalcations of fisc and small clerical mistakes of some characters in a memo to the throne, all might be punished by the system. In a totalitarian system, the one who executes the law was also the one who establishes the law. Qianlong himself did something that actually encouraged the spread of corruption. The paying of large amounts of self-punishment silver was not only against the original intention of the probity-fostering silver system but also a significant destruction to the probity-fostering silver system. The great arbitrariness of the self-punishment silver exposed their purses to the robbery of He Shen at any moment with some excuses, the burden was beyond their resources, and officials were broken like cormorants. We cannot imagine the officialdom of Yongzheng’s reign to be incorrupt due to the implementation of the probity-fostering silver system, but Qianlong experienced the prosperity of Qing, and the overwhelming of corruption and bribery was caused by the self-punishment silver system. The lesson is worthy 22 23

Yang (1981), Book 1, the 2nd year of Huangong’s reign, p. 89. Xue (2000), Vol. 3, Anecdotes·mysterious experience of becoming a prime minister, p. 52.

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of our attention. The corruption of officials was very detrimental, which had a lasting impact on the future evolution of the judicial system. Historical research on legal systems is a footstone for historical studies. Our ancestors paid much attention to the examination of institutional systems, regardless of the interpretation of ancient classics or historical studies or the administration of public affairs, institutional system studies serve as the keystone for such efforts. For example, if we go sightseeing in Beijing, which has a long history, we can find pleasures in “hutong trips” winding among narrow streets, but the Palace Museum, the Temple of Heaven, Summer Palace, Badaling Great Wall are the tourist attractions we must see. However, there are two difficulties with the historical research of institutional systems. First, most works on ancient institutional history have their sources in official documents and records, which are summarized or outlined. This makes insightful and dissected scrutiny almost impossible; therefore, culmination in the realm of “full spirit and earthly wisdom” is not easy if we cannot combine superficial patterns with an inherent nature. The second difficulty lies in the prevalent static descriptions of institutions and laws, rather than the dynamic interactions of institutions that should be revealed and interpreted for their evolution in such popular historical works, so much so that history resembles a skull of a dead body. The writing of institutional history should be sharp and vivid like calligraphy, animation should be treasured, so a life-like institutional history is truly a tough task. I am strong for Qiu Pengsheng’s view that we should surpass an “archive-like institutional history” and turn to a “dynamic institutional history”, and make judicial trial history approximate the “game rules” in actual judicial operations and become a growing “dynamic institutional history”.24 In this book, I reiterated a research interest in law history studies that the surpassing of the dual opposition of “paper law” and “living law”. In the early days of law history research in China, Yang Honglie et al. concentrated on macro issues of historical evolution, emphasizing “moving” and “application” aspects rather than exclusive examination of the static aspects; however, this means merely that in addition to laws and statutes, we should also pay attention to materials such as “imperial edict”, “government order” and “regulations”. Due to limited conditions, the examination of “living law” in society could not be truly conducted at that time. Qu Tongzu’s Chinese Law and Chinese Society (published by The Commercial Press Bookstore in 1947) stood out in contemporary works of law history in the author’s professional practice in observing the orientation of traditional Chinese law from the perspective of sociology, attempting to illustrate ideas, awareness, folk lores and customs beyond texts of law, which was called a “legal history as social history”. While the author aimed at history in his research, but only “significant variations” were considered, “in an attempt to seek common features to interpret the fundamental spirit and basic characteristics of law, to indicate the existence or lack of variation in such spirits and characteristics”, “by a holistic analysis of 2000 years of law evolution from Han dynasty to Qing dynasty”.25 The author points out in his introductory remarks that “this attitude for a convergence of facts for over 2000 years 24 25

Qiu (2003), p. 130. Qu. “Introduction to Chinese Law and Chinese Society”, in Qu (2004), p. 9.

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from Qin and Han dynasty to late Qing dynasty reform of law is built on a principle belief that law over this long period is just like the society, politics and economy over the period as a whole, stayed constant and stagnant on the same basic stereotype with no variations (exceptions are rare even during periods of rule by ethnic minorities, the government of Han nationality by Han law was a consistently maintained principle of reign). If this premise is valid, then we may simply ignore those minor variations in form and seek the common core in interpretation of the fundamental spirits and main characteristics in our law.”26 Obviously, while the author does not deny the inheritance, modifications, additions and abolitions of laws, the gist is not in the what is changed but in what remains constant, in order to find the constant background on a changing stage, to capture essence in colorful phenomena. In other words, what interested the author was the “basic ecology” and “spiritual characteristics” of a legal system deep rooted in a particular society. Qu Tongzu’s approach to examination and accommodation of history had an academic source from Bronisław Kasper Malinowski (1884–1942) and Wu Wenzao, who started a line of thinking in the school of functionalism in anthropology. It is well known that the functional school is good at a synchronic study of interdependence of different sectors in a social structure, rather than a diachronic study of historical evolutions, it is even mistaken by some as a trend against historical research. Qu Tongzu incorporated ancient Chinese law as a static transcendental whole surpassing the arrow of time into a functionalist interpretation framework; the limitations in such analysis seem inevitable. Since the People’s Republic, legal history research in China has been mainly dominated by the editing of textbooks in mainland China. Influenced by the mainstream division of periods in Chinese history, mainland and even some Taiwanese scholars usually deem the 1840 Opium War a dividing line for modern history in contrast to early Qing history. The line is so clear that it cuts the history before and after it distinctly. Since Qing is the final stage of the dynasty history of imperial China, after an evolution over 2000 years, the traditional law system was passed down through twists and turned to a complete and systematic whole. Meticulous lawmaking, the comprehensive system, the complete procedures, and the precision in the division of objects to be adjusted all reached culmination in the history of Chinese law. For example, among the statutes of all dynasties, it has far more lawsuit articles in proportion than punishment articles. Based on Ming Law’s breakthrough of Tang Law’s framework of “dou song 斗讼” (contest lawsuit) and a special “susong 诉讼” (appeal and dispute), since the original statutes of “susong” could not cover the requirements in judicial trials, although Qing Law did not modify the classifications in Ming Law, the Ming Law was not strictly copied but converted and adapted: in the articles of “susong”, “duanyu 断狱” (sentence) and other classifications, there were many additional “tiaoli” (regulations) appended to suit the application; thus, the laws and regulations concerning susong were greatly enriched. In contrast with previous dynasties, Qing Law is situated at a place where “the ancient and the modern are cut and continued”. After the Opium War, Qing diverged from the traditional law 26

Qu (1982), introduction, p. 2.

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track with permeation, and under the impacts of Western law, disputes and lawsuits quickly increased concerning criminal law, civil law and business disputes. With the modernization of Chinese society, many intelligent people proposed modifications to the law system based on experience in foreign affairs, and some proposals were put into practice. This makes the history of Qing Law attaining some content impossible for those of other dynasties. Unfortunately, in the turbulent and exciting reforms in late Qing, historic creators such as Shen Jiaben were forced to participate in the fleeting flow of times and paid no attention to systematic research of the law of their own dynasty.27 Since the research is far from enough, the Manuscript of Qing History Treatise on the Penal Law completed in the early days of the Republic of China records only some law modifications in late Qing after Opium War, while only a cursory mentioning of the evolution course in previous years, or plainly leaves that unsaid, making the rich and contemporary transformations in law in late Qing hidden to a large extent. Of course, this is a great pity. It has been many years that in disciplinary systems, Qing history is cut at the Opium War into two parts. Dynastic histories such as “Qing history” and “Ming history” are all considered ancient histories, but Qing law is usually explicitly or implicitly used to refer to the early Qing history before the Opium War. Such an academic resource distribution has a result, namely, researchers of “modern history” of the “later half” do not understand the “ancient history” of the early period, and vice versa. People’s attention is mostly attracted by brilliant pictures in the spotlight, while subtle and deeper knowledge is usually not accomplished by most people. The history of early, rising Qing during reigns of Kangxi, Yongzheng and Qianlong is discussed heatedly by historians, the modification of law in late Qing is also intimately researched, but the history of law between the reigns of Jiaqing, Daoguang and Xianfeng until the law modifications in late Qing is still sparsely dotted with studies. If the history of one dynasty is not united as a whole, how can we expect the communications of Chinese and Western laws? From the idea of time, the time set for the disciplines of “Qing history” and “modern Chinese history” by scholars in mainland China and Taiwan is interesting. As a late modern country, learning new things and forgetting one’s own past is common. Fikentscher is an important figure in law anthropolysis; he calls China a “fragmented culture” (fragmentierter Kulturen). This is also what many years ago I was concerned with “zhengtong 正统” (orthodox tradition), “daotong 道统” (methodology tradition), “fatong 法统” (legaltradition) and “xuetong 学统” (academic tradition).28 The dominant view of Chinese law history researchers and the cliché of linear development through a succession of origins, inheritance, twists and convergence, similar to a stereotyped eight-part essay, depict a development arc below: the Chinese law tradition is long, custom law was formed in the Xia dynasty in 21 centuries B.C., Shang developed a slavery law system, which became complete in Xizhou, and the ceremonial rites and punishment system serve the basis of the Chinese law system. The Spring and Autumn Period and the Warring States Period 27 28

Bodde and Morris (1973), p. 54. Zhang (2002).

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was a turbulent period of society that instigated debates among numerous schools of thought concerning legal affairs, which propelled slavery legal civilization to a feudal civilization. From the Qin dynasty to the Han dynasty, legal civilization shifted from the Legalism to Confucianism. The Weijin South and North dynasties summarized and combined the law system, while the Sui dynasty took advantage of both the South dynasty and the North dynasty before Tang law became mature and stereotyped in Chinese legal civilization. From the two Song dynasties until Ming and Qing, the Chinese law system culminated in terms of centralization and monarchy. The Qing dynasty is the last dynasty of traditional rule, and the legal system of the Qing can be said to be the final comprehensive system of feudal law. The Great Qing Code with Substatutes is the last feudal statute in Chinese history. The Great Qing Code with Substatutes is based on Ming Law and is a comprehensive statute of traditional Chinese feudal law. The fundamental spirit and the main system of feudal established since the Hang dynasty and Tang dynasty can be seen in the Great Qing Code with Substatutes; the drafting of the Great Qing Code with Substatutes took into consideration the political practice and characteristics of the Qing, and modifications were made in certain concrete systems to the legal system of previous dynasties. After the Opium War, impacted by both domestic and foreign factors, the Chinese law system with a history of over 2000 years fell apart, and modern law was on the horizon. In this pundit-like discourse, the Qing law during Kangxi, Yongzheng, Qianlong reached the so-called “perfection”, “comprehensiveness”, and “culmination”, while after Jiaqing and Daoguang’s reign, the law just followed suit, and there was a blank in terms of development, so they claimed that it was a step for the decline of modern Chinese law and the impact of Western law. However, the bigger pictures of history that contain obvious faults are painted with smooth and even lines, people cannot help but doubt the pictures, just as the old saying that “beating drums high in mountains makes loud but illogical noises”. We doubt this and argue that there is actually a gap between the rise and fall, the good and bad of law and the evolution in political system and economy, if the Qing law had its completeness culminated in the reigns of Kangxi, Yongzheng and Qianlong, then its vanishing in modern times should not be so fast! The transplant of law in modern Chinese history should rather be deemed an engrafting of law. We should not only see the transplant of law itself, since after the transplant, the creation of new rules can be problematic. Once problems are created, the new problems should be an issue demanding immediate attention, enlarging the dimension of the problem. Historical development is a link-to-link course. We should lengthen the time span in our examination, we should look at the basis on which law leads forward, while examining the changes after the introduction of law, otherwise we cannot have the picture before or after the introduction. The history of Qing law is a kind of simple “add-together of two sections”, which forms a template of the law in early Qing established during Kangxi, Yongzheng and Qianlong’s reign, and thus a stereotyped icon of traditional law comes into being, the previous and post icons are concealed, it seems that this kind of law remains constant ever since, and then the modifications of law during the late Qing period are added, and thus the historical course of Qing law is clipped and edited in this way. The narration of Qing law in this

8 Conclusion

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mode has a drawback in the lack of clarity for the examination of the evolutionary process in-between. Qing law became fixed after Yongzheng’s reign, showing its characteristic outline. Centralization in Qing became unprecedented. In the central government, the emperor ruled all things, while on the provincial level, governorsgeneral’s purview inflated day by day, and subordinate officials such as xunfu (the Provincial Governor), buzhenshi (the provincial administration commissioner), and anchashi (the Surveillance Commissioner) tended to be merely underlings. At the prefectural and county levels, Qu Tongzu uses the term “one-person government” to epitomize the centralization trend from top to bottom in the Qing government; we can say that the one-person responsibility system is an inherent structural feature of Qing governments at all levels. The taxation in terms of silver and grain, the trials of cases depend on county magistrates, who were almost local emperors. This system guarantees the efficient bureaucratic operations of the Qing government, but restricted by a rigid fiscal system, many conflicts derive from within. The scarcity of resources promotes ferocity in the competition for power. From the middle period of Qianlong’s reign to the end of Qing, many systematic reforms seem out of necessity. Regardless of legitimate reforms or illegal evasions, it is always a game around competition for resources. Until the modifications of law in late Qing, the judicial system of Qing moved further from the so-called stereotyped template defined in the reigns of Kangxi, Yongzheng and Qianlong, and we can see that the situations were drastically different. If we still use the judicial system in Kangxi, Yongzheng and Qianlong’s reign to illustrate the substitution of the traditional system by a modern system, we are certain to have the wrong benchmark. It is just the explicit changes in the Qing law itself that in late Qing when the punishment of exile (which was one of the 5 punishments in ancient China), a far-reaching reform shows a silence before the dawn of great changes, till today the academic community remains blind to this phenomenon, this ignorance itself deserves our careful reflection and introspection. In the introduction to the book World Scholars on Traditional Chinese Legal Culture (1644–1911), I briefly explained my opinion I stick to over years: there is a long-existing static paradigm for the narration about Qing judicial system, according to this paradigm, the transition period from Ming to Qing is one of reform, the judicial system was mature and fossilized during the reign of Kangxi, Yongzheng and Qianlong, as some say it was the culmination of the system. Regardless of monographs or treatises, the standard form of the Qing judicial system is always the molded system prior to Kangxi, Yongzheng and Qianlong, and then an epilogue about modifications to law during late Qing. Such a seamless evolutionary description of the Qing judicial system goes beyond panoramic insight. This is actually a shallow understanding of the evolution of law in Qing. In the famous imperial decree written by Fan Zengxiang on the 10th day of the twelfth lunar month in the 26th year of Guangxu’s reign, new administration was promulgated with explanations about the legitimacy of carrying out reforms below: “Our Qing ancestors established systems according to time, there were many differences, after entering Sanhaiguan, the system was different from when it was in Shenyang. After Jiaqing and Daoguang, do we always keep the old

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system set by Yongzheng and Qianlong?”29 Researchers focusing on the reforms and modifications of law in late Qing should be familiar with this sentence, which is a vivid account of the ever-growing evolution of Qing law itself. I have been sticking to the view that Qing judicial system should be examined through a continuous and consistently evolutionary process, the inherent logic of evolution of Qing judicial system should be examined, especially the continuous reforms of the system after Qianlong. The system underwent reforms in each generation after the so-called mature period in the reign of Qianlong, and there are six drastic reforms to give an example: (1) the appearance of banfang during the late period of Qianlong’s reign, (2) capital appeals were open during early years of Jiaqing’s reign, (3) the establishment of consular jurisdiction during Daoguang’s reign, (4) the execution on the spot appeared in Daoguang and Xianfeng’s reigns, (5) the introduction of fashenju (the first trial bureau) during Tongzhi’s reign, (6) the abolition of banishment and prison reforms late in Guangxu’s reign. The Qing judicial system underwent successive reforms after Qianlong’s reign. In the past, checks and reviews were used in trial procedures, but during Jiaqing’s reign, the capital appeals were no longer prohibited. This was an expansion of the central government’s power to the lower levels. During Daoguang’s reign, execution on the spot occurred. This was the transfer of power of the central government to lower levels, which showed that the judicial system was slightly disordered in itself, which went out of the framework of Qianlong’s period. Fashenju was also called “yanju” (judicial commissioner’s office) to deal with reviews of all cases in a province, autumn assizes and other judicial affairs, very similar to modern “provincial high court”, showing the modernization and professionalization in the Qing judicial system. In the judicial reforms in late Qing, provincial courts were built all of a sudden; fashenju certainly became ready judicial resources in the provinces. In the past, people did not have a clear and comprehensive understanding of such great changes and reforms.30 My preliminary view remains constant without fundamental changes concerning the Qing judicial system over these years. This book was written to prove such a “sloughing-off evolution” to contribute an effort in the research of the inherent logic in the evolution of the judicial system in the Qing dynasty. At first glance, my view of history seems a linear one. I cannot deny that my point of view has been formed with a deep influence from the debate on the chief line of modern Chinese history when I was a college student. When I entered university in the early 1980s, the textbook for modern Chinese history was mainly from Opium War to the May 4th Movement by Hu Sheng. This book is a paradigmatic work of the prevailing “class struggle historical view” (or called “revolutionary historical view”) represented by Fan Wenlan and Hu Sheng. Since reform and opening up were booming in the early 1980s, the works by the “modernized historical view” school represented by Li Shu and Li Shiyue started to inspire us students’ interests. According to the familiar “Fan Hu School”, the core of modern Chinese history 29

Veritable Records of Guangxu (1960–1970), Vol. 476, the twelfth lunar month of the 26th year of Guangxu’s reign, p. 4378. 30 Zhang et al. (2009), pp. 25, 26.

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consists of “two processes”: one is the combination of imperialism and Chinese feudalism, which caused China to become a society of semicolony and a semifeudalist society; the other process is the people’s struggle against imperialism and their lackeys, i.e., the feudalist forces, and dragged China out of the moor of semicolonialism and semifeudalism. The former process is downward, and the latter is upward. The latter process has three revolutionary climaxes (Taipingtianguo, Wuxu Reform and Yihetuan, and Xinhai Revolution), which constitute the main contents and stage division markers of modern history. The structure based on “8 events” and “3 revolutionary climaxes” gives prominence to the influence of class struggle and progressing forces in modern Chinese history. After the termination of the “Great Cultural Revolution”, in the background of public enthusiasm for learning from the West to realize modernization, Jiang Tingfu’s “modernized historical view” proposed in his Modern History of China published early in 1938 became revived as something new and affected a powerful backwash for the “class struggle historical view”. Li Shiyue’s article “From Yangwu, Weixin to Bourgeoisie Revolution” published in Historical Studies 1980 (No. 1) produced a huge heartshaking effect among young students. Li Shu, Li Shiyue, etc. committed to the guideline of a new system of modern Chinese history on the principle of “modernized historical view”, with the key plot based on the development of capitalism (modernization), while taking Yangwu Movement, Wuxu Reform and Xinhai Revolution as three great steps. In fact, regardless of the “revolutionary historical view” or “modernized historical view”, these interpretation frameworks shared a common feature with Fairbank’s “impact-response” mode. After the reform and opening up, Chinese scholars were influenced by the “Chinacentered view” of Chinese researchers in the U.S., and even postmodernism was prevalent in the world. Concepts such as “bilineary history” and “bifurcated history” were included. were understood well by undergraduates. My research concerning the transition of the judicial field of the Qing dynasty is marked by personal cognitive memories of the debate for the fundamental plot of modern Chinese history that occurred during the early period of reform and open-up, but in the research itself, there is no intention of constructing a linear picture of historical development. As Shen Qixin argued in a postmodernist style in his paper “An Unsystematic Method and Research in Modern Chinese History” published in Shanghai Social Sciences 1987 (No. 2), “modern Chinese history is a history with extensive connections with the world. According to the dialectic, things with international connections must have both temporal factors and spatial properties. The one-dimensional feature of modern history in terms of time determines the objectivity in the developmental view of history and the necessity for linear studies of it. The multidimensionality of modern historical development determines the stereoscopic vision in modern historical movements, the diversity in structure, and the dynamic form of development.”31 In this book, I adopt the traditional method of textual research to describe the evolution of banguang, capital appeals, extraterritoriality, execution on the spot, fashenju in a parallel connection rather than a serial connection, and the evolution of the systems are cut short totally from a linear historical view. 31

Shen (1987).

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Moreover, I believe that it is just because traditional modern history research overemphasized superficial, vertical development of history. Attention was focused on large events such as revolutions, wars and a few key figures, but little effort was contributed to the research of the massive and deep social basis as part of icebergs below the water, and deep, transverse connections were neglected. The large number of fields wanting in-depth research in the history of law is the necessary consequence of this partial reliance on the linear historical view. Perhaps the history of large events is a surface agitation, as pointed out by Braudel. The undulations of waves surfaced the strong movement of a tide, but the structural evolution was rather slow; in contrast, impulsions were hard to observe. Therefore, the history of law from Jiaqing and Daoguang until the modifications of law in late Qing had a time span but no historical events. The historical transitions of different fields have different pulses; the research in history of law has a kind of specialty. The lag of law is a characteristic widely recognized by jurists, and the difficulty in modern modifications of law in China and the heatedness in debates on modifications were unprecedented around the world, which is sufficient proof. However, native Chinese society was not an inert thing but an entity undergoing continuous changes; its mobility and powerful sense of orientation were clear.32 The judicial system of Qing was never a “superstable structure” after shaping during Qianlong’s reign. While social history research has been popular among young people in recent years, the history of law has not been popularized due to the special issues involved, but historical studies of law themselves often seek a general and superficial repetition of theoretical narrations from traditional to modern forms. Much weight has been placed on the modifications of law, which is only a short period in the history of Qing of nearly 300 years. Dimly dominated by modernist complexity, the traditional history of events cannot be transcended, the evolutionary veining in the metabolic transitions in the judicial field of the Qing dynasty cannot be clearly depicted, and the overall structuralized network relations in normal times remain obscure.

References Bodde, D., & Morris, C. (1973). Law in imperial China, exemplified by 190 Ch’ing dynasty cases (translated from the hsing-an hui-lan) with historical, social, and juridical commentaries. Harvard University Press. Cardozo. (1924). The growth of the law. Yale University Press. Cohen. (1989). Discovering history in China: American historical writing on the recent Chinese Past (T. Lin, Trans.). Zhonghua Book Company. Guo, C., & Zheng, B. (1997). The research of corruption and embezzlement in Qianlong’s reign. In Renmin University of China’s Institute of Qing History (Ed.), Papers on Qing history, Book 8. Renmin University of China Press. Imperially endorsed precedents of the collected statutes of the Great Qing Dynasty (1976). Guangxu edition. Xinwenfeng Publishing Co.

32

Cohen (1989), p. 78.

References

259

Lin, X. (1986). On the difference between Yizuiyin system and Fafeng system during Qianlong’s reign. Journal of the Palace Museum, 3. Mou, R. (1987). Zhushizhai Manuscripts. Zhonghua Book Company. Qiu, P. (2003). How is the research of‘dynamic system history’ possible? An introduction to the central judicial trial system of Ming Dynasty. Newsletter of Ming Studies, 6. Qu, T. (1982). Chinese law and chinese society. Liren Book Company. Qu, T. (2004). Collective works by Qu Tongzu on law studies (2nd ed.). China University of Political Science and Law Press. Shen, Q. (1987). Unsystematic Approach and the Research of Modern Chinese History. Shanghai Social Sciences, 2. The Editing Board of Shangdong Chorography, Zhuzi Mingjia Zhi. (2003). Biography of Zheng Xuan. Shandong People’s Publishing House. The Literature Depart of the Palace Museum. (1935). Wenxian Congbian, Book 25. The National Palace Museum in Taipei. (1983). Memos to the Throne in Gongzhongdang during Qianlong’s Reign. Taipei Palace Museum. Veritable Records of Guangxu (1960–1970). Huawen Bookbureau Ltd. Co. Veritable Records of Qianlong (1960–1970). Huawen Bookbureau Ltd. Co. Wang, X. (2002). The Continuation of records from the eastern gate, Qianlong 112, in the Editing Board of A Continued Compilation of Sikuquanshu, 374, the historical part, almanacs. Shanghai Classics Publish. Xue, F. (2000). Yongan diary, Nanshan (ed.). Jiangsu Classics Publish. Yang, B. (1981). Notes on Chunqiuzuozhuan. Zhonghua Book Company. Zhang, S., et al. (2009). Recent international scholarship on traditional Chinese law. Law Press. Zhang, S. (2002). Disassembly of orthodox and the legitamacy reconstruction: A rational reflection on the historical studies of Frontier Minority Research in the Qing Dynasty. China’s Borderland history and geography studies (Vol. 4). Zhao, E., et al. (1977). Manuscript of Qing History. Zhonghua Book Company. Zhu, X. (1983). Notes on reading of four Classics (sishu zhangju jizhu). Zhonghua Book Company. Zhuzi Jicheng. (1996). Yuelu Press.

Chinese Personal Name Index

A Agui阿桂, 243 B Bai Ling百龄, 21 Bai Run润, 131 Bai Zengzhuo白曾焯, 213 Bao Fen宝棻, 161 Bao Shichen包世臣, 110–113, 121, 122 Bao Yuanshen鲍源深, 155 C Cai Zhenluo蔡振洛, 39 Cai Zhiliang蔡之梁, 149 Camfou金芬, 185 Cao Xirong曹锡荣, 87 Ce Leng策楞, 49–51 Chang Zeng长臻, 141 Chen Chengwu陈承武, 99 Chen Huizu陈辉祖, 250 Chen Jinshou陈金绶, 137 Chen Jiongming陈炯明, 161 Chen Ju陈浚, 118 Chen Leshan陈乐山, 18 Chen Lu陈鲁, 150 Chen Qianhui陈辉千, 50 Chen Qitai陈启泰, 153, 158, 159 Chen Shirong陈世镕, 124 Chen Tan陈坛, 134 Chen Tianxiang陈天祥, 165 Chen Wen陈文, 150, 151 Chen Yaping陈亚平, 220, 227 Chen Yi陈彝, 27, 125, 126 Chen Ying陈瀛, 111

Chen Zhi陈炽, 125 Chu Yixing褚以兴, 38 Confucius孔子, 1, 135

D Dai Yanhui戴炎辉, 48 Deng Qinglin邓庆麟, 154 Deng Shiru邓石如, 207 Deng Wenyu邓文育, 88 Ding Baozhen丁宝桢, 138, 171 Ding Richang丁日昌, 22, 23, 37, 38, 151, 152 Dong Jiaozeng董教增, 37 Dong Kang董康, 237 Dorgon多尓袞, 203 Duan Chenggong段成功, 243 Duanfang 端方, 221 Duan Guangqi段光清, 124 Du Fengzhi杜凤治, 123, 169 Du Jiutian 杜就田, 205 Du Xiuwen杜秀文, 132

E Enfu恩福, 158

F Fang Yu方裕, 212 Fan Wenlan范文澜, 256 Fan Xipeng范锡朋, 98 Fan Zengxiang樊增祥, 255 Feng Guifen冯桂芬, 29 Feng Youlan冯友兰, 40 Fuchadunchong 富察敦崇, 208

© China Renmin University Press 2021 Z. Shiming, Law, Resources and Time-Space Constructing, https://doi.org/10.1007/978-981-16-8055-7

261

262 Fu Changan福长安, 243, 244 Fu Kangan福康安, 243 Fu Lehun富勒浑, 243 Fu Lin浦霖, 250 Fu Song福崧, 250 Fu Zhufu傅筑夫, 45 G Gao Dianyuan高殿元, 147 Gao Hancheng高汉成, 220, 227 Gao Heng高恒, 242 Gao Jin高晋, 242 Gao Qingshu高青书, 26 Geng Fu赓福, 111 Guan Jiongzhi关炯之, 89 Guan Zhong管仲, 5 Guo Guozheng郭国正, 130 Guo Songtao郭嵩焘, 98, 152, 229, 230 Guo Tai国泰, 250 Gu Weijun顾维钧, 48, 54 H He Boying何伯英, 204, 211 He Fuxian何福咸, 149 He Jin何璟, 118 He Shaoji何绍基, 140 He Shen和珅, 104, 242, 243, 249, 250 He Shouzhang何寿章, 236, 237 He Yucheng何裕城, 244 Hong Xiuquan洪秀全, 114 Hongzhan弘曕, 242 Huang Dian黄殿, 130 Huang Fang黄芳, 83 Huang Jinshao黄金韶, 149, 151 Huang Junzai黄钧宰, 143 Huang Liuhong黄六鸿, 14, 30, 36 Huang Renji黄仁济, 199 Huang Renyu黄仁宇, 22, 123, 136, 166 Huang Risheng黄日升, 130 Huang Shaoqi黄绍箕, 221 Huang Sheng黄升, 24 Huang Yinong 黄一农, 195–197 Huang Yuanshan黄元善, 125 Huang Zunxian黄遵宪, 97, 234, 237 Hu Chenggong胡承珙, 113 Hu Linyi胡林翼, 139, 167 Hu Longxun胡隆洵, 129, 141, 153, 155–157, 159 Hu Ruilan胡瑞澜, 173 Hu Sheng胡绳, 256 Hu Sijing胡思敬, 237 Hu Tinghuai胡廷槐, 167

Chinese Personal Name Index Hu Tuli瑚图礼, 22 Hu Zhen胡震, 103

J Jiang Bing蒋炳, 245 Jiang Maoxun蒋懋勋, 149, 150 Jiang Tingfu蒋廷黻, 257 Jiang Yong江庸, 219, 226 Jiang Yunkuan蒋云宽, 135 Jian Yaer简亚二, 51 Jia Yi贾谊, 250 Jin Guangdi金光悌, 107–110 Jin Shaocheng金绍成, 89 Ji Yun纪昀, 23

K Kang Youwei康有为, 6, 7, 87, 222, 235, 236

L Lan Dingyuan蓝鼎元, 130, 135 Lan Tingzhen蓝廷珍, 130 Lao She老舍, 14 Liang Dingfen梁鼎芬, 221 Liang Qichao梁启超, 46, 135, 169, 170 Li Darong李大融, 124 Li Guilian李贵连, 103, 129, 130, 137, 138, 159 Li Henian李鹤年, 173 Li Hongzhang李鸿章, 38, 83, 98, 146, 157, 169, 170, 172, 233 Li Jihe李继和, 147 Li Jingfang李经方, 98 Li Luyuan李绿园, 23 Lin Daquan林达泉, 152 Lin De林得, 131 Lin Gang林岗, 6 Ling xiu灵秀, 19 Lin Jizhong林即中, 15 Lin Shuangwen林爽文, 20, 131 Lin Zexu林则徐, 131–135, 148 Li Peijing黎培敬, 27 Li Shikun李士焜, 190 Li Shiyue李时岳, 256, 257 Li Shu 黎澍, 256, 257 Li Tingfu李廷富, 51 Li Tingyi励廷仪, 33, 34 Liu Bingzhang刘秉璋, 18 Liu Heng刘衡, 16, 18, 29, 36, 139 Liu Jiande刘建德, 117 Liu Kun刘昆, 125

Chinese Personal Name Index Liu Kunyi刘坤一, 34, 219, 221–226, 232 Liu Ruyu刘如玉, 167, 168 Liu Song刘嵩, 125 Liu Song刘颂, 175 Liu Yindong柳寅东, 203 Liuyun刘Ď, 107 Li Yunguan厉云官, 117 Lu Chuanlin鹿传霖, 221 Luo Qingtai罗清泰, 147 Luo Yudong罗玉东, 171, 172 Luo Zhao骆照, 38 Lv Haihuan 吕海寰, 219, 224, 225 M Mai Zhiyan麦秩严, 39 Man Bao满保, 130 Mao Baru茅拔茹, 23 Mao Haijian茅海建, 236 Mao Hongbin毛鸿宾, 148, 152 Mei Cengliang梅曾亮, 177 Mingan铭安, 158 Mingxing明兴, 243 Mo Shiren莫是仁, 24 Mou Runsun牟润孙, 242 Muzhanga穆彰阿, 64

N Na Yancheng那彦成, 21, 22, 190 Nimashan呢玛善, 131 Niu Ba牛八, 124 Niu Cichang钮嗣昌, 246 Niu Enhui牛恩惠, 124 Niu Jian牛鉴, 63

O Ouyang Zhaoxiong欧阳兆熊, 117

P Pan Siju潘思榘, 50 Peng Zhaolin彭昭麟, 53 Pu Gua蒲呱, 185, 186, 188, 189, 191–197

Q Qian Zen钱臻, 106, 108, 109 Qin Chengen秦承恩, 107 Qing Bao庆保, 19, 142 Qishan琦善, 62, 137 Qiu Pengsheng邱澎生, 251 Qiu Yuanyou邱远猷, 130

263 Qi Xiu启秀, 213, 214 Qi Ying耆英, 56, 63, 65 Qu Tongzu瞿同祖, 28, 251, 252, 255

R Ren Daorong任道镕, 158 Ruan Yuan阮元, 49, 59 Ruan Zutang阮祖棠, 98

S Sazai萨载, 242 Senggelinqin僧格林沁, 147 Shang Yang商鞅, 5 Shen Baozhen沈葆桢, 133, 135, 136 Sheng Guangda盛广大, 149 Sheng Xuanhuai盛宣怀, 219, 224–226, 232 Shen Jiaben沈家本, 39 Shen Jin沈荩, 88 Shen Qixin沈其新, 257 Shen Zhenda沈振达, 132 Shi Xiangquan史湘泉, 24 Si Maqian司马迁, 1 Song Jiaoren宋教仁, 44, 47 Song Shu宋恕, 135 Song Zhaogu宋劭谷, 125 Su Linbo苏霖渤, 12 Sun Chuanxiu孙传秀, 147 Sun Erzhun孙尔准, 134 Sun Jianchen孙建臣, 87 Sun Shiyi孙士毅, 56, 57 Sun Yejing孙诒经, 141 Sun Yuting孙玉庭, 21, 22 Sun Zhenbang孙振邦, 161 Su Yongqin苏永钦, 5

T Tan Citong谭嗣同, 135 Tang Rensen唐壬森, 142 Tang Yongzhong汤用中, 27, 39 Tang Zhen汤震, 125 Tan Jixun谭继洵, 18 Tan Shaowen谭绍闻, 23 Tao Fulv陶福履, 236, 237 Tian Tao田涛, 15 Tian Tingxiang谭廷襄, 144 Tian Xingyuan田星沅, 151 Tong Huai童槐, 108 Tongxing同兴, 106

264 W Wang Anguo王安国, 50 Wang Fulun王福纶, 110 Wang Fuzhi王夫之, 9 Wang Huizu汪辉祖, 29, 36, 111 Wang Mang王莽, 144 Wang Maoyin王茂荫, 142 Wang Shi王轼, 21 Wang Shuwen王树汶, 173 Wang Tanwang王亶望, 250 Wang Tao王韬, 233, 234 Wang Xiancheng王宪成, 155 Wang Xiaosan王小三, 24 Wang Xin王昕, 173 Wang Yaoting汪瑶庭, 88 Wang Youhuai王又槐, 139, 140 Wang Zhao王照, 236 Wang Zhiyi汪志伊, 109 Wei Guangtao魏光焘, 87 Wei Rongguang卫荣光, 158 Weng Tonghe翁同龢, 125 Weng Zao翁藻, 26 Wen Jinghan文静函, 36 Wen Xiang文祥, 230, 231 Wo Shibu倭什布, 22 Wu Dating吴大廷, 150, 151 Wu Lana伍拉纳, 250 Wu Shouling吴寿龄, 125 Wu Si吴思, 165, 166 Wu Tang吴棠, 149 Wu Tingfang伍廷芳, 39 Wu Weibing吴纬炳, 160 Wu Wenzao吴文藻, 252

X Xian Fu先福, 107 Xiang Rong向荣, 137 Xia Tongshan夏同善, 155 Xie Qianheng谢谦亨, 158 Xinggua兴呱, 185 Xuanzang玄奘, 9 Xu Chengyu徐承煜, 213, 214 Xu Dejia徐德嘉, 150 Xu Dunyuan许敦元, 54 Xue Yunsheng薛允升, 237 Xu Ke徐珂, 123 Xu Wenda徐文达, 199

Y Yang Chanjun杨昌浚, 173 Yang Fuzhen杨福臻, 24

Chinese Personal Name Index Yang Hao杨灏, 245 Yang Naiwu杨乃武, 155, 172, 173 Yang Tinghua杨廷桦, 130 Yang Yingju杨应琚, 55 Yang Zhifeng杨植峰, 183 Yan Ruoqu阎若璩, 30 Yao Ming姚明, 124 Yao Ying姚莹, 169 Ye Fengmei叶凤美, 227 Ye Zhengfeng叶郑风, 15 Yi Liang怡良, 137 Yi Libu伊里布, 63 Ying Baoshi应宝时, 83, 85 Yin Haiguang殷海光, 6, 7 Yi Xing奕兴, 140 Yuan Chenye袁承业, 27 Yuan Fangcheng袁方城, 153, 154 Yuan Shikai袁世凯, 39 Yuan Shuxun袁树勋, 87, 89, 160, 237 Yuan Xi袁铣, 19 Yu Mingzhen俞明震, 87 Yu Rui裕瑞, 137, 140 Yu Yue俞樾, 135

Z Zeng Guofan曾国藩, 37, 38, 117, 119, 122, 126, 135, 136, 141, 146, 147, 152, 154, 166, 167, 172 Zhang Jixin张集馨, 17, 18 Zhang Panshi张潘氏, 15 Zhang Rulin张汝霖, 52 Zhang Shizhao章士钊, 87 Zhang Taiyan章太炎, 87, 88 Zhang Weiren张伟仁, 137, 138 Zhang Xu章煦, 110 Zhang Yanghao张养浩, 136 Zhang Zhidong张之洞, 34, 148, 149, 168, 219–226, 230, 232 Zhao Xiaohua赵晓华, 103 Zhao Xingwu赵兴武, 21 Zheng Guangying郑观应, 24 Zheng Keshuang郑克塽, 130 Zheng Qin郑秦, 103 Zheng Xiaoxu郑孝胥, 98, 221, 235 Zheng Xuan郑玄, 248 Zhong Xiang钟祥, 134 Zhougua周呱, 185 Zhou Shouchang周寿昌, 189, 190, 197 Zhou Xun周询, 117 Zhu Gui朱珪, 112 Zhu Lang朱琅, 125 Zhu Qi朱七, 125

Chinese Personal Name Index Zhu Xi朱熹, 36 Zhu Yigui朱一贵, 130 Zou Minghe邹鸣鹤, 147

265 Zou Rong邹容, 87–89 Zuo Zongtang左宗棠, 158, 172