Tag Archives: Chinese Legal Documents Series

Chinese Legal Documents Series #5

The ISCLH Blog is happy to provide another update to the Chinese Legal Documents Series!  This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study.  Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.

Our latest post comes from Michael Szonyi, Professor of Chinese history at the Department of East Asian Languages and Civilizations, Harvard University.  He is a social historian of late imperial and modern China. His research focuses on the local history of southeast China, especially in the Ming dynasty, using a combination of traditional textual sources and fieldwork. He also studies the history of Chinese popular religion and overseas Chinese history.

The document below is a translation of a stone inscription from a southern Fujian village.  Erected in 1883, the inscription recounts how a community resolved a nasty feud between two branches of a single lineage.  Quotidian though it may have been, the dispute is nonetheless significant in shedding light on the complex social and legal world of the traditional Chinese village.  It offers an example of the dynamic interplay between the community, mediators, and the state in premodern China.

A printable PDF version is also available for download here.  A full image of the stone inscription is available for download here.  As always, we welcome any comments and suggestions you might have and would be especially eager to hear from those who have used this document in the classroom.  Finally, please e-mail Maura Dykstra if you are interested in contributing a future document for the series.

Michael Szonyi, “Stone Inscription of South Fujian Village Dispute,” Chinese Legal Documents Series (International Society for Chinese Law and History) 2, No. 3 (Nov. 2015)
Permanent Link: http://chineselawandhistory.com/blog/2015/11/11/chinese-legal-documents-series-005/

Stone Inscription of South Fujian Village Dispute
Michael Szonyi, Harvard University

In an open square in the village of Dongpu, on the outskirts of the city of Shishi in southern Fujian, stands a stone inscription.  Erected by the villagers in 1883, it explains how this small community resolved a dispute.  In the grand scheme of history, the dispute was trivial; none of the participants were people of any renown and its consequences seem not to have extended much beyond the village itself.  But precisely because the stone’s subject is so local in scale it can shed light on the complex social and legal world of the traditional Chinese village and on the operation of law in premodern China.

The local term for the sort of dispute that led to the carving of the inscription is a feud (xiedou).  Feuds between lineages, villages or temples were common in southern Fujian in Qing times; officials posted there frequently complained about the unruliness of the people.  This particular dispute broke out not between people of different villages but among three branches (fang) or sub-divisions of a single lineage, the Qiu.  The Qiu trace their ancestry to an individual who settled in the area in the fourteenth century.  In the nineteenth century his descendants made up the overwhelming majority of the population of Dongpu, as they still do today.  Until recently most of them made their living as fisherman.

The inscription tells us more about how the dispute was resolved than about what caused it.  All we can say for sure is that two groups within the lineage came to blows, possibly over fishing rights.  The issue was serious enough that Jinjiang Magistrate Qiu (not a member of the same family) came in person to the village to investigate.  His visit became an opportunity for the community to settle several outstanding issues, not all of which were related to the original dispute, by creating a communal pact.  At the request of a group of mediators, the magistrate endorsed this agreement when he closed his investigation.    Though the magistrate and his superior the prefect are the ostensible authors of the text, and although the agreement is presented as a state pronouncement, most of the text was actually composed by the mediators. The inscription simultaneously publicizes the text of the agreement and certifies that the state has endorsed it.

Text of the inscription

欽加五品銜署理晉江縣正堂加十級記錄十次 邱


本年十月初八日據公親職員梁如金蔡婆觀 監生邱汝蘭鄉耆洪區觀林岸淑等呈称東埔鄉邱姓族房互閗一案蒙縣親臨到办察悉海濱愚民罔知法紀致相互閗俯念該鄉係一本之親不忍嚴办着令族紳約束開子自新之路

金等忝居泉南附近鄉閭不忍坐視仰体 憲心保赤愛民是以出為調處 并請 城隍尊神駕臨鄉中是藉神道以設教寔仗 憲威而勸和幸該鄉族房人等深知愧悔均各听劝維是金等窃思該鄉旋䖏旋閗皆因一朝之忿忘身及親眦睚之怨報復相仇殊堪痛憫亟宜公議規約以杜後患非蒙 憲威曉諭示禁奚以儆鄉民而敦族睦理合取具二比遵依調處和息甘結二紙并抄粘公議條約一紙僉請如乞批銷並請示諭俾知各安生業均感切叩等情



















光  緒  玖  年  拾  月  廿  五  日  給

Xu, of third rank by imperial command, holding appointment as expectant Circuit Intendant and Prefect of Quanzhou, recipient of ten major commendations and ten minor mentions, and Qiu, of fifth rank by imperial command, holding appointment as acting Magistrate of Jinjiang, recipient of ten major commendations and ten minor mentions:

Proclaim [literally In the matter of issuing a proclamation]:

According to the report received on the eighth day of the tenth month of this year [1883] from the public-minded [mediators, consisting of] professionals Liang Rujin and Cai Poguan, student-by-purchase Qiu Rulan, and village elders Hong Quguan and Lin Anshu et al:

In the matter of the affray among the branches of the Qiu lineage of Dongpu, the magistrate went personally to inspect and deal with the situation.  He observed that these foolish people living by the sea were ignorant of laws and rules to the point that they fought one another.  Noting that everyone in the village was kin from a single origin, he could not bear to deal severely with the matter.  He ordered the gentry members of the lineage to restrain [the rest] and give them a chance to correct their own mistakes.

[We], [Ru]jin et al live humbly in the vicinity in southern Quanzhou, and could not bear to sit by and simply watch.  We are reminded of Your Excellency’s will to protect and treasure the people, so we came forward to mediate.  We invited the God of the City Wall to honour the village with a visit.  This was to use the Way of the Gods to encourage order, but actually we rely on Your authority to persuade [the people] to be harmonious.  The people of the lineage were all deeply ashamed and were each persuaded.

Therefore [we], [Ru]jin et al, reflected that the people in this village went from harmony to turmoil in a moment, for no reason besides a momentary grudge.  They forgot themselves and their kin to the point that they glared furiously at one another, formed grudges and sought revenge.  This is truly painful.  A collective agreement to prevent future disasters would be highly beneficial.

Without a proclamation of prohibition by Your Excellency, how can the villagers be brought to harmony and the kin made peaceable?   It is therefore appropriate to submit in duplicate the pledge by the two parties, willingly concluded, to respect mediation and be brought to peace, and also the terms of a collective agreement in a single copy, and request that the case be closed.  We also request a public proclamation so that all will live harmoniously and mind their own affairs.  We would be truly grateful [for this].

On the basis of this [report, We (the officials)] have learned that the Qiexia and Yinghou branches of the Qiu lineage of Dongpu had a grudge with the Fifth branch and brought lawsuits against one another.  The mediators stepped in to negotiate.  The parties became reconciled as if nothing had ever happened.  This was indeed praiseworthy.  Copying and posting their agreement would serve to prevent problems arising; this too is the height of praiseworthiness.  Besides rendering a decision closing the case, it is right to copy the agreement and make a public proclamation.

In this matter, let the people of Dongpu know:

It is your responsibility to abide by the following agreement, one item after the other, so that there will be no fighting and people will enjoy peace forever.  If anyone ever dares to violate [the terms] and the violation is discovered, or if they are reported and [the report is] confirmed, they will be severely punished without mercy and will not be permitted to redeem [the punishment by payment of a fine]

All must respect and not violate [the terms]

The agreed terms are recorded as follow:

-It is prohibited to set fires, damage boats, and carry knives to stab people [because of] verbal disagreements

-For net-casting vessels, the previous agreements on pooled capital should be respected

-The dropping of anchors for nets should proceed in sequence according to [which vessel] moors first

-When spreading nets, whoever arrives first may spread out their nets first.  If there is tax due, as in the past [the fish] should be laid out on a flat stone to await the tax official [to assess the tax].

-Houses destroyed by fire should be rebuilt in the manner of the original

-The supervision of the basket [ie the assessment of the catch?] must follow the old practice

-If fish is stolen when it is being gathered, then each lineage branch should restrain [the thief] themselves [ie each branch is responsible for restraining its own members]

-It is not permitted for hoodlums to assemble in the opium den

-It is not permitted to open a gambling den or brothel

-Young people on the road may not behave aggressively to one another

-In all matters, truth and falsehood must be evaluated

-It is not permitted to hire a firearms instructor to train in martial arts (daqing)

-In the future, if anyone dares to disobey the prohibitions, then it is up to the heads of the lineage branches as well as the eight branches of Dongyin to request that officials resolve the matter.

-The compensation for the mediators has been determined.  If anyone has a minor dissatisfaction, they should first submit this to the eight branches of Dongyin and also report it to the associations of merchants in the Taiwan trade (taijiao) The mediators are not allowed to be impatient and create problems.

-Xiawu and Xiwu are allowed to live temporarily in the house of Qiu Laoshao.  It is not permitted to obstruct this, nor to tear down the wood and stones [i.e. damage the house]

Issued the 25th day of the 10th month of the 9th year of the Guangxu reign [1883]

The role of the mediators is one of the most interesting aspects of the text.   Composed of a group of local elites of different origins, they seem to have stepped in for the first time in the aftermath of the dispute.  They present themselves as motivated by public-spiritedness, but the terms of the agreement make clear that they have been compensated for this same public spiritedness.  They used resolution of the dispute both to assert local leadership and to extract fees for so doing.  We might call them pettifoggers, but their role in local society was obviously more complex than this term of opprobrium suggests.

In the course of mediating the dispute, the mediators demonstrated a subtle understanding of the interaction of divine and temporal authority when they arranged to have the God of the City Wall from nearby Shishi tour the village. No doubt this procession was accompanied by a vow sworn in his temple by the participants that they would never again make trouble.  But recognizing that supernatural sanction was not enough to keep the peace, and that the authority of the state was also needed, they had proposed the recording and ratification of the collective agreement as a follow-up measure.

The agreement, which makes up the second half of the text, tells us a lot about local life at the time.  Perhaps most strikingly for us, the authors of the agreement shift back and forth between general prohibitions and highly specific resolutions, between matters that seem trivial and matters that touch on the very basis for local order.  Probably this has something to do with the specifics of the dispute that had led to the making of the agreement.  Early clauses suggest that the dispute escalated out of a verbal disagreement and led eventually to destruction of property and physical violence.  The very last clause, which almost seems added as an afterthought, suggests that the fighting left at least two people homeless.  As part of the resolution of the dispute they were allowed to live in the house of a third man – perhaps the house was empty because, like many local people, the owner was living in Taiwan or Southeast Asia.  But they are specifically commanded not to dismantle the house and use its timber and stone, which they might have been tempted to do in order to obtain materials to rebuild their own houses.  In between are several clauses about protecting economic interests and promoting village morality, as well as establishing a mechanism for resolving future disputes.  Future disagreements are to be handled first by the elders of the lineage, but transferred to the courts if they deem it necessary.  The participants in the initial dispute had brought lawsuits against one another.  But the agreement insists that, if problems arise in the future, locals should pursue mediation first, before resorting to litigation.  Intriguingly, issues are also be reported to the local association of merchants engaged in cross-straits trade, which presumably formed yet another form of local authority in nineteenth century Fujian (Such associations, technically ‘brokerage cartels’ have been the subject of recent studies by Lin Yu-ju).

In the last thirty years scholars of the Hua’nan or South China school (also sometimes labeled the historical anthropology school) centered on Xiamen University, Sun Yat-sen University and Chinese University of Hong Kong have pioneered the collection and analysis of local documents like this inscription for the study of Chinese history.  Such texts raise many challenges.  They contain local or highly technical phrases, such as the ones bearing on the fishing trade, which seem like a mystery to us but whose meaning probably would have been obvious to any local fisherman at the time. They make reference to ongoing problems which can only be linked to a single recorded event – the mediation – in the text itself. And they raise issues whose later development cannot be discerned from this single source alone. A full analysis of this small-scale feud using the methods of the Hua’nan school – something I do not attempt here – would include efforts to resolve these terminological questions by interviewing the descendants of the participants; to determine the relationships and social status of the participants by examining their genealogy; to explore if and how the dispute is remembered in oral history, and to look for signs of tension in village politics through the ritual practices of the local temples.

By the early twentieth-century, hundreds of thousands – perhaps millions – of steles like this one could be found in China’s villages.  A tiny fraction of the total have been collected and published by contemporary scholars, and such efforts continue.  Many consist simply of lists of names of contributors to local projects such as temples, ancestral halls, or bridges.  But a significant portion are more detailed, consisting of collective agreements and contracts, records of legal disputes, or official proclamations.  As Li Ren-yuan has explored in his recent dissertation (“Making Texts in Villages: Textual Production in Rural China During the Ming-Qing Period,” Harvard 2014), stone inscriptions were costly endeavours.  That ordinary people were willing to devote considerable resources to carve and erect a stone tells us that the subject of the stone was something that mattered to them.  While not part of a formal legal archive, inscriptions like the one at Dongpu can provide invaluable insight into the operation of the legal system at the local level and into how law was perceived and used by ordinary people.

I happened upon this inscription completely by accident, when I visited Dongpu in search of information about the Qiu’s fourteenth-century ancestor.  He was the patriarch of a military household (junhu) in the Ming, the subject of my current research.  It was only after meeting with villagers and making a copy of their genealogy, unfortunately compiled before the events described here, that my colleagues and I found this stone.  We were following the mantra of the Hua’nan school:  “when in a village, look for a temple; when in a temple, look for a stele”.  The genealogy turned out not to be very helpful for my studies of the Ming, but the interesting conversation with some local people, their very fine sweet potato liquor, and the unexpected opportunity to read this remarkable stone testify to the value, even for the historian of late imperial China, of occasionally getting out of the government archive and exploring the vast public archive that still remains in rural China.


Follow us on

Share this on

Chinese Legal Documents Series #4

The ISCLH Blog is happy to provide another update to the Chinese Legal Documents Series!  This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study.  Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.

Our latest post comes from Zhang Ning, Professor and Head of the Unit of Chinese Studies at the University of Geneva.  Her wide-ranging research interests include the history of the death penalty in twentieth century China, legal transformation since the late Qing, and literature in contemporary China.  For the last three years Professor Zhang has been teaching a seminar for M.A. students at the University of Geneva titled “Récits judiciaires: crimes et société dans la Chine impériale du 18ème au 19ème siècle.”  The purpose of the course is to introduce students to the Chinese legal language of the Qing dynasty. Students meet for two hours each week of the semester to translate cases from the 2012 Beijing guji chubanshe edition of the Qing-era compendium of legal cases known as A Conspectus of Judicial Cases (刑案匯覽).  A particular emphasis is put on analyzing the relationship between government and society in the seventeenth and eighteenth centuries, by studying and translating judicial cases.

The below case, translated in the seminar in April of 2012, highlights two aspects of the legal framing of sexual crimes.  It is an example of a case of sexual crimes against children under twelve years of age, as well as an example of special legal sanctions for sexual crimes committed by religious practitioners.  It will be published in a larger collection of approximately 100 French translations of the cases discussed in the seminar at a future date.  The document with translation and analysis is presented after the bibliographical information below.  A printable PDF version is also available for download here.  As always, we welcome any comments and suggestions you might have and would be especially eager to hear from those who have used this document in the classroom.  Finally, please e-mail Maura Dykstra if you are interested in contributing a future document for the series.

Zhang Ning, “Working with A Conspectus of Judicial Cases (刑案匯覽): Notes on Teaching with Excerpts from a Qing Dynasty Compilation of Judgments, with an Example,” Chinese Legal Documents Series (International Society for Chinese Law and History) 2, No. 2 (Feb. 2015)
Permanent Link: http://chineselawandhistory.com/blog/2015/02/01/chinese-legal-documents-series-004/

Sodomie d’un moine bouddhiste sur un moinillon de dix ans ayant déjà eu des relations sexuelles illicites
Zhang Ning
International Society for Chinese Law and History
Note: Chinese text displayed is based on original text submitted by poster.

Communication du gouverneur militaire de Fengtian sur le cas du moine bouddhiste Fushan qui a pratiqué la sodomie sur son disciple, He Zhao’er. Selon l’enquête, Fushana usé de ruse poursodomiser He Zhao’er, son jeune disciple âgé d’à peine 10 ans et, conformément à la déposition de He Zhao’er, il a été confirmé que celui-ci avait déjà été sodomisé au 5ème mois lunaire de l’année précédente. Bien que He Zhao’er, en raison de son jeune âge, soit incapable de se rappeler le nom et l’adresse de l’homme avec lequel il mendiait et qui l’a attiré par la ruse, le lieu du viol coïncide de manière irréfutable avec [celui indiqué dans] sa déposition. Il est probable que [Fushan] n’est pas le premier à avoir violé [ce garçon]. Il semble donc inadéquat de le condamner à la strangulation sur la base de la loi [selon laquelle] des relations sexuelles consenties avec un enfant âgé de moins de 10ans doivent être punies comme un viol. Mais [pour] ce genre de pervers qui pratique la sodomie sur de jeunes enfants, si l’on se contente de le condamner à la servitude pénale, un degré de plus par rapport la peine prévue pour des bonzes et des maîtres taoïstes ayant commis des crimes sexuels,cette punition est plutôt trop légère par rapport aux circonstances du crime. On doit donc réduire la peine prévue par la loi sur des relations sexuelles consenties avec des jeunes enfants pour punir le coupable.

Le moine Fushan ne sera pas poursuivi pour les [deux] délits mineurs [suivants] : avoir fait de He Zhao’er son disciple au mépris des règles[1], et l’avoir sévèrement battu. Il se verra [cependant] obligé de reprendre une vie séculière. Pour avoir violé un enfant de moins de 12 ans, il sera condamné à 100 coups de grand bâton et au bannissement à 3000 li, qui est la réduction d’un degré de la peine de strangulation après les Assises prévue par la loi [selon laquelle] des rapports sexuels consentis avec de jeunes enfants doivent être punis comme un viol. Finalement, nous le condamnons à porter la cangue durant deux mois à l’entrée de son propre monastère tel que prévu par la loi sur les moines bouddhistes et les maîtres taoïstes coupables de crimes sexuels. Quant à He Zhao’er, étant donné qu’il n’a pas encore atteint l’âge de raison et qu’il n’a subi la sodomie que pour pouvoir se nourrir, il devra être exempté de toute poursuite.

Cas de la 4ème année du règne de l’empereur Daoguang (1824), en cours d’examen par le département de supervision des cas provenant de Fengtian

《刑案匯覽/刑律/犯姦》: 和尚鸡奸业已犯奸十岁幼僧


This case provides an opportunity to study the five following statutes and sub-statutes in the Daqing lüli, which are used as a reference in determining the final judgment for the above case:

  1. 『律』犯姦: 奸幼女十二岁以下者虽和同强论.
  2. 條例: […]如强奸十二岁以下十岁以上幼童者,拟斩监候;和奸者,照奸幼女虽和同强论律拟绞监候 ;若止一人强行鸡奸并未伤人,拟绞监候 ;如伤人未死,拟斩监候,其强奸未成并未伤人者,拟杖一百流三千里 ;如刃伤未死,拟绞监候 ; 如和同鸡奸者, 照军民相奸例枷号一个月,杖一百 […].
  3. 『律』居丧及僧道犯奸:凡居父母及夫丧若僧尼道士女冠犯奸者各加凡奸罪二等相奸之人以凡奸论[强者奸夫绞监候妇女不坐].
  4. 條例:僧道官僧人道士有犯挟妓饮酒者俱杖一百发原籍为民.
  5. 條例: 僧道尼僧女冠有犯和奸者, 於本寺观庵院门首枷号两个月, 杖一百;其僧道奸有夫之妇及刁奸者,照律加二等,分别杖徒治罪,仍於本寺观庵院门首,各加枷号两个月.

In particular, this case shows one peculiar aspect of legislative reasoning concerning sexual crimes: given that the victim has already been sexually abused by another man, the culprit will receive a reduction of the penalty normally meted out for the committed crime.

[1] Il existe des règlements spécialement destinés aux moines.

Follow us on

Share this on

Chinese Legal Documents Series #3

The ISCLH Blog is happy to ring in 2015 with a new update to the Chinese Legal Documents Series!  This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study.  Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.

Our latest post comes from Robert Hegel, Professor of Comparative Literature and Professor of Chinese at Washington University in St. Louis.  In addition to his True Crimes in Eighteenth-Century China: Twenty Case Histories, with Katherine Carlitz he also edited Writing and Law in Late Imperial China, a collection of essays. Professor Hegel’s document is a translation from his book, True Crimes in Eighteenth-Century China: Twenty Case Histories (Seattle: University of Washington Press, 2009), pp. 80-81, 83-84. The translation is an excerpt of a testimony from a 17th century murder case involving an illicit union that highlights the tensions between the Confucian ideals at the heart of Qing law and the realities of everyday adjudication. The complete transcription of the original crime report (First Historical Archives 內閣題本刑罰類 518-46; Kangxi 35.5.17) is available on the Washington University Digital Archive together with the complete transcripts of the other nineteen cases found in the published collection:

The document with translation and analysis is presented after the bibliographical information below.  A printable PDF version is also available for download here.  As always, we welcome any comments and suggestions you might have and would be especially eager to hear from those who have used this document in the classroom.  Finally, please e-mail Maura Dykstra if you are interested in contributing a future document for the series.

Robert Hegel, “Reading the Narratives in Archived Crime Reports,” Chinese Legal Documents Series (International Society for Chinese Law and History) 2, No. 1 (Jan. 2015)
Permanent Link: http://chineselawandhistory.com/blog/2015/01/07/chinese-legal-documents-series-003/

Reading the Narratives in Archived Crime Reports
Robert Hegel
International Society for Chinese Law and History
Note: Chinese text displayed is based on original text.

My introduction to the study of legal documents came via a lecture by Philip Kuhn. It was based on research that would become his monograph Soulstealers, and it included mention of the monks’ testimony in their own words. This possibility was tremendously exciting: as a student of Ming-Qing vernacular literature, I was drawn by the prospect of seeing how real spoken language was recorded: how were different languages and dialects represented?

In 1986, armed with Professor Kuhn’s introductions, I visited the First Historical Archives 第一歷史檔案館 in Beijing to find some of those records. Capital cases in the Qing Archives generally include oral testimony taken from all the principals in a case: the accused, the plaintiff, witnesses, and, often, neighbors of the deceased and of the perpetrator. Testimony is taken at the inquest with the body in view, during the magistrate’s investigation of the crime at his yamen, and through subsequent stages of judicial review. I had hoped to discover a variety of speech forms represented there, but of course I quickly learned that all testimony in the final reports had been standardized to an easily read form of guanhua 官話 or Mandarin. In spite of the disappointment of this early discovery, I went on to realize that these documents contained more than mere language, and often included intimate details about the personal lives of men and women involved in legal cases. Because most cases involve the poor, they offer information about the lives of people otherwise individually invisible in the written record.

More importantly, however, patterns of representation appeared in the structure of these reports. As Karasawa Yasuhiko 唐澤靖彥 pointed out some years ago, all of this testimony was carefully edited, even rewritten, to make every element of the final report supportive of the magistrate’s judgment. Even though the editing appears to have been done with an eye to conciseness rather than to select or distort facts, these case reports became carefully constructed narratives meant to reveal the magistrate’s interpretation as well as the details of the case.

In one example, a case from Shandong dated 1696, the report records an investigation upon which hinged the life of a murdered man’s widow. In both soliciting and editing the testimony, the Liaocheng 聊城縣 magistrate Jin Yingdou 金應斗 seems to have shaped his report to emphasize not only how and why the murderer perpetrated this crime but also how his paramour, Ms. Li 李氏, was guiltless in the death of her husband, Chen Wenxian 陳文現. I quote segments of the testimony of these two below. Even though the adulteress by law should have been strangled as an accessory to the murder of her husband, the testimony was carefully structured to present her as the helpless victim of her landlord, Du Huailiang 杜懷亮.

Magistrate Jin initially interrogated Du Huailiang as follows: “How old are you, and what is your native place?”

Du Huailiang testified: “Your humble servant is 26 sui, and I am from this District.”

Further interrogation: “How did you know that Chen Wenxian was twenty-seven sui in age? Why did you kill him and your wife Ms. Zhang? Tell the truth.”

Du further testified: “He and I have been on good terms ever since he moved into my house to live during Kangxi 31 [1692]. That’s how I know how old he is. Often he and my wife Zhang had made eyes at each other. I was suspicious in my heart, but I didn’t have any proof so I couldn’t say anything to him about any ‘smelly business’ between them. During the fifth month I told him to get out, and he found a room at Widow Wei’s place. He moved out on the 7th of the fifth month of this year [June 18, 1695]. On the 4th of the sixth month [July 14] I took a hatchet with me to sleep in the courtyard to guard the cattle. My wife closed the door and went to sleep inside our room. About the second watch of the night I heard a sound at the door like somebody pushing it open and then closing it. Very quietly I got up, picked up the hatchet, and went over to the door, where I stood for a good long time listening. Inside the room there were two people talking in whispers. I kicked open the door, and there was Chen Wenxian, naked, trying to get away. I blocked the door and chopped at him with my hatchet. He turned back toward the kang, where he collapsed on the floor. I caught up with him and gave him a couple more chops, and he died. My wife was sitting on the kang. With one chop I killed her, too. I called the warden and the neighbors to bear witness, and they came along with me to report the matter.”

Further interrogation: “According to the complaint filed by Ms. Li, you were suspicious about her husband Chen Wenxian and you tricked him into coming to your house to drink so that you could kill him. Fearing that you would be found out, you murdered your wife and made it look like illicit sex to deceive us. What do you have to say about that?”

Du further testified: “I never did have any grudge or bad feelings about Chen Wenxian. It was just that he came to have illicit sex with my wife, and I happened to catch them at it. So I killed him and my wife as well. It wasn’t at all that I was suspicious of him and lured him over to kill him.”

Interrogation of Ms. Li: “What’s your age? What bad feelings did your husband Chen Wenxian and Du Huailiang have about each other? Why did he trick your husband to come over so he could kill him? Tell the truth.”

She testified: “Your humble servant is twenty-six sui this year. In Kangxi 31 my husband Chen Wenxian and I moved into Du Huailiang’s house and lived there three or four years. On the 6th of the fifth month this year [June 17, 1695] they squabbled with us about the child, and on the 7th we moved into Widow Wei’s house to live. Then on the 4th of the sixth month [July 14], in the evening, my husband went out, saying that he was going to Du Huailiang’s house to drink wine with him. When he got to his house Du Huailiang killed my husband, but I don’t know why.”

Further interrogation: “According to Du Huailiang’s testimony, your husband really went there in order to have illicit sex with his wife. He happened to catch them at it, and he killed them. How can you say that he tricked your husband there in order to kill him?”

Ms. Li further testified: “But Du Huailiang did trick my husband there in order to kill him. He was afraid that he’d be found out, and he made it look like my husband was having illicit sex with his wife in the hope that he could cover it up. If you’d just question the two neighbors you’d find out.”











The testimony recorded next, from the perpetrator’s neighbors, reveals that Du’s wife is crippled (and he later describes her as homely) and has a reputation for scrupulous uprightness, which thoroughly undermines his first statements. Magistrate Jin then threatens Du Huailiang with torture, which provokes a full confession.

Interrogation of Du Huailiang: “In previous interrogations you said that you were sleeping in the courtyard when Chen Wenxian came to your room to have illicit sex with your wife. You heard someone talking inside, and you went into the room and killed them. If you were sleeping in the courtyard, when Chen Wenxian came in he naturally would have seen you. How did he dare go into your room to have illicit sex? How did he dare to talk aloud in your room? Clearly you’re just making this up. Tell the truth about why you killed Chen Wenxian and you can avoid the instruments of torture.”

Du further testified: “You don’t need to squeeze me—I’ll tell the truth, that’s for sure! Chen Wenxian and Ms. Li lived with me ever since they moved into my house in Kangxi 31. Later Chen Wenxian went to work for the Wei family as a farm hand. When the farm work was busy, he often didn’t come home to sleep. In the eighth month of Kangxi 31 [late September, 1692] during the time for preparing jujubes, I don’t remember the date, Chen Wenxian didn’t come home.   About the first watch of the night Ms. Li came into my room to get a light from the fire. I saw that there was nobody else around so I pulled her to me and wanted to have some illicit sex. She went along with it, and we had illicit sex on the kang where the jujubes were being prepared. After that she had illicit sex with me either in her room or mine. I don’t remember how many times we got together.”

“This year my mother figured it out. On the 6th of the fifth month about noon I came home from the slope where I’d been cutting wheat, and because my wife didn’t have the meal ready I gave her a couple of slaps. My mother saw me slap my wife so she came after me and hit me; she said that Ms. Li had put me up to it, and she cursed her, calling her a slut and a bitch. Ms. Li heard her and she went back into the back room and started a squabble with my mother. Sun Erchen’s wife and Du Weiyuan came over to make peace between them. When Chen Wenxian came home that evening and heard they’d been squabbling, he beat Ms. Li for a while. Then on the morning of the 7th Chen Wenxian was getting ready to move out. I told Sun Erchen to try to get him to stay until we had finished cutting the wheat and then he could move, but Ms. Li said she was too ashamed to stay there so they moved away.”

“After they moved I couldn’t get together with her at all, but because I had been having illicit sex with Ms. Li, I thought about her all the time. On the 4th of the sixth month [July 14] I invited Chen Wenxian over to drink wine. He said, ‘I don’t have any free time in the daytime, but in the evening after I’ve fed the cattle I’ll come over to your house to have a drink.’ That made me think about how I feel about his wife and about how I can’t even see her now that they’ve moved away. The best thing would be to take advantage of his coming over in the evening to drink to say he was having illicit sex with wife and kill him along with my crippled wife so that I can get back together with his wife. When I’d made up my mind, I went home and got a hatchet and put it in my room and waited for him.”

“About the time of the second watch Chen Wenxian came over. I showed him into the room; he sat on a plank stool, and I brought out something for him to smoke.   When he got good and drunk I took out my hatchet and aimed a good chop at his head. He cried out once, and then he fell down on the floor. I gave him a few more chops and then he died. My wife was sleeping on the kang there. Then I immediately chopped her to death, too. My mom and dad both live in the back. I went into the back and shouted for my dad to get up. I told him that the Chen Wenxian who lived in our house for three or four years and who had moved out for good had come back looking for trouble, so I killed him and my wife as well, and that I wanted to go to the magistrate’s court to turn myself in. My dad called Du Weiyuan to come to the house and take a look. I told Du Weiyuan that Chen Wenxian had come to have illicit sex with my wife and so I had killed him and my wife as well. Du Weiyuan said, ‘Since you killed them, there’s no problem. You can go report it at the District tomorrow.’ After daylight I went along with the neighbors to turn myself in at the magistrate’s court. These are the true facts.”

Further interrogation: “Since you had already killed Chen Wenxian, why did you also kill your own wife?”

Du further testified: “Since I’d had illicit sex with Ms. Li, if I killed her husband Chen Wenxian I was afraid there’d be a murder investigation. My wife was crippled, and also homely, so I killed her as well. I hoped that if I killed them while they were committing adultery I wouldn’t be charged with a crime.”









The magistrate proposed that Ms. Li be strangled in accordance with the Qing Code prescription for an adulteress involved in a homicide. Even so, the reviewing officials granted Ms. Li a full pardon—even though a fortuitously timed general amnesty would normally have reduced her sentence by only one level of severity—while Du Huailiang was executed as Jin Yingdou had originally proposed. This variation from normal sentencing would seem to have been the consequence of sympathy for Ms. Li provoked by the compelling narrative of her victimization that Magistrate Jin created from the testimony he included here.

Follow us on

Share this on

Chinese Legal Documents Series #2

The ISCLH Blog is proud to provide the latest update to the Chinese Legal Documents Series.  This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study.  Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.

Our latest post comes from Weiwei Luo, Ph.D. candidate at Columbia University.  Her dissertation examines the publication of accounting reports and their standardization in the eighteenth and nineteenth centuries, as well as the circulation of attendant ideas of accountability between local societies and the state.  Ms. Luo’s documents are early nineteenth century land contracts from the Dajue Monastery in Beijing.  They provide critical insights into how Qing religious institutions managed their economic affairs, consolidated their land holdings, and shaped (and was shaped by) the local communities in which they were embedded.

The full document(s) with translation and analysis is presented after the bibliographical information below.  A printable PDF version is also available for download here.  As always, we welcome any comments and suggestions you might have and would be especially eager to hear from those who have used this document in the classroom.  Finally, please e-mail Maura Dykstra if you are interested in contributing a future document for the series.

Luo Weiwei, “The Language of Property Monastic Contracts,” Chinese Legal Documents Series (International Society for Chinese Law and History) 1, No. 2 (Dec. 2014)
Permanent Link: http://chineselawandhistory.com/blog/2014/12/01/chinese-legal-documents-series-002/

The Language of Property in Monastic Contracts
Luo Weiwei
Note: Chinese text displayed is based on original text.

On the eve of the Cultural Revolution (1966-1976), Changxiu (常修), the last monk of the Dajue Monastery (大覺寺) of the Western Hills in Beijing, wrapped a bundle of old documents in newspapers and hid them in the rafters of the Mahavira Hall. A construction team found them in 1991. These documents include one hundred and twenty-eight contracts concerning the monastery, its monks, and its affiliated temples, mostly dating from the Qing dynasty (1644-1911). The earliest among them are from the Shunzhi period (1644-1661) and the latest date to the early Republic. Among these contracts are records of land sales, exchanges, donations, and tenancy agreements. A number of these contracts have been published by the monastery in two collected volumes, Dajue Chansi (大覺禪寺), and Dajuesi Wenji (大覺寺文集).[1]

Chinese monasteries were characterized by their great estates and pioneering financial institutions in the Tang and Song period, and seem to have gradually faded from the socio-economic landscape afterwards. When examined together, these contracts from the Dajue Monastery offer a unique lens into the organization and everyday strategies of a Qing monastery, which have long eluded students of Chinese religious institutions. The Dajue Monastery records suggest that the Qing monasteries were economically robust and innovative corporate entities, and resembled the lay society structurally as it became embedded in them.

Transactions with laymen were an important part of how the monastery became implicated in an intricate web of social relations, at the same time that the monastery itself was striving to consolidate its assets. This double agenda was achieved by acquiring pieces of land that would fill a gap in the monastery’s holdings, or would enable the current holdings to expand in at least one direction. Sale contracts made between the monastery and laymen were particularly useful to illustrate this process of property consolidation, as the location of land was often clearly identified in them. But to fully appreciate such lay-monastic sales, we will read another transaction made by the same layman alongside the sale contract, which reveals certain nuances that would likely pass unnoticed were we to only focus on the sale contract.

For readers who have not encountered monastic contracts before, the very ordinariness of the two transactions with the Dajue Monastery featured below might seem strange: the monastery appears to have been treated as a normal neighboring landholder. In two separate transactions, the monastery bought two parcels of land from a layman in the vicinity. The original image and transcriptions of the following contracts are published in Dajue Chansi (195-196.)

#80 立典杂果园地文约人陈德。因为手乏无钱使用,今将本身祖遗杂果园地一段,坐落在塔院东边,计贰沿半,土木相连,恳烦中人说合,情愿典与大觉寺常住耕种摘收,言定典价清钱叁拾贰吊正,其钱当日交完并无欠少。言明摘收拾年,钱到许赎,地归本主。此系两家情愿并无反悔立字之后不许反悔,恐口无凭,立字为证。十年之内契主如若回赎,按三分利息归还,十年之外回赎照原典价钱数,利息一概不要,立字为凭。


#80 The executor of this contract for dian (redeemable sale) of an orchard is Chen De. For lack of money, he willingly dian his own inherited orchard of two yan and a half, located on the east side of the Pagoda Courtyard, to the Dajue Monastery. The dian price, 32 diao, has been paid in full. Two parties stated clearly that the orchard will be harvested for ten years, and the executor will be allowed to redeem the orchard when the price is paid. Both parties entered the transaction voluntarily, and have made this contract as evidence. Within ten years from today, if the executor redeems the orchard, three percent interest will be returned; beyond ten years, he will pay the original price with no interest.

Dian contract executor: Chen De
Middleman: Zhang Guofu
Daoguang, twelfth year, first month, tenth day [February 11, 1832]

#82 立卖杂果园地文约人陈德。因为手乏无钱使用,今将本身祖遗园地一段,东至马姓,西至常住,南至南廊下陈姓,北至常住。四至分明,土木相连,恳烦中人说合,情愿将此园地出卖与大觉寺常住,永远为业,言定卖清钱伍拾吊整,其钱当日交完不欠。立字之后,不许反悔。如有先悔之人,罚纹银伍拾两常住收用。恐口无凭,立卖契文约存照为证,每年五月交纳钱粮钱叁佰五十文。


#82 The executor Chen De draws a sale contract for his orchard. Due to financial difficulties, through the negotiating efforts of the middleman, he sells his own inherited orchard to the changzhu (literally “permanent stay”, i.e. collective property of the monastery) of the Dajue Monastery as permanent asset. To the east, this orchard reaches Ma’s property, to the west it reaches changzhu, to the south it extends to Chen’s property under the South Corridor (of the monastery), and to the north it extends to the changzhu. The boundaries in all four directions have been clearly demarcated. Both parties explicitly agreed to the selling price of 50 diao, which has been paid in full today. No party is allowed to breach the contract. The party that breaches first must pay 50 liang of silver to the changzhu as punishment. We make this sale contract as evidence.

Sale contract executioner: Chen De
Middleman: Hairan
Daoguang, thirteenth year, sixth month, seventh day [July, 23, 1833]

Contracts are always constrained by standard forms. But once we explore their language of property, rather than dismissing them as either formulaic or disingenuous, it enables us to see each transaction as both a personalized act and part of a pattern that is unique to a time and place. Monastic contracts in particular tend to be scattered in archives, local document collections, and private collections, and like most local sources made by non-elite individuals, background and biographical information can be especially hard to come by. But caches of documents like the Dajue contracts offer insights into local legal history and the operation of complex institutions like monasteries. For example, although the terminologies in the above two contracts seem unremarkable and similar at a first glance, on a closer look they are unusual if not puzzling.

Made (and apparently drafted) by the same layman, these two contracts above provide us with a rare opportunity to compare details that might otherwise be deemed as scribal idiosyncrasies. For readers familiar with the concepts of “permanent sale” and “conditional sale” in Chinese legal history, the distinction between the two contracts above seems intuitive. However, just as other land sale contracts of the Dajue Monastery, the sale contract above (#82) did not use the word “juemai” (绝卖irrevocable sale), but used “yongyuanweiye” (永远为业as permanent asset). “Ye” referred to a right to profit from a given piece of property, which might carry several different rights and hence a number of ye might exist simultaneously on a given plot of land. So the transfer of one ye, permanent or not, would not necessarily entail surrendering all claims to an entire piece of property. It would simply mean that the specific right in question was transferred.

Several statutory revisions during the Yongzheng and Qianlong period attempted to regulate the myriad practices of land redemption after a sale. A key feature of these new laws was that only contracts bearing the term “juemai” (绝卖) could be recognized in court as representing a full sale that absolutely terminated all claims to the land in question by the seller. But in practice, the line between different kinds of conditional sales, and between supposedly permanent sales and conditional sales, was fuzzy at best, due to various common strategies for revising the original transactions in order to seek extra value (找价zhaojia).

Regardless of the revisions of Qing law in the early to mid eighteenth century, all land contracts dating from Kangxi to Daoguang periods found in the Dajue Monastery used roughly the same forms: the term “juemai” was completely absent, while redemption rights were indicated by a special clause. In both red and white contracts made by laymen in the same area, the Wanping County and Beijing, the same phrase “yongyuanweiye” and sometimes a short form “guanye” (管业manage asset), seems to have been sufficient for identifying legally recognized permanent sales, while redemption rights were present in redeemable sale contracts. Hence these transactions, ranging from donation to sales concerning the Dajue Monastery, can be roughly translated into legal terminology as permanent and conditional sales. Contracts bearing the phrase “as permanent asset/incense-fire” may then be seen as de facto permanent sales. However, such a translation is what the state would have used to gain clarity in the labyrinth of transactions, and should not be taken as an actual flattening of local practices.

Textual details, upon closer investigation, reveal how legal history and social history are mutually constitutive. These two contracts not only reveal the messiness of local practices compared to formal legal categories, but also the economic and social strategies behind transactions. All land sales between the Dajue Monastery and lay parties stated explicitly that they were sold to the collective property of the monastery (常住 changzhu) and not to individual monks. Land holdings of the monastery – generally referred to as incense-fire land (香火地 xianghuodi) to distinguish them from other forms of property – were extremely important to the survival of the monastery and its monks because of the basic income they provided. But not all land acquisitions serve the same purpose. By reading these two contracts side by side, we notice that land already belonging to the monastery bordered the land in the second sale in all directions, while land in the first contract was located somewhat close to the monastery but not directly bordering existing income-producing property. Thus to acquire the second parcel of land was to consolidate monastic assets, filling a gap in the current property holding, and enabling larger scale of production and stability of income, while acquiring the first parcel was a move to temporarily generate additional income for the monastery.

Among the land sales to the Dajue Monastery, contracts containing the phrase “yongyuanweiye” seem to concern only asset consolidations. These transactions meant that the original owner transferred indefinite possession of the “ye” (subsoil rights) to the monastery without the option to later redeem the rights unless explicitly provided by revisions to the original contract. Such indefinite possession would suffice for the purpose of property consolidation. In addition to serving as a means of de facto consolidation without permanent sale, such an indefinite transfer of subsoil rights also maintained a connection between the laymen and the monastery that would have been otherwise severed if a sale was a “dead” one.

Going back to these two contracts we can now use them to summarize the differences in the language of contracts intended to dictate the terms of property use (#80) versus the terms of contracts related to strategies of property consolidation (#82). First, the consolidation transaction does not grant redemption rights. Second, boundary information is much more detailed in the acquisition contract compared to the redeemable sale, as it helped to identify the land and show its connections. Third, a penalty clause or an assignment of responsibility tended only to be present in the acquisition contracts, as seen in document #82, where the party revoking the sale must pay an exorbitant fine to the monastery. The one-sided nature of this penalty suggests that the buyer (the monastery) was particularly concerned with the likelihood of losing property that directly bordered its own.

In conclusion, without understanding the social meaning of the term “yongyuanweiye”, we would have simply defined these two contracts using the legal categories of the state, namely, permanent and conditional sales, and overlooked the intentions of the acts underneath standard forms. The question of why certain phrases were imbued with such social meanings can only be answered by exploring the legal knowledge and transactional culture on both local and regional levels.

[1] Sun Rongfen, Zhang Yunfen and Xuan Lipin, eds, Dajue Chansi, Beijing Chubanshe, 2006. DajuesiWenji, edited and published by Beijing Xishan Dajuesi Guanlichu. 2010.

Follow us on

Share this on

Chinese Legal Documents Series

The ISCLH Blog is proud to introduce the new Chinese Legal Documents Series.  This special series invites researchers to introduce a document from their own collections, provide a translation, and discuss what these texts might be used to study.  Our goal is to showcase the research of members, offer a small corpus of legal texts for the training of students, and give readers a wide view of what the study of Chinese legal history looks like.

Our inaugural post comes from Max Oidtmann, historian of China and Inner Asia teaching at Georgetown University’s School of Foreign Service in Qatar.  Originally from the Xunhua Archives in Qinghai, Professor Oidtmann’s document is an 1874 proclamation by a local magistrate attempting to resolve a thorny property dispute between two monasteries. The document offers a valuable snapshot of governance on the imperial periphery and serves as an example of bottom-up attempts by the Qing to rebuild a multi-ethnic society in the aftermath of the Muslim rebellions.

The full document is presented below.  (A printable PDF version is also available for download here.)  We welcome any comments and suggestions you might have and would be especially eager to hear from those who have used this document in the classroom.  Finally, please e-mail Maura Dykstra if you are interested in contributing a future document for the series.

Max Oidtmann, “A Document from the Xunhua Archives,” Chinese Legal Documents Series (International Society for Chinese Law and History) 1, No. 1 (Nov. 2014)
Permanent Link: http://chineselawandhistory.com/blog/2014/10/23/chinese-legal-documents-series-001/

A Document from the Xunhua Archives
Max Oidtmann

In 1873 the Qing government regained control over Xunhua subprefecture (循化聽), a sprawling jurisdiction that encompassed a diverse population of Salars, Tibetans, and Mongols in addition to Han and Hui commoners. Local Muslims had ejected the Qing and its military forces from Xunhua and much of the rest of Xining Prefecture following the spread of the Great Muslim Rebellion to Gansu from Shaanxi in 1864. The Xunhua Subprefectural Archives, now held in the Qinghai Provincial Archives, Xining, document the Qing government’s attempt to pacify and govern this region from 1873 through the fall of the dynasty in 1911. This archive currently contains 5,319 fascicles (juan) totaling approximately one hundred thousand pages of documents in both Chinese and Tibetan.

During the busy summer months when the subprefect was resident in Xunhua, registers of daily business (號薄) list as many as sixty to seventy separate matters, many of which touched on the affairs of local Tibetans. The Xunhua archives reveal that by the mid-nineteenth century, Gansu provincial officials played—often reluctantly—the key role in what had become a Qing-centered pluralistic legal order in the Amdo region. Tibetans from all walks of life—lay people and monks, herders and farmers, Gelukpa hierarchs and village elders, men and women—sought out Qing officials at all levels of the provincial administration to resolve local conflicts. Qing magistrates, working together with the monastic rulers of places such as Labrang and Rongwo, as well as Hui gentry and military commanders, drew on diverse traditions of jurisprudence to adjudicate conflicts. In the process, they created a uniquely Qing body of “jurispractices” (a term I borrow from Katherine Hermes’ study of native American law[1]) and legal precedents.

In the immediate aftermath of the Muslim rebellions in Gansu, Qing officials faced a particularly daunting wave of litigation brought by both Muslims and non-Muslims. During the course of the rebellions, land and other properties had changed hands—often involuntarily, people had been murdered or disappeared, families had separated, individuals had converted from one teaching to another, widows remarried, and the shifting fortunes of Muslim “rebels” and the Qing dynasty “braves” had left a tortuous record of loyalties and betrayals at all levels of society. The return of the Qing represented for some people an opportunity to right these perceived wrongs. The archival record makes it clear that the Tibetan communities of Amdo had not been immune from the turmoil of the Muslim rebellions. Many lay and monastic communities had allied themselves with the Muslims at one point or another. Other communities had suffered the depredations of attacks by Muslim forces and allied Tibetans. Moreover, the exigencies of the decade of rebellion only exacerbated historic tensions between Tibetan communities.

Many of these tensions arose from the complex and overlapping claims of the estates owned by the region’s reincarnate lamas.During the 1870s-1880s, one of the thorniest cases to emerge from the ashes of the Muslim rebellions involved the estates of two major reincarnate lineages—the Gyangro Lama of Khagya monastery and the Sétsang Lama of Terlung monastery. Successive generations of both lineages had acquired estates, tenants, and mansions in the valleys between the two monasteries. Yet their claims to these properties frequently overlapped or were disputed by local residents. Managers of the two monastic estates also claimed exclusive rights to supervise and order the religious affairs of Khagya monastery.Despite the fact that both lineages (and all monasteries involved) subscribed to the teachings of the Gelukpa school and had often had amicable relations historically, by the 1870s, they had mustered military forces and were escalating attacks on each other. Further complicating the issue were mutual insinuations made by each lineage that the other side had allied with the Muslims of Hezhou during the rebellions, as well as the influence of two hostile monastic polities of regional import—Labrang and Rongwo, both of which attempted to take advantage of the conflict.

The document translated below is a proclamation from the spring of 1874 represents one early attempt by the Xunhua subprefect (at this time a Manchu bannerman named Anfu) to resolve the case. At this particular juncture, the subprefect had delegated the task of negotiating a resolution to the Khagya-Terlung conflict to the senior “nangso” (Tibetan lay official) of Rongwo. The proclamation includes a detailed community compact that was intended to clarify the various obligations the various villages owed to each other and to their respective monastic supervisors.

Despite the involvement of prestigious monks from outside the immediate area of the conflict and the sanction of the magistrate, this compact only held for a matter of months.This case would continue to trouble Xunhua subprefects until 1892. Yet the compact represents the first of a series of important inter-communal accords in Xunhua that attempted to resolve the Gyangro-Sétsang conflict. Throughout the rest of the Qing dynasty and well into the Republican period, these accords would serve as the primary legal basis for resolving intra and inter-communal conflicts. However, like any legal statute or precedent, they also occasionally provided the focus for subsequent friction when the concerned parties found that their understandings of the accords, often based on unofficial or incomplete Tibetan-language translations, differed not only from each other but from the subprefecture’s own records.

Reading the Xunhua Archives the researcher is often struck with the strident demands of local Tibetans for the Qing state to “take charge” (作主) and adjudicate conflicts according to the “Tibetan laws and statutes” (番例番規). However, in practice, the demand for “Tibetan” jurisprudence generally provided discursive cover for the creation of a body of decisions, pledges, and community compacts in which the “Tibetan” statutes played only a supporting role. For instance, in the document below, a detailed settlement of community boundaries was far more central to the resolution of the case than the exchange of compensation in accordance with the Tibetan statutes for the deaths and destruction that had attended the outbreak of the conflict months earlier.

During the late nineteenth century litigation in Qing courts led to attempts by committees (委員會) of Qing officials and local Tibetan and Muslim elites to sort out the contradictory claims of religious estates. Investigative parties were sent out and detailed surveys of Tibetan communities collected. The desire to create clear boundaries around monasteries (a desire that originated with the Gelukpa elites as much as it did Qing officials), however, often had the unintended consequence of forcing indigenous Tibetan households and villages to enter into exclusive relationships with particular monasteries and monks. Pious activities such as pilgrimage or alms-giving were abruptly politicized and frequently restricted in the interest of clarifying the rights of monastic estate to a certain people and territories. The end result was the reification of monastic domains and their agglomeration into ever-larger organizations. By the end of the nineteenth century, Tao Baolian (陶保廉), the son of the Gansu governor-general Tao Mo (陶模), would warily describe the large monastic domains of Labrang and Rongwo as the “Warring States.”[2] Paradoxically, the existence of these massive entities was at least partially the result of the Qing’s own colonial legal order in the Sino-Tibetan borderlands.

The Document

“Let the Rong’ar hönpo and the Khagya chiliarch be informed:

With regards to the case concerning the feud between the [Rong’ar] hönpo and the Khagya chiliarch over three villages, this office ordered elders from both sides to fairly mediate. Upon receiving the terms of their recommended settlement, I made some minor emendations in the interest in ensuring its fairness and arrived at a final judgment. The stipulations shall be listed separately for dissemination to each party and must be observed by all concerned parties, including the hönpo and the chiliarch. Act in accordance with this judgment and there will be permanent peace and no further cause for argument or inconvenience. Promptly observe this command!

The decision stipulates as follows:

  • Each household of Menlung must provide Khagya monastery with one dou of barley and fifteen catties (jin) of butter each year for eternity.
  • Xiangka must perform one day of the monlam at Khagya monastery during the first month of the new year.
  • Menlung is to be considered a tribe of Khagya monastery and, in accordance with past precedents, will be governed by Khagya.
  • Fifty plots of land purchased by Khagya from Xiangka shall be returned to Khagya monastery.
  • Irrigation water shall be supplied to Xiangka by Khagya according to the existing schedule; Xiangka will host one day of monlam each year at Khagya monastery, if on the scheduled days Xiangka does not receive water because the channel has been blocked, Khagya cannot request Xiangka to host monlam.
  • Tangkar is to be considered a tribe of Rong’ar and, in accordance with past precedents, shall be governed by Rong’ar.
  • All additional matters are to be handled according to precedent.
  • Herders from Menlung who pasture on Khagya’s alpine meadows shall be permitted to graze their animals there according to tradition.
  • All those common people who have been taken captive shall be returned to their previous tribes.
  • Rong’ar shall compensate Khagya for all the property of Khagya monastery that they destroyed or looted.

If these stipulations are not observed you will be punished without mercy!”[3]








[1] Katherine A. Hermes, “The Law of Native Americans, to 1815,” in Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America, vol. 1: Early America, 1580-1815 (Cambridge UK: Cambridge University Press, 2008), 33-34.

[2]Tao Baolian, Xinmao shixingji 辛卯侍行記(Lanzhou: Gansu minzu, 2002), 240.

[3] Qinghai sheng dang’anguan (青海省档案馆) Tongzhi 同治13/02 (1874-3/4), 6-YJ-187: 《循化廳為遵依議規給隆哇、卡加的諭》.

Follow us on

Share this on