Tag Archives: Qing

ISCLH Summer 2020 Book Talk Series: “The Board of Rites and the Making of Modern China”

ISCLH Summer Book Talks continue! Speakers Macabe Keliher and Taisu Zhang will discuss The Board of Rites and the Making of Modern China on Thursday 7/2 9-10:30 EST. If you have already registered for previous talks, you can use same login. Otherwise, please see flyer for more info on registration!

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ISCLH Summer 2020 Book Talk Series: “Circulating the Code”

ISCLH Summer Book Talks continue! Speakers Ting Zhang  and Li Chen discuss Circulating the Code on Fri 6/12 9-10:30 EST. If you have already registered for previous talk, you can use same login. Otherwise see flyer for more info on registration!

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New Publication: Ting Zhang, Circulating the Code: Print Media and Legal Knowledge in Qing China

Circulating the Code: Print Media and Legal Knowledge in Qing China

Ting Zhang, University of Maryland

University of Washington Press, 2020

Publisher’s Link:

https://uwapress.uw.edu/book/9780295747156/circulating-the-code/

Publisher’s Description

Contrary to longtime assumptions about the insular nature of imperial China’s legal system, Circulating the Code demonstrates that in the Qing dynasty (1644–1911) most legal books were commercially published and available to anyone who could afford to buy them. Publishers not only extended circulation of the dynastic code and other legal texts but also enhanced the judicial authority of case precedents and unofficial legal commentaries by making them more broadly available in convenient formats. As a result, the laws no longer represented privileged knowledge monopolized by the imperial state and elites. Trade in commercial legal imprints contributed to the formation of a new legal culture that included the free flow of accurate information, the rise of nonofficial legal experts, a large law-savvy population, and a high litigation rate.

Comparing different official and commercial editions of the Qing Code, popular handbooks for amateur legal practitioners, and manuals for community legal lectures, Ting Zhang demonstrates how the dissemination of legal information transformed Chinese law, judicial authority, and popular legal consciousness.

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New Publication: Maria Adele Carrai, “Sovereignty in China: A Genealogy of a Concept since 1840”

Sovereignty in China: A Genealogy of a Concept since 1840

Maria Adele Carrai, Katholieke Universiteit Leuven, Belgium

Cambridge University Press, 2019

Publisher’s Link

https://www.cambridge.org/us/academic/subjects/law/public-international-law/sovereignty-china-genealogy-concept-1840

Publisher’s Description

This book provides a comprehensive history of the emergence and the formation of the concept of sovereignty in China from the year 1840 to the present. It contributes to broadening the history of modern China by looking at the way the notion of sovereignty was gradually articulated by key Chinese intellectuals, diplomats and political figures in the unfolding of the history of international law in China, rehabilitates Chinese agency, and shows how China challenged Western Eurocentric assumptions about the progress of international law. It puts the history of international law in a global perspective, interrogating the widely-held belief of international law as universal order and exploring the ways in which its history is closely anchored to a European experience that fails to take into account how the encounter with other non-European realities has influenced its formation.

Table of Contents

Introduction
1. International law and the sinocentric ritual system: a nineteenth-century clash of normative orders
2. Secularizing a sacred empire: early translations and uses of international law
3. China’s struggle for survival and the new Darwinist conception of international society (1895–1911)
4. China rejoining the world and its fictional sovereignty, 1912–1949
5. From Proletarian revolution to peaceful coexistence: sovereignty in the PRC, 1949–1989
Conclusion

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New Publication: Madeleine Zelin, “A Deep History of Chinese Shareholding”

ISCLH is pleased to share member and board director Madeleine Zelin‘s new publication from Law and History Review. “A Deep History of Chinese Shareholding” explores the cultural and political context that gave rise to the Chinese shareholding tradition in late imperial China. Shifting away from the traditional focus on legal transplantation, this article instead examines indigenous Chinese traditions offering businesspeople “a rich menu of options that could effectively substitute for many of the critical functions of the corporation.” This history of shareholding in late imperial China contributes to the growing research on impersonal investments and transactions in pre-industrial societies and expands scholarly understandings of diverse legal and economic institutions in the era of early capitalism.

Link: https://doi.org/10.1017/S073824801800038X

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New Publication: Max Oidtmann, Forging the Golden Urn: The Qing Empire and the Politics of Reincarnation in Tibet

Forging the Golden Urn: The Qing Empire and the Politics of Reincarnation in Tibet

Max Oidtmann, Georgetown University Qatar

Columbia University Press, 2018

Orders through Columbia’s website are eligible for 30% discount using coupon code CUP30 at checkout.

Publisher’s Description

In 1995, the People’s Republic of China resurrected a Qing-era law mandating that the reincarnations of prominent Tibetan Buddhist monks be identified by drawing lots from a golden urn. The Chinese Communist Party hoped to limit the ability of the Dalai Lama and the Tibetan government-in-exile to independently identify reincarnations. In so doing, they elevated a long-forgotten ceremony into a controversial symbol of Chinese sovereignty in Tibet.

In Forging the Golden Urn, Max Oidtmann ventures into the polyglot world of the Qing empire in search of the origins of the golden urn tradition. He seeks to understand the relationship between the Qing state and its most powerful partner in Inner Asia—the Geluk school of Tibetan Buddhism. Why did the Qianlong emperor invent the golden urn lottery in 1792? What ability did the Qing state have to alter Tibetan religious and political traditions? What did this law mean to Qing rulers, their advisors, and Tibetan Buddhists? Working with both the Manchu-language archives of the empire’s colonial bureaucracy and the chronicles of Tibetan elites, Oidtmann traces how a Chinese bureaucratic technology—a lottery for assigning administrative posts—was exported to the Tibetan and Mongolian regions of the Qing empire and transformed into a ritual for identifying and authenticating reincarnations. Forging the Golden Urn sheds new light on how the empire’s frontier officers grappled with matters of sovereignty, faith, and law and reveals the role that Tibetan elites played in the production of new religious traditions in the context of Qing rule.

Table of Contents

Preface and Acknowledgments
Abbreviations
Introduction
Act I: The Royal Regulations
Act II: Shamanic Colonialism
Act III: Amdowas Speaking in Code
Conclusion: Paradoxes of the Urn and the Limits of Empire
Chronology of Key Events
List of Usages of the Golden Urn Ritual
Tibetan Orthographic Equivalents
Translation of the Qianlong Emperor’s Discourse on Lamas
Notes
Bibliography
Index

For more information:
https://cup.columbia.edu/book/forging-the-golden-urn/9780231545303

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New Publication: Philip Thai, China’s War on Smuggling: Law, Economic Life, and the Making of the Modern State, 1842–1965

China’s War on Smuggling: Law, Economic Life, and the Making of the Modern State, 1842–1965

Philip Thai, Northeastern University

Columbia University Press, 2018

Available at Columbia University Press, Amazon, and independent bookstores. Orders through Columbia’s website are eligible for 30% discount using coupon code THAI or CUP30 at checkout.

Publisher’s Description

Smuggling along the Chinese coast has been a thorn in the side of many regimes. From opium and weapons concealed aboard foreign steamships in the Qing dynasty to nylon stockings and wristwatches trafficked in the People’s Republic, contests between state and smuggler have exerted a surprising but crucial influence on the political economy of modern China. Seeking to consolidate domestic authority and confront foreign challenges, states introduced tighter regulations, higher taxes, and harsher enforcement. These interventions sparked widespread defiance, triggering further coercive measures. Smuggling simultaneously threatened the state’s power while inviting repression that strengthened its authority.

Philip Thai chronicles the vicissitudes of smuggling in modern China—its practice, suppression, and significance—to demonstrate the intimate link between illicit coastal trade and the amplification of state power. China’s War on Smuggling shows that the fight against smuggling was not a simple law enforcement problem but rather an impetus to centralize authority and expand economic controls. The smuggling epidemic gave Chinese states pretext to define legal and illegal behavior, and the resulting constraints on consumption and movement remade everyday life for individuals, merchants, and communities. Drawing from varied sources such as legal cases, customs records, and popular press reports and including diverse perspectives from political leaders, frontline enforcers, organized traffickers, and petty runners, Thai uncovers how different regimes policed maritime trade and the unintended consequences their campaigns unleashed. China’s War on Smuggling traces how defiance and repression redefined state power, offering new insights into modern Chinese social, legal, and economic history.

Table of Contents

Introduction
1. Coastal Commerce and Imperial Legacies: Smuggling and Interdiction in the Treaty Port Legal Order
2. Tariff Autonomy and Economic Control: The Intellectual Lineage of the Smuggling Epidemic
3. State Interventions and Legal Transformations: Asserting Sovereignty in the War on Smuggling
4. Shadow Economies and Popular Anxieties: The Business of Smuggling in Operation and Imagination
5. Economic Blockades and Wartime Trafficking: Clandestine Political Economies Under Competing Sovereignties
6. State Rebuilding and New Smuggling Geographies: Restoring and Evading Economic Controls in Civil War China
7. Old Menace in New China: Symbiotic Economies in the Early People’s Republic
Conclusion
Character List
Notes
Bibliography

For more information:
https://cup.columbia.edu/book/a/9780231185844

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New Publication: “Law in the Mongol and Post-Mongol World: The Case of Yuan China”

Please see below for information on a new article from member Macabe Keliher.

“Law in the Mongol and Post-Mongol World: The Case of Yuan China,” China Review International, volume 32, issue 2 (2018), pp. 107–25

Abstract: This essay takes up the case of one Mongol empire, Yuan China (1271–1368), and in doing so moves to highlight broader Eurasian trends. It looks at the specifics of a long-standing problem in Chinese history on women and law in China’s middle period, and Bettine Birge’s contribution to addressing this problem, especially in her new book on marriage and property law in the Yuan, Marriage and the Law in the Age of Khubilai Khan. The problem goes something like this: from approximately the twelfth to the fifteenth centuries, existing laws and practices in China were challenged and revised, old codes were abrogated, and new understandings of social and political order were  imposed. One of the most reverberating changes was in gender and property relations, where wives and daughters, who had steadily gained more access to property and unilateral divorce in the Song dynasty (960–1279), were subjected to new legal restrictions in the Ming (1368–1644) and Qing dynasties (1636–1912) that gave primacy to the agnate. One of the key questions is what happened and why. Birge’s research shows that the Mongol conquest and subsequent political developments in the Yuan dynasty were instrumental in this transformation.

Link: https://doi.org/10.1017/S0738248017000554

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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

Introduction
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
欽加三品銜補用道泉州府正堂加十級記錄十次徐

欽加五品銜署理晉江縣正堂加十級記錄十次 邱

為出示曉諭事

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

據此查東埔鄉邱姓砌下引后兩房與五房挾仇互爭訟公親等悉心排解使各釋嫌悅服相安無事洵為善舉抄粘議約亦見防微杜漸俱屬可嘉之至除批示將案註銷外合行照抄議約出示曉諭為此示仰東埔鄉諸色人等知悉

爾等務須各照後抄議約逐一遵行永息爭端共獲相安之樂如敢故違一經訪聞或被告發定即嚴行拏办决不寬財各宜凜遵毋違特示

計抄議約于後

一訂口角不准放火放船带刀刺人

一訂挂网舟原議依前聯財

一訂海面網根先泊者當依次而行

一訂披網先到先披若有稅定石盤依舊听稅官掌

一訂焚燬厝屋起盖當依舊修築

一訂看籃須照舊

一訂拾魚若有偷取各房當自約束

一烟館不准聚集匪徒

一不准開賭場及娼間

一不准少年行路相侵

一凡事當問虛寔

一不准請炮師日習打青

一以後、若敢不遵禁約听房長及引東八房請官究办

一公親賠補槩清楚如有小忿先投引東八房一面報明臺郊公親不准急起禍端

一五房邱老芍厝屋听下五西五人等暫行寄居不准當止亦不得折毀木石

光  緒  玖  年  拾  月  廿  五  日  給

Translation
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]

Analysis
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.

 

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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

提督咨送僧人幅山雞姦伊徒何招儿一案。查幅山将年甫十岁之幼徒何招儿哄诱雞姦,即据何招儿供称,先于上年五月业已被人雞姦属实,虽首先诱姦之丐伴姓名住址,何招儿因年幼糊涂不能记忆,而先经被姦之处已据供认确凿,是该犯并非首姦之人尚属可信,似未便照虽和同强律拟以缳首,惟此等雞姦幼童淫徒,若仅以僧道犯姦例加等拟徒,未免情重法轻,应酌减问拟。僧幅山除违例收徒及殴傷何招儿轻罪不议外,应勒令还俗,于姦十二岁以下幼童,照虽和同强绞监侯律上量减一等,杖一百,流三千里,仍尽僧道犯姦本法,于寺门首枷号两个月,何招儿年未及岁,贪图食物被诱雞奸,应免置议。道光四年奉天司现审案

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.

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