Tag Archives: Qing

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:
http://digital.wustl.edu/cgi/t/text/text-idx?c=tru;cc=tru;rgn=main;view=text;idno=tru0006.1696.006

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.”

訊審問杜懷亮你年多少嵗是那裡人

據供小的年二十六嵗是本縣人

又問你如何知道陳文現是二十七嵗爲什麽事將他合你老婆張氏殺死從實説來

又供陳文現自康熙三十一年間搬在小的家住小的合他相厚知道他是二十七嵗他合小的老婆張氏時常眉來眼去的小的心裡疑他沒有實跡待要説他又是醜事今年五月裡呌他搬移他尋了魏寡婦家房子五月初七日搬去了至六月初四日夜間小的拿着一把斧在當院裡睡覺看守牲口小的老婆撩着門在屋裡睡覺有二更天小的聽的屋門像有人推開有掩上的小的悄悄的起來手提着斧子到屋門間站了老大一會聼的屋裡兩個人唧唧噥噥的説話小的一腳跺開屋門見陳文現赤着身子往外跑小的堵住門砍了他一斧子他隨退回炕前去跌倒在地小的趕上又亂砍了幾下子他就死了小的老婆在炕上坐着小的把老婆一頓斧也砍死了呌起[]隣來騐明同來稟報了

又問據李氏狀告你與他丈夫陳文現有嫌呌他丈夫吃酒誆在你家將他殺死恐怕問罪將你老婆殺死埋姦抵賴你怎麽說呢

又供小的與陳文現並沒有仇嫌他原是去姦小的老婆被小的撞見連老婆一併殺死的並不是合他有嫌將他誆去殺死

審問李氏你年多少嵗你丈夫陳文現與杜懷亮有何夙嫌他怎麽將你丈夫誆去殺死從實説來

據供小的今年二十六嵗康熙三十一年間小的同丈夫陳文現搬在杜懷亮家住了三四年今年五月初六日他為孩子合小的吵嚷了初七日小的就搬到魏寡婦家住去了到六月初四日晚上小的丈夫往外走着說往杜懷亮家吃酒去到了他家他不知怎麽將小的丈夫殺死了

又問據杜懷亮供你丈夫原是姦他老婆去被他撞見殺死的你怎麽說是將你丈夫誆去殺死呢

又供杜懷亮原是將小的丈夫誆去殺死的他恐怕問罪假捏姦他老婆希圖抵賴如今只審兩隣就明白了

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.”

審問杜懷亮先審你說在天井裡睡覺陳文現來你屋裡姦你老婆你聽的

屋裡有人說話進屋裡去殺的你既是在天井裡睡覺陳文現走來自然看見他如何還敢進屋去行姦如何還敢在屋裡説話這明是你的謊話你實説是爲甚麽事將陳文現殺死免得受刑

又供不用夾小的實説就是了陳文現合李氏自康熙三十一年間搬到小的家合小的同院住後陳文現雇給魏家做活農忙時候不多囘家來睡覺三十一年八月内做枣的時候不記得日子陳文現沒回家來有一更天李氏往小的屋内掏火去小的見傍邊沒有人拉着他要行姦他依從了在做枣的炕上姦了他以後或在他屋裡或在小的屋裡通姦也不記得遭數了

今年被小的母親看破形踪到五月初六日晌午小的自坡裡割了麦子來家因老婆沒做出飯來把老婆打了兩下子小的母親見小的打老婆就赶着小的打説是李氏唆挑小的駡出淫婦忘八的話來李氏聽見就走到後邊合小的母親吵嚷孫二臣媳婦合杜維元來勸開散了晚上陳文現來家聽説吵嚷打了李氏一頓到初七日早晨陳文現要搬小的呌孫二臣留他說等收割完了搬罷李氏說沒臉面在那裡住就搬去了

小的因與李氏有姦他搬去了不能合他往來時常想念到六月初四日小的邀陳文現吃酒他說白日不得閑晚上我喂飽了牲口往你家吃去罷小的那時想起合他老婆的情來他搬去了走動不得不如趁他晚上來吃酒只説他姦我老婆連我瘸老婆一齊殺了好尋他老婆主意定了囘到家裡將一把斧子放在屋裡等着

將到二更時候陳文現來了小的讓進他屋去在板櫈上坐下拿烟給他吃了見他辭昏昏的小的就拿斧照他頭上砍了一斧他哎哟了一聲跌倒地下小的又連砍了幾下子他就死了小的老婆在炕上睡覺隨即連老婆都砍死了小的娘老子都在後邊住小的到後邊呌起來老子來説陳文現偺家住了三四年搬去罷了還來按我的頭我把他連我媳婦子都殺死了要赴縣投首去小的老子喊呌起杜維元來家看小的向杜維元説陳文現來姦我老婆我把他連我老婆都殺了杜維元説殺了不妨明日報官去天明就同地鄰赴縣投首了這是真情

又問你既殺死陳文現爲何又將自己老婆殺死呢

又供小的合李氏有姦將他丈夫陳文現殺死恐怕問了死罪因老婆是瘸子又醜所以連老婆都殺死好賴是殺死姦夫姦婦希圖脫罪的意思

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.

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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。

道光拾贰年新正月初十日立典字文约人陈德亲笔
中见人:张国富,张老

#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。

道光拾叁年六月初七日
立卖契文约人陈德
中见人:海然

#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.

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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]

循化廳為遵依議規給隆哇、卡加的諭

諭隆哇紅布、卡家千戶知悉:

照得該紅布與卡家,千戶與隆哇相爭三莊案,本府當飭該兩造鄉老公平評議。嗣據議規前來,本府細加更正,庶幾向昭平允,自應依此判斷。除將所斷條規開列於後外,合行諭知,諭到該紅布、千戶等一體遵照。務須依斷行事,永結合好,毋再爭論生非,致幹未便。切切!此諭!

計開議定條規:

一、麻隆每年每家出番鬥青禾一鬥,又共出酥油十五斤,與卡家寺永遠為照;
一、香卡堡每年與卡家寺每年正月作魔難一日;
一、麻隆一莊原屬卡家寺之部落,仍照舊歸卡家管束;
一、卡家當年與香卡出賣過田地五十塊,仍歸卡家寺;
一、香卡灌地渠水由卡家河源放通,仍照舊日澆灌,;每年與卡家寺作魔難一次,言定香卡地內若不灌水,許將渠溝填塞,卡家亦不得要香卡作魔難;
一、唐尕原系隆哇部落,仍歸隆哇照舊管轄;
一、其餘各事仍照舊行事;
一、麻隆帳房放牧卡家之草山,仍照舊牧放;
一、凡縛下投的百姓,仍各歸舊部落;
一、凡隆哇前日焚殺搶掠卡家寺一切東西,仍照舊規補賠卡家。

以上各條若不遵斷定,即嚴懲不貸!

同治十三年二月分府安(6—永久—187)


[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》.

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