pursuing perfection formation of the qing code

Pursuing Perfection: Formation of the Qing CodeAuthor(s): Zheng Qin and Guangyuan ZhouSource: Modern China, Vol. 21, No. 3 (Jul., 1995), pp. 310-344Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/189109Accessed: 23/02/2010 14:18

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available athttp://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unlessyou have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and youmay use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained athttp://www.jstor.org/action/showPublisher?publisherCode=sage.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

Sage Publications, Inc. is collaborating with JSTOR to digitize, preserve and extend access to Modern China.

http://www.jstor.org

http://www.jstor.org/stable/189109?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp

http://www.jstor.org/action/showPublisher?publisherCode=sage

Pursuing Perfection Formation of the Qing Code

ZHENG QIN Chinese University of Political Science and Law

Translated by GUANGYUAN ZHOU

The Qing code had a life of its own. Its evolution from one version to another was a history of pursuing perfection through adaptation, abandonment, adjustment, and re-creation. Over time, the code flourished as a political product, epitomizing the maturity and experience of Chinese monarchic rule over thousands of years. However, political imperatives did not entirely negate rationality in the legal realm. On the surface, we may visualize a group of imperial lawmakers assigned by the emperor to make law, but their work was not completely instrumental. The code was not an amorphous collection of imperial desires, but the product of a long legal tradition, a systematic amalgamation of intellectual achievements and political experience. Al- though the way of pursuing perfection was full of reluctance, tension, and inevitable self-contradiction, the imperial lawmakers seem to have managed to maintain the Qing code as a coherent whole, a well- articulated unit capable of adapting to unanticipated circumstances in the grand imperial tradition.

The constant and tenacious effort of the imperial lawmakers yielded many versions of the Qing code, the most important of which are: (1) Daqing liili jijie fuli (Statutes and Substatutes of the Great Qing with Collected Commentaries and Appended Substatutes; Shunzhi [SZ] 3, 1646), (2) Daqing lii jijie (Statutes of the Great Qing with Collected Commentaries; Yongzheng [YZ] 3, 1725), and (3) Daqing lili (Statutes and Substatutes of the Great Qing; Qianlong [QL] 5, 1740). If the initial code was the first fruit of the Qing lawmaking enter-

prise, the last represented the maturity of dynastic legislation. This article focuses on the above three milestones of Qing codification.

MODERN CHINA, Vol. 21 No. 3, July 1995 310-344 ? 1995 Sage Publications, Inc.

310








310








310








310

Zheng / THE QING CODE 311 Zheng / THE QING CODE 311 Zheng / THE QING CODE 311 Zheng / THE QING CODE 311

THE FIRST QING CODE (1646)

Although the Qing government in general enjoyed a well-deserved reputation for keeping official documents, it lost the first edition of the Shunzhi code. Hence scholars have studied the transitional link from the Ming code not by a direct reading of the first Qing code but through indirect evidence. One piece of such evidence, obviously the most important one, comes from Shen Jiaben, a distinguished jurist of the later Qing, who wrote a postscript to the first code, explaining its genesis, form, and content. Shen admitted, however, that the version in his hands was an amended one, with handwritten portions added during the Kangxi reign (Shen Jiaben, 1929: vol. 8). Even such an amended version is no longer available to us. In searching for "the missing link," the Japanese scholar Takigawa Seijiro claimed in 1939 to have found "the first edition of the Shunzhi code" in a book shop in Beijing (Takigawa, 1939). One of the best studies of the Qing code has been done by another Japanese scholar, Shimada Masao, who casts doubt on Takigawa's discovery. After a painstaking effort of searching for the first edition of the Qing code, however, he modestly admits his failure (Shimada, 1992).

My own investigation of the Qing code has started only of late, and has ranged from work with private collections to holdings in public libraries. Surprisingly, it has not proven that difficult, and I have found two versions that I believe to be either the first edition of the Qing code or the closest version to it. Before I present my "discovery," however, it is necessary for us first to understand how the code was made at the very outset of the Qing dynasty.

BACKGROUND OF THE SHUNZHI 3 CODE

In 1643, one year before Manchu troops took Beijing, the Manchu warrior who had declared himself the first emperor of the Qing, or Qing Taizong, met his demise in Manchuria. His ninth son, Fulin, a little boy at the time, but soon to be known as the Shunzhi emperor, was enthroned, with power actually held by Fulin's uncle, Prince Rui, as imperial regent. Meanwhile, the Ming dynasty was in mortal combat with the great rebellion of Li Zicheng further to the south. As the triumphant rebels finally marched into Beijing, Qing troops seized
















312 MODERN CHINA /JULY 1995 312 MODERN CHINA /JULY 1995 312 MODERN CHINA /JULY 1995 312 MODERN CHINA /JULY 1995

the opportunity to break through the defenses at the Shanhai Pass and marched across the north China plain. Without much resistance from the rebels, the Qing soon took over Beijing and a new dynasty formally began in 1644. The Manchu conquerors believed themselves to be so superior to those they conquered that on the second day after they occupied Beijing, the regent Prince Rui issued an order that all Chinese had to change their hairstyle and dress in accordance with Manchu customs. However, the conquerors also suffered a sense of inferiority before a great civilization, which can be perceived in their ambivalent attitude toward Chinese political institutions and doctrines in general and Chinese law in particular.

Before arriving in Beijing, the Manchus had their own written law, conventionally called Shengjing dingli (Established Regulations of Mukdenhoton). As a collection of various regulations lacking systematic codification, the Shengjing dingli often was referred to by the Qing founders as a simple penal code for the common people. As they put it, "[b]esides decapitation, there is no other form of punishment except whipping," though in practice those found guilty of crimes were also commonly required to pay fines in the form of domestic animals (Shimada, 1992: 463-65). Prince Rui insisted that flogging with a bamboo rod, a traditional Chinese form of punishment, was no longer to be allowed, and whipping, a Manchu form of punishment, should be used instead (Shizong shilu, 1985: vol. 5). Soon the regent was convinced by his high officials that whipping was too simple and lenient to achieve a deterrent effect, and the "five punishments" according to traditional Chinese law should be adopted. Thereafter, other officials in Beijing repeatedly memorialized to the throne, urging the regent to promulgate formal laws to pacify the people and to consolidate the rule of the new dynasty (Shizong shilu, 1985: vols. 5, 7, 8, 14, 15, 16). As a transitional measure of expediency, the law of the Ming was applied before the Qing made its own code.

By the second year of the Shunzhi reign (1645), a special legislative organ called the Commission on Statutes (liiliguan) was established, which was originally staffed by eighteen high officials from the six boards of the central government. This important body became a standing organ of the Qing under the Board of Punishment, with its continuing charge to select significant cases and, with imperial sanction, incorporate them into successive editions of the code. The task











of the body was to "examine the Ming code and carefully make

adjustments in accord with the times" (xiangyi Minglii, canzhen shiyi), which included abrogation of some unsuitable statutes and substatutes of the Ming code and incorporation of some Manchu regulations. Indeed, the process of making the first Qing code was a deliberate one, involving several steps, as a memorial of one codifier, Ganglin, revealed (Ganglin, 1647: juan 1; Shimada, 1992: 475-77):

1. In 1644 and 1645, the president of the Board of Punishment, Wu Dahai, repeatedly received imperial edicts to codify the Qing law. The vice president of the board, Dong Chongya, led a group of seven officials to undertake the first draft.

2. The Grand Scholars, Fan Wencheng, Ganglin, and five other high officials examined the first draft and made the second draft.

3. The vice president of the Board of Punishment, Ti Qiao, and an imperial censor, Fang Kezhuang, led a group of fifteen officials in examining the draft, and several proofreadings were done.

4. The president, Wu Dahai, supervised the secretary of the Board of Punishment in copying the draft....

5. The regent, concerned that nothing improper be in the draft, assigned the Grand Scholar Fan Wencheng and the five other officials to re-examine it.

6. The assigned officials, together with another eight officials, re- ex- amined the draft article by article, and the new draft was copied by another five officials and turned over to the Board of Punishment for the final proofreading.

7. After the board did the proofreading, the final draft was prepared for printing.

8. The final draft was printed in the third month of 1647 and presented to the throne for its final approval. On the twenty-fourth day of the month, the throne approved the code.'

Such deliberation, however, did not bring about a breakthrough in Chinese legislative history. Indeed, the relatively smooth transition from the Ming code to the Qing code needs some explanation. The

Ming code represented the highest legislative achievement in traditional China, making the new rulers reluctant to abandon it. Further- more, the Manchu rulers had already familiarized themselves with the

Ming law and political system before they conquered China. Accord-

ing to Shimada, the translation of the Ming law into Manchu was

accomplished by Wu Dahai in the late 1620s, and the Manchu version















































is still available today (Shimada, 1992: 468-69). The imperial preface to the first Qing code, which was made under the name of the Shunzhi emperor, laid out the principles that were followed in making the law, but its first paragraph also can be read as a justification for the abandonment of Manchu law and the adaptation of Chinese law (Ganglin, 1647: juan 1: la):

I believe that when Taizu [Nurhaci, 1559-1626] and Taizong [Huang Taiji, 1592-1643] founded the dynasty in the east, the people were honest and the law was simple-besides decapitation there was only whipping. Relying on the blessings from Heaven, I now take care of China, a place with a vast population and full of guile. Oftentimes when cases are memorialized [to the throne from officials], it is very trouble- some to decide on a proper punishment which is neither too lenient nor too severe. This is because a code has not been promulgated, thus officials do not have a basis [for making their judgments].

This imperial preface was preserved in various later editions of the Qing code even though the body of the first code was lost. Based on indirect evidence, earlier studies have concluded that the first code of the Qing was very much a refurbished version of the Ming code. Absent the actual document, our knowledge heretofore has been very limited about what, if anything, was new in the first Qing code.

DISCOVERY OF THE FIRST QING CODE

As we have seen, Shen Jiaben, the Qing jurist, was the first to claim to have found the original edition of the first Qing code. In examining the edition, Shen Jiaben found three places that had been amended by replacing the original words with new words. The new contents were identified by Shen Jiaben as new rules made in the tenth and eleventh

years of the Kangxi reign (1662-1722). Hence Shen Jiaben came to the conclusion that "this edition is the original version of the Shunzhi code as amended during the Kangxi period" (Shen Jiaben, 1985: vol. 8). According to Shen Jiaben, the code contained 30 volumes (juan). The

problem with this conclusion is that Shen Jiaben did not mention that the Shunzhi code had been reprinted with revisions in Kangxi 9 (1670), so that one cannot exclude the possibility that the amended version he obtained might have been the revised version of 1670.























Takigawa Seijiro's "discovery" of what he thought was the first version of the code is even more problematic. Takigawa simply did not offer sufficient evidence to back up his claim to have found the original version of the Shunzhi code. Shimada has correctly pointed out that Takigawa did not compare the edition he obtained in a Beijing bookstore in 1937 with the edition discussed by Shen Jiaben. Further- more, Takigawa mentioned that the first code had been annotated in later years, and that Daqing liili zhuzhu guanghui quanshu (The Complete Collection of the Statutes and Substatutes of the Great Qing with Red Commentaries), which was printed in Kangxi 45 (1706), looked much like an annotated version of the code he had obtained. To Shimada, this becomes problematic because the annotated version of 1706 was not based on the first code at all, but on the revised version of 1670. This suggests to me that what Takigawa obtained might be the revised code of 1670 rather than the original edition of the first code.

In Chang Wejen's Zhongguo fazhishi shumu (A Bibliography of Chinese Legal History), one can find the title of the first code with the catalog dating it to Shunzhi 3 (1646). However, this has turned out to be a mistake. When Shimada read the edition in Taibei, he found that it was neither a printed copy nor was it dated Shunzhi 3 (Shimada, 1992: 481).

I recently found two versions of the Qing code and I believe one of them to be the original edition of the first Qing code. One is held by the rare book section of the Beijing Library, and the other by the Beihai branch of the Beijing Library. The two versions bare the same title, which also happens to be precisely the same title as that of the first code of the Qing. The catalog of the version from the rare book section provides the following information: "Compiled by [Qing] Ganglin, et al.; printed by the Inner Palace, Shunzhi 4 (1647); [the contents are] ten ce, 9 columns [to the page] and 20 characters [to the column], with empty margins, and [the text is] encircled on all four sides by double lines." The two versions are exactly the same in content and order, but the styles of the printed characters and the quality of paper are very different, such that this version of the code held by the rare book section seems to have been printed by a private publisher. I tend to believe that the version from the Beihai branch is the official edition











of the first Qing code, because the size of the pages is larger and the quality of paper is better. Both versions contain 30 volumes, but the version from the Beihai branch is not complete, with volumes 7 to 10 missing.

I have two simple reasons for believing that the two versions are the first Qing code. First, both versions contain only one memorial, which was presented by the Grand Scholar Ganglin, who was in charge of the compilation of the first Qing code. If the two versions were revised versions of later reigns, they should contain the memorials of the revisers, as did all the later versions of the Qing code. Second, and most important, in the two versions Ganglin's memorial contains one sentence that had been partially deleted by the compilers of all the later versions of the code. The deleted words are nevertheless most revealing as to the date of the code. The whole passage reads as follows, with the italicized words deleted in all the later versions of the Qing code (Ganglin, 1647: juan 1: 4b):

The president [of the Board of Punishment] Wu Dahai commissioned the secretary [of the Board of Punishment], Jincan, to make a fair copy of the draft to present to the throne. Our emperor and the uncle of our emperor, the prince regent, with profound benevolence and sympathy in their minds, are afraid that should anything improper appear [in the code], it would be difficult [for officials] to comply with, so they commanded Fan Wencheng [and others; names omitted by the translator] to examine [the draft] once again.

In the texts of the two versions, each term-"our emperor" and the "uncle of our emperor, the prince regent"-occupies one column, and each is raised three characters above the rest of the text, which indicates that the "uncle of our emperor" was treated with respect equal to that due the emperor.2 When read in Chinese, the omission does not make the sentence obviously incomplete because one can, based on the linguistic and political context, always make the assump- tion that the subjects of the sentence were the emperor and the regent. But the question is: Why did the subjects of the sentence have to be deleted in all the later codes? The answer lies in the political vicissi- tudes of the regent's position. In the initial years of the Qing dynasty, the regent enjoyed paramount power. In memorials, he was addressed as "the uncle of our emperor" (huangshufu). Further honor was added in the years of Shunzhi 5 (1648) and Shunzhi 6 (1649) when official














documents described him as the "imperial father" (huangfu). Imme- diately after he died at the end of Shunzhi 7 (1650), however, these sorts of lofty honorifics were posthumously removed as charges of "high treason" were lodged against him. Thereafter, venerable titles such as these became politically too sensitive to be mentioned in official documents. Although during the Qianlong period (1736-1795) the regent was absolved of the charge of high treason, the venerable titles never appeared again during the Qing.3 Thus when Ganglin's memorial was incorporated in all the later codes the above phrase had to be omitted. In the original Ganglin memorial the regent was called the "uncle of our emperor," not the "imperial father," which is a clear indication that this edition of the code was printed before Shunzhi 5 (1648) or Shunzhi 6 (1649).

WHAT WAS NEW?

The "Legal Treatise" of the Qing, a portion of the draft history of the Qing compiled from 1914 to 1928, indicated clearly the number of articles and changes made in them in the various editions of the Qing code. However, the Treatise failed to specify the number of articles contained in the first Qing code. It says that based on the 460 statutes of the Ming code of 1397, the Shunzhi code had rearranged two statutes, deleted three, and added one (Qingshigao xingfa zhi, 1977: 4184). Such being the case, it is not difficult for scholars to figure out how many articles were contained in the Shunzhi code. All scholars, without actually counting the number of articles in the code, believed that 458 was the right number. Even Shimada, who casts strong doubt on Takigawa's study, has nonetheless accepted Taki- gawa's calculation based on the version he obtained in the Beijing bookstore. In my opinion, that neither the author of the "Legal Trea- tise" nor Shen Jiaben directly provided the number reflects their lack of confidence in giving a number to something they actually did not count. Takigawa carefully counted the articles, but when he reckoned the number in the code of Shunzhi 3 to be 458, he was actually reading the wrong code. The edition I obtained contained 459 statutes, a figure that was clearly written in the "comprehensive table of contents" (zongmu) of the code. In checking the articles one by one, I found that the codifiers of the Shunzhi code added one article (titled "Hiding new


WHAT WAS NEW?



WHAT WAS NEW?



WHAT WAS NEW?


318 MODERN CHINA / JULY 1995 318 MODERN CHINA / JULY 1995 318 MODERN CHINA / JULY 1995 318 MODERN CHINA / JULY 1995

or old family bond servants who run away from Manchu families," yinni Manzhou taowang xinjiu jiaren) under the section "The family and corvee services."

If other changes in the first code of the Qing are all insignificant insofar as not being particularly distinctive (i.e., they could have been made by Ming lawmakers if the Ming dynasty had lasted longer than it actually did), the same cannot be said regarding this statute; it could

only have been enacted by Manchu rulers. Studies of Qing history have long noted that the Qing founders used draconian measures to

punish runaway family bond servants or domestic slaves (jiaren, or

jianu) and the law prescribed especially severe punishment for those who harbored runaway slaves. We know that even before the Manchus came to rule in China, Taizu had issued several orders and regulations on this matter. However, historians have failed to note that such

prohibitions on runaway slaves and those who harbored them had been

formally incorporated into the first Qing code as a statute. The first

paragraph of the statute reads as follows (Ganglin, 1647: juan 4: 6a):

As for all those who harbor runaway domestic slaves (jiaren) of Manchus, their cases should be reported to the Board of War. When offenders are reported by others, or captured by the victims, or found out by local officials, the persons who harbored [the runaway slaves] (yinni zhizhu), together with the family heads of the offenders' nine neighbors and the household heads of one-hundred neighbors (linyou jiujia, baijia zhang), are all to be arrested. The family property of those who harbor runaway slaves is to be dispatched to the Board of War for assessment and registration. Then, the cases [and the family property of the offenders] are to be turned over to the Board of Punishment. After the cases are tried and the offenses are confirmed [by the Board of Punishment], the Board is to inflict one hundred lashes by whip on the runaway slaves and return them to their owners; the offenders who harbored the runaway slaves are to be decapitated. Should the offenders have little family property, the property will be passed to the slave-owners; should the offenders have plenty of family property, either all of the property or half of it will be given to the slave owners ... [Should the cases initially be reported by others], one-third of the offenders' property, not to exceed approximately one hundred taels, will be given as a reward to the informants. The family heads of the offenders' nine neighbors and of the one hundred neighbors are to receive one hundred lashes with the whip and to be banished to the frontier.





























The statute goes on to prescribe in detail how local and regional officials should be held responsible for, and be subject to, discipline and punishment in connection with cases occurring in their jurisdic- tions, how the household heads of the nine neighbors and of the 100 neighbors should be punished when runaway slaves voluntarily re- turned to their owners, and so on. Overall, the statute reveals how serious the Manchu rulers were about the matter of runaway slaves. Lawmakers in traditional China viewed the statutes as fundamental principles of law, which had been preserved for centuries without much change from dynasty to dynasty. When the codifiers of the Shunzhi code made the matter of runaway slaves into a statute, they determined to make such a prescription a permanent law.

Unlike other crimes, the offense of harboring runaway slaves was dealt with by both the Board of War and the Board of Punishment, with the former playing the policing role and the latter the role of adjudicator. The chief offenders were not runaway slaves themselves, but persons who harbored them. Because statutes in the code were generally viewed as fundamental principles of the law, early Qing lawmakers tried to make the rule of runaway slaves a statute rather than a substatute, indicating that domestic slaves were highly valued by the Manchu elites and that such a coercive system had to be maintained through harsh punishment.

As for the substatutes, the Qing codifiers did not hesitate to make changes. In the section "Terms and General Principles" (minglili), for instance, there were ninety-one substatutes attached to forty-six statutes in the Ming code of 1610, but the Shunzhi code only preserved sixty-four substatutes in the same section. In "Administrative Regu- lations" (zhizhi), the Ming code had twenty-nine substatutes; the Qing increased the number to fifty-seven. Through amending, deleting, adding, and merging of various substatutes, the overall result was an increase in the sheer number of substatutes in the Shunzhi code (449 substatutes in contrast to the 382 found in the Ming code). Because the substatutes actually enjoyed priority over the statutes in daily judicial practice, it does not seem reasonable to view the Shunzhi code as merely a refurbished version of the Ming code. The changes in the Shunzhi code were far from insignificant.4











CAUTION WITH CHANGES

Overall, the legal transition can be seen as a process in which the traditional Chinese legal system conquered the Manchu legal system. Many changes were made largely by incorporating new regulations into the old code system as substatutes rather than by substantially altering the statutes. Even those statutes deemed utterly unsuitable for the Qing political system tended to be kept intact by the lawmakers. For instance, some Ming official terms that did not exist in the Qing were preserved in the Shunzhi code. This is often taken by scholars as evidence of the hastiness and negligence of the early codifiers. How- ever, such a conclusion is baseless if we carefully read the explanations of the early codifiers. Even in the early Kangxi period, lawmakers still felt a need to preserve inapplicable and unsuitable statutes in the code. When one imperial censor, Shen Fushen, pointed out to the Kangxi emperor that the Shunzhi code contained terms for Ming official ranks that should be deleted or corrected, his suggestion was dismissed by the members in the Board of Punishment (Wu Tan, 1991: 89):

In some statutes, there are sentences such as "regional princes (junwang), generals, and lieutenants who personally go to the capital should be punished." Although these are not applicable laws, if we leave them out of the code, we are afraid that later those who try to make the laws through analogy (bizhao dingni zhe) [to these statutes] would have no reference to look for. Therefore, we feel that there is no need to discuss the suggestions in Shen Fushen's memorial.

There was no negligence here. The inapplicable statutes were

preserved for good reason. Such a phenomenon also indicates that even from the very beginning, the Qing rulers increasingly relied on substatutes for judicial practice. Of the ten ce of the Shunzhi code, there was one, called the Da Qing lifu (Appended regulations to the statutes of the great Qing), which in the Ming was separated from the code, but in the Shunzhi code put at the very beginning without

attaching it to any statute. The Da Qing liifu, which contained 360

currently operative regulations, was approved by the throne in 1645. Scholars of Qing law apparently did not know that such a special body of regulations had been formally incorporated into the Shunzhi code, and some even correctly pointed out that these appended regulations were very similar to the Da Ming liifu, which was approved by the























Ming emperor in 1497 (Shimada, 1992: 480). Aside from these special regulations, all other substatutes were appended to the relevant statutes, which was the same as the arrangement of the Ming code.5

Even the title of the Shunzhi code was the same as that of the Ming code of 1610, except for the change in the name of the dynasty. The new code was titled Da Qinglii jijie fuli (Statutes of the Great Qing with Collective Commentaries and Appended Substatutes), and yet there were no "collective commentaries" (jizhu) to be found in it. The codifiers of Shunzhi offered no explanation for this omission. In Shimada's opinion, the codifiers at that time were not ready to compile the "collective commentaries," and the code was not viewed as a body of unchangeable principles (Shimada, 1992: 479). No matter the reasons, keeping the "collective commentaries" in the title could create an ambiance of continuity in the law even if there actually were no such "collective commentaries." It might also indicate that the early codifiers did not give up the idea of incorporating the "collective commentaries" into the code when time permitted.

Besides the "collective commentaries," there were "small commentaries" (xiaozhu) in the Ming code that were printed in small characters and inserted in the texts of statutes to help judges understand and apply the texts properly. In the Shunzhi code, the "small commentaries" were preserved and developed. The difference between the "collective commentaries" and the "small commentaries" was that the former were from various private and official writings, and each comment had an indication of its origin, whereas the latter were written by anonymous codifiers in an informal and ad hoc manner. The "small commentaries" in the codes of previous dynasties, which can be traced back to the Tang, functioned as footnotes to amplify the texts; in the Shunzhi code and late editions of the Qing code, they were further used to explicate the meaning of the sentences. Probably because of the omission of the "collective commentaries," more "small commentaries" appeared in the Shunzhi code than in previous codes. If the "collective commentaries" were important for their jurisprudential value, the "small commentaries" were important for their practical value. In many cases, the "small commentaries" were inseparable parts of the law, and omission of them simply would have made many articles inapplicable.










322 MODERN CHINA/JULY 1995 322 MODERN CHINA/JULY 1995 322 MODERN CHINA/JULY 1995 322 MODERN CHINA/JULY 1995

The legal transition manifested in the codification process was part of the political transition. With the immediate application of the new code, the law not only functioned to maintain social order in the chaos of dynastic transition, but also created a sense of political continuity among the people.6 Although the transition was not smooth, it is not

surprising that the Qing rulers eventually adapted themselves to the

legal tradition of China. It would be unrealistic to expect a legislative breakthrough by Manchu rulers who were eagerly learning things Chinese. It is equally problematic to conclude that the transitional code was merely a replica of the Ming code. With great caution and

diligence, the Qing founders and the imperial lawmakers fashioned

something original and suitable for the new dynasty.

LAW DURING THE KANGXI REIGN

Although there was no special code formulated during the Kangxi reign (1662-1722), this does not mean that the lawmaking effort ceased. As early as Shunzhi 15 (1658), the emperor, at the urging of court officials, selected nine high officials to "collate" the code. The

"collating" work was accomplished in 1660:

The Grand Scholar Jiaoluo Bahana [and four other officials] ... received the imperial edict to collate the code. They examined the Shengjing regulations, the imperial edicts of past years, and newly approved substatutes of boards and provincial governments (buyuan yamen tiaoli), to sort out which should be incorporated into the code ... Then, they made six ce of fine copies in both Chinese and Manchu, and presented the copies to the throne for the emperor's approval. [Qingshilu, 1985: vol. 134]

This would have been another version of the Shunzhi code if it had been promulgated by the throne. Soon, however, the Shunzhi emperor died and the Kangxi emperor was enthroned in 1662. Instead of

revising the code, the Kangxi emperor initially paid much attention to the growth of ad hoc regulations in the central and provincial governments, especially the operative regulations of the Board of Punish- ment. These regulations were initially suggested or requested by high officials to cope with their daily problems and approved by the throne



































as a special category of substatutes. Because they were not systematically examined by imperial lawmakers and not incorporated into the code, they were called Xianxing zeli (Substatutes currently operative), which is to say that besides the code there was also a body of operative substatutes in the Kangxi reign.

THE EMERGENCE OF OPERATIVE SUBSTATUTES

The volatile character and rapid growth of the newly promulgated substatutes prompted the Kangxi emperor to try to control them. In

Kangxi 7 (1668), the emperor commanded the Board of Punishment to sort out the Xianxing zeli. From then on, much of the work of the Kangxi lawmakers focused on the operative substatutes. Generally, the object of the sorting-out work was to reduce both the volume and severity of the operative substatutes. The guiding principles were stated clearly in an imperial edict of Kangxi 18 (1679), which is a famous edict found in later editions of the Qing code as well as in many other official documents (Wu Tan, 1991: 3):

The dynasty (guojia) establishes the law to prohibit violence and suppress the evil, and to protect and pacify the good. Hence, depending on changing situations, the law can be either complex or simple, so long as it corresponds to the benevolent intent of the ancient emperors and kings. ... Formally, because the growth of dishonesty among the people has led them to be contemptuous of the law, and because some ruthless brigands often bully the little people, we have promulgated stern substatutes besides the established statutes.

With this edict, the emperor showed his dissatisfaction with the general tendency in new substatutes, which were too many in number and too severe in the punishments prescribed. In an effort to temper such unwanted tendencies, however, his edict gave some leeway to another tendency, that is, the separation of the operative substatutes from the formal law code. Under his command, the imperial lawmakers produced a separate body of law called Xingbu xianxing zeli (1679), or Substatutes Currently Operative for the Board of Punish- ment, which was completed in the fourth month of the next year. For many years, however, this portion of the law was no longer extant as a separate body of law. Although it had been incorporated into some




















other collections, scholars have not paid attention to it for some reason. My study of the Xianxing zeli (hereafter, XXZL) is based on the

separate edition that I recently found.

CONTENT AND FEATURES OF THE XIANXING ZELI

The copy that I obtained recently is from the private collection of the well-known late Qing jurist, Shen Jiaben.7 The copy contains 264 substatutes, which are arranged exactly in the same order as in the Shunzhi code, that is, the articles titled "Terms and General Princi- ples" come first, and all other articles are divided into six sections corresponding to the six boards. What is different is that in the code the substatutes do not have titles of their own because they were appended to the relevant statutes, whereas in the XXZL, probably because there are no statutes to be appended to, each substatute has a title. The content of these substatutes reveals several features that differ from the Shunzhi code.

First, because these substatutes were all generated directly from the legal practice of the early Qing, they were essentially practical, designed for solving the specific problems that arose newly during the daily operation of the law. One set of rules was about how to deal with lawsuits and crimes in which bannermen were involved. For instance, banishments and military exiles, when given as sentences to bannermen, were to be commuted to wearing the cangue. When the relatively small number of Manchus conquered and ruled China, each banner- man, even if he was a criminal, represented an important contribution to Qing military strength. There were also specific rules about the debts of bannermen, about those Chinese who had property but sold themselves to bannermen for self-protection or to be in a better position to bully others, and so on.

Another set of rules dealt with trade of domestic slaves (nubi), a direct reflection of the degree to which the business flourished. Issues, such as who was allowed to buy domestic slaves and who was not, what procedures and documents were to be completed in selling and

buying, how to deal with the wives and children of those who sold themselves to others, and under what conditions domestic slaves could convert themselves legally into commoners, became legal ones. Such























rules clearly indicate how close the law was to real social conditions during the Qing.

There were a few rules designed specifically to deal with minorities of the Northwest as well as the remnant forces of Zheng Chenggong and his successors who still occupied Taiwan. Thus Tibetan Buddhism enjoyed a better position than in previous dynasties, and rules regarding lamas residing in Beijing and their crimes were prescribed.

The rules in the XXZL were not only practical but also inevitable from the Qing ruler's point of view. Nothing illustrates more clearly than the proliferation of such operative substatutes that Qing law was increasingly gaining its own distinctive character during the Kangxi period. The process of making new rules, however, was one of trial and error.

Second, the substatutes in the XXZL represented the Kangxi emperor's intention to reduce the severity of punishment. What clarifies this is the extension of amnesty and commutation of punishment of the convicted. Those sentenced to military exile, temporary banishment, or flogging with the heavy bamboo because of involvement in robberies or murders now could be entitled to potential imperial pardon. When offenders who had been involved in rebellions or high treason died, their wives were now absolved from being banished to the frontier. The rules of commutation in the code, which usually meant that the convicted had to pay a certain amount of cash to be absolved of physical punishment, were rather rigid. It seemed that the XXZL not only extended the scope of commutation, but also may have allowed more discretion for judges in granting it.

The important statute of "harboring runaway domestic slaves" in the Shunzhi code was modified in the XXZL. The statute, we should recall, meant the death penalty for individuals who harbored runaway slaves, required collective responsibility for the act by nine immediate neighbors of the offenders, and provided a handsome reward for informers. Such a rule, as one can imagine, could have been easily abused by someone who falsely accused people of harboring runaway slaves to extort money. The rule in the XXZL did not change the statute, but clearly stated that false accusers deserved immediate decapitation. This is just one example in which one rule invited other rules to be enacted to modify or guarantee its implementation.

















Third, certain important legal institutions were established through some rules in the XXZL. Not only did the XXZL institutionalize certain legal practices such as the reprieve of penalties in the first month and in the sixth month, but also for the first time it fully institutionalized the practice of Autumn Assizes and Court Assizes. Although one can find the infant form of the two types of Assizes in the Ming code, only in the Kangxi period did they become full-fledged grand ceremonies. A number of rules regarding Autumn Assizes can be found in the section of the XXZL titled "Terms and General Principles" and in a subsection titled "Trial and Imprisonment." It became the formal law that every year all governors were to report capital crimes to the throne within fixed time limits; that the Board of Punishment and some other organs of the central government were to examine these important cases and make provisional decisions; and that a large group of high officials in the central government was to participate in the grand ceremony at the northwest corer of Tian'anmen Square for receiving the final sanction of the emperor. It is no exaggeration to say that the formalization of the Autumn Assize through legislation in the Kangxi period represents a significant development in traditional Chinese legal history.

DIVISION OR INTEGRATION?

The above discussion also reveals the problem of the proliferation of operative substatutes with which Qing rulers had to deal. The XXZL were an amalgamation of three sources: the previous Shengjing regulations, imperial edicts, and precedents reported from below and approved by the throne. Hence the body of the XXZL was constantly growing as new imperial edicts and new precedents were added. For instance, in Kangxi 47 (1708) and Kangxi 61 (1722) the Commission on Statutes produced 115 new substatutes.8

Parallel to the proliferation of the operative substatutes was an effort to modify the Shunzhi code. The effort was galvanized through the translation of the Chinese version of the code into Manchu. Although the translation was completed in Shunzhi 3 (1646) and the Manchu version published in Shunzhi 12 (1655), the codifiers of the Kangxi period were never satisfied with the Manchu version. In













Zheng /THE QING CODE 327 Zheng /THE QING CODE 327 Zheng /THE QING CODE 327 Zheng /THE QING CODE 327

checking the translation for errors, however, they also found problems in the original Chinese version of the Shunzhi code. What the codifiers did early in the Kangxi reign was not only to correct errors in both the Chinese version and the Manchu version, but also to translate the "small commentaries" into Manchu, which obviously had not been done before (Wu Tan, 1991 [1886]: 8). The project soon expanded to integrate the separate body of the XXZL into the code and to provide "collective commentaries" for the statutes, which took eighteen years to accomplish.

The parallel development of the XXZL and the code finally reached a point in Kangxi 28 (1689) at which the imperial lawmakers could no longer tolerate the division of the law into two separate bodies. The independent development of the operative substatutes had caused too much trouble in its overlap and contradictions with the code. Further- more, legal practice, after a period of trial and error, had enabled the lawmakers to make an overall adjustment based on practical feedback. Therefore, when an imperial censor, Shen Fushen, made the point in 1689 that the two bodies of the law must be integrated, the suggestion was well taken by the throne and other lawmakers. The project was time-consuming because it was not simply a matter of appending the operative substatutes of the XXZL to the relevant statutes in the code, but of systematically weighing each article and incorporating the divergent and overlapping rules into an articulate body of law. More- over, to provide the "collective commentaries" in the code, which had not been done in the Shunzhi code, was also time-consuming work involving systematic research and examination of various private and official opinions and annotations made previously. When the first draft of the new code was finished and presented to the throne in Kangxi 34 (1695), the Commission move on Statutes only appended the "collective commentaries" to the section "Terms and General Principles." After the emperor approved the new form of the code in Kangxi 36 (1697), it took the codifiers another ten years to accomplish the whole work, in which "collective commentaries" were appended to all statutes.9

The new draft, written in both Chinese and Manchu and containing forty-two ce, was presented to the throne in Kangxi 46 (1707) (Wu Tan, 1886: 8-11; Shimada, 1992: 492-96). For reasons we may never know, the emperor, in his remaining years on the throne, did not issue











an order to promulgate the code, but "held it for examination" (liulan weifa). However, the project was not undertaken in vain, as we shall see in an examination of the new code of the early Yongzheng period.

THE CODE OF YONGZHENG 3

The lengthy reign of the Kangxi emperor ended in 1722. The new emperor, Yongzheng, seems to have been as eager as the imperial codifiers to put the previous draft of the code, which had been held up for more than ten years, into print. The enterprise, however, was more than simply printing the draft, because more than 100 new substatutes had been enacted after the draft was completed in Kangxi 46 (1707), all of which also had to be examined and incorporated into the new code. With urgings from high officials, the Yongzheng emperor, in his first year of rule (1723), reorganized the personnel of the Commission on Statutes for undertaking the work of revision. Based on the previous work of the Kangxi codifiers, it only took two years for the new Commission on Statutes to accomplish their task. Like the Shunzhi code, the new code was divided into thirty volumes and seven sections. However, the number of the statutes was changed-through omitting, merging, and creating certain statutes-from 459 to 436, which re- mained the number of statutes through all later editions of the Qing code. There were 824 substatutes appended to the statutes, marked as

"original substatutes" (321), "newly enacted substatutes" (299), and

"imperially approved substatutes" (204). By any standard, this revision was a significant landmark in Qing legislative history.

THE COLLECTIVE COMMENTARIES

Scholars in traditional China maintained a long tradition of inter-

preting and expounding the legal code. In the Han, Confucian scholars worked on the code in exactly the same way that they worked on the Confucian classics, with each article expounded in the spirit of Con- fucianism. In consequence, more than seven million words of anno- tation were produced by more than ten scholars working individually (Jinshu, vol. 30: Xingfazhi). After the Tang code was promulgated,


























the Gaozong emperor (reigned 650-655) commanded Changsun Wuji and other officials to annotate the code. In the Ming dynasty, in addition to official annotations, private annotations also flourished. Ming scholars like Lei Menglin, Wang Qiao, and Wang Kentang were well known during the Qing for their influential annotations of the code. Private commentaries, when appended to the statutes, were meant to clarify potential confusion in the meaning of the law, and to produce a standard understanding of statutes among legal practitioners.

In earlier dynasties, private and official annotations were done after the codes had been promulgated. At least in theory, they were not part of the law. What happened in the Yongzheng code, however, was that the "collective commentaries" were published together with statutes- with legal effect naturally being attached to them. One example might be sufficient to show the legal force of the commentaries. In the statute titled "Sons or grandsons disobeying the commands of parents or grandparents," disobedient children, or those who failed to provide for their parents or grandparents, were to be punished by 100 blows of the heavy bamboo. A commentary appended to this statute, which was much longer than the statute proper, went as follows (Daqinglii jijie, 1725: juan 22):

This is to establish the law in order to teach filial piety (jiaoxiao). The instructions of one's parents and grandparents should not be disobeyed recklessly. Violations of these prescriptions indicate deficiency in filial piety, and for that reason, the punishment is 100 blows of the heavy bamboo (manzhang). But the charges can be established only when the grandparents or parents personally make complaints.

Thus the commentary included several crucial aspects of the law, ranging from legislative purpose to jurisprudence and from punishment to procedure. The last sentence was indispensable in terms of enforcement because such a procedural rule was not present in the statute itself. "Collective commentaries" like this one were very different from the "small commentaries," which were printed inter- linearly (between words and/or phrases of statutes) or immediately after statutes in small characters. The functions of these "small commentaries" were mainly to articulate better the sentences and phrases or to explicate special terms in the texts. The Qing lawmakers were














not unanimous about whether the "collective commentaries" should be incorporated into the law. When the "collective commentaries" had been officially standardized and thus functioned as part and parcel of the law as in the Yongzheng code, they themselves needed to be further commented on or annotated. Any imperfections in the formal articles also affected the commentaries. As we will see later, the "collective commentaries" were completely eliminated from the code during the Qianlong period.

LEGALIZATION OF CURRENT IMPERIAL POLICIES

The triumph of the Yongzheng codifiers was the integration of the operative substatutes into the code, a work that had begun in the Kangxi period. The 824 operative substatutes were sorted out into three categories: (1) the 321 original substatutes (yuanli) that were already in the code, (2) the 299 newly added substatutes (zengli) that were contained in the zeli of the Kangxi period as a separate body, and (3) the 204 imperially approved substatutes (qindingli) that were derived from imperial edicts and the memorials of high officials. The imperially approved substatutes deserve our special attention because it was through these substatutes that some important imperial policies were made into law.

One such important policy was tanding rudi (merging the poll tax into the land tax), a well-known policy with far-reaching conse- quences for the socioeconomic history of the Qing. The policy was initiated by the Kangxi emperor in 1712, with the poll tax (or head tax, as it is sometimes called) on adult males fixed once and for all, and to be collected together with the land tax. From that time forward, no additional poll taxes would be levied on an increasing population. For the policy to be carried out properly, the Yongzheng lawmakers wrote a substatute into the code that required provincial governments to report yearly on additions to the population, and local officials who illegally imposed taxes on this portion of the population or who extorted money during registration procedures were to be impeached and disciplined by the provincial governments. This substatute shows the desire of the Yongzheng emperor to implement the new taxation policy, a situation that led to the inability later to augment an increasingly inadequate imperial budget.














Another policy of the Yongzheng reign that was made into law was the "emancipation of the mean people" (kaihuojianji). Such a policy enabled those legally classified as "mean people" (jianmin), such as domestic slaves, entertainers, layabouts (duomin), and beggars, to convert their status into "common people" (liangmin) under certain conditions. In the Yongzheng code, there were two substatutes in the subsection titled huyi (family and corvee services), guaranteeing that the policy be enforced properly.

Finally, "changing tribal chiefs to regular officials," or gaitu guiliu, which was applied to minorities of the southwest frontier, was another well-known policy of the Qing. The policy was laid out first to force the aboriginal authorities to convert themselves into local officials of the Qing so that local people might be brought more effectively under Qing rule. Some substatutes were then made to consolidate the con- version, which required people to be registered with local governments and which permitted no one to move from their place of origin.

The term "legalization of imperial policies" did not mean to convert directly certain policies into law, but rather to devise rules to guarantee the implementation of the policies in question. This was so because the policies were to tell the people and officials what they should do, whereas the law had to be phrased in penal terms to prevent violations of such policies. Like all statutes and substatutes, the language of the above substatutes was addressed directly to the legal officials, not to the wrongdoers themselves, instructing them on how to handle or to punish those who committed misdeeds against government policies. It was also common for certain statutes and substatutes to be policies in their own right. For instance, the rules against subversive language might be viewed as a kind of cultural policy of the Qing state.

From the Kangxi to the Yongzheng periods, the codifiers took further steps to accomplish the tremendous transition from the law of the Ming to the law of the Qing. At the heart of the lawmaking enterprise was how to maintain the law as a coherent whole with its own logic and rationality in facing an infinite range of effects from the political realm. The lengthy and relatively tranquil rule of the Kangxi emperor seems to have allowed for the full play of his political program through the operation of a separate body of law, namely the XXZL. The Yongzheng emperor also had few qualms about changing his policies into substatutes. However, the lawmakers also never














ceased refining the code. The statutes had to be annotated to keep the old text alive in new context; the separate body of the substatutes had to be incorporated into the code if the government were not to be guided only by shortsighted political expediency; all substatutes had to be weighed against corresponding statutes lest tradition were to be lost; and all articles in the code had to be systematically examined to keep the code a consistent and coherent whole. This meant that although judicial issues, imperial edicts, and current policies were the main sources of legislation, not all of them could be incorporated into the code simultaneously. When statutes were regarded as fundamental guiding principles, they must have restrained day-to-day political influence in the lawmaking process, at least to a certain extent, even though they themselves might once have been political in nature.

THE QIANLONG CODE. SETTING THE STANDARDS

At the beginning of Qianlong reign, imperial lawmakers were ready to put on a new version of an old play. One high official initially made a suggestion to the new emperor to modify the code of the Yongzheng reign. When the new emperor approved the suggestion and at his request, a conference was held among the highest officials of the central government to discuss the issues for revision. A special team was selected to form a new Statute Commission, which eventually produced a new code that was approved by the emperor. The work of the codifiers also seemed to have been a replay of previous events, with substatutes being modified and statutes remaining intact. The new code, which was completed in Qianlong 5 (1740), contained forty-seven volumes, 436 statutes, and 1,049 substatutes.

The changes seemed inevitable. Based on the "Guiding Notes" (fanli) of the code, Shimada has contributed a lucid description of some of the changes contained in the new code (Shimada, 1992: 507-10). First, it kept the "small commentaries" but omitted all the "collective commentaries." The latter were cut because "while intend- ing to explicate the texts, they are apt to produce [unwanted] ramifi- cations; or the meanings of some texts are sufficiently clear, leaving no need for the commentaries." The small commentaries were pre-














served because they could "explain difficult meanings and make up for deficiencies of the sentences." Some commentaries were deemed indispensable for the application of the statutes, but they were made into independent substatutes. Because there were no "collective commentaries" attached to the statutes, the new code was simply titled "The Statutes and Substatutes of the Great Qing," or Daqing lili (San Tai, 1740). Such principles of organization were followed in all the new codes to come. Second, as in previous codes, imperial edicts often were attached to relevant statutes and substatutes as part of the code. In the new code, some edicts were rephrased into substatutes, and others, which merely contained criticisms or admonishments by emperors, were left out of the code. Third, in the previous Yongzheng code the substatutes were arranged chronologically into three categories, a form of organization deemed inconvenient by the new codifiers who wanted to arrange the substatutes according to their contents. Thus the new code did not identify the substatutes as "original," "newly added," or "currently operative," but appended all substatutes to their corresponding or relevant statutes. Fourth, because the Board of Punishment and the Board of War already had their own disciplinary regulations for officials, the new code no longer contained such items. Fifth, the new code also contained a table of commutations for those who accidentally killed or wounded others.

All of these changes set new standards for later versions of the code. The emphasis was now on the intrinsic rationality of the code. More than refining the code itself, the lawmakers of the Qianlong period also contributed a new standard for future revisions. During and after the Qianlong reign, periodic revisions of the code became institutionalized, and before each revision at fixed periods a body of new substatutes called tongxing tiaoli (generally operative substatutes) would be printed in such a format that they could be easily attached to the code. The tongxing tiaoli were sorted out and examined carefully to determine whether they should be incorporated into the code as part of the routine future revision.

However important these changes were, not all of them were considered new absolute standards by later codifiers. The number of volumes in the code had increased from thirty to forty-seven, but this increase was due mostly to rearrangement and redivision of the old











texts. For instance, in the previous codes, the table of contents and the lists of punishments, commutations, types of mourning clothes, and so forth were contained in one volume; in the Qianlong code, they were divided into three volumes. Also in the Qianlong code, there were six volumes of "general categories" (zonglei). These "general categories" were actually a list of the number of statutes and substatutes in each of the five categories of punishment. For example, the list shows that there were 732 articles that required punishment by flogging with the heavy bamboo, 378 that called for temporary banishment, 103 that called for immediate decapitation, seventeen that required death by slicing, and so forth. Such a rearrangement reinforces the impression of contemporary scholars that the code was primarily a system of penal law. The six volumes of the "general categories" had already been compiled during the Yongzheng period, but were appended to the text of the code proper and were not part of the code itself. Whereas the Qianlong codifiers integrated the six volumes of "general categories" into the law, later codifiers once again chose to leave them out, probably because in practice judges had found it difficult to search through all the possible punishments first, to find a proper category of crime for a case.

Another standard that was not completely accepted by later codifiers was the standard of analogy. In the last volume of the Qianlong code, there were thirty examples of cases, called bifu lutiao (statutes for analogy), demonstrating to legal officials how judgment by analogy should be accomplished. For instance, when a betrothed couple had sexual intercourse before marriage and because there was no rule in the code to cover such misconduct, legal officials were to judge the case by turning to the statute titled, "Children and grandchildren disobeying the commands [of their parents or grandparents]," in which the punishment was to be 100 blows of the heavy bamboo. Similarly, when an official lost the key to the city gate, this misdeed should be seen as analogous to losing an official seal; and when a soldier raped the wife of a superior officer, this act should be deemed analogous to the crime of a domestic slave or a hired laborer raping the wife of his overlord or employer. There was no theoretical or general discussion about the principles of analogy, but the codifiers included a brief account at the beginning of these examples: "Judgments should be








made by analogy when no appropriate article is to be found in the code. The cases listed below are just some examples. All cases [subject to analogy] should be handled in a similar manner."

Before the Qianlong period, legal authorities were very cautious about judgment by analogy, and examples of analogy had never been part of the code. Analogy had to be controlled tightly because unfet- tered it would have allowed judges too much discretionary power, and could have led to decisions that violated the spirit of the legislation. Although in the Qianlong period cases of analogy still had to be seriously examined by the Board of Punishment and by the emperor, the fact that examples of analogy were formally incorporated into the code probably encouraged legal practitioners to resort to analogy more often in their adjudication.

The scope of analogy was not restricted within the written rules. In practice, relying on analogy using established cases as precedents became more widespread during and after the Qianlong period. A substatute of Qianlong 3 (1738) sternly forbade making judgments through adducing precedents, and the substatute was even incorporated in the code of Qianlong 5 (1740). In Qianlong 8 (1743), however, an imperial censor, Wang Ke, put forward his justification for adducing precedents in judgments. His suggestion was discussed by the Board of Punishment and approved by the emperor, which allowed judges to use precedents in their adjudication (Daqing huidian shili, juan 852: 15678). Such being the case, collections of various well- established cases began to accumulate during and after the Qianlong period. Although statutory law was still dominant throughout the Qing, one should not ignore this growing tendency toward the practice of case law.

If the compiling of established cases reveals how responsive legal practitioners were to imperial decisions on various cases, then the proliferation of substatutes indicates how responsive lawmakers were to problems arising from judicial practice. How were legislative and judicial practice related? Materials surviving from the Qianlong period provide some concrete examples for understanding this important question. As I have mentioned before, newly approved substatutes were printed and distributed to judges during intervals between periodic revisions of the code. Before revision, all of these substatutes














would be compiled by the codifiers for examination. I recently obtained a copy of some substatutes dated Qianlong 60 (1790) and titled Chuanxiu tiaoli, or "substatutes subject to revision." The copy, which was covered with yellow silk and written in beautiful calligraphy, must have been made for the emperor to read. For our purposes, the most important aspect of this manuscript was that under each substatute the codifiers offered detailed explanations about the genesis of the substatute, comments of the Board of Punishment, and opinions of the emperor. The manuscript is incomplete, and only eleven substatutes survive. I would like to use two of them to discuss how lawmaking and judicial practice were connected.

CASE 1: CAPITAL OFFENDERS REMAINING AT HOME TO CARE FOR THEIR PARENTS

During the Qing, murder was a capital offense. However, if the murderer was a single son who cared for his grandparents or parents, he could be granted "extra-legal benevolence" (fawai zhiren), which meant that he could have the death penalty commuted by paying a fine so that he could remain at home to care for his parents or grandparents. Such a Confucian twist to the law, however, involved some sophisti- cated legal problems in practice: How to deal with cases in which two brothers, with parents to take care of, committed a capital offense, and how to deal with cases in which both the murderer and his victim were single sons having parents or grandparents for whom to care. There were twenty substatutes in the code to cover a variety of cases. For instance, in a statute of the code of Yongzheng 3 it was prescribed that a single son who killed another single son was not entitled to the privilege of remaining at home even if he had parents or grandparents for whom to care.

A peculiar circumstance in a case of Qianlong 54 (1789) appeared to challenge the thinking of legal authorities on these types of cases. In this case, two single sons in Zhili province, Chen Xiang and Piao

Zhong, were presumed to have killed a criminal named Han Wancheng, who also happened to be a single son. The governor of Zhili reported this case to the Board of Punishment, saying that because no rules could be found to govern this case, it might be proper to wait for
















Zheng /THE QING CODE 337 Zheng /THE QING CODE 337 Zheng /THE QING CODE 337 Zheng /THE QING CODE 337

discussion and a decision by the board. One paragraph in the commen-

tary of the board spoke clearly about how the board made its decision and how the decision subsequently became a new substatute and was

approved by the throne:

Upon examination, [this board has found that] as for offenders who fall in the category of "single sons remaining at home," one substatute requires judges to verify that the victim was also a single son. But this substatute exclusively refers to an incident in which an innocent person [a single son] was killed. If a killing occurs in which the [single son] killed was also a criminal, the case should be treated differently than ones in which innocent persons are killed. After the board discussed this case, we suggested to the governor that he consider that both Chen Xiang and Piao Zhong were single sons with parents to care for, and recommended that at the time of the Autumn Assize, the case be concluded and reported to this board according to the substatute [of single-son offenders remaining at home]. [The board also recommended] that a memorial be sent to the throne requesting [that the two offenders] be allowed to remain at home. Now, the record shows that the case was approved by imperial edict [according to the above recommendations of the board and the request of the provincial gover- nor], and we should incorporate this case into the code and act on it.

Although the above does not tell us anything about how the local court responded to the case, it should be clear that the magistrate of that local court was the first man who encountered the problem. The

governor in this case was merely an intermediary agent between lawmakers at the top and judicial practitioners at the local level. From the later revision of the Qianlong code, we can see that this substatute was indeed formally enacted exactly as suggested in this manuscript. The case conveys the impression that it was nearly impossible for lawmakers not to give a definitive answer to adjudicators who encountered judicial difficulties and waited for resolution from above. It was also quite possible for lawmakers to seize the opportunity to create a substatute when they perceived that a difficult case had universal value. However, not all substatutes were formulated as well as this one. The next example gives us some idea of potential difficulties in the formation of substatutes and the process of interaction between lawmakers and legal practitioners.




















CASE 2: LOOT AND PROPERTY OF THIEVES AND ROBBERS

Of the eleven proposed substatutes surviving in the manuscript, one was phrased as follows:

In all cases related to thieves (qiedao), [local officials are] to expropriate all the property (zicai shiwu) of the offenders and allocate it to the victims. As for robbery (daojie), there are cases in which the offenders were captured but the stolen property was not recovered. If the stolen goods were less than one hundred taels in value, the local official [in question] was required fully to recompense the victims. If [the stolen goods] were valued at several hundreds or thousands of taels, the local official was to pay ten to twenty percent of their value.

This substatute was formally incorporated into the code; however, we may find some difficulty in interpreting its meaning. In cases of theft, local courts usually were required to recover the stolen property, not to expropriate all of the offenders' property and allocate it to the victims. We may wonder how realistic it was for a local court to turn over all of an offender's property to his victim. Moreover, the two parts of the substatute were not well articulated, dealing as they did with two completely different issues: (1) to expropriate offenders' property and (2) to force local courts to repay victims for their stolen goods. How could these two unrelated matters be put into one substatute? In reading the surviving manuscript, we understand that this substatute was actually cobbled together by considering the outcomes of several cases.

In Qianlong 57 (1792), a case of murder for money was discovered in Zhili province, but the offender had spent most of his loot. The governor and the Board of Punishment suggested to the throne that the wagon and horses of the offender be expropriated and allocated to the local government, but the emperor felt sympathy for the victim's family. Instead of being too "stingy," he decided that the wagon and horses should be turned over to the victim's family. This was the genesis of the first part of the substatute, with the concrete items in question, a wagon and horses, being converted into "all property."

The genesis of the second part of the substatute was more compli- cated. First, in Qianlong 55 (1790) a bank robber was apprehended in Zhili province, but the loot was not recovered. The emperor was outraged: "From now on, in cases of robbery in all provinces, if the




















stolen property is not recovered, local magistrates are to pay the victims for their losses." Hence a substatute was created because of the emperor's anger. The emperor did not make his point clearly, however, and the order apparently was interpreted too literally by judges. When robbers were not captured and magistrates were held liable for the victims' losses, the victims might report more than they lost. Magistrates also might try to conceal robbery cases, fearful that they would have to pay for the victims' losses. During the next year, when a governor-general raised questions about the difficulty of enforcing this rule, the Qianlong emperor had to clarify his position by saying that his order referred exclusively to cases in which the offenders were captured but the stolen property was not recovered, and did not apply to all robbery cases.

In Qianlong 58 (1793), however, a huge robbery case was discovered in Shanxi province. The problem for the magistrate in question was that he was not able either to recover the stolen property or to pay as large a sum as had been lost. When the case was reported to the emperor, he once again modified his position by saying that it was certainly impossible for local magistrates to pay for all losses of victims of robbery in which robbers were captured but the stolen goods not recovered, and that such an unrealistic requirement might encour- age victims to exaggerate their losses. Moreover, he continued, victims who lost thousands of taels must be rich merchants, so that even if their lost property was not recovered, "their livelihood could not be affected very much." Therefore, he decided that if the stolen property was less than 100 taels in value, magistrates were to pay the whole amount to the victim; above that sum, however, magistrates were to pay only 10% to 20% of the value. After working through several cases, imperial lawmakers finally made the substatute.

This example once again suggests that there was a connection between judicial practice at the local level and lawmaking at the top, but the interaction between them in this case was hasty and careless. The codifiers seem to have lost their wisdom at one point, and simply followed the angry remarks of the emperor.

As for the local magistrates, their response to the rule was sluggish. As the substatute evolved over several years, only one magistrate expressed difficulty in following the rule. We have no idea why this














magistrate raised the issue at all, but we can be sure that not all other magistrates followed the rule. Within the budgets of local governments, which were always tight, there were no funds allocated for magistrates to pay for the recompense of stolen goods. Even for model magistrates, paying for local people's lost goods was probably un- thinkable. Thus they might interpret the rule as a warning, but they could not possibly have followed it; nor did they speak openly of difficulties they experienced in trying to follow it. Feedback to lawmakers on this particular rule was thus blocked.

Through these two examples, we certainly cannot generalize very much about the Qing lawmaking process. They serve merely to reveal some possibilities and problems in communication between lawmakers and those who applied the law. It should be clear to us now that Qing lawmakers did not shut themselves in an ivory tower to make the law for the emperor. Rather, they were responsive to real issues that arose in the course of judicial reality, even though their responses were not always smooth and adept. As a matter of fact, that the lawmakers responded at all seems to have provided ways for the code to grow and become more refined. At the beginning of the Qianlong period, the code was revised every three years. Soon, the convention of one small revision every five years and one big revision every ten years was adopted. From Qianlong 8 (1743) to Xianfeng 2 (1852), a

period of 110 years, the code was revised twenty-two times at five-

year intervals. The disturbance of the Taiping Rebellion suspended revision work for eighteen years until Tongzhi 9 (1870), the date of the last revision. More revisions resulted in more substatutes. From Qianlong 5 (1740) to Qianlong 26 (1761), the number of substatutes was increased from 1,049 to 1,456. In the revision of Tongzhi 9 (1870), the number further increased to 1,892. From the Shunzhi period to the Qianlong period, the Qing code reached maturity, and the law became well integrated into the Qing political system.

CONCLUSION

During the 100 years from the Shunzhi period to the beginning of the Qianlong reign, Qing records have shown the extraordinary en- thusiasm and dedication of top imperial authorities toward their





CONCLUSION






CONCLUSION






CONCLUSION



lawmaking enterprise. Such a phenomenon itself deserves our attention. It speaks volumes about the importance of the law to Qing rulers. Lawmakers sought perfection in the law, an enterprise tenaciously pursued because of the perceived existence of imperfection. What was important to the lawmakers was political practicality, intellectual soundness, and judicial feasibility. The fundamental challenge they faced was how to harmonize different priorities that were intrinsically contradictory. They wanted to achieve stability and flexibility of the law at the same time; they wanted the law to appear severe for the sake of deterrence, but they also wanted it to appear lenient and benevolent for the purposes of education and enhancing the rulers' legitimacy; moreover, how to keep the code simple enough so that relatively inexperienced judges could use it, but complex enough so that the rules would cover an infinite variety of cases, was yet another perplexing issue that the lawmakers had to tackle.

The Qing rulers tried to cope with these fundamental problems largely through manipulating the simple devise of statutes and substatutes. Thus the law appeared stable because of the unchangeable statutes, whereas flexibility was achieved through the invention of substatutes corresponding to changes in legal and political reality. Such substatutes could not be invented arbitrarily because they were subordinate to the guiding principles of the statutes. Hence, at least in theory, the flexibility achieved through substatutes could not jeopard- ize the stability of the law.

The flexibility of substatutes meant that their numbers could be either reduced or increased, depending on the situation. Because the statutes, which were merely several hundreds in number, could not possibly cover the wide variety of cases encountered in the courts, an increase in the number of substatutes became both inevitable and indispensable. How many rules should be deemed adequate? Qing lawmakers seem to have realized that a finite number of rules could never cover the infinite variety found in individual cases. Instead of making a rule to cover each unanticipated case, the top authorities accepted the method of analogy and the use of precedents.

Finally, the flexibility of the law also meant that lawmakers could change its severity or leniency by changing the substatutes. A lenient law contained more educational value because it supported the image of benevolent rule that emperors desperately needed. In the popular














mind-set, severe punishment and draconian law were used only by tyrannical monarchs such as the infamous first emperor of the ancient Qin dynasty. How lenient or severe should the law be? Qing rulers seem to have concluded that the severity of the law (or, more accu- rately, the severity of punishment) should go with the times (shiqing shizhong). Although leniency was ideal, the law also should have a deterrent effect. Qing legislative history clearly demonstrates fluctua- tion in the severity and leniency of the penalties achieved by changing substatutes, thus modifying what was originally called for in the statutes.

The dilemmas of Qing lawmakers were nevertheless fundamental ones, which defied any rapid solutions through a too mechanical manipulation of the substatutes. In the minds of the lawmakers, the code was far from perfect. Frequent revisions may reflect a lack of confidence among the top authorities regarding the law that they made. After hundreds of revisions, one of the most prestigious jurists of the late Qing, a man who also served as president of the Board of Punishment, Xue Yunsheng, cast his profound doubt on various substatutes in a work on which he labored for most of his life, Duli cunyi (Doubtful Points Accumulated in Reading the Substatutes). Of course, his work may be seen as another aspect of the effort to pursue legal perfection. When his work was published in 1905, however, the whole enterprise of making traditional Chinese law was ending, and his well-known tome was therefore left as the "last word" on the apparent imperfections of the Qing code.

NOTES

1. Although the code of Shunzhi 3 (1646) was actually promulgated in Shunzhi 4 (1647), the emperor's preface to the code was dated the fifth month of Shunzhi 3 and later scholars, such as the author of the "Legal Treatise" of the Qing, conventionally called it the code of Shunzhi 3.

2. TRANSLATOR'S NOTE: It was conventional in Chinese printing to show respect and distinction by raising the titles of the persons being addressed one, two, or three characters above the rest of text, depending on how high the titles were or how much respect one wanted to pay. In official documents, of course, the practice was rigidly conventionalized.

3. After the Qing dynasty fell in 1911 and the dynastic archives were opened in the beginning years of the Republican period, scholars were shocked to find that the titles "imperial uncle" and "imperial father" had been used to address Prince Rui in the early years of the Shunzhi reign. Some even believed that the widowed mother of the Shunzhi emperor had married Prince Rui.



NOTES






NOTES






NOTES





4. TRANSLATOR'S NOTE: Compare with Bodde and Morris's statement, "The first Ch'ing code of 1646 was largely a copy of the Ming Code" (Bodde and Morris, 1973: 60).

5. Scholars have usually not clearly stated whether in the Shunzhi code the statutes and substatutes were printed separately. One Chinese scholar, Su Yigong, based on his incorrect

understanding of some source materials, believes that in the Shunzhi code the statutes and substatutes were arranged separately. See Su Yigong (1988).

6. Evidence of early application of the Shunzhi code can be found in The Number One Historical Archives of China (Zhongguo diyi lishi dang'anguan). I found three cases reported to the throne during 1647 and 1648. See Neige qiansanchao tiben (Cabinet Memorials of the first three reigns [of the Qing]), no. 25, 31.

7. The whole collection of Shen Jiaben, which has been restored in his Zhenbilou, is well

preserved by his great grandson, Mr. Shen Houduo, to whom I am in debt for kindly showing me the copy. This is a handwritten copy, not an original print. Although we do not know who

copied it, Shen's seal, '"The Collection of Zhenbilou," was affixed to the first page, which indicates the authenticity of the copy.

8. The number was given by Fu-ge, the president of the Board of Punishment in Yongzheng 1 (1723). See his memorial in Wu Tan (1991 [1886]): 10-11).

9. TRANSLATOR'S NOTE: Shimada Masao (1992: 494) has noted that the "collective commentaries" were appended to each section of the code, not to each statute, as they were in the later Yongzheng code.

REFERENCES

BODDE, DERK and CLARENCE MORRIS (1973) Law in Imperial China. Philadelphia: Univ. of Pennsylvania Press.

CHANGSUN WUJI (653) Tanglu shuyi (Tang Code with Commentaries). Reprinted 1983. Beijing: Zhonghua shuju.

CHANG WEJEN [ZHANG WEIREN] (1976) Zhongguo fazhishi shumu (A Bibliography of Chinese Legal History). Vol. 1. Taibei: Zhongyang yanjiuyuan lishi yuyan yanjiusuo.

Daqing huidian shili (1899) (Collected Institutions of the Great Qing). Reprinted, Taibei: Qiwen Book Co. (1963).

Daqinglii jijie (1725) (Code of the Great Qing with Collective Commentaries). Daqing liili zhuzhu guanghui quanshu (1706) (Comprehensive Collection of Writings as Com-

mentaries Written in Red Ink on Statutes and Substatutes of the Great Qing). Printed by Tingsonglou.

FANG XUANLING et al. (646) Jinshu (The History of Jin Dynasty). N.d., vol. 30. GANGLIN et al. [comps.] (1647) Daqinglu jijie fuli (Statutes of the Great Qing with Collective

Commentaries and Appended Substatutes). Beijing: Neifu. Jinshu, xingfazhi ("Legal treatise" in the History of Jin), in Fang Xuanling (646), vol. 30. Neige qiansanchao tiben [Cabinet Memorials of the First Three Reigns (of the Qing)], in

Zhongguo diyi lishi dang'anguan (Number One Historical Archives). Qingshigao xingfa zhi [Legal Treatise of the Qing] (1977) in Zhao Ersun et al. [comp.],

Qingshigao (Draft History of the Qing), vol. 142: 4181-4192, vol. 143: 4193-4207, and vol. 144: 4205-4218. Beijing: Zhonghua shuju.

Qingshilu [Authentic Records of the Qing] (1985). Photo-printed, Beijing: Zhonghua shuju. SAN TAI et al. [comps.] (1740) Daqing lili (Statutes and Substatutes of the Great Qing). Beijing:

Wuying Palace. Reprinted, 1993. Beijing: Beijing kexue chubanshe.










REFERENCES






















REFERENCES






















REFERENCES














SHEN JIABEN (1929) Shen Jiyi xiansheng yishujiabian (Bequeathed Writings of Mr. Shen Jiyi [Shen Jiaben], first series). Beijing, n.d. Reprinted and punctuated, 1985. Beijing: Zhonghua shuju.

SHIMADA MASAO (1982) "Shinritsu no seiritsu" (The formation of the Qing law), the first

chapter of his Shincho mokorei no kenkyu (A Study of the Qing Substatutes on Mongols). Tokyo: Sobunsha. pp. 461-521 in Yao Rongtao trans., "Qinglu zhi chengli" (The formation of the Qing law), in Riben xuezhe yanjiu Zhongguoshi lunzhu xuanyi (Selected Translations of Writings of Japanese Scholars on Chinese History), no. 8. Beijing: Zhonghua shuju (1992).

Shizong shilu [The Authentic Records of the Shizong Emperor] in Qingshilu (1985). SU YIGONG (1988) "Lun qingdai liili de diweijiqi xianghu guanxi" (The relative statuses and

relations of statutes and substatutes). Zhongguo faxue 5, 6. TAKIGAWA SEIJIRO (1939) "Shinritsu no seiritsu" (The formation of the Qing law). Hoso

zasshi 6, 4. WU TAN (1886) Daqing lili tongkao [A General Examination of Statutes and Substatutes of

the Great Qing]. 1991, reprinted and annotated by Ma Jianshi et al., Beijing: Zhongguo zhengfa daxue chubanshe.

Xingbu [Board of Punishment] (1795) Chuanxiu tiaoli (Substatutes for Revision). Handwritten

copy, incomplete. Xingbu xianxing zeli (1679) (Substatutes Currently Operative in the Board of Punishment).

Handwritten copy in the private collection of Shen Jiaben. XUE YUNSHENG (1905) Duli cunyi (Doubtful Points Accumulated in Reading the Sub-

statutes). Beijing: Hanmaozhai.

Zheng Qin is associate professor in the Institute of Legal History and associate librarian

of the Chinese University of Political Science and Law. Among his publications is

Qingdai sifa shenpan zhidu yanjiu (The Trial System of the Qing Period; 1988).











































pursuing perfection formation of the qing code

Documents