::: * Journal for Legal History Studies
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Issue: 28 period
Date: 2015/12

Articles Legal Specialists and Judicial Administration in Late Imperial China, 1651-1912
Zhang Ning Amnesty and the Death Penalty under the Qing Dynasty: Between the Legal System and Political Practice of “Benevolence outside of the law”
Zhao, Weini Mercy and Jinxu (矜恤): the Inner Logic of the Judgment of Magistrates in Qing Dynasty
Qiu Tang Marriage Prohibition between Banner People and People out of the Eight Banners? ──The Legal Norm, Legal Practice and Legal Consciousness of Intermarriage among Ethnic Groups in Qing Dynasty
Chiang, Yu-Lin Narratives of Woodcut Paintings and Denunciations of 228 Incident: Representing Yung-tsan Huang’s “The Terrible Inspection”
Articles & Replies Review Peng, Lihua The Formation History of The Construction Statutes
Sun Jiahong Secrets of Ministry of Penalty and Secrets in The Pillow, Re-discussion of the “Autumn-assizes Documentary” in Qing Dynasty
Chu, Hong-yuan Migration of the 1911 Revolution and Triple Learnings into Taiwan
People & Book Review Chen Yi The Contact of the Legal Professionals During the Compilation Process of the Complete Law Dictionary in the Early 1930s

 


Legal Specialists and Judicial Administration in Late Imperial China, 1651-1912

Li Chen*

Abstract

This article studies the historical origin, legal training, career patterns, professional identity and ethics, judicial philosophy, and scale of professionalization of thousands of legal specialists in late imperial China from about 1651 to1911. It draws attention to these Chinese legal practitioners or jurists who were the de facto judges in probably most of the 1,650 or so Qing local governments for more than two centuries. Based on archival sources, the article offers an estimate of about 3,000 such trained legal specialists working in local yamen in any given year from roughly 1711 to 1911, which means an estimated total of 30,000 for that period as a whole. The article points toward a rethinking of the received wisdom on late imperial Chinese legal culture and judicial administration, as well as their legacy on modern China’s drive for the rule of law.

Keywords: legal advisors, Chinese legal culture, professionalization, judicial practice, literati identity

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Amnesty and the Death Penalty under the Qing Dynasty:
Between the Legal System and Political Practice of
Benevolence outside of the law

Zhang Ning*

Abstract

This paper intends to study the relationship between the death penalty and the practice of amnesty under the Qing dynasty. There is a tendency to believe that the ten traditional unforgivable Abominations were all crimes liable of capital punishment, that all crimes of homicide liable of the death penalty were unforgivable and that all unforgivable crimes were liable of capital punishment. This study attempts to clarify possible misunderstandings regarding these three aspects, relying on available Qing archives. The paper is divided into three parts. Firstly, three historical features of the death penalty under the Qing dynasty are highlighted and discussed: the particularly high number of legal capital offenses, the systematized distinction of three types of such offenses and the fully institutionalized practice of the Assizes. The second part focuses on the characteristics of amnesty under the same dynasty in general and its multiple relationships with the death penalty in particular. Finally, a comparative study is presented based on data concerning the condemned criminals of 1736 (a year of general amnesty granted by Qianlong on the occasion of ascending the throne) and 1738 (an ordinary year with Assizes being held), in order to observe in a concrete way the effective impact of amnesty on death-row

inmates. Keywords: amnesty, death penalty, the unforgivable crimes under the general amnesty, Autumn Assizes, case deserving of capital punishment, case deserving of deferred execution, year of a general amnesty, year of stopping the execution

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Mercy and Jinxu (矜恤): the Inner Logic of the Judgment of Magistrates in Qing Dynasty

Zhao, Weini*

Abstract

This Article begins its study with the court verdict of Magistrates, and took Nanbu (南部) County in Sichuan (四川) Province of Qing () Dynasty as example, to explore the judgment of legal cases by Magistrates. Based on the exploration of this article, a phenomenon of lighter and merciful sentence is remarkable. Although it is not hard to be found that officials frequently mentioned in Guanzhen (官箴) Dynasties ago, which magistrates should judge legal cases mercifully, the exactly situation of the legal cases judgment is still doubtable. This Article thinks, the consistency between official expression and the reality fromNanbu (南部) archives revealed that light or merciful sentence was not only propaganda, also not a coincident phenomenon happened in somewhere. The characteristic of Magistrates judgment transfer a series typical traditional ideas, such as the duty of officials, the difference between Shih () and Shuh (), and the corresponding between the responsibility and authority. Leading by this kind of conceptions, such as the ignorant and poor people should be mercifully sentenced, the inner logic of the judgment of magistrates is just judging with mercy, although the judge did it with discrimination at the same time. Hence, the magistrates initiatively chose to judge legal cases with kindness and mercy and this is a non-ignorable characteristic of the judgment of magistrates.

Keywords: QingDynasty,Magistrates,Ignorantandpoorpeople,Mercifully Judge legal cases, Jinxu (矜恤)


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Marriage Prohibition between Banner People and People out of the Eight Banners? ──

The Legal Norm, Legal Practice and Legal Consciousness of Intermarriage among Ethnic Groups in Qing Dynasty

Qiu Tang*

Abstract

Manchu rulers separate people no matter they are Han, Manchu or Mongolia into banner people and people out of the Eight Banner long-term in Qing Dynasty. Therefore, the situation of intermarriage between people of different ethnic groups is very significant to the understanding of the Marriage Law and the whole civil law system in Qing Dynasty. What’s more, it is also a side view of the Manchu rulers’ ruling thought, ethnic policy and the ordinary people’s response in social practice and legal consciousness. When discussing the intermarriage issue in Qing Dynasty, the habitual answer is "banner people do not marry people out of the Eight Banner." However, when investigating "Qing Code", “Statutes of Hubu" and even imperial edicts, it is difficult to say there is a universal intermarriage ban on the level of legal norms among different ethnic groups in Qing Dynasty. The legal norms should be responded by the legal practice, and there are legal consciousness and legal thought behind legal practice. Reviewing the history, from the emperors to the lower class in Qing Dynasty, most of them were actively practicing intermarriage among different ethnic groups. What’s more, the literary works in Qing Dynasty

also reflected peoples’ understanding and sympathy to the intermarriage issue. To sum up, via presenting the legal provisions, historical records and literary records, it appears that, the intermarriage between banner people and people out if the Eight Banners is not an absolute prohibition in Qing Dynasty. It is even be allowed or encouraged in some ways, which is different from the traditional narration.

Keywords: Intermarriage between Banner People and People out of the Eight Banners, Qing Code, Statutes of Hubu, The Veritable Records of Qing, Manchu Literary and Artistic Work

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Narratives of Woodcut Paintings and Denunciations of 228 Incident:

Representing Yung-tsan Huang’s “The Terrible Inspection”

Chiang, Yu-Lin

Abstract

This article exemplifies the “Terrible Inspection” (1947), a work of Neorealistic woodcut painter Yung-tsam Huang (1916-1952), to illustrate the injustice experiences, during the 228 Incident and the White Terror in Taiwan. The “Terrible Inspection” implies the Power transforming from visible to invisible. It was the invisible power that simultaneously conducted the state apparatus, penetrated the legal system, distinguished the antagonistic and the traitorous from the docile ones, decided who to live, who to die, and whom to be arrested, whom to be released. Through managing the state-party, martial laws, court-martials, secret investigations and interrogations, confession extortions, information collections by secret polices or militants, collective punishments, the invisible power permeated every corner in the society and constructed a rigorously surveying network of discipline. The Neorealistic woodcut ideals that Huang insisted, and musical works of Sicon Ma and the Barley Wave Ensemble that Huang promoted, were all firmly viewed as the evidences of the criminal act that “intent to overthrow the government in illegal ways”. Sadly, Huang perished solitarily at the age of 36 in the beautiful island Formosa, and buried alone

in the weedy graveyard located in Liuzhangli, Taipei. Nevertheless, “Terrible Inspection”, his aesthetic work passing through generations, still testifying, and always reminding the descendants to carefully review the cruelty, the misery, and the absurdity of the past.

Keywords: Yung-tsanHuang,woodcut,228Incident,WhiteTerror

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The Formation History of The Construction Statutes

Peng, Lihua

Abstract

According to the survival historical materials, the laws and regulations of the manufacture and construction affairs had existed in the legal system no later than Qin dynasty (B.C. 221-B.C. 206). There are quite a few content on the Bamboo slips of Qin Dynasty which were relevant to the regulations of manufacture and construction affairs. With the diversity and complexity of the contents and chapters of laws as well as the imperfection on the legal system in Han dynasty (B.C. 206-A.D. 220), and the richness and diversity of manufacture and construction affairs, the laws and regulations of the manufacture and construction affairs of convicting and sentencing in a long time had existed in the laws of Tian ( the law of field), Jin-bu (the law of monetary, including coins and textiles), Yao (the law of labor conscripting) and etc. during Han dynasty, and in the laws of Xing- shan (the law of labor conscripting), Hui-sun (the law of official tools damage), Za (the law of miscellany) and etc. after Wei dynasty (A.D. 220- A.D. 265), one of the states of three kingdoms. Meanwhile, the part of canonical legislation of manufacture and construction affairs probably had existed in the Miscellany Statutes. The reasons of the appearance of the Construction Statutes in Tang China(A.D. 618-A.D. 907) can be concluded as following: Firstly, it’s the logical outcome of the evolution of laws and regulations of the manufacture and construction affairs in the long run.

Secondly, it can ascribe to the improvement of legal system in Tang dynasty by learning a lesson from the defect of the legal system in Sui dynasty (A.D. 581-A.D. 618).

Keywords: manufacture and construction affairs, laws and regulations of the manufacture and construction affairs, Construction Statutes, Formation

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Secrets of Ministry of Penalty and Secrets in The Pillow, Re-discussion of the “Autumn-assizes Documentary” in Qing Dynasty

Sun Jiahong

Abstract

The Autumn-assizes Documentary in Qing dynasty means such a special kind of legal historian documents and books which were written or compiled by the legal experts during the process of autumn-assizes, and in return deeply impressed the building of autumn- assizes system very much. Its coming out, existing and wide spreading clearly show many too complicated judicial skills of judges during the autumn-assizes, with the aim of bringing the highest and ultimate fairness and justice to every parties involved in the criminal cases. Based on the former studies, firstly this paper tries to make a renew combing about the category of autumn-assizes documentary. Then, as the judicial system of Qing government has the character of Over- concentrating of power in the central government, and that the imbalance of judicial structure between the central and local governments, this paper focuses on discovering how the professional legal secret books took their shapes, and how these documentaries were brought into the judicial practice from the Central penalty to the provinces. Autumn-assizes documentaries were initiated in the confidential inners, and were kept very secretly by the legalists and officials. However, finally the terms, laws and cases of autumn-assizes were taken out of the
central Criminal penalty, and inherited by the other legalists and their disciplines and old follows of minor officials. Even so, in the judicial process of autumn-assizes of Qing dynasty, the strained relations between the central and local judicial authorities had never changed radically.

Keywords:Autumn-assizes Documentary, Justice of Autumn-assizes,Secrets of The Criminal Department, Secrets in the Pillow,

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Migration of the 1911 Revolution and Triple Learnings into Taiwan

Chu, Hong-yuan

Abstract

The greatest revolution in the twentieth century is the Chinese revolution. Including series of reforms before, in between and after, the revolution lasts for more than two centuries. It started from the 1911 Revolution intending to achieve three goals such as National Independence, Republican Democracy and Social Welfare that made the revolution start earlier from 1895 and last long even to the present time. More than that, it entered Taiwan then under the rule of the Imperial Japan the new Power in the world. The outcome is surprisingly positive there instead of on the Mainland in the past 120 years, although it seems do not connect with the 1911 Revolution under the rule of Chinese Empire and the cultures of the Western world. The author tries to look through three main cultures in three forms of “learning” of namely the “Sino”, the “West” and the “East (which, formed in Japan, was crowned by the Japanese scholars at the turn of the twentieth centuries).” The article discovers that the three learnings were exactly struggling, creating tides of times and receiving wider, deeper and even more extensive among and also with each other influences according to the direction of the 1911 revolution even to the present time. Without understanding Japan, it will be difficult to understand that the drives of the 1911 Revolution were from both the West or the East Learnings based mainly on the political and legal wisdom from the modern West; and without understanding Taiwan from her double peripheral roles from the standpoint of the Japan-Imperial state as well as the Oceanic- Republic state cultures, it is impossible to grasp the key Chinese culture. The Chinese main stream which is based on the long tradition of Asia Mainland was the backbone of the past and will be so in the future. This article tries to kill three birds with one single stone: the deep understanding of a two thousand three hundred years old Chinese elite-bureaucratic system.


Keywords: Sino-learning, East-learning, West-learning, Triple learnings 1911 Revolution, Taiwan, China, Japan

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The Contact of the Legal Professionals During the Compilation Process of the Complete Law Dictionary in the Early 1930s

Chen Yi

Abstract

The Complete Law Dictionary compiled by Wang Han-zhang is the best production among the law dictionaries from the late Qing dynasty to the early Republican era. During the compiling and publishing process, many distinctive legal professionals involved in it. After examine these legal professionals, the major relationships and associations among the legal professionals in the early 1930s could be traced and categorised as following: firstly, the traditional contact based on townsmen (for example: Min Hou county in Fu Jian province, Wu Jin county in Jiang Su province); secondly: the colleagues’ relationships which could be interpreted as the interim between the traditional contact and the modern contact.(for example, the members of the law faculty department in universities or colleagues in the Ministry of Justice), thirdly, the modern social associations (such as the Law Society in Shanghai). Apart from that, the prosperous of the legal professionals in Shanghai was partly due to the legal professionals previously worked in Beijing whom moved to Shanghai.

Keywords: Complete Law Dictionary, Wang Han-zhang, Dong Kang, Dah Tung Book Co.,Ltd., Contact of the Law Professionals, 1930s.

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中國法制史學會、中央研究院歷史語言研究所主編

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