Organizer: Bradly W. Reed, University of Virginia
Chair: Madeleine Zelin, Columbia University
Discussant: Vivienne Shue, Cornell University
This panel explores gaps that opened between imperial law and customary practice during the last 150 years of the Qing dynasty. Many court cases from this period reveal behavior that violated formal dictates of the Qing Code, yet constituted normative social practice on the local level which often involved contractual relations and written agreements. The normative and highly rationalized nature of these illegal practices indicates a sphere of customary law which emerged apart from and in contradiction to the formal law of the imperial center. It also suggests that the central judiciary was losing both effectiveness and relevance in the face of rapid social and economic change, forcing ordinary people, as well as county magistrates, to respond creatively, if illegally, to the practical needs of local society.
The panelists use previously unavailable archival sources to shed light on this common set of issues from four distinct angles: Matthew Sommer examines the contractual organization of illegal wife-selling; Christopher Isett, the customary property rights that emerged among Han immigrants in Manchuria; Yasuhiko Karasawa, the customary practices associated with legal plaint writing; and Bradly Reed, the illicit customary administrative practices of county clerks and runners.
Wife-Selling Contracts in Qing China: The Customary Enforcement of Illegal Transactions
Matthew H. Sommer, University of Pennsylvania
Qing archives contain many examples of contracts for wife-selling—a paradox, since the sale they documented was criminalized as a form of adultery. The usual purpose of a written contract is to record an agreement so that it can be enforced, and the enforcement of contracts for marriage, land sales, etc. was a basic function of Qing courts. But contracts for wife-selling constituted evidence of criminal conduct; the presentation of such a contract to a magistrate practically guaranteed the dissolution of the transaction and the punishment of the contracting parties. Indeed, the reason these documents can be found with such frequency in case files is that they were confiscated in the course of criminal prosecution.
Contracts for wife-selling point to a stratum of juridical practice quite separate from official adjudication. They suggest a wide and growing gap between the real needs of ordinary people and official perceptions and priorities—a gap that destabilized the moral framework of late imperial order.
Village Custom and the Regulation of Property Rights in Qing Manchuria
Christopher M. Isett, University of Minnesota
With few exceptions, during the Qing commoner possession of land in Manchuria was illegal. Yet, documentation shows that commoners not only purchased and occupied land in Manchuria, but did so effectively and in significant numbers. To conceal these purchases from the state, villagers resorted to subterfuge on the one hand—representing illegal land sales as leaseholds before the state—and established mechanisms for regulating property rights outside the formal legal system on the other. These customary practices were extremely effective: commoners in Manchuria understood that they could not appeal to the formal legal system if a property dispute arose, yet they willingly purchased land.
This paper explores the content and significance of customary mechanisms for regulating property rights in rural Manchuria during the Qing. The paper examines how property rights were maintained and transferred outside the formal legal system; how these practices were embedded in the socio-political organization of the village; and concludes with a discussion of the significance of customary property rights for village organization. For evidence, the paper draws primarily on unused Qing court records and Japanese ethnographic studies.
The Narrative Construction of Testimony in Qing Legal Case Records
Yasuhiko Karasawa, Ritsumeikan University
This paper focuses on the practices and strategies employed by yamen scribes in the process of drafting plaints and written records of testimony in Qing legal cases. In the Qing judicial system, all plaints and records of testimony were required by statute to be free of embellishment. Yet to be effective, a plaint had to evidence consistency in terms of details, dates, actions, and the motivations of different parties. To achieve this effect, yamen scribes drew upon a number of rhetorical devices to resolve internal contradictions and produce a coherent and convincing version of the story. Successive drafts of written records of oral testimony can, therefore, reveal the standardizing effects of lexicon and plot construction in narrating stories.
Case records included in the Board of Punishments Archive contain original depositions along with all subsequent drafts of written records of oral testimony. These provide clues from which we can reconstruct the process of composing written versions of testimony. This paper compares these documents with the rhetorical guidelines contained in popular legal handbooks used by scribes. The goal of this paper is to shed light on both the influence of these guidelines in the drafting testimony and to what extent such drafts conformed to or violated the formal requirements of the Qing judicial system. The paper will also consider what, if any, effect such practices had on the actual process and outcome of adjudication.
Between Corruption and Statute: Informal Administrative Practice in Late Qing Sichuan
Bradly W. Reed, University of Virginia
In the Qing dynasty, the representation of yamen clerks and runners as corrupt and venal scoundrels served as a paradigmatic element of official discourse on the problems of county government. Yet despite this vituperation from the center, county magistrates and yamen personnel alike continued to utilize explicitly illegal administrative practices as the normative standard. Without these extra-statutory practices, local administration would quite likely have ground to a halt. Far from constituting a shadowy world of corruption, moreover, these procedures were informally legitimated through written agreements which were commonly accepted by magistrates as evidence of good faith and personal integrity in the course of disputes among yamen personnel.
This paper explores this realm of yamen practice as a form of customary administrative law emerging in response to the inadequacies of the formal administrative system and its regulatory statutes. After describing informal methods of extra-statutory yamen staffing and administrative financing, I examine the role of magistrates in adjudicating disputes in these areas and the compromises they made between the dictates of statutory law and administrative necessity. I then conclude by considering how this system of informal practice opens the way for a re-conceptualization of the relationship and boundary between Qing state and society.