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Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789 to 1895

  • David C. Buxbaum

This article concerns the Chinese law of the Ch'ing period at the trial level in one locality in China. Through use of a unique archive, namely, the Tanshui and Hsinchu archive, and through statistical studies of the materials in that archive, the article asserts the hypothesis that many prior conceptions of Chinese law of the Ch'ing period were inaccurate. Thus the article asserts that civil law matters were a substantial portion of all cases to come before the local magistrate. Furthermore, that the Chinese population was not terrified about bringing a case to court and that ordinary Chinese people litigated civil matters. Civil cases did not usually result in punishment for the offenders nor were there long delays in the processing of civil matters. Finally, the legal system of the Ch'ing period can not be differentiated from a modern legal system on the basis of its lack of rationality, but rather the significant difference between a modern and pre-modern system lies in the lack of effective institutions of control in a pre-modern society.

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1 See T'ai Yen-hui, “Ch'ing tai Tanshui-Hsinchu tang-an cheng-li hsu-shuo,” Taipei wen-wu, 3 chi, 4 chüan, p. 15 ff. (Publ. by Taipei Shih Wenhsien wei-yuan-hui).

2 While no cases were actually labeled civil, there were cases labeled criminal, as shall be illustrated.

3 This section of the paper was initially presented to the Modern Chinese History Project Colloquium of the University of Washington on November 7, 1968. The paper was then circulated.

4 See XII Newsletter, Association of Asian Studies, (1966) no. 1, p. 26 and later reports by David C. Buxbaum.

5 Courses have been taught for some time at Tokyo University. Research projects exist at Koln University, Royal University of Stockholm, University of Sheikei and the University of London, as well as in Tokyo.

6 It is also one of the best in any language. The Japanese, who have done the best research on Chinese law (better in fact than much Chinese scholarship that has been burdened by internal and external wars and the felt need for emphasis upon science), have not written extensively on Ch'ing institutions. Some of the best Japanese work in the field has been done by Shuzo Shiga of Tokyo University. See for example, Chūgoku Kazokuhō no Genri (Tokyo, 1967); and Chūgoku Kazokuron (Tokyo, 1950) as well as shorter articles more specifically dealing with Ch'ing materials. The best scholarship on Ch'ing legal institutions has been done by Tai Yen-hui.

7 Subtitle: Exemplified by 190 Ch'ing Dynasty Cases (translated from the Hsing-an hui-lan) with Historical, Social, and Juidical Commentaries (Cambridge, Mass., 1967).

8 See for example, Bodde and Morris, pp. 104–112. They refer to Harry S. Parkes, British diplomat of the mid-nineteenth century, D. J. MacGowan, American missionary of the same period and T. T. Meadows, British consul of that era. Cf. Needham, Joseph and Ling, Wang IIScience and Civilization in China (Cambridge University Press, 1956) p. 525526 note f. Europeans who entered China in the 15th and 16th century had a far more sophisticated view of the actual workings of the Chinese legal system than their 19th century brothers. It should, of course, be born in mind that China changed in the 19th century as did the mentality of her visitors. See also Bunger, K. “The Punishment of Lunatics and Negligents According to Classical Chinese Law,” 9 Studia Serica (1950) and Needham p. 526 fn. a, which notes the way 19th century sinologists were misled by incorrect translations into thinking Chinese legal practice regarding negligents, lunatics and invalids was much cruder than it was in fact. The burden of increased population, the intrusion of the West and the collapse of the dynasty all led to a rather tumultuous and relatively chaotic and difficult situation in China which affected the workings of legal institutions as it did other institutions during the later part of the Ch'ing period. Nevertheless, Western distortions of Chinese law cannot be explained other than by cultural myopia.

9 See for example Buxbaum, David C., “Some Aspects of Substantive Family Law and Social Change in Rural China (1896–1967): With a Case Study of a North Taiwan Village” (Ph.D. Dissertation, U. of Washington, 1968); Buxbaum, David C., Family Law and Customary Law in Asia: A Contemporary Legal Perspective (Hague, 1968) (ed.) “Introduction,” pp. xvxli; Buxbaum, David C., “Chinese Family Law in a Common Law Setting: A Note on the Institutional Environment and the Substantive Family Law of the Chinese in Malaysia and Singapore,” Journal of Asian Studies, xxv/4 (Aug. 1966) 621644.

10 By customary law I mean the unwritten law. Positive law refers to the written cases and codes.

11 Bodde and Morris op. cit., note 7 at p. 542.

12 Ibid., p. 4.

13 Which were not in fact ignored by the written law. The contract to marry is dealt with for example in the section of Marriage of the Ta-Ch'ing lü-li. The uxorious contract is also dealt with in the code as are many other facets of contract.

14 Bodde and Morris, op. cit., note, 7, p. 4.

17 Ibid., p. 28.

18 Ibid., p. 118. The text goes on, however, to indicate that the distinction between civil and criminal cases was more than “… a pragmatic distinction … made by local magistrates.” For example it notes (at p. 119) that “… civil suits … regarded as less urgent—[were not heard] during the period of greatest agricultural activity, namely, from the fourth through the seventh lunar months.” Furthermore, the text notes that the financial commissioner (pu-cheng shih) handled civil cases at the provincial level and there were rarely appeals from him up to Peking. See also Bodde, and Morris, text 559–560 and Shiga, Shuzo “Shin-chō Jidai no Keiji Saiban,” Hōseishi Gakukai Hen (Tokyo, 1960) at p. 235.

19 Generally speaking, the Western concept of crime is similar to the traditional Chinese concept, i.e., “A wrong considered of a public character because it possesses elements of evil which effect the public as a whole and not merely the person whose rights of property or person have been invaded.” James A. Ballentine, The Self-Pronouncing Law Dictionary, 2d. ed. (N. Y., 1948) pp. 203–204. What the Chinese considered “a wrong of a public character” in Ch'ing times was somewhat broader and different than contemporary Western concepts, but nontheless the similarities are striking.

20 Shuzo Shiga, op. cit., note 18 at p. 235.

21 Ta-Ch'ing hui-tien, Kuang Hsu 20th Year, chüan 56 (Taipei reprint), p. 590. The general provision is: Nung-mang tse-t'ing-sung, “If farmers are busy then litigation will cease.”

22 Ibid. The section continues to state that “all accusations which do not injure agricultural affairs, should be handled as usual.”

24 See II Ta-Ch'ing lü-li hui-t'ung hsin-pien (reprinted, Taipei, 1964), chüan 7, pp. 833 ff., hereafter referred to as Lü-li. See also Staunton, George Thomas, Ta Tsing Leu Lee; Being the Fundamental Law and a Selection From the Supplementary Statutes of the Penal Code of China (London, 1810), reprinted Taipei, 1966, for a partial translation of the Chia-ching Code of 1805 at pp. 79 ff. (hereafter referred to as Staunton).

25 Lü-li, op. cit., note 24, chüan 8, pp. 931 ff.; Staunton op. cit., note 24, pp. 94 ff.

26 Lü-li, op. cit., note 24, chüan 9, pp. 1007 ff.; Staunton op. cit., note 24, pp. 107 ff.

27 There are also numerous provisions that are not criminal in nature, e.g., see Staunton op. cit., note 24 at p. 107, where he states that if, after full disclosure of the background of the parties to be wed, there is a decision to proceed, then the “contracting parties … shall … draw up the marriage articles, and determine the amount of the marriage presents.” Thus, the code gives some recognition to the marriage form, but does not provide criminal penalty for failure to follow this regulation. This distinction between cases of hu, hun, t'ien-t'u and other cases goes back some time in Chinese law. Sec for example, Kansai Daigaku Hōgaku Ronshū (March, 1968) pp. 430 ff.

28 See Shuzo Shiga op. cit., note 19 at p. 235.

29 See Hui-tien shih-li, op. cit., note 21, chüan 2 at pp. 5365–5369 for notes on the financial and judicial commissioners.

30 See Shuzo Shiga, op. cit., note 19 at p. 249.

31 See Tai Yen-hui and Ts'ai Chang-lin, Taiwan sheng-t'ung chih-kao, chüan 3, 1 ts'e, p. 29. Tai notes that the financial commissioner and judicial commissioner jointly heard complicated civil cases from 1786 until 1835 when the legal provision for this procedure was eliminated. Tai states that despite the change in the law, matters continued in the same general manner thereafter regarding the handling of complicated civil cases.

32 Some scholars have asserted that the Board of Households, Hu Pu, was the highest court of appeal in civil cases (See for example Chōsa-kai, Rinji Taiwan Kyūkan, Shinkoku Gyōseihō (Taikolcu, 1911), Vol. 5, p. 84), however Shiga op. at., note 18, disputes this. He notes that the Board of Households had jurisdiction over disputes between bannermen and civilians and thus had a very special jurisdiction.

33 See Tai, op. cit., note 31 at p. 21 and Huitien shih-li, chüan 685.

34 See Bodde and Morris, op. cit., note 7 at p. 115. See 19 Hui-tien shih-li, op. cit., note 21, chüan 816, p. 15329 ff.

35 This information can be found in the Tanshui Hsinchu archives. Where possible I will refer to specific case numbers. See for example Case No. 35401 (1881).

36 For a case involving real property, contractual evidence of rights thereto was necessary before the court would receive the case.

37 Cohen, Jerome Alan, “Chinese Mediation on the Eve of Modernization,” 54 California Law Review, 1201 (1966) at p. 1211. Also published in the Journal of Asian and African Studies, Vol. II, nos. 1–2, 1967.

39 Cohen, op. cit., note 37, at p. 1206, 1207 fn. 28. Cohen noted that there were some “… modifications for handling types of cases that would today be classified as civil. …”

40 See Staunton, op. cit., note 24 at p. 107 for the regulations that would result in a beating of 80 blows and forfeiture of the marriage presents to the government. If the first husband so desired, he could retain the girl in question.

41 Certain names used in Taiwan have Hokkien or Hakka sounds, but not necessarily mandarin equivalents.

42 van der Sprenkel, Sybille, Legal Institutions in Manchu China, (London, 1962) at p. 69.

43 Cohen, Jerome Alan, The Criminal Process in the People's Republic of China, (Cambridge, Mass., 1968) at p. 5.

44 See Kung-chuan, Hsiao, Rural China: Imperial Control in the Nineteenth Century (Seattle, 1960) at p. 5, “… There was on the average one magistrate for 100,000 inhabitants (calculated on the basis of 1749 official figures) or 250,000 (1819 official figures).”

45 In fact, however, because magistrates remained in office for a short period of time, they could avoid the penalties involved for delay in prosecuting criminal cases.

46 Van der Sprenkel, op. cit., note 42 at p. 70. Of course, if we refer to the problems of appeal of serious criminal matters then there were undoubtedly delays in Ch'ing judicial procedures.

47 Not only Bodde and Morris but also Jerome A. Cohen have discussed the harshness of litigation in Ch'ing times. For example, Cohen notes: “In addition to being inordinately expensive, time consuming and unpredictable in outcome, resort to the magistrate often proved to be a degrading and harsh experience.” Jerome A. Cohen, op. at., note 37 at p. 1214.

48 For which see Hsiao op. cit., at note 44, particularly pp. 501–518.

49 I have previously discussed this matter in “Introduction,” Family Law and Customary Law in Asia: A Contemporary Legal Perspective. (Hague, 1968), ed. Buxbaum, David C., pp. XVXLI; in particular see XV–XXIV.

60 Max Weber on Law in Economy and Society, ed. Rheinstein, Max and translated by Rheinstein, Max and Shils, Edward, (N. Y., 1967) at p. 63.

52 Galanter, Marc, “The Modernization of Law,” Modernization, (Basic Books, 1966) ed. Weiner, Myron, pp. 153156.

53 Cohen, Jerome A., Review of Fundamental Legal Documents of Communist China (N. J.,1962); Yale Law Journal, Vol. 72, p. 838 (1966).

54 Ibid., p. 839.

55 Ibid., p. 838, 839.

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