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The Debate on a Legal Code for colonial Cochinchina: The 1869 Commission*
Published online by Cambridge University Press: 24 August 2009
Extract
Historians have long recognised the fundamental importance of the withdrawal of Vietnamese mandarins from Cochinchina following the French colonial invasion. The departure of these scholar officials, first from the eastern provinces in the initial phase of the French advance which ended in 1862 and then from the western provinces after these were occupied in 1867, forced the French colonial administration to adopt a policy of direct rule. There has been some confusion over the nature of this rule, not least because various French officials in the eighteen sixties were able to convince themselves that the use of Vietnamese names for the positions filled by French administrators somehow represented a continuation of the Vietnamese pattern of administration. In particular the impression has remained that Vietnamese officials continued to play an important part in the administration of justice in Cochinchina until the advent of civil government for the colony in 1879.
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- Copyright © The National University of Singapore 1969
References
1. The French applied the term Cochinchina to a region of Viet-Nam known by various Vietnamese names, most commonly Nam-Ky and Gia-Dinh. The region, at the time of the French conquest, consisted of six Vietnamese provinces: Gia-Dinh, Bien-Hoa, Dinh-Tuong (My-Tho), Long-Ho (Vinh-Long), An-Giang (Chau-Doc), and Ha-Tien. The area is contained, roughly, within the southern third of modern South Viet-Nam.
2. This attitude certainly existed during the governorship of Admiral Bonard (1861–1863) and in the early part of the governorship of Admiral de La Grandière (1863–1868). The use of the Vietnamese titles such as phu and huyen (prefect and sub-prefect) or quan-an (a judicial mandarin) for French officials was seen by Frenchmen as some guarantee that they were continuing to administer Cochinchina within a Vietnamese pattern. Amongst the more important documents relating to this issue are: Archives de France, Section Outre-Mer (AOM) Indochine A-20(I) Admiral Bonard to the Minister of the Colonies, Saigon, 8 January 1863, unnumbered; AOM Indochine D-11 (1) ‘Administration civile indigène’ [A collection of extracts from despatches covering the period 1861–1863]; AOM Indochine A-30(1) Minister of the Colonies to Admiral de La Grandière, Paris, 17 September 1863, unnumbered.
3. Denis J. Duncanson, for instance, in an otherwise carefully researched section of his book Government and Revolution in Vietnam (London, Oxford University Press for the Royal Institute of International Affairs, 1968)Google Scholar, notes, ‘During the first decade and a half in Cochinchina, passed nominally under military administration, the mandarins were left to apply the customs and laws of Hue as far as they knew them in the absence of printed texts…’, p. 94:
4. Archives of the Republic of Viet-Nam (AVN) S.L. 4,420 suggests that a limited number of cases may have been heard by Vietnamese employees of the French administration as late as 1864. See also AOM Indochine 0–00(1) Commandant d'Ariès to Admiral Bonard, Saigon, 16 December 1861.
5. AOM Indochine 0–30 (1) Procureur impérial to Admiral Ohier, Saigon, 5 May 1868. See also dossier AOM Indochine 0–01(16) dealing with the administration of justice in Cochinchina during the eighteen eighties which has some observations on this point.
6. Code annamite, lois et règlements du Royaume d'Annam 2 vols. (Paris, Imprimerie impériale, 1865)Google Scholar. The Code in force at the time of the French invasion was the so-called Gia Long Code, promulgated during the reign of the first Nguyen emperor (1802–1820).
7. AOM Indochine 0–01(1) Admiral Bonard to the Minister of the Colonies, Saigon, 29 April 1862, No. 250.
8. Detailed discussion of this point is contained in AOM Indochine 0–30(1) ‘Observations sur le décret organique du 25 Juillet 1864’ prepared by Philastre, Head of the Office of Native Justice, Saigon, 18 August 1868.
9. AOM Indochine 0–00(1) Admiral Bonard to the Minister of the Colonies, Saigon, 16 August 1862, No. 478.
10. AOM Indochine D-11(1) ‘Notes sur l'administration des Annamites’ prepared by Admiral de La Grandière, undated [apparently written in 1864]; and AOM Indochine 0–00(1) ‘Personnelle. Note addressée à Son Excellence Monsieur le Ministre de la Marine et des Colonies au suject du projet de décret sur Forganisation de la Justice en Cochinchine’ undated [either late 1863 or early 1864].
11. AOM Indochine 0–30(1) ‘Observations sur le décret organique du 25 Juillet 1864’ prepared by Philastre, Saigon, 14 September 1868.
12. AOM Indochine 0–01(7) untitled memoir prepared by Administrator of Native Affairs Silvestre, dated 14 August 1879, enclosed as an attachment to Governor Le Myre de Vilers to the Minister of the Colonies, Saigon, 5 September 1879, No. 995.
See also Phan-van-Truong, , Essai sur le Code Gia-Long (Paris, Ernest Sagot et Cie, 1922)Google Scholar for some discussion of the issues of jurisprudence involved, and the useful summary of Vietnamese Law contained in Chapter VII of Pierre Pasquier, L'Annam d'autre fois (Paris, Société di'éditions Geographiques, Maritimes et Coloniales, 1930) pp. 183–210.Google Scholar
13. AOM Indochine 0–30(1) The Procureur Impérial to the Governor of Cochinchina, Saigon, 5 May 1868.
14. AOM Indochine A-20(7) Admiral Ohier to the Minister of the Colonies, Saigon, 30 November 1868, No. 1,084.
15. Archives de la Marine, Marine BB4, 899, Admiral Ohier to the Minister of the Colonies, Saigon, 2 March 1869, unnumbered.
AOM Indochine 0–30(1) ‘Extrait du rapport mensuel sur la situation de la Cochinchine’ prepared by Admiral Ohier, Saigon, 12 August 1869.
16. Philastre's thirty-nine page report is preserved in AOM Indochine 0–00(I) ‘Mémoire sur le project de substituer le Code pénal français au Code annamite’, Saigon, 25 April 1873. It was forwarded to Paris as an attachment to a despatch from Admiral Dupré to the Minister of the Colonies, Saigon, 21 July 1873, No. 595.
17. This observation is based on the examination of correspondence written during 1869. It is also notable that Admiral Dupré gave full support to Philatre's record of the Commission's work in his accompanying despatch to the Philastre memorandum.
18. ‘Mémoire sur le project …’ Unless otherwise stated, information in succeeding paragraphs which relates to the Commission's activities is drawn from this document.
19. AVN S.L. 1,720 contains eight replies to the questionnaire. Five of these replies are generally in favour of the proposal; one is a qualified approval; and two are substantial dissents. It is the present writer's assumption that less than twenty officials were sent the questionnaire.
Archives de la Marine BB4, 899 Admiral Ohier to the Minister of the Colonies, Saigon, 2 March 1869, contains the statement from Ohier that there is unanimous support for his proposed substitution of the French for the Vietnamese Code.
20. On Philastre's life, see Nel, , ‘Philastre sa vie et son oeuvre’ Bulletin de la Sociétè des Etudes Indochinoises, 44 (1902) pp. 3–27Google Scholar. See, also, AVN S.L. 191 which contains Philastre's personal dossier.
21. AVN S.L. 4,364 Director of the Interior Piquet to the Governor of Cochinchina, Saigon, 9 May 1876.
22. Details on Ton To Tuong's life may be found in Nguyen Ba The, Ton To Tuong 1825–1877 (Saigon, Tan Viet, 1957)Google Scholar. See also, Lam, Truong Buu, Patterns of Vietnamese Response to Foreign Intervention: 1858–1900 Monograph Series No. 11, Southeast Asia Studies, Yale University (New Haven, 1967), pp. 81–86.Google Scholar
23. The most detailed single document on Do Huu Phuong's life is held in the Saigon Archives, AVN S.L. 312 ‘Notice biographique sur M. Do-Huu-Phuong, Doc-Phu-Su, Tong-Doc honoraire’. The document is undated but it was prepared close to the time of Do Huu Phong's death in 1915.
24. Philastre's own report on the work of the Commission gives the impression of work going on in 1870 as does Admiral Dupré in his despatch to the Minister of the Colonies, Saigon, 21 July 1873, No. 595 contained in AOM Indochine 0–00(5).
25. Philastre does not note Epinassous's position in the colony, but one may safely assume that he was in the legal branch of the administration. Although he had withdrawn from the Commission, Bazot did not dissociate himself from efforts to institute the French Penal Code. Apparently by April 1870 — the point is not entirely clear in Philastre's account — Bazot had sent a report to the Governor which sought the revision of eight articles of the Vietnamese Code. He then sent another report which sought the revision of eighteen articles. Finally, he sought through yet another report the elimination of the Vietnamese Code entirely.
26. AOM Indochine 0–00(5) Admiral Dupré to the Minister of the Colonies, Saigon, 21 July 1873, No. 595 confirms that consideration of the problems of substitution was still proceeding in 1870.
On Ohier's absorption with the problems of native administration see, AOM Indochine D-01 (2) ‘Extrait du rapport mensuel sur la situation de la Cochinchine’, Saigon, 12 August 1869; AVN S.L. 1,669 which contains a considerable number of reports and letters on the issue; and Pinto, Roger, ‘Les Assemblées des villages convoquées par l'Amiral Gouverneur Ohier’ Bulletin de la Société des Etudes Indochinoises n.s. XIX, 1 (1st semester 1944), pp. 10–55.Google Scholar
27. As one instance of the concern with economies, see AOM Indochine D-11(9) Note sur l'administration de la Cochinchine an undated printed paper prepared by Paulin Vial for the Governor of Cochinchina.
28. Philastre's discussion of the general issues involved in any substitution of the French Penal Code for the Vietnamese Code follow upon his account of the workings of the Commission recorded in his ‘Mémoire sur le projet ….’
29. Philastre further suggested, without providing any detailed evidence, that Aubaret's translation was based on Sir George Staunton's similar translation of the Ch'ing Code on which the Vietnamese (Gia Long) Code was modelled.
30. Later research was to demonstrate that the legal code proclaimed during the reign of Le Thanh Tong (1460–1497) was much more a product of Vietnamese legal thinking and much less a copy of Chinese provisions. R. Deloustal, ‘La Justice dans l'ancien Annam Bulletin de l'Ecole Française d'Extréme-Orient VIII, 1–2 (1908), pp. 177–220.Google Scholar
31. Etudes sur le droit annamite et chinois; le code annamite 2 vols. (Paris, Leroux, 1876).Google Scholar
32. AOM Indochine 0–00(5) Admiral Dupré to the Minister of the Colonies, Saigon, 21 July 1873, No. 595.
33. AOM Indochine 0–01 (7) Governor Le Myre de Vilers to the Minister of the Colonies, Saigon, 5 September 1879, No. 995.