Essays on China's Legal Tradition
448
Essays on China's Legal Tradition
448Hardcover
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| ISBN-13: | 9780691653969 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 03/21/2017 |
| Series: | Studies in East Asian Law , #5055 |
| Pages: | 448 |
| Product dimensions: | 6.00(w) x 9.25(h) x (d) |
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Chinese Legal Tradition under the Mongols
The Code of 1291 as Reconstructed
By Paul Heng-Chao Ch'en
PRINCETON UNIVERSITY PRESS
Copyright © 1979 Princeton University PressAll rights reserved.
ISBN: 978-0-691-09238-6
CHAPTER 1
I. THE DEVELOPMENT OF CHINESE CODES
During the Yüan dynasty (127l–1368), owing to the expansion of the Mongolian empire, China's territory was especially huge and its population ethnically diverse. To establish a unified code for a population of such ethnic diversity was impractical. Before the establishment of the dynasty, the Mongols already had their Mongolian customary law, which they continued to use throughout the period. At the same time, the se-mu-jen (miscellaneous aliens) were mostly Muslim and followed their own Islamic law. Thus it was both impractical and unrealistic to compile a code that would combine traditional Chinese legal principles, Mongolian customary law, and Islamic law. Since there was no intention to promulgate a legal code common to Mongols, Central Asians, and Chinese — and since in reality there was no such code — the development of the legal codes of the Yüan dynasty only involved the codification of Chinese laws. Although these codes in some special instances governed the relations between Chinese and other ethnic groups, they were primarily applied to the Chinese people.
The development of the Yüan codes can be roughly divided into three stages, although these stages may to some extent overlap one another. The first stage began with the code promulgated by T'ai-tsung (Ögedei Qayan) in 1229, and ended with the establishment of the Yüan dynasty in 1271. This stage was characterized by strong Mongolian influence. The second stage lasted from 1271 to 1320, during which time changes were undertaken to either restore or create various Chinese institutions that were needed to carry out new administrative functions. In the third period (1321–1368) the cultural accommodation of Mongolian customs to Chinese institutions reached its climax. Efforts begun in the first stage and reinforced in the second stage provided the foundation for the establishment of major new codes in the third stage. During these three stages, various adjustments were made, consciously or subconsciously, to ease the tensions between Mongols and Chinese so as to ensure an effective administration of government. These adjustments were a result of the impact of the Confucian ideal of state and society on the Mongolian rule, on the one hand, and the introduction of Mongolian values and institutions into Chinese society on the other.
The First Stage (1229–1270)
The Jasay
Before the establishment of the Yüan dynasty in China proper, there existed among the Mongols some legal institutions which later played a part in the development of the Yüan legal system. One of them was the Ta cha-sa (Yeke Jasay). The words Yeke Jasay mean Ta fa-ling (great code) in the Chinese language. The Ta cha-sa was known as the Great Code of Cinggis Qan and seems to have been promulgated in 1229, when T'ai-tsung was elected to succeed Cinggis Qan. Although no complete version of the code has yet been found, some fragments have been preserved in the records of several early historians (such as Rashid al-Din and Makrizi) and in other documents. By using these fragments and records, Western scholars have made extensive studies of the code. Since the subject has been treated and, moreover, since the main concern of this study is with Chinese legal institutions, only some references to the jasay in Chinese documents will be discussed here.
Among the Chinese sources, the Ta Yüan sheng-cheng kuo-ch'ao tien-chang (hereinafter abbreviated and cited as the Yüan tien-chang or Institutions of the Yüan Dynasry) contains one reference to Ch'eng-chi-ssu huang-ti cha-sa (i.e., the code of the Emperor Cinggis Qan) and thirteen other references to the Jasay as such. The former, in a document dated the 19th day of the 8th moon of the 1st year of the Chih-ytian reign [September 10, 1264), deals with a matter endangering the Imperial household. The latter include: 1) a reference in a document dated l280 dealing with counterfeiters; 2) a reference in a document dated 1278 dealing with military personnel; 3) a reference in a document dated l280 dealing with military personnel; 4) three references in a document dated l286/ 1287 dealing with military personnel; 5) two references in a document dated l262 dealing with the postal relay system ; 6) a reference in a document dated 1301 dealing with a case of homicide; 7) a reference in a document dated 1272/1273 dealing with a case of performing black magic; 8) a reference in a document dated 1272 dealing with the sale of poison ; g) a reference in a document dated 1297 dealing with the design of an Imperial leather hat ; and 10) a reference in a document dated 1321/1322 dealing with the role of the Yü-shih-t'ai (the Censorate).
The above references to the Jasay, arranged according to the order of their appearance in the Yüan tien-chang, are applied to conduct that infringed on state interests or constituted serious crimes. For instance, Cases 2, 3, and 4 are related to desertions or hiding soldiers. Case 5 considers the function of commissioners and the postal relay system. Case 6 is about the murder of one's own brother; this offense, recorded in the Yüan tien-chang under the section of "Pu-mu" (discord in families) was considered one of the shih-o (ten abominations) of traditional Chinese law. Case g prohibits any reproduction of the color and design of a hat submitted to the Emperor. As a collection of rules and orders given by Cinggis Qan, the jasay was to provide the Mongolian leaders with guidelines for the administration of government and to supplement Mongolian customary law. Although it was traditionally applied mainly to Mongols, as indicated in the above references, the Jasay was occasionally applied to Chinese, especially to those having military or official status or whose conduct related to matters in the sphere of state interest.
There are also references to thejasa y in other Chinese sources. For example, in the Chan-ch'ih Jamci] [On the Postal Relay System], there are four documents, governing the administration of the postal relay system, that contain references to the Jasay ; the first is dated 1241, the second 1242, the third 1244, and the fourth 1262. In the T'ung-chih t'iao-ko [Code of Comprehensive Institutions], a document dated 1263, prohibiting soldiers from disturbing common people, there is a reference to the Jasay. The Ta Yüan ma-chang chi [On the Administration of Imperial Stud of the Great Yüan, a document dated 1277, dealing with the punishment of anyone who concealed strong horses, supplies another reference.
Only two of the above references occur after the thirteenth century — a fact that seems to demonstrate the decline of the Jasay's importance and the growing remoteness of Mongolian law to the Chinese people by the end of that century. The Jasay served as a major legal source in the initial period of the Mongolian conquest, but after the Mongolian settlement in China, it proved inadequate for the needs of Chinese society because Mongolian law was much simpler and more primitive. On the other hand, the Mongolian rulers became more oriented toward Chinese culture and more interested in developing Chinese law for the governing of the Chinese people. As the society became more complicated and advanced by the end of the thirteenth century, the significance of the jasay naturally diminished in China. This interpretation is substantiated by an observation of V. A. Riasanovsky who claimed that the effectiveness of the Jasay as a general legal source for all tribes under the Mongolian domination was short lived and that its importance began to decline at the end of the thirteenth century.
Some proposals submitted by Wang Yun (1227-1304) further illuminate this point. In 1268, when Wang Yun was serving in the Censorate, he memorialized to the throne and suggested that a code be promulgated under the title of the Chih-yüan hsin-Ja [Chih-yüan New Code]. Having foreseen the possible ineffectiveness of such a code, he said :
If within [this code] there are [items] which cannot effectively function, let us extract [supplements from) the dynastic cha-sa (Jasay) and, by following the practice of [issuing decrees] of the Chin dynasty, establish [these supplements] separately [under] decree authorization.
In this document Wang Yun recognized the fitness of adopting from the jasay some supplements to improve the effectiveness of the projected new code, and suggested that these supplements should be enacted by issuing decrees. The proposal was submitted, but his plan for the Chih-yüan hsin-fa was not carried out. In another proposal dated 1292, Wang Yun once again memorialized :
I humbly suggest that [it is] proper for the established statutes and ordinances to be promulgated as the Hsin:fa [ New Code]. If there are [items] which cannot effectively function [or] thoroughly fit [the situation], let the holy decrees of previous reigns as well as the t'iao-ko (articles and codes) from the Chung-t'ung reign to the present be generally deliberated and be used as supplements.
In this second memorial of 1292, significantly enough, Wang Yun does not mention the Jasay in his plan for the Hsin-fa, and this purposeful omission of the Jasay as a legal source reflects his departure from the earlier dependence on Mongolian law. After the succession of Ch'eng-tsung (Temur Qayan) to the throne in 1294, Wang Yun, in the capacity of Han-lin hsüeh-shih (Han-lin academician), submitted to the Emperor another proposal which included a similar plan for the promulgation of a new code to be called the Yüan-nien hsin-fa [First Year New Code]. He did not mention the jasay at all in the last plan submitted to Ch'eng-tsung. A comparison of these three documents clearly indicates the declining importance of the jasay in the later years of the thirteenth century; it also suggests that greater attention was gradually being paid to decrees, laws, and ordinances of the traditional Chinese type.
Efforts to establish Chinese institutions in China proper to counteract the Mongolian influence actually started very early. For example, Hsü Heng (l209-128l), the leading scholar of the time, submitted a proposal in 1266 in which he stressed the need for the Mongolian rulers to adopt Chinese institutions, including Chinese laws. He further stated : "That our country should adopt Chinese institutions is beyond any doubt. But should the [Mongolian] national customs of ten thousand generations and the nobility of consecutive reigns be suddenly forced to follow your servant's suggestion and to accommodate themselves to the customs of a perished country, the situation could be extremely difficult." In order to achieve a successful transformation from Mongolian customs to Chinese institutions, Hsu Heng proposed that thirty years be allowed for such gradual changes. It was during this period of gradual transformation that the importance of the jasay in the Chinese society declined.
Early Chinese Codes
In the biographical section of Kuo Pao-yu in the Yüan shih, it is recorded that in the 6th year of T'ai-tsu (Cinggis Qan) [January 17, 1211–February 4, 1212], Cinggis Qan followed the advice of Kuo Pao-yu and promulgated the T'iao-hua [Rules] containing five sections. The Rules forbade indiscriminate killing during military campaigns; they also stated that only serious crimes were to be punished by death and that other offenses were to be punished merely by a beating with bamboo sticks. Kuo was a former Chinese general who surrendered to the Mongols after the defeat of his army. After being presented to Cinggis Qan, Kuo was consulted on matters of strategy. He advised Cinggis Qan that during the initial stage of nation-building it would be proper to promulgate a new code. Although the text of the Rules is not substantial, it nevertheless represents the earliest effort by the Mongols to promulgate a Chinese code and marks the beginning of the establishment of Yüan laws. Between the time of the Rules and the succession of Shih-tsu (Qubilai Qayan) in 1260, various ordinances and decrees were issued. Although more Chinese laws were promulgated at the time of Yeh-lu Ch'u-ts'ai (1189-1243), no substantial code was published. As a result, when Shih-tsu came to power, the T'ai-ho lü [T'ai-ho Statutes] of the Chin dynasty and Mongolian law were still in use.
The T'ai-ho lu was promulgated in 1201, at the time when the Chin dynasty had reached its most Sinicized stage under the rule of Chang-tsung (r. 1194-1209). It was divided into twelve sections: "Ming-Ii" (Terms and General Principles), "Wei-chin" (Imperial Guards and Prohibitions), "Chih-chih" (Administrative Regulations), "Hu-hun" (Families and Marriages), "Chiu-k'u" (Stables and Treasures), "Shan-hsing" (Unauthorized Corvée Levies), "Tsei-tao" (Thefts and Violence), "Tou-sung" (Conflicts and Suits), "Cha-wei" (Deceptions and Frauds), "Tsa-lü" (Miscellaneous Statutes), "Pu-wang" (Arrests and Escapes), and "Tuan-yü" (Trial and Imprisonment). The twelve sections were identical to those of the T'ang Code. In the Chin shih [Chin History] there is a statement that the T'ai-ho lu was essentially another T'ang Code. The T'ai-ho lü followed the T'ang Code in style and content, although it had some sixty more entries than the T'ang Code.
The complete text of the Tai-ho lu does not survive today. Fortunately, because of the adoption of the code in the early period of the Shih-tsu reign, many fragments have been preserved in the Chinese sources of the Yüan period. Some fragments have even been found in the Tanksuqnama-i ilkhan dar funun-i ulumi-i khita'i [The Precious Work of the Ilkhan on the Various Branches of Khitay Learning] of Rashid al-Din. These materials indicate that the T'ai-ho lü influenced the development of the Yüan codes, even after it was officially discontinued in 127l. This code therefore served to transmit the legal principles of the T'ang Code first to the Chin dynasty in l20l, and then, when that dynasty was conquered by the Mongols in 1234, the code was adopted and continuously used until the day i-hai of the 11th moon of the 8th year of the Chih-Yüan reign [December 18, 1271].
The explanation given in the Yüan shih specifies that the harsh nature of the T'ai-ho lu was the reason it was abolished in l271. In a preface written by Hsii T'ien-lin, to a book entitled Kuan-min chun-yung [Standard References for Officials and Civilians] we also read that harsh and petty laws were not esteemed in the Yüan dynasty and that therefore, the old precedents of the T'ai-ho lü were discontinued. The explanation contained in these two sources seems too superficial, for there would appear to be two more important reasons for the abolition of the T'ai-ho lu. In the first place, it was politically unnecessary to continue to use the code of the former dynasty. The T'ai-ho lü was abolished on the same day that the title of the reigning dynasty (i.e., Ta Yüan) was officially established. The proclamation of the title of the dynasty marked the beginning of a new era and consequently there was no need to perpetuate the code of the previous dynasty. This kind of political sentiment was well demonstrated by Hu Chih-yü (1227-1293) in one of his memorials. Referring to T'ai-ho lü, he expressed doubt that the institutions of the defeated Chin dynasty could ever be satisfactory for the court nobility and high officials or be depended upon for deciding legal cases. Second, by 1271 many decisions and precedents had accumulated and it was thought that future legal cases could be decided simply by following these precedents. It was also suggested that decrees be issued to meet new circumstances, whenever the precedents should fail to provide guidelines. For example, Wu Ch'eng (1249-1339), a leading scholar, said:
The Emperor Shih-tsu of the holy Yüan, after unifying the country, following [the precedent that] the early Sung dynasty did not [continue] using the Chou lü [Chou Code], issued the decree [ordering] that the T'ai-ho lü of the Chin dynasty be not used. ... The holy idea [of Shih-tsu] was the desire to be guided by circumstances for the creation of proper [institutions] and set himself as precedent.
(Continues...)
Excerpted from Chinese Legal Tradition under the Mongols by Paul Heng-Chao Ch'en. Copyright © 1979 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
Contents
PREFACE, vii,ABBREVIATIONS, xi,
INTRODUCTION, xiii,
Part One: THE YÜAN LEGAL INSTITUTIONS,
I. The Development of Chinese Codes, 3,
II. The Penal System, 41,
III. The Administration of Justice, 69,
Part Two: CHIH-YÜAN HSIN-KO,
Preliminary Remarks, 101,
Translation of Chih-yüan hsin-ko, 107,
Chinese Text of Chih-yüan hsin-ko as Reconstructed, 159,
GLOSSARY, 167,
BIBLIOGRAPHY, 187,
INDEX, 199,