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0In 1902, Britain said it would consider giving up its special legal privileges in China if it was satisfied with China’s reforms. The Qing court was already rewriting its laws, and Shen Jiaben, an official trained in the old system, helped lead the work.
This episode explores legal reform in the final years of the Qing dynasty. Why did the Qing court set out to rewrite its laws? How did reformers decide which old laws to keep and which to change?
Hi, I’m Mason Hu, a lawyer in China. This is Reasoned Talk, a podcast about legal history in China and the West.
Names and terms
● Shen Jiaben (沈家本) and Wu Tingfang (伍廷芳) were appointed to revise Qing law in 1902. Shen had served in the Ministry of Punishments (刑部), the same English name used in episode 04 on Little Cabbage.
● Zhang Zhidong (张之洞) was governor-general of Huguang and pressed the issue of extraterritoriality in talks with James Mackay. Liu Kunyi (刘坤一) joined Zhang in submitting reform proposals to the Qing court in 1901.
● Okada Asatarō (冈田朝太郎) and Matsuoka Yoshimasa (松冈义正) were the Japanese jurists who helped draft the new criminal and civil codes, respectively. Japanese names follow surname-first order.
● Yang Du (杨度) defended the new code as part of building a constitutional state. Lao Naixuan (劳乃宣) argued for keeping more of the old rules on family obligations. Liu Tingchen (刘廷琛) later challenged the reformers at court.
● Extraterritoriality (治外法权) refers here to treaty privileges held by foreign powers in China. Consular jurisdiction (领事裁判权) was the authority foreign consular officials exercised over certain cases under those arrangements.
● Debate over rites and law (礼法之争) refers in this episode to the late-Qing dispute over which Confucian family duties the new criminal code should enforce.
● Great Qing Code and Substatutes (大清律例) is the old imperial code. Great Qing Commercial Code (钦定大清商律) is the 1904 commercial legislation. New Qing Criminal Code (大清新刑律) is the criminal code promulgated in 1911. Its appendix is called the Provisional Rules (暂行章程). Draft Qing Civil Code (大清民律草案) is the 1911 civil draft.
● Ministry of Law (法部) administered the judicial system after the 1906 reform. Supreme Court (大理院, Dali Yuan) was the new highest court. It replaced the older Court of Judicial Review (大理寺).
Sources and reading
● Articles XV–XVII of the 1858 treaty distinguish mixed disputes from criminal cases against British subjects. Article XII of the 1902 treaty sets out Britain’s position on relinquishing extraterritorial rights. The journal study traces Zhang’s role in the Wuchang negotiations. Treaty of Tientsin, 1858 Mackay Treaty, September 5, 1902 study of Article XII and consular jurisdiction in Studies in Qing History
● The Law Revision Bureau entry in the archival guide dates the appointment edict to the sixth day of the fourth lunar month of 1902, before the September treaty. Guide to the holdings of the First Historical Archives of China Shen Jiaben’s biography in the Draft History of Qing
● The first memorial explains why the new codes would need people trained to apply them. The second discusses separating civil and criminal cases. The Qing code’s provisions on money and debt include penalties for overdue private debts. Shen and Wu’s memorial proposing a law school memorial on ending judicial torture money and debt in the Qing code
● The commercial code contains nine provisions on merchants and 131 on companies. It distinguishes companies with limited liability from those with unlimited liability. Great Qing Commercial Code, National Diet Library scan
● See Articles 10–11, 15 and 37–38 of the new code and Articles 1, 4 and 5 of its appendix. The accompanying edict records the final change in the age threshold from fifteen to twelve. Chen Xinyu traces the earlier drafts and the two tracks of penal reform. New Qing Criminal Code and its Provisional Rules Chen Xinyu’s study of Shen Jiaben and the late-Qing criminal law
● The Draft History of Qing records Lao Naixuan’s objections. Chen Xinyu’s study of Yang Du’s 1910 essay explains Yang’s case for a stronger state. Draft History of Qing, volume 142 Chen Xinyu’s study of Yang’s 1910 essay
● Articles 311 and 1278–1279 cover limitation periods and good-faith acquisition of movable property. Articles 1338, 1357–1358 and 1466–1468 cover marriage, a wife’s property and succession. Han Shiyuan traces the later civil codes. See Books II and III of the current code for the separate treatment of property and contracts. Draft Qing Civil Code Han Shiyuan’s history of Chinese contract law Civil Code of the People’s Republic of China
● Ouyang Xiang and Wu Zeyong trace the disputes over the new courts and why they spread unevenly. Ouyang Xiang’s study of the dispute between provincial officials and central ministries Wu Zeyong’s study of late-Qing civil procedure and court reform
● Volume 49 records the order sending Shen back to his ministry post and Liu Tingchen’s memorial on the new code. Veritable Records of the Xuantong Reign, volume 49
● The abdication edict dates the end of Qing rule. The 1912 text records the republic’s adoption of the revised criminal code. The U.S. diplomatic records document the relinquishment of British and American extraterritorial rights in 1943. Imperial Edict of Abdication, National Museum of China the republic’s 1912 provisional criminal code U.S. diplomatic records on the 1943 treaties
● The line about law as a measure for public affairs is an English rendering of a passage from the Guanzi. Guanzi, “Ming fa jie”
Related episodes
● Little Cabbage: The Failure of Justice in Late-Qing China
● From China to Europe: State Power and the Rule of Law
● Shi Jianqiao and the clash of rites and law (English translation of Chinese episode 07)
● Chinese episode 09 and its English article translation
