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LEGAL SPECIALISTS AND JUDICIAL ADMINISTRATION IN LATE IMPERIAL CHINA, 165119111


Li Chen
This article studies the historical origin, legal training, career patterns, professional identity and ethics, judicial philosophy, and scale of professionalization of thousands of legal specialists in late imperial China from about 1651 to 1911. It is the first extensive study in English of these early modern Chinese jurists and legal professionals who were the de facto judges in probably most of the 1,650 Chinese local governments for more than two centuries. Based on archival sources, the article offers an estimate of about 3,000 such trained legal specialists working in local Chinese courts in any given year from roughly 1711 to 1911, which means an estimated total of 30,000 for that period as a whole. The article points toward a rethinking of the received wisdom on late imperial Chinese legal culture and judicial administration, as well as their legacy on modern Chinas drive for the rule of law. *** Revisionist scholarship over the past four decades has seriously challenged earlier representations of the legal system in late imperial China as backward, irrational, and/or incommensurable with western or modern notions of law and justice. We now have a far more nuanced understanding of many aspects of pre-1911 Chinese legal culture and judicial practice.2 Nevertheless, more
The author is grateful to Madeleine Zelin in particular and to Daniel Asen, Thomas Buoye, Jrme Bourgon, Chiu Pengsheng, Deng Jianpeng, Melissa Macauley, Jonathan Ocko, Su Yigong, Janet Theiss, Wang Zhiqiang, Pierre-tienne Will, Peilin Wu, You Chenjun, Zhang Qin, and Zhang Weiren for their comments or support of this project. He thanks the anonymous reviewers and the editors of this journal for their valuable feedback, and appreciates the research assistance of Bai Huatong, Shen Xiaocun, Bai Ruoyun, Guo Weiting, and Tian Huan. The project was funded by Columbia University, the University of Toronto, and the SSHRC of Canada. 2 It is impossible to list all the relevant works. Besides those cited herein, see, e.g., Buxbaum, Some Aspects of Civil Procedure and Practice; Allee, Law and Local Society; Philip C.C. Huang, Civil Justice; Birge, Women, Property, and Confucian Reaction; Sommer, Sex, Law, and Society; Zelin, et al., eds., Contract and Property; Brook, et al., Death by a Thousand Cuts.
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Late Imperial China Vol. 33, No. 1 (June 2012): 154 by the Society for Qing Studies and The Johns Hopkins University Press 1

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research is still needed about other facets of the Chinese legal tradition. For instance, we have only relatively limited knowledge about why and how scholarofficials in late imperial China, apparently with no systematic legal education, could administer one of the most sophisticated legal systems in the world. This article, part of a larger book project, is a preliminary step to address this understudied question by investigating the rise, training, social status, professional identity, and legal thinking of the thousands of legal specialists that had become the backbone of Chinese judicial administration by 1700. The roughly 1,600 local administrators in Qing (16441911) Chinaranging from county magistrates (zhixian) through prefects (zhifu) and circuit intendants (daotai) to provincial governors (xunfu)were also technically the chief judicial officers in their jurisdictions even though most of them were appointed not for their legal knowledge but for their success in passing the civil examinations. As William Alford has noted, the resulting perception that there was neither separation of powers nor legal expertise among these local officials/judges has greatly contributed to the popular stereotypes in the west about late imperial Chinese law and justice.3 This issue has not been tackled in the recent series of fine studies on late imperial China, but the fact that most local Qing administrators entrusted their judicial work to legal specialists would call for a rethinking of late imperial Chinese law and society. From early on, as will be shown, it became a nationwide practice for Qing local officials to hire different types of muyouliterally friends in the tent or behind the curtainas private advisors to help perform their official duties. As early as 1847, Thomas Meadows (181969), a British Sinologist and consular officer, observed: Xingming muyou (in charge of the criminal law) and qiangu muyou (in charge of the fiscal law) properly comprise the judicial advisors and are the only people in China who devote themselves solely to the study of the law, and in so far, they resemble our barristers and sergeants-at-law.4 Although numerous modern scholars have likewise noticed their importance to local judicial administration, no one has yet undertaken a systematic study of them as legal specialists and of their role within the Qing legal system while the

Alford, Of Arsenic and Old Laws, 119096, 119394 (for the quotation). This perception is not fully accurate. On appointment of local judges in earlier periods, see Zhang Chuangxin, Zhongguo zhengzhi (History of the Chinese political system), 21525; Xu Daolin, Zhongguo fazhishi (Essays on Chinese legal history), 91106. Except for the Yuan period (12791368), tests of legal knowledge remained part of the civil examinations from the Tang until 1756. See Xu Daolin, Zhongguo fazhishi, 90; Elman, A Cultural History, 4145, 53132. For the traditional narrative and its critiques, see Alford, Law; Ruskola, Legal Orientalism. 4 Meadows, Desultory Notes, 104.
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few Chinese works that have discussed them more extensively did not consult the relevant archival sources.5 Qing local officials also hired other types of muyou such as zhanghao/haojian (registering), shuqi/shuji/shubing (writing), and zhengbi/zhengshou (tax collecting), but xingming and qiangu muyou were the most essential to local administration and enjoyed a much higher social status and received higher pay than the others.6 Etymologically, the Chinese compound xingming had been widely used by the first century B.C.E. to designate Legalist (fajia) philosophy and the legal institutions it informed, and later was often used as a synonym for judicial administration, law (fal), or jurists (fajia or shenhan).7 Depending on the context, the term xingming can thus be translated as law/legal, justice/ judicial, or legal specialists in this study. The compound qiangu literally means money and grain, but qiangu muyou helped local officials manage not just fiscal matters but also legal disputes over land, property, contracts, and/ or debts while xingming muyou dealt with most other types of legal matters, including lawsuits over marriage and inheritance, and more serious crimes.8
On English works that briefly mentioned legal advisors or quoted just one or two of them, see Macauley, Social Power, 49; Hegel, Introduction, 14; Bodde and Morris, Law in Imperial China, 5; Cole, Shaohsing; Folsom, Friends; Conner, True Confessions, 134; McNicholas, Property Tales, 14648; Fu-Mei Chang Chen, The Influence of Shen; Karasawa, From Oral Testimony, 104106; Philip C.C. Huang, Civil Justice, 22022; Bourgon, Uncivil Dialogue, 6872; Will, Developing Forensic Knowledge. On more detailed but dated studies of them, see Tung-tsu Ch, Local Government, 93115 (extensively citing Wang Huizu); Weiji Chang, Legal Education, 30214 (focusing on their training by example of Wang Huizu and Chen Tianxi). On the relevant Chinese works, see, e.g., Miao Quanji, Qingdai mufu (The Muyou system of the Qing Dynasty); Zhang Weiren, Liangmu xunli Wang Huizu (Wang Huizu: A good advisor); Zheng Qin, Qingdai fal (Study of the legal system), 14045; Guo Runtao, Guanfu (Government, muyou, and scholars); Gao Huanyue, Qingdai xingming muyou (Study of Qing xingming advisors). 6 See Wang Huizu, Zuozhi yaoyan (Medicinal words for assisting governance), 16063; Wang Huizu, Xuezhi yishuo (Nonsensical words), 249; Wan Weihan, Muxue juyao (Essentials for private advisors), 2627; Xu, ed., Muling shu (A book for magistrates), 4:1a6b. For the types of muyou of Zhili GovernorGeneral in 1773, see Junjichu lufu (Beijing), No. 030135069. Similar positions were found in a provincial yamen as early as 1675 (Xu Xu, Minzhong jilue [Occurrences in Fujian], 22). 7 These usages were related to the original idea that matter or substance (xing as in xingtai) should match the name (ming). Along that line, founding Legalists like Shen Buhai (d. 337 B.C.E.), Shang Yang (d. 338 B.C.E.), and Han Fei (280233 B.C.E.) interpreted xingming to mean that the state should reward or punish its subjects action strictly by the codified laws (xunming zeshi shenshang xingfa) in order to achieve effective governance. The term shenhan was an acronym for Shen Buhai and Han Fei. See Liu Xiang, Bielu (Miscellaneous records), in Quanhanwen, juan 38, and Hanfeizi shulu (Catalogue of works by Han Fei), in Quanhanwen, juan 37, reprinted in Yan Kejun and Chen Yanjia, Quan shanggu sandai (Complete collection of texts from the ancient time), 610 and 600 respectively, see 602; Chen Songchang, Mawangdui boshu xing de yanjiu (Draft essay on the concept of xing de), 31. About these early Legalists, see Zhengyuan Fu, Chinese Legalists, 1617. For later usages of xingming, see, e.g., Liu Youqing, Preface (1325), in Zhangsun et al., Gu Tangl suyi (The old Tang Code with commentaries); Li Tingyi, Preface (1735), in Zhangsun, Tangl suyi (The Tang Code with commentaries), i. 8 It was noted that disputes over marriage and inheritance were handled by xingming in the 1700s (Bai Ruzhen, Xingming yide [Things learned from legal practice], 1:32a33a; Zhuang Chengfu, Piantu lun,
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Philip Huang has viewed this division of judicial labor as an indication of distinct separation between civil and criminal matters in Qing judicial practice that was otherwise found absent in theory.9 This division between xingmu and qiangu muyou is more or less parallel to that between provincial judges (anchashi) and lieutenant governors (buzhengshi) in judicial administration, but it is worth noting that some Qing lieutenant governors also hired legal advisors to handle xingming and qiangu matters separately.10 Most modern scholars have translated xingming/qiangu muyou into legal/ fiscal secretaries but that translation is misleading. Given their professional training, crucial role, and social status as friends, advisors, or even teachers of the officials that hired them, it seems more accurate to compare them to in-house legal counsels of a modern firm or government agency, than to office secretaries, except that a qiangu also acted like a chief financial officer. I will use private legal advisors to refer to not only xingming but also qiangu muyou in this article because of their shared training or practice in law.11 Early Qing advisors published handbooks for both xingming and qiangu advisors in one volume because they had worked in both capacities.12 In 1784, Bai Ruzhen (zi Yuanfeng), who by this time had been an accomplished legal advisor for
64647). There could be some regional variations. Debts were handled by xingming in the lower Yangzi Region in the late 1800s (see Zhang Tingxiangs note, at Wang Youhuai, Banan yaolue (Essentials for handling cases), 489, 48689. Wangs book was an updated reprint of Bais). For legal issues handled by qiangu advisors, see Qiangu zhinan (A guide for qiangu advisors), 26998 and 42732; Wang Youhuai, Qiangu beiyao (Important things for qiangu advisors); Xue Linpu, Muxue zhengzong (Authoritative teachings for private advisors), 25, 28, 37. 9 Philip C.C. Huang, Civil Justice, 21820 (citing Wang Youhuai and a late-Qing Xinzhu county gazetteer). 10 See Junjichu lufu (Beijing), No. 030135069 (Zhili, 17711774), 030134048 (Zhejiang, 1773). Cf. Gao Huanyue, Qingdai xingming muyou, 32. Scholars often forget that lieutenant governors also hired muyou to handle legal disputes, in addition to fiscal matters. See, e.g., Qingdai gongzhongdang zouzhe ji junjichu dangzhejian (Taibei) (cited as QDGZD), No. 404014616 (JQ14/6/26); Wan Weihan, Chenggui shiyi (Additional collection of established regulations), 9a30a. For translation of anchashi and buzhengshi, see Guy, Qing Governors, 376, 47. 11 Qing private advisors were often trained, or hired below the provincial level, for both xingming and qiangu matters. See Gong E, Xuehongxuan (Letters from the Snow Swan Studio), 251, 235; Chen Tianxi, Chizhuang (Memoir), 1:4, 14, 3435, 38, 40, 48, 61. Most circuit intendants advisors combined the two jobs. Junjichu lufu, No. 030135069 (Zhili, 1773), 030136005 (Jiangsu, 1773), 030142063 (Zhejiang, 1774). 12 See Dong Gongzhen, Qiangu xingming bianlan (A convenient guide for legal advisors, 1734); Wan Weihan, Xingqian zhinan (Guide for xingming and qiangu advisors, 1770p); Wang Youhuai, Xingqian bilan (Essential guide, 1793p); Pan Biaocan, Weixin bian (An unreliable treatise, 1684p), juan 12 (qiangu), juan 34 (xingming); Sun Hong, Weizheng diyibian (Manuals for governance, part I, 1702p), juan 34 (xingming), juan 56 (qiangu); Chen Wenguang, Bu Weixin bian (Supplement to An Unreliable Treatise, 1707p), juan 23. A qiangu advisors duties of financial management also required knowledge about various laws and regulations. See Qiangu zhinan, 27998 and 42732 (on legal issues handled by qiangu); Xie Minghuang, Qiangu shicheng (Expecting success) (starting with a section on the law code).

Legal Specialists and Judicial Administration in Late Imperial China

two decades, even noted that people found it hard to distinguish a xingming from a qiangu advisor in their division of labor in judicial administration.13 A reexamination of these legal advisors seems particularly necessary given that they presumably had a far greater impact on Qing Chinas law and justice than the outlawed litigation masters who have been extensively studied by those like Fuma Susumu, Melissa Macauley, Chiu Pengsheng, and Deng Jianpeng.14 The Background, Training, and Spread of Qing Legal Adviors The Rise of Private Legal Advisors in the Ming It is now impossible to know exactly when private legal advisors similar to those in the Qing Dynasty first came into being, but we can still find some signposts of their earlier trajectory. There was no mention yet of muyou (as private legal advisors) in the dozens of extant administrative handbooks published before 1640, although Qing legal advisors could probably find their prototypes as early as the late Yuan (12791368).15 According to official records, local administration in the late Yuan and the early Ming (13681644) was so overwhelming to many local officials that it was often managed by government clerks who in turn relied on private administrative specialists called chief drafters (zhuwen) assisted by junior writers (tieshu and xiaoshusheng)and fiscal managers (shusuan).16 The zhuwen and shusuan of the Ming seem to have played a role similar to that of xingming and qiangu advisors respectively in the Qing, but the former were hired by government clerks while the latter were hired generally by county magistrates and their superior ranking officials. Edicts by the Hongwu emperor in 138587 showed that these private administrative specialists were already common in places like Songjiang, Suzhou, and Huizhou prefectures in the lower Yangzi region. Hongwu and his successors treated them like litigation
Bai Ruzhen, Xingming yide, 1:32a. Fuma, Litigation Masters; Fuma, Songshi miben Xiaocao yibi de chuxian (Emergence of the secret pettifogger handbook); Chiu Pengsheng, Dang fal yushang jingji (When law meets economy), 95132; Deng, Songshi miben (Secret pettifogger handbooks), 7174. 15 See, e.g., Mumin zhengyao (Essentials on government); Jiang Tingbi, Pushan Jianggong zhengxun (Teachings on governance); Xu Tang, Juguan geyan (Maxims for office holders). A handbook of 1535 still uses the centuries-old term muguan or mubin to refer to the staff foremen (shoulingguan) in the county yamen. Wang Tianxi, Guanzhen jiyao (Collected writings on administration), 26869, 272, 297; see Chushi lu (Readings for novice officials), 49 (using muguan). 16 See Ming shilu: Taizu shilu (Veritable records of Ming Taizu), 2010 (juan 126:1a [Dec. 25, 1379]). See He Chaohui, Mingdai zhixian muyou (A short study of muyou), 141; Ibid., Mingdai xianzheng (A study of Ming county government), 9294. Shusuan were also hired by clerks for fiscal matters at least from the 1400s on. Ming shilu: Xiaozong shilu (Veritable records of Ming Xiaozong), 3731 (juan 201:4ab) (zhuwen and shusuan). Huo Mianzhai ji, 5:39 (juan 13), quoted in Liang Fanzhong, Liang Fangzhong dushu ji (Reading notes), 354; Wang Tingxiang, Wang Tingxiang ji (Collection of writings), 1164.
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masters or unregistered yamen runners because they reportedly loafed around the local yamen for self-enrichment at the expense of the state and ignorant people.17 A case from 1387 indicates that the job of chief drafter had already become more attractive to at least some Ming literati than an orthodox official career by this time.18 In 1592, like other contemporary commentators, L Kun (15361618, jinshi 1574), a model Ming official, still defined chief drafters or zhuwen as those experienced individuals who prepared virtually all the judicial documents for the clerks at the county through the provincial yamen. He implied that it was commonplace for local officials to depend on clerks who in turn relied on chief drafters for their judicial duties.19 By 1600, however, a transition seems to have gained momentum as more and more local officials hired chief drafters as their private legal advisors. Li Le (1532?1619? jinshi 1568), a Ming local official, observed in about 1601 that among the magistrates he knew, four or five out of ten had hired a zhuwen to accompany them to their offices.20 In a 1612 preface to his famous Commentary on the Ming Code with Substatutes, Wang Kentang (15491613, jinshi 1589), a leading Ming jurist, also confirmed that local officials commonly employed private specialists to administer law for them: Most officials had no legal knowledge when they were students of the Classics (jingsheng). After they assumed the duty of governance (minshe), they were still indifferent [to law] and relied upon clerks (lishu) to handle everything or brought with them litigation masters (songshi) or former clerks (bali) from their hometown as chief drafters (zhuwen) who then wielded power and took bribery (zhaoquan nahui) and did myriad other things harmful to the people.21 As more and more local officials were unwilling or unable to develop legal expertise, they simply hired legal specialists as their private advisors to take care of their judicial work and check on the government clerks they used to depend on.
Yuzhi dagao (Imperially compiled grand pronouncements), xubian (Part 2, 13851386):1b2a (No.2), 8b (No. 9), 39a (No. 47), 61a64b (No. 7475). 18 Yuzhi dagao, sanbian (Part 3, 1387): 47a (No. 13). 19 L Kun, Xinwu L Xiansheng Shizheng lu (Records of real governance), 411 (zhaoni tuo guanbi zhuwen). See Xinguan guifan (Guidelines for new officials), 738 (written around 1565) (indicating zhuwen as private advisors to clerks of the six departments of the yamen). 20 Li Le, Jianwen zaji (Miscellaneous things), 706. His family also attempted to hire a zhuwen for him when he was first appointed a county magistrate in Jiangxi. 21 Wang Kentang, Preface (1612), in Wang Kentang and Gu Ding, Lli jianshi (Commentaries on the Ming Code), 1:2a4b and 3b (for quotation). About Wang Kentang and Wang Qiao, see Chiu Pengsheng, Dang fal yushang jingji, 5594, 125.
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What factors might have caused the spread and rising influence of these private legal and administrative specialists in the Ming-Qing period? While the number of local offices in mid and late imperial China remained relatively small and stable, the expansion of the population and increasingly commercialized economy after the Southern Song (11271279) gave rise to more complicated economic transactions and social relations and in turn an increasingly complex and understaffed judicial system.22 First, there were already complaints in the Song about local officials overburdened by administrative and judicial duties.23 Hu Zhiyu (122793), a former provincial judge of the early Yuan Dynasty, also lamented that most county magistrates had difficulty managing their official paperwork and judicial matters (andu) and depended on their clerks (wenfali). He proposed that all candidates for magistracies be examined on how well they could write legal judgments (shupan) and how much they knew about governance.24 The growing number of new laws and regulations and leading cases in the Ming made it even harder for local officials to master the legal system. A handbook of 1629 thus urged new officials to find a legal specialist (xingming fajia) with whom to study the statutes (l) and substatutes (li) day and night so that they would be able to supervise their clerks or the latters private assistants.25 In an influential handbook, She Ziqiang (jinshi 1592) offered similar advice to local officials.26 Second, the bureaucratic restructuring in the Ming from the fifteenth century on also had its impact. Regional inspectors or grand coordinatorspredecessors of Qing provincial governorswere sent periodically by the Ming court to supervise local administration. Without a permanent staff of their own, these officials began to hire (former) clerks of the central government agencies as their private aides while holding the local officials personally responsible for all aspects of local administration. In response, the officials had a greater need than before for legal/administrative experts to perform their duties and limit the activities of clerks and yamen runners. By the mid-sixteenth century,

Macauley, Social Power, 12, 36, 5358. See von Glahn et al., eds., The Song-Yuan-Ming Transition. The Song government also instituted various measures to encourage legal study. Xu Daolin, Zhongguo fazhishi, 90 and 143 (on overburdened judicial officials in the Song); Zhouxian tigang (Outlines for county magistrates), 44. 24 Hu Zhiyu, Zishan daquanji (Complete collecton of works), 22:26a, and 23:5a, 8:27b28a. 25 Chushi yaolan (Essential readings for novice officials), 3233. See Chushi lu, 41 (studying the Ming Code with an expert on judicial reports (shan xingyi zhe); Xinguan guifan, 739 (studying law with an expert (tongxiao xingming ren) in a private room). 26 She Ziqiang, Zhipu (A treatise on governance), 11317, also 87; 88 (mentioning zhanggao, probably another name of zhuwen)
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these developments had transformed the organization of local government.27 Although the early Ming court resented these private specialists as immoral trouble-makers and enacted a law as early as the 1390s to punish them by military exile, the imperial government was later compelled to recognize the necessity of their expertise for local administration and limit that penalty in 1503 only to those habitual private specialists (zhuwen and shusuan) actually convicted of manipulating local officials/clerks, taking bribery, evading taxes, or inciting or suppressing litigation to harm innocent people.28 A handbook from the 1530s explicitly suggested that new officials not rush to dismiss veteran chief drafters in the yamen because their legal expertise might be indispensable when the clerks were unable to handle the more complicated cases.29 Finally, the growing demand for legal expertise on the part of local administrators as well as private litigants coincided with a depreciation of lower literati status and a decrease in their opportunities for official appointments, and consequently a steady supply of educated Chinese for alternative careers. Because of population growth and further spread of printing technology and literacy in the Ming, an increasing number of literati who failed the civil exams or failed to obtain an official position had to make a living as private tutors, commercial publishers, doctors, or private legal practitioners.30 Fuma Susumu has documented a surge in popularity of so-called secret pettifogger handbooks in the late Ming and the Qing, spearheaded by Xiaocao yibi (Bequeathed Writings of Xiao [He] and Cao [Can]).31 The official representation of litigation masters (as well as yamen functionaries) as cunning tricksters feeding on the inexperience or ignorance of officials and litigants made local officials even more anxious for the assistance of private legal advisors.32 In turn, the spread of litigation masters and legal advisors across the empire in the late Ming and
Miao Quanji, Qingdai mufu, 512; Miao Quanji, Mingdai xli (Government clerks and staff in the Ming Dynasty); Nimick, Local Administration, 86 and 91 (for the quotations), also 7890. Nimick translated xunan as regional inspectors and xunfu as grand coordinators in the Ming. About the entrenched staff, see Nimick, Local Administration, 97129; Guo Runtao, Guanfu, 3135. About the Qing, see Reed, Talons and Teeth. 28 Zhusi zhizhang: xingbu, sikemen (1393), quoted in Da Ming huidian (Collected laws and regulations of the great Ming), 175:1ab; Ming shilu: Xiaozong shilu, 373132 (juan 120:4ab) (HZ16/7/15, Aug. 6, 1503), reconfirmed in Da Ming huidian, 175:2ab (1550). Cf. Da Ming l jiejie fuli (The Ming Code with commentaries and substatutes), 22:29a30a. 29 Xinguan guifan, 739. 30 Elman, A Cultural History, 464 and chapter 1; Angela Ki-che Leung, Medical Learning, 65192. 31 Xiao He (d. 193 B.C.E.) helped Liu Bang found the Han Dynasty and was credited for drafting the Han laws; Cao Can succeeded Xiao and adhered to what he had laid down. Fuma suggests that Xiaocao yibi was first published probably between 1510 and 1595. Fuma, Songshi miben Xiaocao yibi, 46366 (listing at least 37 extant editions published from then to the early 1900s), 479887; Macauley, Social Power, 4244. 32 Wang Huizu, Zuozhi yaoyan, 132. Also see Chiu Pengsheng, Dang fal yushang jingji, 95156.
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the early Qing also meant that the privatization and commodification of legal expertise as a kind of practical knowledge (shixue) intensified. As a result, the imperial government also suffered a considerable loss of control over the administration and interpretation of law and justice. The Spread of Private Legal Advisors in the Qing We have more concrete evidence about legal advisors in the early Qing period than in the Ming. As early as 1651, barely seven years after the Manchus established the Qing as the ruling house of China, the influence of private legal advisors in local administration already caught the attention of the Shunzhi emperor (r. 164461). Expressing serious concerns about maladministration at the local level (lizhi buxiao), he noted that those less competent local officials completely relied upon private advisors to write official documents and judicial reports (wenyi zhaoxiang quanping muyou daibi).33 Extant collections of judicial records from the 1660s through the 1720s by Qing legal advisors supported the Shunzhi emperors observation that private advisors were the de facto authors of legal judgments in numerous local offices at least from the late seventeenth century on. Prefaced in 1684, Pan Biaocans Weixin bian (An Unreliable Treatise) is one of the earliest extant publications by Qing legal advisors. A shengyuan degree holder and native of Hangzhou in Zhejiang, he had been a legal advisor to county magistrates in places like Jiangsu, Zhili, and Shanxi from 1668 to 1682. At least five of his students (menren) in that professionand six nephews or sons-in-law who might well have been his students as wellwere credited with editing and printing this handbook.34 Another anthology, Zhishang jinglun (Statesmanship on Paper), includes a sample of about sixty judicial decisions written by Wu Hong in the name of county magistrates or prefects he advised from 1680 to 1701. He had practiced law as an advisor for almost four decades in Shandong, Zhili, Shanxi, Shaanxi, and the Yangzi Delta before compiling this collection in 1721.35 These publications are noteworthy because private advisors often refrained from claiming credit

Shunzhi described the officials as uneducated (bushi wenyi) probably in the sense that inexperienced officials were unable to handle complicated administrative duties. Qing shilu (Veritable records of the Qing), 3:427 (SZ 8/r2/9 or March 29, 1651). 34 See the prefaces on his career and the first page of each chapter (juan) on his students. For a magistrate explicitly crediting his role, see Pan Biaocan, Weixin bian, 2:15a, juan 34 (on judicial matters), and 4:1052 (on forensics). 35 Wu Hong, Zhishang jinglun (Statesmanship on paper), 14143.
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openly for legal decisions made on behalf of their host officials while the latter frequently published these writings under their own names.36 Wang Kentangs Commentary on the Ming Code, noted above, became one of the few most influential legal treatises throughout the Qing partly because it was edited, updated, and reprinted in 1691 by a legal advisor named Gu Ding, originally from Suzhou. For more than twenty years, Gu had been using Wangs book when advising officials in southeast and northwest China. When he returned from Guizhou and Yunnan about 1691, he happened to see two old friends in Guangzhou, probably also legal advisors, who praised the value of Wangs Commentary and urged its update.37 A sequel to Pan Biaocans abovementioned handbook was published around 1707. The author, Chen Wenguang, was a native of Pingjiang in Hunan province who entered the profession of legal advisors after he failed the civil examination in 1690. He first worked in Zhili, Shaanxi, and Sichuan before moving across the country with an official to work in different county yamen in Jiangsu after 1696. Later, he met an official named Gu Sixie in Beijing in 1705 who hired him for his post at Xinhui county, Guangdong.38 That these early Qing legal advisors, originally from various provinces, travelled far away from home, worked in multiple regions, and reached even the frontier provinces like Yunnan, Guizhou, and Guangdong, suggests that it had already become a nationwide practice to hire legal advisors for local judicial administration by 1700. In fact, when former Magistrate Huang Liuhong (1633?) completed one of the most influential Qing administrative handbooks, Fuhui quanshu, in 1694, his advice for new officials was to select their legal advisors carefully. As he put it, district and county [magistrates] have a lot of work to do, and naturally need help with finance (qiangu), law (xingming), and writing (shuqi).39 Fittingly, Pan Biaocans Unreliable Treatise was the only work explicitly credited as a model for Huangs book.40 Confucian Literati as Jurists: Legal Training Historians of early modern English professions have criticized sociologists who refuse to recognize any specialized occupation groups in earlier time pe36 For other collections by early Qing muyou, see Chen Wenguang, Bu Weixin bian; Wei Jirui, Sicitang gao (Drafts from the Sici Hall). Wang Zhaoyong kept no records of his work for Liangguang Governor-General Cen Chunxuan in 190506 because he felt that he should not overshadow the name of his host. Wang Zhaoyong, Weishang laoren (Chronological biography), 26, also 62 (related to earlier hosts). 37 See the prefaces dated 1691 at Wang Kentang and Gu Ding, Lli jianshi, 3b4a, 2b. 38 See the prefaces in Chen Wenguang, Bu Weixin bian. 39 Huang Liuhong, Fuhui quanshu (The complete book concerning happiness and benevolence), 22829. 40 Huang Liuhong, Fuhui quanshu, 217.

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riods or in different societies as a profession just because the latter did not meet all the criteria of post-1800 North American or European professionalism, such as formal training, a shared sense of calling, social distinction, and a licensing and regulatory agency.41 By the same token, without assuming that their foreign or modern counterparts offer a normative standard, this section shows how literati-turned-jurists developed their professional identity, a set of ethical ideals to guide their practice, and a body of specialized knowledge through studying, training, and practice. Like their contemporary western counterparts in the legal profession, Chinese literati obtained their legal expertise through apprenticeship including both book learning and practical training. To commence the master-apprentice or teacherstudent relationship, there would usually be a ceremony, accompanied by a gift to the teacher. Afterwards, the student would move into the official compound (or yamen) where his teacher was working. The county yamen was considered the best training ground for a starting student; there he was more likely to acquire the essential skills and knowledge for his career by dealing with all kinds of basic matters of local administration.42 As Wan Weihan (17001770s?) noted in the eighteenth century, everything [about local administration] had its origins in the district/county level. Wang Xianyi, another advisor, one century later echoed that a legal advisor could have a true picture of the circumstances and sentiments of the people (minqing) only if they started their training at the county level.43 Ideally, after two or three years of study, the student would move to one of the provincial offices to learn how to review the lower courts decisions or report to the higher authorities including the emperor himself.44 Wang Shiren apprenticed with Zhang Tingxiang in the Zhili provincial judges office for a few years before being hired in 1882.45 Likewise, Chen Tianxi (18851975) studied for three years with his older brother, Chen Tiancong, at four county yamens in Hunan before he became a student of Wu Tongshou in 1905, who was then advising the acting Hunan governor. Tianxi commenced his career
By standards of modern sociology, many legal specialists (esp. the lower echelons, or attorneys and solicitors) in pre-1700 England were not qualified as professionals because they lacked formal mechanism to regulate their training, licensing, or practice. Cf. ODay, The Professions, 156180, 250, 258, 49 (for a critique). 42 Quan Zengyou, Qingdai muliao zhidu lun (2) (On the Qing system of private advisors), 3738; Miao Quanji, Qingdai mufu, 15051. 43 Wan Weihan, Muxue juyao, 22; Wang Xianyi, Jiayan suiji (Random words noted at home), 1:19a. 44 Quan Zengyou, Qingdai muliao zhidu lun (2): 3738; Miao, Qingdai mufu, 15051. 45 Wang Shiren, Postface (1883), in Zhang Tingxiang, ed., Rumu xuzhi wuzhong (Five essential works for entering the muyou profession), 643.
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as a legal advisor after four years of training.46 Not all private legal advisors started apprenticeship at the county level. Tiancong started with Wu Tongshou at the Changsha prefects yamen in 1895. Four years later, his younger brother, Chengzhao, studied with Li Lianhang at the Hunan provincial judges office.47 In the course of training, a student normally started with the statutes and substatutes of the Qing Code. He was expected first to understand its general structure, key terms, and then nuanced differences between, and practical implications of, specific statutes in the Code.48 In a handbook for private advisors prefaced in 1786, Wang Huizu (17301807), one of the most renowned Qing legal advisors, aptly explained the importance of solid legal knowledge: Private advisors (muke) can assist officials only because they have studied and understood the law. All legal provisions have their essence and are designed to promote benevolence (ren) and justice (yi) ultimately and it is not easy to fully understand them. Without grasping the similarities and differences between these legal provisions, few can avoid mistakes that seem insignificant but actually make the outcome [of the judgments] vastly different. Law to private advisors may be like the Four Classics (sizishu) to an examination candidate (xiucai), [but] the consequences of misconstruing the Classics are limited to failure in the exams while misinterpretation of the law can put human lives in danger.49 In 1902, more than one century later, Chen Tianxis brother and teacher, Chen Tiancong, used similar language to explain why muyou apprentices should develop thorough legal knowledge.50 Private commentaries on the Qing Code were helpful for law students. Besides the 1691 updated version of Wang Kentangs Commentary by legal advisor Gu Ding, a law student could also consult the acclaimed Collected Commentaries on the Great Qing Code published in 1715 by Shen Zhiqi, an influential legal advisor from Jiaxing in Zhejiang who practiced for over three decades from about 1685, or commentaries by other advisors including Wan Weihan.51 Various
Chen Tianxi, Chizhuang, 1:4853. Both are Chen Tianxis older brothers. Chen Tianxi, Chizhuang, 1:12 (Chen Tianchong), 27 (Chen Chengzhao). 48 Chen Tianxi, Chizhuang, 1:34; Wang Zhaoyong, Weishang laoren, 8 (also told by his father/teacher to study the laws and regulations as the first step of his xingmu training in 1882). 49 Wang Huizu, Zuozhi yaoyan, 145. 50 Chen Tianxi, Chizhuang, 1:34 (Chen Tianchong did not cite Wang Huizu). 51 Shen Zhiqi, Da Qing l jizhu (Collected commentaries on the Great Qing Code). About him, see Fu-mei Chang Chen, The Influence of Shen. For methods of understanding the Code, see Wang Mingde, Dul peixi (A guide for deciperhing the code), 154. Also see Wan Weihans commentary, Da Qing lli jizhu (1786).
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other study aids were also available to legal advisors (as well as local officials) in the eighteenth and the nineteenth centuries. For instance, Shen Xintians Mingfa zhizhang, first printed in 1740, made it much easier to understand how different types of offenses should be punished, by representing the contents of the Qing Code in synoptic tables. Shen himself had been a legal advisor sought after by local officials and provincial judges in Guizhou, Sichuan, and Guangxi.52 These treatises and handbooks were frequently updated to incorporate the newly codified substatutes and regulations. Depending on their intelligence and education, it might take most students four to twelve months to go over the statutes and substatutes. Those students with difficulty grasping the law at this stage might be less suitable for the legal profession and were advised to find an alternative career to avoid unemployment in a competitive job market.53 Even for someone like Liu Heng (17761841), who had studied law at home before becoming a county magistrate for seven years in Guangdong, it still took eight months of devoted study to get a basic grasp of the law in 1821 when he was a private advisor to the Xian prefect in Shaanxi.54 Aside from the prerequisite study of the Qing Code, the student studied or at least selectively read collections of imperial edicts (yuzhi), regulations (shili or zeli) of the different ministries of the central government, leading treatises on forensic examinations by Qing legal advisors like Lu Zhou or Wang Youhuai, and major handbooks published by early Qing advisors like Pan Biaocan, Wang Weihan, Wang Huizu and so on.55 The students reading list also included the standard texts on literature, history, and Confucian classics.56 It has been noted that most members of the upper branch of the early modern English legal profession shared a similar educational background and studied the same classical and Christian humanist curriculum which served as a common ground unifying the learned professions while distinguishing them from other craftsmen and tradespersons.57 It appears that the training program of Qing legal advisors had similar effects in providing these literati-turned-jurists with a more or less generally agreed-upon notion of ideal justice and jurists. The curriculum for Qing legal advisors echoed the ideals of modern legal education in emphasiz52 Shen Xintian and Niu Dawei, Mingfa zhizhang (The Qing Code in tabulated forms). For Shens career, see Li Xiqins preface (1743) to Mingfa zhizhang. 53 Wang Huizu, Zuozhi yaoyan, 16364; Miao Quanji, Qingdai mufu, 14750. 54 Liu Heng, Dul xinde (Tips about studying the law), 1:3ab. 55 Besides the Code, Chen Tianxi listed Xingan huilan and Xiyuan lu as must-reads, and Da Qing huidian and shili and Liubu chufen tiaoli as should-reads, while recommending Zuozhi yaoyan and Fuhui quanshu as useful readings. Chen Tianxi, Chizhuang, 1:35; Miao Quanji, Qingdai mufu, 15456. Also see, e.g., Lu, Xiyuan huibian (Compendium of Washing away of Wrongs); Wang, et al., eds., Xiyuan lu jizheng huizuan. 56 Miao Quanji, Qingdai mufu, 157. 57 ODay, The Professions, 149, 258. The upper branch of the common law professionals refer to law students, barristers, serjeants, and judges who were regulated by the Inns of Court (12640).

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ing comprehensive humanistic education, professional ethics, and social justice beyond the letter of law. Along with theoretical study, another essential component of the training was to learn how to handle judicial and other administrative matters in practice. Under the teachers supervision, the student read through complex old cases and then learned how to comment on the plaints or complaints (chengci) or write judgments (pan). Once he had grasped the basics, he could help summarize depositions, decide minor cases, prepare for more complex trials, or draft the legal reports that recounted the relevant facts and explained the applicable laws and judgments. The teacher might periodically review the students work and progress.58 At this stage, the student could profitably read handbooks by some local administrators or veteran legal advisors like Wang Weihan, Bai Ruzhen, or Wang Youfu on how to investigate and adjudicate different types of cases and write legal reports.59 Close examination of old decisions, especially leading cases (chengan) approved by the Ministry of Justice and the throne, was strongly recommended because the student could thus develop the vital skills of writing a cogent and coherent legal report and understand why certain legal judgments were reversed by higher courts and how the statutes and substatutes of the Qing Code were interpreted, applied, and distinguished in judicial practice. This partly explains why various legal advisors took pains to compile monumental collections of leading cases. Men like Hong Hongxu did so almost a century before Zhu Qingqi, a legal advisor from Guiji county, helped compile the famous Xingan huilan (Conspectus of Legal Cases) in 1834.60 Since many would work as a xingming and a qiangu advisor simultaneously or at different points of their career, it was advisable for apprentices to qualify for both types of jobs by including taxation, accounting, and other fiscal matters as part of their training. This entire process usually took about three years before the students/apprentices were considered ready for a job placement.61 Some apprenticed for
Chen Tianxi, Chizhuang, 1:35. Zhang Tingxiang noted that apprentices in Zhili often started with adjudication, but he thought it important to study the law first. Zhang Tingxiang, Zhuiyan shize (Ten extra suggestions), 63536. 59 See, e.g., Bai Ruzhen, Xingming yide, juan 1 and 2; Wang, Banan yaolue, 43186 (on investigation and adjudication), 491531 (on drafting legal reports); Xingmu yaolue (Essentials for legal advisors), 53950; Xue Linpu, Muxue zhengzong, 413, 43119. 60 Sun Lun, Dingli chengan hejuan (A collection of regulations and leading cases); Hong Hongxu, Chengan zhiyi (Doubtful points about leading cases); Zhu, et al., Xingan huilan sanbian (Conspectus of legal cases). Also see Chen Tianxi, Chizhuang, 1:35 (noting that Zhus collection was a must-read for muyou apprentices), 49. 61 Chen Tianxi, Qingdai mubin (Qing private advisors), 52, also 32 and 41 (his two brothers both started working as xingmu after three years of training); Chen Tianxi, Chizhuang, 1:35; Shaoxing xianzhi ziliao
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four to six years.62 Given the fairly long and demanding process of training, a very high rate of attrition was only natural. Gong E (zi Weizhai, 1740?1810?), a native of Shaoxing prefecture and a Qing legal advisor for almost forty years after 1758, even claimed that out of one thousand muyou apprentices (xuemu), not more than one hundred eventually succeeded [in finishing the training] and that among the hundred candidates for muyou positions (jiumu), only dozens could actually obtain them (rumu).63 He reasoned that although it might be easier to become a private advisor than an official, a good candidate for this profession must possess certain essential attributes or qualities. First, he should have such a good command of statecraft literature (xiongyou jingji) and current affairs (tongda shiwu) that he can not only write well but also handle all situations well. Second, he should still be in his twenties with a good memory and able to learn and comprehend things quickly. And third, he should be talented, socially adept, and eloquent. Otherwise, an apprentice might end up a mediocre advisor.64 In other words, before committing oneself to the legal profession, an ideal candidate should have the requisite intelligence, education, and writing, analytical, research, and communication skills. More or less agreeing on these criteria, other leading legal advisors like Wang Huizu and Zhang Tingxiang and local officials like Huang Liuhong also stressed the crucial importance of moral virtue or professional ethics of the legal advisors.65 Some legal advisors did not follow this common pattern of apprenticeship. For instance, Wang Huizu started as a shuji (drafting) muyou for his father-in-law, Jinshan county magistrate in Jiangsu, in early 1752. He then studied law in his spare time; in the year of 1755, he received instruction from a colleague and legal advisor named Luo Biao in the Changzhou prefects office. For a few months in the following year, he assisted Mr. Qin, legal advisor to Magistrate Wei Tingkui of Wuxi county in Jiangsu. Although he otherwise remained a shuji for Hu Wenbo
(Materials for the Shaoxing county gazetteer, hereinafter cited as SXXZZL), 27:29b30a (Wu Zongmei spent three years on apprenticeship in Henan after 1836), and 29:137b (Hu Zuwang apprenticed with his grandfather for a few years); Zhang Tingxiang, Rumu xuzhi wuzhong, 643 (Wang Shiren spent a few years apprenticing); Wang Xianyi, Jiayan suiji, 10 (hired after learning adjudication for two years); Feng Hao, Mengting jushi wengao (Writings), 1:9a. 62 Zhou, Xinji xingan (A new compendium of legal cases), 31b (4 years of training for Fang Pu). Huang Dingqi (17781855), an advisor for three decades, studied law (and other subjects) for six years before his first job. See Huang Dingqi, Chuilao dushulu shicao (Poetry and essays), 2a. 63 Gong E, Xuehongxuan, 361, see 40, 244 and 247 (for the term of his practice); Chen Tianxi, Chizhuang, 1:38. 64 Gong E, Xuehonghuan, 361. 65 Wang Huizu, Zuozhi yaoyan, 163. Those with good common sense (shili), talent (cai), virtue (pin), legal expertise and excellent writing skills were the best muyou candidates (Zhang Tingxiang, Zhuiyan shize, 63435).

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(a prefect and then a circuit intendant in Jiangsu) from early 1754 to late 1759, he helped handle various legal matters for Hus office. After about six years of learning and practice on the job, Wang felt confident about his preparation for a legal career and finally quit his shuji position in 1760 to become a full-time legal advisor for the next twenty-five years. Although Wang did not start as a full-time apprentice muyou because he had to work and support his family after the untimely death of his father (who was once a legal advisor as well), it took him a few more years to complete the legal training.66 In general, Qing legal advisors were expected to study law and adjudication for at least two to four years before they were considered qualified. This expectation or requirement of extensive training and specialized knowledge distinguished them from other types of muyou and distinguished their profession from most other alternative careers pursued by Qing literati.67 Among the one hundred or so muyou featured in the biographical sections (renwu liezhuan) in the Shaoxing gazetteer compiled in 1937, we can identify at least sixty legal advisors roughly from 1660 to 1910 and over half of them were explicitly described to have studied (du, xue, or xi) law before entering that profession.68 This is also supported by examples from other locales, including Chen Tianxi and his brothers and classmates. We will discuss this emphasis on legal study below. The similar process of legal training and common set of handbooks would presumably have facilitated what Thomas Buoye has described as the routinization of [legal] reporting that had been firmly entrenched by the eighteenth century and allowed the elaborate Qing judicial review to continue despite a large number of capital cases automatically requiring review.69 By the early nineteenth century, some institutionalized training programs or schools (xiban) had reportedly been established for legal advisors in places like Baoding, which housed the offices of not only the Baoding prefect but also the Zhili provincial judge and governors and became a hub for Qing legal advisors in North China. In the 1790s, Gong E mentioned that a large number of Zhejiang natives, apparently in the profession of legal advisors, settled in the Baoding area, and one of his relatives back in Shaoxing also requested to
See Wang Huizu, Xu Zuozhi yaoyan (A supplement to Medicinal Words), 11112; Qu, Wang Huizu zhuanshu; Bao, Shaoxing shiye, 116. 67 For distinctions between legal advisors and other types of muyou, see Wan Weihan, Muxue juyao, 2637. 68 This gazetteer covers the former Shanyin and Guiji counties, which formed the new Shaoxing county in 1911. See, e.g., SXXZZL, 25:107a, 108b, 26:119ab, 120b, 151a, 27:3b, 7a, 10b, 20a, 23b, 29b30a, 28:48b, 54b, 62b, 74b, 75b, 76b, 81b, 29:129b, 137b, 146a, 149a, 150a, 155a, 30:156a, 160b161a, 198a, 202b, 210b, 211ab, 214b. 69 Buoye, Suddenly Murderous Intent Arose: 6566.
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be a muyou apprentice in Baoding.70 Luo Zhao (181178), a native of Shaoxing, went to Baoding in 1835 for legal training, and his younger brother Luo Wenguang followed suit. Both later became famous legal advisors.71 Zhang Baogu (18701934), a would-be long-time legal advisor to the Zhili provincial judges, was another one who studied law at Baoding.72 Social and Cultural Capital for Legal Advisors Some newly minted legal advisors started out as an assistant (fushou) to a more experienced legal practitioner.73 Those who came from families with a tradition of producing legal advisors or who studied with famed legal advisors could have a competitive advantage in getting better training and jobs through their relatives or teachers network.74 For example, Shao Ruchun and his father were both advisors in Shaanxi province.75 The family of the Republican statesman, Wang Jingwei (a.k.a. Wang Zhaoming, 18831944), from Shaoxing, capitalized on the social network and legal knowledge of his great grandfather, Wang Jie (17561832), to produce at least thirteen legal advisors working in various yamen in Guangdong from 1810 to 1911.76 A Tao lineage in Guiji county of Shaoxing even boasted over thirty (including at least sixteen xingming) muyou among its members.77 In addition to the lineage and native-place connections, the teacher-student network was also important to a legal advisors career. For instance, Meng Hushi, a native of Guiji county in Shaoxing, was a legal advisor in Jiangxi province for fifty yearshelping a succession of provincial judges in the 1820s through the early 1850s. He boasted over seventy disciples in the profession. His position could allow him to recommend, if not impose, his students as advisors to the county and prefectural officials.78 Likewise, from the mid-nineteenth century to
Gong E, Xuehongxuan, 68, 173, 34142, 351, 360. Also see Xu Zhongyuan, Sanyi bitan (Talking points about unusual things), 97; Wu, Qingdai lizhi, 193. 71 SXXZZL, 29:149a150a (Luo Zhao); Shaoxing xianzhi (Shaoxing county gazetteer), 2326 (Luo Wenguang as a xiban graduate); Guo Runtao, Guanfu, 148. 72 SXXZZL, 30:214b215a (Zhang Baogu, 18701934). 73 This was also called bangguan (Chen Tianxi, Chizhuang, 1:51 (1906)). See Xu Simei, Qiushuixuan chidu (Letters from the Autumn Water Studio), 8 (fuxi for a few years). Wu, Qingdai lizhi, 132. 74 See, e.g., SXXZZL, 26:143b, 28:61b, 62a, 87b88a, 29:114a115a, 137b, 149a150a, 155a, 30:196a, 211ab. 75 SXXZZL, 26:143b. Chen Zuwang, a famous advisor in Southeast China, was also son of a famous advisor in Jiangsu and Anhui. SXXZZL, 27:16b; Shaoxing xianzhi, 3:2116. 76 Wang, Shanyin Wangshipu (Genealogy of the Wang lineage of Shanyin), 52104; SXXZZL, 273b4a, 28:49, 28:80a, Shaoxing xianzhi, 3:2176. 77 Tao Zaiming, Guiji Taoshi zupu (Genealogy of the Tao lineage), juan 1317, 19. 78 He died in his eighties. See Ren Daorongs preface and Meng Qingyuans postface in Meng Hushi, Xingan chengshi (Model cases for adjudication).
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the end of the Qing dynasty, positions as legal advisors in Hunan province were almost monopolized by Ren Lin and his four famous studentsWang Shian, Pan Jilu, Wu Tongshou, and a Mr. Fengas well as the students of the latter four (including Chen Tianxi and his brother). They filled many coveted positions in the provincial and lower yamen by recommending members of their own network to the officials. Although this influential network alarmed the imperial censors and the Qing court and led to the downfall of the master, Ren Lin, in 1896, its members continued their dominant presence in the local yamen until 1911.79 We have many other similar examples. In this sense, the much-needed legal expertise was translated into cultural and social capital to help secure a successful and rewarding career for these Qing private legal practitioners. Economic Status and Financial Compensation The relatively attractive salary partly explained why so many Qing literati chose to become legal advisors. In the early 1670s, principal advisors such as qiangu or shuqi to provincial governors or governors-general in Zhejiang and Fujian were paid 500 taels per year.80 When Wang Huizu, then a shengyuan, was hired as a private tutor for seven students in 1747, his annual salary was only 12,000 (diao) copper coins, which was worth about 15 taels of silver around 1761 or 12 taels in 1786.81 In contrast, the annual salary for a shuqi/shuhao or zhengbi muyou at the county and prefectural levels in this period ranged from about 40 to 100 taels while that of xingming and qiangu advisors could be 260 and 220 taels respectively. The next few decades saw the annual salaries gradually rising, to as high as 800 taels in 178485.82 That was how much a legal advisor was paid by Yunnan lieutenant governor Qian Du in the early 1770s.83 In

Chen Tianxi, Chizhuang, 1:5, 12, 27, 30, 49, 51, 56. For Ren Lins prosecution, see Wang Shuzhi and Zhang Qiuhui, eds., Chen Baozhen ji (Writings of Chen Baozhen), 15054. 80 Xu Xu, Minzhong jilue, 15 and 22. 81 Qu, Wang Huizu, 2021; Wang Huizu, Bingta mengheng lu luyu fu (Trace of tears in the dream) 1:7. The worth of 1 tael of silver increased from about 800 to 1,000 copper coins in 1786 and to 1,300 in 1792 (2:49a). About the same period, the famous painter Zheng Banqiao (16931765), then magistrate of Weixian county, paid a renowned tutor of his son 80,000 copper coins per year, clearly at the high end of the pay scale (Lin Cunyang et al., Zheng Banqiao, 181). 82 Wang Huizu, Zuozhi yaoyan, 16263; Wang Huizu, Bingta mengheng lu, 1:54ab, see 1:9a and 10b (salary of Wang as a shuji muyou in the 1750s); Qu, 2021. Wangs figures might be related to the county and prefectural levels only. 83 Qianlong chao shangyudang (Imperial edicts of the Qianlong reign), 7:21 (QL37/4/21). Regarding the purchasing power, we know that 1 dou (roughly 6.25 kilograms) of rice was worth 100 copper coins around 1740 and 300 copper coins in 1792 (Wang Huizu, Bingta mengheng lu, 2:49a). In other words, the abovenoted salary for a tutor could purchase approximately 750 kilograms of milled rice in the 1740s in Shaoxing while a legal advisor, with a salary of 240 taels, could buy 12,000 kilograms of rice.
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1859, one official reported that the annual salary for a xingming or qiangu advisor averaged about 1,000 taels of silver, with a minimum of 700 or 800 taels.84 Special circumstances, such as the localities and responsibilities, meant that salaries ranged from 360 to 1,200 taels for the xingming advisors at the county level, according to Chen Tianxi, who was a legal advisor in Hunan during the last decade of the Qing.85 A similar salary range prevailed in the same period in Sichuan.86 In general, the more isolated, busier, or higher the office was, the higher the salary had to be in order to attract competent advisors. Xu Zhongyuan, a former advisor-turned-official, stated in 1827 that salaries for (legal) advisors in Yunnan, a southwestern frontier province, were particularly good and could be double the minimum of 500 or 600 taels per year.87 In an outlying place like Taiwan, the salary could be exceptionally high. When Zou Yingyuan was appointed Taiwan prefect in 1766, he promised Wang Huizu an annual salary of 1,600 taels.88About half a century later, Yao Ying (17851852), a veteran Qing official in Taiwan in the early nineteenth century, observed that the annual salary for [probably all] muyou often cost four or five thousand taels, double the standard pay in the mainland. As a result, the local officials there had a hard time making ends meet. 89 In 1888, the Xinzhu county magistrate in Taiwan reported a budgetary deficit of several thousand taels for his office each year beyond the annual revenue of 10,000 taels. Besides 300 taels as holiday gifts, the total annual salary of his several muyou amounted to 2,620 taels, including 1,000 for xingming, 800 for qiangu, 240 for shuqi, 240 for zhangfang, 100 for yuejuan (exam grader), 120 for zhengshou, and 120 for zhumo (copyist). The total compensation for them exceeded the combined salaries of 2,707 taels for 94 staff (including yamen runners) of his office.90 It is little wonder that some local officials would have their subordinates foot the bills. Records from the Nanbu and the Ba county archives in the 1850s1870s indicate that it had become a

Zhang Jixin, Daoxian huanhai jianwenlu (Things seen and heard about the bureaucracy), 267. Chen Tianxi, Qingdai mubin, 47. 86 Zhou Xun, Shuhai congtan (Miscellaneous remarks about Sichuan), 170 (ranging from 360 to 1,440 taels). 87 Xu, Sanyi bitan, 41 and 49. As legal advisor to Magistrate Yan Chongde of Suixi, a county not close to the provincial capital of Guangdong, Wang Zhaoyongs annual salary was 1,200 taels in 18941895. Wang, Weishang laoren, 1516. 88 Wang Huizu, Bingta mengheng lu, 1:32a. 89 Yao Ying, Chouyi shangyun Taigu, in Dongcha jilue, juan 1, reprinted in Ding Rijian, ed., Zhitai bigaolu (Essential advice for administration of Taiwan), 2:93b. 90 Dan-xin dangan, No. 1140700200002 (GX14/1/26); Danxin dangan xuanlu xingzheng bian chuji (First set of selected Danshui-Xinzhu archival documents on administration), 1:225.
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common practice for provincial or even prefectural officials to distribute the expenses of their legal advisors among their subordinate officials.91 The number of legal advisors in a yamen was determined not just by the officials practical needs but also by his financial ability. In the early 1770s, three legal advisors were hired by each of the provincial judges and lieutenant governors in Jiangsu, Shanxi, and Guangxi, but only two were hired by their peers in Zhejiang, Jiangxi, and Zhili, and the vast majority of the circuit intendants in all these provinces had only one advisor to perform both xingming and qiangu matters.92 Zhang Jixin (180078), a veteran local official, observed that the Sichuan provincial judges hired three legal advisors, and that their counterparts elsewhere might not be able to afford as many because of the cost.93 One of his contemporaries, Zhou Xun, echoed his comments while adding that legal advisors at the Sichuan provincial yamen were paid 1,000 to 2,000 taels a year and that most lower-level officials there had only one xingming and/or qiangu advisor(s). All these advisors would receive cash gifts on festivals from subordinate officials, with those at the provincial yamen pocketing from 3,000 to 8,000 taels each year.94 Even after the Yongzheng emperors fiscal reform greatly increased local officials salaries by adding a supplementary yanglian (honesty-nurturing) stipend, as Madeleine Zelin has shown, the annual income of fully employed legal advisors was still comparable to or even better than that of many county magistrates.95 It was little wonder then that even juren-degree holders like Wang Huizu, Bao Shichen (17751855), and Wang Zhaoyong were attracted by the relatively high salary (xiufeng) of legal advisors.96 By contrast,

Baxian dangan, No. 060400962 (XF8/2/2, 1858), 0061800965 (185859), 0062300965 (1862), 0063016003(1864), 0063304593 (1879). In 1872, 52 counties in Sichuan were asked by the governorgeneral to contribute 24 or 16 taels each to the salary of the muyou of Chengdu General (jiangjun) Kuiyu who had just been appointed to handle cases related to foreign missionaries. But these counties were instructed not to record their contributions as such. The annual salary was 800 taels, although the contributions totaled 1,056 taels. Nanbuxian dangan, No. 0624201 to 03, 0624301, 0624601 to 08. On the religious cases, see Qingmo jiaoan (Religious cases in the late Qing), juan 2, Doc. 695, 71718, 75960. 92 Junjichu lufu, No. 030135036 (Guangxi, 1773), 030136005 (Jiangsu, 1773), 030142007 (Jiangxi, 1774), 030134048 (Zhejiang, 1774), 030135069 (Zhili, 1773), 030135062 (Shanxi, 1773). Three legal advisors were hired by the Guangdong provincial judges to take charge of the Guangzhou, Chaozhou, and Huizhou divisions of its jurisdiction. See Huang Entong, ed., Yuedong shengli xinzuan (New compendium of provincial regulations of Guangdong), 7:33b. 93 Zhang Jixin, Dao-xian huanhai jianwenlu, 267. He had been a prefect in Shanxi, and lieutenant governor in Shanxi, Gansu, Henan, and then provincial judge in Sichuan before 1860. 94 Zhou Xun, Shuhai congtan, 170 (referring to xingming or qiangu advisors). See Xu, Sanyi bitan, 41 95 Officials yanglian stipends were partly used to pay muyous salaries. Zelin, The Magistrates Tael, esp. 3739, 134, 145, 159, 165; Chung-li Chang, The Income of Chinese Gentry, 13. 96 According to Bao, legal advisors earned 1,000 taels a year, probably in Anhui, around 1835. Bao, Qimin sishu, 2116 (30:20), 2119(30:21a). For Wang Huizu and Zhaoyong, see the relevant sources cited herein.
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less successful advisors like Gong E or Xu Simei (1769?1856) constantly faced job or financial insecurity. Geographic Origins, Education, and Prevalence of Legal Advisors There has been a popular perception dating from the Qing period that almost all Qing muyou were from Shaoxing prefecture in Zhejiang province. That explains why Shaoxing shiye, a colloquial term for Shaoxing muyou, has since been used as a generic name for all Qing private advisors. It is indeed true that a disproportionately large number of literati from Zhejiang worked as private advisors during the Qing. Gong E claimed in the 1790s that numerous people or no fewer than ten thousand Shaoxing families were engaging in the muyou profession in his time.97 There were some reasons for this. In the Ming-Qing period, Shaoxing prefecture, including Shanyin, Guiji, Yuyao, Xiaoshan, Zhuji, Xinchang, Shangyu, and Cheng counties, was a core area of Zhejiang in the Yangzi Delta, which was in turn a core area of late imperial China, with a far more developed agricultural and commercial economy and denser population than most other parts of China.98 Shaoxing was the second largest supplier of jinshi degree holders among all the Ming prefectures and was ranked sixth in the Qing period, with its two core counties, Shanyin and Guiji, producing more than half of the prefectures jinshi.99 But the oversupply of local talent intensified competition among Shaoxing (particularly Shanyin and Guiji) natives, and led many of them to move and take the exams elsewhere or to find alternative careers. This partly explains why the number of jinshi from Shaoxing in the Qing dwindled and why Shaoxing natives outnumbered those from other prefectures among the clerks (xli) in central government agencies and local sub-officials (zuoza) like jail wardens (dianshi) and registrars (zhubu).100 The resulting horizontal and vertical networks linking the jinshi- or jurenturned-officials, central government clerks, and local sub-officials originally from Shaoxing also made it easier for them or their relatives to obtain apprenticeships and employment as private advisors.101 Studying the acceptable
Gong E, Xuehongxuan, 354, 360. From 1683 to 1791, Shanyin prefectures population rose from 115,210 to 1,002,582, and that of Guiji county from 62,748 to 266,526. In 1820 Shaoxing became the fourth most densely populated prefecture in all of China. See Cole, Shaohsing, 67. On core and peripheral regions, see Skinner, The City in Late Imperial China. 99 Ho, The Ladder of Success, 24654 (with 977 jinshi in the Ming, and 505 in the Qing including 277 from Shanyin and Guiji). The recently published Shaoxing County Gazetteer (covering former Shanyin and Guiji) lists 631 jinshi and 2,335 juren in the Qing, and 384 jinshi and 894 juren in the Ming, based on their places of origin or ancestry. See Shaoxing xianzhi, 3:1537. 100 Ho, The Ladder of Success, 253; Cole, Shaohsing, 12627, 86129; Miao Quanji, Qingdai mufu, 511. 101 On their mutual aid, see Xu Simei, Qiushuixuan, 63, 127, 187, 201, 217; Gong E, Xuehongxuan, 268, 269, 271, 311.
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alternative careers of Shaoxing literati in the Qing, James Cole has argued that the difference between Shaoxing and other locales was not only that more of its native sons did make it to the very top of the examination heap, but more important, that those who dropped off along the way were saved with more regularity from falling to the very bottom. Those from Shaoxings upper-gentry families could then survive as lower gentry by salving their individual talents to become sub-officials, clerks, or muyou.102 These challenges and counter-strategies, however, to varying degrees, were not confined to Shaoxing or even Zhejiang province. After all, Shaoxing was only the sixth-largest supplier of jinshi (505) among all Qing prefectures, far behind Hangzhou (also in Zhejiang, 1,004), Suzhou (Jiangsu, 785), Fuzhou (Fujian, 723), Changzhou (Jiangsu, 618), and Guangzhou (Guangdong, 597).103 Chung-li Chang and Ping-ti Ho estimated that the number of shengyuan literati in the Qingwho had passed the exams at the county and prefectural levels but unlike those with the jinshi, juren and gongsheng status, were ineligible for regular official appointmentamounted to over 500,000 in the eighteenth century and over 600,000 in the latter half of the next century. There were another 300,000 or so jiansheng who obtained the shengyuan status by purchase, a practice that acquired momentum in the sixteenth century and became rampant in the eighteenth and the nineteenth centuries.104 But the number of county-level offices increased only by 42 from the seventeenth to the late nineteenth centuries even though the population jumped from 100 million to about 450 million in the same period.105 Thus, lower literati had a slender chance of passing the higher-level exams or securing any official appointment, and had to find other means of livelihood. A substantial number of Qing legal advisors possessed the shengyuan status, and some boasted even a juren or jinshi degree.106 Thus, it would be a mistake to assume that almost all Qing legal advisors were Shaoxing natives. We have already mentioned a number of them originally from outside Shaoxing or Zhejiang. In a 1773 memorial to the Qianlong emperor (r. 173695) on private legal advisors, acting Zhejiang Governor Xiong Xuepeng noted that private advisors were mostly from Jiangsu and Zhejiang,
Cole, Shaohsing, 127. Ho, The Ladder of Success, 247. 104 Chung-li Chang, Chinese Gentry, 71141; Ho, The Ladder of Success, 17090; Esherick and Rankin, Introduction, in Chinese Local Elites, 4. After the mid-1860s, the total number of regular and irregular lower literati was approximately 1,250,000 men in any given year (Macauley, Social Power, 5556). 105 Macauley, Social Power, 57 (the county/district government offices increased from 1,261 to 1,303 during the interval). 106 See, e.g., Junjichu lufu, No. 030136037 (Hunan, 1775), 030135064 (Shandong Governor Xu Jis muyou). Legal advisor Xu Liankui was a jinshi and Wang Zhaoyong was a juren.
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especially the latter, and he singled out four prefecturesHangzhou, Jiaxing, Huzhou, and Shaoxingas the most productive incubators of private advisors in Zhejiang.107 But other prefectures or provinces were also worth attention. Two examples from the archives might help further illuminate this issue. The first one is based on official reports about legal advisors (i.e. xingming and/or qiangu muyou) in all the local yamen in Shandong province in early 1773 (Qianlong 3738). Except for the 5 vacant offices, the remaining 5 circuit intendants, 9 prefects, and 103 county magistrates hired a total of 199 legal advisors, about 1.86 advisors per official/office. Out of the 199 legal advisors, 112 or about 56 percent came from the eight counties of Shaoxing prefecture and those from other prefectures of Zhejiang and other provinces amounted to 44 percent.108 Likewise, among the 156 legal advisors hired by Fujian Governor Yu Wenyi and his subordinates in 177475 (about 1.88 legal advisors per official/office), only 58 came from Shaoxing prefecture (including 51 from Shanyin and Guiji counties), with 67 from other prefectures of Zhejiang and 29 (about 19 percent) from other provinces. Accordingly, it is more accurate to say that natives of Zhejiang, rather than Shaoxing, dominated the profession in the Qing, and that other provinces (accounting for about 20 percent) were not insignificant players. Indeed, another core region of Zhejiang, the twin counties of Renhe and Qiantang in Hangzhou prefecture, produced more than double the number of jinshi from Shanyin and Guiji in the Qing, and supplied 40 legal advisors for Fujian (versus 51 from the latter core) in the same period.109 Less detailed reports from other provinces corroborate the geographical distribution of legal advisors in this period.110 Among the one thousand or so legal advisors I have identified, Jiangxi, Hunan, Hubei, Zhili, Shaanxi, Shandong, Henan, Guizhou, Fujian, and Guangdong were all represented as home provinces, in addition to the more prominent Zhejiang, Jiangsu, and Anhui. A striking similarity across the board is that with only a negligible number of exceptions, all the legal advisors were from the so-called core urban centers of these provinces, particularly from the prefectures (and
QDGZD, No. 019143 (QL37/12/12). 100 advisors were from Shanyin and Guiji counties. QDGZD, No. 016495 (QL38/1, erroneously dated QL37/1), 016497 (QL37/12). 109 The report includes the offices of the provincial judge, lieutenant governor, 6 circuit intendants, 12 prefects, and 63 counties/districts. See Junjichu lufu, No. 030150059 (QL40), 030148026 (QL40), 030150061 (QL40); see No. 010135001 (QL38), 030135006 (QL38), 030135064/065(QL38), 030135037 (QL40). Shanyin and Guiji had 277 jinshi in the Qing, far behind Renhe and Qiantang (756), Wanping and Daxing (Shuntian, 691), Minxian and Houkuan (Fuzhou, 557), Yuanhe, Wuxian, and Suzhou (Jiangsu, 504), Wucheng and Guian (Huzhou, 325), and slightly ahead of Wujin and Yanghu (Changzhou, 265), and Panyu and Nanhai (Guangzhou, 248) (Ho, The Ladder of Success, 254). 110 See Junjichu lufu, No. 030142059 (Sichuan, QL39/11/10), 030136048 (Yunnan, QL38/12/20).
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their core counties) ranked among the top ten producers of jinshi during the Qing.111 This coincides with Macauleys finding that such core urban regions produced more litigation-master (77) cases than the peripheral regions (27) among her sample of 104 cases.112 Extant evidence suggests that the omnipresence of legal advisors in virtually all the local offices of Shandong and Fujian was replicated in almost all the eighteen Qing provinces in the eighteenth and nineteenth centuries, excluding the frontier regions of Manchuria, Xinjiang, and Tibet. If we were to apply the average rate of 1.86 legal advisors per office/official in Shandong (or 1.88 in Fujian) to the approximately 1,650 counties and prefectures in the Qing, there would be more than 3,000 legal advisors working in the local yamen in any given year in this period. Further assuming an average term of twenty years of full employment for all of them, there would be a total of 30,000 legal advisors (i.e., xingming and qiangu muyou) employed in the Qing county and prefectural offices from about 1711 to 1911, or a total of 15,000 for the century before 1911.113 If we recall the high unemployment rate among Qing muyou, according to Gong E and other witnesses, then the number of trained legal advisors in the Qing could have been in the hundreds of thousands.114 If our estimation is not far off the mark, the fact that so many specialists played an essential role in Qing local administration will make it necessary to rethink much of the received wisdom on the Qing legal system and local governance. The Way of Legal Advisors: Ideals of Law, Justice, and Professional Identity I turn now to an examination of how these literati-turned-legal specialists articulated their understandings of law, justice, judicial administration, and the legal profession.115 Even though they shared much of their judicial philosophy
Compare the above-noted two reports and the lists at Ho, The Ladder of Success, 247 and 254. Macauley, Social Power, 10204 (only 6 cases originating from Shaoxing, behind Fujian and Jiangsu). Other reports corroborated this. See, e.g., QDGZD, No. 019014 (Zhili, QL37), 019143 (Zhejiang, QL37), 019148 (Henan, QL37), 403027178 (Henan, QL38), 403027160 (Jiangxi, QL38), 403027336 (Shaanxi, QL38), 403027192 (Guangxi, QL38), 403027462 (Guangdong, QL38), 403027534 (Guizhou, QL38), 403027608 (Anhui, QL38), 403027615 (Jiangsu, QL38). For similar indications from earlier and later periods, see, Ibid., No., 402021768 (YZ3), 402012949 (YZ13), 403006467 (Henan, QL), 403006719 (Hubei, QL19), 403009113 (Shaanxi, QL20), 404013763 (Zhili, QL21), 403015472 (QL28), 405000227 (Hunan, DG3), 405004467 (Shanxi, DG21), 127778 (Guangdong, GX10). Also see Junjichu lufu, No. 030150064 (Gansu, QL40), 030142063 (Zhejiang, QL39), 030142059 (Sichuan, QL39), 03065405319 (Anhui, DG16), 0306540542 (Guangdong, DG17), and other documents cited herein. On the number of counties and prefectures, see Zheng Tianting, Qingshi (History of the Qing period), 22021. 114 The average tenure might be shorter as many muyou travelled around and took leaves of absence due to sickness or mourning. 115 On xingmu as Confucian (ru) literati who studied law, see Xu Fengen, Lanshaoguan Waishi (An unofficial history by the Lanshao Studio), 15b; Wang, Jiayan suiji, 4b.
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with officials, a number of Qing legal advisors sought to assert their professional independence and identity. The vast majority of Qing legal advisors remained in that profession for two or three decades as essentially lifetime legal specialists. Such long engagement in legal study and practice allowed them to produce voluminous publications on law and adjudication while facilitating a reimagination of Qing jurists social identity, public responsibility, and professional ethics. As a result, a new discourse of the Way of Muyou (mudao or muxue) emerged.116 This term in a narrow sense refers to the learning and career of legal advisors, but more broadly, it suggests a shared understanding of the standards and principles of their professional training, competence, practice, ethics, and responsibilities. The broader sense of mudao is also reflected by the term muqi. As known to students of early Chinese philosophy and medicine, qi was often understood as a kind of vital energy that constituted all the phenomena and flowed through the whole universe including human bodies.117 This term took on a more specific connotation for Qing advisors like Wang Youfu, a native of Jiangsu who practiced law in Jiangsu, Zhejiang, Shandong, and Shanxi in 1772 through 1805. For him, just as Heaven and Earth are constituted by qi, so were all human conduct and activities, including reading books (shujuanqi), writing (wenqi), rice cooking (miqi), or wine making (jiuqi). By the same token, private advisors (muyou) without muqi would lead to immorality and debauchery (beiwu goujian) and all kinds of misconduct in everyday life and judicial administration. In other words, muqi is the ethical origin and manifestation of mudao, meaning that a legal advisor or judicial administrator should uphold law and justice while maintaining his virtue and moral integrity regardless of the circumstances. While legal expertise would be essential in this regard, it was far from enough to make someone a respectable advisor if he lacked muqi or was deficient in the Way of Muyou.118 Emphasis on Legal Expertise Almost all the xingmu writers stressed that law and judicial administration were of critical importance not just to the government, but more importantly, to all the people concerned. For instance, in 1743, Shen Xintian, who was a renowned legal advisor in places like Sichuan, Yunnan, and Guangdong, main-

Wang Huizu, Xuezhi yishuo, 248 (mudao); Wang Huizu, Zuozhi yaoyan, 175 (Zhang Tingxiangs comments on mudao and muxue after Wang); Wan Weihan, Muxue juyao, 2730; Wu Kun, Xingyou liangfang (Ten good suggestions for legal advisors), 1a2a; Xue Linpu, Muxue zhengzong, 1416 (mudao). 117 Ekken, The Philosophy of Qi. 118 Wang Youfu, Yide outan (Casual talk on small points), 1:9b10a, 3a, 13a. See Gong E, Xuehongxuan, 10, 354; Wang Xianyi, Jiayan suiji, 1:18a (also on qi of muyou and other occupations).
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tained that judicial administration (xingming) affects the lives and livelihood of people and must be handled with greatest care.119 This was echoed by other contemporary legal advisors like Wan Weihan, Bai Ruzhen, Wang Youfu, and Wang Huizu, who further argued that a legal advisor was indispensable to local governance because a seemingly minor mistake in the application of law could have dire consequences for the people involved.120 Claiming an undivided dedication to judicial administration, they contrasted themselves with officials who were said to be so concerned about their job security and promotion that they could hardly afford the time to thoroughly study the voluminous statutes and substatutes of the Qing Code.121 Accordingly, it was considered imperative for legal advisors as the de facto administrators of law in the local yamen to remain updated about changes and continuities in laws, regulations, and leading cases.122 Sun Hong, a native of Hangzhou in Zhejiang who was a legal advisor in Shandong, Shanxi, Fujian, and Henan provinces in the Kangxi period (16621722), stated that particular attention should be paid to the many substatutes and regulations that were periodically added to make the Qing Code more suitable to changing social circumstances.123 In addition, study of the codified law must be combined with knowledge of judicial practice; otherwise, the judges would be like a modern doctor relying upon ancient medical prescriptions without adapting to the changed time and circumstances.124 Knowledge of leading cases and imperially sanctioned circulars (tongxing) was thus important since these could be sources of judgments when no preexisting statute or substatute was applicable.125 It was by no means easy to develop such expertise. While the number of the statutes in the Qing Code was fixed at 436 after 1740, the substatutes were amended every five years or so until 1852, jumping from 449 in 1647 to 824 in 1725 and then to 1,892 in the 1860s.126 The volume of leading cases was even
Shen Xintian and Niu Dawei, Mingfa zhizhang, 4. Wang Huizu, Zuozhi yaoyan, 145; Wang Youfu, Preface, in Yide outan, 1:6a; Wang Youhuai, Banan yaolue; Zhou Shouchi, Xinji xingan (A new compendium of legal cases), 1:2ab, 16:31ab.. 121 Chen Yi, Preface, in Zhou Shouchi, Xinji xingan, 1ab. 122 Shen Xintian, Preface to Shen Xintian and Niu Dawei, Mingfa zhizhang; Wang Huizu, Xuezhi yishuo (Nonsensical words on learning about governance), 14445. 123 Sun Hong, Weizheng diyibian, 1:7 (addressing directly to the local administrators). 124 Wang Youfu, Preface to Yide outan, 1:6ab; Zhang Tingxiang, Zhuiyan shize, 635. 125 Muhan, Mingxing guanjian (Humble opinions for administering law properly), 20. Even cases which were imperially sanctioned could be useful. See Shen Tingying, Chengan beikao (Leading cases for reference). For provincial regulations, see Wang Zhiqiang, Fal duoyuan shijiao (Qing law from the perspective of legal pluralism); on circulars, see Xingbu zouding zhangcheng (Approved circulars of the Ministry of Justice). 126 The last revision took place in 1870 before the late-Qing reform. See Zheng Qin, Qingdai fal (Legal system of the Qing), 562.
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more intimidating. But leading legal advisors insisted that mastery of both the law and judicial practice, coupled with a nuanced understanding of the legislative intent and the totality of circumstances in a particular case, should be the goal of all conscientious legal advisors (or judges). Bai Ruzhen held that such comprehensive knowledge constituted the foundation of the profession of legal advisors (muxue zhi genben).127 This then led many advisors to study and publish commentaries on the Qing Code and other kinds of legal treatises and handbooks. They knew that legal expertise was the primary source of their claim to authority, job security, professional autonomy, and social respect. While various Qing statecraft writers also urged local officials to seriously and thoroughly study law and leading cases, they often simultaneously, if reluctantly, admitted that few officials would actually attempt this. Guidance for Adjudication Another recurrent topic in legal advisors writings was the emphasis on the importance and reliability of evidence and on the evils of abuse of judicial power.128 Earlier imperial jurists or contemporary Qing administrative writers certainly stressed the value of judicial evidence too, but the peculiar position of the Qing legal advisor put a different spin on this debate and how it might be handled. Take for example the judicial process in a county court, which was then the most critical stage in the system because higher courts were often dependent on the county courts written records when reviewing a case.129 A magistrate was required to investigate the crime scenes in serious cases and to preside over the trials but his legal advisor might refrain from such public duties. An experienced advisor would study the plaint or the preliminary report and then advise the magistrate before the investigation or trial about what information was most essential to that kind of case and how such information might best be gathered.130 The magistrate was urged to conduct the investigation or trial carefully and then to reconstruct the proceedings to help the legal advisor better assess the value and credibility of the testimony and other written records.131 Zhang Tingxiang, a long-time advisor in the Zhili provincial judges office in

127 Bai Ruzhen, Preface, Xingming yide. Bai mentioned Wan Weihans Muxue juyao. Also see Wang Shiren, Epilogue, in Zhang Tingxiang, Rumu xuzhi wuzhong, 643. Also see Ge Shida, Shenkan lunlue shize (Ten items on writing judicial decisions), 3ab. 128 Wang Youhuai, Banan yaolue, 43839, 491; Xingmu yaolue, 54243. 129 See, e.g., Wan Weihan, Muxue juyao, 22. 130 Chen Tianxis account in Zhang Weiren et al., Qingji difang sifa (Qing local justice), 4748. 131 Zhang Tingxiang, Zhuiyan shize (Ten extra suggestions), 63941. See similar suggestions in Wang Youfu, Yide outan, 1:45b46a.

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the 1880s1890s, noted that a magistrate he advised closely followed these steps, and that none of the judgments was reversed.132 This concern also led some legal advisors to ignore the convention of staying out of public view. In cases involving serious offenses punishable by labor servitude, exile, or death, an advisor might listen to the court hearing from behind the curtain and insist that the magistrate conduct additional hearings until the evidence was found accurate and conclusive. Wang Huizu claimed to have sometimes requested that the magistrate conduct hearings as many as seven or eight times, without judicial torture, when the testimonies or confessions were not perfectly convincing. He listened to every one of those hearings.133 Given the huge influence of his writings on local administration in the nineteenth century, many advisors and officials probably followed suit. Wu Kun, a legal advisor practicing in Sichuan in the 1820s1850s, also recommended that legal advisors listen to court hearings. In more serious cases, he suggested that an advisor also peek from behind the screen and if necessary, deliver a slip of paper to the judge with suggestions. Dong Xinzhai, working at Boxing county in Shandong in the nineteenth century, reportedly listened to the hearing in a homicide case and went with the magistrate to examine the corpse and crime scene.134 Forensic evidence in homicide cases was of particular importance. Depending on the circumstances, a homicide case could be determined as one of premeditated or intentional killing, or killing in an affray or at play or by mistake or accident, resulting in a corresponding sentence ranging from capital punishment to merely a fine of 12.4 taels of silver.135 As Wang Youhuai observed, adjudication must be just (ping). If there were mistakes in examining the wounds, the wrongs [in the case] could not be washed away (yuan buke xi) and the punishment could not be reversed; there would be no justice for either the dead or the living. Accordingly, during the several decades in the profession of private advisors (muxue), he had never dared to take [judicial matters] lightly, and always treated [cases involving] human lives with extra caution. For that reason, he collected leading cases and reliable medical books to compile the Xiyuan lu jizheng in 1796, which was probably the most popular Qing private treatise on forensic medical examination. Thanks to the contribution of various legal advisors and local officials, his treatise generated more than twenty-five different editions and reprints in the next one-and-a-half centuries.136
Zhang Tingxiang, Zhuiyan shize, 64041. Wang Huizu, Bingta mengheng lu, 1:22ab (1763); Wang Huizu, Xu Zuozhi yaoyan, 193195. 134 Wu Kun, Xingyou liangfang, 5a; Wang Xianyi, Jiayan suiji, 1:12b. His cousin, Wang Zhonglin, was also a legal advisor. 135 See, e.g., Wan Weihan, Muxue juyao; Wang Youhuai, Banan yaolue; Xingmu yaolue; Zhaojie shuo (On writing legal reports). 136 Wang Youhuai, Preface (1796), in Xiyuan lu jizheng huizuan, 1b. Also see the entry about this title in Will, ed., Official Handbooks; and Will, Developing Forensic Knowledge.
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Legal advisors also argued against abuse of instruments of judicial torture for interrogationsuch as ankle or finger-squeezersto extract the required confessions in criminal cases even though such a technique, subject to strict statutory limitations, were legally permissible in the most serious crimes like rebellion, homicide, or robbery where substantial evidence existed against the accused.137 In minor cases, they argued, there was no need for judicial torture; even in more serious cases, a trial judge, armed with legal knowledge, experience, and effective tactics, could find out the truth without torture.138 Wang Youhuai argued that a confession of guilt obtained by judicial torture was problematic in many ways. It indicated a lack of conclusive evidence in the first place and the defendant was more likely to retract the confession when the case was reviewed by a higher court, thus triggering retrial or reversal. Even assuming that the conviction was eventually upheld, whoever conducted the trial would not have full confidence in the conviction and could not face his conscience (tianliang) if it was actually a wrongful judgment.139 It is clear that these private legal specialists, like other Qing jurists of the time, did not find it necessary or feasible to abolish all the legal forms of judicial torture or to reform the whole judicial system. As Nancy Park has noted, until the late Qing reforms, the dominant view within the official culture was that the measured use of torture could result in more substantive justice in the sense that the guilty were more likely to be convicted and the innocent allowed to go free.140 That said, muyou commentators generally frowned upon illegal judicial tortureillegal either because the legal instrument was used excessively or because an unauthorized instrument was usedand they maintained that such practices were inconsistent with the local administrators legal and moral obligation to cherish the people (aimin).141 They were concerned about the brutality of such judicial abuses and about the unreliability of evidence extracted by coercion or torture. By the same token, they pointed out that a written confession should be double-checked to make sure that the accused did not give it because of fear or ignorance.142 Similar sensitivity to evidentiary accuracy was also shown towards
For an 1810 substatute regulating the use of judicial torture, see Xingbu gesi panli (Case-based substatutes of the Ministry of Justice), 28183. 138 See Wan Weihan, Muxue juyao, 35; Wang Huizu, Xuezhi yishuo, 27881; Wang Youhuai, Banan yaolue. The judge had to record each use of such instrument in the final legal report submitted to his superiors. Bao Shichen concluded 230 cases in 40 days without judicial torture. Bao Shichen, Qimin sishu (Four ways of bringing order to the people), 2240. 139 Wang Youhuai, Banan yaolue, 43839. 140 Park, Imperial Chinese Justice, 37. 141 Wang Huizu, Xuezhi yishuo, 27881; Wang Huizu, Xu Zuozhi yaoyan, 19395. See Muhan, Preface to Mingxing guanjian (Humble opinions for administering law properly), 35. 142 Ge Shida, Shenkan lunlue shize, 4b; Wang Huizu, Xu Zuozhi yaoyan, 19395.
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what we might call civil matters today. Tips were offered about how to measure the boundaries of land property, and how to detect falsified deeds, mortgage agreements, or other commercial papers.143 Careful attention to evidence was said to avoid injustice (yuanyi).144 Of course, these ideals or recommendations were not followed by all judicial administrators and instances of judicial abuses still occurred. Xie Jinluan (17571820, juren 1788), a county director of education (jiaoyu) in the late Qianlong era, contended that legal advisors were capable of mechanical or formulaic application of law (gongshi zhi xingming), but incapable of Confucian application of law (ruzhe zhi xingming). For him, the former approach was just to achieve technically correct application of the letter of law according to established formulae or procedures but the latter was to achieve an equitable outcome beyond rigid statutory interpretation by taking into account human reason and sentiments and the peculiar circumstances of the case.145 Challenging Xies portrayal of them as mere technicians unable to appreciate the spirit of law and true justice, various legal advisors inter alia urged great caution in administering justice, especially in meting out capital punishments. Underlying this argument was an ancient juridical principle that the accused in such serious cases should be treated more leniently where uncertainties or mitigating circumstances existed (zuiyi weiqing ningshi bujing). Accordingly, Qing legal advisors held that ideal justice combined the two Chinese characters, ping (impartiality) and shu (leniency). As Zhang Tingxiang put it, the two characters capture the essence of adjudication that holds true for ever.146 In the 1740s, Wan Weihan elaborated on this by citing the Book of Documents: The law ought to be lenient [in application]. As is said [in the Book of Documents]: It is better to err [on the side of leniency] than to execute the innocent (yuqi sha bugu ningshi bujing). This, however, is not to call for connivance at crimes. If a crime is proven and the penalty proportionate, the offender shall be punished severely. It is essential to strike a balance [between leniency and severity], but that is not just to find the middle ground. If leniency is not granted because of private (si) [considerations] and execution not imposed due to [personal] grudges, the fine balance will be achieved.147
Wan Weihan, Xingqian zhinan, 2:41b43a; Wan Weihan, Muxue juyao, 55. Wang Youhuai, Xingqian bilan, 7:9a10b; Qiangu zhinan, 42732. 144 Wan Weihan, Muxue juyao, 35. 145 Xie Jinlua, Juguan zhiyong pian, in Xu Dong, Muling shu (A Book for magistrates), 4:56; He, Xuezhi bushuo (Additional opinions on learning about government), 5b6a. 146 Zhang Tingxiang, Zhuiyan shize, 639. 147 Wan Weihan, Muxue juyao, 23.
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In response to the Qing courts censure of officials and their legal advisors for excessive leniency toward capital offenders, Wan Weihan and Wang Huizu countered that their principle of pingshu did not mean to bend the law to save the guilty from due punishment. They advocated applying the law faithfully and argued that repeat offenders and serious criminals should be penalized severely for the purpose of deterrence.148 They emphasized, however, that the judge should not impose capital punishment if there were still any doubts remaining or any mitigating circumstances in the case, which should be fully reported to higher courts for any chance of commutation or imperial mercy.149 Wang Huizu regarded it as one of his greatest achievements that during the twenty-six years as a legal advisor he recommended the death penalty for only six offenders.150 Among the hundreds of legal advisors we know, many were remembered for honoring the pingshu principle in their legal practice and administration, including one of our earliest identifiable legal advisors, Chen Jingxin, whose compassion in judicial administration saved many people in Shanxi implicated in a rebellion against the Manchus in 1649.151 Other advisors like Li Dengyin (16561730), Wang Xianyi, Zhu Jintang, and Xu Kai were all lauded for administering law with great care, balanced with mercy, to achieve ideal justice.152 That their acts were deemed memorable feats suggests that some of their co-professionals might have failed to live up to such aspirations. Practice of Law as a Kind of Statecraft or Substantial Learning Another critical component of the Way of the Muyou was commitment to the application of practical knowledge to improve society, encapsulated in the concept of statecraft or managing the world and aiding the people (jingshi jimin).153 Legal advisors often viewed their profession as one to help the people
Wang Huizu, Zuozhi yaoyan, 139. For similar judicial philosophy of later legal advisors, see Wang Ding (17911854) and his son Wang Quan, at Wang Zhaoyong, Shanyin Wangshipu , 60; Wang Quan, Songyan xiaolu (Collection of trivial writings), 5:8a9b. For the imperial criticism, see Gangyi, Qiuyan jiyao (Essentials on the Autumn Assizes), 15a17a (1757), 47a48a (1782), 77a (1806); Dong Jianhong, ed., Qianlong yupi (Comments of the Qianlong emperor on memorials), 773 (1748), 775 (1764, blaming mubin); Qianlong dangan (Judicial archives of the Qianlong reign). 149 Wan Weihan, Muxue juyao, 6; Wu Kun, Xingyou liangfang, 3ab. Also see Wang Huizu, Zuozhi yaoyan, 14142; Xingmu yaolue, 58891. 150 Wang Huizu, Zuozhi yaoyan, 13839 (Qiusheng). 151 Xu Yuanmei et al., eds., Shanyin xianzhi, 705. Xu Yuanmei et al., Jiaqing Shanyin xianzhi, 262. 152 See the prefaces and postface, at Zhou Shouchi, Xinji xingan, 1:1a3a, 15:30. Also see SXXZZL, 25:107, 108111, 135a, 26:134b, 27:15, 17, 23b, 28:54b, 29: 103a, 129b, 146a. 153 The term jingji (kingh te in Vietnamese, kyongje in Korean, keizai in Japanese) embraces various disciplines and knowledge fields for managing the whole country/society. See, e.g., Brook, The Troubled Empire, 12526. About the influence of the School of practical learning (shixue) among educated Confucianized East Asians, from the sixteenth century, see Woodside, Territorial Order and Collective-Identity, 20020.
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in the name of the hiring officials, as in the case of Bao Shichen. Zhu Qingqi, a principal compiler of Xingan huilan in 1834, characterized his legal practice and judicial publication as designed to aid the world (jishi). Likewise, Wu Kun, a native of Huzhou prefecture in Zhejiang who had worked as a legal advisor in Sichuan for twenty-eight years when publishing his short muyou handbook in 1851, claimed that the Way of Muyou (mudao) enabled him and other legal advisors to aid the people (jiren) and aid the world (jishi).154 The Chinese compound jiren or jishi is synonymous to jimin in jingshi jimin (statecraft). It is little wonder, then, that many legal advisors would view their expertise and profession as an essential kind/part of practical learning or valuable statecraft. Shen Mei, a legal advisor in Jiangsu, Guizhou, and Hubei in the eighteenth century, joined that profession rather naturally because he had always been interested in useful knowledge about statecraft (jingshi youyong zhixue).155 Various legal advisors highlighted this distinction between themselves as legal experts with practical learning and those literati dedicated to the civil examinations or other literary activities irrelevant to actual governance. For example, Wu Hong, an eighteenth century legal advisor noted in 1721 that he started his thirty-five-year career as a legal advisor because it was viewed as a kind of truly substantial statecraft learning (zhenshi jingji) useful to assist the ruler and help the people. In other words, legal advisors were also capable of fulfilling the honorable mission of an orthodox Confucian scholar-official to govern the country and pacify the world by utilizing their expertise or statesmanship on paper.156 The fact that Wu acquired this sense of responsibility at a young age from his father, a former local official, indicates that Wus appreciation of legal and administrative expertise was not unusual among practically oriented literati in late imperial China. In fact, Li Gong (16591733, juren 1690), a very influential Confucian philosopher who worked as a legal advisor from time to time, noted in 1697 that legal (xingming and qiangu) advisors, alongside their official counterparts, actually performed the two primary functions of the ancient tradition of statecraft learning (jingji) of teaching (jiao) through law and punishment and nurturing (yang) through financial management.157 There were even
Also see Zhang Sui, Jingshi qieyao, 1633, and Lin Yisu and Lin Yilin, 1665p, Jingji chengshu, 12 juan, as annotated under the same names in Will, ed., Official Handbooks and Anthologies. Also see Chen Zilong, ed., Ming jingshi wenbian (Collected statecraft writings of the Ming). For the Qing, see He Changling, ed., Huangchao jingshi wenbian (Statecraft writings of the Qing Dynasty); Xu Dong, Muling shu. 154 Bao Shichen, Qimin sishu, 2116 (30:20b); Wu Kun, Xingyou liangfang, 1a2a; Bao Shuyun, Preface (1840), in Zhu Qingqi et al., Xingan huilan. 155 SXXZZL, 26:142b, and other examples at 25:108a (Li Dengying), 27:15a (He Xiongguang), 28:75b (Shen Guangting), 29:126a (Wan Fangxu). 156 From about 1685, he practiced law in Shandong, Hebei, Hubei, the Yangzi Delta (Jiangzuo), and Shanxi. Wu Hong, Zhishang jinglun, 14142. 157 Feng Chen et al., Li Shugu xiansheng nianpu (Chronological biography of Li Gong), 2:27a. Following his teacher Yan Yuan, Li Gong criticized the Cheng-Zhu School of Principle (lixue) and famously advocated practical/substantial learning and application.

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those like Wu Kexie (17351821) from Jiaxing of Zhejiang, who came to the conclusion that studying for the examinations was not a worthy cause (zhangju Zhi xue buzuwei). He later became a sought-after legal advisor in Jiangsu, Shandong, and Anhui in the 1760s1790s.158 Yu Minghou was another person who was reported to have looked down upon the civil examinations. At the age of eighteen, he decided to travel to Shandong to study law and worked as an advisor for three decades in the Daoguang era (182150).159 In his judicial handbook published in 1784one year before Wang Huizus better known Zuozhi yaoyanthe veteran legal advisor Bai Ruzhen, from Jiangxi, explained the motivation to become an advisor this way: If one quit studying [for the exams] and thus could not be a good official (liangli) to show ones loyalty [to the State] and love [of the people], one could be a good advisor (liangmu) to make use of ones statecraft learning (jingji zhishu). He stressed that the legal advisors job involved enormous responsibilities and was vital to the people and the country.160 Wu Kun in 1851 made almost the same argument by comparing the mission of these legal specialiststhe Way of Muyouto that of good doctors (liangyi) and good ministers (liangxiang) because they all strove to aid the people, a view echoed by other Qing legal advisors.161 Qing legal advisors thus capitalized on the widening purchase of the discourse of practical learning and statecraft thought to represent their profession as not only respectable but also vital to the whole state and society and sometimes even more gratifying than the traditionally privileged path to officialdom. As Gu Senshu put it in 1896, although they might appear less powerful than their host officials, it was legal advisors who actually maintained the social norms and legal order of the empire by keeping the judicial system and local administration running.162 In a study of novels in this period, Martin Huang has argued that Qing literati of the eighteenth century experienced a kind of identity crisis because of political changes and socioeconomic insecurity and the gloomy prospects for examination success and official appointment.163 The possibility of rendering public service and the relatively high social status and income made service as a legal advisor an attractive option for tens of thousands of Qing literati who thus could maintain their identity as Confucian men of culture (wenren) while

Wu started as a qiangu advisor but from 1761, became a xingming. Xie Qikun, Nanquan youmu ji, in Shujingtang wenji, 2:1a5a (1791). For his biography, see Wu Xuejun, Zhouquan Wushi zupu (The genealogy of the Wu lineage of Zhouquan); Yu Shangxi, Zhouquan zhengzhi (Gazetteer of Zhouquan township). 159 SXXZZL, 28:81b82a (from Guiji). 160 See Preface to Bai Ruzhen, Xingming yide. He practiced in Hebei, Henan, and Anhui for two decades. 161 Wu Kun, Xingyou liangfang, 1a2a. See Pan Biaocan, Weixin bian, 1b (Pans preface implying his expertise as part of jingji); Gong E, Xuehongxuan, 354 and 361 (jingji). See postfaces, in Zhou Shouchi, Xinji xingan, 16:29a32b. 162 Gu Senshu, Preface (1896), in Zhou Shouchi, Xinji xingan, 2b, and postfaces, 16:31ab. 163 Martin W. Huang, Literati and Self-Re/Presentation.
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claiming to have fulfilled the mission of investigating and governing the world through practical learning and legal expertise. This discourse of legal knowledge as a kind of valuable professional expertise also had support among scholar-officials. For instance, in 1727, Henan Governor Tian Wenjing submitted a memorial to the Yongzheng emperor, suggesting that candidates for county magistracies be required to help and learn from local officials in the provincial capitals before assuming offices independently. For him, the candidates erudition in celebrated literary and philosophical Classics (liujing) might help them cultivate their minds and virtue, but that was achieved at the expense of knowledge about governance or practical learning about statecraft (jingji shixue).164 Three years later, Tian, then Hedong GovernorGeneral, made this argument more emphatically in the imperially commissioned handbook for Qing magistrates drafted by him and Zhejiang Governor Li Wei in 1730 and distributed by the Qing court periodically to all county magistrates over the next one-and-a-half centuries. He maintained that legal study was to acquire the more substantial kind of learning (xuewen zhong shiji), and that such statecraft knowledge (jingji) was more useful (youyong) than the literary activities of Confucian scholar-officials and was essential to the countrys welfare and the peoples livelihood (guoji minsheng).165 Although these senior Qing statesmen expressed concern that private advisors had become the backbone of local judicial administration and dominant players in this area of practical learning, they admitted that local officials at all levels heavily relied upon private advisors to perform their duties and noted that many officials even found no need for legal study on the grounds that they already had legal experts as their advisors.166 Professional Ethics and Independence A final element of the discourse of the Way of the Muyou was the clear articulation of professional independence from the officials who hired them. Unlike other clerical staff, legal advisors had considerable leverage in their relationship with their hiring officials.167 An official invited and treated a legal advisor not as his subordinate (liao) or clerical staff (xuli), but as his guest (bin), friend (you), or teacher (shi).168 Some officials even stated that they were glad to have the
QDGZD, No. 402007033; Zhang Shucai, ed., Yongzheng chao hanwen zhupi zouzhe huibian (Chinese edicts with red rescripts from the Yongzheng reign), 9:133134 (YZ5/2/18). Tian Wenjing and Li Wei, Qinding xunchi zhouxian guitiao (Imperially approved principles for county governance), 36ab. See its prefaces and postfaces for the reprints. 166 Tian Wenjing and Li Wei, Qinding xunchi zhouxian guitiao, 27b29a, 11a. 167 Fang, Pingping yan (Ordinary words), 1:38; Tung-tsu Ch, Local Government, 108. 168 Zhang Tingxiang, Zhuiyan shize, 633. See Gu Zhaoxi, Preface, in Zhang Tingxiang, Rumu xuzhi wuzhong, 3; Wang Yanmei, Muxue leiyao xu (Preface to Brief Notes on the Muyou Profession), 17:19a20a; Wang, Zuozhi yaoyan, 122.
164 165

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opportunity to be taught by private advisors and did not dare to treat [them] as just friends.169 Qing local officials became so dependent upon their legal advisors that they often had to implore those more famous advisors to help them even before their actual appointment.170 For instance, for all the four positions he held on and off over twenty years in the late eighteenth century, Xie Qikun (17371802, jinshi 1761) hired the same legal advisor, Wu Kexie, mentioned above.171 Numerous legal advisors noted the political dynamics produced by such official dependence. In response to popular and official criticism of corrupt legal advisors in some outrageous cases in the mid-eighteenth century, some legal advisors emphasized that the Way of Muyou required them to cultivate a principled independent stance in judicial administration rather than succumb to the pressure of officials. Ideally, a legal advisor should not be swayed by selfish concerns such as job security.172 If he felt that his advice was unreasonably rejected by an officialespecially in cases where the official bent the law in adjudication or sentencing an offender despite the advisors remonstrationthe legal advisor ought to just pack and leave.173 As Wang Huizu put it in 1786, a legal advisor could stay if he got along well [with the official]; otherwise, he should resign. It was believed essential to maintain the advisors personal integrity and professional independence from the hiring official when handling legal matters. Wang Huizu himself quit seven times for this reason.174 Tao Chengyuan, a legal advisor working mostly in Shandong during the Qianlong reign, was remembered for emphasizing caution and clarity in judicial administration and for tenaciously adhering to his principle when the officials acted differently.175 Xu Kai, also from Shaoxing in the Guangxu era (18751908), was known for arguing with the officials who hired him whenever he believed that the officials were wrong.176 Some suggested that a legal advisor must be careful about the character and reputation of the hiring official, even at the risk of forfeiting a high-paying
Luo Zhonglin, Preface (1675), in Pan Biaocan, Weixin bian, 3. See Zhang Duanmu, Preface (1773), in Wan Weihan, Xingjian lu, 2a. 170 See Xie Minghuang, Nanquan muyou ji, in Shujingtang wenji, 2a, 4a (about two other officials imploring the advisor). 171 Xie Minghuang, Shujingtang wenji, 1a5a. We know about his advisor only until 1790 when Xie wrote the biography. A native of Nankang in Jiangxi, Xie later became Zhejiang provincial judge in 179495, Shanxi lieutenant governor in 1795, and Guangxi governor in 1799. He might have hired the same xingmu for the later posts. 172 Zhang Tingxiang, Zhuiyan shize, 63637; Wang Huizu, Zuozhi yaoyan, 12325. 173 Zhang Tingxiang, Zhuiyan shize, 638; Wang Huizu, Zuozhi yaoyan, 12324. 174 Wang Huizu, Zuozhi yaoyan, 12324, 12132. See, e.g., Wang Huizu, Bingta menghen lu, 1:22b, 24a. 175 Tao Zaiming, Guiji Taoshi zupu, 15:18ab (Nanzhangfang yinde zhuan). 176 Sun Baotian (18391911, jinshi 1874), Xu jun mubiao (Epitaph of Mr. Xu) (1906), in Sun, Jiaojingtang wenji (Collected writings from the Jiaojing Studio), 4:93a94b. See SXXZZL, 29:146a (quoting the same epitaph).
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job.177 Shen Mei, noted earlier, was sought after by various provincial officials, but he was reportedly very scrupulous about which ones to advise based on his principle of justice (yi) and would never make do with it if there was anything unacceptable [about a hiring official].178 It was believed that whether the official had integrity affected whether a legal advisor could properly carry out his duty.179 Wang Huizu boasted that the fourteen magistrates or prefects he assisted over twenty-five years were all upright and virtuous officials.180 Other legal advisors like Chen Wenguang, Zhang Tingxiang, and Wang Zhaoyong were also praised by their contemporaries because their assistance enabled many of the local officials to be recognized as model administrators (liangli).181 What is of particular interest is the claim that legal advisors should act so cautiously and stand firm in relation to the hiring officials because they represented the interests and welfare of the public (gong) or the people and thus should not bow down to private (si) considerations of the officials.182 The rationale was that although they might be paid by local officials, their compensation ultimately came from the people because the officials salaries were just fruits of peoples labor (zhigao, literally peoples fat/grease).183 This ethical independence was a foundation of their professional authority in the Way of Muyou. Zhu Guangxu, a legal advisor to the Sichuan governors-general in the 1820s1830s, was thus commended not only for correcting wrongful judgments in that province but also for tenaciously insisting that all sentencing decisions by the Ministry of Justice in capital cases from Sichuan be consistent with the law.184 This examination of the background, training, professional identity, ethics, and philosophy of Qing legal advisors is part of a larger project that will also study how they shaped the actual operation of Qing judicial administration from the late seventeenth century on and how the Qing Court reacted to their enormous influence. If litigation masters were essential in drafting the legal accusations or defenses for private litigants, as Fuma, Macauley, and others have argued, my research has shown that legal advisors played an indispensable role in local judicial administration on the other side of the bench. In this sense, much of the
Gong E, Xuehongxuan, 46. SXXZZL, 26:142b (based on his biography by Bailing). 179 Wang Huizu, Zuozhi yaoyan, 125; Wang Huizu, Xu Zuozhi yaoyan. 180 Wang Huizu, Zuozhi yaoyan, 11213, 16974. 181 See Liu Shiling, Preface, in Chen Wenguang, Bu Weixin bian; Gu Zhaoxi, Preface, in Zhang Tingxiang , Rumu xuzhi wuzhong, 34; Wang Zhaoyong, Weishang laoren, 62. Also see Tao Zaiming, Guiji Taoshi zupu, 14:40 (Tao Chengru), 15:34 (Tao Zhi). 182 Wang Huizu, Zuozhi yaoyan, 12328; Wan Weihan, Muxue juyao, 28. 183 Wang Huizu, Zuozhi yaoyan, 12425, 12329, cf. 121. 184 SXXZZL, 28:54b.
177 178

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contestation evidenced in the extant Qing judicial records would have actually been played out between litigation masters and legal advisors behind the scenes rather than between the mostly untrained scholar-officials and litigants in the courtroom. A better understanding of the professional training and practice of the tens of thousands of Qing legal advisors that were the backbone of Qing judicial administration helps illuminate the operation of late imperial Chinese law and justice. Glossary
aimin anchashi andu bali banan bangguan beiwu goujian bin bushi wenyi buzhengshi cai chengan chengci daotai diao dou du dul fajia fali fal fushou fuxi gong gongshi zhi xingming guoji minsheng jiansheng jiao jiaoyu jingji/jingshi jingji shixue jingji zhishu jingsheng jingshi jimin jingshi youyong zhixue jinshi /

jiren/jimin/jishi  //

38
jiumu pan pin jiuqi juren liangli liangmu liangxiang liangyi liao lishu liujing l menren minqing miqi mubin mudao mufu muguan muke muliao mupin muqi muxue muyou ping pingshu qi qiangu ren renwu liezhuan rumu ruzhe zhi xingming Shaoxing shiye shengyuan shenhan shi shili shili shixue shoulingguan shu shujuanqi shupan

Li Chen

shuqi/shuji/shubing  // shusuan si

Legal Specialists and Judicial Administration in Late Imperial China


sizishu songshi tianliang tieshu tongda shiwu tongxing wenfali wenqi wenren yanglian yi you youyong zhixue yuanyi yuejuan

39

yuqi sha bugu ningshi bujing yuzhi zeli

wenyi zhaoxiang quanping muyou daibi xi xiao shusheng xiban xingming fajia xingming xingmu xing/xingtai xiongyou jingji xiucai xuemu xuewen zhong shiji xuli xunfu /

zhangfang/zhanghao/haojian // zhangju zhi xue buzuwei  zhaoquan nahui zhanggao

zhaoni tuo guanbi zhuwen  zhengzhi zhengbi/zhengshou zhixian Zhili zhou zhubu /

zuiyi weiqing ningshi bujing zhumo zhuwen zuoza

xunming zeshi shenshang xingfa yang

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Works Cited Abbreviations


QDGZD: Qingdai gongzhongdang zouzhe ji Junjichu dangzhejian, Taibei Gugong bowuyuan (Capital Memorials and Copies of Memorials at the Grand Council, at the Palace Memorial of Taipei). SXXZZL: Shaoxing xianzhi ziliao diyi ji (The First Set of Materials for the Shao xing County Gazetteer). 30 juan. 1937. Reprinted by Shaoxing xianzhi xiuzhi weiyuanhui. Hangzhou: Hangzhou guji chubanshe, 1985. Alford, William P. Law, Law, What Law? Why Western Scholars of Chinese History and Society Have Not Had More to Say about Its Law. Modern China 23.4 (1997):398419. . Of Arsenic and Old Laws: Looking Anew at Criminal Justice in Late Imperial China. California Law Review 72 (1984):11801250. Allee, Mark A. Law and Local Society in Late Imperial China: Northern Taiwan in the Nineteenth Century. Stanford: Stanford University Press, 1994. Bai Ruzhen. Xingming yide (Things learned from legal practice). 2 juan. Guizhou: Diannan nieshu cangban, 1784 preface (hereafter abbreviated p). Bao Yongjun. Shaoxing shiye Wang Huizhu yanjiu (Study of Wang Huizhu as a private advisor from Shaoxing). Beijing: Renmin chubanshe, 2006. Bao Shichen. Qimin sishu (Four ways of bringing order to the people). In Bao Shichen, Anwu sizhong (Four works by Bao Shichen). 36 juan. 1846. Reprinted Taibei: Wenhai chubanshe, 1968. Baxian dangan, Sichuan sheng danganguan (Archives of Ba county, at the Sichuan Provincial Archives, Chengdu, China). Birge, Bettine. Women, Property, and Confucian Reaction in Sung and yuan China (9601368). Cambridge: Cambridge University Press, 2002. Bodde, Derk, and Clarence Morris. Law in Imperial China: Exemplified by 190 Ching Dynasty Cases with Historical, Social, and Juridical Commentaries. Cambridge, Mass.: Harvard University Press, 1967. Brook, Timothy. The Troubled Empire: China in the Yuan and Ming Dynasties. Cambridge, Mass.: Harvard University Press, 2010.

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Brook, Timothy, Jrme Bourgon, and Gregory Blue. Death by a Thousand Cuts. Cambridge, Mass.: Harvard University Press, 2008.

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Buoye, Thomas M. Filial Felons: Leniency and Legal Reasoning in Qing China. In Writing and Law in Late Imperial China, ed Robert E. Hegel and Katherine Carlitz, 10924. Seattle: University of Washington Press, 2007. . Suddenly Murderous Intent Arose: Bureaucratization and Benevolence in Eighteenth-Century Qing Homicide Reports. Late Imperial China 16.2 (1995):62-97. Buxbaum, David. Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789 to 1895. Journal of Asian Studies 30.2 (1971):25579. Chang, Chung-li. The Chinese Gentry: Studies on Their Role in Nineteenth-Century Chinese Society. Seattle: University of Washington Press, 1955. . The Income of the Chinese Gentry. Seattle: University of Washington Press, 1962. Chang, Weijen. Legal Education in Ching China. In Education and Society in Late Imperial China, 16001900, ed.Benjamin A. Elman and Alexander Woodside, 292321. Berkeley: University of California Press, 1994. Chen, Fu-mei Chang. The Influence of Shen Chih-chis Chi-chu Commentary upon Ching Judicial Decisions. In Essays on Chinas Legal Tradition, ed. Jerome Alan Cohen, R. Randle Edwards, and Fu-mei Chang Chen, 170221. Princeton: Princeton University Press, 1980. Chen Maoguo. Lidai ziguan yangeshi (History of official posts in various dynasties). Shanghai: Huadong shifan daxue chubanshe, 1988. Chen Songchang. Mawangdui boshu xingde yanjiu lungao (Draft essay on the concept of xingde in the Silk Books from Mawangdui). Taibei: Taiwan Shufang chubanshe, 2001. Chen Tianxi. Qingdai mubin zhong xingming qiangu yu benren yeci jingguo (Qing xingming and qiangu advisors and my own experience). In Chen Tianxi, Chizhuang huiyi lu, 6:4262. . Chizhuang huiyi lu (Chen Tianxis memoir). 6 vols. Taibei: Wenhai chubanshe, 1973.

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Chen Wenguang. Bu Weixin bian (Supplement to An Unreliable Treatise). 4 juan. Sanduozhai cangban, 1707p. Chen Zilong, ed. Ming jingshi wenbian (Collected statecraft writings of the Ming). 1638. Beijing: Zhonghua shuju, 1982. Chiu Pengsheng. Dang fal yushang jingji: Mingqing zhongguo de shangye fal (When law meets economy: Business and law in Ming and Qing China). Taipei: Wunan tushu chuban gongsi, 2005. Ch, Tung-tsu. Local Government under the Ching. Cambridge, Mass.: Harvard University Press, 1962. Chushi lu (Readings for novice officials). 1 juan. Jinling shufang, 1629 [1554p]. Attributed to Wu Zun. In Guanzhenshu jicheng, 2:3556. Chushi yaolan (Essential readings for novice officials). 1 juan. Jinling shufang, 1629. In Guanzhenshu jicheng, 2:2933. Cole, James H. Shaohsing: Competition and Cooperation in Nineteenth-Century China. Tucson: University of Arizona Press, 1986. Conner, Alison W. True Confessions? Chinese Confessions Then and Now. In The Limits of the Rule of Law in China, ed. Karen Turner-Gottschang, James V. Feinerman, and R. Kent Guy, 13262. Seattle: University of Washington Press, 2000. Da Ming huidian (Collected laws and regulations of the great Ming). 288 juan. 1587. Da Mingl jiejie fuli (The Ming Code with commentaries and substatutes). 30 juan. 1610 [1397p]. Beijing: Fal xiudingguan, 1908. Danxin dangan xuanlu xingzhengbian chuji (The first set of selected Danshui-Xinzhu archival documents on administration). 2 vols. Compiled by Taiwan yinhang jingji yanjiushi. Taibei: Taiwan sheng wenxian weiyuanhui, 1997. Deng Jianpeng. Songshi miben yu qingdai suzhuang de fengge: Yi Huangyan susong dangan wei kaocha zhongxin (Secret pettifogger handbooks and the format of Qing plaints: A study based on the Huangyan county judicial archives). Zhejiang shehui kexue (Zhejiang social science) 4 (July 2005):7175. Ding Rijian, ed. Zhi Tai bigaolu (Essential advice for administration of Taiwan). 8 juan. Zhizu zhizhi yuan, 1867.

Legal Specialists and Judicial Administration in Late Imperial China


Dong Gongzhen. Qiangu xingming bianlan (A convenient guide for qiangu and xingming advisors). 2 juan. 1734. In Siku weishoushu jikan (A collection of works excluded from Siku quanshu) (Series 2), 26:75142. Beijing: Beijing chubanshe, 2000.

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Dong Jianzhong, ed. Qianlong yupi (Comments of the Qianlong emperor on memorials). Beijing: Zhongguo huaqiao chubanshe, 2001. Ekken, Kaibara. The Philosophy of Qi: The Record of Great Doubts. Translated by Mary E. Tucker. New York: Columbia University, 2007. Elman, Benjamin A. A Cultural History of Civil Examinations in Late Imperial China. Berkeley: University of California Press, 2000. Esherick, Joseph W., and Mary Backus Rankin, eds. Chinese Local Elites and Patterns of Dominance. Berkeley: University of California Press, 1990. Fang Dashi. Pingping yan (Ordinary words). 4 juan. Zhili: Changde fu, 1887. Feng Chen et al., eds. Li Shugu xiansheng nianpu (Chronological biography of Li Gong), 1836 [1714p]. Feng Hao. Mengting jushi wengao (Writings of Feng Hao). 6 juan. 1802p. Folsom, Kenneth E. Friends, Guests, and Colleagues: The Mu-fu System in the Late Ching Period. Berkeley: University of California Press, 1968. Fu Zhengyuan. Chinese Legalists: The Earliest Totalitarians and Their Art of Ruling. New York: M.E. Sharpe, 1996. Fuma Susumu. Litigation Masters and the Litigation Systems of Ming and Qing China. The International Journal of Asian Studies 27.1 (2007):79111. Originally published in Japanese in 1993. . Shshi hihon Sh oshi mihon sh os o ihitsu no shutsugen (The emergence of the secret pettifogger handbook Xiaocao yibi). Shirin 77.2 (March 1994):157 89. . Songshi miben Xiaocao yibi de chuxian (The emergence of the secret pettifogger handbook Xiaocao yibi). In Riben xuezhe kaozheng zhongguo fazhishi zhongyao chengguo xuanyi (Mingqing juan) (Translation of selected important Japanese works on Chinese legal history [on the Ming-Qing periods]), ed. Hiroaki Terada (as vol. 4 of Series 3 of Zhongguo fazhishi kaozheng [bingbian, disijuan], ed. Yang Yifan), 46090.

44

Li Chen

Gangyi, ed. Qiuyan jiyao (Essentials on the autumn assizes). Juanshou + 6 juan. 1889 [1886p]. , ed. Shenkan nishi (Models for writing judicial decisions). 4 juan + juanmo. Guangdong: Yuedong shuju, 1892. Gao Huanyue. Qingdai xingming muyou yanjiu (Study of Qing xingming advisors). Beijing: Zhongguo zhengfa daxue chubanshe, 2000. Ge Shida. Shenkan lunlue shize (Ten items on writing judicial decisions). 1887. In Shenkan nishi, ed. Gangyi, juanmo (terminal chapter):1a5b. Gong E. Xuehongxuan chidu (Letters from the Snow Swan Studio). 1803. Annotated by Yu Jun. Changsha: Hunan wenyi chubanshe, 1987. Guanzhenshu jicheng (Compendium of administrative handbooks). Edited by Guanzhenshu jicheng bianzuan weiyuanhui. 10 vols. Hefei: Huangshan shushe, 1997. Guo Runtao. Guanfu, muyou yu shusheng: Shaoxing shiye yanjiu (Government, muyou, and scholars: Study of Shaoxing private advisors). Beijing: Zhongguo shehui kexue chubanshe, 1996. Guy, R. Kent. Qing Governors and Their Provinces: The Evolution of Territorial Administration in China, 16441796. Seattle: University of Washington Press, 2010. He Shiqi. Xuezhi Bushuo (Additional opinions on learning about government). In Congzheng wenjian lu (Things heard and seen about government), ed. by Gan Hong Gan, 1867. He Changling, ed. Huangchao jingshi wenbian (Statecraft literature of the Qing Dynasty). 120 juan, Guangbaisong zhai, 1887 [1826p]. He Chaohui. Mingdai xianzheng yanjiu (A study of Ming county government). Beijing: Beijing daxue chubanshe, 2006. . Mingdai zhixian muyou xiaokao (A short study of muyou of Ming county magistates). Gugong bowuyuan yuankan (Bulletin of the Palace Museum) 127.5 (2006):14043. Hegel, Robert E. Introduction: Writing and Law. In Writing and Law in Late Imperial China: Crime, Conflict, and Judgment, ed. Robert E. Hegel and Katherine Carlitz, 323. Seattle: University of Washington Press, 2007. Ho, Ping-ti. The Ladder of Success in Imperial China: Aspects of Social Mobility, 13681911. New York: Columbia University Press, 1962.

Legal Specialists and Judicial Administration in Late Imperial China

45

Hong Hongxu. Chengan zhiyi (Doubtful points about leading cases). 31 juan. Hangzhou: Sanyutang, 1746. Hu Fengdan, ed. Xingan huiyao (Compendium of major works on judicial administration). 12 juan (for 8 constituent titles in 4 ce). Tuibuzhai, 1866. Hu Zhiyu. Zishan daquanji (Complete collection of works by Hu Zhiyu). 13th century. In Sanyitang congshu (Series of the Sanyi Hall). Henan: Henan guanshuju, 1924. Huang Dingqi. Chuilao dushulu shicao fu wencao (Poetry and essays from the Hall of Approaching Old Age). 2 juan plus appendix. Siming huangshi bu buzuzhai, 1878. Huang Entong, ed. Yuedong shengli xinzuan (New compendium of provincial regulations of Guangdong). 8 juan. Guangdong: Fanshu cangban, 1846. Huang Liuhong. Fuhui quanshu (The complete book concerning happiness and benevolence). 32 juan. 1694p. In Guanzhenshu jicheng, 3:22591. Huang, Martin W. Literati and Self-Re/Presentation: Autobiographical Sensibility in the Eighteenth-Century Chinese Novel. Stanford: Stanford University Press, 1995. Huang, Philip C.C. Civil Justice in China: Representation and Practice in the Qing. Stanford: Stanford University Press, 1996. Jiang Tingbi. Pushan Jianggong zhengxun (Teachings on governance by Magistrate Jiang). 1 juan. 1539p. In Guanzhenshu jicheng, 2:116. Junjichu lufu zouzhe, Beijing diyi lishi danganguan (Copies of memorials in the Grand Council Reference Collections, at the First Historical Archives, Beijing). Karasawa, Yasuhiko. From Oral Testimony to Written Records in Qing Legal Cases. In Thinking with Cases: Specialist Knowledge in Chinese Cultural History, ed. Charlotte Furth, Judith T. Zeitlin, and Ping-Chen Hsiung, 10124. Honolulu: University of Hawaii Press, 2007. Leung, Angela Ki-che. Medical Learning from the Song to the Ming. In The SongYuan-Ming Transition in Chinese History, ed. Richard von Glahn and Paul Jakov Smith, 6592. Cambridge, Mass.: Harvard University Asia Center, 2003. Li Le. Jianwen zaji (Miscellaneous things seen and heard). 11 juan. 1601p. Shanghai: Shanghai guji chubanshe, 1986.

46

Li Chen

Liang Fangzhong. Liang Fangzhong dushu zhaji (Reading notes of Liang Fangzhong). Beijing: Zhonghua shuju, 2008. Lin Cunyang and Liu Zhongjian. Zheng Banqiao. Taibei: Zhishufang chuban jituan, 2003. Liu Heng. Dul xinde (Tips about studying the law). 3 juan. In Xingan huiyao, ed. Hu Fengdan. . Shuliao wenda (Questions and answers by an official in Sichuan). 2 juan. 1830. In Xingan huiyao, ed. Hu Fengdan. Liu Shijun. Juguan shuijing (A Clear Mirror for Officials). 4 juan. Late-Ming. In Guanzhengshu jicheng, 1:590707. L Kun. Xinwu L Xiansheng Shizheng lu (Records of Real Governance). 7 juan. 1598p. In Guanzhengshu jicheng, 1:403589. Lu Zhou. Xiyuan huibian (Compendium of Washing Away of Wrongs). 2 juan. Lunxutang, 1728. Macauley, Melissa. Social Power and Legal Culture: Litigation Masters in Late Imperial China. Stanford: Stanford University Press, 1998. Meadows, Thomas Taylor. Desultory Notes on the Government and People of China, and on the Chinese Language. London: Wm. H. Allen & Co., 1847. Meng Hushi. Xingan chengshi (Model cases for adjudication). 10 juan. Mochi shuwu, 1877. Miao Quanji. Mingdai xli (Government clerks and staff in the Ming Dynasty). Taibei: Jiaxin shuini gongsi wenhua jijinhui, 1969. . Qingdai mufu renshi zhidu (The muyou system of the Qing Dynasty). Taibei: Zhongguo renshi xingzheng yuekanshe, 1971. Ming shilu (Veritable records of the Ming Dynasty). Taibei: Zhongyang yanjiuyuan lishi yuyan yanjiusuo, 196265. Mingdai Liaodong dangan huibian (Archives about the region east of the Liao River). Compiled by Liaoningsheng danganguan, and Liaoningsheng shehui kexueyuan lishi yanjiusuo. Shenyang: Liaoshen shushe, 1985. Muhan. Mingxing guanjian lu (Humble opinions for administering law properly). 1 juan. Xiaoyuan cangban, 1845p.

Legal Specialists and Judicial Administration in Late Imperial China

47

Mumin zhengyao (Essentials on government for shepherding the people). 1 juan. Jinling shufang, 1629. In Guanzhenshu jicheng, 2:1728. Nanbuxian dangan, Nanchongshi danganguan (Archives of Nanbu County, at the Nanchong Municipal Archives, Nanchong, Sichuan, China). Nimick, Thomas G. Local Administration in Ming China: The Changing Roles of Magistrates, Prefects, and Provincial Officials. Minneapolis: Society for Ming Studies, 2008. ODay, Rosemary. The Professions in Early Modern England, 14501800. Essex, UK: Pearson Education Ltd., 2000. Pan Biaocan. Weixin bian (An unreliable treatise). 6 juan. Ludizhou, 1704 [1684p]. Park, Nancy. Imperial Chinese Justice and the Law of Torture. Late Imperial China 29.2 (2008):3767. Qiangu zhinan (A guide for qiangu advisors). 4 ce. Qianlong era. In Ming Qing gongdu miben wuzhong (Five privately circulated administrative handbooks from the Ming and Qing), ed. Guo Chengwei and Tian Tao, 261550. Beijing: Zhongguo zhengfa daxue chubanshe, 1999. Qianlong dangan (Judicial archives of the Qianlong reign). 12 ce. MS. (documents dated 173595). Qianlongchao yangyudang (Imperial edicts of the Qianlong reign). Compiled by Zhongguo diyi lishi danganguan. 18 vols. Beijing: Dangan chubanshe, 1991. Qing shilu (Veritable records of the Qing Dynasty). 60 vols. Beijing: Zhonghua shuju, 1985. Qingmo jiaoan (Religious cases in the late Qing). 5 vols. Beijing: Zhonghua shuju, 1998. Qu Duizhi. Wang Huizu zhuanshu (Biography of Wang Huizhu). Shanghai: Shangwu yinshuguan, 1934. Quan Zengyou. Qingdai muliao zhidu lun (On the Qing system of private advisors) (2). Sixiang yu shidai (Thinking and our times) 32 (1944):3543. Reed, Bradly W. Talons and Teeth: County Clerks and Runners in the Qing Dynasty. Stanford: Stanford University Press, 2000. Ruskola, Teemu. Legal Orientalism. Michigan Law Review 101.1 (2002):179234.

48

Li Chen

Shang Xiaoming. Xueren youmu yu Qingdai xueshu (Scholars as muyou and Qing scholarship). Beijing: Shehui kexue chubanshe, 1999. Shaoxing xianzhi (The Shaoxing county gazetteer). Compiled by Shaoxing xianzhi bianzhuan weiyuanhui. Beijing: Zhonghua shuju, 1999. She Ziqiang. Zhipu (A treatise on governance). 10 juan. 1637. In Guanzhenshu jicheng, 2:83210. Shen Tingying. Chengan beikao (Leading cases for reference). 4 ce. 1808. Shen Xintian, and Niu Dawei, eds. Mingfa zhizhang xinli zengding (The Qing Code in tabulated forms, enlarged with new substatutes). 4 juan. 1743. Guangdong, 1824. Shen Zhiqi. Da Qing l jizhu (Collected commentaries on the Great Qing Code). Juanshou + 31 juan. 1715. Hangzhou [Wulin]: Benya cangban, 1755. Skinner, G. William. The City in Late Imperial China. Stanford: Stanford University Press, 1977. Sommer, Matthew. Sex, Law, and Society in Late Imperial China. Stanford: Stanford University Press, 2000. Sun Baotian. Jiaojingshi wenji (Collected writings from the Jiaojing Studio). 7 juan. Ed. Chenggan Liu, Qiusuzhai Congshu: Nanlin Liushi qiusuzhai kanben, 1916 Sun Hong. Weizheng diyibian (Manuals for governance, part I). 8 juan. Benfu cangban, 1702p. Sun Lun. Dingli chengan hejuan (A collection of regulations and leading cases). 30 juan. Wujiang: Lejing tang, 1721 [1707p]. Taiwan Dan-xin dangan, Guoli Taiwan daxue tushuguan (Archives of Danshui and Taibei prefectures and Xinzhu county, at the Library of National Taiwan University, Taibei). Tao Zaiming. Guiji Taoshi zupu (Genealogy of the Tao lineage from Guiji). 32 juan.1903. Tian Wenjing, and Li Wei. Qinding xunchi zhouxian guitiao (Imperially approved principles for county governance). 1 ce. 1730. Hunan: Hechi shuju, 1874. Wan Weihan. Chenggui shiyi (Additional collection of established regulations). 4 ce. Yunhuitang cangban, 1774 [1773p].

Legal Specialists and Judicial Administration in Late Imperial China


. Da Qing lli jizhu (Collected commentaries on the Qing Code). 33 juan. 1786 [1766p]. . Muxue juyao (Essentials for private advisors). 1770p. In Rumu xuzhi wuzhong, 11105.

49

. Xingjian lu (Simple way of governance for implementation). 1 ce. Yunhuitang cangban, 1774 [1770p]. . Xingqian zhinan (A guide for xingming and qiangu advisors). 3 juan. Yunhuitang cangban, 1774 [1773p]. Wang Huizu. Bingta mengheng lu (Trace of tears in the dream at a sickbed, with a sequel appended). 1796p. In Wang Huizu, Wang Longzhuang xiansheng yishu. . Xu Zuozhi yaoyan (A supplement to Medicinal words for assisting governance). 1785p. In Rumu xuzhi wuzhong, 10780. . Xuezhi shuozhui (Extra words on learning about governance). 1800p. In Rumu xuzhi wuzhong, 40526. . Xuezhi yishuo (Nonsensical words on learning about governance). 1793p. In Rumu xuzhi wuzhong, 221350. . Zuozhi yaoyan (Medicinal words for assisting governance). 1785p. In Rumu xuzhi wuzhong, 10780. . Wang Longzhuang xiansheng yishu (Works bequeathed by Wang Huizu). 6 ce. Shandong shuju, 1886. Wang Kentang. Lli jianshi (Commentaries on the Ming Code with substatutes). Revised by Gu Ding. 30 juan + juanshou, juanmo. 1691p [1612p]. Wang Mingde. Dul peixi (A guide for deciphering the code). 8 juan. Lengrange, 1674. Collated by He Qinhua, Cheng Weirong, et al. Beijing: Fal chubanshe, 2001. Wang Quan. Songyan xiaolu (Collection of trivial writings). 6 juan. 1885p. In Suishanguan quanji (Complete works from the Suishan House) by Wang Quan. 31 juan. Shishanguan, 1861p1885p. Wang Shuzi and Zhang Qiuhui, eds. Chen Baozhen ji (Writings of Chen Baozhen). Beijing: Zhonghua shuju, 2003. Wang Tianxi Guanzhen jiyao (Collected writings on administration). 2 juan. 1535. In Guanzhenshu jicheng, 1:259310.

50

Li Chen

Wang Tingxiang. Wang Tingxiang ji (Collection of writings by Wang Tingxiang). 1510s1540s? Collated by Wang Xiaoyu. 4 vols. Beijing: Zhonghua shuju, 1989. Wang Xianyi. Jiayan suiji (Random words noted at home). 4 juan. Sufengtang cangban, 1870. Wang Yanmei. Muxue leiyao xu (Preface to Brief Notes on the Muyou Profession). In Wang Yanmei, Lxuetang yiji (Collected Writings from the Lxue Hall). 20 juan. 1840p. Wang Youfu. Buaixuan dul liuzhong (Six works for legal studies from the Buai Studio). 3 ce. 1807. . Yide outan (Casual talk on small points). 2 ji. 1804p. Printed with Buaixuan dul liuzhong Wang, Youhuai. Banan yaolue (Essentials for handling cases). In Rumu xuzhi wuzhong, 427532. . Qiangu beiyao (Important things for qiangu advisors). 2 juan. 1814 [1793p]. . Xingqian bilan (Essential guide for xingming and qiangu advisors). 10 juan. Benya cangban, 1814 [1793p]. Wang Youhuai and Li Guanlan, eds. Xiyuan lu jizheng huizuan (A compendium on Washing Away of Wrongs). 5 juan. Benya cangban, 1803 [1796]. Wang Zhaoyong. Shanyin Wangshipu (Genealogy of the Wang lineage of Shanyin). Wang Jingde tang, 1947. . Weishang laoren ziding nianpu (Chronological biography of Wang Zhao yong). Wang Jingde tang, 1949. Wang Zhiqiang. Fal duoyuan shijiao xia de qingdai guojiafa (Qing law from the perspective of legal pluralism). Beijing: Beijing daxue chubanshe, 2003. Wei Jirui. Sicitang gao (Drafts from the Sici Hall). 10 juan. 1860 [1675]. Will, Pierre-tienne. Developing Forensic Knowledge through Cases in the Qing Dynasty. In Thinking with Cases: Specialist Knowledge in Chinese Cultural History, ed. Charlotte Furth, Judith T. Zeitlin, and Ping-Chen Hsiung, 62100. Honolulu: University of Hawaii Press, 2007. , ed. Official Handbooks and Anthologies of Imperial China: A Descriptive and Critical Bibliography. Forthcoming.

Legal Specialists and Judicial Administration in Late Imperial China

51

Woodside, Alexander. Territorial Order and Collective-Identity Tensions in Confucian Asia: China, Vietnam, Korea. In Public Sphere and Collective Identities, ed. Shmuel N. Eisenstadt, Wolfgang Schluchter, and Bjrn Wittrock, 191220. New Brunswick, N.J.: Transaction Publishers, 2001. Wu Chengqiao. Qingdai lizhi congtan (Stories about officials of the Qing government). Taipei: Wenhai chubanshe, 1967 [1936p]. Wu Hong. Zhishang jinglun (Statesmanship on paper). 6 juan. 1721p. In Ming Qing gongdu miben wuzhong, 139240. Wu Kun. Xingyou liangfang shizhe (Ten good suggestions for legal advisors). 1 ce. 1850p. Wu Xuejun. Zhouquan Wushi zupu (The genealogy of the Wu lineage of Zhouquan). 1876. Xie Minghuang. Qiangu shicheng (Expecting success for a qiangu advisor). 2 juan. 1788p. Xie Qikun. Shujingtang wenji (Writings from the Shujing Hall), 4 juan. 1800. Xingbu gesi panli (Case-based substatutes of the Ministry of Justice [181013]). 8 ce. In Lidai panli pandu (Legal cases from the various Chinese dynasties), ed.Yang Yifan and Xu Lizhi, 6:281409. Beijing: Zhongguo shehui kexue chubanshe, 2000 [c.a.1818]. Xingbu zouding zhangcheng (Approved circulars of the Ministry of Justice). 4 juan. Ronglutang, 1892. Xingmu yaolue (Essentials for xingming advisors). Daoguang-era. In Rumu xuzhi wuzhong, edited by Zhang Tingxiang, 533630. Xinguan guifan (Guidelines for new officials). 1629 [1565p?]. In Guanzhenshu jicheng, 1:73349. Xu Daolin. Zhongguo fazhishi lunji (Essays on Chinese legal history). Taibei: Zhiwen chubanshe, 1975. Xu Dong, ed. Muling shu (A book for magistrates). 23 juan. 1848 [1838p]. Xu Fengen. Lanshaoguan waishi (An unofficial history by the Lanshao Studio). 10 juan. Changshu: Baofangge cangban, 1874p. Xu Simei. Qiushuixuan chidu (Letters from the Autumn Water Studio). 1831. Annotated by Xiao Pingdong. Changsha: Hunan wenyi chunbanshe, 1986.

52

Li Chen

Xu Tang. Juguan geyan (Maxims for office holders). 1513p. In Guanzhenshu jicheng, 2:7681. Xu Xu. Minzhong jilue (Brief notes about occurrences in Fujian). 1675p. Reprinted by Taiwan yinhang jingji yanjiushi, Taiwen wenxian chongkan, No. 260. Taibei: Taiwan yinhang, 1968. Xu Yuanmei et al., eds. Shanyin xianzhi (The Shanyin county gazetteer). 1803. Reprinted by Shaoxing congshu bianji weiyuanhui, Shaoxing congshu diyiji: Difangzhi congbian (vol. 8). Beijing: Zhonghua shuju, 2006. Xu Yuanmei, and Zhu Wenhan. Jiaqing Shanyin xianzhi (The Shanyin county gazetteer of the Jiaqing reign). 30 juan. 1803. Reprinted by Shaoxingxian difangzhi bianzhuan weiyuanhui. Taipei: Chengwen chubanshe, 1992. Xu Zhongyuan. Sanyi bitan (Talking points about unusual things). 1827p. Chong qing: Chongqing chubanshe, 2005. Xue Linpu. Muxue zhengzong; Guanmu michuan (Authoritative teachings for private advisors or Secret tips for officials and their advisors). 2 juan. Guangzhou: Yuedong bianyi gongsi, 1922. Yan Kejun, and Chen Yanjia. Quan shanggu sandai Qin Han sanguo liuchao wen (Complete collection of texts from the ancient time, Three Emperors, Qin, Han, Three Kingdoms, and Six Dynasties). Vol. 1. Shijiazhuang: Hebei jiaoyu chubanshe, 1997. Yang Yifan, ed. Zhongguo fazhishi kaozheng (Evidentiary scholarship on Chinese legal history). Beijing: Zhongguo shehui kexueyuan chubanshe, 2003 [1994]. Yu Shangxi. Zhouquan zhengzhi (The gazetteer of Zhouquan township). Hangzhou: Zhejiang daxue chubanshe, 2010 Yuzhi dagao: chubian, xubian, and sanbian (Imperially compiled grand pronouncements: Parts 1, 2, and 3), 1385, 1386, and 1387 respectively. Zelin, Madeleine. The Magistrates Tael: Rationalizing Fiscal Reform in EighteenthCentury Ching China. Berkeley: University of California Press, 1984. Zelin, Madeleine, Jonathan Ocko, and Robert Gardella, eds. Contract and Property in Early Modern China. Stanford: Stanford University Press, 2004. Zhai Shan. Zhusi zhizhang (Organization of different branches of the central government). 10 juan. 1393. 2 vols. Taibei: Guoli zhongyang tushuguan, 1981.

Legal Specialists and Judicial Administration in Late Imperial China


Zhang Chuangxin. Zhongguo zhengzhi zhidushi (History of the Chinese political system). Beijing: Qinghua daxue chubanshe, 2005.

53

Zhang Jixin. Dao Xian huanhai jianwenlu (Things seen and heard about the bureaucracy of the Daoguang and Xianfeng eras). Beijing: Zhonghua shuju, 1981. Zhang Shucai, ed. Yongzheng chao hanwen zhupi zouzhe huibian (Chinese edicts with red rescripts from the Yongzheng reign). 40 vols. Nanjing: Jiangsu guji chubanshe, 1989. Zhang Tingxiang, ed. Rumu xuzhi wuzhong (Five essential works for entering the muyou profession). 1892. Taipei: Wenhai chubanshe, 1968. . Zhuiyan shize (Ten extra suggestions). 1883p. In Rumu xuzhi wuzhong, 63342. Zhang Weiren [i.e. Weijen Chang]. Liangmu xunli Wang Huizu (shang, xia) (Wang Huizu: A good advisor and virtuous official) (Part 1, Part 2). Guoli Taiwan daxue faxue luncong (Law review of the National University of Taiwan) 19.1 (1990):149, 19.2 (1990):1950. Zhang Weiren and Yu Yuzhen. Qingji difang sifa: Chen Tianxi xiansheng fangwen ji (xia) (Qing local justice: Interview with Mr. Chen Tianxi (part 2). Shihuo yuekan (The Shihuo monthly magazine) 1.7 (1971):4655. Zhangsun Wuji et al. Gu Tangl suyi (The Old Tang Code with commentaries). 653p. Fujian: Yushi Qinyoutang, 1332. . et al. Tangl suyi (The Tang Code with commentaries). 653p. Taipei: Shangwu yinshuguan, 1939. Zhaojie shuo (On writing legal reports). 4 ce. Jiaqingera. In Ming Qing gongdu miben wuzhong, 551644. Zheng Qin. Qingdai fal zhidu yanjiu (Study of the legal system of the Qing Dynasty). Beijing: Zhongguo Zhengfa daxue chubanshe, 1999. Zheng Tianting. Qingshi (History of the Qing period). Taibei: Zhishufang chuban jituan, 2003. Zhou Shouchi. Xinji xingan huibian (A new compendium of legal cases). 16 juan. Shanghai: Tushu jicheng ju, 1897. Zhou Xun. Shuhai congtan (Miscellaneous remarks about Sichuan). 1948. Chengdu: Bashu chubanshe, 1986.

54

Li Chen

Zhouxian tigang (Outlines for county magistrates). 4 juan. Song-era. In Guanzhenshu jicheng, 1:3568. Zhu Qingqi et al. Xingan huilan sanbian (A conspectus of legal cases in three sets). 4 vols. 183486. Beijing: Beijing guji chubanshe, 2000. Zhuang Chengfu [hao.Cunzhai] (attributed). Piantu lun (On unorthodox careers). 18th-19th century. In Jindai baihai (The official world of the recent ages), ed. Zhang Bofeng and Gu Ya, 61168. Chengdu: Sichuan renmin chubanshe, 1988.

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