Legal Hitory Review vol.33 (1983)
Summaries of Articles

Prisons of Local Governments in the Ming and the Qing Periods

| preliminary investigation |

by HAMASHIMA Atsutoshi

In the Ming and the Qing periods all the local administration offices, such as fu •{  (prefecture) , zhou B (subprefecture) and xian γp (county) , had only one prison, jian@ŠΔ, each within their formal institutions. In the late Ming and the early Qing periods, however, we find the existence of another, different type of prisons, generally called pu •άin the Jiangnan provinces, and also called cang ‘q in the other provinces. These new jails were not legally authorized, but were instituted by each local administration office of its own accord. The high officials of provincial level, such as xunfu „• (Grand Coordinator) and xun'an „ˆΒ (Regional Inspector) , treated and utilized these new jails virtually as the institutional section of local administration office, and sometimes ordered that not only jian but also pu or cang should be inspected at regular intervals. In the Xunzhi ‡Ž‘ reign, the bureaucrats of both the central and the local governments frequently referred to these jails in their memorials submitted to the Emperor. We may conclude from this that these jails were practically, though not legally, as good as authorized by the Emperor and the ministers of the Qing central government. In the late Kangxi Nΰ† reign, however, the Emperor gave a consent to the proposal, submitted by a scholar-bureaucrat, Zhou Qingyuan Žό΄Œ΄, that a ban should be placed against instituting and utilizing the illegal jails, such as pu, cang, suo Š, dian “X, ce ςand so on. And this prohibition became an express provision in the Great Qing Codes after the Yongzhen 贐³ reign. But the local officials obeyed this ban only ostensibly, and actually and practically ignored it. Thus the illegal jails continued to exist through the middle and late Qing period under the names of zixinsuo Ž©VŠ, shoujinsuo Ύ‹ΦŠ and so on.

In this article the author has investigated into the existence or non-existence of these informal jails in each province of the mainland China in the late Ming and the early Qing periods. As to the Provinces of Jiangsu, Anhui, Zhejiang, Hebei, Henan, Shangdong, Shanxi ŽRΌ and Fujian, the existence of this new type of jails during these periods has been confirmed in all or some of their subprefectures and counties. In Guangdong, this new type of jails seems to have been still in the process of growth, and in Hubei, Hunan, Jiangxi and Sichuan it was not yet instituted. As to the other provinces, such as Shanxi 蟐Ό, Guangxi, Yunnan and Guizhou, the author has no source materials from which to conclude. In the author's opinion, the growth of this new type of jails was closely connected with the social, economic and political change taking place among the rural communities of these days, a change characterized by the collapse of the power of the rural-landlord class.

There is an explanation which defines jiao of the late Qing period as a prison in which convicted prisoners were confined and, on the other hand, pu or cang as a house of detention for the unconvicted. But this explanation is not satisfactory. The definition may hold good if we are discussing the last years of the Qing period or the Republic era, but, as far as the Ming and the Qing periods are concerned, it is not correct. In one sense, not only pucang but also jian were the houses of detention for the unconvicted. The penalty of confinement did not exist in the criminal codes of the Ming and the Qing Dynasties, and the penalty of servitude was executed at the government-owned mines and salt-fields, the stations (yizhan ιƒβ‹) and the garrisons (wei ‰q) . The distinction, therefore, was not between the convicted and the unconvicted, but rather between felons and misdemeanants. The former group was estimated to deserve penalties heavier than the servitude at the stations (fazhan α’β‹) , and was detained in jian till judgment. The latter, on the other hand, was detained in pucang, and here it sometimes happened that not only defendants but also plaintiffs in civil cases and even witnesses in both civil and criminal cases were detained according to the convenience of the authorities concerned.

Another important function of pucang was to press by compulsory detention for payment of ransom (fushu ”±ζά) , tax (shuiliang Ε—Ζ) and rent (dianzu ’Ο‘d) . The criminals allowed to be redeemed by money were usually detained in pucang till the ransom was fully paid. Taxpayers accused of deficit of tax (kangliang R—Ζ) were detained there. Peasants in arrears with their rent (kangzu R‘d or qianzu Œ‡‘d) and accused by their landlords were also detained, and released only when their family or relatives had cleared off the deficit. Thus the investigation into this new type of jails, pu or cang, instituted by local administration offices, seems to constitute an important subject not only for the study of the Chinese legal and administrative system in the Ming and the Qing periods, but also for the study of the society, the economy and the popular movements of these periods.

Essay on the Inheritable Shiki

by Norio YOSHIDA

A shiki (E) and a chigyo (’ms) are regarded as indications of a landship during the medieval times in Japan. About the shiki, there are two opposite theories; one identifies the shiki in the medieval time with a government post in the ancient, the other regards the shiki as a real right. This dispute has an influence upon historical theories up to now. On the contrary, some historians take a new look on the shiki as a sort of a feud. Representative historians take a theory of a complex about public and private matters to grasp a structure of the medieval history in Japan. According to their viewpoint, a formation of a private ownership is an origin of a feudal ownership. In this article, however, I think a hereditary ownership on the premise that feudal ownerships are established. Therefore, l attend to most of shikis have a word, sodden (‘Š™B), with that, people living in the medieval claimed a hereditary right in many actions.

The claims for a hereditary right appeared in the middle of the Heian-period, and its owner appointed by his parent was written on a yuzurijo (χσ). But hereditary owners were so often infringed by outsiders that they contribute their shiryo (Ž„—Μ) to an influential person to protect himself. And its accepter was looked upon as a lord. At a contribution, a special contract, for example, handed down only to descendants, was exchanged between the both so that an accepter guaranteed the hereditary ownership for a contributor. After that, the lord appointed the contributor a so-and-so shiki, for example, Geshi-shiki (‰ΊŽiE). The appointment to the shiki yielded to a hereditary contract if it had been not violence of an accepter's right. Consequently I think that the appointment to the shiki was equivalent to a bestowal of a hereditary ownership that the Kamakura-bakufu (Š™‘q–‹•{) adopted. People living in the medieval thought shiki to be inherited.

About 12th century, powers on the Dynasty worked out logics of a buntsuke (•ͺ•t) and a betsu-soden (•Κ‘Š™B) from an established system to warrant the inheritance, the former to deny an effect of an inheritance, the latter to deny an appointment. The betsu-soden meant an inheritable right peculiar to a collateral line that was not forfeited by an heir. When the general public claimed a right of a betsu-soden in 13th century, they refused to pay a land-tax to destroy a rule by a lord. I find a good chance to form an exclusive and private landownership. But the betsu-soden was denied by a policy called the kuge-tokusei (Œφ‰Ζ“Ώ­), and that brought a change in a feudal phase.

A Research on the Penal Policy in China
During the Ch'in and the Han Dynasties

by Tsuyoshi HORI

Since the ch'in documents were discovered in Hupei, China, remarkable progress has been made in the field of Chinese history. This thesis aims to investigate some of the legal policies that were made during the Ch'in and Han Dynasties.

SECTION I covers the rules on the  “excuses and extenuations “ from punishment for the youth and the aged during Ch'in Dynasty.

We know that during the T'ang Era general rules of “excuses and extenuations” were integrated into their legal system.

Through the examination of Ch'in documents we can trace back some of these general rules to the Ch'in-lü`—₯.

Namely, in trials for penal offences, allowances were made for the youth and the aged. But the definitions of the “youth” during the Ch'in Dynasty were different from the definitions of “youth” used during the Han Dynasty to the present.

During Ch'in Dynasty “youth” and “adult” were distinguished by one's height.

The dividing line between “youth” and “adult” was set at 6 Ch'in feet (23.1 cm x 6 = 138 cm).

So, when a “youth” commits a crime, his punishment is commuted.

In regard to the aged person, his rights were protected by a special provision, namely the provision of “pu hsia” •sF.

SECTION II mainly covers the general rules of “excuses and extenuations” during the Han Dynasty. During the Han Dynasty, further provisions were made, such as

1) Provisions for those under age fifteen, for youth under ten, eight and seven, various degrees of commutions were done.

2) With Confucian influence, the policies of mercy for the aged, disabled and women were applied one after another, and the policies were completed in the T'ang-lü “‚—₯.

SECTION III covers the census-taking system.

Through “Hou Han shu” ŒγŠΏ‘, we know that during the Han Dynasty the annual census-taking was held in Aug. of each year. Through my research of the Ch'in documents, l have proven that this Han system is traceable to the Ch'in Dynasty.

SECTION Iv covers the meaning of a passage in Han-chiu-i ŠΏδp‹V.

It includes the following provision: “nien wu shi liu mien” ”NŒά\˜Z–Ζ.

In 1941, Prof. Shigeo Kamata theorized that this passage should be a provision concerning the land tax and service duties.

On the other hand, in 1957 Prof. Mitsuo Moriya theorized that this passage was a reference to a provision in the “excuses” for punishment. Prof. Kamata's viewpoints are probably closer to the truth.

The ability of tax and service duties was determined by the person's “productive capacity”. This “productive capacity” was determined by the person's medical status.

In other words, person's ability was determined on medical grounds. During the Han Dynasty  “Huang ti su wan ching “ ‰©’ι‘f–βγS was widely read and accepted as the medical text. It reads as following:“at the age of fifty-six, man's liver, muscle and generative functions decline” (VOL. 1).

The passage is the basis for the “nien wu shi liu mien” provision.

Roman Legal Thinking in Classical Times

| An approach to the Aquilian texts –

by Takayoshi NISHIMURA

1) My purpose in this paper is to analyze, especially in a concrete form, the methods of legal thinking and the types of judgements that the Roman jurists and practicians introduced into the interpretations of law during the creative period of early classical times. In particular, I make an attempt to consider the process of development of the Lex Aquilia in the historical society concerned.

2) First, on the theoretical bases, it is necessary to re-examine the idea that legal texts were generally interpreted on the basis of voluntaristic theory at that time. Analyzing the texts of the Lex Aquilia, it seems that this idea is not supportable. The theory of Johannes Stroux proposed in 1926 still seems to be accepted only with reservations. In other words, Roman jurists had no system of voluntaristic interpretation which emphasises the will.

After the controversy about his theory, at the end of the 1960's, two remarkable contributions to the methods of interpretation were published. Their authors discussed the relation between words of law (verba legis) and intention (voluntas, sententia). After investigating the rhetorical doctrine of status legales, they turned to the Roman jurists and tried to make clear their methods or techniques of interpretation. Then, Dr. Bernard Vonglis insists on the idea of historical legislator's win, according to his two standpoints as the following. That is to say, first, the legislator's will is an idea expressed by the words which the legal texts constitute and, therefore, one must inquire into this intention from the texts directly, secondly, the interpreters who are responsible for applying a law should be obedient to the legislator's will (B. Vonglis, La lettre et l'esprit de la loi, p. 31, Paris 1968). On the contrary, Prof. Uwe Wesel, extracting three types of methods in dealing with statutes out of the Roman legal sources, puts great emphasis upon the character of adhering to the literal meaning of the words used in law and upon the possible extension of this meaning (U. Wesel, Rhetorische Statuslehre und Gesetzesauslegung der römischen Juristen, S. 133f., Köln/Berlin/Bonn/München 1967). In his opinion, the criteria probably used by the Roman jurists are as follows: 1. the meaning of the statutory words must be determined, 2. proposal must be made for the grant of praetorian actions based on the model of the statute, 3. there must be argumentation according to the sententia as opposed to the verba.

3) With this various viewpoints, it is impossible for us to begin with any legal concept, institution or definition and so forth which were reconstructed from the Roman sources by conceptual jurisprudence, or legal positivism. Indeed, we need to try to examine the historical process of their formation.

I would, therefore, be able to give three points of view. In the first place, the theoretical consequences of the Lex Aquilia in classical law which are well-known to us are, in fact, of the jurists' activities in legal interpretation from the enactment of the lex at B. C. 3 to the end of the Republic or early Principate, and of the praetorian development of law. Based on these facts, interpretation of laws done by jurists is directly concerned with the judicial judgements of praetors; in other words, it is closely connected with a decision as to whether or not praetors are able to substitute the legal relations for the facts in social lives. Secondly, there are many decisions of jurists to be made concerning whether an action, an exception or an interdict would be appropriately granted to a given case or not. The grant of action in factum is, therefore, situated correctly within the activity of interpretation by jurists rather than within the praetorian conduct of giving and approving an action based on their imperial power (potestas). Thirdly, even in considerably later times, the meaning of the words used is discussed and determined carefully, in particular, in the Ulpian texts (lib. 18 ad edictum), and therefore one rightly ought to accept the situation of legal sources.

According to the above-mentioned view, in my opinion, the historical institution, system and notion are undoubtedly not to be considered from any aspects of juridical structure of the later theory. And the legal texts ought to be examined from the viewpoints of legal thought at that time: such as analogy and fiction (Max Weber, Wirtschaft und Gesellschaft, 5. Aufl. S. 457, Tübingen 1976).

4) As a result of making an investigation into the Aquilian texts, Wesel's above-mentioned theory seems to be acceptable and persuasive. Then, in this article, dealing with the nature of Aquilian actions in factum, I examine historically the methods or techniques of interpretation in Roman legal practice, without being based on the criterion which was supposed by many scholars to be a fault-case (culpa) and causation. Because, first, it is not easy to distinguish direct action (action legis Aquiliae), action ad exemplum and action utilis from one another, and secondly, because the supposed criterion is not suitable for some cases of action in factum in the early texts. And then, it would be best for us to present a reflection of the practical sense which the Romans had in mind when interpreting law. In my opinion, the resort to an acito in factum is, strictly speaking, not a law₯making or a creation of new law, but an appearance made by the jurists and praetors as a result of their co, operation; it ought to be regarded as an analogical application of law which is a part of jurist's interpretation. In other words, the idea that actions in factum be given to a case where there is no direct causal relation or substantial damage done to the property, is nothing more than a theoretical paradigm of legal dogmatics. For the original texts, which have survived until today, does not have any descriptions of the direct causation and the substantial damage to things; that is to say, they have no corpore corpori at all. There is only an expression iniuria [damnum] datum. As a consequence, the words non corpore non corpori are nothing else than a later working hypothesis of reconstruction by textual criticism. The research on the legal meaning involved in iuria [damnum] datum is, in my opinion, regarded as cognizing operation done by the Roman jurists and later lawyers in the Middle and Modem Ages. As a matter of fact, a problem of actions in factum is that of the effective range of a law. And the effective range can be regarded from the standpoint of being closely adherent to the words used, apparently in cases of being entitled to the action for some plaintiffs, and some types of offence, and extensive objects that the law protects. It may be concluded that the solution of the case presented before the jurist by means of action in factum is qualified respectively in the above-mentioned cases, and that the action means a thinking process of the jurist through an analogical interpretation and application of law.

According to Prof. Herbert Hausmaninger, analogical thought is to extend the range of legal products systematically, and the chance of proposing to praetorian law-makers by means of jurists' legal interpretation is preferably an evidential fact of reference to restriction in principle against the analogical application of the jurists (SZ 85, 1968, S. 474). In my opinion, his idea is justified.

5) Finally, the next problem is posed: what is their motive, when the jurists give up meaning and prepare to progress outside the range of the law? This case means that they are not satisfied with the framework of civil law (ius civile). What is their rule when they progress beyond the civil law? We have no evidential source about it.

This problem is probably similar to the following: how did they deal with the conflict between the adherence to meaning of words and the inconvenient legal logic based on strict interpretation? It can be found in only one text of Iulian within the Aquilian texts. He makes an adjustment for the conflict of the practical needs or the demand of law with the logical deduction. Even if we have only one text, I can still insist that a principle of utility based on the social justice which the Romans had traditionally is a leading one of interpretation. And it is the same principle that the jurists interpret strictly, where they go forward beyond the frame of civil law. According to Prof. J. A. Ankum, the jurists used utility (utilitas) as a reason to explain the acceptance of a dogmatically indefensible solution, or as an argument invoked to defend a similar solution (Symbolae M. David I, p. 28, Leiden 1968). His idea is not acceptable without reservation. For, in my opinion, a principle of utility ought to be considered as a principle of interpretation in early Principate, or at the latest, the time of Celsus and Iulian.

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