6. Li Chen-Legal Specialists and Judicial Administration

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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

LEGAL SPECIALISTS AND JUDICIAL ADMINIS-

TRATION IN LATE IMPERIAL CHINA, 165119111

Li Chen

This article studies the historical origin, legal training, career patterns, pro-fessional identity and ethics, judicial philosophy, and scale of professionaliza-tion of thousands of legal specialists in late imperial China from about 1651 to1911. It is the rst extensive study in English of these early modern Chinese

jurists and legal professionals who were the de factojudges in probably mostof the 1,650 Chinese local governments for more than two centuries. Basedon archival sources, the article offers an estimate of about 3,000 such trainedlegal specialists working in local Chinese courts in any given year from roughly1711 to 1911, which means an estimated total of 30,000 for that period as awhole. The article points toward a rethinking of the received wisdom on lateimperial Chinese legal culture and judicial administration, as well as theirlegacy on modern Chinas drive for the rule of law.

* * *

Revisionist scholarship over the past four decades has seriously challengedearlier representations of the legal system in late imperial China as backward,irrational, and/or incommensurable with western or modern notions of lawand justice. We now have a far more nuanced understanding of many aspectsof pre-1911 Chinese legal culture and judicial practice.2 Nevertheless, more

1 The author is grateful to Madeleine Zelin in particular and to Daniel Asen, Thomas Buoye, JrmeBourgon, 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 theircomments or support of this project. He thanks the anonymous reviewers and the editors of this journalfor their valuable feedback, and appreciates the research assistance of Bai Huatong, Shen Xiaocun, BaiRuoyun, Guo Weiting, and Tian Huan. The project was funded by Columbia University, the Universityof Toronto, and the SSHRC of Canada.2 It is impossible to list all the relevant works. Besides those cited herein, see, e.g., Buxbaum, SomeAspects 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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research is still needed about other facets of the Chinese legal tradition. Forinstance, we have only relatively limited knowledge about why and how scholar-ofcials in late imperial China, apparently with no systematic legal education,could administer one of the most sophisticated legal systems in the world. Thisarticle, part of a larger book project, is a preliminary step to address this under-studied question by investigating the rise, training, social status, professionalidentity, and legal thinking of the thousands of legal specialists that had becomethe backbone of Chinese judicial administration by 1700.

The roughly 1,600 local administrators in Qing (16441911) Chinarangingfrom county magistrates (zhixian) through prefects (zhifu) and circuit intendants(daotai) to provincial governors (xunfu)were also technically the chief judicialofcers in their jurisdictions even though most of them were appointed not fortheir legal knowledge but for their success in passing the civil examinations.As William Alford has noted, the resulting perception that there was neitherseparation of powers nor legal expertise among these local ofcials/judgeshas greatly contributed to the popular stereotypes in the west about late imperialChinese law and justice.3 This issue has not been tackled in the recent series ofne studies on late imperial China, but the fact that most local Qing administra-tors entrusted their judicial work to legal specialists would call for a rethinkingof late imperial Chinese law and society.

From early on, as will be shown, it became a nationwide practice for Qinglocal ofcials to hire different types ofmuyouliterally friends in the tent or

behind the curtainas private advisors to help perform their ofcial duties. Asearly as 1847, Thomas Meadows (181969), a British Sinologist and consularofcer, observed:Xingming muyou (in charge of the criminal law) and qiangumuyou (in charge of the scal law) properly comprise the judicial advisorsand are the only people in China who devote themselves solely to the studyof the law, and in so far, they resemble our barristers and sergeants-at-law.4Although numerous modern scholars have likewise noticed their importance tolocal judicial administration, no one has yet undertaken a systematic study ofthem as legal specialists and of their role within the Qing legal system while the

3 Alford, Of Arsenic and Old Laws, 119096, 119394 (for the quotation). This perception is not fullyaccurate. 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 legalhistory), 91106. Except for the Yuan period (12791368), tests of legal knowledge remained part of the civilexaminations 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 Oriental-ism.4 Meadows,Desultory Notes, 104.


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3Legal Specialists and Judicial Administration in Late Imperial China

few Chinese works that have discussed them more extensively did not consultthe relevant archival sources.5

Qing local ofcials also hired other types ofmuyou such aszhanghao/hao-jian (registering), shuqi/shuji/shubing(writing), and zhengbi/zhengshou (taxcollecting), butxingmingand qiangu muyou were the most essential to localadministration and enjoyed a much higher social status and received higher paythan the others.6 Etymologically, the Chinese compound xingminghad beenwidely used by the rst century B.C.E. to designate Legalist (fajia) philosophyand the legal institutions it informed, and later was often used as a synonym for

judicial administration, law (fal), or jurists (fajia orshenhan).7 Depending onthe context, the termxingmingcan thus be translated as law/legal, justice/

judicial, or legal specialists in this study. The compound qiangu literallymeans money and grain, but qiangu muyou helped local ofcials manage not

just scal matters but also legal disputes over land, property, contracts, and/or debts whilexingming muyou dealt with most other types of legal matters,including lawsuits over marriage and inheritance, and more serious crimes.8

5 On English works that briey 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 Inuence of Shen; Karasawa, From Oral Testimony, 104106; Philip C.C. Huang, CivilJustice, 22022; Bourgon, Uncivil Dialogue, 6872; Will, Developing Forensic Knowledge. On moredetailed but dated studies of them, see Tung-tsu Ch,Local Government, 93115 (extensively citing WangHuizu); Weiji Chang, Legal Education, 30214 (focusing on their training by example of Wang Huizu andChen Tianxi). On the relevant Chinese works, see, e.g., Miao Quanji, Qingdai mufu (The Muyou system ofthe 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 xingmingadvisors).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 ofmuyou of Zhili Governor-General in 1773, seeJunjichu 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 (xingas inxingtai) should matchthe name (ming). Along that line, founding Legalists like Shen Buhai (d. 337 B.C.E.), Shang Yang (d. 338B.C.E.), and Han Fei (280233 B.C.E.) interpretedxingmingto mean that the state should reward or punishits subjects action strictly by the codied laws (xunming zeshi shenshang xingfa) in order to achieve effec-tive governance. The termshenhan 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), inQuanhanwen,juan 37, reprinted in Yan Kejun and Chen Yanjia, Quan shanggu sandai (Complete collectionof texts from the ancient time), 610 and 600 respectively, see 602; Chen Songchang,Mawangdui boshu xingde yanjiu (Draft essay on the concept ofxing de), 31. About these early Legalists, see Zhengyuan Fu, ChineseLegalists, 1617. For later usages ofxingming, 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 xingmingin the 1700s (BaiRuzhen, 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 dis-tinct separation between civil and criminal matters in Qing judicial practicethat was otherwise found absent in theory.9 This division between xingmuand qiangu muyou is more or less parallel to that between provincial judges(anchashi) and lieutenant governors (buzhengshi) in judicial administration, butit is worth noting that some Qing lieutenant governors also hired legal advisorsto handlexingmingand qiangu matters separately.10

Most modern scholars have translatedxingming/qiangu muyou into legal/scal secretaries but that translation is misleading. Given their professionaltraining, crucial role, and social status as friends, advisors, or even teachersof the ofcials that hired them, it seems more accurate to compare them toin-house legal counsels of a modern rm or government agency, than to of-ce secretaries, except that a qiangu also acted like a chief nancial ofcer. Iwill use private legal advisors to refer to not onlyxingmingbut also qiangumuyou in this article because of their shared training or practice in law.11 EarlyQing advisors published handbooks for bothxingmingand qiangu advisors inone 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 xingmingin the lower YangziRegion in the late 1800s (see Zhang Tingxiangs note, at Wang Youhuai, Banan yaolue (Essentials forhandling cases), 489, 48689. Wangs book was an updated reprint of Bais). For legal issues handled byqiangu advisors, see Qiangu zhinan (A guide forqiangu advisors), 26998 and 42732; Wang Youhuai,Qiangu beiyao (Important things forqiangu advisors); Xue Linpu,Muxue zhengzong(Authoritative teach-ings 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 governorsalso hiredmuyou to handle legal disputes, in addition to scal matters. See, e.g., Qingdai gongzhongdang zouzhe jijunjichu dangzhejian (Taibei) (cited as QDGZD), No. 404014616 (JQ14/6/26); Wan Weihan, Chenggui

shiyi (Additional collection of established regulations), 9a30a. For translation ofanchashi and buzhengshi,see Guy, Qing Governors, 376, 47.11 Qing private advisors were often trained, or hired below the provincial level, for both xingmingandqiangu 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 twojobs.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); WanWeihan,Xingqian zhinan (Guide forxingmingand qiangu advisors, 1770p); Wang Youhuai,Xingqian bilan(Essential guide, 1793p); Pan Biaocan, Weixin bian (An unreliable treatise, 1684p),juan 12 (qiangu),juan34 (xingming); Sun Hong, Weizheng diyibian (Manuals for governance, part I, 1702p),juan 34 (xingming),juan 56 (qiangu); Chen Wenguang,Bu Weixin bian (Supplement toAn Unreliable Treatise,1707p),juan

23. A qiangu advisors duties of nancial management also required knowledge about various laws andregulations. 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).


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two decades, even noted that people found it hard to distinguish a xingmingfrom a qiangu advisor in their division of labor in judicial administration.13 Areexamination of these legal advisors seems particularly necessary given thatthey presumably had a far greater impact on Qing Chinas law and justice thanthe outlawed litigation masters who have been extensively studied by thoselike 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 rst came into being, but we can still nd some sign-posts of their earlier trajectory. There was no mention yet ofmuyou (as privatelegal advisors) in the dozens of extant administrative handbooks published before1640, although Qing legal advisors could probably nd their prototypes as earlyas the late Yuan (12791368).15 According to ofcial records, local administra-tion in the late Yuan and the early Ming (13681644) was so overwhelming tomany local ofcials that it was often managed by government clerks who in turnrelied onprivate administrative specialists called chief drafters (zhuwen)assisted by junior writers (tieshu andxiaoshusheng)and scal managers

(shusuan).16

Thezhuwen andshusuan of the Ming seem to have played a rolesimilar to that ofxingmingand qiangu advisors respectively in the Qing, but theformer were hired by government clerks while the latter were hired generally bycounty magistrates and their superior ranking ofcials. Edicts by the Hongwuemperor in 138587 showed that these private administrative specialists werealready common in places like Songjiang, Suzhou, and Huizhou prefectures inthe lower Yangzi region. Hongwu and his successors treated them like litigation

13

Bai Ruzhen,Xingming yide, 1:32a.14 Fuma, Litigation Masters; Fuma, Songshi mibenXiaocao yibi de chuxian (Emergence of the secretpettifogger 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 ofce holders). A handbook of 1535 stilluses the centuries-old term muguan ormubin 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 ofcials), 49 (using muguan).16 SeeMing shilu: Taizu shilu (Veritable records of Ming Taizu), 2010 (juan 126:1a [Dec. 25, 1379]). SeeHe Chaohui, Mingdai zhixian muyou (A short study ofmuyou), 141; Ibid.,Mingdai xianzheng(A study ofMing county government), 9294. Shusuan were also hired by clerks for scal matters at least from the 1400s

on.Ming shilu: Xiaozong shilu (Veritable records of Ming Xiaozong), 3731 (juan 201:4ab) (zhuwen andshusuan).Huo Mianzhai ji, 5:39 (juan 13), quoted in Liang Fanzhong,Liang Fangzhong dushu ji (Readingnotes), 354; Wang Tingxiang, Wang Tingxiang ji (Collection of writings), 1164.


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masters or unregistered yamen runners because they reportedly loafed aroundthe 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 alreadybecome more attractive to at least some Ming literati than an orthodox ofcialcareer by this time.18

In 1592, like other contemporary commentators, L Kun (15361618,jinshi1574), a model Ming ofcial, still dened chief drafters orzhuwen as thoseexperienced individuals who prepared virtually all the judicial documents forthe clerks at the county through the provincial yamen. He implied that it wascommonplace for local ofcials to depend on clerks who in turn relied on chiefdrafters for their judicial duties.19 By 1600, however, a transition seems to havegained momentum as more and more local ofcials hired chief drafters as their

private legal advisors. Li Le (1532?1619?jinshi 1568), a Ming local ofcial,observed in about 1601 that among the magistrates he knew, four or ve out often had hired azhuwen to accompany them to their ofces.20 In a 1612 prefaceto his famous Commentary on the Ming Code with Substatutes, Wang Kentang(15491613,jinshi 1589), a leading Ming jurist, also conrmed that local of-cials commonly employed private specialists to administer law for them:

Most ofcials had no legal knowledge when they were students ofthe 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 draft-ers (zhuwen) who then wielded power and took bribery (zhaoquannahui) and did myriad other things harmful to the people.21

As more and more local ofcials were unwilling or unable to develop legal ex-pertise, they simply hired legal specialists as their private advisors to take care oftheir judicial work and check on the government clerks they used to depend on.

17 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 guanbizhuwen). See Xinguan guifan (Guidelines for new ofcials), 738 (written around 1565) (indicatingzhuwenas 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 azhuwen for himwhen he was rst appointed a county magistrate in Jiangxi.21

Wang Kentang, Preface (1612), in Wang Kentang and Gu Ding, Lli jianshi (Commentaries on theMing 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 inuence of theseprivate legal and administrative specialists in the Ming-Qing period? While thenumber of local ofces in mid and late imperial China remained relatively smalland stable, the expansion of the population and increasingly commercializedeconomy after the Southern Song (11271279) gave rise to more complicatedeconomic transactions and social relations and in turn an increasingly complexand understaffed judicial system.22 First, there were already complaints in theSong about local ofcials overburdened by administrative and judicial duties.23Hu Zhiyu (122793), a former provincial judge of the early Yuan Dynasty, alsolamented that most county magistrates had difculty managing their ofcial

paperwork and judicial matters (andu) and depended on their clerks (wenfali).He proposed that all candidates for magistracies be examined on how well theycould write legal judgments (shupan) and how much they knew about gover-nance.24 The growing number of new laws and regulations and leading cases inthe Ming made it even harder for local ofcials to master the legal system. Ahandbook of 1629 thus urged new ofcials to nd a legal specialist (xingming

fajia) with whom to study the statutes (l) and substatutes (li) day and nightso that they would be able to supervise their clerks or the latters private as-sistants.25 In an inuential handbook, She Ziqiang (jinshi 1592) offered similaradvice to local ofcials.26

Second, the bureaucratic restructuring in the Ming from the fteenth centuryon also had its impact. Regional inspectors or grand coordinatorspredeces-sors of Qing provincial governorswere sent periodically by the Ming courtto supervise local administration. Without a permanent staff of their own, theseofcials began to hire (former) clerks of the central government agencies astheir private aides while holding the local ofcials personally responsiblefor all aspects of local administration. In response, the ofcials had a greaterneed than before for legal/administrative experts to perform their duties andlimit the activities of clerks and yamen runners. By the mid-sixteenth century,

22 Macauley, Social Power, 12, 36, 5358. See von Glahn et al., eds., The Song-Yuan-Ming Transition.23 The Song government also instituted various measures to encourage legal study. Xu Daolin,Zhongguofazhishi, 90 and 143 (on overburdened judicial ofcials in the Song); Zhouxian tigang (Outlines for countymagistrates), 44.24 Hu Zhiyu,Zishan daquanji (Complete collecton of works), 22:26a, and 23:5a, 8:27b28a.25 Chushi yaolan (Essential readings for novice ofcials), 3233. See Chushi lu, 41 (studying theMing 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 (mentioningzhanggao, probablyanother name ofzhuwen)


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these developments had transformed the organization of local government.27Although the early Ming court resented these private specialists as immoraltrouble-makers and enacted a law as early as the 1390s to punish them by militaryexile, the imperial government was later compelled to recognize the necessityof their expertise for local administration and limit that penalty in 1503 only tothose habitual private specialists (zhuwen andshusuan) actually convicted ofmanipulating local ofcials/clerks, taking bribery, evading taxes, or inciting orsuppressing litigation to harm innocent people.28 A handbook from the 1530sexplicitly suggested that new ofcials not rush to dismiss veteran chief draft-ers in the yamen because their legal expertise might be indispensable when theclerks were unable to handle the more complicated cases.29

Finally, the growing demand for legal expertise on the part of local admin-istrators as well as private litigants coincided with a depreciation of lowerliterati status and a decrease in their opportunities for ofcial appointments,and consequently a steady supply of educated Chinese for alternative careers.Because of population growth and further spread of printing technology andliteracy in the Ming, an increasing number of literati who failed the civil examsor failed to obtain an ofcial position had to make a living as private tutors,commercial publishers, doctors, or private legal practitioners.30 Fuma Susumuhas documented a surge in popularity of so-called secret pettifogger handbooksin the late Ming and the Qing, spearheaded byXiaocao yibi (Bequeathed Writ-ings of Xiao [He] and Cao [Can]).31 The ofcial representation of litigationmasters (as well as yamen functionaries) as cunning tricksters feeding on theinexperience or ignorance of ofcials and litigants made local ofcials evenmore anxious for the assistance of private legal advisors.32 In turn, the spreadof litigation masters and legal advisors across the empire in the late Ming and

27 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 translatedxunan as regional inspectors andxunfu as grand coordinators in the Ming. About the entrenched staff,see Nimick,Local Administration, 97129; Guo Runtao, Guanfu, 3135. About the Qing, see Reed, Talonsand Teeth.28 Zhusi zhizhang:xingbu,sikemen (1393), quoted inDa Ming huidian (Collected laws and regulationsof the great Ming), 175:1ab; Ming shilu: Xiaozong shilu, 373132 (juan 120:4ab) (HZ16/7/15, Aug. 6,1503), reconrmed inDa Ming huidian, 175:2ab (1550). Cf.Da Ming l jiejie fuli (The Ming Code withcommentaries 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 Hanlaws; Cao Can succeeded Xiao and adhered to what he had laid down. Fuma suggests thatXiaocao yibi was

rst published probably between 1510 and 1595. Fuma, Songshi miben Xiaocao yibi, 46366 (listing atleast 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 commodication of legalexpertise as a kind of practical knowledge (shixue) intensied. As a result,the imperial government also suffered a considerable loss of control over theadministration 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 pe-riod than in the Ming. As early as 1651, barely seven years after the Manchusestablished the Qing as the ruling house of China, the inuence of private legaladvisors in local administration already caught the attention of the Shunzhi

emperor (r. 164461). Expressing serious concerns about maladministration atthe local level (lizhi buxiao), he noted that those less competent local ofcialscompletely relied upon private advisors to write ofcial documents and judicialreports (wenyi zhaoxiang quanping muyou daibi).33

Extant collections of judicial records from the 1660s through the 1720s byQing legal advisors supported the Shunzhi emperors observation that privateadvisors were thede facto authors of legal judgments in numerous local ofcesat least from the late seventeenth century on. Prefaced in 1684, Pan BiaocansWeixin bian (An Unreliable Treatise) is one of the earliest extant publications

by Qing legal advisors. Ashengyuan degree holder and native of Hangzhou inZhejiang, he had been a legal advisor to county magistrates in places like Jiangsu,Zhili, and Shanxi from 1668 to 1682. At least ve of his students (menren) inthat professionand six nephews or sons-in-law who might well have been hisstudents as wellwere credited with editing and printing this handbook.34 An-other anthology,Zhishang jinglun (Statesmanship on Paper), includes a sampleof about sixty judicial decisions written by Wu Hong in the name of countymagistrates or prefects he advised from 1680 to 1701. He had practiced law asan advisor for almost four decades in Shandong, Zhili, Shanxi, Shaanxi, and

the Yangzi Delta before compiling this collection in 1721.35

These publicationsare noteworthy because private advisors often refrained from claiming credit

33 Shunzhi described the ofcials as uneducated (bushi wenyi) probably in the sense that inexperiencedofcials 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 rst 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), and4:1052 (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 ofcials while the latterfrequently published these writings under their own names.36

Wang Kentangs Commentary on the Ming Code, noted above, became oneof the few most inuential legal treatises throughout the Qing partly becauseit was edited, updated, and reprinted in 1691 by a legal advisor named GuDing, originally from Suzhou. For more than twenty years, Gu had been usingWangs book when advising ofcials in southeast and northwest China. Whenhe returned from Guizhou and Yunnan about 1691, he happened to see two oldfriends in Guangzhou, probably also legal advisors, who praised the value ofWangs Commentary and urged its update.37 A sequel to Pan Biaocans above-mentioned handbook was published around 1707. The author, Chen Wenguang,was a native of Pingjiang in Hunan province who entered the profession oflegal advisors after he failed the civil examination in 1690. He rst worked inZhili, Shaanxi, and Sichuan before moving across the country with an ofcialto work in different county yamen in Jiangsu after 1696. Later, he met an of-cial named Gu Sixie in Beijing in 1705 who hired him for his post at Xinhuicounty, Guangdong.38

That these early Qing legal advisors, originally from various provinces,travelled far away from home, worked in multiple regions, and reached eventhe frontier provinces like Yunnan, Guizhou, and Guangdong, suggests that ithad already become a nationwide practice to hire legal advisors for local judi-cial administration by 1700. In fact, when former Magistrate Huang Liuhong(1633?) completed one of the most inuential Qing administrative handbooks,

Fuhui quanshu, in 1694, his advice for new ofcials was to select their legaladvisors carefully. As he put it, district and county [magistrates] have a lot ofwork to do, and naturally need help with nance (qiangu), law (xingming), andwriting (shuqi).39 Fittingly, Pan Biaocans Unreliable Treatise was the onlywork explicitly credited as a model for Huangs book.40

Confucian Literati as Jurists: Legal Training

Historians of early modern English professions have criticized sociologistswho refuse to recognize any specialized occupation groups in earlier time pe-

36 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-GeneralCen Chunxuan in 190506 because he felt that he should not overshadow the name of his host. WangZhaoyong, 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 notmeet all the criteria of post-1800 North American or European professional-ism, such as formal training, a shared sense of calling, social distinction, anda licensing and regulatory agency.41 By the same token, without assuming thattheir foreign or modern counterparts offer a normative standard, this sectionshows how literati-turned-jurists developed their professional identity, a setof ethical ideals to guide their practice, and a body of specialized knowledgethrough studying, training, and practice.

Like their contemporary western counterparts in the legal profession, Chineseliterati obtained their legal expertise through apprenticeship including both booklearning and practical training. To commence the master-apprentice or teacher-student relationship, there would usually be a ceremony, accompanied by a giftto the teacher. Afterwards, the student would move into the ofcial compound (oryamen) where his teacher was working. The county yamen was considered the

best training ground for a starting student; there he was more likely to acquirethe essential skills and knowledge for his career by dealing with all kinds of

basic matters of local administration.42 As Wan Weihan (17001770s?) noted inthe eighteenth century, everything [about local administration] had its originsin the district/county level. Wang Xianyi, another advisor, one century laterechoed that a legal advisor could have a true picture of the circumstancesand sentiments of the people (minqing) only if they started their training at thecounty level.43

Ideally, after two or three years of study, the student would move to oneof the provincial ofces to learn how to review the lower courts decisions orreport to the higher authorities including the emperor himself.44 Wang Shirenapprenticed with Zhang Tingxiang in the Zhili provincial judges ofce for afew years before being hired in 1882.45 Likewise, Chen Tianxi (18851975)studied for three years with his older brother, Chen Tiancong, at four countyyamens in Hunan before he became a student of Wu Tongshou in 1905, whowas then advising the acting Hunan governor. Tianxi commenced his career

41 By standards of modern sociology, many legal specialists (esp. the lower echelons, or attorneys andsolicitors) in pre-1700 England were not qualied as professionals because they lacked formal mechanismto regulate their training, licensing, or practice. Cf. ODay, The Professions, 156180, 250, 258, 49 (for acritique).42 Quan Zengyou, Qingdai muliao zhidu lun (2) (On the Qing system of private advisors), 3738; MiaoQuanji, 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 worksfor entering the muyouprofession), 643.


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12 Li Chen

as a legal advisor after four years of training.46 Not all private legal advisorsstarted apprenticeship at the county level. Tiancong started with Wu Tongshouat the Changsha prefects yamen in 1895. Four years later, his younger brother,Chengzhao, studied with Li Lianhang at the Hunan provincial judges ofce.47

In the course of training, a student normally started with the statutes andsubstatutes of the Qing Code. He was expected rst to understand its generalstructure, key terms, and then nuanced differences between, and practical im-

plications of, specic statutes in the Code.48 In a handbook for private advisorsprefaced in 1786, Wang Huizu (17301807), one of the most renowned Qinglegal advisors, aptly explained the importance of solid legal knowledge:

Private advisors (muke) can assist ofcials only because they havestudied and understood the law. All legal provisions have their es-sence and are designed to promote benevolence (ren) and justice (yi)ultimately and it is not easy to fully understand them. Without grasp-ing the similarities and differences between these legal provisions,few can avoid mistakes that seem insignicant but actually make theoutcome [of the judgments] vastly different. Law to private advisorsmay be like the Four Classics (sizishu) to an examination candidate(xiucai), [but] the consequences of misconstruing the Classics arelimited 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, ChenTiancong, used similar language to explain why muyou apprentices shoulddevelop thorough legal knowledge.50

Private commentaries on the Qing Code were helpful for law students. Besidesthe 1691 updated version of Wang Kentangs Commentary by legal advisor GuDing, a law student could also consult the acclaimed Collected Commentarieson the Great Qing Code published in 1715 by Shen Zhiqi, an inuential legaladvisor from Jiaxing in Zhejiang who practiced for over three decades fromabout 1685, or commentaries by other advisors including Wan Weihan.51 Various

46 Chen Tianxi, Chizhuang, 1:4853.47 Both are Chen Tianxis older brothers. Chen Tianxi, Chizhuang, 1:12 (Chen Tianchong), 27 (ChenChengzhao).48 Chen Tianxi, Chizhuang, 1:34; Wang Zhaoyong, Weishang laoren, 8 (also told by his father/teacher tostudy the laws and regulations as the rst step of hisxingmu 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-meiChang Chen, The Inuence 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 ofcials)in the eighteenth and the nineteenth centuries. For instance, Shen Xintians

Mingfa zhizhang, rst printed in 1740, made it much easier to understand howdifferent types of offenses should be punished, by representing the contentsof the Qing Code in synoptic tables. Shen himself had been a legal advisorsought after by local ofcials and provincial judges in Guizhou, Sichuan, andGuangxi.52 These treatises and handbooks were frequently updated to incorporatethe newly codied substatutes and regulations. Depending on their intelligenceand education, it might take most students four to twelve months to go over thestatutes and substatutes. Those students with difculty grasping the law at thisstage might be less suitable for the legal profession and were advised to nd analternative career to avoid unemployment in a competitive job market.53 Evenfor someone like Liu Heng (17761841), who had studied law at home before

becoming a county magistrate for seven years in Guangdong, it still took eightmonths 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.54Aside from the prerequisite study of the Qing Code, the student studied or at

least selectively read collections of imperial edicts (yuzhi), regulations (shili orzeli) of the different ministries of the central government, leading treatises onforensic examinations by Qing legal advisors like Lu Zhou or Wang Youhuai,and major handbooks published by early Qing advisors like Pan Biaocan, WangWeihan, Wang Huizu and so on.55 The students reading list also included thestandard texts on literature, history, and Confucian classics.56 It has been notedthat most members of the upper branch of the early modern English legal pro-fession shared a similar educational background and studied the same classi-cal and Christian humanist curriculum which served as a common groundunifying the learned professions while distinguishing them from other craftsmenand tradespersons.57 It appears that the training program of Qing legal advisorshad similar effects in providing these literati-turned-jurists with a more or lessgenerally agreed-upon notion of ideal justice and jurists. The curriculum forQing legal advisors echoed the ideals of modern legal education in emphasiz-

52 Shen Xintian and Niu Dawei,Mingfa zhizhang(The Qing Code in tabulated forms). For Shens career,see Li Xiqins preface (1743) toMingfa 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 listedXingan huilan andXiyuan lu as must-reads, andDa Qing huidianandshili andLiubu chufen tiaoli as should-reads, while recommendingZuozhi yaoyan andFuhui quanshu

as useful readings. Chen Tianxi, Chizhuang, 1:35; Miao Quanji, Qingdai mufu, 15456. Also see, e.g., Lu,Xiyuan huibian (Compendium ofWashing 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 lawstudents, barristers, serjeants, and judges who were regulated by the Inns of Court (12640).


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14 Li Chen

ing comprehensive humanistic education, professional ethics, and social justicebeyond the letter of law.

Along with theoretical study, another essential component of the trainingwas to learn how to handle judicial and other administrative matters in practice.Under the teachers supervision, the student read through complex old cases andthen learned how to comment on the plaints or complaints (chengci) or write

judgments (pan). Once he had grasped the basics, he could help summarizedepositions, decide minor cases, prepare for more complex trials, or draft thelegal reports that recounted the relevant facts and explained the applicable lawsand judgments. The teacher might periodically review the students work and

progress.58 At this stage, the student could protably read handbooks by somelocal administrators or veteran legal advisors like Wang Weihan, Bai Ruzhen,or Wang Youfu on how to investigate and adjudicate different types of casesand write legal reports.59 Close examination of old decisions, especially lead-ing cases (chengan) approved by the Ministry of Justice and the throne, wasstrongly recommended because the student could thus develop the vital skillsof writing a cogent and coherent legal report and understand why certain legal

judgments were reversed by higher courts and how the statutes and substat-utes of the Qing Code were interpreted, applied, and distinguished in judicial

practice. This partly explains why various legal advisors took pains to compilemonumental collections of leading cases. Men like Hong Hongxu did so almosta century before Zhu Qingqi, a legal advisor from Guiji county, helped compilethe famousXingan huilan (Conspectus of Legal Cases) in 1834.60 Since manywould work as axingmingand a qiangu advisor simultaneously or at different

points of their career, it was advisable for apprentices to qualify for both typesof jobs by including taxation, accounting, and other scal matters as part oftheir training.

This entire process usually took about three years before the students/ap-prentices were considered ready for a job placement.61 Some apprenticed for

58 Chen Tianxi, Chizhuang, 1:35. Zhang Tingxiang noted that apprentices in Zhili often started with ad-judication, but he thought it important to study the law rst. Zhang Tingxiang, Zhuiyan shize (Ten extrasuggestions), 63536.59 See, e.g., Bai Ruzhen,Xingming yide,juan 1 and 2; Wang, Banan yaolue, 43186 (On investigationand 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, Chenganzhiyi (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 formuyou apprentices),

49.61 Chen Tianxi, Qingdai mubin (Qing private advisors), 52, also 32 and 41 (his two brothers both startedworking asxingmu 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, avery 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 yearsafter 1758, even claimed that out of one thousand muyou apprentices (xuemu),not more than one hundred eventually succeeded [in nishing the training] andthat among the hundred candidates formuyou positions (jiumu), only dozenscould actually obtain them (rumu).63 He reasoned that although it might beeasier to become a private advisor than an ofcial, a good candidate for this

profession must possess certain essential attributes or qualities. First, he shouldhave such a good command of statecraft literature (xiongyou jingji) and currentaffairs (tongda shiwu) that he can not only write well but also handle all situa-tions well. Second, he should still be in his twenties with a good memory andable to learn and comprehend things quickly. And third, he should be talented,socially adept, and eloquent. Otherwise, an apprentice might end up a mediocreadvisor.64 In other words, before committing oneself to the legal profession, anideal candidate should have the requisite intelligence, education, and writing,analytical, research, and communication skills. More or less agreeing on thesecriteria, other leading legal advisors like Wang Huizu and Zhang Tingxiangand local ofcials like Huang Liuhong also stressed the crucial importance ofmoral virtue or professional ethics of the legal advisors.65 Some legal advisorsdid not follow this common pattern of apprenticeship. For instance, WangHuizu started as ashuji (drafting) muyou for his father-in-law, Jinshan countymagistrate in Jiangsu, in early 1752. He then studied law in his spare time; inthe year of 1755, he received instruction from a colleague and legal advisornamed Luo Biao in the Changzhou prefects ofce. For a few months in thefollowing year, he assisted Mr. Qin, legal advisor to Magistrate Wei Tingkui ofWuxi county in Jiangsu. Although he otherwise remained ashuji for Hu Wenbo

(Materials for the Shaoxing county gazetteer, hereinafter cited as SXXZZL), 27:29b30a (Wu Zongmeispent three years on apprenticeship in Henan after 1836), and 29:137b (Hu Zuwang apprenticed with hisgrandfather for a few years); Zhang Tingxiang,Rumu xuzhi wuzhong, 643 (Wang Shiren spent a few yearsapprenticing); 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). HuangDingqi (17781855), an advisor for three decades, studied law (and other subjects) for six years before hisrst 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, Zhuiyanshize, 63435).


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16 Li Chen

(a prefect and then a circuit intendant in Jiangsu) from early 1754 to late 1759,he helped handle various legal matters for Hus ofce. After about six years oflearning and practice on the job, Wang felt condent about his preparation fora legal career and nally quit hisshujiposition in 1760 to become a full-timelegal advisor for the next twenty-ve years. Although Wang did not start as afull-time apprentice muyou because he had to work and support his family afterthe untimely death of his father (who was once a legal advisor as well), it tookhim a few more years to complete the legal training.66

In general, Qing legal advisors were expected to study law and adjudica-tion for at least two to four years before they were considered qualied. Thisexpectation or requirement of extensive training and specialized knowledgedistinguished them from other types ofmuyou and distinguished their professionfrom most other alternative careers pursued by Qing literati.67 Among the onehundred or so muyou featured in the biographical sections (renwu liezhuan) inthe Shaoxing gazetteer compiled in 1937, we can identify at least sixty legaladvisors roughly from 1660 to 1910 and over half of them were explicitly de-scribed to have studied (du,xue, orxi) law before entering that profession.68This is also supported by examples from other locales, including Chen Tianxiand his brothers and classmates. We will discuss this emphasis on legal study

below. The similar process of legal training and common set of handbooks wouldpresumably have facilitated what Thomas Buoye has described as the routini-zation of [legal] reporting that had been rmly entrenched by the eighteenthcentury and allowed the elaborate Qing judicial review to continue despitea large number of capital cases automatically requiring review.69

By the early nineteenth century, some institutionalized training programsor schools (xiban) had reportedly been established for legal advisors in placeslike Baoding, which housed the ofces of not only the Baoding prefect butalso the Zhili provincial judge and governors and became a hub for Qing legaladvisors in North China. In the 1790s, Gong E mentioned that a large numberof Zhejiang natives, apparently in the profession of legal advisors, settled inthe Baoding area, and one of his relatives back in Shaoxing also requested to

66 See Wang Huizu, Xu Zuozhi yaoyan (A supplement toMedicinal Words), 11112; Qu, Wang Huizuzhuanshu; Bao, Shaoxing shiye, 116.67 For distinctions between legal advisors and other types ofmuyou, see Wan Weihan, Muxue juyao,2637.68 This gazetteer covers the former Shanyin and Guiji counties, which formed the new Shaoxing county in1911. 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 Shaox-ing, went to Baoding in 1835 for legal training, and his younger brother LuoWenguang followed suit. Both later became famous legal advisors.71 ZhangBaogu (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 moreexperienced legal practitioner.73 Those who came from families with a traditionof producing legal advisors or who studied with famed legal advisors could

have a competitive advantage in getting better training and jobs through theirrelatives or teachers network.74 For example, Shao Ruchun and his father wereboth advisors in Shaanxi province.75 The family of the Republican statesman,Wang Jingwei (a.k.a. Wang Zhaoming, 18831944), from Shaoxing, capital-ized on the social network and legal knowledge of his great grandfather, WangJie (17561832), to produce at least thirteen legal advisors working in variousyamen in Guangdong from 1810 to 1911.76 A Tao lineage in Guiji county ofShaoxing even boasted over thirty (including at least sixteenxingming) muyouamong its members.77

In addition to the lineage and native-place connections, the teacher-studentnetwork 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 forfty yearshelping a succession of provincial judges in the 1820s through theearly 1850s. He boasted over seventy disciples in the profession. His positioncould allow him to recommend, if not impose, his students as advisors to thecounty and prefectural ofcials.78 Likewise, from the mid-nineteenth century to

70 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 Wenguangas axiban 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, Qiushuixuanchidu (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 advi-sor 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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18 Li Chen

the end of the Qing dynasty, positions as legal advisors in Hunan province werealmost monopolized by Ren Lin and his four famous studentsWang Shian,Pan Jilu, Wu Tongshou, and a Mr. Fengas well as the students of the latterfour (including Chen Tianxi and his brother). They lled many coveted positionsin the provincial and lower yamen by recommending members of their ownnetwork to the ofcials. Although this inuential network alarmed the imperialcensors and the Qing court and led to the downfall of the master, Ren Lin, in1896, its members continued their dominant presence in the local yamen until1911.79 We have many other similar examples. In this sense, the much-neededlegal expertise was translated into cultural and social capital to help secure asuccessful and rewarding career for these Qing private legal practitioners.

Economic Status and Financial Compensation

The relatively attractive salarypartly explained why so many Qing literatichose to become legal advisors. In the early 1670s, principal advisors such asqiangu orshuqi to provincial governors or governors-general in Zhejiang andFujian were paid 500 taels per year.80 When Wang Huizu, then ashengyuan, washired as a private tutor for seven students in 1747, his annual salary was only12,000 (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 ashuqi/shuhao orzhengbi muyou at the county and prefectural levels in this period ranged fromabout 40 to 100 taels while that ofxingmingand qiangu advisors could be 260and 220 taels respectively. The next few decades saw the annual salaries gradu-ally rising, to as high as 800 taels in 178485.82 That was how much a legaladvisor was paid by Yunnan lieutenant governor Qian Du in the early 1770s.83 In

79 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 Weixiancounty, 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 ashuji muyou in the 1750s); Qu, 2021. Wangs gures might be related to the countyand prefectural levels only.83 Qianlong chao shangyudang(Imperial edicts of the Qianlong reign), 7:21 (QL37/4/21). Regarding thepurchasing 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 above-noted salary for a tutor could purchase approximately 750 kilograms of milled rice in the 1740s in Shaoxingwhile a legal advisor, with a salary of 240 taels, could buy 12,000 kilograms of rice.


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1859, one ofcial reported that the annual salary for axingmingorqiangu advi-sor 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 thatsalaries ranged from 360 to 1,200 taels for thexingmingadvisors at the countylevel, according to Chen Tianxi, who was a legal advisor in Hunan during thelast decade of the Qing.85 A similar salary range prevailed in the same periodin Sichuan.86 In general, the more isolated, busier, or higher the ofce was, thehigher the salary had to be in order to attract competent advisors. Xu Zhongyuan,a former advisor-turned-ofcial, stated in 1827 that salaries for (legal) advisorsin 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 likeTaiwan, the salary could be exceptionally high. When Zou Yingyuan was ap-

pointed Taiwan prefect in 1766, he promised Wang Huizu an annual salary of1,600 taels.88About half a century later, Yao Ying (17851852), a veteran Qingofcial in Taiwan in the early nineteenth century, observed that the annualsalary for [probably all] muyou often cost four or ve thousand taels, doublethe standard pay in the mainland. As a result, the local ofcials there had a hardtime making ends meet. 89 In 1888, the Xinzhu county magistrate in Taiwanreported a budgetary decit of several thousand taels for his ofce 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, including1,000 forxingming, 800 forqiangu, 240 forshuqi, 240 forzhangfang, 100 for

yuejuan (exam grader), 120 forzhengshou, and 120 forzhumo (copyist). Thetotal compensation for them exceeded the combined salaries of 2,707 taels for 94staff (including yamen runners) of his ofce.90 It is little wonder that some localofcials would have their subordinates foot the bills. Records from the Nanbuand the Ba county archives in the 1850s1870s indicate that it had become a

84 Zhang Jixin,Daoxian huanhai jianwenlu (Things seen and heard about the bureaucracy), 267.85 Chen Tianxi, Qingdai mubin, 47.86 Zhou Xun, Shuhai congtan (Miscellaneous remarks about Sichuan), 170 (ranging from 360 to 1,440taels).87 Xu, Sanyi bitan, 41 and 49. As legal advisor to Magistrate Yan Chongde of Suixi, a county not close tothe 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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20 Li Chen

common practice for provincial or even prefectural ofcials to distribute theexpenses of their legal advisors among their subordinate ofcials.91

The number of legal advisors in a yamen was determined not just by theofcials practical needs but also by his nancial ability. In the early 1770s,three legal advisors were hired by each of the provincial judges and lieutenantgovernors 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 inten-dants in all these provinces had only one advisor to perform bothxingmingandqiangu matters.92 Zhang Jixin (180078), a veteran local ofcial, observed thatthe Sichuan provincial judges hired three legal advisors, and that their coun-terparts elsewhere might not be able to afford as many because of the cost.93One of his contemporaries, Zhou Xun, echoed his comments while adding thatlegal advisors at the Sichuan provincial yamen were paid 1,000 to 2,000 taelsa year and that most lower-level ofcials there had only one xingmingand/orqiangu advisor(s). All these advisors would receive cash gifts on festivals fromsubordinate ofcials, with those at the provincial yamen pocketing from 3,000to 8,000 taels each year.94 Even after the Yongzheng emperors scal reformgreatly increased local ofcials salaries by adding a supplementaryyanglian(honesty-nurturing) stipend, as Madeleine Zelin has shown, the annual incomeof fully employed legal advisors was still comparable to or even better than thatof many county magistrates.95 It was little wonder then that evenjuren-degreeholders like Wang Huizu, Bao Shichen (17751855), and Wang Zhaoyong wereattracted by the relatively high salary (xiufeng) of legal advisors.96 By contrast,

91 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 governor-general to contribute 24 or 16 taels each to the salary of the muyou of Chengdu General (jiangjun) Kuiyu whohad 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 totaled1,056 taels.Nanbuxian dangan, No. 0624201 to 03, 0624301, 0624601 to 08. On the religiouscases, 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 legaladvisors were hired by the Guangdong provincial judges to take charge of the Guangzhou, Chaozhou, andHuizhou divisions of its jurisdiction. See Huang Entong, ed., Yuedong shengli xinzuan (New compendiumof provincial regulations of Guangdong), 7:33b.93 Zhang Jixin,Dao-xian huanhai jianwenlu, 267. He had been a prefect in Shanxi, and lieutenant governorin Shanxi, Gansu, Henan, and then provincial judge in Sichuan before 1860.94 Zhou Xun, Shuhai congtan, 170 (referring toxingmingorqiangu advisors). See Xu, Sanyi bitan, 4195 Ofcialsyanglian 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, Qiminsishu, 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) constantlyfaced job or nancial insecurity.

Geographic Origins, Education, and Prevalence of Legal Advisors

There has been a popular perception dating from the Qing period that almostall Qing muyou were from Shaoxing prefecture in Zhejiang province. Thatexplains why Shaoxing shiye, a colloquial term forShaoxing muyou, has since

been used as a generic name for all Qing private advisors. It is indeed true thata disproportionately large number of literati from Zhejiang worked as privateadvisors during the Qing. Gong E claimed in the 1790s that numerous people

or no fewer than ten thousand Shaoxing families were engaging in the muyouprofession in his time.97 There were some reasons for this. In the Ming-Qingperiod, Shaoxing prefecture, including Shanyin, Guiji, Yuyao, Xiaoshan, Zhuji,Xinchang, Shangyu, and Cheng counties, was a core area of Zhejiang in theYangzi Delta, which was in turn a core area of late imperial China, with a farmore developed agricultural and commercial economy and denser populationthan most other parts of China.98 Shaoxing was the second largest supplier ofjinshi degree holders among all the Ming prefectures and was ranked sixth inthe Qing period, with its two core counties, Shanyin and Guiji, producing more

than half of the prefecturesjinshi.99

But the oversupply of local talent intensi-ed competition among Shaoxing (particularly Shanyin and Guiji) natives, andled many of them to move and take the exams elsewhere or to nd alternativecareers. This partly explains why the number ofjinshi from Shaoxing in the Qingdwindled and why Shaoxing natives outnumbered those from other prefecturesamong the clerks (xli) in central government agencies and local sub-ofcials(zuoza) like jail wardens(dianshi)andregistrars (zhubu).100

The resulting horizontal and vertical networks linking the jinshi-orjuren-turned-ofcials, central government clerks, and local sub-ofcials originally

from Shaoxing also made it easier for them or their relatives to obtain ap-prenticeships and employment as private advisors.101 Studying the acceptable

97 Gong E,Xuehongxuan, 354, 360.98 From 1683 to 1791, Shanyin prefectures population rose from 115,210 to 1,002,582, and that of Guijicounty from 62,748 to 266,526. In 1820 Shaoxing became the fourth most densely populated prefecture inall of China. See Cole, Shaohsing, 67. On core and peripheral regions, see Skinner, The City in LateImperial China.99 Ho, The Ladder of Success, 24654 (with 977jinshi in the Ming, and 505 in the Qing including 277from Shanyin and Guiji). The recently published Shaoxing County Gazetteer(covering former Shanyin andGuiji) lists 631jinshi and 2,335juren in the Qing, and 384jinshi and 894juren 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 thatthe difference between Shaoxing and other locales was not only that more ofits native sons did make it to the very top of the examination heap, but moreimportant, that those who dropped off along the way were saved with moreregularity from falling to the very bottom. Those from Shaoxings upper-gentryfamilies could then survive as lower gentry by salving their individual talentsto become sub-ofcials, clerks, ormuyou.102

These challenges and counter-strategies, however, to varying degrees, werenot conned to Shaoxing or even Zhejiang province. After all, Shaoxing wasonly the sixth-largest supplier ofjinshi (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).103Chung-li Chang and Ping-ti Ho estimated that the number ofshengyuan literatiin the Qingwho had passed the exams at the county and prefectural levels

but unlike those with thejinshi, juren andgongshengstatus, were ineligiblefor regular ofcial appointmentamounted to over 500,000 in the eighteenthcentury and over 600,000 in the latter half of the next century. There were an-other 300,000 or sojianshengwho obtained theshengyuan status by purchase, a

practice that acquired momentum in the sixteenth century and became rampantin the eighteenth and the nineteenth centuries.104 But the number of county-levelofces increased only by 42 from the seventeenth to the late nineteenth centu-ries even though the population jumped from 100 million to about 450 millionin the same period.105 Thus, lower literati had a slender chance of passing thehigher-level exams or securing any ofcial appointment, and had to nd othermeans of livelihood. A substantial number of Qing legal advisors possessed the

shengyuan status, and some boasted even ajuren orjinshi degree.106

Thus, it would be a mistake to assume that almost all Qing legal advisorswere Shaoxing natives. We have already mentioned a number of them originallyfrom outside Shaoxing or Zhejiang. In a 1773 memorial to the Qianlong em-

peror (r. 173695) on private legal advisors, acting Zhejiang Governor XiongXuepeng noted that private advisors were mostly from Jiangsu and Zhejiang,

102 Cole, Shaohsing, 127.103 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 irregularlower literati was approximately 1,250,000 men in any given year (Macauley, Social Power, 5556).105 Macauley, Social Power, 57 (the county/district government ofces increased from 1,261 to 1,303 during

the interval).106 See, e.g.,Junjichu lufu, No. 030136037 (Hunan, 1775), 030135064 (Shandong Governor Xu Jismuyou). Legal advisor Xu Liankui was ajinshi 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 advisorsin Zhejiang.107 But other prefectures or provinces were also worth attention.

Two examples from the archives might help further illuminate this issue. Therst one is based on ofcial reports about legal advisors (i.e.xingmingand/orqiangu muyou) in all the local yamen in Shandong province in early 1773 (Qian-long 3738). Except for the 5 vacant ofces, the remaining 5 circuit intendants,9 prefects, and 103 county magistrates hired a total of 199 legal advisors, about1.86 advisors per ofcial/ofce. Out of the 199 legal advisors, 112 or about 56

percent came from the eight counties of Shaoxing prefecture and those fromother prefectures of Zhejiang and other provinces amounted to 44 percent.108Likewise, among the 156 legal advisors hired by Fujian Governor Yu Wenyiand his subordinates in 177475 (about 1.88 legal advisors per ofcial/ofce),only 58 came from Shaoxing prefecture (including 51 from Shanyin and Guijicounties), with 67 from other prefectures of Zhejiang and 29 (about 19 per-cent) from other provinces. Accordingly, it is more accurate to say that nativesof Zhejiang, rather than Shaoxing, dominated the profession in the Qing, andthat other provinces (accounting for about 20 percent) were not insignicant

players. Indeed, another core region of Zhejiang, the twin counties of Renheand Qiantang in Hangzhou prefecture, produced more than double the numberofjinshi from Shanyin and Guiji in the Qing, and supplied 40 legal advisorsfor Fujian (versus 51 from the latter core) in the same period.109 Less detailedreports from other provinces corroborate the geographical distribution of legaladvisors in this period.110

Among the one thousand or so legal advisors I have identied, Jiangxi, Hunan,Hubei, Zhili, Shaanxi, Shandong, Henan, Guizhou, Fujian, and Guangdong wereall represented as home provinces, in addition to the more prominent Zhejiang,Jiangsu, and Anhui. A striking similarity across the board is that with only anegligible number of exceptions, all the legal advisors were from the so-calledcore urban centers of these provinces, particularly from the prefectures (and

107 QDGZD, No. 019143 (QL37/12/12).108 100 advisors were from Shanyin and Guiji counties. QDGZD, No. 016495 (QL38/1, erroneously datedQL37/1), 016497 (QL37/12).109 The report includes the ofces of the provincial judge, lieutenant governor, 6 circuit intendants, 12prefects, 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 SeeJunjichu 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 ofjinshi during theQing.111 This coincides with Macauleys nding 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 virtuallyall the local ofces of Shandong and Fujian was replicated in almost all theeighteen Qing provinces in the eighteenth and nineteenth centuries, excludingthe frontier regions of Manchuria, Xinjiang, and Tibet. If we were to apply theaverage rate of 1.86 legal advisors per ofce/ofcial in Shandong (or 1.88 inFujian) to the approximately 1,650 counties and prefectures in the Qing, therewould be more than 3,000 legal advisors working in the local yamen in anygiven year in this period. Further assuming an average term of twenty years of

fullemployment for all of them, there would be a total of 30,000 legal advisors(i.e.,xingmingand qiangu muyou) employed in the Qing county and prefecturalofces from about 1711 to 1911, or a total of 15,000 for the century before1911.113 If we recall the high unemployment rate among Qing muyou, accord-ing to Gong E and other witnesses, then the number of trained legal advisors inthe Qing could have been in the hundreds of thousands.114 If our estimation isnot far off the mark, the fact that so many specialists played an essential role inQing local administration will make it necessary to rethink much of the receivedwisdom 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 specialistsarticulated their understandings of law, justice, judicial administration, and thelegal profession.115 Even though they shared much of their judicial philosophy

111 Compare the above-noted two reports and the lists at Ho, The Ladder of Success, 247 and 254.112 Macauley, Social Power, 10204 (only 6 cases originating from Shaoxing, behind Fujian and Jiangsu).113 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 pe-riods, 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 seeJunjichu 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 tosickness or mourning.115 Onxingmu as Confucian (ru) literati who studied law, see Xu Fengen, Lanshaoguan Waishi (Anunofcial history by the Lanshao Studio), 15b; Wang,Jiayan suiji, 4b.


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with ofcials, a number of Qing legal advisors sought to assert their profes-sional independence and identity. The vast majority of Qing legal advisorsremained in that profession for two or three decades as essentially lifetime legalspecialists. Such long engagement in legal study and practice allowed them to

produce voluminous publications on law and adjudication while facilitating areimagination of Qing jurists social identity, public responsibility, and profes-sional ethics. As a result, a new discourse of the Way of Muyou (mudao ormuxue) emerged.116 This term in a narrow sense refers to the learning and careerof legal advisors, but more broadly, it suggests a shared understanding of thestandards and principles of their professional training, competence, practice,ethics, and responsibilities.

The broader sense ofmudao is also reected by the term muqi. As known tostudents of early Chinese philosophy and medicine, qi was often understood asa kind of vital energy that constituted all the phenomena and owed through thewhole universe including human bodies.117 This term took on a more specicconnotation for Qing advisors like Wang Youfu, a native of Jiangsu who practicedlaw 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 andactivities, 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) andall kinds of misconduct in everyday life and judicial administration. In otherwords, muqi is the ethical origin and manifestation ofmudao, meaning thata legal advisor or judicial administrator should uphold law and justice whilemaintaining his virtue and moral integrity regardless of the circumstances.While legal expertise would be essential in this regard, it was far from enoughto make someone a respectable advisor if he lacked muqi or was decient inthe Way of Muyou.118

Emphasis on Legal Expertise

Almost all thexingmu writers stressed that law and judicial administrationwere of critical importance not just to the government, but more importantly,to all the people concerned. For instance, in 1743, Shen Xintian, who was arenowned legal advisor in places like Sichuan, Yunnan, and Guangdong, main-

116 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, Xingyouliangfang(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 ofmuyou and other occupations).


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tained that judicial administration (xingming) affects the lives and livelihoodof people and must be handled with greatest care.119 This was echoed by othercontemporarylegal advisors like Wan Weihan, Bai Ruzhen, Wang Youfu, andWang Huizu, who further argued that a legal advisor was indispensable to lo-cal governance because a seemingly minor mistake in the application of lawcould have dire consequences for the people involved.120 Claiming an undivideddedication to judicial administration, they contrasted themselves with ofcialswho were said to be so concerned about their job security and promotion thatthey could hardly afford the time to thoroughly study the voluminous statutesand substatutes of the Qing Code.121

Accordingly, it was considered imperative for legal advisors as the de factoadministrators of law in the local yamen to remain updated about changes andcontinuities in laws, regulations, and leading cases.122 Sun Hong, a native ofHangzhou in Zhejiang who was a legal advisor in Shandong, Shanxi, Fujian,and Henan provinces in the Kangxi period (16621722), stated that particularattention should be paid to the many substatutes and regulations that were

periodically added to make the Qing Code more suitable to changing socialcircumstances.123 In addition, study of the codied law must be combined withknowledge of judicial practice; otherwise, the judges would be like a moderndoctor relying upon ancient medical prescriptions without adapting to thechanged time and circumstances.124 Knowledge of leading cases and imperi-ally sanctioned circulars (tongxing) was thus important since these could besources of judgments when no preexisting statute or substatute was applicable.125It was by no means easy to develop such expertise. While the number of thestatutes in the Qing Code was xed at 436 after 1740, the substatutes wereamended every ve years or so until 1852, jumping from 449 in 1647 to 824 in1725 and then to 1,892 in the 1860s.126 The volume of leading cases was even

119 Shen Xintian and Niu Dawei, Mingfa zhizhang, 4.120 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 wereimperially 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, seeXingbu 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 (Legalsystem of the Qing), 562.


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more intimidating. But leading legal advisors insisted that mastery of both thelaw and judicial practice, coupled with a nuanced understanding of the legis-lative intent and the totality of circumstances in a particular case, should bethe goal of all conscientious legal advisors (or judges). Bai Ruzhen held thatsuch comprehensive knowledge constituted the foundation of the professionof legal advisors (muxue zhi genben).127 This then led many advisors to studyand publish commentaries on the Qing Code and other kinds of legal treatisesand handbooks. They knew that legal expertise was the primary source of theirclaim to authority, job security, professional autonomy, and social respect. Whilevarious Qing statecraft writers also urged local ofcials to seriously and thor-oughly study law and leading cases, they often simultaneously, if reluctantly,admitted that few ofcials would actually attempt this.

Guidance for Adjudication

Another recurrent topic in legal advisors writings was the emphasis on theimportance and reliability of evidence and on the evils of abuse of judicial

power.128 Earlier imperial jurists or contemporary Qing administrative writerscertainly stressed the value of judicial evidence too, but the peculiar positionof 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 thenthe most critical stage in the system because higher courts were often dependenton the county courts written records when reviewing a case.129 A magistratewas required to investigate the crime scenes in serious cases and to presideover the trials but his legal advisor might refrain from such public duties. Anexperienced advisor would study the plaint or the preliminary report and thenadvise the magistrate before the investigation or trial about what informationwas 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 betterassess the value and credibility of the testimony and other written records.131Zhang Tingxiang, a long-time advisor in the Zhili provincial judges ofce in

127 Bai Ruzhen, Preface, Xingming yide. Bai mentioned Wan WeihansMuxue juyao.Also see WangShiren, Epilogue, in Zhang Tingxiang, Rumu xuzhi wuzhong, 643. Also see Ge Shida, Shenkan lunlueshize (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 WangYoufu, Yide outan, 1:45b46a.


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the 1880s1890s, noted that a magistrate he advised closely followed thesesteps, and that none of the judgments was reversed.132

This concern also led some legal advisors to ignore the convention of stay-ing out of public view. In cases involving serious offenses punishable by laborservitude, exile, or death, an advisor might listen to the court hearing from be-hind the curtain and insist that the magistrate conduct additional hearings untilthe evidence was found accurate and conclusive. Wang Huizu claimed to havesometimes requested that the magistrate conduct hearings as many as seven oreight times, without judicial torture, when the testimonies or confessions werenot perfectly convincing. He listened to every one of those hearings.133 Given thehuge inuence of his writings on local administration in the nineteenth century,many advisors and ofcials probably followed suit. Wu Kun, a legal advisor

practicing in Sichuan in the 1820s1850s, also recommended that legal advi-sors listen to court hearings. In more serious cases, he suggested that an advisoralso 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 Shandongin the nineteenth century, reportedly listened to the hearing in a homicide caseand went with the magistrate to examine the corpse and crime scene.134

Forensic evidence in homi

6. Li Chen-Legal Specialists and Judicial Administration

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