Drawing the Line between the Civil and the Criminal

Civil Cases versus Criminal Cases

The Board of Punishment clearly distinguished between criminal and civil cases. For criminal cases, the Board actively stepped in and strictly applied the Qing code to punish the offenders. In some situations, the Board might pardon the criminals, but it still clearly explained the offense and the reason for the pardon. For civil cases, however, the Board rarely stepped in, and when it did, it preferred to have the dispute mediated by the community or resolved by the concerned parties. Only when these non-adjudicative methods failed to reach a resolution did the Board issue a judgment on civil cases.

The Board’s conscious distinction between non-punishable or civil cases and criminal cases can be seen in the 1901 instructions that the Board ministers sent to their subordinate middle-level officials: when the Yamen of the Commander-General of the Metropolitan Infantry Brigade sent cases to the Board, cases punishable by beating with the light and heavy bamboo canes 笞杖案件 were to be accepted, but cases in which no punishment can be sentenced were to be turned down 无罪名可科即行送还 (Xing(fa)bu dang’an–xinzheng, 9). The Board clearly saw non-punishable cases as an independent category different from minor criminal cases. The following three cases are typical examples that show how the Board distinguished between non-punishable or civil cases and criminal cases in practice.

In 1837, a zongshi (宗室, member of the main branch of the imperial lineage) Chenglin 成林 was drunk when he encountered bannerman Heizi 黑子. They each had borrowed money from the other. They argued over their debts and were arrested by soldiers of the Yamen of the Commander-General of the Metropolitan Infantry Brigade. Following the standard procedure for cases involving members of the imperial family, the case was transferred to both the Imperial Clan Court and the Board of Punishment, with the imperial clansman Chenglin being sent to the former and the bannerman Heizi to the latter. In their separate depositions, Chenglin and Heizi maintained that they had not engaged in a physical affray 斗殴 and that they would deal with the debt quarrel 争闹 themselves. After Chenglin and Heizi proved that they had not engaged in an affray, the Board decided to cancel the case and informed the Imperial Clan Court of its decision. The Board stated,

[T]his case is concerned with money and debt, and according to the substatutes, the Board is not supposed to accept it. However, this is a case involving a zongshi, so the case should be examined clearly and be managed appropriately . . . [After investigation we know] they did not engage in an affray and they requested to cancel the litigation, end the case, and deal with the debts themselves. Their requests should be permitted, and the case is concluded. (emphasis added; Zongrenfu dang’an–laiwen, 559)

This was clearly a non-punishable or civil case. The Board of Punishment accepted it only because an imperial clansman was involved. Neither Chenglin nor Heizi initiated the lawsuit; instead the state actively intervened when the soldiers came upon them quarreling. The Board clearly indicated that if an affray had in fact occurred, it definitely would have continued with the case. But, as a purely debt case, with both parties requesting cancellation, the Board simply dismissed it. It was clearly reluctant to adjudicate a civil dispute. In this respect, the jurists at the Board handled the case no differently than how county magistrates might have. As Philip Huang (1996: 111, 135–36) has shown, county magistrates would first attempt to have a civil case resolved by the litigants themselves or by community or kin.

In another instance, the Board of Punishment refused to handle a property case even though the accuser did request a hearing. In 1896, the Board turned down a case from the Yamen of the Bordered Red Hanjun (Chinese) Banner Commander. In this case, De Yao Shi 德姚氏 and her brother-in-law Dehui 德汇 were engaged in a dispute over household property. The Yamen of the Bordered Banner Commander reported that the lieutenant colonel 参领 and company captain 佐领 had already attempted to mediate the dispute, but both sides persisted in their positions and a resolution could not be achieved. Therefore, the case was brought before the Board of Punishment. The Board found that neither side could provide strong evidence of her or his claim and that the case was, in any event, just a trivial household quarrel. Consequently, the Board stated that De Yao Shi, as a wife of an official 职妇, and Dehui, as a lieutenant colonel (not the one who attempted to mediate), should avoid going to court so as to “maintain family harmony” 全亲谊 and that “such a minor family matter” should be mediated by banner officials and clan leaders (BDYD, 526).

This was also a typical civil case. The Board of Punishment rejected it, but not simply on legal grounds. On the contrary, even though the Board clearly stated that its rejection was partly due to the absence of strong evidence from either side, it ultimately made its determination based on the Confucian principles of maintaining family harmony and avoiding litigation. All of the Board of Punishment as well as banner system officials involved in this case suggested that it be mediated.

The above two cases demonstrate that the Board of Punishment was typically reluctant to adjudicate a civil case. The case of De Yao Shi clearly demonstrates that Confucian ideology and its emphasis on avoiding litigation in order to maintain social and familial harmony played an important role in this reluctance. In the next example, the Board adjudicated a criminal case in accordance with the Qing code, but it was still unwilling to render a definitive decision on the civil aspect of the case.

In 1851, a Muslim 回民 civilian, Xu San 徐三, requested the civilian Li San 李三 to settle his debt. Li San refused and attacked Xu San with a stick. Xu San was injured, and he reported the assault to the soldiers under the Yamen of the Commander-General of the Metropolitan Infantry Brigade, which transferred the case to the Board of Punishment. The Board sentenced Li San to forty blows of the light bamboo according to the statute that “if someone inflicts a blow with some other object and causes injury, then he will receive forty blows of the light bamboo” (DC, 302.00). As far as the debt was concerned, both Xu San and Li San agreed to resolve it themselves. The Board concurred and thus concluded the matter (XBDA, 10646).

This case concerned both a criminal offense and a civil dispute. The Board of Punishment clearly distinguished between these two aspects. For the civil aspect, the Board left it to the borrower and the lender to resolve their dispute themselves. For the criminal aspect, however, the Board strictly applied the Qing code and punished Li San.

From the above cases, it is clear that a debt case could be mediated by the community or resolved by the parties, and the Board of Punishment would not intervene if all parties reached a resolution. However, the Board would strictly adjudicate minor criminal cases in accordance with the Qing code, as the Xu San case shows.

That being the case, how did the Board draw the line between civil cases and minor criminal cases? In the local magistrate’s court, as Philip Huang’s 1996 analysis demonstrates, the distinction between the two was not always evident because the local magistrate did not directly cite the Qing code in adjudicating minor cases regardless of whether or not he resorted to corporeal punishment (1996: 86–87). Minor criminal cases from the Board of Punishment thus offer us an excellent perspective from which to investigate the line between civil and minor criminal cases.

In seventeen of the thirty-four cases, the Board sentenced the offenders to beating with the light or heavy bamboo—in one case with the additional punishment of wearing the cangue for one month. All such punishments were in strict accordance with the Qing code, but the situations varied. Some cases are easily defined as minor criminal cases. They included two affray cases (XBDA, 10646; BDYD, 532; DC, 302.00), two cases in which children disobeyed parents or grandparents’ orders (XBDA, 5814; 5893; DC, 338.00), one case in which an employee forcibly took his employer’s property because of the employer’s failure to pay his salary (XBDA, 18272; DC, 149.00), and one case from 1903 in which the civilian Xiao Da 萧大 lent some silver to a bannerman at a forbidden interest rate (four percent per month) and withheld the bannerman’s stipend as repayment (BDYD, 540; DC, 149.04) – the last a good example showing that the Board could consider a debt case a minor criminal case. In these cases, the situations fit the appropriate articles of the code.

In other cases, the application of the law was largely at the discretion of the Board of Punishment. The Board could make a choice among different articles in the Qing code, but one operating principle was clear—actions arising from or related to property or debt disputes could be judged criminal and hence punishable, but the civil disputes surrounding the return of property and repayment of debt were not punishable. These cases mainly concerned false accusations and “inappropriate” acts. Among the four cases concerning false accusations, two were adjudicated in accordance with the statute against “false accusations” (DC, 336.00) and two in accordance with the statute against “doing that which ought not to be done” 不应为律 (DC, 386.00).

In one case from 1810 (XBDA, 5812), a civilian charged an innkeeper with stealing his silver and luggage. If the civilian’s accusation had been verified, the accused would have been punished under the statute against “consumption of property received in deposit” (DC, 150.00). But the Board found the charge to be baseless and the reason for the false accusation to be the civilian’s inability to pay the rent to the innkeeper. In accord with the statute against “false accusations,” the Board punished the civilian with forty blows of the light bamboo, two degrees heavier than the punishment for the crime of which he had accused the innkeeper.

In the other false accusation case, this one from 1742 (Neiwufu dang’an–laiwen, 2110), the bannerman Haiquan 海全 charged eight people, including the civilian Xiu Wu 修五, with usury. It turned out that Haiquan had borrowed money from bannermen and civilians, but at legitimate interest rates. He also had not borrowed any money at all from Xiu Wu. From the Board’s perspective, Haiquan had committed two different types of false accusation. As for the usury accusation, the Board found that there were extenuating circumstances or motivations 事出有因, although it did not provide any details, and thus did not find Haiquan guilty on that count. As for his accusation against Xiu Wu, however, the Board ruled in accordance with the statute against “false accusations” and sentenced Haiquan to 60 blows of the heavy bamboo, two degrees heavier than the penalty for “charging interest at forbidden rates” (DC, 149.00). Since Haiquan was a bannerman, this sentence was commuted to 60 lashes of the whip.

In two other cases, the Board used the statute against “doing that which ought not to be done.” In 1834, the civilian Wu Yaodong 吴耀东, who had lent some silver and clothing to the expectant official Cui Zengzhen 崔曾震, was punished under this statute. Wu brought a suit against Cui for non-payment of debt, but he alleged in the complaint that Cui and he sometimes watched dramas together and that Cui had hired him as his financial manager. Both allegations turned out to be baseless. The Board punished Wu because both allegations were “inappropriate” 不合 (XBDA, 5832). These allegations damaged an expectant official’s reputation. In the other case, from 1904, the civilian Jia Qingyun 贾清云 falsely charged another civilian, Han Xingzhuai 韩兴斋, with forcing him to sign a written pledge 字据 for a loan that he claimed he had not received. In fact, Jia had borrowed some silver from Han and could not repay him (XBDA, 17133). This case as well was adjudicated in accordance with the statute of “doing that which ought not to be done.”

The Board of Punishment often pardoned offenders who committed false accusations or something “inappropriate.” Among the thirty-four cases, thirteen concerned false accusations, but only in the four above cases were the offenders punished. Typically, the Board provided reasons for the pardon, the most common being “extenuating circumstances or motivations” 事出有因 or the accuser’s ready admission of guilt at the court hearing.

For example, in 1844, the Board of Punishment heard a case in which jueluo (觉罗, member of a collateral branch of the imperial lineage) Gannian 赶年 charged the bannerman Tumenbuyan 图门布彦 with assault. It turned out that Tumenbuyan had not beaten Gannian at all. The real story is that Tumenbuyan had borrowed some money in 1842, a transaction for which Gannian had served as the middleman. In 1844, when Gannian asked Tumenbuyan to repay the loan, they had a quarrel 口角. The Board stated that no crimes could be charged for the quarrel. As for Gannian’s false assault accusation, the Board pardoned him because there were extenuating circumstances or motivations as Tumenbuyan had not repaid the loan and even quarreled with him (XBDA, 5839). Similarly, in 1904, by considering the offender’s supposed ignorance as a peasant 乡愚, the Board pardoned the civilian Shang Shikui 尚士奎 for falsely accusing several persons of robbery (XBDA, 18272). In other cases when the offender committed something “inappropriate,” the Board also pardoned him for similar reasons (e.g., XBDA, 9084).

All in all, false accusation was common in debt and property cases (thirteen out of my thirty-four cases), but only in some circumstances did the Board of Punishment punish the offender. In the four cases where it did, it did so because the false accusations were particularly egregious. In the remaining nine cases, it did not do so because of extenuating circumstances or motivations (or other reasons). The case of Haiquan is a typical example to show whether a false accusation should be forgiven or punished. In any case, it is clear that when the Board did apply punishment, the case was beyond a purely civil dispute.

The most widely cited article in all of my cases was the statute against “doing that which ought not to be done.” It was cited eleven times in nine cases. Punishment for offenders was forty blows of the light bamboo for light 轻 offenses or eighty blows of the heavy bamboo for serious 重 offenses. It was cited for anyone whose conduct the Board deemed “inappropriate.” For example, in 1812, Sun San 孙三 borrowed 1,300 wen 文 from Yan Da 阎大. When Yan Da asked Sun to repay the money, Sun asked for additional time to honor the debt. Yan Da, worried that Sun would not repay the money, seized some of his personal property. Upon discovering his missing property, Sun chased Yan through the streets. Yan was then caught by soldiers of the Yamen of the Commander-General of the Metropolitan Infantry Brigade. The Yamen forwarded this case to the Board of Punishment, which sentenced Yan Da to 80 blows of the heavy bamboo in accordance with the statute against “doing that which ought not to be done, serious cases.” The Board also ruled that Sun San had to return the money he owed to Yan Da (XBDA, 9083).

This case has two aspects. The first is that Sun San owed money to Yan Da; the other is that Yan Da inappropriately took property from Sun San. The first aspect was completely civil in nature while the second was criminal. For the civil aspect, the Board ruled that Sun San had to return the money. The archival sources did not mention interest. Sun San failed to repay the loan, but the amount of 1,300 wen was much less than five taels, the minimum amount for which the code criminalized a debtor who failed to pay a loan in time (DC, 149.00). Therefore, it can be safely concluded that the debt dispute in this case was non-punishable in accordance with the Qing code, and indeed the Board did not sentence Sun San to any punishment, even though it ruled that he had to repay what he owed. However, for Yan Da’s wrongful seizure of property (a criminal offense), the Board strictly punished him in accordance with the Qing code.

How then did the Board of Punishment decide when an act was “inappropriate?” The Qing code itself did not contain any regulations explaining exactly what kind of offenses were to be considered “inappropriate.” And the Board did not always punish offenders who did something that could be construed as “that which ought not to be done.” But an analysis of the conditions under which the Board applied this statute to punish offenders further demonstrates that the Board, at least in my sample of cases, did not punish any person for strictly civil disputes even when physical punishment was prescribed in the code.

Table 1 lists those cases in my sample (the above Jia Qingyun case is not listed here) in which the Board punished an offender for an “inappropriate” act in accordance with the Qing code. The Board clearly defined these cases as minor criminal cases. None of these offenses was a purely debt or property dispute. For example, in the Cui Zengzhen case mentioned above, the Board punished the offender for pawning borrowed clothing (XBDA, 5832). The details of the case show why the Board criminalized the offender. The expectant official Cui Zengzhen borrowed 300 taels of silver from the civilian Wu Yaodong at an interest rate of 1.8 percent per month. Then, Wu Yaodong changed his name and asked to be a servant under Cui. Cui agreed, not aware that Wu was his creditor. However, Wu did not serve Cui and did not receive any wages. Cui borrowed some articles of clothing from Wu and pawned them for cash. Wu later asked Cui to return the silver and accused Cui of pawning his clothing without his permission and of nonpayment of a debt. The Board of Punishment did not recognize a master-servant relationship here since Wu neither served Cui nor received a wage. Otherwise, Wu would have been punished severely because a servant should not accuse his master. The Board sentenced Cui to 40 blows of the light bamboo in accordance with the statute of “doing that which ought not to be done, light cases.” Cui’s pawning of the clothing he had borrowed from Wu might have been tantamount to theft in the Qing dynasty. It also quite likely damaged Cui’s reputation as an expectant official. The reason why Cui was punished was that he pawned borrowed clothing, not that he borrowed some silver from Wu and failed to repay him.

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Table 1.

“Inappropriate” Acts Judged by the Statute against “Doing That Which Ought Not to Be Done”.

The “inappropriate” act	Sources
The expectant official Cui Zengzhen borrowed some clothing from the civilian Wu Yaodong and pawned it for cash; Wu Yaodong falsely alleged that he worked as Cui’s financial manager and that he watched drama with Cui.	XBDA, 5832
A tailor shop manager accepted a customer’s order to dye an article of fur clothing, but in order to increase his profit, he had another dyer perform the services at lower cost, pocketing the difference. Unfortunately, the subcontracted dyer damaged the fur clothing.	XBDA, 5836
The civilian Yan Da secretly took the debtor Sun San’s property.	XBDA, 9083
A civilian took a tobacco pipe without the owner’s permission after he failed to borrow money from the owner.	XBDA, 17136
A civilian employee (with another civilian) forcibly took his employer’s property because of the employer’s failure to pay his salary.	XBDA, 18272
A bannerman gave a carriage rented from another person to his creditor as a way to repay a debt.	XBDA, 21042
A bannerman forcibly took clothing from a civilian after the civilian refused to lend him money.	XBDA, 18266
A civilian cultivated another person’s land.	XBDA, 9785

The Board of Punishment considered the debt dispute non-punishable. Wu Yaodong’s interest rate of 1.8 percent a month did not violate the Qing code. The archival sources mentioned that there was a contract for the debt transaction, but did not tell when Cui Zengzhen had to repay the loan. Considering that the loan was more than five taels, if more than three months had passed since the due date, Cui could have been punished under the mandate of the code (DC, 149. 00). But the Board concluded that Cui Zengzhen had no intention of defaulting on the loan; he was just unable to repay it at that moment. Cui promised to return the money and clothing in two months. The Board of Punishment thus did not punish Cui for failing to repay the debt even though his action could have been punishable under the provisions of the code.

In short, even though the application of the statute against “doing that which ought not to be done” was up to the discretion of the Board, in my sample all the defendants convicted under this statute committed an offense that the Board did not treat as a purely debt or property dispute. For various reasons, the Board might pardon an offender who lodged a false accusation or who did something “inappropriate,” but the very act of pardoning clearly indicates that the Board saw such cases as criminal matters and not civil disputes—no person needed to be pardoned for a civil dispute regardless of whether or not the Qing code prescribed a punishment for such.

In sum, civil cases were one kind of minor case, and the Board drew a clear distinction between civil cases and minor criminal cases. It strictly applied the Qing code in minor criminal cases (otherwise, it gave its reasons for not doing so), meting out punishment in accordance with the law, but it consistently chose not to levy any code-prescribed punishment in the case of a property or debt dispute.

Non-Adjudication versus Adjudication

As Philip Huang (1996: 110–11) shows, most civil cases ended up being mediated in the community or in the “third realm” – the “intermediate realm” where the formal system of court adjudication and the informal system of community and kin mediation interacted. If a civil dispute could not be mediated or resolved by the parties themselves, the county magistrate would adjudicate the case in accordance with the Qing code. The Board of Punishment also believed that a civil case should ideally be mediated or resolved out of court, with adjudication as the last resort.

Among the seventeen civil cases in my sample, the Board of Punishment rejected three in accordance with the Qing code (DC, 332.21); two cases had been resolved before the court hearing; five cases were resolved during the course of the hearing before the Board rendered a decision (Table 2). Among these five cases, one was resolved because the defendant agreed to the plaintiff’s request, and four were mediated by middlemen. Of the seventeen cases, then, the Board handled ten without passing judgment. The Board rendered decisions on five of the remaining cases by ordering the parties to resolve the disputes themselves. In two of these five cases, the debtor or the middleman repaid the debt in court; in another two, the debtor promised to return the money; only in one case, the case of Chenglin and Heizi, where the involved parties borrowed and lent money respectively and did not bring charges themselves, was the debt dispute dealt with privately. In other words, these five cases ended up being dealt with by the parties themselves, but the Board’s decision helped the parties to resolve the disputes. The Board adjudicated only two cases and there it simply ordered the debtor to return the money to the creditor.

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Table 2.

Board of Punishment Decisions on Seventeen Civil Cases.

Decisions	Number	Sub-number	Suggestions or final results
Rejection	3	1	Mediated by the banner or clan system
		2	Dealt with by the preliminary courts
None (resolved before hearing)	2	1	The preliminary court’s adjudication had been executed
		1	The debtor repaid the debt after the accusation
None (resolved by parties during court hearing)	5	1	The defendant agreed to the plaintiff’s request
		4	Mediated by middleman out of court
To be resolved by parties	5	2	The debtor or the middleman repaid the debt in court
		2	The debtors promised to repay the debt
		1	Resolved by the parties
Adjudication	2	2	Ordered the debtors to repay the debt

In the seventeen minor criminal cases, most of which involved debt or property disputes, the Board of Punishment adjudicated criminal offenses in strict accordance with the Qing code, but handled the civil aspects of the disputes differently (Table 3). Four of the seventeen cases either did not involve civil disputes, or the Board did not mention such in its decisions. One case was mediated by an intermediary. In six cases, the Board ordered the participants to resolve the civil dispute themselves. Among these six cases, in only one case did the debtor promise to repay the debt. The Board adjudicated the civil aspects in the final six cases by ordering the party to repay the debt or return the property. Therefore, as far as the civil aspects were concerned, the Board made no actions on four cases, had seven cases mediated by intermediaries or resolved by the parties themselves, and adjudicated six cases.

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Table 3.

Board of Punishment Decisions on the Civil Aspects in Seventeen Minor Criminal Cases.

Decisions	Number	Sub-number	Final decision
None	4	4	Purely criminal cases or the Board did not make decisions on the civil aspects
None (mediated)	1	1	The middleman promised to mediate
To be resolved by the parties	6	1	The debtor promised to repay the debt
		5	To be resolved by the parties
Adjudication	6	6	Ordered the debtor to repay the debt, or the party to return the property to the legitimate owner

The seventeen minor criminal cases show that the Board was more likely to render a final judgment for civil disputes that are part of minor criminal cases than for purely civil cases. It adjudicated only two out of seventeen purely civil cases but six civil disputes among seventeen minor criminal cases. However, even in these seventeen minor criminal cases, the Board still did not actively adjudicate in concluding civil disputes, preferring instead that the matter be resolved by the parties themselves. ¹⁵

In sum, in distinct contrast to criminal cases, the Board of Punishment first took a non-adjudicative stance to civil disputes. Only if mediation did not work or a case could not be solved by the parties themselves did the Board adjudicate a civil case. In this regard, the jurists at the Board were no different from county or department magistrates. Consequently, can it be said that the Board of Punishment adjudicated civil cases in accordance with the Qing code? In order to answer this question clearly, I split the application of the Qing code into two aspects: the use of physical force and the enforcement of a civil principle in accordance with the code.

Use of Physical Force

Physical force could be applied during an interrogation or as a punishment in concluding a case. For example, lashes with the light or heavy bamboo could be used either as an interrogation technique or as a penalty (DC, 1.1, commentary). Some scholars have seen the use of such force in both major and minor cases as a key characteristic of the Qing legal system (e.g., Bodde and Morris, 1973: 3–4). According to Philip Kuhn (1990: 14, 15, 17), the ankle press 夹棍 was widely used in interrogations in “soulstealing” cases, which were major cases.

In practice, the Qing legal system had a different approach toward civil matters. As for the Board of Punishment’s handling of civil cases, it is difficult to determine whether it applied physical force as a method of interrogation, since the case records do not make any mention of such. This does not mean, of course, that the Board never resorted to physical force during a trial, but it does suggest that such resort was limited. The Qing state clearly regulated that jurists should be very cautious in their use of physical force during trials of minor cases (Qing huidian shili, 1991, v. 850: 1226–27).

The case records do make clear, however, that the Board did not sentence the accused to corporal punishment in concluding civil cases, even when the code called for such. In all seventeen purely civil cases, the Board neither punished anyone nor even raised the question of whether the Qing code prescribed punishments for these property and money disputes. In the seventeen minor criminal cases, the Board punished offenders strictly in accordance with the Qing code. But, as shown above, the Board punished offenders not because of their civil disputes, but because of their criminal offenses. All thirty-four cases clearly demonstrate that no person received any punishment because of a property or debt dispute. This fact accorded with the Board’s categorization of such as non-punishable cases.

Application of the Qing Code

How did the Board apply the Qing code to uphold civil principles? This is one of the most controversial areas in the scholarship on Qing civil justice. As mentioned above, scholars such as Zheng Qin and Shiga Shūzō argue that local magistrates usually did not apply the Qing code in civil justice, whereas other scholarship shows that local magistrates did in fact apply the code in civil cases but typically without direct citation in the final judgments (Huang, 1994: 154–55; 1996: 86–87; Liang, 2007: 241–42). Philip Huang, for example, argues that local magistrates, on the one hand, applied the code in civil cases, yet, on the other hand, usually did not at the same time sentence the “guilty party” to any punishment prescribed by the code. This coexistence of application and non-application of the Qing code supports his argument that the local court’s concern in most civil disputes “was not to punish a criminal offender but rather to uphold a basic principle governing civil relations” (Huang, 1994: 148).

Civil cases adjudicated by the Board of Punishment accorded with Huang’s analysis. In all eight cases that it adjudicated, the Board clearly protected property “rights” by ordering a debtor to repay the creditor, a person to return land to the owner, a customer to pay the required service fee, and so on. The question, then, is to what extent was the Qing code applied?

Debt cases handled by the Board of Punishment perfectly show that Qing jurists applied the Qing code to support property “rights” without resorting to corporal punishment. An often-cited statute in debt cases concerns “charging interest at forbidden rates.” This statute clearly stipulated that interest rates should not exceed three percent per month and that the total interest should not be more than the original principal. The statute further stated that the creditor should not forcibly seize the debtor’s assets, including his wife and children, to recover the debt. Equally important, anyone who failed to repay a debt amounting to five taels or more with a delay of three months or more would be punishable: for five taels and above and a delay of three months, the debtor should receive 10 blows of the light bamboo. For each additional month, the penalty should be increased one degree. The punishment was limited to 40 blows of the light bamboo. For 50 taels and more and a delay of three months, he should receive twenty blows of the light bamboo. For each additional month, the penalty should be increased one degree. The punishment was limited to 50 blows of the light bamboo. For 100 taels or above and a delay of three months, the punishment was thirty blows of the light bamboo. For each additional month, the penalty should be increased one degree. The punishment was limited to 60 blows of the heavy bamboo. The statute also regulated that the debtor should repay the principal and interest to the lender (DC, 149.00). As Huang states, the message of this statute conveys a civil principle: “that legitimate debts would be enforced in legitimate ways” (1996: 83).

The Board of Punishment’s debt cases show, first of all, that it enforced legitimate debts and required debtors to repay. In accordance with both the Qing code’s stipulation and the Board’s practice, a debt case with legitimate interest was a non-punishable matter. In all debt cases where the Board adjudicated, it simply ordered the debtor to repay the debt. In two cases where the interest was mentioned (XBDA, 15201; Zongrenfu dang’an–laiwen, 556), the Board clearly supported the creditor’s right to charge interest (provided that the rate was no more than three percent per month). Admittedly, as civil cases, the Board also accepted compromise when the debtor could not repay the debt in full. In the Haiquan case discussed above, for example, the Board ordered the creditor and the debtor to resolve the case themselves, but it also ruled that the creditor could take interest at a rate not more than three percent per month. In the Xiao Da case, the real reason that the Board punished Xiao is that he charged interest at a forbidden rate (four percent per month). In most mediated debt cases, the debtor repaid or promised to repay the debt. As some cases mediated by an intermediary or resolved by the parties show, the Board’s decision that such a debt should be dealt with by the creditor and the debtor actually enforced the debtor’s obligation (e.g., XBDA, 1023).

Second, the debt cases show that the Board did not punish any debtor because he did not repay the debt in time even though the Qing code clearly stated that a debtor who failed to repay a loan amounting to five taels or more by three months after the due date should be punished (DC, 149.00).

Finally, in its decision on debt cases, the Board of Punishment usually did not cite the Qing code. There are two reasons for this. First, the principle of repaying a valid debt was seen as so self-evident that the Board did not feel the need to explain it. Second, the Board’s main task was to adjudicate major cases, their decisions on which would be reviewed by other government bodies and even the emperor, but there was no such oversight for the minor cases that it handled. As few debtors or creditors could question the Board’s authority, it was not necessary for it to cite the Qing code directly.

However, under certain circumstances, the Board of Punishment did adjudicate debt cases with direct citation of the Qing code. In 1801, Prince Zheng’s household was spending more than it was taking in. Therefore, Fukejing’e 富克精额, an official in charge of the household’s land rent 地租, borrowed 3,000 taels of silver from a native bank 钱铺 operated by Song Ren 宋仁 and Song Yi 宋义, two civilians from Shanxi province. Both parties signed a contract agreeing that the interest rate would be two percent per month 月利两分. Prince Zheng approved of this loan, and it was his household who used the money. Over the course of the next decade, the household repaid 1,700 taels of silver. After Song Ren died in 1810, Song Yi asked Fukejing’e numerous times to repay the entire debt, even appealing directly to Prince Zheng, who instructed Fukejing’e to return the money. Fukejing’e, however, did not have the wherewithal to raise the money and repay the debt. Therefore, Song Yi charged Fukejing’e with failure to repay a loan at the Yamen of the Central Ward Censors 中城察院 in 1811.

During the trial at the Yamen, Fukejing’e agreed to return the original principal 本银, but Song Yi requested that he return both the principal and the interest (two percent per month), or 8,000 taels. Song Yi then appealed to the Censorate 都察院, charging that Fukejing’e took advantage of his position as manager of the Prince Zheng household’s land rent to borrow money under false pretenses and did not repay it.

The Censorate, following standard procedure, returned the case to the Yamen of the Central Ward Censors. Unable to adjudicate and conclude the case, the Yamen of the Central Ward Censors transferred it to the Board of Punishment in 1812. The Board accepted the case for two reasons. First, since the censors of the Central Ward could not conclude this case, the Board of Punishment could not also shirk the responsibility. Second, Song Yi’s accusation of a fraudulent loan, if true, would make it a criminal case.

After investigating, the Board of Punishment concluded that Fukejing’e had not acquired the loan fraudulently. Indeed, Prince Zheng himself had authorized the loan, and it was his household who had spent the money. Therefore, the loan was legitimate and the case was deemed just a regular debt case, and not a “criminal case” or “major case.” It did not punish Song Yi for his false accusation. As for the matter of the debt, the Board stated, “according to the statute (DC, 149.00), for every private loan of money, the interest per month may not exceed three percent (of the original principal). Even though the months and years (of the loan) are many, the total interest may not exceed the original principal. Song Yi’s demand that Fukejing’e return 8,000 taels is not in accordance with the statute. Fukejing’e, however, borrowed the money for ten years, and if he just returns the original principal, his action will not be in accordance with the statute. Therefore, Fukejing’e should return the original principal and the interest that amounted to the original principal. The amount would be 6,000 taels. Fukejing’e should return 4,300 taels since he has already returned 1,700 taels.”

But Fukejing’e sought to repay the loan based on the unpaid original principal—1,300 taels—plus 100 percent interest, which totaled 2,600 taels. Song Yi agreed to these terms. The Board of Punishment agreed to this compromise, ordered Fukejing’e to return 500 taels to Song Yi immediately, and informed the Commander of the Bordered Blue Manchu Banner to enforce Fukejing’e payment of the balance. The Bordered Blue Manchu Banner quickly replied that according to a written message from Prince Zheng’s household, Fukejing’e would return the money for the princely household.

Unexpectedly, Prince Zheng’s household later refused to submit to the Board’s judgment, charging that, under the 1805 substatute li 例, the Board had no authority to directly accept complaints (DC, 332.21). The Board countered that it had not accepted a complaint directly from Song Yi and that, on the contrary, Song Yi had appropriately lodged his complaint at the Yamen of the Central Ward Censors and the Censorate. The dispute between the Board of Punishment and the Prince Zheng Household over the proper application of the substatute lasted a year, during which the Board’s decision remained in limbo. Therefore, on January 13, 1813, because the Board could neither enforce its ruling nor “leave the lender out,” it memorialized the case to the emperor, requesting that the Imperial Clan Court be ordered to review and judge the matter (Zongrenfu dang’an–laiwen, 556). ¹⁶

In this case, in contrast to the other civil cases, the Board of Punishment directly cited the code mainly because the princely household questioned the legitimacy of the Board’s adjudication. This case shows that the Board of Punishment explicitly supported a civilian’s (Song Yi’s) legitimate “right” to repayment of a loan. Of course, as a civil case, the Board accepted compromise and reduced the amount of the princely household’s payment. In terms of punishment, the Qing code was totally ignored. The Board clearly stated that it had the duty to adjudicate this debt case since the Central Ward could not, and attempts at non-adjudicative mediation had failed. The Board also felt a moral obligation to protect the lender’s property “rights,” so that it eventually memorialized the case to the emperor.

In sum, when the Board of Punishment adjudicated civil cases, it applied the Qing code, protected property “rights,” and upheld debt obligations. Meanwhile, the Board completely ignored the Qing code’s stipulations on punishment. No person was ever punished because of civil disputes. The application (in terms of upholding civil principles) and non-application (in terms of imposing punishments) of the same statute in a case demonstrate that the Board upheld a specific mechanism for civil justice. Just as Philip Huang argues, “the implied civil principle was in fact consistently upheld” by the formal code under the cover of a penal or criminal approach (1996: 81).

Civil Principles in Qing China

As discussed above, one constant principle was applied among all these different cases: terms of legitimate loans should be enforced. Numerous cases show that the Board adjudicated civil cases in accordance with the code and that the adjudication supported an individual’s property “rights.” What’s more, of the thirty-four cases, more than two thirds involved officials (either banner or Han officials) or bannermen, and all of those show that the Board upheld civil principles regardless of the plaintiff’s or the defendant’s social and/or ethnic status. In the case of the expectant official Cui Zengzhen, as we have seen, even though the Board criminalized Cui and Wu’s offenses, the Board still protected Wu’s property “rights” and ordered Cui to repay the debt.

Upholding civil principles in a hierarchical society was in accordance with Confucian ideology. The Board’s preference for out-of-court mediation over court adjudication stemmed from the concern for maintaining social harmony. Moreover, according to Confucian precepts, those who enjoyed high status should not only follow these principles, but also needed to follow these principles even more strictly than those of lower status. For example, in the case of Prince Zheng and Song Yi, the Board of Punishment supported the civilian Song Yi’s right to loan repayment with legitimate interest even though the princely household enjoyed aristocratic status. In this case, status and ethnicity were de-emphasized. The Prince and the commoner became just borrower and lender, and the court supported the lender’s right to repayment in accordance with the code. Although Prince Zheng argued that the Board misapplied the code, he never questioned the code itself or the principle that a loan should be repaid. As a prince, he was expected to hold himself to a high moral standard and to repay a civilian commoner in accordance with both the code and human sentiment 人情. The Board clearly explained this expectation:

In conclusion, in taking a private loan, both an examination of the statute and substatute [of the Qing code) and a consideration of human sentiment require that it be repaid. Moreover, [in this case,] the princely household entered into a transaction with a low status commoner 小民, and so it is especially incumbent upon the princely household not to be the slightest bit remiss. (Zongrenfu dang’an–laiwen, 556)

By so arguing, the Board of Punishment perfectly related the Qing code and the civil principles it embodied to Confucian ideology.

The Board’s application of civil principles among persons of different social status was in accordance with the nature of the nobility’s privileges. As the Qinding wang gong chufen zeli (Imperially commissioned substatutes on the punishment of princes and dukes) stated, “Statutes 律 are laws. Crimes, such as those punishable by beating with the heavy or light bamboo, are the same for all, from princes and dukes to commoners. When it comes to being judged in accordance with the law, the statutes do not have two different versions.” When the princes committed offenses and were judged by law, however, their punishments could be commuted to lesser penalties, such as reduction of stipend and salary (Qinding wang gong chufen zeli, 2002, v. 1: 1a-1b). In other words, all subjects from princes to commoners should be under the authority of the law. Nobles’ privileges were mainly reflected by the fact that their punishments could be commuted. In civil cases, no crimes were charged and no punishments were meted out. Therefore, all had to follow civil principles, and a noble’s privileges did not come into play.