9 Regulating Private Legal Specialists and the Limits of Imperial Power in Qing China

Abstract

Private legal advisors (xingming and qiangu muyou) were the backbone of judicial administration in Qing China (1644–1911). They handled legal and other administrative matters for local officials in most jurisdictions of the empire. They also published most of the leading legal treatises and commentaries on the Qing Code, exerting an enormous impact on the study of law and judicial practice and indirectly on legislation during the Qing period. The Qing ruling house in Beijing became increasingly concerned about losing its presumptive monopoly over the interpretation of the law and administration of justice as a key source of its legitimacy or claim to the Mandate of Heaven.This chapter will show that the tensions between the Qing government’s recognition of the indispensable service of these private legal specialists and its desire for maximum control over them and their legal knowledge profoundly shaped the Qing judicial system. I will examine the motives, strategies, and limited effects of the Qing government’s efforts to regulate private legal advisors. In the process, my analysis will draw attention to the significant limitations, beyond a very small portion of cases, to the supposedly absolute power of the Qing rulers in trying to control the operation of the legal system.The first part of the chapter will trace the various policies of the Qing government in response to the growing influence of private legal advisors on local judicial administration. The regulatory impulses of the early Qing rulers to control these legal specialists culminated in the issuance and then codification of a series of imperial edicts as ministerial regulations in the early 1770s, but these regulatory endeavors proved to have very little momentum and efficacy in the next century. To some extent, the resulting official discourse did serve to warn legal advisors against abusing their expertise or power when helping local officials, just as the contemporary official portrayal of “evil pettifoggers” (e’songshi) was meant to deter private litigation specialists (songshi) from inciting “ignorant” people to frivolous litigation that would flood the judicial docket. But the Qing government could not dispense with the services of private legal advisors, in contrast with the litigation specialists who were viewed as counterproductive and thus outlawed. As a result, the Qing policies on legal advisors reflected a mix of expectations, anxieties, and frustrations regarding these Confucianliterati-turned-specialists. The second part of the chapter will briefly discuss the operation of the Autumn Assizes (qiushen) of capital cases to illustrate the tensions, limitations, and ambivalence of the Qing government in this regard.Although it was the emperor’s prerogative to review and decide whether to sanction any death sentence, the original legal reports that formed the basis of the imperial review in the Autumn Assizes were drafted in most cases by legal advisors in the provincial and lower courts. The Qing rulers — the Yongzheng (r. 1723–35) and Qianlong (r. 1736–95) Emperors in particular — were repeatedly alarmed at the near-dominant influence of legal advisors on the judicial system, but they never figured out how to effectively solve this “problem.” In this sense, the presumably unlimited power of the Qing rulers was significantly diluted or fragmented in practice when much of the actual operation of the government fell into the hands of legal and administrative specialists such as private advisors, who turned out to be more difficult to monitor or regulate than imperial bureaucrats.