Introduction
Our understanding of late imperial China’s law and culture has long been shaped by the enduring influence of Confucianism, which became the dominant school of political and moral philosophy in imperial China (221 BCE-1911 CE) after the Western Han dynasty (202-9 BCE). Besides patronage by the ruling elites of one dynasty after another, Confucianism was further perpetuated as the state ideology and intellectual orthodoxy after Confucian canons and their authoritative commentaries became the core texts of the imperial civil service examinations. The imperial examination system, introduced during the Tang dynasty (618-907 CE), was made the primary method of official recruitment from the Song dynasty (916-1279 CE) until its abolition in 1905.Footnote 1
In an ideal society, as preached by canonical Confucian texts, a benevolent and wise ruler (inspired by the legendary sage kings of ancient China) and an enlightened ruling class (junzi or shi) would lead people by exemplary virtue and behaviour and by educating them about social and moral norms. The people, presumed to have an innate potential for goodness, would conduct themselves in accordance with their talents and social standings, maintaining social order and harmony by resolving conflicts amicably without litigation. In this idealised Confucian society that hinged on the transformative power of moral cultivation and education, instead of the punitive power of law and punishment, legal experts and expertise were often seen as the last resort or a necessary evil.Footnote 2 Even though legal institutions and certain Legalist ideas about law enforcement and punishment had been integral to imperial governance over two millennia, the tendency to trivialise the value of law and legal knowledge remained widespread among influential commentators well into late imperial China, which spanned the Ming dynasty (1368-1644) and the Qing dynasty (1644-1911).Footnote 3
This deep-rooted tendency, informed by the dominant official ideology and discourse, exerted a profound influence on how government officials treated different types of legal cases, how people understood the judicial system and litigation, and, more importantly for us, how the official records and mainstream writing chose to represent or ignore legal specialists.Footnote 4 As this article will show, only a small portion of legal specialists in imperial China were mentioned in the extant records, created mainly by Confucian literati or scholar-officials. Inadequate documentation and analysis of those who studied, practised, administered, or wrote about the law have long hindered our understanding of the nature and operational dynamics of the legal system and juridical field in late imperial China.
Thanks to the revisionist scholarship over the last three decades, as detailed below, we now know more about the widespread presence of litigation specialists, the indispensable role of private legal advisors in the Qing judicial system, the legal training of at least some officials in the Ming and Qing judicial agencies, and the production and circulation of code commentaries and other legal treatises in this period.Footnote 5 Nevertheless, one of the crucial questions that require more research and analysis is what kind of community existed then for those who acquired, deployed, or developed legal knowledge and thus played a significant role in shaping judicial administration and legal culture. In other words, we still lack an overall picture of the different groups of legal specialists whose knowledge and practice effectively determined the operation and configuration of the judicial system and juridical field in late imperial China. As part of a larger project, this essay seeks to fill this lacuna by exploring new methods and underutilised sources to tackle the above-noted evidentiary challenges facing prior studies and provide at least a baseline assessment of the constitution and scale of the legal professional community in Qing China.Footnote 6
My analysis will focus on that community’s three primary occupational groups: litigation masters, trained judicial officials, and private legal advisors to local administrators. Without necessarily endorsing the normative assumptions of the modern or Western usages of such terms, this essay will use “legal specialists,” “legal practitioners,” and “legal professionals” interchangeably to refer to those who acquired legal expertise through relatively systematic study or training, regularly utilised such expertise for remuneration or employment, and viewed themselves or were viewed by their contemporaries as members of a specialised occupation. In imperial China, this area of specialised learning, as well as its practitioners, was often loosely called fajia (conventionally if somewhat inaccurately translated as the “School of Legalism”), xingming (literally meaning “performance and title” but used in imperial China to refer to law or judicial administration), or Shen-Han (the learning of Shen Buhai (d. 337 BCE) and Han Fei (d. 233 BCE), two leading philosophers of the Legalist School).Footnote 7
In Qing China, authors of legal treatises and judicial handbooks, along with their patrons, often took for granted the existence of a countrywide community of readers who appreciated the practical value of their expertise and shared their ideas or ideals about law and justice. They warmly addressed these readers or interlocutors as “like-minded fellows within the seas” (hainei tongzhi) or “fellows with a common interest/mission” (tonghao/tongdao).Footnote 8 Modern readers have generally viewed these seemingly clichéd expressions as traditional literati stock phrases that lack substance or actual referents. In other words, those Qing authors or preface-writers must have referred to a fictive reading public or, at best, an imagined community. However, this article will show that an empire-wide community of tens of thousands of legal specialists or professionals, as defined above, had indeed taken shape by the early 1700s.
Evidence of such an expansive legal community will further challenge the once dominant idea in traditional historiography that a Confucian society like Qing China was so culturally and institutionally averse to the use of law and legal knowledge for dispute resolution or social control that having thousands of trained legal specialists was neither necessary nor likely until China fundamentally restructured its legal education and judicial system after Western models during the early twentieth century. By concretising the actual membership of this early modern Chinese professional community and the institutional and social contexts of its rise, we may develop a better understanding of what the legal community was like and how its under-analysed formation and transformation might have influenced late imperial Chinese law, culture, society, and politics.
1. Litigation masters as the underground or outlawed specialists
In late imperial China, individuals who repeatedly offered paid legal advice to private litigants, including writing legal documents for them, were often called zhuangshi (plaint masters), songshi (litigation masters), or more pejoratively, songgun (litigation tricksters). However, only some of them might qualify as legal specialists, legal practitioners, or legal professionals as defined above. Scholars have traced the Chinese tradition of litigation mastery back to at least the Spring and Autumn period when someone named Deng Xi (d. 501 B.CE) of the State of Zheng charged litigants for legal advice and attracted many students to study law and litigation strategies with him (Ma and Han, Reference Ma and Han2003, pp. 128-9).Footnote 9
Thanks to the confluence of multiple developments from the eleventh through the late nineteenth centuries—including the bureaucratic retrenchment despite a greatly expanded territory and population, increasing commercialisation of economy and urbanisation, privatisation of land property, a wider spread of literacy and cheaper printing technologies, and the growing number of surplus lower literati or official candidates—the use of litigation masters’ service became common as early as the Southern Song (1127-1279) and remained popular throughout the Ming and the Qing dynasties (Macauley, Reference Macauley1998, pp. 1-58; Fuma, Reference Fuma2007, pp. 79-111; Gong, Reference Gong2008; You, Reference You2022).Footnote 10 Nonetheless, litigiousness and litigation mastery were frowned upon by the Chinese ruling class and Confucian moralists early on and continued to be stigmatised throughout imperial China. False accusers and their instigators were made punishable in the Tang Code of 653 CE. When it came to the Ming-Qing period, even those who “incited” others to legitimate litigation or who wrote legitimate and truthful plaints for unrelated litigants were criminalised in the laws enacted in 1503, 1725, and 1764 (Macauley, Reference Macauley1998, pp. 19-42).Footnote 11
Such social stigmatisation, official hostility, and the unrelenting threat of legal persecution forced most litigation facilitators to operate underground, making it practically difficult, if not impossible, for them to receive high-quality legal training or develop a stable career in law. The so-called “secret pettifogger handbooks” (songshi miben) that were widely circulated in the Ming and the Qing periods were primarily designed to teach people basics about different kinds of lawsuits and strategies for winning them, accompanied by brief explanations of key terms, template legal documents and sample cases (fictive or real), and selected statutes.Footnote 12 Copies of such handbooks, which were banned by the Qing government in the 1740s, and some litigation documents from past lawsuits as models or templates were often mentioned as the primary toolkit (and evidence) of litigation masters prosecuted by the Qing authorities.Footnote 13
Understanding basic terminology and how to write litigation papers, such as plaints or rebuttals, does not necessarily make someone a legal specialist. Unlike private legal advisors to Qing officials, litigation masters were not generally expected to undergo extensive legal training. For instance, Feng Huachao, a “habitual litigation master” who advised litigants in nearly one hundred cases across multiple counties in Hubei province from 1847 to 1849, relied on his literati education and writing skills as a former schoolteacher rather than on any legal training. Similarly, his partner-in-crime, Huang Daxing, was also a retired schoolteacher. Another litigation master, Feng Langzhai, who was caught in the same prosecution sweep for having written more than a hundred plaints within a few years, also lacked formal legal training and came from a teaching background.Footnote 14
As Melissa Macauley has explained, many of those prosecuted for litigation abuses and thus recorded in the Qing judicial archives were just “incidental litigation masters” who helped other litigants on one or several occasions and were “not occupationally engaged as legal specialists” (Macauley, Reference Macauley1998, pp. 100, 106).Footnote 15 In other words, only some of the otherwise almost ubiquitous so-called litigation masters had solid legal training and regularly worked in that trade for an extended period to meet our definition of legal specialists or professionals.
Ironically, despite all the official vitriol and threats, it does not seem difficult for Qing local authorities to find out and apprehend litigation specialists in their jurisdictions if they were determined to do so. Shortly after assuming his new post in 1763, Jiangsu provincial judge Qian Qi (1709-90) rounded up 20 or so “well-known” (youming) litigation masters in that place.Footnote 16 Likewise, in one sweeping search in 1834, the Shandong provincial officials captured 24 litigation masters from 17 counties, translated into 1.4 of them for each county (Macauley Reference Macauley1998, p. 107). Even for a sparsely populated and economically underdeveloped frontier region like Guizhou, the provincial authorities repeatedly complained about widespread local litigiousness and arrested at least 20 litigation masters (including nine in six prefectures/counties) in 1845 and 1846.Footnote 17
Indeed, throughout the eighteenth and nineteenth centuries, there were numerous reports from local administrators across the Qing empire about litigation masters operating in their jurisdictions.Footnote 18 The widely documented presence of litigation masters in Qing China has also been confirmed by earlier studies of scholars, including Fuma Susumu, Melissa Macauley, and You Chenjun (Macauley, Reference Macauley1998, pp. 103-5; Fuma Reference Fuma2007; You, Reference You2022).Footnote 19 Nevertheless, litigation masters’ unlawful and widely despised status made it hard for modern researchers to find detailed information about them, let alone ascertain their total number. As a result, it may be worth venturing an educated approximation or minimum estimate of how many of them might have operated in the Qing if we want to have a more concrete idea of the different constituent groups of the juridical field of late imperial China.
Based on our analysis above, it seems to be a rather conservative estimate, if not a serious underestimate, to assume that each local yamen, on average, had to deal with at least one litigation master by training and occupation. This average estimate has already taken into account the possibility that some local yamen might have multiple or even scores of litigation masters while some other local yamen might have fewer or none, often meaning that some litigation masters served clients from multiple jurisdictions.
If this hypothetical estimate were considered reasonable, in light of the total number of Qing local yamen listed in Table 6 later in this essay, there would have been an average of approximately 1700 to 2000 professional litigation masters available to coach litigants across the Qing empire at a given time during the eighteenth and nineteenth centuries. The total would double to at least 3400 to 4000 if the evidence supported an average of two (or more) trained litigation specialists operating around each local yamen. Of course, the total number should be adjusted if contrary evidence exists. Further assuming that they were active in this profession for 20 consecutive years on average—which would be near the high end of the spectrum for this occupational group, given the constant threats of government crackdown and the harsh punishments for the convicted “habitual litigation trickers” (jiguan songgun)—one could then expect Qing China to have 17,000 to 20,000, if not more, professional litigation masters during the two centuries from 1711 to 1911. Even such hypothetical estimates help illuminate the constitution and power dynamics of the legal community and juridical field in late imperial China when they are combined with our estimates of judicial officials and legal advisors discussed below.
2. Judicial officials with legal training
Aside from litigation specialists, another type of legal practitioners were government officials who had legal training in the Ministry of Justice (Xingbu) or elsewhere and continued to work on legal matters in a central government agency or local yamen. Despite the Confucian idealists’ reservations about law and legal specialists, the governments of imperial China had a long tradition of encouraging legal expertise at least among the judicial officials, even though the efforts and results might be uneven and inconsistent over time. An official position of “law doctors” (lü boshi) was created to teach law among officials in the Wei dynasty (220-266 CE), and this position continued until the Yuan period (1279-1368).Footnote 20
Law was also made a subject (mingfa ke) in the imperial examinations for bureaucratic recruitment during the Tang and Song dynasties. While most of these initiatives had long been abandoned before the Qing, the ruling houses’ recognition of the need for legal experts in governance never vanished. This recognition helped keep the tradition of legal education alive among some government officials. It allowed the imperial authorities to administer and continue developing a sophisticated legal system in a large country with relatively few judicial officials.
The Song government, for instance, was recognised by Xu Daolin and other modern scholars for emphasising legal expertise among its officials and for instituting what the Song historian Chen Jingliang has described as “professionalization” (zhiyehua) of its local judicial administration. This included the appointment of two judicial officials to assist each prefect (zhizhou) in law-finding and fact-finding as technically two separate steps of the adjudication process in each case (Xu, Reference Xu1975; Chen, Reference Chen2014, pp. 111-25; Dai, Reference Dai2002, pp. 3-20).Footnote 21
Nevertheless, the number of law doctors or law examination candidates remained very small before the former position and the law examinations were abolished, and relatively few officials were considered worth mentioning for their legal expertise (Zhao Reference Zhao2011, pp. 64-76).Footnote 22 From their scattered biographies in the dynastic histories, researchers in the late Qing and Republican periods identified approximately 150 noteworthy official-jurists over eight hundred years from the Han (206 BCE-220 CE) through the Sui dynasty (581-619 CE), including some of the most prolific and learned Chinese jurists and several families with multiple generations of legal specialists.Footnote 23 The total number would appear almost negligible compared to the thousands of ranking officials that managed imperial China at a given time (Juezhi quanlan, Autumn 1900; Campbell et al. Reference Campbell, Hao, Chen, Ren and Lee2019).Footnote 24
By studying those involved in the production of 36 commentaries on the Ming law code and regulations, Wu Yanhong has argued that a collaborative community of legal experts, consisting almost exclusively of judicial officials, emerged in Ming China during the sixteenth and seventeenth centuries (Wu Reference Wu, Chen and Zelin2015, pp. 207-30; Wu Reference Wu2023).Footnote 25 Likewise, Jerome Bourgon has drawn our attention to the activities of several late Qing judicial officials such as Gangyi (1837-1900), Xue Yunsheng (1820–1901), and Shen Jiaben (1840-1913) to suggest “the emergence of a community of jurists” during the Tongzhi period (1862-1874) through the end of the Qing (Bourgon Reference Bourgon, Delmas–Marty and Will2012, pp. 198-210).Footnote 26 Different conceptualisations might partly explain their differences in dating the emergence of a community of jurists. However, what is more relevant to our discussion here is that these and other prior studies have been limited by the lack of documentation. As a result, they often discussed only a small number of better-known jurists while leaving unaddressed the question of how large the community of legal specialists or practitioners was in late imperial China.
Although it becomes impossible to determine precisely how many Qing officials qualified as legal specialists or practitioners, as defined herein, due to incomplete information, we can still fruitfully study the Ministry of Justice (Xingbu, hereinafter the “Ministry”) for a rough estimate of how many officials could have received legal training. Responsible for adjudicating cases from Beijing, reviewing all criminal cases from other provinces that were subject to exile (liu) or harsher punishments, and leading legislative revisions, the Ministry saw its power significantly increase during the Qing. It became the most crucial agency for both judicial and legislative matters. In comparison, as the late legal historian Zheng Qin observed, the Court of Judicial Review (Dali si) and the Censorate (Ducha yuan) became much less important than before and had little “real power” in Qing judicial matters (Zheng, Reference Zheng2000, pp. 106-7; Hu, Reference Hu2023, pp. 142-4).Footnote 27 Their participation in the joint review of capital cases in the Autumn Assizes and legislative deliberations was now more symbolic than substantive, primarily for honouring the tradition of inter-agency checks and balances. Consequently, there was less incentive or pressure for officials of these two agencies to acquire legal expertise, and whatever lingering need they had for legal knowledge would be met by occasionally appointing one or two former Ministry of Justice officials to their offices.
Several scholars have recently argued that given its central role in the Qing Court’s legal matters and the necessity of legal experts for its daily operation and for the annual review of thousands of serious criminal cases, the Ministry put a lot of emphasis on legal training and expertise when evaluating candidates for appointment and promotion. Particularly noticeable after the early 1730s, this line of policies helped foster a strong culture of legal study among the Ministry officials and produced some of the most learned jurists in the eighteenth and nineteenth centuries (Du and Xu, Reference Du and Xu2012, p. 63; Zheng, Reference Zheng2016, pp. 103-10; Zheng, Reference Zheng2022).Footnote 28 It was further claimed that the Ministry became the centre or “headquarters” (dabenying) of legal study in the late Qing (Zheng, Reference Zheng2015b, p. 52). Their arguments seem to be partly corroborated by the fact that Ministry officials published some of the extant Qing legal treaties and had the expertise and incentive for so doing (Li, Reference Li1763; Hong, Reference Hong1767; Zeng 1883 [c.1780]; Quan 1781p; Shen, Reference Shen1808; Song, Reference Song1811; Hu, Reference Hu1833; Li, Reference Li1838p; Zhu and Bao, Reference Zhu and Bao1834; Huang, Reference Huang1846; Pan, Reference Pan1847; Jiang, 1878 [1866]; Gangyi, 1884; Yan, Reference Yan1888; Zhao, Reference Zhao1893; Wu, Reference Wu1900).Footnote 29
Without excluding the possibility that some of the clerical staff members, such as the department secretaries (siwu) and copists/translators (bitie shi), and officials in the Department of Criminal Apprehension (Dubu si), and the Office of Prison Management (Nan/Bei Siyu si) might also obtain some legal training when working in the Ministry, we will limit our discussions here and in Table 1 to the ranking judicial officials who mostly handled legal and judicial matters. They include the two ministers (shangshu, grade 1b), four vice ministers (zuo shilang /you shilang, grade 2a), and six assistant Ministry directors (tang zhushi, grade 6a), plus the directors (langzhong, grade 5a), vice directors (yuanwai lang, grade 5b) and assistant directors (zhushi, grade 6a) of the initially 14 and after 1741, 17 departments that were set up to handle legal cases from one or two provinces each. Although the 1899 edition of the Qing huidian shili listed a total of 120 regular or “in-quota” (zheng’e) appointments of ranking officials for the 18 departments (including the Dubu si, which generally had four or five officials), it would be a mistake to treat this formal and nearly unchanged quota as an accurate headcount of the Ministry officials because the nineteenth century saw a significant increase in the so-called “extra-quota” officials (e’wai siyuan), as shown in Table 1. Drawing from the growing number of surplus metropolitan degree holders (jinshi) as well as other provincial (juren) and lower degree candidates (by purchase or otherwise), these extra-quota ranking positions—consisting of department directors, vice directors, assistant directors and grade-seven capital officials (qipin xiao jingguan)—were created starting around 1700. Their purpose was to provide practical training for newly appointed officials while they waited for the increasingly scarce vacancies in the Qing government.Footnote 30
Table 1. Relevant ranking judicial officials in the Ministry of JusticeFootnote 32
Under the relevant personnel regulations of the Qing government, except for the four vice ministers and two ministers (divided equally into Manchus and Han Chinese) (who were often veteran officials of the Ministry), new regular appointees for the different departments of the Ministry were usually required to complete a term of at least three years of service or “practical training” (xuexi) before they became eligible for a higher level position and typically another few years before they might be transferred to another government office. Those extra-quota grade-seven officials without a jinshi degree usually would spend at least six years studying law and adjudication before they could even be evaluated for a potential regular position of assistant director. The scarcity of actual vacancies in the Ministry and other government agencies in relation to the far more numerous candidates also means a much longer waiting and training period for the new appointees than mandated by the personnel regulations. In other words, most Ministry officials would have received two or more years of legal training before they were promoted or reassigned to another post (Qing huidian shili, 1991, vol. 1, pp. 946-8).Footnote 31
A substantial number of them worked in the Ministry for one or more decades. For instance, at least 18 of the Ministry officials in autumn 1805 had already been working there since winter 1796, and 16 officials in summer 1851 could be found in the Ministry at least as early as summer 1840. Some of them eventually became Ministers of Justice, such as Wu Shaoshi (1699-1776), Hu Jitang (1729-1800), Chen Ruolin (1759-1832), Zhang Ruochun (c. 1725-1800), Xiong Mei (1734-1808), Jin Guangti (1747-1832), Dai Dunyuan (1767-1834), Xue Yunsheng, and Shen Jiaben.Footnote 33 Ministry-trained veteran jurists like them often played a very influential role in judicial administration, and some of them also published influential legal treatises as noted before.
By tracking the number of Ministry officials, we may get closer to knowing how many Qing officials could have received legal training there. However, it is neither practicable nor technically feasible to identify every one of them over some 260 years and ascertain their work experience at the Ministry. Before a more accurate and efficient method has been developed, I propose a preliminary solution here to offer at least some useful, if imperfect, estimates to work with for the moment. For that purpose, I draw upon the hitherto underutilised data from some of the two hundred or so copies in my collection of the Complete Roster of Government Personnel of the Great Qing (popularly known as jinshen quanshu) (the “Complete Roster” hereinafter).
By sampling copies of the Complete Rosters and comparing ministry officials across certain consecutive years, we learn who worked there and how many likely departed with legal training or began their legal training in a given year. I have examined the data for about thirty years and summarised the tallies in Table 1.
From the yearly counts and changes shown in the table, one can infer that the Qing Ministry of Justice produced an average of 20 to 30 newly trained judicial officials per year during the eighteenth century, about 30 to 40 per year from 1800 to 1850, and about 50 to 80 per year in the latter half of the nineteenth century due to an increased number of extra-quota officials. The official editions of the Complete Rosters, entitled (Da Qing) Juezhi quanlan, listed significantly fewer extra-quota officials than the commercially printed copies, often entitled Da Qing jinshen quanshu, for some years in the late nineteenth century. Nevertheless, their annual counts of departing and entering officials generally fell within the above-mentioned range, thus supporting our overall analysis. For instance, among the 452 extra-quota judicial officials listed in the commercially printed Da Qing jinshen quanshu of summer 1892, about 41 were new compared to those listed in a commercial edition of summer 1891.Footnote 34
Imperfect as they might be for more precise calculation, if these counts of official transfers or replacements were considered sufficient for our purposes, they would suggest a total of 2000-3000 Qing officials trained at the Ministry in 1701-1800, 1500 to 2000 trained in 1801-1850, and another 2500 to 4000 trained in 1851-1900. In other words, an estimated 6000 to 9000 Qing officials may have received legal training at the Ministry of Justice during the eighteenth and nineteenth centuries.
It is worth remembering that only some Ministry officials became local administrators, and their numbers were still far from adequate for the nearly two thousand Qing local yamen. More importantly, even those with many years or decades of legal training and practice in the Ministry also found it essential to hire private legal advisors to help them handle legal matters. Notable examples in this regard include Zhili Provincial Judge Hua Jie (1779-1859), who had served as a department director in the Ministry for eight years; Jiangsu Provincial Judge Hu Jitang (1729-1800), who had been a vice director from 1758 to 1766 and later became a vice minister from 1774 to 1777 and minister from 1779 to 1798; and Zhejiang Provincial Judge Qigong (1777-1844) who served in the Ministry from 1801 to 1821 and later also became a minister from 1838 to 1841 (Chen, Reference Chen, Chen and Zelin2015a, pp. 273-274; Chen, Reference Chen2015b, pp. 19-20; Yao, Reference Yao1826; Ceng, Reference Cengundated).Footnote 35
Likewise, Wu Tingdong (1793-1873) earned a stellar reputation for his legal expertise and adjudication skills at the Ministry from 1826 to 1852 before he was appointed prefect and then provincial judge. Nevertheless, he still considered a legal advisor indispensable throughout his career as a local administrator, even when the salaries for legal advisors sometimes consumed nearly all of his limited savings (Fang, Reference Fang1999, pp. 316-444).Footnote 36 This now leads us to the third and arguably the most important group in the Qing legal professional community.
3. Private legal advisors as the majority of lawful legal specialists
At least starting in the late Ming dynasty, more and more local government officials hired trained specialists to handle the judicial and administrative work in their yamen. This practice continued into the Qing and spread even more widely than before. By the early 1700s, it had already become a taken-for-granted understanding among Qing commentators that local administrators would hire such specialists or what was then known as muyou for their offices, especially those who could handle the two most important lines of work at a local yamen: xingming (judicial matters) and qiangu (fiscal matters). With few exceptions, these Qing administrative specialists––excluding those who did not need specialised training other than their literati education––were often trained for, frequently switched between, or simultaneously worked as xingming and qiangu muyou.Footnote 37 For the sake of convenience, as I have explained elsewhere, I will include both types of muyou in our discussion of judicial or legal advisors unless there is evidence that a particular qiangu muyou neither received legal training nor worked on judicial matters in his career (Chen, Reference Chen2012, pp. 1-54).Footnote 38
In contrast with the outlawed litigation masters, legal advisors were valued by the Qing court, aleit grudgingly, for providing the much-needed expertise and help for the often untrained and almost universally understaffed and overburdened local administrators, even when the misconduct of their wayward members was subjected to growing criticism and occasional prosecution by the Qing Court after the 1730s (Chen, Reference Chen, Chen and Zelin2015a).Footnote 39 Therefore, they had the opportunity and institutional approval to obtain proper legal training that would average two to three years but could last for almost ten years, often through apprenticeship with veteran legal advisors. With years of legal training and practice, they could play a highly influential and socially respectable role in the Qing juridical field as de facto local administrators and learned jurists who authored widely read legal treatises (Chen, Reference Chen2015b).Footnote 40
Importantly, unlike local officials and litigation masters, Qing legal advisors were generally expected to have extensive legal training before entering the profession of advising local officials (Chen, Reference Chen2012, pp. 14-17).Footnote 41 Applying the definition noted earlier, one could argue that private legal advisors accounted for the majority of adequately trained Qing legal specialists or professionals. Given their essential role in shaping Qing judicial administration and legal publishing, it will be helpful to know approximately how many were active in the Qing juridical field. Fortunately, we have more information about them than about litigation masters and trained official-jurists.
In the eighteenth century, the Yongzheng and Qianlong emperors became increasingly alarmed by a series of cases reportedly mishandled by local judges and their legal advisors. As the number of legal advisors grew over time and as local officials became even more dependent upon them, Qing rulers felt threatened by the excessive influence of legal advisors over local judicial administration and governance. In 1772, the Qianlong emperor expanded a set of regulations, based on earlier ministerial rules and scattered imperial edits, to further tighten the central government’s control over legal advisors (xingming and qiangu muyou). Among other things, these regulations limited legal advisors’ term of employment in a local yamen to five years, prohibited them from working for officials in their home province or within 500 li (about 250 kilometres) thereof, and required provincial officials to submit annual reports to Beijing about all legal advisors in the local yamen within their jurisdictions starting from 1773.
As seen in Tables 2–6, each of these reports typically enclosed a summary memorial and a “detailed list” (qingdan or qingce) with information on the hiring official or yamen and the legal advisor’s name, native place, starting date of employment, and sometimes also their age, examination degree, and job responsibilities. Noncompliant officials could be demoted two grades and their private advisors would be expelled. These regulations were enforced only for the three years from 1773 to 1775 before the Qing Court abolished them, and most detailed lists are no longer available. Incomplete as they might be, the extant reports and detailed lists are still a treasure trove for historians as they contain extraordinarily rich information about nearly nine hundred legal advisors in Qing local governments. Most of those legal advisors would otherwise remain unknown to us since their names and careers were not recorded in other extant sources.
Take one of the reports for example. In a 1774 memorial to the Qianlong emperor, Jiangsu Governor Sazai (?–1786) reported that he and his subordinate officials had faithfully complied with the regulations and that all their advisors were hired within five years, from more than 500 li away, and did not collude with one another. As Table 2 illustrates, Sazai’s report also unequivocally confirms what we can only infer from other anecdotal accounts and second-hand observations: the ubiquity of legal advisors in Qing local yamen. According to the detailed list enclosed in his report, 17 legal advisors, as defined above, had been hired at the ten provincial or circuit yamen in Jiangsu, averaging 1.7 advisors per office—which will be referred to as the advisor-official ratio hereinafter. Some of the advisors managed xingming or qiangu matters, while others were responsible for both kinds of work.Footnote 42 No official claimed that they or their yamen had not hired legal advisors before this.
Table 2. Legal advisors to Jiangsu provincial and circuit officials in 1774Footnote 43
Potential concerns about the representativeness of Jiangsu, one of the most economically and culturally developed regions in Qing China, might be alleviated by reports from other provinces. For instance, Gansu province, a northwestern frontier of the Qing empire and far from the lower Yangtze delta where Jiangsu was located, was the Qing empire’s economic and cultural backwater in contrast with the latter (Liang, Reference Liang2008, pp. 352, 354; Ho, Reference Ho1959).Footnote 44 All the provincial and circuit yamen in Gansu had at least one legal advisor. Most of them had recently hired private advisors, apparently because their former advisors had worked for the same office for five years or the hiring official might have recently arrived.
Likewise, at the southwestern corner of the empire, Yunnan province reported 13 legal advisors in seven provincial and circuit yamen in 1773, as seen in Table 3, while noting that only one of the officials “reportedly handled the work by himself and had not [yet] hired an advisor.”Footnote 46 Guangxi province, east of Yunnan and bordering today’s Vietnam, hired nine advisors for five provincial and circuit yamen in the same year. Although one should expect variations from province to province or year to year, Jiangsu was not that different from these far less populous or developed frontier provinces in their heavy reliance on legal advisors.
Table 3. Legal advisors to Gansu provincial and circuit officials in 1775Footnote 45
The other extant reports, detailed lists, and many more summary memorials from provincial officials during this period confirm the almost universal practice of hiring legal advisors to handle local judicial and other administrative matters across the Qing empire. As summarised in Table 4, the average advisor-official ratio at the provincial and circuit levels is 1.56:1 for the thirteen provinces in 1773 and 1.52:1 for the seven provinces in 1774 in our sample. The lower advisor-official ratios in less densely populated provinces such as Gansu are offset by the higher ratios in places like Jiangsu and Anhui.Footnote 47
Table 4. Private legal advisors to the Yunnan provincial and circuit yamen in 1773Footnote 49
Among the 18 inland provinces of China proper, Hubei is the only one without any detailed list of legal advisors available in our sample. Still, memorials from its provincial authorities confirmed that Hubei officials had not violated the 1772 regulations, with no indication that those officials were less reliant upon private legal advisors in performing their duties than their counterparts elsewhere.Footnote 48 Even the Fengtian prefecture, located in the northeast of the Qing empire and outside China proper, likewise reported only compliance with the new regulations without even attempting to claim that they did not hire or hired fewer private advisors.Footnote 50
Table 5. Legal advisors at provincial or circuit yamen in different Qing provinces, 1773-1775Footnote 53
These detailed lists of legal advisors are all about government offices at the provincial and circuit (that is, supra-prefectural) levels in 1773–75. Still, our findings are equally applicable to, and indeed strongly supported by evidence about, the practice at lower government offices. The advisor-official ratio for the provincial and circuit yamen was generally lower than that for the prefectural and county yamen because most circuit intendants only hired one legal advisor due to their relatively less demanding workload.Footnote 51 The several complete province-wide detailed lists from Shandong province in 1773, 1774, and 1775, and from Fujian provinces in 1775, provide the hitherto most conclusive evidence that the hiring of legal advisors had already been deeply entrenched within the local Qing bureaucracy at all levels.
In 1775, the fortieth year of the Qianlong reign, except for one military defence circuit for the Grand Canal (yunhe bingbei dao), all local yamen in Shandong reported having at least one legal advisor. A total of 216 legal advisors worked in 125 yamens, averaging about 1.73 legal advisors per office.Footnote 52 Besides the other two sets of complete reports from Shandong for 1773 and 1774, the only other extant province-wide report from Fujian confirms this pattern of hiring practice. Fujian Governor Yu Wenyi and his subordinate officials at 82 yamen hired 156 private legal advisors in 1775, averaging 1.88 advisors per office.Footnote 54 Considering only county and prefectural government, the advisor-official ratio is about 1.94:1 (144 advisors in 74 yamen) for Fujian and 1.73:1 (202 advisors in 117 yamen) for Shandong in 1775. These ratios are significantly higher than those for their provincial and circuit yamen in the same year: 1.33:1 for Fujian and 1:5:1 for Shandong (see Table 4).Footnote 55
As shown in Table 4, given that all the other provinces documented in 1773 were comparable to Fujian and Shandong in their advisor-official ratios at the provincial and circuit levels, the above-noted advisor-official ratio of the prefectural and county yamen in Fujian or Shandong can serve as a good approximation for other provinces. We should add that the local officials who prepared these reports had almost every incentive to under-report, not inflate, the number and importance of legal advisors in their jurisdictions. In other words, if these reports have shown the ubiquity and indispensability of legal advisors in Qing local governments, they should not be dismissed as overstatements of the real situation. The significant increase in Qing population, laws and regulations, and administrative workload during the next century only made legal advisors more indispensable to Qing local governments for the remainder of the dynasty.
Now that we know the average number of legal advisors hired by a Qing local office/official, we can estimate the total number of legal advisors working in Qing local yamen by multiplying the advisor-official ratio by the total number of Qing local offices. I have used the Complete Register again to compile the number of Qing local offices/officials in a particular year during the eighteenth and nineteenth centuries, as shown in Table 6.
Table 6. Number of Qing local administrators/Yamen, 1720s–1900sFootnote 57
NOTE: *The number of vice prefects is not included in the tallies. The sum of county/prefectural yamen in the second column is not included twice when calculating the total of local yamen in the last column.
**The source did not distinguish zhili zhou from regular san zhou.
If we were to apply the advisor-official ratio of 1.73:1 in Shandong in 1775, saving the higher ratio of 1.88:1 or 1.94:1 in Fujian to offset the lower ratio in places like Gansu if necessary, to the roughly 1680 county and prefectural yamen in the eighteenth- and nineteenth-century China, there would be about 2900 legal advisors in these offices, in addition to another 210 to 240 legal advisors to the 145 or so circuit and provincial officials at the time.Footnote 56 In other words, Qing local officials across the country hired more than 3000 legal advisors annually during this period.
Assuming that these advisors worked full time in this profession for an average of twenty years of continuous employment—even though their entire professional careers might technically last 30 or more years, including their frequent career interruptions, job displacements, and considerable time on the move—there could have been as many as 30,000 of them employed in Qing local yamen from 1711 to 1911. This number includes over 20,000 legal advisors from 1771 to 1911 and 15,000 for the last century of the Qing dynasty before 1911.Footnote 58 This estimate does not include the 200 or so vice-prefects every year even though at least some of them hired private legal advisors (Sun, 1868-1871, vol. 18, juan 268, 51a).Footnote 59 Their omission from our counts should more than compensate for any downward fluctuations in a given year in our sample.
Although we have based our analysis on official reports from the 1770s, those reports and the regulations mandating them were designed to address the longstanding issue of Qing local officials’ excessive reliance on private legal advisors. In other words, what we learned from those official reports reflected a social reality that had existed long before the regulations were enacted.Footnote 60 The provincial reports also included age information for several hundred legal advisors, who averaged about 48 years old, meaning that many legal advisors reported in 1773–1775 likely began their legal training or careers around or before 1750.Footnote 61
In other words, hiring some 3000 legal advisors in local yamen across Qing China predated these reports by at least several decades. Indeed, this had become a known fact in official discourses and communications in the early eighteenth century. In 1736, Yunnan Governor Zhang Yunsui urged the newly enthroned Qianlong emperor to adopt more effective measures to regulate local officials’ employment and recommendation of legal advisors. As a veteran official with first-hand knowledge of local administration, he reminded the emperor that local officials, ranging from governors-general down to county magistrates, were so overwhelmed by the judicial and fiscal work in their yamen that they “had to hire private advisors and rely on them to help handle all the official paperwork and documents” (budebu yanqing mubin, yiqie wenyi juance jie qi zhuli). Notably, he confirmed what the Ministry of Personnel had stated in an earlier communication to senior officials (ziwen), which noted that “no fewer than several thousand” private legal advisors were working for the local officials across the empire.Footnote 62
Such an empire-wide practice of hiring legal advisors did not appear suddenly during the early Qianlong period (1735-95). Various indications suggest that it likely had emerged by 1700 at the latest. After all, the Shunzhi emperor (1638-61, r. 1644-61) lamented as early as 1651 that the less experienced officials “completely” relied upon their private advisors to handle their official paperwork and judicial reports (Qing shilu, 1985, 3:427).Footnote 63 Shunzhi’s observation was confirmed by Chen Wenguang who observed in 1707, based on three decades of legal advising in several provinces: “The management of judicial and fiscal matters [in local yamens] completely relied upon private advisors” (xingming qiangu quanlai mubin zhuchi) (Chen Reference Chen1707p, 1:2a; Gongzhongdang Qianlong chao zouzhe, 1984, 21:797-798).Footnote 64 Besides the better known early Qing legal advisors such as Pan Biaocan, Wu Hong, Gu Ding, and Shen Zhiqi, I have found at least 30 other legal advisors who were born between 1610 and 1680 and had been moving around the country to advise various local officials in multiple provinces in the late seventeenth and early eighteenth centuries (Chen Reference Chen2012, 9-10).Footnote 65
This was also indirectly corroborated by the emergence of early Qing literati families that had already turned the job of legal advising into a valuable career option for their members and relatives by the early eighteenth century. For instance, at least ten members, across three generations, from the Wang family in Niangchuan village of Shanyin county, Zhejiang Province, had become private advisors by the 1730s. In comparison, only three members of this branch of the family obtained official posts (Shanyin Niangchuan Wangshi zupu, 1784).Footnote 66 The Ding family in Wu county, Jiangsu province, had produced at least six private advisors in the late seventeenth and early eighteenth centuries, even based on the seriously incomplete information from the family’s extant genealogy.Footnote 67
Gong E (c. 1740-1810), a well-known long-time legal advisor in the second half of the eighteenth century, observed: “If a thousand people were trained for legal advising, no more than a hundred completed the training; if a hundred [graduated trainees] were looking for jobs, no more than dozens of them got one” (Gong 1987 [1803], 361). In other words, fewer than 10% of muyou apprentices or trainees eventually finished their training, and among those who did, probably less than half of them managed to secure continuous, full-time employment as private advisors to local officials. If his observations were not off the mark, there could have been 300,000 men who had received some legal training as apprentice muyou, and as many as 60,000 trained legal advisors, including those not always fully employed, from 1771 to 1911.
4. Concluding remarks and preliminary thoughts for further study
If we put together the three professional groups discussed in this essay. In that case, Qing China might have had 6000 to 9000 trained judicial officials, 17,000 to 20,000 trained litigation masters, and 30,000 to 60,000 trained legal advisors during the two centuries from 1700 to 1900. The fact that such a significant number of Confucian literati received legal training and actively applied their legal expertise in Qing administration or everyday life will make it necessary to rethink various aspects of Chinese law, society, and culture in the late imperial period beyond much of the received wisdom. The limited space here will not allow for an in-depth analysis of the implications thereof. Still, even some brief observations below could suggest new avenues for scholarly inquiry, with more detailed treatment in larger related studies.Footnote 68
First, with tens of thousands of such trained legal specialists in active service or frequently moving across the empire, Qing China did indeed have a real and important countrywide legal community. This community can be considered an imagined one only in the sense that most of its members did not know or meet the other members in person. Most of these literati-turned-specialists received similar education. They studied a more or less standardised curriculum of Confucian canons, Chinese literary classics, and dynastic histories for many years, often in preparation for the civil service examinations. As a result, despite their different social positions or conflicts of interest, trained litigation masters, official-jurists, and legal advisors shared the ability to decipher the labyrinth of the Qing Code and judicial procedures, to read and write classical Chinese (the lingua franca for late imperial Chinese literati and bureaucrats), and to invoke mutually understood cultural or moral discourses and representational tropes to make effective arguments or communication with one another. In this sense, this legal community was also a textual and interpretative community, in which certain texts were widely circulated, and certain discursive conventions or codes were shared and enforced–even when some of its members, especially litigation masters, might take advantage of these conventions or norms allegedly for immoral purposes.
Secondly, concretising the Qing legal community also enables us to better analyse the power relations and dynamics of this professional community and the larger juridical field of late imperial China. Very briefly, Pierre Bourdieu, the late prominent French sociologist, has used the term “juridical capital” to refer to the access to or control over legal resources, including but not limited to legal texts, legal information, legal knowledge, and judicial institutions. For Bourdieu, the ability to possess and mobilise this or other forms of capital, whether cultural, social, economic, political, or symbolic, constitutes “power.” Like other kinds of structured social spaces or “fields,” the juridical field is also characterised by considerable inequality among its members of different social positions in their possession of juridical capital (Bourdieu, Reference Bourdieu and Richardson1986, pp. 241-58; Bourdieu, Reference Bourdieu1987, pp. 814-53; Bourdieu, Reference Bourdieu2014; Swartz, Reference Swartz1997).Footnote 69
Given that legal advisors were hired to help local officials handle judicial matters, it is only natural that the former two often were in unison in criticising litigation masters as the scourge of frivolous litigations, moral decay, and local bureaucratic overload.Footnote 70 But if we shift our attention from this official discourse to the power dynamics within the Qing legal community in light of our analysis here and by drawing on some of Bourdieu’s insights, a different approach will be to re-examine how the relationships among judicial officials, legal advisors, litigation masters as well as litigants were influenced by their differential ability to obtain or mobilise legal resources or juridical capital. Contrary to the traditional idea that law was of secondary importance to rulers and ruled in imperial China, future research needs to pay more attention to the crucial role and highly contested nature of the Qing juridical field within its larger social and political contexts.
Thirdly, the existence of a countrywide legal professional community also facilitated the production, distribution, and popularisation of legal knowledge and thereby helped enhance the value of juridical capital for trained legal practitioners. A large community of legal specialists made it easier to find collaborators, sponsors, or readers for otherwise costly or seemingly less rewarding publishing projects. Even based on the extant copies of Qing legal publications, we have many examples of extensive collaboration among officials or legal advisors in producing some of the most influential legal treaties and administrative handbooks during the Qing period. For instance, Wang Mingde thanked 31 officials of the Qing Ministry of Justice for having contributed to his Dulü peixi of 1674, one of the few most influential commentaries on the Qing Code (Wang, Reference Wang1674p). Legal advisors who compiled Da Qing lüli quanzuan around 1797 listed seventeen contributors who all appeared to be legal advisors. Likewise, 22 co-professionals helped compile another compendium of commentaries on the Qing Code, published by legal advisors Hu Zhaokai and Zhou Menglin first in 1805.Footnote 71 Works like Qiushen shihuan bijiao cheng’an and its sequel (on the guidelines and leading cases for the Autumn Assizes) and the various editions of forensic handbooks such as Xiyuanlu jicheng bianzheng illustrate frequent and fruitful collaboration between judicial officials and legal advisors (Qiushen shihuan bijiao cheng’an xubian, 1881; Will, Reference Will2020, pp. 818-27).Footnote 72
Many such publications by legal advisors were endorsed in the prefaces by high-ranking officials or financed by the latter, often because the authors and the endorsers recognised the publications’ value to the large community of legal practitioners and local administrators. In other words, the emergence of a countrywide professional community created the demand and supply of legal or administrative knowledge. Such knowledge would, in return, help further expand or reproduce the community. In the meantime, the endorsement by senior-ranking officials such as governors or provincial judges also lent authority to the publications and enhanced their authors’ professional reputations (Chen, Reference Chen2015b).
Legal advisors converted their expertise into juridical capital and improved their chances of career success and social mobility. The presence of so many trained legal experts could also create competition among themselves. The desire for professional excellence and prestige among many peers helped foster a culture of legal study and scholarship, producing at least dozens of famous Qing official-jurists or legal advisors. A variety of legal treatises were also created as better replacements for earlier publications. These activities contributed to the flourishing legal publishing business during the Qing period.Footnote 73
Fourthly, besides spreading across the country, this legal community also had a temporal dimension. Qing legal practitioners frequently drew upon texts and ideas transmitted from previous dynasties. They considered themselves successors to an unbroken tradition of Chinese jurisprudence and legal culture. While the desire to claim a long intellectual genealogy was not unique to Qing jurists, the fact that Qing China had far more trained legal practitioners and affordable legal publications than ever before enhanced the sense of a professional community spatially and temporally. Qing legal specialists often worked together to republish, revise, and update some of the leading legal treaties. For instance, there were over 50 reprints or new editions of the commentary on the Qing Code by mid-Qing legal advisor Yao Run (1778–1830) from 1824 to 1910.Footnote 74 The many officials and legal advisors who edited, prefaced, sponsored, or read the various editions of the Code commentaries or other legal publications all contributed to the continuation and evolution of a millennium-old juridical tradition as producers or consumers of legal knowledge but also as interlocutors for those who came before and after them.
Lastly, the rise of such a community of legal specialists also helped reconfigure the juridical field and significantly impacted the operation of the judicial system in Qing China. In this juridical field, different groups of legal specialists and other stakeholders, including litigants and yamen clerks, interacted, collaborated, or contested with one another to maximise their influence and interest. Together, but in different ways, they shaped how the Qing judicial system and legal culture evolved.
The widespread presence of litigation masters allowed some underprivileged litigants to use the formal judicial system for their purposes. At the same time, the legal training at the Ministry of Justice ensured a stable supply of legal experts to meet the basic needs of legislation and judicial administration at the central level. In the meantime, local administrators hired thousands of legal specialists to help them handle judicial and other important work of the local governments across the empire, and their expertise and service helped sustain the regular operation of the Qing legal system and government for more than two centuries.Footnote 75 In other words, in a society dominated by Confucian ideology and its frequently unfavourable attitude towards law and legal specialists, a countrywide community of legal professionals had not only taken shape but also played an active and crucial role in late imperial China long before the Chinese legal system was redefined and recast by (self-) Orientalist and modernisationist narratives during the late nineteenth and early twentieth centuries.
In conclusion, it is worth noting that members of the Qing legal professional community also demonstrated their value when late Qing and early Republican China underwent significant reforms during the first few decades of the twentieth century. For instance, some veteran officials of the late Qing Ministry of Justice such as Shen Jiaben, Ji Tongjun (1854-1936), and Wang Shitong were influential in the legal reform movement alongside those with foreign legal education such as Wu Tingfang (1842-1922) and Wang Rongbao (1878–1933), in 1902 through 1911.Footnote 76
Likewise, legal advisors also played a valuable role in this transitional phase of modern China. They shaped the legislative debates and legal reform in this period by drafting official commentaries on draft law codes for the provincial governors or judges who employed them.Footnote 77 Some also served as instructors in newly established law programmes and schools. Footnote 78 Others passed the judicial qualifying exams in 1910 to become judges in the reformed legal system. For instance, at least 39 legal advisors working in the local government offices of Zhili province took the qualifying exams in 1910.Footnote 79 Legal advisors accounted for nearly half of those who passed the exams in several inland provinces like Gansu, Yunnan, Guizhou, and Xinjiang.Footnote 80 Furthermore, the families of late Qing legal specialists also produced some of the first generation of newly trained lawyers, judges, and legislators in the twentieth century after they graduated from modern law schools at home or in Euro-America and Japan.Footnote 81 The long existence of a countrywide community of legal specialists thus provided a significant portion of the knowledge base and personnel necessary to pave the way for China’s pursuit of legal and political modernity in the early twentieth century.
