Introduction
The nineteenth century witnessed considerable development in the comparative sciences, with important discoveries being made. Of note, ‘the comparative study of religions’, pioneered by Max Müller (1823–1900), ‘was becoming one of the most exciting of the new human sciences’.Footnote 1 ‘The comparative spirit’, Müller claimed, was the ‘truly scientific spirit of [the] age, nay of all ages’.Footnote 2 Through the comparative principle, ‘the curtain between the West and the East has been lifted’.Footnote 3 Sinology, though experiencing much slower development than other branches of Oriental Studies,Footnote 4 was also informed by the comparative spirit of the age. However, it has long been the case that ‘the history of nineteenth-century sinology and its contextual relation with the larger discursive currents of Orientalism, the comparative “humanistic sciences”… have been largely neglected’.Footnote 5
Recent literature has finally given James Legge (1815–1897), the most well-known translator of classical Chinese texts, some attention.Footnote 6 Researchers studying how the comparative method was applied in nineteenth-century Sinological studies of religion and philosophy have indicated that there was a link between Legge and Müller. However, this is only the tip of the iceberg. The comparative spirit of the age permeated other areas of Sinology as well. Among the lesser known fields that have escaped scholarly attention is nineteenth-century British understanding of Chinese law.
In China's Qing dynasty, the legal text that carried the most authority and currency was the Great Qing Code (《大清律例》Da Qing Lü Li). Existing scholarship focuses on the first English translation of the Great Qing Code by George Thomas Staunton (1781–1859).Footnote 7 Looking beyond the colonial origins of the work noted by most researchers, Chen observes that Staunton's translation ‘contributed to the rise of modern comparative study of law’ by exercising an influence on Maine.Footnote 8 Staunton's penalisation of the Qing Code furnished Maine with an Oriental example of a society whose ‘progress had been arrested because of its deficiencies in civil law’.Footnote 9 This is the beginning of British legal Sinology interacting with comparative law.
Their history continued with Jamieson's retranslations of the Qing Code in the late 1870s and early 1880s, which yielded the most remarkable comparative legal fruits. While working as a British consular official in China, Jamieson began to take interest in Chinese law and focused especially on family and commercial law. Between 1879 and 1881, he published a series of translations in the China Review, a Sinological journal based in Hong Kong. After a full rendition of the clauses relating to inheritance law, he made an important discovery that ‘the power of devising or bequeathing by Will does not exist’ in China.Footnote 10 This deficiency became a starting point for him to reflect on the alarming contrast between the developmental routes of Chinese and Roman law:
Roman Law at an early period began to throw off the trammels or rigidity of the system, particularly in permitting the power of bequeathing by Will, which was first granted by the Twelve Tables. China, except in minor concessions to natural affection, has never moved out of the old groove.Footnote 11
Through contrasting Roman and Chinese law on the issue of wills, Jamieson noticed the ‘permanence or immobility of Chinese institutions’, which he intended to decode and to which ‘several causes’ were assigned.Footnote 12 Behind his exploration of China's lack of wills was a broader ambition to explain why Chinese law lagged behind Roman law and why the former stagnated when the latter developed into an admirable system. His comparative legal method was at the centre of this exploration.
Jamieson, comparative jurisprudence, and Maine's Ancient Law
It is noteworthy that Jamieson was well aware that the Chinese were not strangers to ‘I-chuh (遺囑 yizhu)’, which he called ‘last instructions’.Footnote 13 However, he believed they were only used to give ‘moral exhortations and admonitions’ and dealt with minor details,Footnote 14 thereby carrying different meanings and functions from wills in the West, which referred to ‘a secret document absolutely controlling the devolution of a deceased's estate, irrespective of the claims of even the nearest of kin’.Footnote 15 Therefore, what was unknown for the Chinese was not ‘last instructions’, but a concept that had the same power as that of wills in the West.Footnote 16 Jamieson did not evince much surprise for this deficiency in his notes to the translation. Instead, he considered it fully within his expectations:
To those acquainted with the history of Ancient Law this absence of the power of Testation will not appear wonderful … It is nowhere to be found among the spontaneous customs that arise among primitive mankind, but is on the contrary the outgrowth of the Civil Law as interpreted and elaborated by successive generations of professional lawyers. The claims of Family are first always paramount, and it is only as a race or nation develops that the free power of bequeathing gradually comes into play. The rise and progress of this, characterized by Sir Henry Maine (Ancient Law, p 194) as the institution which next to the contract has exercised the greatest influence in transforming human Society, is one of the most instructive chapters in the world's history, but is much beyond the scope of these notes. We only mention it to show that the facts bear out what was primâ facie to be anticipated.Footnote 17 (Bold added for emphasis)
Aside from the apparent superiority with which Jamieson viewed Chinese law, Roman civil law and Maine figured prominently in this statement. Roman law, in contrast to Chinese law, was presented as a successful model that had developed the concept of wills, and Maine, one of the most revered jurists in English legal history, was identified as having given a detailed delineation of its history. According to this excerpt, the rise of wills in Roman law, as elaborated by Maine, seems to be a mirror refracting China's failure in this aspect.
Jamieson's comparison and explanation are more fully unfolded in his article ‘The History of Adoption and its Relation to Modern Wills’, originally a speech delivered at the English Law School in Tokyo during his temporary transfer to the British Court for Japan at Yokohama, where he served from 1888 to 1889.Footnote 18 Published in the late nineteenth century and in the China Review, this article belonged to the same project as his translation, as both were devoted to interpreting Qing inheritance law by making use of Maine's Ancient Law, one of the most well-known legal masterpieces of the age. Jamieson's republication of his works in 1921 in book form continued his reliance on Maine and is thus also drawn upon by the present research.
Undoubtedly, Ancient Law was a masterpiece marking the beginning of historical legal scholarship in Britain, importing the ‘central characteristics’ of the German historical school inaugurated by Friedrich Carl von Savigny (1779–1861).Footnote 19 It was also a book that developed comparative jurisprudence, ‘mirroring contemporary comparative philology’.Footnote 20 Maine's study of ancient law was profoundly influenced by comparative studies of languages,Footnote 21 which ‘provided, as it were, a way of reconstructing the past’.Footnote 22 ‘By using the term ‘comparative jurisprudence ‘to describe his method’, Maine indicated that he would conduct a comparative examination of legal systems, ‘just as comparative philologists had been examining “with surprising results” the history of language in different societies at different stages of development’.Footnote 23 Maine's comparative jurisprudence was fruitfully adopted by Jamieson, whose work brought forth an illuminating encounter between Chinese and Roman law. Before enquiring into the comparative legal intricacies, it is important to first understand Jamieson's legal education and his connections with Maine and Roman law.
With Britain acquiring extraterritoriality in Qing China in 1843 through the Treaty of Bogue and the Treaty of Tientsin,Footnote 24 consuls such as Jamieson took on judicial duties in consular courts, making a thorough understanding of English law central to their diplomatic careers. Thus, when on a furlough home in 1871, Jamieson was admitted to the Inner Temple. During this time, Roman law was experiencing a revival in the English system of legal education. Among the examinations compulsory for Bar students from 1872 was a test on ‘Roman Civil Law’.Footnote 25 To further encourage students to study this subject, scholarships were established.Footnote 26
From Michaelmas Term 1871 to Hilary Term 1872, Jamieson attended a Jurisprudence Civil and International Law course and passed the examination during Michaelmas Term 1872.Footnote 27 This training gave him ample understanding and knowledge of Roman civil law, laying a foundation for his comparative reflection on Chinese legal phenomena. In addition to general training, Jamieson also gained a deeper understanding of Roman law through Maine's Ancient Law, his primary intellectual source. Given the significance and popularity of the book in the nineteenth century, Jamieson's reliance on it is not difficult to understand.
Ancient Law was first published in 1861 and was frequently reprinted.Footnote 28 ‘Widely used in the law schools of America and Europe’, the book was ‘favourably compared with the works of Blackstone, Bentham and Austin as a fitting tradition to the great books written by British legalists’.Footnote 29 ‘For more than twenty years’, the work had ‘profoundly influenced the whole teaching of Jurisprudence’ in Britain.Footnote 30 Not only was it extremely influential among students of law, lawyers, and historians, who ‘viewed it with the same sort of enthusiasm as natural scientists had received Darwin's Origin of Species’,Footnote 31 it was also popular among general readers and was said to be ‘the only legal best seller of that, or perhaps any other century’.Footnote 32 The success of this book even ‘enabled Maine to become a legal member to the Viceroy's Indian Council’,Footnote 33 a post that he filled from 1862 to 1869.Footnote 34 Given the esteem in which the book was held by legal professionals and its prevalent application in law schools, Jamieson was very likely to have been familiar with this classic when in the Inner Temple.
However, Jamieson's leave of absence expired in 1873 and he had to return to his consular and judicial duties in China before he was called to the Bar.Footnote 35 He was to complete the four legal terms he left unfinished during his next furlough home in 1879.Footnote 36 This time, he and Maine were connected by the Middle Temple as Jamieson changed Inns just before departing for China. He was admitted to the Middle Temple in June 1873,Footnote 37 the same year that Maine became the Bencher of the Middle Temple.Footnote 38 Maine's association with the Inn, in fact, could be traced back to a much earlier time when he was appointed as Reader in Roman Law and Jurisprudence to the Inns of Court. During this time, he had started giving lectures, using material for what later became the famous Ancient Law, some of which were delivered in the Middle Temple.Footnote 39 It is argued that the ideas in Ancient Law were developed during these lectures and even derived from his audience.Footnote 40 The book thus became a brilliant chapter in the history of the Inn.
Given the eminence and admiration Maine enjoyed in the Middle Temple, his influence on a young student such as Jamieson is easily understood. The publication of Jamieson's translation of Chinese inheritance law in January 1880 coincided precisely with his time at the Middle Temple during the Hilary Term.Footnote 41 Maine's Ancient Law, as a theoretical support for Jamieson, greatly facilitated his explanation of China's lack of the concept of wills. The following sections are devoted to an analysis of Jamieson's writings, starting from Maine's explanation of the successful development of wills in Roman law.
Impetus for the rise of wills: declining ancestor worship
In Maine's formulation, an important motive for the rise of testamentary succession was the conflict between law and natural affection in ancient Rome. Society at that time was founded on the unit of the family, which, according to Maine, distinguished early society from modern society, as the latter is composed of individuals.Footnote 42 In the family, all those who could trace their blood exclusively through the male line to a common ancestor is termed agnati in Latin.Footnote 43 Interestingly, different from the Chinese concept of tsung (宗), which ‘does not admit strangers’, the Roman agnati could absorb ‘strangers in blood’ into the family.Footnote 44 As Maine explained, the curious Roman concept of agnation was not based on the ‘marriage of Father and Mother’ but on the ‘authority of the Father’Footnote 45 or Patria Potestas. In truth, this term defined the Roman concept of kinship. He explicated that ‘where the Potestas begins, Kinship begins; and therefore adoptive relatives are among the kindred. Where the potestas ends, Kinship ends; so that a son emancipated by his father loses all rights of Agnation.’Footnote 46
As intestate law granted inheritance rights only to those who were counted as agnatic kin, emancipated natural sons lost such rights entirely.Footnote 47 Failing direct issue, the nearest agnates succeeded. If there were no such kin, ‘the Gentiles, or the entire body of Roman citizens bearing the same name with the deceased’ would inherit.Footnote 48 In line with this order, there was a risk that property would flow out of the family and devolve on persons whom the deceased barely knew, while his own emancipated children were left ‘without provision’.Footnote 49 As emancipated sons were among the father's most beloved, this was obviously a disaster for the deceased.
Emancipation was initially implemented through a triple sale, which meant that ‘the son should be free after having been three times sold by his father’.Footnote 50 This policy was originally meant to punish the father's abuse of his rights,Footnote 51 but it then became an effective device for terminating patriarchal authority. The father ‘made a pretended sale of the son three times to a friend; after each sale the friend would set him free, and after the third he was free by virtue of the Twelve Tables rule’.Footnote 52
Maine observed that ‘even before the publication of the Twelve Tables it had been turned, by the ingenuity of the jurisconsults, into an expedient for destroying parental authority wherever the father desired that it should cease’.Footnote 53 Thus, emancipation was deliberately employed by the father to release his sons; more often than not, such an ‘enfranchisement from the father's power was a demonstration, rather than a severance, of affection—a mark of grace and favour accorded to the best-loved and most esteemed of the children’.Footnote 54 Not surprisingly, if such beloved and honoured sons were deprived of the right to inherit their father's possessions, antipathy towards intestacy would naturally arise.Footnote 55
This was where the conflict between law and natural affection became insurmountable. While the former recognised the rigorous role of Patria Potestas in defining kinship, to the exclusion of emancipated sons, natural affection attempted to deconstruct such a notion of kinship and embrace a more natural one so that beloved emancipated sons could legally inherit. Their collision reflected ancient Romans’ changing perception of the family. Maine consequently regarded the ‘Roman horror of Intestacy as a monument of a very early conflict between ancient law and slowly changing ancient sentiment on the subject of the Family’.Footnote 56 In due course, the original understanding of kinship, reckoned through agnation within the scope of patriarchal power, submitted to a more natural conception.Footnote 57 In short, it was the fundamental disparity between the legal notion of relationship and the natural one that gave rise to testamentary succession in Roman law.
Jamieson, in his elucidation of the origin and popularity of testamentary succession in ancient Rome, followed many of Maine's points. First, he accepted the argument on the conflict between law and natural inclination: ‘the grievance under such a system is that the persons who inherit are not necessarily those whom the father most wishes to benefit. There is a conflict between natural affection and legal duty, and the question was how to find a remedy.’Footnote 58 However, he departed from Maine when introducing a comparison with China by changing the original focus:
The grievance was no doubt felt more acutely in early Roman society than it is in China, and this for two reasons. First owing to the rule which excluded emancipated sons from the succession—a rule evidently owing to the fact that the sentiment to which I ascribe the origin of adoption, namely the necessity of finding a successor to perform the sacrificial rites of the family, had in Rome become greatly weakened. The religious functions which originally devolved on the head of each family were gradually abandoned to the care of a special college. In China, the original sentiment still survives in all its strength, and seems sufficient to reconcile the rules of succession with the dictates of natural affection.Footnote 59
From the above observation, it is clear that Jamieson adopted Maine's formulation of emancipated sons, seeing their exclusion from succession as the source of tension between law and natural affection. However, within this conflict, his focus is no longer on the Romans’ changing notion of kinship but on the ‘sacrificial rites of the family’.Footnote 60 As the Romans ceased to deem the worship of household gods significant and entrusted this to a special institution, the necessity of securing sons who would perform such rites diminished, giving rise to ‘the rule which excluded emancipated sons from the succession’.Footnote 61 This was apparently not in line with Maine's reasoning, which ascribed such a rule to the legal definition of kinship. Jamieson supplanted Maine's original argument with one focusing on the weakening role of family sacrificial rites, which became the fundamental reason for the rise of wills in Roman civil law. Jamieson positioned this Roman development as the opposite of the situation in Qing China, where ancestor worship was still in full strength:
Every family has its own particular sacra [sacred; shrine], consisting of the ancestral tablets, which are handed down from father to son, increasing in number as one generation is added to another, and it is the duty of the eldest son or the adopted successor to take charge of these, and perform the customary Rites with all due reverence. If no family successor were appointed, the tablets would be in great danger of being scattered and lost on every failure of direct descendants.Footnote 62
On the one hand, the importance of properly offering sacrifices to ancestors in China prevented the country from devising a rule that excluded emancipated natural sons from succession. The Chinese rules of inheritance basically adhered to natural affection among family members, thus avoiding the tension that occurred in ancient Roman societies. On the other hand, the supreme importance of ancestor worship made an inviolate succession order particularly crucial, since the exclusion of a proper heir and appointment of someone else could easily disrupt the sanctioned order, introducing an unqualified successor and even endangering the proper performance of ancestral sacrifices. Jamieson remarked that ‘if irregularly performed by any disqualified person [,] the spirits of the departed will not be appeased and calamity will fall on the living’.Footnote 63 Given these risks, personal wishes would not be acted upon, and the desire to fulfil them was largely toned down.
‘Thinkers in both [Chinese and Western] societies confronted and tried to reconcile the tensions between people and the parts each society would have them play.’Footnote 64 In contrast to the West, which accentuates personal authority, China was always ‘in favour of role and of individual responsibilities to roles’.Footnote 65 Accordingly, their insistence on fulfilling their duties to ancestors effectively reconciled natural sentiment with the law in China, with the result that a strong need to draw up wills did not arise.
Jamieson indicated that the flourishing of ancestor worship was the primary hindrance to the development of testamentary succession in China and he located the age-old institution at the centre of his argument through a Roman–Chinese comparison. The diminishing necessity of performing ancestral rites in ancient Roman society exacerbated the conflict between law and natural inclination, thus inviting the device of wills to remedy it. In contrast, the fully operating ancestor worship in China effectively reconciled similar conflicts, stifling the emergence of wills. In this way, a causal link was constructed between wills and the performance of family rites such that in countries where ancestor worship was still in full force, wills were absent, while in places where ancestor worship had lost its predominance, wills arose.
Moreover, Jamieson incorporated a third element to enrich his formulation, namely, adoption, which was an institution arising from and sustained by the family sacrifices:
This [Chinese adoption] I consider to be the first and earliest form of adoption in any country—the first step in the course of development I am tracing. It was prompted by the necessity of finding—not an heir to the property, but the most suitable person, according to primitive ideas, to continue the line and undertake the family sacrifices.Footnote 66
Using China as an example that had the earliest form of adoption in human history, Jamieson made a connection between the performance of family sacrifices and the origins of adoption. He concluded with conviction that ‘there can be no doubt that the custom of worshipping ancestors, which seems to be as old as China itself, has been one of the main agents in giving the law of succession the shape it has assumed’.Footnote 67 As exemplified by Jamieson's following translation of a Chinese clause, Qing succession law was characterised by its meticulous and even complicated rules of adoption:
When any person is without male children of his own, one of the same kindred of the next generation may be appointed to continue the succession, beginning with his nephews as being descended from the nearest common ancestor, and then taking collaterals, one, two and three degrees further removed in order, according to the table of the five degrees of mourning. If all these fail, one of the kindred still further removed maybe chosen, and finally any one of the same family name.Footnote 68
The link between ancestor worship and ‘the origin of adoption is further borne out by a consideration of the circumstances of those countries where adoption has never been practised’.Footnote 69 For example, the religion of the Jews was ‘monotheistic … in the hands of a special class’, thus the Jews had ‘no family sacra to be provided for’.Footnote 70 There was consequently no need to devise adoption, and a family was allowed to become extinct.Footnote 71
With the Chinese phenomenon as a major example, further supported by evidence from Judaism, Jamieson came to the conclusion that ‘wherever the religion of the country recognizes deities of the household or hearth, or what the Romans termed sacra privata, there you find adoption’.Footnote 72 Connecting this with his elaboration of ancestor worship and wills reveals that both adoption and wills were connected with the performance of ancestral rites, though with opposite effects. Where the performance of such rites was in full strength, adoption was recognised, as in Chinese law, but where such performance declined, wills arose and gained popularity, as exemplified by Roman law. The two laws were positioned at the opposite ends of the ancestor worship spectrum.
In fact, Jamieson's identification of the interactions between wills, adoption, and ancestor worship was also inspired by Maine's Ancient Law, although his argument was a different one. Maine did not regard ancestor worship and wills as mutually incompatible in earlier times; instead, he highlighted the significance of the proper maintenance of family sacra not only to adoption but also to wills, stating that ‘no adoption was allowed to take place without due provision for the sacra of the family from which the adoptive son was transferred, and no Testament was allowed to distribute an Inheritance without a strict apportionment of the expenses of these ceremonies among the different co-heirs’.Footnote 73 As both adoption and wills ‘threaten[ed] a distortion of the ordinary course of Family’,Footnote 74 ‘the exercise of either of them could call up a peculiar solicitude for the performance of the sacra’.Footnote 75
However, this part of the history, as elucidated by Maine, was completely absent from Jamieson's formulation. He stressed only the incompatibility between family sacra and wills, turning a blind eye to the close links between the two. The following excerpt, drawn on by Jamieson, describes the different historical development of ancestor worship among Hindus and Romans:
Among the Hindoos, the religious element in law has acquired a complete predominance. Family sacrifices have become the keystone of all the Law of Persons and much of the Law of Things. … With the Romans, on the contrary, the legal obligation and the religious duty have ceased to be blended. The necessity of solemnizing the sacra forms no part of the theory of civil law, but they are under the separate jurisdiction of the College of Pontiffs.Footnote 76
According to Maine, Hindus and Romans diverged in their later attitudes towards family sacra. The Hindus permitted them to dominate the entire Hindu law, while the Romans ceased their obsession with them and separated them from their legal system. Maine further claimed that there was no place for wills in Hindu law because their function was filled by adoption.Footnote 77 This claim was followed by his famous statement connecting Romans with the invention of wills: ‘to the Romans belongs pre-eminently the credit of inventing the Will, the institution which, next to the Contract, has exercised the greatest influence in transforming human society’.Footnote 78 Although he cautioned readers against mistaking the concept of wills at this stage with modern wills, which had acquired new functions and characteristics,Footnote 79 the achievement of the Romans in devising it was marvellous enough.
The juxtaposition of the declining status of the Romans’ family sacra and their invention of wills with the Hindus’ ubiquitous and all-powerful family sacra and their institution of adoption was precisely the model paralleled by Jamieson in his comparison of Roman and Chinese law. He selectively and innovatively employed the comparative jurisprudence in Ancient Law.
Notably, Maine's use of Indian institutions was based on a belief that Europe and India, which belonged to the Aryan cultural area, shared a common origin, as shown by comparative philology via the affinity of their languages.Footnote 80 As a result, he was able to reconstruct Western legal history based on the Indian present, as India had retained many primitive usages and institutions that were nowhere to be found in modern European societies.Footnote 81 He opposed John Ferguson McLennan's (1827–1881) indiscriminate use of data from primitive tribes all over the world, for he believed that in the absence of a common origin, research on these people could not cast a reflection upon the European past but was merely wild speculation.Footnote 82 Maine himself was extremely cautious in using materials from non-Indo-European stock.Footnote 83 His comparative method was fundamentally based on sources from the Aryan circle.Footnote 84
While following Maine's jurisprudence, Jamieson extended the comparative method to a larger context, analysing the law of the Chinese, who were obviously not of the Aryan race. By exploring the Qing Code, he observed that the distinction between Qing law and Roman law was largely parallel to the contrast between Hindu and Roman law. Not only were the above two sets of contrasting attitudes towards family sacra remarkable, the resemblance between the Chinese and Hindus in allowing sacra to dominate their laws was also illuminating. It was on this basis that Jamieson detected the potential relationship between China's absence of wills and ancestor worship. The discovery was by no means trivial, as it is only recently that contemporary scholars have begun to point out the connection between the two phenomena.Footnote 85 Commonly viewed as a ritualistic and religious act,Footnote 86 Chinese ancestor worship was introduced into the world map of law by Jamieson. Rooted in Chinese culture, his comparative legal scrutiny reveals the underlying cause better suited to China's reality than Maine's original theory.
Changes in Roman wills, ancestor worship, and Chinese insistence on filial duties
Following the analysis of the internal impetus that precipitated the rise of wills, this section studies the cause for the changes in wills in Roman law. In this process, ancestor worship was again brought forth, which was further interpreted as key in accounting for the immobility of Chinese law. Jamieson described in detail the development of wills from an early form of conveyance.Footnote 87 He followed Maine's theory, meanwhile enriching it with the fruits of his own comparative jurisprudence studies.
According to Maine, the Roman plebeian will to which the modern will could be traced had ‘its descent from the mancipium, or ancient Roman conveyance’.Footnote 88 A testator, through a formal conveyance ceremony, transferred the entire familia to the familiœ emptor, the buyer of the family,Footnote 89 including ‘all the rights he enjoyed over and through the family; his property, his slaves, and all his ancestral privileges, together, on the other hand, with all his duties and obligations’.Footnote 90 In line with this, Jamieson also described the process as ‘a formal conveyance, known in Latin as mancipium’, which ‘operated to vest in the purchaser all the legal rights and liabilities of the transferor’.Footnote 91
Further, following Maine's characterisation of the ‘five witnesses’, ‘the Libripens who brought with him a pair of scales to weigh the uncoined copper money of ancient Rome’,Footnote 92 and the ‘payment of a price by striking the scales with a piece of money’,Footnote 93 Jamieson's description of the proceedings of the ceremony was very similar to his predecessor's, revealing Maine's profound influence on him:
The mancipium, or conveyance, was always a public act made in the presence of witnesses. … Five witnesses were required, besides a quasi public personage known as the ‘balance bearer’, who actually brought balance and weights to weigh the imaginary purchase money. A form of words was gone through, by which the transferor divested himself of his estate, the purchaser accepted and struck the scales with a piece of brass symbolical of paying, and the transaction was complete.Footnote 94 (Bold added for emphasis)
While closely following Maine's elaboration of the conveyance ceremony, Jamieson enriched it with discoveries from his comparative studies of Roman and Chinese law. According to Maine, the purchaser of the family in the above conveyance ceremony was, at first, always the ‘Heir himself’,Footnote 95 who thus knew his future position from the beginning. However, at a later stage, the purchaser could be ‘some unconcerned person’,Footnote 96 who, as per the requirements of the testator, later paid the legacy to the true heir. Secrecy was guaranteed in this way, since the heir could be kept from knowledge of the legacy until the death of the testator. Later, conveyance lapsed into ‘a pure form’.Footnote 97 In Jamieson's analysis of this development, he added an important element that was missing in Maine's formulation—ancestor worship:
By this time in Roman history the heir or successor to the family had long ceased to have any religious functions to perform in connection with his succession. In India and in China, the original theory still survives in full force, viz., that the heir is constituted for the express purpose of continuing the sacred rites, and the property is given him to enable him properly to perform this duty. But in Rome this motive had ceased to exist. The only thing then, which a testator really wished to effect, was distribution of his property in the event of his death. Accordingly the first part of the will, that is the conveyance, became a mere form. Any indifferent person was named as the purchaser of the family, and he never took any farther concern in it. At the same time the second part was committed to writing and was not published till the death of the testator.Footnote 98 (Bold added for emphasis)
Maine, in Ancient Law, did not explicate the reason for the change in the identity of the purchaser and subsequent development; this work was done by Jamieson. The reason for the change, he believed, was the weakening of religious duties within Roman families. With the priesthood being ‘transferred from the private to the public forum and vested in the College of Pontiffs’,Footnote 99 the buyer of the family was relieved of religious duties, which made all the changes possible thereafter, including the new identity of the purchaser, the secrecy of wills, and the obsolescence of the conveyance form.
This reasoning was based on Roman comparison with Indian and Chinese societies, where ancestor worship was in full force. As a contrast to Roman law, the Chinese did not invent a ‘State Church responsible for the maintenance of religion in the community as a whole’.Footnote 100 Therefore, ‘the duty of High Priest still devolves on the head of the family for the time being, and due provision must be made for a qualified successor in event of his death’.Footnote 101 As a link to the ancestors, this true successor ‘alone is capable of conducting the ancestral worship, whether in the ancestral hall or at the tombs of the ancestors’.Footnote 102 The intertwining of sacrificial duties and proprietary rights hindered the Chinese from developing wills in the way Roman law did. Based on this, Jamieson remarked that ‘so long as this imperious necessity exists, it is difficult to see how any great change in the law of succession can be brought about’.Footnote 103 Moreover, the fact that ancestral duties prevented the identity of the ‘High Priest’ from experiencing any material change made Jamieson believe that ancestor worship was the crucial factor that caused the entirety of Chinese law to languish in the old groove. He claimed that ‘the most potent agent in forming Chinese law and maintaining its permanence is ancestral worship’.Footnote 104
The Chinese emphasis on ancestral sacrifices refracted their perception of the cosmos in a larger sense. ‘Heaven, earth, and man are distinct parts of the whole; each has its own function in maintaining the whole.’Footnote 105 Therefore, ‘one must submit to roles’ and ‘failure to submit brings corruption and disorder to all’.Footnote 106 At the centre of the human order is filial piety (孝 xiao), a term connoting duty and submission ‘to the roles of life’.Footnote 107 In regulating Chinese family life, The Book of Rites (《禮記》Liji) explains the duties of a filial son in the following way:
In three ways is a filial son's service of his parents shown:—while they are alive, by nourishing them; when they are dead, by all the rites of mourning; and when the mourning is over by sacrificing to them. In his nourishing them, we see his natural obedience; in his funeral rites, we see his sorrow; in his sacrifices, we see his reverence and observance of the (proper) seasons. In these three ways, we see the practice of a filial son.Footnote 108 (是故，孝子之事親也，有三道焉：生則養, 沒則喪, 喪畢則祭。養則觀其順也，喪則觀其哀也，祭則觀其敬而時也。盡此三道者，孝子之行也。Footnote 109)
Clearly, offering sacrifices to one's deceased parents was regarded as a significant demonstration and component of filial piety, which was the larger framework that explained China's legal particularity. Jamieson once undertook an acute analysis of filial piety, with which he distinguished the father's authority from Roman Patria Potestas:
Roman law emphasizes the dominium of the father, which implies duty and obedience on the part of the son. Chinese look at it from the opposite point of view; it emphasizes the duty and obedience, which implies power on the part of the father to enforce it. There is no word in Chinese, which corresponds to Patria Potestas. The bond which unites father with son, is Hsiao, filial duty or submission, often translated [as] filial piety, though piety is not the appropriate term. It is the respectful submission to the will of the father, which is assumed to arise naturally out of the relationship.Footnote 110
By comparing Chinese filial piety with Roman Patria Potestas, Jamieson perceived opposite processes. The former was a bottom-up process, in which sons’ filial piety gave rise to the father's power. The latter, however, was a top-down process, in which sons’ submission flowed from the father's supreme power. Jamieson's observation was remarkable in his era, as even Max Weber (1864–1920), the great sociologist, jurist, and Jamieson's contemporary, did not perceive the difference between Patria Potestas and filial piety.Footnote 111
More than a century later, Jamieson's insightful observation became one of the inspirational sources for Hamilton's study of the difference between Chinese and Western patriarchy. Commenting on Jamieson's observation, Hamilton stated that ‘Hsiao means obedience; patria potestas means power’.Footnote 112 According to his further analysis, ‘Western patriarchy emphasizes the ultimate supremacy of persons, whereas Chinese patriarchy emphasizes the ultimate supremacy of roles’.Footnote 113 Continuing Jamieson's line of reasoning, he explicated that ‘Chinese patriarchy places the stress on the subordinate's duty to obey (hsiao), assigns the role obligations that signify his or her submission to duty (e.g. mourning rites), and restricts legitimate acts of power and obedience to behaviour in role sets (e.g. father/son, emperor/subjects, husband/wife).’Footnote 114 Hamilton believed that the positional duties of the Chinese are key to deciphering the developmental routes of Chinese society.Footnote 115
Jamieson's analysis of China's will issue was a concrete case showing that it was the insistence on filial duties that caused China to take a legal route different from that of Rome. Maine delineated Western development as ‘a movement from Status to Contract’,Footnote 116 ‘which is another way to say a passage from the predominance of family autonomy to that of individual law’.Footnote 117 China's lack of wills could be considered a triumph of family autonomy over individual choice and a demonstration of Chinese legal permanence. As Jamieson's comparative legal studies show, the vital factor in maintaining such a situation was the descendants’ role in family relationships; to be more precise, their responsibility to pay due sacrifices to the ancestors.
Credit went to the lawyer
Aside from ancestor worship, Jamieson believed that ‘another factor which has contributed to the immobility of Chinese legal institutions is the fact that there has never been in the country a class of professional lawyers, nor schools or colleges where the study of law has been systematically pursued’.Footnote 118 In the development of the concept of wills, the remarkable role of the lawyer was also highlighted. Jamieson proclaimed that wills were ‘the outgrowth of the Civil Law as interpreted and elaborated by successive generations of professional lawyers’.Footnote 119
Also referred to as ‘jurists’ by Jamieson, lawyers were a group of people who studied law in a systematic and professional manner. ‘Eminent jurists lectured in the forum or in private schools to students, and their opinions on cases submitted by clients were carefully preserved and published periodically under the title of Responsa Prudentum’,Footnote 120 meaning ‘answers of the learned in the law’, as Maine explained.Footnote 121 The praetor, who had actual judicial power, ‘was also a jurisconsult himself, or a person entirely in the hands of advisers who were jurisconsults, and it is probable that every Roman lawyer waited impatiently for the time when he could fill or control the great judiciary magistracy’.Footnote 122 Roman lawyers played multiple roles as they engaged in teaching and studying law, compiling their studies, representing clients, and serving as judges when they were promoted to this position.
According to Jamieson, the true agents behind the development of wills were in fact these jurists and praetors who ingeniously invented and made use of effective legal instruments to enable legal progress. First, they were indispensable in the creation of equity, which ‘is one of the devices by which gradual improvements are introduced by the lawyers and judges while the written law remains the same’.Footnote 123 Then, legal fiction, ‘which has worked hand in hand with equity’, was also used by praetors, who assumed that a conveyance ceremony had been observed, which in fact had been dispensed with, out of which grew the ‘Praetorian will’.Footnote 124
This emphasis on the role of jurists was also drawn from Maine, who described in Ancient Law that it was due to the innovation of the praetor that the ‘emblematic ceremony’ of testaments was removed.Footnote 125 Moreover, he believed that the advancement of the entire legal system was also indebted to the work of the jurists:Footnote 126
By adjusting the law to the states of fact which actually presented themselves and by speculating on its possible application to others which might occur, by introducing principles of interpretation derived from the exegesis of other written documents which fell under their observation, they [jurisconsults] educed a vast variety of canons which had never been dreamed of by the compilers of the Twelve Tables and which were in truth rarely or never to be found there.Footnote 127
In Maine's argument, jurists accumulated a wealth of legal principles through their interpretation, annotation, and adjustment.Footnote 128 This elaboration of Roman jurists’ great achievement for the entire legal system was also absorbed by Jamieson. He regarded Responsa Prudentum as ‘one of the main sources from which the later Roman law under the Emperors drew its inspiration, and under the influence of which it attained the logical consistency and symmetry of the final Justinian legislation’.Footnote 129 With this conception, Jamieson reflected upon the fundamental differences between Chinese and Roman law, which, in his eyes, had begun in a similar way but had taken remarkably different routes thereafter:
Both began with almost identically the same social organization, but while the one made the most rapid progress, the other has remained stationary to this day. The Roman lawyers built up the most marvellous system of jurisprudence the world has ever seen—a system that has given birth to nearly all the Law of modern Europe. In China, on the other hand, where public advocates are not tolerated, the Law is in a state of extreme confusion, and its administration a reproach to the age. National progress is under these circumstances impossible.Footnote 130
Jamieson gave the credit for the success of Roman law to Roman lawyers, who, in his eyes, had established the world's most splendid legal system. He even proclaimed that ‘it was precisely in those countries which could boast of a body of trained lawyers that the greatest progress was made’,Footnote 131 establishing a direct link between lawyers and the progress of law. China, according to Jamieson, was the opposite of Rome, possessing neither ‘a class of professional lawyers, nor schools or colleges where the study of law has been systematically pursued’.Footnote 132 This lack impeded the essential improvement and performance of the entire legal system, which ultimately affected the whole nation's progress, echoing Maine's assertion that ‘instead of the civilization expanding the law, the law has limited the civilization’.Footnote 133 Jamieson unequivocally evinced his Eurocentric superiority on this point. The prevailing Qing law in the nineteenth century was merely comparable with the relics of ancient Roman law and, even worse, it compared unfavourably.
The absence of professional lawyers in the Western sense, however, does not mean that traditional Chinese society was completely devoid of a similar group of people. In the Western Zhou dynasty (1046 bc–771 bc), the precursors of the Song-shi (訟師 litigation masters), a class of law practitioners that officially took shape in the Spring and Autumn Period (770 bc–476 bc), first appeared.Footnote 134 After a long period of development, this class matured in the Ming (1368–1644) and Qing dynasties.Footnote 135 The Song-shi provided a variety of services, which included writing legal documents for litigating parties, offering consultations, mediating between two sides, and even bribing officials.Footnote 136 To some extent these legal services resembled those provided by Western lawyers.
However, they were essentially different. These Chinese legal practitioners never acquired official recognition. Dynasty after dynasty, they were prohibited by the national codes, a proscription that reached its peak in the Qing era.Footnote 137 The Qing Code listed detailed penalties for litigation masters and their activities in the section on instigating litigation. Moreover, in official depictions, they were despised as litigious scoundrels who were selfish, cunning, and dishonest; meddling in other people's business; stirring up enmity; and even fabricating cases for their own profit, and thus unworthy of respect.Footnote 138 Their position in traditional Chinese society was not only embarrassing but also illegal, in contrast to the high social status and esteem enjoyed by Western lawyers. This unfriendly environment propelled Chinese Song-shi to carry out their work in a clandestine and low-profile way.
Jamieson's perception of the Chinese intolerance of lawyers points precisely to this phenomenon. The absence of ‘a class of professional lawyers’ indicates that China did not have lawyers in the Western sense. Throughout, he used the benchmark of the Western legal profession to evaluate China, when indeed no such equivalent existed. His mention that China had no schools for the study of law was, again, a Western measure.Footnote 139 Such law schools, where lawyers received systematic training, were important establishments in Western legal culture. The Middle Temple and Inner Temple where Jamieson received his own legal education had long enjoyed prestige. Together with Gray's Inn and Lincoln's Inn, they formed the Inns of Court, a professional association for English barristers. In China, the teaching of and learning this trade were conducted underground, either through self-teaching by means of private books written by experienced Song-shi or apprenticeship under a master.Footnote 140 Neither were comparable to the formal legal establishment and professional pursuit of law in the West.
The Chinese intolerance of lawyers was deeply rooted in the Confucian ideal that there should be no lawsuits. As Confucius claimed, ‘in hearing litigations, I am like any other body. What is necessary, is to cause the people to have no litigations.’Footnote 141 This ideal profoundly influenced Chinese magistrates, who were reluctant to see people litigating in their courts. Most of them, educated in Confucianism, preferred to see people resolve their conflicts through moral instruction and maintain harmonious relations with each other.Footnote 142 The Confucian aversion to litigation deeply influenced Chinese attitudes towards Song-shi, who could never publicly develop their profession as lawyers did in the West.
Jamieson specifically examined an occupational group more recognised in China than the much-repressed litigation masters,Footnote 143 that is, the Shi-ye, or secretaries to officials. The Shi-ye were ‘supposed to have a special knowledge of law’.Footnote 144 According to Jamieson's analysis, their position was closely connected with the overall Chinese official and administration system:
The Judge, himself, burdened with multifarious executive duties, is not supposed to have any particular knowledge of law and does not profess to have any. These secretaries are his private employees and their function is simply to guide him through the mazes and intricacies of the criminal law and enable him to evade the penalties which a wrong judgement would entail. If he should unhappily go wrong …, the Court of Appeal, better advised, in correcting the judgement, will at the same time order that he lose so many steps of merit, or perhaps recommend that he be removed to an inferior post. That is the sole function of the law secretaries, and what they are paid for,—to keep their master straight. They take no note of legal principles and the last thing they would advise is to create a precedent or aught else but to follow the beaten track.Footnote 145
Trained in Confucianism, local officials in the Qing dynasty were indeed not experts in law;Footnote 146 thus, there was a common need, whether among lower county officials or higher provincial officials, for Shi-ye to assist them in trying cases.Footnote 147 As grave cases pertaining to penalties as great as banishment in the Ming and Qing dynasties had to be submitted to higher levels of judges for re-examination,Footnote 148 officials who made incorrect judgments would face different levels of punishment.Footnote 149 This set the tone for the nature of the Shi-ye, namely, to help their employers avoid mistakes in adjudication. Here, Jamieson detected the essential difference between Roman jurists and Chinese Shi-ye. While the former were preoccupied with interpreting the law, adapting it to social reality, and offering opinions on cases, thereby facilitating the law's progress, the latter were concerned only with guiding their masters safely through superior re-examinations, caring nothing about adducing legal principles or advancing the law.
Recognising Roman lawyers’ achievements in advancing wills and civil law as a whole, Jamieson reflected upon China's absence of wills and the immobility of its law. He delved into China's intolerance of lawyers, lack of law schools, and especially the limitations of the Shi-ye, who possessed legal knowledge but could hardly compare to the Roman jurists. Although Song-shi and Shi-ye had been examined in the Chinese context, no prior effort had been made to associate them with the permanence of Chinese law. It was Jamieson's comparative legal vision and sustained attention to China's will issue that made the connection possible.
Conclusion
Situating Jamieson in nineteenth-century intellectual history, this article suggests a complete genealogy of influence between Sinology and comparative studies of law. Starting from Staunton, whose translation found its way into Ancient Law, the story continued with Maine's comparative method moulding Jamieson's understanding of Chinese law. Tracing the notion of wills back into their genesis in Roman Civil law, Jamieson's diagnosis of the absence of the concept in Qing China is by no means an insignificant episode in Sinological history. It sheds considerable light on the comparative spirit underpinning nineteenth-century British understanding of Chinese law with which Jamieson accounted for China's legal permanence. The will issue was a starting point for him to decode the different developmental routes between Roman and Chinese law.
Diverging from Maine's argument on the changing notion of kinship and juxtaposing adoption and wills in the societies where they respectively prospered, Jamieson discovered that ancestor worship was the central institution accounting for China's legal particularities. The reasons for the success of Roman law in the development of wills throws into vivid contrast China's failure, revealing a concrete case where Chinese insistence on filial duties led to the differences between Roman and Chinese law. Their relation was parallel to Maine's contrast of Roman and Hindu law.
Moreover, by using a Western yardstick to measure traditional Chinese legal professionals, Jamieson revealed that the limitations of this group of people constituted another factor to explain the lack of wills and the permanence of Chinese law. While Jamieson's comparative reflection has yielded the most remarkable and convincing result regarding Qing China's will issue that nineteenth-century Sinology has ever seen, he ignored the changes in Chinese attitudes towards wills and the alterations in Chinese law throughout history.
As a legal concept with an early origin, yizhu (遺囑 will) first found its way into codified law during the Tang Dynasty, which stipulated that only when the family was extinct without a male successor was the head of the family allowed to dispose of the property by yizhu.Footnote 150 However, such clauses disappeared after the Song Dynasty,Footnote 151 and thus were nowhere to be found in the Ming and Qing Codes, which lines up nicely with Hamilton's argument on the strengthening of filial duties. As he remarked, ‘the moral and legal obligations of children to their fathers and of wives to their husbands grew more defined and more stringent as China approaches the modern era’.Footnote 152 The temporal dimension of the will issue and its relation to the increasingly rigid positional duties is a promising topic for further studies. Moreover, as a pioneering study extending beyond the Sinological field of religion, the article reaches into the comparative heart of British understanding of Chinese law to invite more attention to this significant but largely unmapped area.
Conflicts of interest
None.
