Preetam Prakash
Preetam Prakash is a PhD student in the Department of History at Stanford University. His research focuses on Qing legal and political history and he is interested in the evolution of Qing law, and especially the case review process, over the course of the 17th and 18th centuries
Over the past few decades, in addition to those scholars working directly on Qing legal history, historians interested in a wide range of topics pertaining to Qing social history have come to incorporate routine memorials of the Board of Punishment (刑科題本), as well as other types of routine memorials related to criminal cases, into their work. These memorials, especially those dating from the late 17th to late 18th centuries, provide abundant details about various aspects of Qing society, such as marriage and land use practices. Many historians have been particularly interested in using these documents to explore the lives of commoners, access to which often proves elusive when employing other types of state documents and elite writings.
Cases related to “illicit sex”(姦), and more particularly to “sodomy” (鷄姦), are among those that have received considerable attention from Qing historians. The research that has been conducted into these topics has established that from the Yongzheng reign (1723-1735) on, the Qing state was increasingly preoccupied with regulating a wide range of sexual behavior, including widow “adultery” and sexual acts that involved two men. This was reflected in the growing legislation that explicitly targeted such behavior for punishment in the 18th century. To date, however, no scholars appear to have examined the Manchu sections that accompany the Chinese text in a good portion of the routine memorials that touch on these issues, especially those from the early and middle Qing.
I have had the opportunity to read the Chinese and Manchu portions of a very limited selection of five legal cases and one more general memorial, all of which touch on instances of sodomy. The majority of sodomy cases entered the local and central legal record as the result of an act of serious or fatal violence. The cases I mention here are no exception in this respect: all came to light after a murder or assault was committed. These documents were produced across the Shunzhi, Yongzheng, and Qianlong periods, and there appears to have been a substantial degree of variation in the amount of detail included in the Manchu sections of legal memorials relative to the Chinese sections of the documents. My initial impression from skimming through legal memorials from the Shunzhi-Qianlong periods is that, in general, the Manchu and Chinese summaries from the early part of the dynasty are more similar in content. This is in part because the Chinese-language summaries from the Shunzhi period are themselves generally rather brief when compared to the far longer reports that were assembled during the Yongzheng and Qianlong reigns. For instance, one memorial from Shunzhi 13 includes a Manchu-language case summary that appears to have be drawn directly from the final Chinese-language case summary preceding sentencing that was provided in the same memorial. In a later memorial I examined from Qianlong 8 (1743), the Manchu text is shorter than the Chinese text and based not on the summary preceding sentencing, but on the more compressed case description generally included at the very end of routine memorials. I should point out here that this difference in length is relative. The Manchu portion of the 1743 memorial is quite long when considered by itself, but substantially shorter than the detailed Chinese report. The growing discrepancy in content between the Manchu and Chinese legal summaries of the 18th century, if indeed such a trend exists, may be due not so much to the Manchu text being more abbreviated than memorials from the early Qing, but rather because of the growing detail of Chinese reports in the 18th century.
Routine memorials on legal matters generally begin with the local magistrate’s initial report, which often provides the relatively unvarnished picture of case circumstances that lower-level officials were obligated to furnish for their superiors. None of the Manchu sections of sodomy related cases I examined include the level of detail and sometimes verbatim testimony found in the corresponding portions of the Chinese sections of many routine memorials, again mainly from the Yongzheng period and after. However, while the questions posed by various officials during interrogations, detailed witness statements, and other information appears to have mostly been excluded from Manchu-language reports, the Manchu summaries do sometimes translate short sections of spoken testimony. When compared with the Chinese versions, these translations offer some interesting differences for us to think about.
In the relatively brief memorial from Shunzhi 13 mentioned above, the Manchu portion appears to include all of the content of the Chinese, including a few verbal exchanges between the officials overseeing the case and the accused. The case involved one Shi Si, who had killed another man, Qu Si, after the latter had propositioned him for sex. In the Chinese text, in response to the official’s question regarding why he committed the murder, Shi Si answered, “Because Qu Si bullied me, saying that he wished to sodomize me, I was furious and used a brick to hit him hard at the base of the ear so that he died” (因屈四欺我說要鷄姦我我心惱怒用磗將他耳根打重身死). While the Manchu rendition of this testimony is essentially the same, rather than translate jijian 鷄姦 directly as “sodomize,” in the Manchu text, Shi Si’s testimony reads, “Qu Si ridiculed me, saying that he wished to go to bed with me. At this, I grew angry and, taking a brick, I hit him, striking him at the base of the ear so that he died” (kioi si mimbe kederšeme deduki seme hendure jakade, bi jili banjifi, feise jafafi tantaha de, šan i da gūwaifi bucehe).1 All of the Chinese language references to the act of sodomy in routine memorials that I have read use the term jijian 鷄姦 or simply jian 姦. This use of slightly different language in the Manchu text to describe the act of sodomy is repeated in some of the other memorials I have examined, with different terms sometimes used in the same memorial. For instance, the Manchu text of another Shunzhi period memorial involving the attempted rape of a boy describes his assailant, Zhen Wenjin as “wishing to go to bed [with him]” (deduki sere), and also states that, previously, Wenjin “had been regularly going to bed with and making love to the boy, Xiao Zhou’er” (haha jui siyoo jeo el be dedume hajilahabihebi).2 However, the Manchu section of a memorial from Yongzheng 12 outlining the author’s recommended approach to cases involving the term jijian 雞姦 explicitly refers to the act as “sodomy” (buserembi), as does a memorial from Qianlong 8.3
To date, I have not encountered any Chinese language legal cases that describe male same-sex relations using terms such as “make love” or “go to bed with”. It may be possible that the early Qing legal discourse, especially the Manchu language legal discourse, on sodomy and other crimes, was somewhat less well articulated and more fluid than it would later come to be. It seems that by the mid-18th century, Manchu references too had acquired greater uniformity as evinced by the use of “sodomy” (buserembi) in both the Yongzheng memorial mentioned above and the case from Qianlong 8. Of course, it is impossible to come to any solid conclusions on the basis of such a sparse set of examples.
While in most other respects, the Chinese and Manchu sections of these cases are very closely aligned, a memorial from Yongzheng 11 features other translation choices that mark relatively subtle but interesting differences. This case concerned two adult men, Zhou Bingwen and Sun Shiyong, who had met regularly and engaged in sexual intercourse before this arrangement was disrupted by Sun Shiyong’s pending marriage. When he became aware of the circumstances, Zhou Bingwen attempted to make the other man provide a written statement agreeing that their sexual relationship would continue. In the various Chinese language summaries provided in memorial, the act of writing such a statement is described in different ways, including as a “written pledge” (筆據) or as “setting down in writing” (立箇字) while the Manchu summary uses the term temgetu bithe, among the potential meanings of which are included “contract”, “receipt”, or “certificate”. Additionally, Zhou Bingwen is said, in the Chinese text, to have “feared losing their friendship” (恐失舊), while in the Manchu summary he is describing as having “feared lest what they did together should end” (ishunde yabure be lakcarahū seme).4
This brief examination indicates that there may be some interesting insights to be gained from reading Manchu as well as Chinese sections of routine memorials on legal cases. In general, the Manchu sections of these memorials are closely aligned with the Chinese, with the technical wording of various statutes and punishments, and even poetic metaphors and allusions translated directly into Manchu. For instance, a memorial from Shunzhi 10 regarding pardons and exemptions to be granted in light of continuing famine and natural disaster replicates the great majority of the evocative language of the Chinese word-for-word, to the point of reproducing highly specific metaphors and allusions including, for instance, one about how the distressed cries of the hungry resemble the plaintive calls of geese.5
However, the few examples I have mentioned here indicate that there were sometimes noteworthy differences in how Chinese and Manchu sections of memorials depicted testimony and other elements of legal cases. One might imagine that cases involving certain issues, such as fugitive slaves or offenses committed by banner people, might specifically merit closer attention to the Manchu language summaries. Additionally, it may prove illuminating to examine how Manchu summaries of cases translate certain concepts and practices deeply rooted in Han Chinese tradition, for instance attitudes towards sex as well as property rights and familial relations. Scholars might also consider how some of the specific language used in the Manchu sections of early Qing memorials might reflect distinctly Manchu attitudes. For instance, is the more neutral language that is used in the descriptions of sexual relations between two men in the Manchu case summaries from the Shunzhi period relative to the Chinese text indicative in any way of how such acts were regarded in 17th century Manchu society? Likewise, the use of the term temgetu bithe in the case from Yongzheng 11 is intriguing in its apparent reference to the phenomenon of regulating sexual relations, as well as other aspects of human relationships, through written agreements. Such practices were in fact widespread, especially among poorer Han commoners, during the Qing dynasty. Was the term temgetu bithe used in this instance only to convey the meaning of the Han practices? Does it refer to the existence or adoption by Manchus themselves, especially from lower social strata, of similar practices involving written agreements in the 18th century and after? Did a similar vocabulary exist in Manchu to discuss the wide range of situations that one finds in Chinese contracts on “people sales” (人口買賣)? These are interesting issues that would ideally be further investigated through the examination of a large set of cases involving lower-ranking Manchus themselves.
The early formation of the Qing legal system is little studied. People have generally assumed that Qing legal processes and legislation were lifted directly from the preceding dynasty, but in fact, there was a substantial expansion of Qing criminal substatutes and an elaboration of legal procedures related to the central review of cases during the late 17th-18th centuries. On the level of routine memorials, these transformations appear to have entailed both the inclusion of far more detail and testimony as well as much greater standardization. A consideration of Manchu sections of early Qing routine memorials on legal matters might provide interesting insights into the relative fluidity of certain juridical concepts during the initial period of Qing rule. Read together with Chinese language documents, they may also allow scholars to better understand how the Qing legal system assumed its fully articulated form during the Qianlong reign.
Notes
- See NGDK (內閣大庫), 087462 Shunzhi 13-11-11.
2. See NGDK, 008873 Shunzhi 12-7-10.
3. See NGDK, 015613 Yongzheng 12/2/16 and NGDK, 071767 Qianlong 8-3-20.
4. See NGDK, 121282 Yongzheng 11-12-21.
5. See NGDK, 088198 Shunzhi 10-11-15.