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Chapter 2. Militarized Adjudication DESERTION AND THE MILITARIZATION OF QING LEGAL CULTURE A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in History By Eugene John Gregory, III, J.D. Washington, DC August 31, 2015 Copyright 2015 by Eugene John Gregory, III All Rights Reserved ii DESERTION AND THE MILITARIZATION OF QING LEGAL CULTURE Eugene John Gregory, III, J.D. Thesis Advisor: James A. Millward, Ph.D. ABSTRACT I use the adjudication of military campaign deserter cases (congzheng taobing 從征逃兵) from the armies of the late Ming Dynasty (1368-1644) and Qing Dynasty (1644-1912) up through the mid-eighteenth century as a category of analysis to understand the origins of militarizing tendencies in eighteenth-century Qing legal culture. This approach reveals the incorporation into late imperial legal culture of militarized adjudication (yi junfa congshi 以軍法 從事), a discipline-focused, autonomous and harsh mode of adjudicating cases during military campaigns that had long-existed within late imperial military culture. Both military and legal cultures existed within the wider social and political cultures yet were further shaped by their respective institutions, associated-persons, activities, and objectives. The most prominent intersection between the two was the emperor, who served as the highest authority within both. Faced with significant military-operational failures during the early frontier campaigns of his reign, the Qianlong emperor (r. 1735-1798) came to identify lack of military victory with military indiscipline and further identified this lack of discipline with the structural leniency that was part of the routine criminal adjudicative process. His solution was to reconfigure the long-standing authority of militarized adjudication as part of the routine adjudicative process for certain “extraordinary (fei xunchang 非尋常)” cases. This resulted in iii entire categories of criminal cases’ being marked for summary execution, starting primarily with cases that directly affected military operations and occurred on the frontier but later expanding to cases involving public disorder and particularly heineous crimes. Given his imperial vantage point and authority over both military and legal cultures, the emperor’s emphasis on militarized adjudication served as the most significant catalyst working on multiple short and long-term processes that formed the cultural origins of an increase of militarized adjudication during this period. For affected cases, these militarizing tendencies in legal culture resulted in truncated legal analysis and an increased number of summary executions beginning in the mid-eighteenth century. Pursuant to an eighteenth-century adjudicative discourse that recognized the imperial standard (wangmingpai 王命牌) as constructively representing the emperor’s will – his authorization – to execute an offender, summary execution spread from the institutional-military context and frontiers to heinous and public-disorder cases within the interior. Attempts from the center to conform the judgement of adjudicating officials to the imperial will led to codification efforts which further legitimized summary execution. Over time, imperial-standard summary executions were written into the Code as fully legitimate law. Increasingly, adjudicating officials experienced a change in adjudicative mentalité that condoned summary execution in “extraordinary” circumstances. No longer would summarily executing a man without the emperor’s knowledge be taboo. This change in mentalité constituted an important legal-cultural origin for the proliferation of nineteenth-century on-the-spot summary executions (jiudi zhengfa 就地正法). Thus for the first time, this dissertation adds a legal-cultural link between the eighteenth-century and the militarization of nineteenth-century Qing society. iv Dedication I owe an enormous debt of gratitude to all those who have helped and guided me along the way in writing this dissertation. My advisor, Jim Millward, took a chance on a rather unconventional student. I thank him for opening up to me the vast frontier of Chinese history. Carol Benedict’s patient guidance and meticulous attention to detail have made me a far better writer and historian. Micah Muscolino provided the initial suggestion of the topic of desertion and has consistently provided honest critique and friendship. Matthew Sommer sat on my dissertation committee and provided many deeply-insightful comments that helped me rethink portions of this dissertation. Jim Feinerman served on my comps committee and introduced me to the world of modern Chinese law. My friend Chiu Pengsheng has, since the beginning, been a consistent source of support and intellectural comraderie. Dr. William Volke, the entire Fulbright-Taiwan staff, and the Academia Sinica Institute of History and Philology made my year of research in Taiwan and China so incredibly fruitful. I miss the “beautiful island.” I am grateful to Renmin University’s Zhang Shiming 張世明 whose influence on this dissertation will be obvious to those who know his research. I owe a lifelong debt to my mentor and first Chinese teacher, Dr. Martha Gallagher – Wang Laoshi 王蒞文老師. Wang Laoshi, I would never have thought of diving into Chinese history and certainly would never have been able to read any of the original sources if not for your relentless commitment to turn a seventeen-year-old cadet into a scholar. In your more than two decades at West Point, you have been the real thing, a fine human being and a true patriot. v I want to thank my children, Estelle, Marie, Emilie, Madeleine, and John-John, for giving up their father during these years of research and writing. Thank you for your prayers that “Daddy would finish his dissertation soon.” Michel will have a more full-time father. Thank you to Ama – Tseng Kui-mei – for watching my Maddie and John-John all those hours while Yali and I were lost in the archives. Thank you to Agong – Chiu Chuitian – for trusting me with your daughter twenty years ago and your encouragement in my military career. Thank you to my mother, Diann Gregory, for being such a powerfully-inspirational and good human being, mother and scholar. You truly never think of yourself, and the legacy of your sacrifice endures in my children’s joy. Thank you to my father, John Gregory, for inspiring and believing in me. Finally, how could I ever thank my dear wife, Yali 雅莉? You spent hours in front of microfiche readers, in the archives, deciphering grass script, and tempering my crazy ideas, and these were the least and most superficial of things you have done. I know you did these things rather than do the things you personally enjoy because you love me and are dedicated to our family, our own da ye (大業). I was a nineteen-year-old kid when I first saw you, and at twenty- one you made me a soldier, at twenty-two a helicopter pilot, at twenty-four a father, at twenty- seven a lawyer, and now at forty-two, a doctor. You taught me to fengong hezuo (分工合作) and showed me that it is love – often tough love – which makes the world new and the future bright. You continue to be by far the best thing that ever happened to me, and all the gratitude I could ever express is a mere shadow of how deeply I appreciate you, xianqi liangmu (賢妻良母). E. John Gregory at West Point, New York August 29, 2015 vi TABLE OF CONTENTS Introduction ..................................................................................................................................... 1 Part I. The Routine Adjudicative Process and Militarized Adjudication..................................... 28 Chapter 1: Late Imperial Legal Culture and Routine Criminal Adjudication .............................. 29 I. Legal Doctrine and Legal Specialists ................................................................................... 32 II. The Routine Adjudicative Process as a Manifestation of Legal Culture ............................ 48 III. Legal Framework For Campaign Desertion Prior to the Qianlong Reign ......................... 62 IV. Conclusion to Chapter One ................................................................................................ 66 Chapter 2. Militarized Adjudication ............................................................................................ 70 I. Military Law and Militarized Adjudication .......................................................................... 71 II. Official Killing Without Adjudication: the Strategic Response.......................................... 83 III. Militarized Adjudication Prior to the Qianlong Reign ...................................................... 92 IV. The Froniters and Spatial Aspects of Militarized Adjudication ...................................... 101 V. Pre-Qianlong Militarizing Tendencies in Qing Law......................................................... 109 VI. Conclusion to Chapter Two ............................................................................................. 118 Chapter 3. The Response to Desertion Prior to the Qianlong Reign ......................................... 121 I. Late Ming and Pre-conquest Qing Responses to Desertion ............................................... 124 II. Responding to Desertion in the Early Post-Conquest Period ............................................ 128 III. Adjudication of Cases Involving Large Numbers of Deserters ....................................... 141 IV. The
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