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The speed of justice : summary execution and legal culture in Qing dynasty China, 1644-1912 Guo, Weiting 2016

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 THE SPEED OF JUSTICE: SUMMARY EXECUTION AND LEGAL CULTURE IN QING DYNASTY CHINA, 1644-1912 by WEITING GUO  A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF  THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Asian Studies)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  June 2016 © Weiting Guo 2016  ii  Abstract  This dissertation examines the history of summary execution in the Qing dynasty (1644-1912) and its significant impact upon Chinese politics and legal culture. The practice of this extraordinary punishment initially increased in the eighteenth century, when the Qing Empire encountered the challenges of a growing population, an overburdened judicial system, and an increased number of popular protests. The Qianlong emperor (1711-1799) extensively used expedient procedures and bestowed upon regional authorities the power of summary execution to battle the threats from both borderland and inland—including the emerging underclass and the protesters. However, the problems remained unresolved and the court continued to institutionalize this informal punishment. In the nineteenth century, the increasing social turmoil and continuously overwhelmed judicial system led to several reforms at the regional level. Following the trend of local militarization, the spread of men using force became an inevitable trend. The authorities continued to rely on braves in order to quench local revolts and save government expenditures. Yet this approach blurred the boundary between legality and illegality and forced the authorities to severely punish soldiers and unorganized “roaming braves” (youyong 游勇) through the informal procedure of summary execution. Although the practice of summary execution helped the authorities to overcome the lack of judicial resources and suppress the threats in an efficient manner, it also evaded central authority over death penalty and enhanced political intervention in the judicial process. The extensive use of this punishment created  iii  a space for not only the state but also regional authorities and local forces to manipulate judicial expediency and the death penalty. It also led to the rise of what I call the “economy of punishment”—the spread and distribution of penal resources related to crime and violence. This trend shifted the practice of Chinese death penalty toward a system where routinized and exceptional, centralized and decentralized, and formal and informal forces consistently negotiated judicial expediency and mutually shaped one another. More importantly, it reveals that a series of significant reforms predated the Westernization of law and continued to influence Chinese criminal justice during the first half of the twentieth century.  iv  Preface  This dissertation is original, unpublished, independent work by the author, Weiting Guo.     v   Table of Contents  Abstract ......................................................................................................................................................... ii Preface ......................................................................................................................................................... iv Table of Contents .......................................................................................................................................... v List of Tables .............................................................................................................................................. vii List of Figures ............................................................................................................................................ viii Acknowledgements ...................................................................................................................................... ix Introduction ................................................................................................................................................... 1 Routine and Arbitrary Power in Chinese Law .......................................................................................... 9 The Evolution of Summary Execution in Chinese History ..................................................................... 24 Economy of Punishment and Changes in Chinese Legal Culture ........................................................... 34 Sources and Outline ................................................................................................................................ 44 Chapter 1: The Matters of Exception: Summary Execution before the Qing Dynasty ............................... 51 Death Penalty and the Centralizing State ................................................................................................ 56 Intolerable Crime and Undelayable Execution ....................................................................................... 63 Tally, Sword, and Banner: The Authorization of Execution .................................................................. 72 Beating to Death: The Art of Informality ............................................................................................... 81 Martial Law and Militarization ............................................................................................................... 95 Conclusion ............................................................................................................................................ 106 Chapter 2: Monarchical Power and Judicial Expediency: The Reform from the Top .............................. 108 The Making of “King’s Order” ............................................................................................................. 114 The Evolution of Execution by Flogging .............................................................................................. 128 From “Rootless Rascals” to “Wicked People” ...................................................................................... 136 Defending Judicial Expediency ............................................................................................................ 153 Conclusion ............................................................................................................................................ 163 Chapter 3: Regionalization of Death Penalty: The Spatial Structure of Quick Justice ............................. 164 Constructing Zones of Exclusion: The Deserters in the Lands of Exile ............................................... 169 A Shorter Trip to Death: Reforms in Prisoner Transfer ........................................................................ 190  vi  Execution on the Spot: Bandit Suppression during the Taiping Rebellion ........................................... 217 Guideline, Substatutes, and More: Summary Execution after the Civil War ....................................... 236 Conclusion ............................................................................................................................................ 246 Chapter 4: The Economy of Punishment: Battles against “Roaming Braves” ......................................... 247 When Soldiers Became Wanderers ....................................................................................................... 256 Hunting for Living Ghosts .................................................................................................................... 276 Battles among Local Armed Groups ..................................................................................................... 286 Conclusion ............................................................................................................................................ 294 Chapter 5: The Dilemma of Public Opinion: The Case of Shen Bao ....................................................... 296 Competing Views on Rough Justice: Shen Bao’s Reports at a Glance ................................................ 299 The Real Murderers Will Never Escape: The Sanpailou Case of 1877 ................................................ 306 When the Masses Wanted This Man to Die: The Ningbo Riot of 1911 ............................................... 332 Conclusion ............................................................................................................................................ 347 Epilogue and Conclusion .......................................................................................................................... 349 Bibliography ............................................................................................................................................. 367     vii  List of Tables Table 3.1. Summary Execution Substatutes for Deserting Criminals………………………….171 Table 3.2. Summary Execution Substatutes for Military Offences in Borderlands….………...173 Table 3.3. Summary Execution Substatutes for Offences during Imprisonment………………174  viii  List of Figures Figure 2.1. “The Illustration of Banner-plaque Representing King’s Order”………………….126 Figure 4.1. “Tiger and the Buffalo Monster Broke Out of the Cage”………………………….289 Figure 4.2. “The Escort Threw the Dart”……………………………………………................291   ix  Acknowledgements This dissertation could not have been accomplished without the constant support of numerous people. First, I would like to express particular thanks to my thesis advisor, Professor Josephine Chiu-Duke. Ever since I entered UBC, she has offered unstinting support to my study and motivated me to pursue quality research. She trained me in the field of Chinese political thoughts and extended my knowledge about Ming-Qing laws and Tang-Song history. She gave me sufficient freedom in choosing research topics, while also reminding me of significant issues and providing me valuable critiques and suggestions. I am also grateful for the guidance and inspirations from my secondary advisor, Professor Leo Shin, and my dissertation committee member, Professor Timothy Cheek. Professor Shin not only cultivated my interest in late imperial Chinese history but also guided me in historiographical thinking. He extended my study to various fields of Ming-Qing society. He nourished my ability of framing meaningful arguments and always gave me warm support during my research. Professor Cheek showed me how a wise historian approaches the study of history. His interesting courses and intelligent discussions enriched my knowledge about modern Chinese intellectual history and provided me useful tools for analyzing culture, ideas, and historical figures. His perceptive inquiries during my oral defense, particularly about culture vs. context and the social production of the dangerous class, greatly benefit my dissertation and future projects. What is more important is that—and I think no one could ever doubt it—his sense of humor and quick-witted conversation made my long journey toward the PhD quite enjoyable.   x  I am also grateful to my examiners for their helpful comments and warm encouragement. Professor Kent Guy, who came all the way from Seattle to UBC, provided me invaluable suggestions particularly regarding eighteenth-century history and the Qianlong emperor’s policies. His detailed review and insightful remarks reminded me of several important aspects of the Qing empire. He also warmly encouraged me to go further in my research and revise the manuscript for publication. Professor Timothy Brook, who has inspired me in so many fields and encouraged me at different stages, carefully read my dissertation and provided me very constructive criticism. His thought-provoking comments have helped me reflect on how and why certain practices and ideas were framed and reproduced while multiple forces competed with one another and jointly contributed to the historical process. I am grateful that many of his questions have led me to this stage and will now guide me through my future career with a fresh and innovative perspective. Professor Francesca Harlow generously provided insights from outside the field of China studies. Her reminder about the fundamental structure and the driving forces behind the persecution of the underclass through her study of nineteenth-century India not only offered me a great direction for future revision but also broadened my horizon to histories outside China. My debt of gratitude is also owed to many teachers and colleagues I met in the course. I particularly want to thank Professor Li Chen for his countless support and assistance to my study. During my study at the University of Toronto, Professor Chen generously reviewed my dissertation proposal and provided valuable suggestions which later became part of my central questions in the  xi  current research. He introduced me to the International Society for Chinese Law and History (ISCLH) where I formed great connections and friendships among colleagues. I am grateful to him and Professor Madeleine Zelin for organizing the Chinese legal history workshop at Columbia University that has brought so many inspirations to me and many colleagues. Professor Madeleine Zelin kindly supported my research on grave disputes in Qing dynasty Taiwan. She carefully reviewed my article and generously provided insightful feedback that influenced not only my previous work but also my future projects. I also want to thank Professor Thomas Buoye, whose paper on lingering imprisonment inspired me to go forward with the research on the history of summary execution in Qing dynasty China. Professor Buoye kindly offered valuable critiques to my article on the punishment of roaming braves. Many of his fresh ideas have carried me to a longer inquiry into the legal order in Chinese society. Professor Yiching Wu and Tong Lam both provided support and helpful suggestions to my research during my exchange program at University of Toronto. During my PhD program, I was fortunate to join a collaborative project on the local history of Wenzhou. The project was coordinated by Fudan University under the supervision of Professor Wu Songdi. Part of its research outcome has been published in my article on late Qing and early Republican mediation practice. The rich sources I collected in Wenzhou archives and library has formed the basis of my second book project. I especially want to thank Roger Shih-Chieh Lo, who is now teaching at National Taiwan University, for introducing me to the world of Wenzhou studies. I still remember how fruitful the journey was when I first met  xii  Roger at Brown University and later on in a short trip to Harvard Yenching Library. Roger’s enthusiasm in local history and insightful perspectives toward the study of modern China has greatly inspired me and many colleagues. I’d also like to thank Professors Wu Songdi, Li Shizhong, and Hong Zhenning for their numerous assistance to my research. I particularly thank the staff and research fellows at Wenzhou Municipal Library, Wang Yan, Mao Weijie, Lu Liyang, and Pan Mongbu, for their constant help to my source collection.  At UBC, the continued support from my teachers and friends has become one of my most valuable assets. I was lucky to have met many good teachers such as Professors Alison Bailey, Catherine Swatek, Christopher Rea, Donald Baker, and Harjot Oberoi. I am also grateful for receiving generous assistance from our Graduate Advisors, Professors Sharalyn Orbaugh and Bruce Rusk, our department’s head, Professor Ross King, and staff, Jasmina Miodragovic, Maija Norman, and Stephanie Lee. I’d like to thank Professor Michael S. Duke, who, like Professor Josephine Chiu-Duke, has always treated me like family and showed warm concern about my research. I particularly want to thank my friends for the joy they bring to my life and their encouragement to my study: Dominic Meng-Hsuan Yang, Karl Wu, Junrong Du, Meng Ying, Maria Grazia Petrucci, Chelsea Wang, Dewei Zhang, Yang Zeng, Yu Zhansui, Clayton Ashton, Dai Lianbin, Robban Toleno, David Luesink, Jonathan Henshaw, Craig Smith, Szu-yun Hsu, Gideon Fujiwara, and Feng Nianhua. I also want to thank the UBC Asian Library staff for their help in source collection: Jing Liu, Phoebe Chow, Shaun Wang, and Eleanor Yuen.   xiii  I am fortunate enough to have met many good friends who gave me warm support throughout the long journey. At the International Society for Chinese Law and History, I met a number of friends who share similar interest in Chinese legal history: Taisu Zhang, Philip Thai, Ting Zhang, Maura Dykstra, Dandan Chen, Tristan Brown, Daniel Asen, and Weiwei Luo. At the North American Taiwan Studies Association (NATSA), I got to know many colleagues who work in the field of Taiwan studies: Feng-en Tu, Chi-ting Peng, Chienyuan Chen, Laura Jo-han Wen, Cheng-Pang Lee, Eric Siu-kei Cheng, Feng-yi Chu, Wanjui Wang, Yang-Yi Kuo, Shi-Shang Sung, and Chih-Ming Liang. In Taiwan and Hong Kong, many teachers and friends provided assistance to my research: Professor Taysheng Wang, Professor Pengsheng Chiu, Wen-liang Tseng, Wei-chieh Tsai, Ren-Yuan Li, I-Chao Wang, Chih-Hsing Ho, and Yunru Chen. Friends in Shanghai and Hangzhou, especially Song Hong, Tang Xiaobing, Hu Yuehan, and Li Youqiang, not only enriched my trip to China but also offered mental support and research help. I also thank Cameron Duder for his careful proofreading and thoughtful concerns over our life and many things.  Many institutes have generously helped my research in the past few years. I’d like to thank the Social Sciences and Humanities Research Council (SSHRC) of Canada, the Chiang Ching-kuo Foundation, and Harvard Yenching Library for funding my dissertation writing and source collection. I particularly appreciate the warm encouragement and suggestions from Professors Scott Simon and André Laliberté during the reception of the Chiang Ching-kuo Foundation award. I also  xiv  want to thank the staff at the Cheng Yu Tung Library of University of Toronto, especially Vera Cheng and Paul Lin, for their kind help during my stay in Toronto.  Finally, but not least, I want to thank my family. My parents, Rong-ell Guo and Sumin Chen, and my parents-in-law, Zhu Mingruo and Yu Xiao’ou, have given their love and support to a man who dedicates so many years to the pursuit of knowledge. I especially acknowledge my mother-in-law, Yu Xiao’ou, for helping me collect sources and driving me to the villages during my field trips. My wife, Daisy Yidan Zhu, has kept me company over the ups and downs throughout the long journey of completing my PhD. My son, Wilson, brings me plenty of joy not only because of his painting of cars but also because of his lovely words and big hugs. I really thank my family and every individual who has helped me in my life. Without their encouragement and patience, it would have been impossible for me to reach this stage and complete this dissertation.   W.T.G. Coquitlam, BC         1  Introduction  On September 9, 1903, the Shanyin County (山陰縣) of Shaoxing Prefecture had an unpeaceful Double Ninth Festival (Chongyang 重陽). A group of robbers broke into a wealthy family’s house late in the night.1 Most of the valuables were stolen. A servant was stabbed during the robbery. The second day, the victim reported the case to County Magistrate Zhao Youzhi (趙佑之). Zhao quickly sent his runners to search for the suspects. Very soon, two robbers were arrested and identified as “roaming braves” (youyong 游勇). The magistrate then reported the case to a superior official, who commanded him to punish the convicts severely following the established substatutes (zhaoli yanban 照例嚴辦).2 On October 12, the magistrate met with the county’s military officer and led a troop of soldiers to bind the two convicts with a rope and send them to the execution ground. The two robbers were beheaded at the Xianting Entrance (Xiantingkou 顯亭口). Their severed heads were then hung at the district where the offence occurred in order to deter the public. No records indicated the names of these two robbers. People at the county government might have known more information, but these two robbers—like many other roaming braves—left no names or personal profiles after execution. As the title suggests, roaming brave meant a wanderer who had previously served in the military.                                  1 The story of this case is from a Shen Bao report. See Shen Bao (申報; Shanghai News) 11008, December 10, 1903, 2. 2 According to Shen Bao, the magistrate only reported the case to “shangxian” (上憲), which, in theory, could be any supervising officer higher than the county level. However, the context of this case seems to suggest that the case was reported to the prefect.   2  This group became the target of suppression after the Qing court disbanded hundreds of thousands of military braves following the defeat of the Taiping rebels. The procedure adopted here was not a regular one. It was usually called “execution on the spot” (jiudi zhengfa 就地正法), meaning that the offenders could be summarily executed at a place convenient to regional authorities. During the Taiping Rebellion, local officials and militia were bestowed with extensive powers of summary execution. The scope of this exceptional penalty was slightly restricted after the war, but the Qing court continued to allow regional authorities to execute several types of offenders without completing the judicial review process. By the end of Qing dynasty, the primary categories of those targeted for summary execution included “local bandits” (tufei 土匪) and “thieves on horseback” (mazei 馬賊), “roaming braves,” and “sect bandits” (huifei 會匪).3 Through the legislation of special laws, the Qing court bestowed on regional officials its ultimate power of taking life at the cost of loosening imperial control. Before the epidemic of summary executions, the mandatory procedure for reviewing death sentences was to send capital cases from local authorities all the way to the central government. The county magistrate usually conducted the first round of investigation. After the initial adjudication, the capital cases were supposed to be sent to the prefect, circuit intendant (daoyuan 道員 or daotai 道台), surveillance commissioner (anchashisi 按察使司), governor, governor-general, and then the Board of Punishment. Cases sentenced to suspended execution (jianhou 監候) were sent to the annual Autumn                                  3 These four categories were stipulated in the Summary Execution Guideline of 1882. See Kun Gang 崑岡 et al., Da Qing huidian shili 大清會典事例 (The Precedents of the Collected Statutes of the Great Qing) (Beijing: Zhonghua shuju: 1991), Xingbu, juan 850, Guangxu 8 nian, vol. 9, 1232b–1233a.   3  Assizes (qiushen 秋審). This procedure usually took years, and in many cases the penalty was converted to a lighter one. In imminent-execution (lijue 立決; or “execution without delay”) cases,4 offenders were supposed to be executed right after the adjudication at the central level, yet such speedy punishment still took up to two to three years to complete under the review process.  The case at Shanyin certainly did not follow these procedures. It took only one month to complete the entire process. The Board of Punishment had no chance to hear about this robbery. Local officials probably even avoided sending the case to the governor or other provincial-level authorities. Despite all these rough and somehow arbitrary procedures, no one seemed to care and dispute the judgment. Local people might not have known where these criminals were from. They had long heard about vicious “roaming braves.” In their eyes, these wanderers acted like demons and should be executed in the most severe way. Partly because of the simplified procedure, only a few records remain regarding those summarily executed during the nineteenth century. The death penalty in the centralized Qing legal system was regularly scrutinized in a sophisticated way. The majority of capital cases were closely analyzed in accordance with the established precedents. These records were primarily stored in the Conspectus of Penal Cases                                  4 Here, I translate lijue as “imminent execution” in order to distinguish it from jixing zhengfa (即行正法), which, in this dissertation, is translated as “immediate execution.” In actual practice, jixing zhengfa was used to deal with cases that were more urgent than lijue cases. The latter was required to go through the regular review procedure, while the former could be conducted through the secret memorial system. The Yongzheng emperor was one of the earliest emperors who stated that immediate execution (jixing zhengfa) was a specific category of death penalty that should be considered more severe than imminent execution (lijue). See Qing shilu, Shizong shilu, 79: 31a–31b, March 2, YZ7 (1729).  4  (xing’an huilan 刑案匯覽), Routine Memorials of Board of Punishment (xingke tiben 刑科題本), Memorial Drafts of the Board of Punishment (xingbu zoudi 刑部奏底), and several collections of Autumn Assizes precedents. Unlike these records, central government rarely kept records of those cases finalized at the regional level. Only those that had been reported to the throne or for which edicts granting immediate execution (usually called qingzhi jixing zhengfa 請旨即行正法) were requested had records in the Qing Veritable Records (Qing shilu 清實錄), Palace Memorial Archives (gongzhongdang 宮中檔), and Grand Council Archives (junjichu dang 軍機處檔). Except for those recorded in these documents, summary execution cases were systematically excluded from official documents. During the late Qing period, thousands of men were executed annually through this procedure, and their identities remained unknown. Even in newspapers, officials’ memoirs, private journals, and other local archives, many records only kept the ringleaders’ names and brief descriptions. To the imperial centre, these cases did not deserve preservation and analysis. Individuals involved in these types of cases were supposed to be swept without mercy. They were arrested and quickly executed. Like the drifting status of roaming braves, all the events surrounding the convicts were just gone with the wind.  This dissertation explores the history of these forgotten executions that were widely practised in late Qing China. While tracing the roots of this practice back to ancient times, this study points out that summary execution initially boomed in the eighteenth century and then sharply increased during the nineteenth and early twentieth centuries. Various factors contributed to the rise of hastened death penalties. The population growth and the increasingly overburdened judicial system were two among  5  the many major reasons for this change during the prosperous Qianlong reign (1735–1796). By 1794, the nation’s population reached over 313 million, doubling the population of a century earlier.5 The explosive population created a series of social problems, including scarcity of land, an increased number of vagrants and “rootless rascals” (guanggun 光棍; literally “bare sticks”),6 emerging migration and conflicts between indigenous people and migrants, and a flood of litigations and popular protests.7 From 1736 to 1775, the number of manslaughter cases related to lands and debts increased from around 420 to over 1600 per year.8 Following the 1780s the number of Autumn Assizes cases continuously increased until the end of eighteenth century.9 In response, the Qianlong emperor (1711–1799) extensively used the “king’s order” (wangming 王命) to permit regional authorities to execute serious criminals without following the regular review procedure. New institutions such as the Grand Council and palace memorials enabled the Qianlong emperor to complete this reform from the top. The emperor particularly increased the use of secret memorials (zouben 奏本) in order to                                  5 Susan Naquin and Evelyn S. Rawski, Chinese Society in the Eighteenth Century (New Haven: Yale University Press, 1987), 106–12. 6 Considering both social and legal meanings of the term guanggun, Matthew Sommer argues that “rootless rascals” is a more idiomatic translation than “bare sticks.” See Matthew Sommer, Sex, Law, and Society in Late Imperial China (Stanford: Stanford University Press, 2000), 97. 7 On the rise and institutionalization of popular protest during the mid-Qing period, see Ho-fung Hung, Protest with Chinese Characteristics: Demonstrations, Riots, and Petitions in the Mid-Qing Dynasty (New York: Columbia University Press, 2011). On the practice of capital appeal during the Qing dynasty, see Li Dianrong 李典蓉, Qing chao jingkong zhidu yanjiu 清朝京控制度研究 (Capital Appeals during the Qing Dynasty) (Shanghai: Shanghai guji chubanshe, 2011); Jonathan K. Ocko, “I’ll Take It All the Way to Beijing: Capital Appeals in the Qing,” Journal of Asian Studies 47, no. 2 (1988): 291–315. 8 Thomas Buoye, Manslaughter, Markets, and Moral Economy: Violent Disputes over Property Rights in Eighteenth Century China (Cambridge: Cambridge University Press, 2000), 237–38. 9 Sun Jiahong 孫家紅, Qingdai de sizing jianhou 清代的死刑監候 (Capital Punishment with Delay in the Qing Dynasty) (Beijing: Shehui kexue wenxian chubanshe, 2007), 332–33.  6  avoid the protracted procedure of routine memorials (tiben 題本) where the Board of Punishment had to carefully review each cases. However, throughout the Qianlong reign, the problems of protracted judicial process and the increased number of underclass and the threats to the authorities—including the conveniently defined “wicked people” (diaomin 刁民)—remained unresolved and the court continued to institutionalize this informal punishment. On the other hand, the expedient approach also created new problems for the Qing Empire. Since the Qing court extensivled bestowed the power of summary execution on regional authorities, this procedure had evaded central authority over the death penalty and enhanced political intervention in the judicial process.  During the nineteenth century, the rapidly changed society forced the imperial court to adjust its approaches toward local armed groups and violent elements. The rise of local armed groups and the increase of banditry and rebellion changed the way people approached security. During the Taiping Rebellion (1850–1864), the Qing court authorized local officials and militia to inflict the death penalty. Heterodox and orthodox forces co-existed in what Philip Kuhn calls the “parallel hierarchies of militarization,” in which “the same kinds of linkages and the same levels of organization would [then] be visible within both the orthodox, gentry-dominated Confucian culture and the various heterodox, secret-society-dominated sectarian subcultures.”10 The militarization eventually led to a culture in which “soldiers and bandits were indistinguishable” (bing fei bufen 兵匪不分) and blurred the boundaries between legality and illegality.11 As a                                  10 Philip A. Kuhn, Rebellion and Its Enemies in Late Imperial China: Militarization and Social Structure, 1796–1864 (Cambridge: Harvard University Press, 1970), 165–88. 11 Diana Lary, Warlord Soldiers: Chinese Common Soldiers, 1911–1937 (Cambridge: Cambridge University Press, 2010), 59.  7  result, as this dissertation argues, summary execution as a death penalty practice profoundly influenced by both formal and informal forces was not merely a product of a “chaotic times.” Instead, it was integral to a wide variety of legitimation processes and was a product of social and political transformations before the advent of disastrous warfare. The influence of summary execution went far beyond the Taiping Rebellion. After the fall of the Taiping Kingdom in 1864, summary execution was an element in the power conflicts between central and regional governments over the regulation of authority over punishment. The Qing court attempted to restore the regular procedure for the death penalty, but financial constraints and the emerging social unrest forced the court to retain the regional officials’ power of quick execution. Following the humiliating Boxer Rebellion of 1900, the imperial centre faced stronger pressure from reform-minded officials and intellectuals. It was forced to abolish the death penalty by slow slicing (lingchi 凌遲) and other cruel punishments.12 Yet it further extended the use of summary execution to “allow the populace to witness the execution and thus make them feel vigilant and prudent.”13 The following decades witnessed the introduction of a Western legal system that tended to protect the defendant’s right to a fair trial. But the Republican state, regardless of its political orientation in Beijing, Nanjing, or Chongqing, continued the use of summary execution in a series of campaigns against “banditry,” “local strongmen” (tuhao 土豪), “evil gentry” (lieshen 劣紳), and those acting “counter-                                 12 For an analysis of this reform and its cultural and political backgrounds in a comparative perspective, see Timothy Brook, Jérôme Bourgon, and Gregory Blue, Death by a Thousand Cuts (Cambridge: Harvard University Press, 2008). 13 Zhengzhi Guanbao 政治官報 (Political Government Gazette) 172, March 21, 1908, 7–8.  8  revolutionary” (fangeming 反革命) or “endangering the Republic” (weihai minguo 危害民國).  Mobilized justice reached its height under the party-state system of the Nationalist Party (Guomindang or Kuomintang 國民黨, a.k.a GMD or KMT) and the Chinese Communist Party (Zhongguo gongchandang 中國共產黨, a.k.a. CCP). Eventually, such mobilized justice, featuring the style of “enemy-hunt” persecution, laid the foundation for the collective violence during the 1950s and the subsequent Cultural Revolution (1966–76). From the development of summary execution, one can see that this practice—while defined as an extraordinary and even “rule-breaking” institution—was continuously sanctioned and legitimized by both central and regional authorities. Critics of this practice had long asserted its rash and irregular nature. Yet this procedure was particularly helpful in resolving various crises, and thus both government and the populace gradually acclimated to the extensive use of this exceptional penalty.  The epidemic of summary execution provides a unique window into the examination of Chinese law. While previous studies tend to adopt an “arbitrary vs. rational” dichotomy, the practice of summary execution transcends these two extremes. How, in the end, should we view the nature of imperial Chinese law, particularly considering its dramatic changes during the late imperial era? How does the case of summary execution help us understand the constructive forces of this so-called “lawless” (wufa wutian 無法無天) practice and its role in mid-and-late Qing Chinese society in a broader context? Further, how does it help us reevaluate the conventional “impact-response” model and the associated “legal modernization” thesis that both presume that  9  the centuries long Chinese legal system remained static and essentially unchanged until the advent of Western laws?  During the late nineteenth and early twentieth centuries, when China underwent its largest campaign of rough justice, it was not alone because Europe, the United States, and various other nations also encountered similar trends. How did the rise of Chinese summary execution resemble and differ from its Western counterparts and other civilizations in the history of rough justice around the globe? How does all of this help us challenge the conventional thesis that views Western law as “civilized” and Chinese law as “barbaric”?  Routine and Arbitrary Power in Chinese Law Like many non-Western legal traditions, imperial Chinese law was perceived as “cruel” and “barbaric.” Roughly since the eighteenth century, Western observers viewing China through the lens of the Enlightenment, had depicted China’s legal practice as part of its “despotic” tradition. Following the frequent contact between China and the West, missionaries and travellers produced abundant accounts about Chinese judicial processes. Images of punishment practices—especially the notorious execution by slow slicing—appeared in illustrations and then photography before the end of the Qing dynasty. These accounts and images inevitably contained exaggerated and distorted information, while many precious first-hand and second-hand records were also preserved through this  10  channel. The public demonstration of cruel punishments offered an intriguing window for Westerners to imagine and visualize China’s “legal cruelty.”14  However, while many Westerners celebrated progress in their judicial systems, they intentionally or unconsciously ignored the fact that their practice of torture had to a great extent been as cruel as Chinese extreme punishments.15 Not to mention that even after the translation of the Great Qing Code, which contained a dedicated system of laws and precedents, Western observers continuously described the Chinese judicial process as arbitrary and ruthless.  Even though some observers noticed China’s advanced civilization, the majority of critics focused on the “backward” characteristics of Chinese politics and legal system. Few had noticed that, at the central level, the Chinese state had long employed established rules and legal reasoning in adjudication. While criticizing the arbitrariness of Chinese law, Western observers neglected the multilayered judicial review procedure that had been practised throughout late imperial times. As a result, most scholars perceived                                  14 For the construction of Chinese “legal cruelty,” see Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press, 2015); for the imagination about “execution by slow slicing” and the surrounding narratives from both Western and Chinese observers, see Brook, Bourgon, and Blue, Death by a Thousand Cuts; for the history of legal Orientalism, see Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press. 2013). On the other hand, China’s strong bureaucracy also appealed to many Euro-American observers. As Ruskola notes, similar with their European precedents, the Founding Fathers of America also held up China as “an example of a secular empire run by a rationally organized bureaucracy.” See Ruskola, Legal Orientalism, 46. 15 An excellent example of European harsh and torturing punishment can be seen in Michel Foucault’s gruesome opening section of Discipline and Punish. See Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Random House, 1977). For the comparatison between European and Chinese cruel punishments in history, see Brook, Bourgon, and Blue, Death by a Thousand Cuts.  11  Chinese law as arbitrary and despotic. The vivid account and visual representation of the death penalty reinforced the image of China’s legal cruelty. The continued critiques of the Chinese legal system reflect not only the ways Westerners perceived others but also the ways they constructed and reconstructed themselves. In Death by a Thousand Cuts, Timothy Brook, Jérôme Bourgon, and Gregory Blue point out that travellers from the West, while deeply immersed in the idea that framed execution as “a redemptive ordeal through which the victim is prepared for judgment in the afterlife,”16 had constantly used the scenes of death by slow slicing as a vivid example of China’s “illegitimate and barbaric” legal system.17 Many observers visited the execution sites with an “ambivalent alternation between repulsion and fascination.”18 Their accounts reflected the “rhetoric of Western superiority that rewrote Western fantasy as Chinese reality.”19 Similarly, Teemu Ruskola in his Legal Orientalism: China, the United States, and Modern Law points out that while America sees its law as “particularly universal,” it sees its Chinese counterpart as “universally particular.”20 The American authorities continuously constructed Chinese law as barbaric                                  16 Brook, Bourgon, and Blue, Death by a Thousand Cuts, 206. 17 Brook, Bourgon, and Blue, Death by a Thousand Cuts, 209. 18 Brook, Bourgon, and Blue, Death by a Thousand Cuts, 220. 19 Brook, Bourgon, and Blue, Death by a Thousand Cuts, 247. 20 According to Ruskola, the concept of “legal Orientalism” refers to “the ways in which ‘the Orient,’ as well as the Euro-American ‘West,’ have been produced through discourses of law.” Even today, when China has introduced a large number of modern laws, legal Orientalism is still present and thus China’s law reform—like its previous experience of extraterritoriality—can be viewed as “a colonialism without even colonizers.” On the other hand, Ruskola also notices that in the post-1980s period, “[t]he modern Chinese legal subject is not just a (poor) reproduction of its Euro-American counterpart.” After having been “clothed in the legal garb of modern citizenship,” Chinese subjects are able to utilize the new laws to fight against “their employers, landlords, each other, and even the state.” Ruskola, Legal Orientalism, 5, 199, 208, 213. Here, my concern is not about theoretical orientation. Instead, I try to contextualize my work in the extant studies of Chinese legal culture and practice.  12  partly because the United States intended to rationalize its privilege of extraterritorial jurisdiction in China. At the same time, following the flood of Chinese immigrants, American legislation and the Supreme Court justified anti-Chinese laws partly based on the thesis that Chinese citizens were not as “civilized” as Americans.21 The construction of the narratives about Chinese legal cruelty came not only from Western critics but also from Chinese literati before and after the Western impact. Death by a Thousand Cuts vividly reveals how Chinese literati criticized the practice of slow slicing and, particularly during the “New Policies” period following the humiliating results of Boxer Rebellion of 1900, their voices were adopted and led to the abolition of cruel punishments.22 The complex construction of the image of Chinese law was, as Thomas Buoye asserts, full of “obfuscation and obstruction.” Chinese and European actors misinterpreted the laws in part to negotiate their rights or exaggerate the other side’s negligence.23 As a result, Li Chen further argues, the conflicts and interactions between China and the Western powers created “contact zones” in the field of law in which “modern Sino-Western cultural or racial boundaries have been asserted, contested, or normalized, both intellectually and institutionally.”24 While scholars in the West sought an understanding of Chinese law, they did so not only because of the need for knowledge, but also out of the need to understand the                                  21 Ruskola, Legal Orientalism, 9, 143. 22 Brook, Bourgon, and Blue, Death by a Thousand Cuts, 96. 23 Thomas Buoye, “‘Hunyao shiting’: Xifang ren de Zhongguo falü guan: yuanyu yapian zhanzheng zhiqian de cuowu renzhi” ‘混淆視聽’: 西方人的中國法律觀—源於鴉片戰爭之前的錯誤認知 (Obfuscation and Obstruction: The Pre-Opium War Origins of Western Misperceptions of Chinese Law), trans. Wang Zhixi 王志希, in Falüshi yiping (2013 nian juan) 法律史譯評 (2013年卷) (Legal History Studies 2013), ed. Zhou Dongping 周東平 and 朱騰 Zhu Teng, 272–92 (Beijing: Beijing daxue chubanshe, 2013). 24 Chen, Chinese Law in Imperial Eyes, 10.  13  modern world and the modernity of Western civilization. Max Weber’s categorization of the Chinese magistrate’s adjudication as “kadi justice,” a type of justice which is “substantive” and “irrational” rather than formal and rational, can be seen as a typical perspective of late nineteenth- and early twentieth-century Europeans concerning the nature of Chinese law. Even though the study of Sinology and Chinese law and political institutions has advanced in the last century, such a Eurocentric view persists. David Buxbaum, in his pioneering essay in the 1970s on traditional Chinese “civil procedure,” warned his colleagues to avoid reaffirmation of the prevailing view of traditional Chinese law, which was derived from “ethnocentrism,” “extreme relativism,” and “pro-Western” ideology.25 Thomas Buoye also observes how European imperialism during the late nineteenth century condemned the cruelty and backwardness of Chinese law in order to justify its extraterritoriality. Such an attitude reinforced the prevailing notion that Chinese law was not mature and rational, and thus made many Western scholars ignore the significance of the Chinese legal tradition.26 The enduring reproduction of the narratives highlighting Chinese legal cruelty also reveals how conventional perspectives neglected the complex practice of Chinese laws and the dynamics within the system. The lenses of “rationality” and “civilization” not only reinforced the view that the force of modernity could sweep away all the old and “backward” medieval legacies but also impacted the ways modern scholars approached the Chinese legal tradition. But at a deeper level, at least in the perception of Chinese                                  25 See David Buxbaum, “Some Aspects of Civil Procedure and Practice at the Trial Level in Tanshui and Hsinchu from 1789–1895,” Journal of Asian Studies, 30.2 (1971): 255-79. 26 See Thomas Buoye, “Sifa dang’an yiji Qingdai Zhongguo de falü, jingji, yu shehui de yanjiu” 司法檔案以及清代中國的法律, 經濟, 與社會的研究 (Law, Economy, and Society: Recent Trends in Chinese Legal Studies in the United States), trans. Pengsheng Chiu 邱澎生, Fazhishi yanjiu 法制史研究 (Legal History Review) 4 (2003): 217-244.  14  political structure and monarchical system, the majority of views perceived China’s system as “rule of man” and depicted the Chinese emperor as the ultimate power that stood on top of the imperial legal system. Many scholars, while noticing the bulky statutory system, stressed the “despotic” feature of the emperor having the final power to decide death sentences. Despite the establishment of a judicial review system, Chinese law had not developed any equivalent of what is called the “doctrine of the presumption of innocence” and “due process” in the modern Western legal system. The Chinese empire established the Censorate agency in the early imperial period. In contrast to the Western “checks and balances” system, the supervisory agency in China was directly responsible to the emperor. All of these things suggest that the ultimate authority in the imperial Chinese legal system was the emperor, not judicial officials or other institutions. Here, one should notice that China had developed a sophisticated legal studies tradition to restrict abuse of power in adjudication, particularly since the Tang (618–907 CE) and Song (960–1279 CE) Dynasties. The gradually expanding legal compilations included case collections, law interpretations, personal notes and memoirs, and instructions to officials, legal advisors, and other law-related practitioners. At the central level, the judicial officials during the Ming (1368–1644) and Qing (1644–1912) Dynasties further developed delicate legal reasoning. The major purpose of this sophisticated system was to unify the scales of justice and standards of adjudication. The judicial review system placed regional adjudications of felony cases under the supervision of central judicial authorities. Moreover, the legal reasoning of central judicial officials not only restricted the power of local officials but also restricted the ultimate power of the emperor in judicial procedures. The compilation of legal precedents  15  and the analogy of relevant legal cases constituted a relatively rational and predictable adjudication mechanism. Even when the emperor intended to use his own power to intervene in the decisions, he still had to consider the established statutes and precedent system. As Philip Kuhn asserts, the Qing political system constituted a “bureaucratic monarchy” in which the monarch was as “ambivalent toward formal administrative procedures” as his bureaucratic subordinates and yet at the same time he was highly concerned to “maintain his own distinctive position, his extra-bureaucratic power and autonomy.”27 The paradoxical combination of routine and arbitrary power also reflected the intriguing nature of what Shiga Shūzō (滋賀秀三) calls the “mandatory procedure of repeated adjudication” (hitsuyōteki fukushin 必要的覆審) in the case of felony crimes (zhong’an 重案).28 On the one hand, the multitiered inspection and the repeated memorial procedures restricted the power of bureaucrats and the emperor. On the other hand, the throne possessed the final authority in the death sentence, ensuring that the power of taking life was in the hands of the sovereign and that the state law was an expression of the emperor’s will. In actual practice, the Nine Ministers’ (jiuqing 九卿)29 opinions and                                  27 Philip A. Kuhn, Soulstealers: The Chinese Sorcery Scare of 1768 (Cambridge: Harvard University Press, 1990), 190. In addition, Josephine Chiu-Duke in her study of Lu Chih (Lu Zhi; 陸贄) during the mid-Tang period also argues that the ruler-minister relation was an “unbalanced symbiosis” because the emperor had the arbitrary power to replace members of the bureaucracy and “the power of the bureaucracy as a pressure group vis-à-vis the throne was greatly weakened.” See Josephine Chiu-Duke, To Rebuild the Empire: Lu Chih’s Confucian Pragmatist Approach to the Mid-T’ang Predicament (Albany: State University of New York Press, 2000), 192. 28 Shiga Shūzō 滋賀秀三, Shindai Chūgoku no hō to saiban 清代中国の法と裁判 (Law and Justice in Qing China) (Tokyo: Sōbunsha, 1984), 23–39. 29 Nine Ministers is a collective body of major high officials in the central government. For a brief discussion of the organization of Nine Ministers in Qing dynasty, see Frederic Wakeman Jr., The Great Enterprise: The Manchu Reconstruction of Imperial Order in Seventeenth-Century China, vol. 1 (Berkeley: University of California Press, 1985), 852.   16  existing political ideologies, including the discursive tradition of benevolence and the consideration of the harmony of human-nature, not only prevented abuses of power but also reduced the number of executions after the annual Autumn Assizes.  In their classic study on the Conspectus of Penal Cases, Derk Bodde and Clarence Morris demonstrate how the emperor and central judicial officials elaborated norms for behaviour, organized different realms of legal cases, and tried to match each case with a proper punishment.30 Klaus Mühlhahn’s recent study, Criminal Justice in China: A History, also suggests that imperial Chinese criminal justice was seeking the “right degree of pain” and that “through a complex system of reviews, balances, and double checks, the Board of Punishment and the emperor exercised fairly stringent control over the criminal justice system.”31 In the eighteenth century, an increased number of convicts waited for several years or even decades before their final sentences. As Thomas Buoye argues, this “lingering imprisonment” not only became a de facto punishment but also reflected the presentation of Qing criminal justice as benevolent.32 In turn, the gradually increased delayed executions posed a challenge to the already overburdened judicial system. While the bureaucratic monarchy and multitiered judicial review procedures had significantly restricted the power of the emperor and judicial officials, the financial constraints and rapidly changing social circumstances also affected the process of                                  30 See Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Cambridge: Cambridge University Press, 1967).  31 Klaus Mühlhahn, Criminal Justice in China: A History (Cambridge: Cambridge University Press, 2009), 55-56. 32 Thomas Buoye, “Death or Detainment: The Dilemma of Eighteenth-century Chinese Criminal Justice,” paper presented at the International Workshop on Chinese Legal History, Culture and Modernity, Columbia University, May 4–6, 2012.  17  adjudication and law enforcement, particularly when the prosperous empire encountered a series of crises during the eighteenth and nineteenth centuries. If even the rigidly scrutinized felony case procedure encountered the tensions between routine and arbitrary power, it is not surprising that the relatively loosely regulated realm of “trivial matters” (xishi 細事) encountered similar challenges from both social and political dynamics. Scholars have long wondered whether imperial China had ever established a set of predictable rules for minor disputes and offences. Cases regarding land, debt, and marriage disputes constituted the largest proportion of local judicial cases. While scholars have noticed the field of what they call “customary law” (xiguanfa 習慣法) and a variety of practices that were arranged by private individuals and even acknowledged by local officials, many perceive this realm as driven and operated by social relations and local dynamics. As scholars assert, the normative nature of law governing “civil cases” was much less rigid and stable than those adjudicated through multitiered judicial review. As a result, when Philip Huang challenged the thesis of Chinese law’s “irrational” characteristics with a unique approach to and revision of Weber’s theory, a fierce debate was triggered between established scholars from Japan and the United States.33 According to Huang, even for cases involving “trivial matters,” which were allowed to be finalized at the level of the magistrate’s court without being scrutinized by superior                                  33 Their debate came to the surface when scholars on both sides attended a conference entitled “Law, Society, and Culture in Late Imperial China” in Japan in 1996. For more details about the debate at this conference, see Terada Hiroaki 寺田浩明, “Qingdai minshi shenpan: xinzhi ji yiyi—rimei liangguo zhijian de zhenlun” 清代民事審判: 性質及意義 - 日美兩國之間的爭論 (Civil Justice in the Qing: Nature and Significance—The Debate between Japanese and American Scholars), trans. Wang Yaxin 王亞新, Beida faxue pinlun 北大法學評論 (Peking University Law Review) 1.2 (1999): 603–17.  18  judicial officials, magistrates usually followed the rules derived from the “original spirit of the statute” to protect litigants’ “legitimate interests.”34 Huang finds that Max Weber’s term “substantive rationality,” which Weber himself did not elaborate well, can be a useful category for conceptualizing the Chinese legal system. On the one hand, imperial Chinese law was “substantive” because the will of the ruler was the sole legitimate source of authority for all laws; the law was guided by moral principles, and judicial process emphasized the real truth rather than the courtroom truth. On the other hand, a certain degree of predictability or consistency or universality can be found in Chinese law, and this can prove the “rational” nature of the Chinese legal system. Given that the statute was the extension of the ruler’s will, based on “estimations of heavenly principles and considerations of human compassion,” and that the “original spirit of the statute” was applied to cases in magistrates’ trials, for Huang the Qing “formal” justice can be taken as embodying “the twin paradoxical dimensions of substantivism and rationality.”35 Huang’s theory challenges the thesis that Chinese law was arbitrary and repressive. He argues that even though in theory Qing law contained an official ideology of absolute power for the ruler and there were no “rights” in the sense of rights guaranteed by law independent of administrative power, in actuality local courts consistently upheld property and contract rights.36 Based on his examination of the nature and function of formal and informal justice, Huang indicates an intermediate sphere of judicial practice in which the formal adjudication of the magistrate’s court interacted with informal community mediation to form a “third realm” of local dispute resolution. In this                                  34 See Philip Huang, Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996), 82. 35 See Huang, Civil Justice in China, 224–29.  36 See Huang, Civil Justice in China, 108.   19  realm, disputes were resolved not only by magistrates but also by the local gentry and elites. While Huang perceives that the codified laws played a significant role in both the formal and informal realms, he argues that it was only in the third realm that formal and informal justice operated on relatively equal terms, as long as that justice worked within the boundaries set by codified law.37 Huang is astute in pointing out the various competing mechanisms in Chinese law, including the “substantive rationality” and what he calls the paradoxical combination of “representation” and “practice.” He views codified law as an irresistible force that penetrated almost every realm in Chinese legal culture. Even in civil justice where the state and bureaucrats granted a large degree of flexibility and expediency, law was still a visible force and the ultimate power of the rulers had to give way to rights and the established rules. However, Huang fails to deal with the changes of policies and the dynamic relations between actors at the regional and central levels. His “third realm” certainly offers a great framework for observing the interaction between formal and informal forces, but his static approach can hardly explain why these factors connect with each other and how their connections related to changing circumstances.  Contrary to Huang, Shiga Shūzō, who was the leading scholar in Japanese studies of Chinese legal history, proposed to use “source of law” theory, which primarily consists of qing (情; human sentiment, circumstances, or social relation), li (理; reason), and fa (法; law). The consideration of “qing” reveals that local officials took into account the matters of local dynamics and social relations. Borrowing ideas from D. F. Henderson’s study on law in Tokugawa Japan, Shiga proposes his famous concept of “didactic                                  37 See Huang, Civil Justice in China, 9–10, 110, 135–37.   20  conciliation,” in which local cases were not strictly tried according to the law. To Shiga, such processes showed a certain degree of arbitrariness, but they were under a larger framework of “qing-li-fa” structure as local authorities always sought to build a balance between various competing forces.38 What is intriguing here, however, is that both Huang and Shiga fall into the trap of a static and even rule-oriented model. Although Shiga attempts to avoid bending Western concepts into the Chinese context, he always examines whether or not Chinese “custom” or “qingli” (情理) can be taken as a “source of law,” which in the Chinese context has a similar but still different definition and function from that of the West.  Following Shiga, another Japanese scholar, Terada Hiroaki (寺田浩明), switches the discussion from codified law and “source of law” to the formation process of dispute resolution. Terada follows Shiga’s view that Chinese “qing,” “li,” and “fa,” in comparison with European law, lacked stability and a positive nature and thus could not play the role “law” played in Europe. He criticizes Philip Huang and Morita Shigemitsu’s (森田成滿) thesis that Qing justice “protected people’s rights” and argues that magistrates did not follow any objective rules when they adjudicated civil cases.39 However, Terada also observes how Qing China experienced a great transformation in terms of expanding markets and increasing land disputes. In the actual cases in a                                  38 See Shiga Shūzō, “Qingdai susong zhidu zhi minshi fayuan de gaiguazing kaucha: qing, li, fa” 清代訴訟制度之民事法源的概括: 情, 理, 法 (A General Survey of the Sources of Law in Qing Civil Justice: Qing, Li, and Fa), in Shiga Shūzō, Terada Hiroaki, Kishimoto Mio 岸本美緒, and Fuma Susumu 夫馬進, Ming-Qing shiqi de minshi shenpan yu minjian qiyue 明清時期的民事審判與契約 (Civil Justice and Civil Contract in the Ming-Qing Period), trans. Wang Yaxin, (Beijing: Falü chubanshe, 1998), 19-53. 39 See Terada Hiroaki, “Quanli yu yuanyi” 權利與冤抑 (Rights and Wrongful Judgment), in Shiga, Terada, Kishimoto, and Fuma, Ming-Qing shiqi de minshi shenpan yu minjian qiyue, trans. Wang, 193-196.  21  magistrate’s trial, the disputants usually claimed that their legitimate interests had been harmed by the opposing party so that these disputants resorted to the judicial process to “give voice to injustice” (shenyuan 伸冤; or “clear up the wrongful deeds or false charges”).40 Thus it would appear that the disputants possessed a certain degree of “rights” or “property rights,” especially from land. How should one link non-positive “law” with marketizing land “rights” and the discourse of “clearing up wrongful deeds or false charges”? Terada suggests that there is a need to return to the spatial structure in which members of the community usually competed with others where magistrates could only propose temporary solutions to settle conflicts over “rights.”41 Most modern scholars tend to follow the imperial classification of “trivial matters” and “felony crimes.” Yet in actual practice, merely imposing strict bureaucratic scrutinizing did not necessarily make the review procedures rational and impartial. In her study on the memoir of a Shanghainese named Yao Tinglin (姚廷遴, 1628—?), Kishimoto Mio (岸本美緒) found that various felony crimes were settled through informal procedures, and even manslaughter cases could be mediated without following the mandatory review procedure.42 As my research has shown, the diary of a late Qing village gentry, Zhang Gang (張棡, 1860—1942), clearly demonstrates that local feuding cases involving the death of more than ten people could be mediated and compensated                                  40 See Terada, “Quanli yu yuanyi,” 214–18.  41 See Terada, “Quanli yu yuanyi,” 217–18.  42 Kishimoto Mio, “Qingchu Shanghai di shenpan yu tiaojie: yi li nian ji wei li” 清初上海的審判與調解: 以<歷年記>為例 (Trial and Mediation in Early Qing Shanghai: Linian ji), in Jinshi jiazu yu zhengzhi bijiao lishi lunwen ji 近世家族與政治比較歷史論文集 (Family Process and Political Process in Modern Chinese History), ed. Zhongyang yanjiuyuan jindai shi yanjiusuo 中央研究院近代史研究所, 238–57 (Taipei: Zhongyang yanjiuyuan jindai shi yanjiusuo, 1992).   22  between local families with merely light intervention of the county magistrate.43 Although the limitation of sources prevents us from further examining the overall picture of the process of reviewing capital crimes, many local sources suggest that expediency and informality were not uncommon in the adjudication of serious crimes. Local feuding was one among many violent conflicts frequently finalized by mediation or lighter punishment in late imperial China. Apparently, many felony crimes did not go through a rigid review process. They were handled in a flexible manner with the consideration of local dynamics and relevant social and economic issues. Moreover, some informal and even “illegal” practices were sanctioned within the bureaucratic system. According to Bradley Reed, personnel working in local government performed a range of critical tasks that were indispensable parts of the local administration. However, these personnel were not officially admitted by the governmental statutes and were even forced to collect a customary fee from ordinary people. Most people regarded these clerks and runners as “rogues,” “wastrels,” and “unaccountable troublemakers” devoted solely to their own profit.44 To modern scholars, yamen clerks and runners are particularly difficult to fit into the Weberian conceptual schema and administration. Based on the trajectory of Europe, Weber characterized a modern bureaucratic organization as being both legal and rational. The bureaucracy, in Weber’s view, must be regulated by statutes and separate the person of the office holder from the authority and functional utility of the office itself. Under the influence of Weber,                                  43 Weiting Guo, “Living with Disputes: Zhang Gang Diary (1888–1942) and the Life of a Community Mediator in Late Qing and Republican China,” Journal of the Canadian Historical Association 24, no. 2 (2013): 218–62.  44 Bradley W. Reed, Talons and Teeth: County Clerks and Runners in the Qing Dynasty (Stanford: Stanford University Press, 2000), 2–4, 29, 149.   23  most studies have focused on the statutory structure rather than the practice of governmental personnel and even view runners and clerks as a “dangerously disconnected group”—disconnected from both state and society.45 As Reed argues, these perspectives do not fit the Chinese context. The imperial Chinese bureaucracy identified with charismatic, traditional, and highly personal Confucian moral ideas. Clerks and runners were outside the statutory order and they relied largely on personal bonds. These extrastatutory personnel enjoyed certain authority given by the government, and they “sought to validate their positions and careers by articulating claims to the social and political utility of their role as bureaucratic functionaries and administrative specialists.” In this sense, as Reed argues, clerks and runners achieved what might be called an “illicit legitimacy” which contains rationalized and rule-driven elements.46 He argues that one should not simply deny the legitimacy of these administrative functionaries by claiming their “illicit” nature. One should not take them to be deviant because the rules that were established by the groups of clerks and runners themselves brought them under a certain degree of control. Reed’s argument offers a fresh and insightful reminder that Chinese bureaucracy cannot be understood using a European model or other external idea of “rationality.” Many “illicit” practices should not simply be viewed as illicit even if official discourses deemed them intolerable and listed them as targets of suppression. Here, we could borrow Philip Huang’s creative framework of the paradoxical combination of “representation” and “practice.” While state law and Confucian morality denounced institutions with illicit or immoral characteristics, in practice these institutions could be                                  45 See Reed, Talons and Teeth, 7-11.  46 See Reed, Talons and Teeth, 5-13; quotation from p. 12.  24  widely accepted and even become an integral part of local governance. This was especially the case of summary execution, which had been torn between formality and informality ever since its initial surge. The Qing court continuously made summary execution “exceptional” even during its peak during the Taiping Rebellion. While bandit suppression certainly served as the core realm of summary execution, the Qing authorities extended the use of this “extralegal” instrument and routinized its procedure. Why did this extralegal practice emerge and challenge the existing criminal justice system? How did the emperor and judicial officials manipulate and negotiate the operation of this exceptional procedure? How did ordinary people and social organizations respond to the reform from the government and the gradually epidemic practice of quick execution? How did this punishment, which had never been listed as a formal institution, formulate the politics of exception in modern Chinese criminal justice? To understand fully the practice of this institution, it will be helpful briefly to discuss the rise of summary execution in Qing history. More importantly, we have to link it with the greater development of Chinese society and politics, and see how it helps us understand the history of China, particularly from one of its most prosperous times to a period consistently perceived as the crisis of the nation.  The Evolution of Summary Execution in Chinese History To trace the history of “summary execution,” one first has to define the meaning and scope of this term. The imperial Chinese legal system had long established regular and exceptional procedures for the death penalty. In different periods, dynastic rulers developed different procedures and punishments for judicial authorities or agents to  25  exercise quick justice. In order to analyze all these varieties of sped-up death penalties, this dissertation adopts a broad definition of summary execution. The term refers to an execution in which a person is immediately killed without completing the full regular judicial process. The procedure was not necessarily exceptional or informal, but it was exercised in a way that differed from the complete regular process. In adopting this definition, the analysis in this dissertation inevitably includes some sped-up executions that have been viewed as part of the regular death penalty. Some categories were in between summary execution and the regular process. Two examples include the procedures called “instant execution without consideration for the season” (budaishi 不待時) and lijue. The former category was established in the pre-Qin period. It applied to crimes involving dissident and heterodox elements, in which the criminal could be executed in a season that was considered to be a harmonious and flourishing period.47 The latter was primarily developed during the Ming and Qing Dynasties. Its origin could be traced to the Sui dynasty when “true capital crimes” (zhenfan sizui 真犯死罪) were excluded from consideration for amnesty or lighter punishment. During the Ming dynasty (1368–1644), the category of true capital crimes was further divided into execution in autumn and execution at any time. In the late Ming period, the distinction between lijue and jianhou (suspended execution; 監候) gradually took shape and became a formal distinction of capital cases in the Qing dynasty.48 Apparently, budaishi and lijue were exceptions to a certain segment of the death penalty. The former received complete investigation but was put into execution without further                                  47 Hu Xingdong 胡興東, Zhongguo gudai sixing zhidu shi 中國古代死刑制度史 (A Study of the Death Penalty System in Ancient China) (Beijing: Falü chubanshe, 2008), 51–52. 48 Hu, Zhongguo gudai sixing zhidu shi, 64–67.  26  waiting. The latter waived the final, thorough reassessment process, and the prisoner could be executed without long detention, but after the case had gone through all levels of regional adjudication. More importantly, both categories were formally stipulated as official categories of the death sentence. They can be viewed as summary execution because they omitted certain elements of the regular procedure, yet they are not entirely “summary” because both received relatively sufficient investigation before the final sentence. “Summary” or not, these procedures were not isolated from the broader range of punishments and legal measures. Dynastic rulers frequently adjusted the laws and sentences in accordance with social and political circumstances. Sometimes they increased the laws relating to the death penalty, but in practice adjusted the number of executions and altered the sentences to lighter punishment. Sometimes the rulers changed the criteria distinguishing lijue from jianhou. In turn, new challenges followed because the judicial officials had to re-define the appropriate penalties for other relevant or comparable offences. Even the distinction between felony crime punishment and trivial matter punishment was not as fixed as was expected. One example is flogging with heavy sticks (zhang 杖) and flogging with light sticks (chi 笞). Ever since the pre-Qin period, flogging was considered as a corporal punishment and an instrument to obtain confessions during the investigation. Throughout history, this punishment had been designed as the lowest-level punishment in the empire’s hierarchical system. However, in practice, regional officials frequently abused the penalty since the imperial court at times implicitly allowed officials to execute convicts by flogging. During the Tang dynasty (685–762) when the Chinese state increasingly centralized and standardized the use of the  27  death penalty, it also gradually sanctioned the informal punishment of “giving convicts a certain number of heavy strokes to execute them” (zhongzhang yidun chusi 重杖一頓處死). After the Tang dynasty, such penalties continued to flourish until the Ming state initiated a new wave of centralizing punishments. The increasing emergence of this informal death penalty was closely associated with the growing tensions between local officials and social powers. It also reveals that the state and officials created a space for judicial expediency as a way to respond to the increasingly centralized and standardized criminal system. As a result, to understand the rise and continuing flourishing of summary execution, one has to place it in the greater context of the changing social, economic, and political circumstances. Chinese rulers had long created a complex and protracted reviewing procedure to secure the outcome of adjudication and prevent any excessive use of power in regard to the death penalty. After a long, chaotic time in which regional authorities arbitrarily executed convicts through informal and military procedures, the Sui (581–619) and Tang rulers extensively increased imperial control over the practice of extreme punishment. The imperial court, to maintain the flexibility of punishment and the deterrent effect of the death penalty towards official and ordinary people, gradually increased the use of execution by flogging as an informal yet useful punishment to adjust the rigidity of imperial law. The emperor continued to possess the ultimate power of taking life while at the same time he also had to consider the discourse of benevolence and the benefit of converting a death sentence to exile and penal servitude, particularly when the state needed manpower in remote or undeveloped regions. Although the informal death penalty went through several declines in the following centuries, it existed  28  as an expedient tool for the emperors to battle in political struggles and punish unruly subjects without the restriction of gradually centralized laws. Centralizing the death penalty eventually reached a peak in the Ming and Qing Dynasties. The compilation of the imperial code and the expanding body of judicial precedents made the reviewing process increasingly detailed and protracted. At the same time, China encountered one of its largest legislations of the death penalty. The imperial court aimed to increase the possibility of including convicts in the broader category of death sentence. It divided cases of suspended execution into four categories in the reviewing process of the Autumn Assizes, including cases whose offences were verified (qingshi 情實), cases with deferral circumstances (huanjue 緩決), cases with the probability of receiving mercy (kejin 可衿), and cases with dubious causes for reducing the penalty (keyi 可疑).49 The classification enabled the emperor and judicial authorities to determine the pace at which to deal with each offence in accordance with its severity and investigation progress. On the other hand, as Brian McKnight points out, Ming-Qing rulers reduced the use of amnesty not only because of the increased statutory restriction but also due to the state’s dependency upon the semi-official dispute resolution mechanism.50 Sources reveal that the centralization of criminal justice came hand in hand with the increased use of the death penalty. Yet various competing phenomena, including the lingering imprisonment, the emergence of summary execution, and the rise of                                  49 Recent studies on the limits and politics of the Autumn Assizes include Li Chen, “Regulating Private Legal Specialists and the Limits of Imperial Power in Qing China,” in Chinese Law: Knowledge, Practice, and Transformation, 1530s to 1950s, ed. Li Chen and Madeleine Zelin (Leiden: Brill, 2014), 84–123.  50 Brian E. McKnight, The Quality of Mercy: Amnesties and Traditional Chinese Justice (Honolulu: University Press of Hawaii, 1981), chapters 5–6.  29  regional authorities and social powers, appeared as concurrent trends initially in the late Ming and subsequently during the Qing period. Whatever the reason behind the changes, the death penalty, as Timothy Brook argues, remained one of the purest expressions of China’s state sovereignty even as the state empowered its agents to execute the procedure on behalf of the state.51 During the latter half of the Ming dynasty, political struggle and social unrest compelled the imperial centre to consider speeding up the execution of offence ringleaders.52 Again, the emperors resorted to execution by flogging, which the previous Ming rulers had significantly restricted. Contrary to the earlier centralizing project, now the Ming state had to face strong challenges from high officials and eunuchs. The monarchs gradually loosened their control over officials’ use of execution by flogging. The imperial court increasingly granted amnesty to those who abused the penalty and flogged convicts to death.53 The local authorities, while being left to govern the vast territory with only limited resources, relied on penitence punishment (shuxing 贖刑) and frequently killed those who refused to pay fees or taxes required by the officials. Execution by flogging thus emerged as a common expedient penalty when social powers formed a visible force in the public realm, and local officials had to develop strategies for handling local politics, rapid commercialization, and the growing expenses of local governance. In the end, the                                  51 Timothy Brook, “Capital Punishment and State Sovereignty in China,” Sungkyun Journal of East Asian Studies 11, no. 2 (2011): 107–21. 52 The most obvious evidence is the increased use of Shangfang Sword (shangfang jian 尚方劍), military justice procedures (junfa congshi 軍法從事), and execution by flogging (zhangbi 杖斃). For the rise of these, see Chapter 1. 53 Ming shilu 明實錄 (Taipei: Zhongyang yanjiuyuan lishi yuyan yanjiusuo, 1966), Xianzong Shilu, 107: 2090, August 23, CH8 (1472; CH = Chenghua reign); Ming shilu, Xianzong Shilu, 116: 2249–50, May 17, CH9 (1473); Ming shilu, Xianzong Shilu, 120: 2308–9, September 3, CH9 (1473).  30  practice of beating to death remained even though the imperial court constantly condemned its exceptional and illicit nature. In addition to the revitalizing of execution by flogging, a more intriguing form of sped-up justice was the Shangfang Sword (shangfang jian 尚方劍 or 上方劍, also known as shangfang baojian 尚方寶劍, zhanma jian 斬馬劍, and duanma jian 斷馬劍). Symbols such as the hatchet (fuyue 斧鉞), imperial swords (yujian 御劍), banner (jing 旌), and tally (jie 節) had been used in preauthorized execution long before the surge of the Shangfang Sword in the late Ming period. Yet it was during this period that preauthorized execution, which combined the practices of military action and the death penalty, became an intermediate adjuster between the monarch and the bureaucracy. The bearer of the sword possessed the power to “carry out military justice procedures” (junfa congshi 軍法從事) and punish criminals in an “expedient manner” (bianyi xingshi 便宜行事). He could even execute generals of high rank and having high achievements. The emperors granted such a sword primarily because they needed someone to deal with urgent situations. Particularly during the Wanli (1572–1620) and Chongzhen (1627–1644) reigns, when the tension between the monarch and officials was significantly intensified, the emperor had little choice but to empower trusted persons with a license to kill.  While the rise of the Shangfang Sword was primarily due to the fierce political struggle and increasing social unrest, the short period of its use was due to the same circumstances. The bearer of the sword frequently faced challenges from competing officials. The emperors also suspected his loyalty, as he possessed the power to kill any official. Such highly precarious relationships made the operation of preauthorized  31  execution unstable and unsustainable. In the end, the monarch still needed an efficient channel to facilitate the communication for urgent punishment. This kind of communicative mechanism was not available until the eighteenth century, when the existing judicial and bureaucratic procedures were found incapable of handling the rapidly changed society and increasingly complicated legal disputes.  In the eighteenth century, China witnessed not only the largest legislation of capital punishment law but also an extensive reform to quicken the procedure.54 The ambitious Qianlong emperor played a significant role in this new trend. Through the use of the Grand Council and the imperial memorial system, he was able to communicate with regional officials and command them to break the existing rules to enhance legal expediency. The major purpose of Qianlong emperor’s reform was to consolidate his own authority and re-strengthen the increasingly inefficient bureaucracy—an approach that combined the somehow contradictory forces of monarch and bureaucracy. While the empire rapidly expanded both in territory and population, the new challenges, including the increased number of vagrants and a flood of litigations and popular protests, compelled the throne to change the existing system to suppress revolts and eliminate unruly subjects.  One of the new initiatives was to extend the Ming institution of the “banner plaque” (qipai 旗牌) and link it with the procedure of “king’s order” to bestow upon regional authorities the power of summary execution. In contrast to his Ming predecessors, the Qianlong emperor grounded his preauthorized execution on a request approval mechanism thanks to the establishment of the Grand Council (junjichu 軍機處)                                  54 Hu, Zhongguo gudai sixing zhidu shi, 363–66.  32  and imperial memorials. In addition to this institution, the Qianlong emperor also increased the severity of the Ming punishment for “rootless rascals” and extended the scope to the broadly defined “wicked people.” He re-enacted the Ming punishment of execution by flogging and exhorted officials to execute ringleaders without completing the full reviewing procedure. The new punishments applied militarized procedures to ordinary people while the throne also speeded up the punishment for deserting exiles and soldiers, particularly in the borderlands. Through the introduction of new categories of crime, the emperor not only got rid of the established restrictions but also provided the basis for governors to request fast execution. Although the Qianlong emperor encountered some challenges from the imperial censor and officials, he vigorously defended his policy and creatively combined both regular and exceptional procedures that laid a significant foundation for the institutionalization of summary execution in the following century. While the imperial centre initiated the eighteenth-century reform, the nineteenth-century reform primarily featured a regionalization of summary execution. This trend started in the latter half of the eighteenth century when the increased number of bandits, popular protests, and various types of local armed groups significantly changed the socio-political structure across the nation. The already overwhelmed judicial system encountered increased cases related to disputes and turbulence in which varied social groups were involved. The large criminal population eventually eroded local government’s judicial efficiency and fiscal condition. The Jiaqing emperor was forced to adjust the judicial system while resolving the problems left by the Qianlong period. Taking advantage of southeast piracy and the White Lotus rebels, the Jiaqing emperor  33  executed the Qianlong emperor’s favourite official Heshen (和珅) and initiated a series of reforms. He continued to use the Grand Council to control local society and bureaucracy. He further introduced the capital appeal system (jingkong 京控) for the purpose of imperial control, at the same time creating a serious judicial backlog that eventually forced the governors to introduce new institutions to handle prisoners and clean up accumulated cases.  One of the most influential policies promoted during the Jiaqing reign was the re-strengthened collaboration between the state, regional authorities, and local militia (tuan 團 or tuanlian 團練). The Qing court relied extensively on militia in the suppression of the White Lotus rebels. In turn, this revitalized the existing process of what Philip Kuhn calls “local militarization.” In the following decades, the increasing social turmoil, emerging local powers, and continuously overwhelmed judicial system led to several reforms at the regional level. A large-scale reduction of procedures eventually took place during the Daoguang reign when local government could barely afford the expenses of prisoner transfers and judicial administration. During the devastating Taiping Rebellion (1850–1864), the law of summary execution was recognized by the imperial court and extended to all provinces. The local militia and braves (yong 勇) constituted the major forces of Qing troops, but the complex background and changing identity of these braves eventually posed a new challenge to the state. After the end of the Taiping Rebellion, the spread of men using force became an inevitable trend. The authorities continued to rely on braves in the battles against local revolts, but they also deemed the unorganized and drifting braves—usually called the “roaming braves” (youyong 游勇)—the main targets  34  of suppression. Throughout the dynasty, the Qing state continuously renewed the exceptional punishment of summary execution.  The rise of summary execution had changed the course of Chinese criminal justice ever since its initial boom. The militarized procedure not only created a space for authorities to manipulate judicial expediency and the politics of exception, but also allowed regional officials and local forces to participate in the practice of the death penalty, which, in theory, was a prerogative of the state. The extensive use of this extraordinary procedure in conjunction with the long-lasting practice of open execution by political regimes, local officials, militia, and even the masses strongly impacted the practice of the Chinese death penaltyby shifting it toward a system where routinized and exceptional, centralized and decentralized, and formal and informal forces consistently negotiated judicial expediency and mutually shaped one another. More importantly, it reveals that a series of significant reforms predated the Westernization of law in the late nineteenth and early twentieth centuries—a historical event long perceived as the watershed in Chinese legal history that divided “tradition” and “modernity” in various realms of law. Whether or not its influence is positive or negative, the history of summary execution offers a distinct window for observing Chinese law and challenges the established wisdom about China’s “legal modernization.”   Economy of Punishment and Changes in Chinese Legal Culture In order to assess the significance of summary execution not just in Chinese legal history but also in China’s transition from the “premodern” to the “modern” era, it is useful to use the term “economy of punishment” to describe the operation of this  35  exceptional penalty. When coining this term, I am inspired by the concept of “economy of violence” created by David Robinson, which excellently captures the presence of violence in the shaping of Ming society or, even broader, all Chinese society during the late imperial and modern times. According to Robinson, the “economy of violence” refers to “the administration or management of concerns and resources related to violence in society—when and why people resort to violence, licit or illicit, and how such actions are perceived.”55 This concept particularly aims to locate the role of violence and its broad network in Chinese society. As Robinson argues, “illicit violence was an integral element of Ming society, intimately linked to social dynamics, political life, military institutions, and economic development” and “nearly everyone in China… grappled with the question of how to use, regulate or respond to violence in their lives.”56 He focuses on the patronage network of violence among eunuchs, bandits, officials, and the emperor in mid-Ming Beijing—the political centre in a relatively peaceful period of the dynasty. Through this concept, he demonstrates that violence can be understood as a way of managing concerns or resources, and it should be linked to various non-violent sectors of society. Although Robinson places his focus on the role of violence, the picture he paints of the patronage network of violence can help us understand how summary execution was linked with the broader context of Chinese society. On the one hand, the rise of the expedient punishment was primarily due to the crisis of the expanding empire. Namely, it was the growth of population, the expansion of the economy, the tension between the                                  55 See David M. Robinson, Bandits, Eunuchs, and the Son of Heaven: Rebellion and the Economy of Violence in Mid-Ming China (Honolulu: University of Hawaii Press, 2001), 2. 56 See Robinson, Bandits, Eunuchs, and the Son of Heaven, 2, 163.  36  monarch and bureaucracy, the emerging social class, and the overwhelmed judicial system that jointly contributed to the initial surge and subsequent epidemic of summary execution. The practice of hastened execution remained a prerogative of the sovereign. Yet the growing demand for such an extraordinary procedure was closely associated with the distribution of resources inside and outside of the established judicial system. On the other hand, it was the informal and expedient nature of summary execution that enabled it to drift between the licit and illicit spheres. The imperial court, the Board of Punishment, the provincial governors, and the participants in this punishment continuously defined and reinforced its exceptional status. Similar with the patronage network of violence described by Robinson, the practice of summary execution gradually linked elements in formal and informal, governmental and extra-governmental, and legal and illegal realms and eventually became a significant characteristic of society and various campaigns of bandit suppression—not just the judicial system within the government. The paradoxical combination of both extraordinariness and de facto routineness made the politics of expediency an increasingly significant part of Chinese legal culture. This marks a shift in Chinese law and requires us to reconsider its transformation before the Westernization of Chinese law.  In order to describe this process together with the role of summary execution in Chinese history, this dissertation puts forward the term, “economy of punishment,” to link the practice with broader socio-political contexts. Economy of punishment refers to the spread and distribution of penal resources related to crime and violence. With this term, I particularly place the operation of summary execution within the dynamics of law, politics, and the various realms of resource distribution. Similar to Robinson, I use this  37  term to look into when and how different actors—including the emperor, governors, local officials, militia, and local actors—negotiated the use of extraordinary punishment and extended the practice of the death penalty from the “formal” and “government” realm to all sectors within the society. The “penal resources”—a term I create here to describe the ways of structuring and legitimizing ideas, style, or sensibility regarding the penal system from a broad and diverse range of sources —operated beyond the boundary between formal and informal, regular and exceptional, and state and society. The economy of punishment that was built upon the spread of such resources thus comprised a significant aspect of Chinese legal development, in which centralization and de-centralization, routinization and the politics of exception, and state building and society making occurred concurrently and mutually shaped each other. In the end, as this study argues, it was such a dynamic and even contradictory operations of the economy of punishment that had an everlasting effect upon Chinese legal culture throughout the latter half of Qing dynasty and even after the introduction of Western laws and institutions. The rise of summary execution from the mid-eighteenth to the early twentieth centuries thus restructured Chinese legal culture by placing the operation of law on a dynamic basis in which competing sources of legitimation consistently shaped Chinese governance and society.57  In fact, recent scholarship has reoriented the conventional approach towards unlawfulness and has reassessed the significant force of illegality. Other than the attention this subject receives due to its primal and controversial subject matter and the                                  57 I want to thank Professor Kent Guy for his inquiries about “economy of punishment” and the suggestions about the revision of this concept. In my future revision turning this dissertation into a monograph, I will further develop this concept and incorporate all the valuable suggestions into my analysis while also exploring alternative ways of reframing the thesis and the concept.  38  important role that it played in the history of modern Chinese law and politics, the history of summary execution provides an interesting and unique case study for a field that has increasingly garnered attention, namely, the study of violence in Chinese society. Challenging the conventional view that tends to presume illicit force to be merely “deviance” or “disorder” while regarding the state’s violence as the embodiment of legal-political and orthodox order, recent studies note that various forms of violence had been “sanctioned” by both the state and ordinary people while illicit force had long been an integral component of Chinese society. In his work on violence in early China, Mark Lewis convincingly demonstrates that quite ample space has been provided for “sanctioned” violence within Chinese culture.58 Barend ter Haar also outlines the various types of violence that remained largely sanctioned by literati themselves.59 David Robinson further criticizes the conventional view that regarded violence as “deviance,” “threat,” or “disorder,” and argues that illicit force “was as much a part of the social order as it was a threat to that order.”60 William Rowe’s observation fits particularly well in the case of summary execution. He points out that order (“men using force,” such as local strongmen and militia leaders) and disorder (often rather casually labelled “bandits”) existed in a “rough, negotiated equilibrium” and that criminals, rebels, and the modern                                  58 Mark E. Lewis, Sanctioned Violence in Early China (Albany: State University of New York Press, 1990). 59 See Barend J. ter Haar, “Rethinking ‘Violence’ in Chinese Culture,” in Meanings of Violence: A Cross-Cultural Perspective, ed. Göran Aijmer and Jon Abbink ed. (Oxford: Oxford University Press, 2000), 123–40. 60 Robinson, Bandits, Eunuchs, and the Son of Heaven, 167.  39  era “class enemies” have “routinely been demonized in order for the bloody act visited upon them to be legitimated.”61 Previous studies on Chinese summary execution usually focus on the abuse of power in the practice of summary execution and rarely notice how the extended network of violence facilitated the rise of this institution. Most scholars regard this practice as a “barbaric and cruel institution.”62 Many attribute the flourishing of summary execution to the plight of China, in which overpowered governors and intensified warlordism plunged the Chinese people into dire suffering. Some scholars notice its complex context and its linkage with social unrest, political struggle, and financial constraints. Yet these scholars criticize its “lawlessness,” “arbitrariness,” and even “feudalist” characteristics, which hampered the judicial reforms in the early twentieth century.63 Only a few scholars, particularly Suzuki Hidemitsu (鈴木秀光) and Thomas Buoye, have started to place summary execution in the broader context of the rise of informal punishments since the late eighteenth and early nineteenth centuries.64 However, most scholars focus on the                                  61 William T. Rowe, Crimson Rain: Seven Centuries of Violence in a Chinese County (Stanford: Stanford University Press, 2007), 6–7. 62 See Li Guilian 李貴連, “Wan Qing jiudi zhengfa kao” 晚清就地正法考 (Summary Execution during the Late Qing Period), Zhongnan zhengfa xueyuan xuebao 中南政法學院學報 (Journal of Zhongnan University of Economics Law; also known as 法商研究 Studies In Law and Business) 1994, no. 1 (1994): 81. Many scholars have criticized Li’s thesis that summary execution originated during the Taiping Rebellion. Some scholars trace the origin to the late eighteenth and early nineteenth centuries, while others argue that summary execution dates back to at least the Ming dynasty. 63 Xiaoqun Xu, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901–1937 (Stanford: Stanford University Press, 2008); Zhang Shimin 張世明, “Qing mo jiudi zhengfa zhidu yanjiu” (shang) (xia) 清末就地正法制度研究(上)(下) (The Institution of Summary Execution during the Late Qing Period), Zhengfa luncong 政法論叢 (Journal of Political Science and Law) 2012, no. 1 (2012): 46–57 & 2012, no. 2 (2012), 59–70. 64 Suzuki Hidemitsu 鈴木秀光, “Zhangbi kao: qingdai zhongqi sixing anjian chuli de yixiang kaocha” 杖斃考:清代中期死刑案件處理的一項考察 (Execution by Heavy Bamboo Strokes:  40  institutional and political contexts behind the rise of summary execution. Few have explored its correlation with a broader trend of social transformation, particularly the epidemic of men using force that either helped the state to suppress bandits or became the targets of summary execution. As a result, little is known about how such an exceptional institution was linked with Chinese society and the gradually expanding network of armed forces. This dissertation intends to reorient this thesis regarding the function and role of summary execution in Chinese society. As this dissertation argues, during the eighteenth and nineteenth centuries, while the state extended its authority through the use of militarized judicial procedures, the emerging “wicked people” and men using force continued to prevail and challenged the state’s authorities. Due to the financial constraints and overwhelming banditry across the nation, the imperial centre and regional authorities adopted summary execution and relied on the baojia (保甲) local mutual-security system and militia to deter crimes and expel unlawful subjects. While the government feared its collaborating forces would join in banditry and rebellion, the patronage network of violence continued to fill gangs of orthodox and heterodox organizations. In essence, militia as an organization of local toughs and elites inevitably                                                                                                          A Study of Mid-Qing Capital Punishment Procedure), in Shijie xuezhe lun zhongguo chuantong falü wenhua, 1644–1911 世界學者論中國傳統法律文化 (Recent International Scholarship on Traditional Chinese Law), ed. Zhang Shiming, Thomas Buoye, and Na Heya 娜鶴雅, 209–34 (Beijing: Falü chubanshe, 2010); Suzuki Hidemitsu, “Cong danxin dang’an kan qingchao houqi xingshi shenpan zhidu de yiban” 從淡新檔案看清朝後期刑事審判制度的一斑 (A Preliminary Study on the Practice of Late-Qing Criminal Justice: From the Case of Danxin Archive), conference paper, Academic Conference for Danxin Archive, National Taiwan University, Taipei, July 15, 2008; Buoye, “Death or Detainment: The Dilemma of Eighteenth-century Chinese Criminal Justice.” For the development of summary execution in the Republican era, see Xiaoqun Xu, “The Rule of Law without Due Process: Punishing Robbers and Bandits in Early Twentieth-Century China,” Modern China 33, no. 2 (2007): 230–57.  41  encountered the problems of managing their own militants. Some militants drifted around and committed robbery with the weapons acquired from the militia. This, in turn, made the government continuously adopt severe punishments to eliminate the braves outside the legitimate organizations. In the end, the epidemic of men using force, the continued campaign against “heterodox” braves, the demand for efficient punishment, and the co-existence of “legal” and “illegal” elements jointly structured what I call the “economy of punishment.” The economy of punishment not only constituted an important response to the trend of local militarization but also shaped Chinese criminal justice by creating a space for authorities and various actors to manipulate judicial expediency, negotiate legality, and formulate a politics of exception. Moreover, the concept of “economy of punishment” helps us understand how, with regard to the practice of summary execution, China transformed from the eighteenth century to the early twentieth century. To make this point clearer: while the long development of mid-and-late Qing history contains no less discontinuity than continuity, the evolution of both the practice of summary execution and the changing “economy of punishment” shows that the two trends were structurally linked together. One significant dimension of the summary execution reform during the eighteenth century was the re-distribution of judicial resources within the established judicial review procedure and the banishment system. The protracted judicial system was gradually unable to cope with the frequent revolts and protests in multiple localities within the vast empire. The Qianlong emperor did not want to loosen his control over the regional death penalty. The ways he adopted perfectly balanced the resources he possessed, while maintaining the imperial control through the use of the Grand Council and secret memorial. The summary  42  execution laws in the exile regions further reflected such logic—it was the ideas of making use of criminal labour and reducing the risk of “polluting” other non-exile regions that eventually led to the construction of the special legal zone. In this zone, escaping exiles were subject to summary execution, while the court leveraged the number of executions each year and continuously converted death sentences to banishment partly in hopes of developing uncultivated lands. The idea of “economy of punishment” was thus embedded in the punishment of “wicked people” and the reform of exile laws. To the ruler of such a huge empire, this was particularly important because the increased number of riots and judicial cases and the growth of convicts who were sentenced to death had left only limited space for the emperor to resort to the conventional approach. During the nineteenth century, the idea of distributing penal resources became further significant because the increase in rebellion and piracy, the expanding power of regional authorities in the judicial realm, and the rise of local military organization all made the distribution of penal resources—if we take both “official” and “non-official” ones into account—increasingly fluid, changing, and negotiable. Among other factors, the suppression of “bandits” and “roaming braves” particularly reflected how the practice of summary execution was dependent on concrete situations. The target of suppression could be government soldiers this time and villains next time. The authorities feared the power of men who used force. But in actual practice, they adopted a paradoxical approach that combined both accommodation and suppression approaches in dealing with braves. The blurred boundary between “orthodox” and “heterodox” demonstrated how officials and local actors utilized the resources they had. The judicial practice was not aloof from the social and political context. The practice of summary execution was  43  further connected with dynamics at various levels, while both imperial center and regional authorities consistently negotiated the power of execution throughout the last decades of the Qing dynasty —which is also something we can perceive as a re-distribution of resources in judicial and political authority.  The term “economy of punishment” also builds a dialogue between China and other countries and extends our discussion of a global and comparative issue. During the late nineteenth and early twentieth centuries, when China underwent its largest campaign of rough justice, it was not alone because Europe, the United States, and various other nations encountered similar trends. In Europe and Latin America, popular justice and mobilized purges occurred while the states gradually established a monopoly on legitimate force. During the same period, the practice of lynching was popular in several regions in the United States, in which the masses summarily killed presumed criminals through extralegal measures. Recent studies of American lynching also challenge the perspective of American exceptionalism that narrowly defines lynching as an American practice.65 This dissertation echoes this perspective by pointing out that the rise of Chinese rough justice constituted a parallel development in the history of violence around the globe. However, China’s case differed from its Western counterpart in that the ubiquity of men using force had become a significant element of the formal establishment and local governance. They were targets of the government’s suppression on some occasions, but they could also convert themselves to be members of the public service.                                  65 See, for instance, Robert W. Thurston, Lynching: American Mob Murder in Global Perspective (Burlington: Ashgate, 2011); William D. Carrigan and Christopher Waldrep, eds., Lynching in Global Historical Perspective (Charlottesville: University of Virginia Press, 2013); Manfred Berg and Simon Wendt, eds., Globalizing Lynching History (New York: Palgrave Macmillan, 2011).  44  This was not particular to the nineteenth century. During the first half of the twentieth century, Chinese authorities also “soaked up” (shoubian 收編) illegal local forces, while the latter collaborated with other elements that may have had conflicts with the government. The highly eclectic nature of legal and illegal elements reveals a distinct process of Chinese state building and society making. Whether or not they were soldiers or bandits, their actions reverberated from one another and they each achieved legitimization throughout the process.66  Sources and Outline Since the practice of summary execution developed simultaneously at the level of the nation and local practice, this dissertation explores sources at both nation-wide and local levels. At the central level, this project explores various Qing central government archives, including the Grand Council Archives (Junjichu dang 軍機處檔, stored in the National Palace Museum Guoli gugong bowuyuan 國立故宮博物院 in Taipei), the Palace Memorial Archives (Gongzhong dang 宮中檔, stored in the National Palace Museum in Taipei), the Grand Secretariat Archives (Neige daku dang’an 內閣大庫檔案, stored at Academia Sinica), the Veritable Records of the Qing  (Qing shilu 清實錄), and the Conspectus of Penal Cases (Xing’an huilan 刑案匯覽). This project was able to obtain some sources from the First Historical Archives of China, especially Grand                                  66 The term “reverberate” is inspired by Paul Katz’s work. According to Katz, judicial ritual and other elements of legal culture mutually shaped a wide “judicial continuum” that contained different options for achieving legitimization and dispute resolution in Chinese society. See Paul Katz, Divine Justice: Religion and the Development of Chinese Legal Culture (New York: Routledge, 2009), xi, 7, 47–60.  45  Council Copies of Palace Memorials (Junjichu lufu zuozhe 軍機處錄副奏摺). However, due to time limitations, this project has not comprehensively collected all the relevant records of Grand Council Copies of Palace Memorials. In the future, I will continue the collection work and incorporate the sources into this dissertation while revising it into a book manuscript. At the local level, this dissertation particularly focuses on Zhejiang’s primary sources. As one of the most prosperous provinces next to the metropolitan Shanghai area, Zhejiang Province has abundant sources regarding banditry, feuding, and rebellion in the late Qing period. The sources collected here offer precious local perspectives to the history of summary execution. Among the major sources here are local gazetteers. Many sources pertaining to bandit suppression and the operation of summary execution laws are discussed in chapter three and chapter four. In addition, some collections regarding the suppression of the Taiping Rebellion in Zhejiang are explored and analyzed. I also use personal memoirs, especially Duan Guangqing’s (段光清) Jinghu’s Personal Chronicle (Jinghu zizhuan nianpu 鏡湖自撰年譜), which provides valuable first-hand observations from a local official’s perspective. During my source collection in Zhejiang, I obtained abundant sources from the Wenzhou Municipal Library, Wenzhou Municipal Archives, and Pingyang County Archives. A number of sources collected in these institutions reveal the practice of execution and bandit suppression in local society, including Zhang Gang Diary (Zhang Gang riji 張棡日記), Six Years in Pingyang (Pingyang liu nian 平陽六年), local newspapers, private and public documents from the Rare Book Department of Wenzhou Municipal Library, and the precious diaries by Zhang Gang and Liu Shaokuan (劉紹寬). These sources will be explored and incorporated into this study in future  46  revisions. In addition, this project utilizes newspapers and magazines, including Shen Bao (申報), Chinese and Foreign Daily (Zhongwai ribao 中外日報), Dianshizhai Pictorial (Dianshizhai huabao 點石齋畫報), Eastern Miscellany (Dongfang zazhi 東方雜誌), and Law and Politics Magazine (Fazheng zazhi 法政雜誌). This dissertation is divided into five chapters. Each chapter represents a theme of summary execution in chronological order. All of these themes were closely associated with the “economy of punishment”—the core element of the rise of judicial expediency from the mid eighteenth century to the early twentieth century. The first chapter explores the roots of summary execution and the death penalty reviewing procedures in late imperial China. It first explores how dynastic rulers established the multitiered review procedure that restricted the power of both officials and the emperor. It then analyzes the creation of instant execution and the demarcation between intolerable crime and forgivable offence, together with the use of sacred items for preauthorized execution. The latter half of this chapter focuses on the history of three institutions particularly during the Ming dynasty: execution by flogging, the Shangfang Sword, and military law. The distinction between military justice and civilian justice was an important aspect of the pre-Qing legal system. As this chapter argues, all these procedures were institutionalized before the rise of summary execution while the Chinese state effectively controlled the penal system and restricted the possibility for people to resort to summary execution throughout the long late imperial period.  The second chapter examines the rise of summary execution during the Qianlong reign. It first discusses how the institution of preauthorized execution transformed during the Ming-Qing transition, particularly from the Ming institution of “banner plaque” to the  47  Qing institution of distinct summary execution procedure called “king’s order.” As this chapter argues, the gradual shift from banner-plaque to king’s order demonstrates how a preauthorized execution power was gradually taken back by the emperors, who used this procedure as an important instrument of judicial reform and bureaucratic communication. The chapter then discusses the campaign against the emerging underclass and demonstrators. The inefficiency of the protracted judicial review system enhanced the Qianlong emperor’s worries and forced him to extend the Ming punishment for “rootless rascals” to “wicked people,” particularly with the help of the Grand Council and imperial memorials. The battles against the “wicked people” shortened the judicial review procedure by summarily executing the leaders of offenses. To the imperial court, this approach was the most efficient one, given that the court had to balance the existing penal resources through the manifestation of the “econmy of punishment.” The emperor also increased the use of secret memorials in order to avoid the procedure of routine memorials where the Board of Punishment had to carefully review each cases. Yet the emperor had to face challenges from officials and defend the idea of judicial expediency. Moreover, even though this reform achieved the goal of speeding up the punishment of unruly subjects, it did not resolve the problems of the emerging underclass and the gradually overburdened judicial system. The Qing court even found it difficult to maintain the line between military justice and civilian justice and the introduction of military procedure to the practice of the death penalty eventually became an inevitable trend in the following century. The third chapter explores the regionalization of summary execution during and after the Qianlong reign. The chapter focuses on four chronological stages of summary  48  execution law: the execution of deserting exiles, the reform of prisoner transfers, the local practice of summary execution during the Taiping Rebellion, and the development of guideline (zhangcheng 章程) and substatutes (li 例) during the post-Taiping era. In the exploration of the execution of deserting exiles, this chapter argues that the Qing authorities constructed what I call a “zone of exception,” in which banished criminals were perceived as exceptional and subject to being executed anytime, following the logic that extreme punishment had already been “waived” and these convicts should not be pardoned again if they didn’t cherish the government’s leniency. On the other hand, the empire’s judicial system faced challenges from population growth and a flood of prisoners. The large-scale reduction of procedures eventually took place during the Daoguang reign, where banditry, robbery, and financial constraint problems forced the local government to request a change in the judicial system. The chapter then uses the story of Duan Guangqing to discuss the complex process of bandit suppression during the Taiping Rebellion. As this chapter argues, in the actual practice of summary execution, authorities from different levels and positions adopted different strategies and categories of execution. This practice was usually a product of political struggles and negotiations within the bureaucracy and local networks. Moreover, all these reforms at the regional justice system were closely related to the redistribution of penal resources. Both the imperial court and regional authorities deemed it necessary to reduce the cost of judicial resources and enhance the use of men of force and various kinds of suppression tools.  The fourth chapter focuses on the Qing suppression of “roaming braves” and the responses of society toward their punishment. As this dissertation argues, the extensive hunt for roaming braves had become a special war—a war that centered on the “economy  49  of punishment”—after the Taiping Rebellion. In this period, the search for this new social class had become more important than the laws against them. Both authorities and local militia eagerly sought for and arbitrarily killed roaming braves in an expedient manner. On many occasions, braves and vagrants were hurriedly killed because officials intended to cover up scandals or simply punish those who did not obey their commands. On the other hand, regional militaries constantly needed these braves to be a potential source of their soldiers. Local officials did not want local militia to execute the criminals excessively as they did in the civil war, but they also relied on these local armed groups to help detect and capture vagrants.  The fifth chapter explores the reports of the Shen Bao to analyze the formation of public deliberation on the procedure of quick execution. Most of the Shen Bao reports were similar to the official announcements, viewing such expedient punishment as a way to satisfy both people’s demand for justice and the ideals of strengthening state law and restoring order. Yet the reports at times sympathized with the victims, particularly in cases of wrongful judgment. Using a close examination of the Sanpailou Case (三牌樓, 1877), I find that the newspaper was primarily concerned about the discovery and punishment of the “real murderers” (zhen xiong 真兇), who, in this case, were the officials who intentionally incriminated innocent people and executed them on trumped-up charges. The newspaper was concerned about the roughness of the military procedure, but the journalists did not deny the significance of summary execution, particularly in the cases of banditry and serious homicide. After analyzing this case, the chapter uses the 1911 Ningbo riot to discuss how both government and society demanded quick justice and rejected the reform that bestowed legal rights on criminal defendants. It was such  50  sentiments and the government’s demands that brought the practice into the reform period, when the practice of summary execution and the co-existence of legal and illicit forces continued to structure politics and legal culture in Chinese society.     51  Chapter 1: The Matters of Exception: Summary Execution before the Qing Dynasty  Anyone who artfully speaks in order to misinterpret laws, arbitrarily changes names in order to alter the rules, and behaves aberrantly in order to disturb the politics shall be killed; anyone who produces wicked music, dress, rare skills, and implements in order to confuse others shall be killed; anyone who behaves deceitfully and defends his deception, speaks lies and defends his dishonesty, broadly learns all sorts of wrongs, and carries on misdeeds and then covers up these faults with pleasant appearances in order to confuse others shall be killed; anyone who makes use of ghosts and gods, tells fortunes using dates and times, and uses divination in order to confuse others shall be killed. These four types of capital crimes should be executed without further investigation and review. Anyone who commits these crimes and gathers the crowd is unforgivable. 析言破律,亂名改作,執左道以亂政,殺;作淫聲、異服、奇技、奇器,以疑眾,殺;行偽而堅,言偽而辯,學非而博,順非而澤,以疑眾,殺;假於鬼神、時日、蔔筮,以疑眾,殺。此四誅者,不以聽。凡執禁以齊眾,不赦過。– Book of Rites.67   Like many historical polities, people in China had long employed capital punishment as an efficient tool for maintaining order and governing society. China used a wide array of methods to execute people for offences that were considered an intolerable threat to the state and society. However cruel these measures were, the death penalty reflected how regimes and society perceived serious crimes.68 The taking of life embodied political symbolism as dynastic rulers imposed their expectations upon society                                  67 Wang Meng’ou 王夢鷗 and Wang Yunwu 王雲五 eds., Liji jinzhu jinyi 禮記今注今譯 (Book of Rites with Contemporary Annotation and Translation), Volume 1 (Taipei: Taiwan shangwu yinshuguan, 1969), 239.  68 For the meanings of crime and punishment in traditional China, see Klaus Mühlhahn, Criminal Justice in China: A History (Cambridge: Cambridge University Press, 2009), pp. 15–28.  52  members by eradicating outlaws.69 Tormenting execution, including death by slow-slicing (lingchi 凌遲) and the supplemental punishments of disposal of the head (xiaoshou 梟首) and dispersal of remains (lushi 戮屍), had been used for most serious crimes for centuries.70 It was thought that the evilness and hazard of a variety of capital offences warranted them being quelled severely and brutally. However, imperial China was not alone in the manipulation of cruel punishment and its deterrent effect. Western observers nowadays tend to perceive Chinese criminal justice as savage and despotic, but in the late eighteenth and the early nineteenth century Europeans’ use of tormenting punishment was no less brutal and severe.71  From a long-term and comparative perspective, the major distinctive characteristics of pre-1800 Chinese criminal justice derived from its judicial review system. This was a multi-tiered procedure in which designations of capital crimes were                                  69 For the meaning of the body in the practice of death penalty, see Timothy Brook, Jérôme Bourgon, and Gregory Blue, Death by a Thousand Cuts (Cambridge: Harvard University Press, 2008), chapter 2. 70 Mühlhahn, Criminal Justice in China, 36–37.  71 For a brief history of torture and cruel punishment in Europe, see John. H. Langbein, “The Legal History of Torture,” in Sanford Levinson ed., Torture: A Collection (Oxford: Oxford University Press, 2004), 93-104; George Ryley Scott, The History of Torture throughout the Ages (London: Luxor Press, 1939), 35-101. In fact, despite the continued use of cruel punishment, Chinese jurists had consistently been devoted to the interpretation of law and the making of legal knowledge. For a classic analysis of legal reasoning in the Conspectus of Penal Cases (Xing’an huilan 刑案匯覽), see Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch’ing Dynasty Cases (Cambridge: Cambridge University Press, 1967), 173-181. For a close analysis of legal writing and its association with politics and popular culture, see Robert E. Hegel and Katherine Carlitz ed., Writing and Law in Late Imperial China: Crime, Conflict, and Judgment (Seattle: University of Washington Press, 2009). For the Western imagination about the Chinese practice of death by slow-slicing and the Chinese critique of tormenting penalties, see Brook, Bourgon, and Blue, Death by a Thousand Cuts, 68–96, 152–242. For the development of legal Orientalism during the nineteenth century, see Li Chen, Chinese Law in Imperial Eyes: Sovereignty, Justice, and Transcultural Politics (New York: Columbia University Press, 2015); Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press. 2013).  53  reviewed and sanctioned by authorities at various levels and were eventually decided by the emperor. In some historical polities, monarchs possessed similar authority to trigger an investigation and decree capital cases. However, their bureaucratic review procedures were not as routinized and convoluted as in China.72 Also, while before the Roman Empire most European polities had not developed a clear boundary between criminal and non-criminal cases in judicial procedure,73 the Chinese state had a multitiered judicial review procedure with the monarch’s power of final decision since the Zhou dynasty (1046–256 BCE). In China, the monarch had continuously played an active role in criminal justice. Even as criminal cases increased due to imperial expansion and population growth, the emperors increasingly intervened in adjudication and took upon themselves the decision of criminal cases without delegating their burden to the bureaucracy.  In contrast, during the Ming and Qing dynasties, regional bureaucrats and central judicial administrators were tasked with conducting a thorough examination into each capital case. Although the increasingly routinized bureaucracy and judicial procedure prevented abuse of power in death penalty cases, the protracted and inefficient procedure eventually led to judicial crisis in the eighteenth century, which, according to various sorts of evidence, had a far-reaching impact on Chinese law and politics prior to the twentieth-century reform. In the end, the expanding empire, the demand for control of the society and the bureaucracy, and the under-resourced judicial system compelled Chinese                                  72 In the Roman Empire, for instance, the emperors at times intervened in adjudication of criminal cases while the majority of cases were delegated to judicial officers for investigation. See John Simpson, A History of Continental Criminal Procedure, trans. Adhémar Esmein (Boston: Little, Brown, and Company, 1913), 26–29. 73 See Simpson, A History of Continental Criminal Procedure, trans. Esmein, 16–18, 23–26.  54  emperors to seek an effective solution. While the existing summary execution procedure was expedient before the eighteenth century, it gradually became an epidemic during the eighteenth-century reform and the nineteenth-century turmoil. To political regimes, summary execution became a useful instrument for political struggle, bandit suppression, and various campaigns against the regime’s enemies. Nevertheless, because the mid-nineteenth century civil war dragged local militia into the war against what the authorities and locals deemed the “rebels,” the death penalty for politically defined villains not only served as the regime’s instrument but also became a common arena of popular sentiment and local politics. This trend continued even after the government undertook a series of “civilized” legal reforms, including the abolition of the slow-slicing death penalty and the introduction of a Westernized legal system.74 While Chinese law gradually adopted a defendant-friendly procedure, the practice of summary execution, together with the bulky body of the special law system, continued to flourish and intensified the politicization and mobilization of capital punishment.  This chapter explores the roots of summary execution and the broader context of the death penalty reviewing procedure in late imperial China. The first section examines the development of the centralization of the death penalty. The death penalty was not monopolized by the Chinese state, although the central government in theory authorized its regional agents and administrations to execute convicts on behalf of the state. Tracing the development of both the pre-Qin era and the founding years of the imperial period, this section points out that the Chinese state gradually consolidated its authority through                                  74 For the abolition of cruel punishments in China during the early twentieth century, see Jérôme Bourgon, “Abolishing ‘Cruel Punishments’: A Reappraisal of the Chinese Roots and Long Term Efficiency of the Xinzheng Legal Reforms,” Modern Asian Studies 27.4 (2003): 851–862.  55  the centralization of the death penalty, including efforts to reduce summary execution at the regional level. The second section analyzes the creation of instant execution and the demarcation between intolerable crime and forgivable offence. Dynastic rulers invented a series of theories in order to get rid of discursive and seasonal restrictions. Such efforts were eventually legislated and became part of legal reasoning in the late imperial period. The third section discusses the symbols of preauthorized execution, which combined the practices of military action and death penalty. A variety of sacred items served the purpose of preauthorized execution, including hatchet (fuyue 斧钺), tally (jie 節), and sword. This section particularly discusses the use of preauthorized execution in late Ming politics, which eventually degenerated into abuse of power and intensified conflicts between the monarch and the bureaucracy. The fourth section discusses the evolution of execution by flogging. Throughout the imperial era, flogging was regarded as a light and convenient punishment. Yet it was also used as severe punishment in some periods. Some rulers allowed officials to beat convicts to death while retaining the informality of the punishment. As this section reveals, during the Ming dynasty, when the imperial centre significantly enhanced its control over the death penalty, execution by flogging also reached its peak as the emperors expediently used it to control society and bureaucrats. The last section examines military law and militarization of local organizations. As this section points out, the increasingly militarized local organizations had long possessed power of punishment within communities. Although they only had limited power of death penalty, local authorities at times tolerated the practice of communal capital punishment. All in all, the procedures analyzed here were institutionalized before the rise of summary execution, while the Chinese state effectively controlled the penal system  56  and restricted the possibility for people to resort to summary execution throughout the long late imperial period. The trend of militarization eventually accelerated the emergence of summary execution during the nineteenth century, when the state collaborated with social power in the wake of social upheaval.   Death Penalty and the Centralizing State By the time the Chinese state stablized its power of controlling regional adjudication, local authorities possessed the power of executing convicts without a prior permission from the center in the trial of various offenses. This does not refute the fact that the Chinese state consistently enacted its sovereignty over life and death. Except for some polities during the pre-Qin period in which regional states and tribes possessed high-level autonomy, central government in most instances reserved the power to decide the death penalty and remove local authorities’ power to kill. What is intriguing here is the tension between different levels of authority. In both the earlier and the later imperial era, dynastic rulers were constantly concerned about crime control and governing stability. The death penalty had been long a source of tension between the state and regional authorities. Even though a centralized state had been established since the Qin dynasty (221–206 BCE), it was not until the middle of the imperial period that the state gained relatively comprehensive control over the use of the death penalty.75 Chinese capital case review procedure had been in existence since the Zhou dynasty and was closely associated with a variety of ideas, including circumspection in                                  75 Hu Xingdong 胡興東, Zhongguo gudai sixing zhidu shi 中國古代死刑制度史 (A Study of the Death Penalty System in Ancient China) (Beijing: Falü chubanshe, 2008), 152–161, 201–204, 225–230.  57  punishment, authority of the government, and the pursuit of cosmic harmony. Deterrence and retribution played a significant role in both official discourse and popular mentality, but it was also widely believed that intemperate killing would harm cosmic harmony and result in an imbalance in the natural order. The belief in the Mandate of Heaven (tianming 天命) and the fear of supernatural punishment gave rise to the idea of being “respectful to virtue and circumspect in inflicting punishments” (mingde shenfa 明德慎罰), which had been passed down from the Duke of Zhou to dynastic rulers and judicial officials.76 Executions were generally restricted to non-flourishing seasons in order to conform to the trend of cosmic circumstances. Based on such ideas and the authority’s concern over the potential influence of death sentences, serious crimes in the Zhou dynasty (1046–256 BCE) had to go through careful investigation and multiple levels of adjudication, including those conducted by regional officers, the Minister of Justice, and eventually the Zhou king.77 The king was required to examine carefully if there existed any of the three causes for pardon (sanyou 三宥) and to consult ministers, officials, and the populace—a procedure that was called “consultation with three kinds of people”                                  76 Feng Zhuohui 馮卓慧, “Zhongguo gudai shenxing sixiang yanjiu: jian yu 20 shiji xifang shenxing sixiang bijiao” 中國古代慎刑思想研究—兼與 20世紀西方慎刑思想比較 (Study on the Conception of Cautious Punishment in Ancient China—in Comparison with the Western Idea of Cautious Punishment in the Twentieth Century), Falü kexue: Xibei zhengfa xueyuan xuebao 法律科學:西北政法學院學報 (Science of Law: Journal of Northwest University of Political Science and Law), no.2 (2006): 144–63. 77 Since the Zhou dynasty adopted what Feng Li calls the “delegatory kin-ordered settlement state,” legal cases outside the capital city were not under the direct surveillance of the Zhou king. As Yongping Liu notes, in both Western Zhou and Eastern Zhou dynasties, it was unlikely that a unified penal system existed and was universally applied to each state. See Yongping Liu, Origins of Chinese Law: Penal and Administrative Law in Its Early Development (Oxford: Oxford University Press, 1998), 127. For the Zhou dynasty’s central-regional political structure, see Feng Li, Bureaucracy and the State in Early China: Governing the Western Zhou (Cambridge: Cambridge University Press, 2012), 235–98.  58  (sanci 三刺).78 Similar to the use of public execution as a spatial manifestation of authority,79 regimes adopted these procedures as part of communication between the monarch, the bureaucracy, and the public. The complicated review procedure conveyed a message that the case had been carefully investigated, and human lives were not hastily ended. Sources reveal that Zhou officials frequently deferred executions so that the king or regional rulers could have ample time for cautious deliberation.80 Even though it remains unknown if such procedure was strictly applied in each capital case, the idea of circumspection was retained in official statements and deeply embedded in the penal practices of later dynasties.81 With the centralization of the Chinese state, the decision to enact the death sentence gradually became the emperor’s prerogative. Following the fall of the Zhou dynasty, whose delegatory political structure restricted central intervention to regional justice,82 the Qin-Han empires underwent a series of reforms that monopolized the monarch’s power over the death penalty. Although on various occasions Qin and Han emperors allowed regional administrators to execute convicts without the court’s                                  78 Hu, Zhongguo gudai sixing zhidu shi, 118–22. 79 For the spatial and communicative meanings of public execution in ancient China, see Mark E. Lewis, The Construction of Space in Early China (Albany: State University of New York, 2006), 161–63. 80 Hu, Zhongguo gudai sixing zhidu shi, 120.  81 For example, the Kangxi emperor (1654–1722) frequently used the idea of circumspection in the decision of capital cases. See Qing shilu 清實錄 (Beijing: Zhonghua shuju, 1986), Shengzu shilu, 25: 351b, March 1, KX7 (1668; KX=Kangxi reign); Qing shilu, Shengzu shilu, 33: 448b, June 11, KX9 (1670); Qing shilu, Shengzu shilu, 80: 1024a, April 4, KX18 (1679).    82 See Li, Bureaucracy and the State in Early China, 235–98. Daniel Sou, on the other hand, argues that even during the Warring States period when the Zhou centre had largely lost control over the regional states, central authority could offer investigation into murder cases or other serious crimes when local government failed to demonstrate the ability to resolve the dispute. See Daniel Sou, “In the Government’s Service: A Study of the Role and Practice of Early China’s Officials Based on Excavated Manuscripts” (Ph.D. diss., University of Pennsylvania, 2013), 77–80.  59  permission,83 the majority of capital cases were reported to the central judicial officer, the Chamberlain for Law Enforcement (tingwei 廷尉), for further adjudication and were later forwarded to the emperor to sanction execution.84 The monarch possessed ultimate power over amnesty and death sentence because the entire centralization process embodied what Mark Lewis calls “the consolidation of a political structure centered on the person of the emperor.”85 The abuse of power inevitably occurred in the imperial centre where there were no strong bureaucratic powers and stabilized rules that could restrict the power of the throne. When the power-checking mechanism was not fully established in criminal justice, even the throne did not have a clearly planned scheme for the design of the monarch-bureaucracy relationship in the judicial system.86  One of the most significant reforms that routinized and normalized the dynamics between the throne and bureaucrats occurred during the Sui (581–619) and Tang (618–907) dynasties. This institution, called the procedure of “repeated memorials reporting the investigation of criminal cases” (fuzou 覆奏), was established by Sui and Tang emperors in order to prevent abuse of power in death penalty cases and to give the monarch ample time for contemplation, particularly in controversial cases. Emperor Taizong of Tang established the first comprehensive repeated memorial system after he                                  83 Na Silu 那思陸, Zhongguo shenpan zhidu shi 中國審判制度史 (History of Chinese Justice System) (Tainan: Zhendian, 2004), 76, 93; Hu, Zhongguo gudai sixing zhidu shi, 158. 84 Unlike the Zhou dynasty’s regional government, whose officials inherited titles through a hereditary system, the Qin and Han imperial centre preserved the power to appoint local officials and imposed mandatory reporting procedures upon the execution of the death penalty. See Hu, Zhongguo gudai sixing zhidu shi, 158–60. 85 Mark E. Lewis, The Early Chinese Empires: Qin and Han (Cambridge: Harvard University Press, 2007), 1–2. 86 Lawrence J.R. Henson, “China’s Imperial Bureaucracy: Its Direction and Control,” Public Administration Review 17, no. 1 (1957): 44–53.  60  killed the Assistant Minister of the Court of Judicial Review (dalisi 大理寺), Zhang Yungu (張蘊古), out of rage and suspicion.87 The unfortunate official Zhang enraged the emperor because he remitted the death sentence of a man who criticized imperial politics. In his judgment, Zhang stated that the offender had mental illness, and this constituted diminished responsibility according to Tang law. The furious emperor, however, did not want to see any political dissident remain unpunished for such a reason. He heard from other officials that Zhang might have intended to flatter the convict’s brother, who served as the Prefect of Zhang’s hometown. He suspected that the lenient ruling regarding a criminal who showed scorn towards the emperor was out of such consideration, so he commanded the speedy execution of Zhang.  Taizong’s impulsive decision prompted a crisis in the imperial legal system. Zhang Yungu and the judicial officials under his surveillance were required to adjudicate cases in accordance with the state’s regulations and precedents. They followed a protracted and complicated process designed to ensure the application of laws and reduce potential arbitration. Taizong certainly possessed the ultimate power within the empire, but his excessive killing of the highest judicial officials revealed that even the throne would not thoroughly consider its own rules. After the execution of Zhang, Taizong quickly established the “repeated memorials reporting the investigation of criminal cases.” The new reporting system required all death sentences outside the capital area to be reported to the throne three times prior to the execution. Death executions in the                                  87 Liu Xu 劉昫 et al., Jiu Tang shu 舊唐書 (The Old Tang History) (Beijing: Zhonghua shuju, 1975), juan 50: 2139–2140; Ouyang Xiu 歐陽修 and Song Qi 宋祁, Xin Tang shu 新唐書 (The New Tang History) (Beijing: Zhonghua shuju, 1975), juan 56: 1409–1410.   61  capital area were close to the palace, so five reports were required.88 Similar to the Zhou dynasty’s “three consultations,” this procedure aimed to prevent intemperate killing through increa