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afishtrap · 7 years

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This paper describes the late imperial militarized mode of adjudication (yi junfa congshi) and its relationship to eighteenth-century cases of summarized execution under the imperial standard (gongqing wangming). It shows that during the Ming and Qing, militarized adjudications, which were essentially summary in nature, occurred along a spatial-temporal gradient of military operations which was a function of proximity to and intensity of active military operations. The paper also demonstrates that prior to the eighteenth century, militarized adjudication was a different mode of adjudication from the routine adjudicative system (zhuanshen, heshen, qingzhi) associated with the Qing Code (DaQing lüli). When norm-violating behavior occurred closest to the battlefield at the time of battle, it was more likely that the offender would be summarily adjudicated under modal junfa. This relationship changed over time. Imperial standard executions (gongqing wangming jixing zhengfa), primarily an eighteenth-century phenomenon, developed out of the practice of militarized adjudications. The paper relies on writings of Wang Yangming, and criminal cases to delineate the two different paradigms of modal junfa and the routine adjudicative process. It demonstrates the change in time in the relationship between militarized adjudication, routine adjudication, and the military operations gradient.

E. John Gregor. “Military Operations, Law and Late Imperial Space: The Spread of Militarized Adjudication.” Extrême-Orient Extrême-Occident [Online], 40.

The Seven Military Classics, originating mostly during the Warring States period (403-221 BC), early on recognized that rules of military discipline had to be clear, and punishment had to be quick in order to maintain the authority of the commander and unit discipline during battle.10 They already contained the basic ideas of awards and punishments (shangfa) and emphasized that expeditiousness and lack of leniency were critical to military discipline. By the mid-Ming, the association between militarized adjudication and battlefield operations was well-recognized. For instance, Neo-Confucian philosopher and fifteenth-century Board of War minister Wang Yangming (1472-1529) authored a number of memorials while a secretary on the Nanjing Board of War, several of which addressed militarized adjudication, including the following from 1499 discussing actions at the epicenter of military operations:

"From now on, for any officer leading soldiers in combat, if soldiers under his command retreat or fail to follow orders, permission is granted to adjudicate the matter in front of the troops according to militarized adjudication (yijunfa congshi). If the leader himself does not follow orders, then the commander-general (zongtong guan) is granted permission to adjudicate the leader’s case according to militarized adjudication in front of the troops."

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Since military campaigns often took place on the far frontier, sending a case back to the capital for review by the emperor after multiple levels of review detracted from the required efficiency in administering punishment and detracted from military discipline. In fact, one of the earliest (and only) examples of a military law explicitly calling for militarized adjudication in the Ming-Qing Codes involved military crimes on the frontier. That statute was entitled “execution of military rebels” (chujue panjun) .'6 For this type of military rebellion on the frontier—note both the military subject matter and the association with the frontier—the Ming-Qing Codes permitted local officials to execute an accused following only review by the governor (xunfu) and/or governor-general (zongdu), two officials located at the provincial level, rather than go through the routine process of extended retrial-review and approval by the emperor.17 Further, if the plotting occurred during battle, then local officials could execute the accused on the spot without even seeking approval from the governor/govemor-general. In both cases, the emperor had to be notified immediately after the fact.18

While frontier military rebellion statutorily called for militarized adjudication, most instances of militarized adjudication were the result of one time grants of authority based on specific situations. For instance, in an August 7, 1640 (CZ 13/6/20) draft memorial, the Ming Board of War responded to an edict from the Chongzhen emperor seeking recommendations following a disastrous Manchu raid the year prior. The Board styled their memorial a “recommendation that junfa be made manifest (shenming junfa).” But what exactly did the memorialist mean by junfal We know because he provided a historical example of how such an approach could address discipline problems, noting that in the time of the Ming founder, if soldiers were deployed to battle, yet were incompetent and returned from battle, they were immediately beheaded; likewise, if they stole anything that belonged to the people, they were beheaded. From this, we can surmise that the memorialist was requesting the emperor to authorize officials to carry out highly autonomous death sentences in order to maintain military discipline. At the very end of the memorial, using the same language as in the initial styling of the memorial (shenming junfa), the original drafter requested the emperor to order all govemorsgeneral, governors, regional commanders (zongbing), and circuit intendants to make junfa manifest. At some point in the drafting process, the author or another official crossed out that line, and inserted an interlinear correction, requesting “special promulgation of rules to make the criminal process faster and simpler” (teban suxing jieqiu zhi fa). This phrasing really captures the sense of a military process of adjudication; it is not just the substantive law itself, but the manner in which a case was to be adjudicated under the law.19 This memorial also reflects the sense of militarized adjudication as something contingent and available only under unique circumstances and authorized to certain officials.

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A 1637 draft memorial from the Ming Board of War demonstrated three things: first, the conceptual link between military discipline and militarized adjudication was deterrence; second, that militarized adjudication was about expedited procedures and judicial autonomy at a level below the emperor; and third, that such authority was always contingent and normally a function of proximity to battle or physical space associated with military activity. In the 1630’s, one important epicenter of military operations was the northeast in today’s Liaoning and Jilin provinces. By January 1637 (CZ 9/12), with increasing Manchu raids, the Ming Board of War, in conjunction with various govemors-general, memorialized the emperor requesting that militarized adjudication authority be granted to the provincial military commissioners (,dufu) extending authority to execute all officials who dithered, retreated or withdrew in the face of barbarian incursions. In response, the Chongzhen emperor (r. 1627-1644) issued an edict authorizing limited militarized adjudication authority to the govemors-general and governors of the nine frontiers. His response evinced an awareness of the distinction between militarized adjudication and routine criminal approaches: “for those who should be impeached and then punished, immediately memorialize with an impeachment; for those who should be immediately executed, immediately execute them.”21 The fact that the govemors-general had to specially request militarized adjudication authority as late as 1637 for operations essentially at the epicenter at a life-and-death moment for the dynasty, and that the emperor still limited jurisdiction to cases of accused officials under the rank of colonel provides some idea of the irregular status of militarized adjudication.

From these sources, we get an idea of the relationship between spatial conditions and militarized adjudication. Across the late Ming and post-conquest, early Qing, whether a given military case was adjudicated under the routine process or under militarized adjudication corresponded closely with where the case occurred along what I call the “gradient of military operations.”22 One can think of the epicenter of such a gradient as a particular battlefield (a spatial element) at the time of battle (a temporal element). These two elements were themselves both functions of the intensity of military operations at a given place. Expanding out from this epicenter, multiple and irregularly-shaped zones corresponded with a decreasing intensity of military operations. The innermost zone—where the immediacy of operations made discipline a more poignant concern —was the point at which militarized adjudication was most often invoked. Because the power to approve death sentences was a fundamental prerogative of the emperor’s authority, wholly autonomous authority to try and summarily-execute offenders—the fullest extent of militarized adjudication authority—was seldom granted even on campaign except for conduct that occurred at the very epicenter of the gradient.

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Cases from the Yongzheng era (1723-1735) also confirm the relationship between militarized adjudication and the military operations gradient. In a pronouncement relating to soldiers returning from the Zunghar campaigns in 1733, the Yongzheng emperor articulated two different degrees of militarized adjudication for two different positions along the military operations gradient. If someone spread rumors at the military front, then he was to be immediately decapitated under militarized adjudication; but, if soldiers, civilians, genyi or traders in the course of returning from battle—moving outward along the gradient—“spread confusion,” then they were still to be executed, but only after imperial approval.28

#warfare #military organization #early modern #ming dynasty #qing dynasty #china #research

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