| Situated in the Miao Dong Autonomous Region, in the southwestem part of GuizhouProvince, the lower reaches of Qingshui River has always been famous for the forest trees.The history of man-made forestry is as long as 500 years. Since Ming Dynasty, owing to theeasy water transport, imperial families began to requisition woods produced in this area,leading to the various patterns of complex ownership and distribution of rights andobligations. At the end of Kangxi period in Qing Dynasty, in order to secure the trade orderand define the rights and obligations of the related parties, people in this region started todraw up contracts about the transference of titles to the trees, the leasing of mountains to planttrees, and the managing of the mountain forest. Simultaneously, the state power, withConfucian culture as its core, greatly influenced the life here. Contacts had functioned tokeep the social order as they had been adopted extensively in social lives such as reachingjoint pledges to prevent theft. They faithfully represent the social economic situation in theregion of the lower reaches of Qingshui River in Qing Dynasty.This dissertation, based on the author's collection of 728 copies of contracts and 300copies of dispute-settling documents in Wendou Village of the Miao nationality, has tried toprovide a description of the legal order in this region of the lower reaches of Qingshui Riverin Qing Dynasty. Besides affecting the wood trade, norms and rules from the forest contractshad also been adopted in other fields of the local people's social economic life-in otherwords, contract had become the major means to regulate individual behavior. Consequently,social life here became contractual as villagers formed different social communities anddrafted different rules through contacts. These contracts were the results of the interactionbetween state law and Miao customary law, the reason for this being that, since its inclusioninto the Qing territory, Wendou Village life had been changed greatly resulting from theincrease of forest trade and communication with the outside world. On one hand, thetraditional Miao legal culture had been gradually assimilated to that of Han. On the other hand,in order to solve disputes, local officials had to resort to the traditional Miao authorities orcustomary laws when they found it hard to apply the state law directly to the cases before them.By analyzing these contracts, instead of giving a systematic and theoretical explanation,the author has intended rather to study the system of Wendou contracts and furthermore tostudy the legal order of Wendou Village. This study is divided into six chapters.There are three parts to the first chapter. The author reviews previous studies in thesame field, and introduces the aim, methods and concepts of his study. He anticipates theindependent field of research on the theory of contract. Compared with the contracts found inHan areas in the Ming and Qing dynasties, the number of Wendou Contracts is much larger.Although in the past, researchers have proposed that in minority areas there had been noeconomic contracts, and others have claimed to have not found any historic documents aboutthe wood trade in Chinese legal history, the discovery of the Wendou Contracts fills-in theabove gaps. Therefore, the study of them brings new perspective to the development ofChinese civil law and legal history. Having reviewed the academic research on ancientcontracts in China, the author finds that in spite of great achievements which have been madeby examining the legal order of basic level in Ming and Qing dynasties, few studies have beendone on the area of the lower reaches of Qingshui River, let alone ones which analyze socialorder in the villages through a legal angle. At the end of chapter one, the author details hisresearch methods. While making use of the theories of history, ethnography, sociology,anthropology and economics, and trying to avoid legal concepts from the West, he bases hisstudy on the first-hand materials collected in the field work, such as the contract papers, stoneinscriptions, and oral accounts, together with those in historical documents, local chronicles,and old books. Three key concepts-contract, norm and order-are analyzed here as well.The second chapter discusses the social situation of the village in the lower reaches ofQingshui River in Guizhou in Ming and Qing dynasties. In order for the reader to betterunderstand the social and historical background against which Wendou Contracts wereadopted, the author explores two issues: forest trade and legal policies adopted by Qinggovernment in this Miao region. It is proposed that during the end of Ming dynasty and theearly Qing dynasty, with the beginning of the requisitioning of woods by the imperial familiesfrom this area, the growing forest production (building up Jingping district as the woodmarket in this area), resulted in a large number of contracts being reached due to the transferring and distributing of fights to the forest and other products. The legal policiesadopted by the Qing government chopped and changed. Prior to the Kangxi Emperor, theQing government had ruled this region through the policy of ruling according to the localcustom. Later, it reinforced its control through military actions and appointing officials toreplace the headmen. However, one of the imperial edicts from the Qianlong Emperor orderedagain that affairs concerning the Miao should be dealt with in strict accordance with Miaocustoms. The Qing government then divided the Miao people into two kinds (ShengMiao andShuMiao) and treated them distinctively. The traditional customary laws as well as the socialorder of Wendou, a Miao village in the lower reaches of Qingshui River, had been greatlyinfluenced by the mainstream legal culture. Wendou Contracts, not only the record of thevillagers jus in re or jus in personam but also the major means to control the society, reflectedthe normalization of the villagers' economic life.In the third chapter, the author divides the Wendou Contracts into three types: rentcontract, sales contract and sharing contract. It is advocated by the author that, quite distinctfrom the case among contracts from the Han areas at the same time, in Wendou the status,rights and obligations of the parties had been deteemined by the separation of owners of themountains from the planters of the trees, as renting mountains to plant forests had been themajor form of the rent contract. The writer examines not only the parties, forms, names,subject matter, and clauses types of the sales contract, but also the different relationshipsbetween the parties, including kinship and joint ownership. The dissertation also studies thesharing contract. This kind of contract, which defines the economic benefits, includes thecontracts dividing the profits between the owners of the mountains and the planters, dividingthe mountains or the profits into tenths among the owners, and dividing up family property.Three types of co-ownership are discussed: joint rent, several co-ownership and theco-ownership through the form of Hui. At the end of this chapter, other contracts, includingcontract of debit and credit, are studied to reflect the diversity and the extensiveness of thecontracts.The fourth chapter focuses on the distinguishing features and operating mechanisms ofWendou Contract. Though owing to the influence from contracts of Hart areas, the forms andterms of Wendou Contract had been similar to those of Han, they also had distinguishing features. Contrary to the Han contracts which had to be made with the government'spermission through certain forms (such as the use of special paper with government stamps onit or the affixation of the govemmental seals at the end of the contract paper), WendouContracts were reached privately by people. The paper with government stamps on it wasseldom adopted. However, since a more recent point in history, with the stronger influencefrom Han culture and the power of state laws, local officials had required the contractors toaffix the government seals and pay taxes, thus securing the deals to a larger extent.Wendou Contracts functioned to prove the transactions. The sellers had to state explicitlythe origin of the object matter and undertake the liability for warrant of defects. The contractsdetermined who owned the property in cases of dispute. People kept them as vouchers, andevery June they put the contract papers under the sun to prevent them from being damaged bywater or insects. Several mechanisms supported the operation of Wendou Contracts. Theinstitution of middleman played an important part in both reaching contracts and settlingdisputes. Words such as "ask the middleman to present" "decide by the middleman" areoften seen in the Wendou Contracts the author has collected. The middleman often acted asthe witness to the transferring of the object matter. After each deal, he got some remuneration.The guarantee system, called Jiedang in the Wendou Contracts is the second mechanism, bywhich the creditor required the debtor to guarantee by his property the performance of thecontract. For instance, the landlord might ask the tenant to mortgage his other piece ofmountain land. However, while effective in a society of strangers, the role played by theguarantee system was limited in a close community like Wendou Village. The thirdmechanism is public opinion and custom. All transactions by Wendou Contracts wereconducted amid complex relationships. While the conception of moral justice was the keyfactor to keep the contract order, additionally family, reciprocity, presents and morality allworked to ensure the following of the articles in the contracts. The last is the dispute settlingsystem. Basing his research on 36 pieces of document paper about dispute settlement, theauthor studies the arising and solving of the disputes. He purports that this dispute-solvingsystem in Wendou society could restore the damaged social order. Once a dispute hademerged, the parties favored its negotiation, the failure of which led to the interference by athird party through mediation or sentence. Contracts were referred to during dispute settlement, which also largely depended on the authority of the clan or village. The losersigned a paper showing his apology. If the above mediation failed, the parties reported thecase to the government, the representative of the state power. Since Wendou Miao Village wasnot beyond the competition of the state jurisdiction, the positive interaction between thedecisions of the state power and the folk mediation played a crucial role in keeping socialorder in the region. Finally, owing to the Wendou villagers' faith in the divinities, theyresorted to the forms of ordeal, such as killing livestock, swearing before the public whenneither the mediator nor the government official could find the truth.The fifth chapter concerns the social life and legal order in the area with Wendou villageas the centre. In order to procure the economic and social security, villagers reached a greatnumber of contracts, which was the main body of the legal culture in this region and whichregulated not only people's economic life but also other aspects of social life includingmarriage, death and the division of family. However, the establishment of the legal order inWendou village depended largely on the interaction of norms and the social factors, ratherthan solely that between the norms themselves. Social structures had great impact on theoperation of the contracts as means to deal with people's private life. The political authorityand structure resulting from the interaction of different social forces determined the public lifeand legal order as they functioned to produce and apply the contract norms and rules. Sincerecent history, state power extended further to Wendou Village Society through the politicalsystems of Baojia and Tuanjia, giving rise to a new group of people named local gentry whoacted as the link between the state power and village society. Owing to their monopoly overthe resources, especially the written information, they played a key role in establishing thesocial and legal order in Wendou Village, including the reaching of contracts and obtainingthe efficiency of norms and rules. However, in Wendou, a Miao society, such traditionalauthorities as the headmen of the village or the family did not disappear totally, and so theabove new elites could have their say only through close cooperation with the traditionalauthorities.The author proposes that in addition to its role in the wood trade, people in WendouVillage tended to make use of contract to solve disputes, draft rules to prevent theft and keepthe social order. The detailed articles, norms and rules, which represented the communal democracy and the public opinion, met the needs of social order and became the auxiliary toor substitute for the state laws. To be effective, these articles, norms and rules had to bepresented to the government officials, who often approved them. Then they were carved onthe stones. As a result; the legal order in Wendou Village society was the consequence of theinteraction among rather than conflict between the state laws and traditional Miao customarylaws.The last chapter, the conclusion of this dissertation, supposes that contract norms playeda significant role in keeping the social and legal order in Wendou village society in QingDynasty. The author not only gives a positive answer to the question of whether there existedcivil laws in ancient China, exploring the subject of treating the traditions (including the legalculture) of minority nationalities, but also reviews critically the changes which happened inChinese legal culture in recent history. Chinese traditional legal culture has been constantlycriticized and depreciated. This study on Wendou Contracts and Miao Village Society aims toremind scholars domestic and abroad of the value of Chinese tradition, which is the product ofcontributions from many different minority nationalities and which can be regarded aspluralist. Wendou Miao Contracts provide us with a new angle to reflect on Chinese legaltradition. As the traditional legal cultures of minority nationalities are an essential part ofChinese legal culture, we should take advantage of the legal cultures of both Han andminority nationalities. This will be beneficial not only to the building of rule of law inminority areas but also to that in the whole country.
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