On Torture System In Qing Dynasty

The paper comprises of three parts, i.e. introduction, main text (four chapters) and conclusion. The paper observes the theory of dialectical materialism and historical materialism and is based on the original historic materials as well as the textual research on torture system in Qing Dynasty. The research results of the basic principles of law and law history are also applied. After analysis of the category, motive and cause of the torture system in Qing Dynasty, the paper reaches the following conclusion:although ancient torture system made it possible to acquire facts and truth objectively, it was cruel in guilty presumption and had caused a great deal of wrong cases. With increased consciousness of humanism and improved scientific recognition, inquisition by torture will be thoroughly withdrawn from historic arena.Introduction:Torture system was the traditional theme in science of law history.Though no single work on ancient torture system is published in China, it is frequently referred in works of law history and is the theme of numerous papers in various academic periodicals.The academia has come to the conclusion that the torture system is inhuman and is prone to generate wrong cases. Research on objectivity of ancient torture system has also been done.It seems that there is no room remains for further study of the system presently.However,the writer of the paper found many insufficiencies on the many research results of torture system in Qing Dynasty,mainly on:1)Research methods and evidences.Researches were mainly based on official legal institutions, juridical cases and historic records instead of folk resources,e.g.fiction on legal cases that reflected common life.Many research results were concluded from inference instead of real historic facts and were thus unconvincing from historiography's point of view.2)In respect of the detailed content of torture system in Qing Dynasty,there is no textual research on the origin of the expression for "torture", insufficient research on mandarins and the meritorious person, insufficient research on whether the torture system was applicable to imperial clan, no textural research on the torture system for Qing characteristic bannermen, no textual research on whether the torture system was applicable to the kindred witness concealing the guilt; and it is not decided yet whether torture system was applicable to all the civil cases.3)More emphasis was put on static research of jurisdiction clauses than on dynamic research on judicial operation procedure of the torture system. As a result,many questions remains impercipient, e.g. who was the subject of the torture case;Was the same torture instrument provided for different punishment degrees;what was the significance and role of the initial confession; and what was the relationship between torture inquisition and initial confession;what was the relationship between torture inquisition and the authenticity of the confession; what were the causes for wrong cases in torture inquisition.4) Insufficient analysis on category,motive and origins of torture system in Qing Dynasty.By profound research of these problems,we will reveal the thoughts of Chinese ancient laws implicated in torture system and recognize the feasibility of torture system in truth discovering. We will further understand the ancient judicial system was cruel in seeking truth through guilty presumption and had caused numerous wrong cases caused thereby. Such research also provides perspective for discussion on restricting torture inquisition in judicial system in present China.In addition,as the Man nationality and Han nationality of Qing Dynasty have different lineage,languages,cultures, custom and nationality,the torture system was of unique national characteristics.By studying bannermen's torture system,we may outline the gradual integration process of Man and Han nationality,which can be a meaningful result of torture system research.Chapterâ… :Torture System in Qing Dynasty.The chapter defines the meaning of "inquisition by torture",analyzes whether there was any torture system before the Qing boarded the pass and verifies the legal condition,objective, category, method,applicable scope of the torture system.The following conclusions are made:1)The expression of "torture" was firstly appeared in Chapter 18 of History of Ming Dynasty in History of Twenty-six Dynasties.2) There was not torture system before Qing boarded the pass.3)The legal condition for using torture inquisition to coerce affidavit in Qing Dynasty was that "five listening to" examination and interrogation failed to obtain the same.Torture inquisition should be called off on the following special days:the first and sixth month of each lunar year, the first and second day of each month, fast days and celebrating days.The following persons can be exempted from torture inquisition:persons related to Eight Deliberations,persons at age of seventy or over,persons at age of 15 or less,disabled person,persons with serious disease,women in pregnancy and the kindred witness concealing the guilty.Inquisitors who offended the law in torture inquisition would receive administrative punishment or crucifixion.4) As far as object is concerned i)Torture procedure for mandarins and meritorious person included asking for permission of interrogation and deposition.For officers above the third rank, application for approval was also required.Upon deposition, mandarins had to be removed cap, be locked and judged.ii)Under separated governing system, the inquisitors of bannerman office and Executive Department were entitled to torture bannermen.Han counties in the province were not entitled to torture bannerman.However, Fengtian prefectures and counties were exceptions according to stipulations in the 44th year of Qianlong Period.iii)Torture system was also applicable to imperial clan Jueluo.The torture procedures included:application for interrogation and conviction,removing official cap for kneel-trial and interrogation by whipping; 5)The paper divided the "torture system" into three categories,i.e.legal torture, overuse torture and cruel torture.Qing Dynasty provided precise measurements for legal torture inquisition on such respects as torment instrument,torture frequency,tortured part of body,intensity and duration.Tortures of different natures were inflicted on offenders of different cases with a purpose to obtain truth without causing severe injury or death."Limit pains to skin only without any injury of lambs"was the standard for distinguishing legal torture from cruel torture. In addition,the same torture instrument may affect different torture degrees due to different instrument in new and old, dry and wet, different tormentors and torture methods.6)Studied the applicable cases of torture system in Qing Dyansty.The torture system was applicable to all civil cases besides criminal cases.Chapterâ…¡:Judicial operation of torture system in Qing Dynasty. According to Qing code,torture should be used to extort confessions. The paper focused on "correct confession" and concluded the following:1) The paper concluded that torture system was the common used inquisition method for all mandarins,including merciful and merciless officers.2) The paper analyzed why people were extorted to confession by torture from physiology and psychology's point of view. By probing the executor's juridical practice and experiences,the paper proved that torture inquisition was the effective way for executor to obtain confession.3)The paper demonstrates the possibilities for revelation of truth by torture inquisition in such respects as worthiness of confession by suspected criminal,methodsused by the inquisitor in judging "correct confession",acquirement of "correct confession" and torture measurements.Homicide case and theft case were provided to support the demonstration.4)The paper discussed the significance and role of the initial confession in Qing Dynasty and expounded that torture inquisition helped to obtain and defense initial confession,indicating initial confession is the purpose as well as the basis of torture inquisition.5)The paper analyzed the defects in torture practice that tends to bring wrong cases.The subjective reasons are:i)the inquisitor was subjective and incapable of getting truth through professional legal kills or purposely used torture inquisition to fabricate wrong case due to political prosecution or for personal consideration;ii)the torture recipient, especially those innocent and craven civilian,could not bear the tortures and thus provided wrong and false confession.The objective reasons are:i)insufficient evidence;ii)wrong torture object;iii)error evidence for torture;iv)private adviser purposely deleted or revised the original affidavit and the inquisitor interrogated according to the revised affidavit in review hearing.Chapterâ…¢:Analysis on category, motive and cause of torture system in Qing Dynasty. Based on the above study of the torture system and the juridical procedure, the paper concludes:1)main types of torture in Qing Dynasty included torture for political persecution, torture for justice, torture for self defending (to evade law or avoid false accusation), torture to show power (show off power and capability in torture),torture for corruption,torture in habit (to show off might, unwilling to hear case, try to end the case as soon as possible or follow usual practice), arbitrary torture,etc.2)The motives for Qing Dynasty inquisitor to practice torture:for political persecution,for revenge and justice,for personal interests (to survive,pursue and show off power,success and mighty, aspire for wealth) officers'laziness and unwillingness in duty conducting.3)Causes for torture system in Qing Dynasty:Considering that man's recognition of objective world is largely restricted by subjective consciousness as well as by the society,culture,nationality and time,the paper made a comprehensive analysis on the many factors that led to torture practices in interrogation,mainly include:i)subjective reason:the inquisitor was incompetent and lack of experience and skill in dealing with the case,or was lazy and unwilling to conduct duty or make investigation;ii)objective reason:due to backward technology and inferior objective condition,it was difficult for inquisitor to take evidences or even to source truth evidence;iii)other causes for torture practice include:feudal autocracy,restriction clauses on provision and conclusion of a case in Qing Code,guilty presumption and neglect of individual rights,strict rule on case handling,influence of performance evaluation and promotion system,limited judicial outlay, Lack of judicial democracy and imperfect monitoring system,and consent of populaces,etc. Upon comprehensive analysis,the paper concluded that there were multiple causes (including social,technical,cultural factor and subjective opinion of the inquisitor) for torture practice in Qing Dynasty.Thus, existence of torture system in Qing Dynasty was reasonable and inevitable in objective sense.Chapterâ…£:Abolishment of torture inquisition in late Qing Dynasty. Based on the existing research,the paper discussed the reasons for abolishment of torture system and analyzed why the torture system was still remained for capital crime in late Qing Dynasty. The paper related the disputes on abolishment of torture system aroused between the imperial censor Liu Pengnian and the minister amending the code and depicted the imperial censor Qian Nengxun and other's worry on immediate abolishment of torture practice,thus to illustrate that there was common concern among bureaucratic group about immediate stop of torture system.Also,the paper particularized that the ukase of abandoning torture system was not well implemented, which indicated that the"judicial independence"system of Qing Dynasty was ineffective in stopping torture system.The above arguments conclude that Qing Dynasty's reform on torture system to maintain the old feudal system was incomplete both in content and in implementation.Conclusion:Upon textual research on torture system in Qing Dynasty, we realized:Objective necessity for existence of the ancient torture system does not means that the system was reasonable.The torture system was a wrong and vicious way to seek for truth.With increasing consciousness of humanism and improved scientific recognition, inquisition by torture will be thoroughly withdrawn from historic arena. The paper reached following conclusion:1)feudal hierarchy was the soul of the torture system in Qing Dynasty.Torture for political persecution showed that the torture system, in the final analysis, was the tool for feudal governor to achieve political ruling.The strict torture procedures for mandarins, meritorious person and imperial clan Jueluo implicated the feudal hierarchy of Qing Dynasty as well as the Confucian thoughts on the virtuous-vile hierarchy,without prejudice to the principle of "mandarin class can be exempted from punishmenf".This helps us to have a better understand of the formation and profound influence of "etiquette" and "officialdom" under feudal hierarchy.Under separated governing system, Except Fengtian prefectures and counties, Qing dynasty deprived right of Han Counties in the province in torturing bannerman, which indicated that the feudal hierarchy was also applicable to torture system in Qing Dynasty.2)Ethicality was another characteristic of torture system in Chinese legal system.The Qing Code prescribed that relative of offender should not be served as the witness and should not be tortured.Thus,we concluded that the torture system in Qing Dynasty was based on Confucius ethic and represented feudal ethical code as well as the basic spirit and characteristics of feudal clan ethic.3)Another characteristic of torture system in Chinese legal system was to follow nature and heavenly laws. The Qing Code required suspension of punishment in the first and the sixth month of the lunar year,with a purpose to follow heavenly law and show solicitude to civilians.This represented the thoughts of cautious punishment".The code also required to suspend torture inquisition in days for sacrifice (the first and second day of a lunar month and fast day) to show respect for ancestor and gods,which presented the thought of "in conform to heavenly law in lawmaking".4)Torture system was the outcome of the autocratic system.The fundamental of the autocratic system was to treat mobs like animals by horrible means.In order to maintain monarchial power and consolidate a safe and orderly reign,the rulers under autocratic system had to adopt cruel means to suppress and let them succumb. Qing Dynasty established the regime by conquering.Heterogeneous culture and racial feeling had always been the major threatens to imperial reign of Qing Dynasty.When there was no sufficient evidence for a major case, the ministry of justice had to firmly fight against the suspects instead of indulging them.Torture system was inevitably the most effective tool for the ruler of Qing Dynasty to crack down criminal and achieve class oppression and political persecution.