The Research On The Missionary Case During Late Qing Dynasty From The Perspective Of International Law And Foreign Law,1860-1912

After the Peking Treaty was signed between China and French in 1860,foreign missionaries were permitted to enter the central mainland of China to do missionary work,build up churches,rent houses,and buy estates.With the expansion of the churches in the mainland,missionary cases increased.Traditional research on the history of missionary cases mainly focused on facts and causes,of which the mode of narration varied from anti-aggression to cultural conflicts,even to multi-discipline perspective.Simultaneously,some researchers also further studied the history of importing the international law to China,and the application of international law in the foreign affairs.But it is rare to see any research which combine the jurisprudence methodology and the history of the international law into the missionary cases study.The innovation of this thesis is that the author takes the missionary cases as a kind of judicial and diplomatic affairs;hereby,the author studies the acquisition and application of the international law of related groups in the missionary cases.Through analyzing the course of negotiation and judging missionary cases under the framework of so-called "civilized" western legal system,the thesis reveals the accepting course of religious freedom:international law—foreign law—domestic law.According to the modern international law theory,it is forbidden to persecute Christians,or Christian countries have the right to interfere.In addition,according to the Principle of Victoria,the missionary right is one of the three basic standards of "civilized countries".Prohibiting missions or persecuting missionaries is bound to be interfered by other countries.Simultaneously,the life and property of foreigners are protected from infringing upon;Otherwise,it is regarded as violation of the nationality rights.The modern missionaries in China had the former double identities,and were doubly protected by the natural law theory represented by the modern international law,and positive law system represented by the Sino-foreign unequal treaties.In the course of negotiation on the missionary cases,western countries frequently insisted that their behaviors were legal according to the international law and the treaties.The western powers even carried out gunboat policy to threaten China.At the same time,they even took China as the uncivilized country according to the international law theory.Therefore they took it for granted that the strict international law of Europe was not applicable to China.In the Gengzi Incident,western countries actively justify their military and punishing behaviors with natural law theories and positive law rules.They won not only on the battlefield but also in public opinions,while the Qing Dynasty was defeated both in power and in theory.Under the civilized-barbaric international law system,the gunboat policy was taken as effective means to open the gate of China by missionaries.But before the Gengzi Incident,the tension between the mission and political privilege was not manifested for most of missionaries.Got a lesson from the negotiate of missionary cases,the Qing government funded William Martin to translate the Elements of international law into Chinese.The translation signified that the western modern international law was formally introduced to China.But limited by the text and path,in the early missionary affairs,Qing government seldom defend national rights according to international law.With the propaganda of international law,especially after 1890s,the Qing government repeatedly defend with the international law,and succeeded in some missionary cases.Traditional historical researches on the missionary cases paid much attention to the cases where Chinese people were defendants,but they ignored the missionary cases where the foreign missionaries were the defendants,which formed the blind-spots of missionary cases in historical research.It is proved that missionary cases were likely to be solved successfully for Chinese and China's government under the Consular Jurisdiction system.The negotiation and trial of the Wushishan case and the Huchow case were typical examples for that.As for Wushishan case,Ding Richang separated the "church-destruction" case from "land-fight" case.At first,he quickly sentenced the former case so as to avoid the diplomatic blackmail.Then,as to the latter case,he appealed to the highest court of British consul in China,actively collected evidence for the case,found the witness,and hired lawyers.Based these,Chinese people won in the case.Finally,they successfully fulfilled the purpose of the expelling the missionaries from Fuchow city.In the Huchow case,the Huchow gentry tried all possible legal ways to run for the case,eventually reconciled the difference with the South Supervisory Board in the US court in China.As a result,Huchow gentry successfully took back the Fuxue estate,which was of great significance for the Huchow gentry.The success of Wushishan case and the Huchow case proved that the best way to solve the religious affairs is to take them to legal proceedings.Negotiations and trials of the missionary cases greatly influenced the judicial system of China in late Qing dynasty.Compared the trial of missionary case in Baodi County judicial archives with that of central archives,it is found that the missionary cases took on a hierarchical feature,ie the higher for the court,the more unfair for the sentence.This is the very result of solving missionary cases via diplomatic ways.After the Gengzi Incident,in order to reconcile the citizens with the missionaries,the Qing Government made great efforts to prevent missionaries from interfering with judicial affairs,and normalized the procedures of solving missionary cases,ie do with the missionary cases in the legal way,not in the diplomatic way.Therefore,the authority put forward some suggestions to local government and citizens.The local governors also signed some treaties to normalize the Church,Missionaries,and Chinese Christians.Accordingly,local gentry put up organizations to reconcile the disputes,which played-important roles in solving religious affairs.Only completely abolish the Consular Jurisdiction can the balance in the trial of Sino-foreign missionary case be realized.Therefore,China carried out some reforms in judiciary.The Peiking Zhenwu Temple Estate Dispute in 1910 was a typical example of solving missionary case in the new legal system.In the case,the Eastern Orthodox Church was the real plaintiff behind the scene.But Daliyuan,the Chinese Supreme Court,according to the facts and laws,independently sentenced that the Eastern Orthodox Church had to rent or buy the estate in legal way again.In the course of trial,Daliyuan resisted the pressure form Russian minister and the foreign ministry.The trial of the case highlighted the importance of solving missionary cases via legal procedure,not diplomatic procedure.After Gengzi Incident,the western concept of religious freedom was introduced into China,which was accepted by the new intellectuals and Chinese Christians.In the revised edition of criminal law of Qing dynasty,there were detailed provisions that the places and activities of religious worship should be protected.But in the Memorial Advisory Council Charter,the separation of church and state was stressed,which meant that Chinese missionaries are prohibited from political rights.In the Authorized Constitutional Outline of 1908,religious freedom was still not provided.In addition,the new system of education and the etiquettes of official inauguration caused the uneasiness of Chinese Christians.In order to eliminate missionary disputes,and refactor a stable citizen-missionary relation,the new intellectuals also advocated the freedom of religion.In contrast,nonreligious intellectuals were easy to accept the religious freedom under the constitutional monarchy in Europe,which emphasized that religion organizations should not meddle in politics and the state government has the right to control religion;while Chinese Christians preferred American religious freedom under the republic system which emphasized that no religion should be taken as national religion and exempted from Confucianism threat.During the constitution movement in late Qing dynasty,China's Christian also launched a series of campaign to achieve the freedom of mission and equality in faith,of which the core purpose was to constitutionalize the freedom of religion.In 1906,when the Qing government sent ministers abroad for investigation,some Chinese Christians in US wrote to them for constitutionalizing the freedom of religion.After 1909,Yu Kohtsung actively organized the petition movement to illustrate the request of Christianity independence and to regain religious rights.Affected by the petition movement in late Qing dynasty,in 191 1,Yu Kohtsung,Cheng Chingyi and other Chinese Christians launched the petition movement for religious freedom.It is of great significance in China,which ranged 16 provinces and called on 260,000 Protestants in China.There aroused so many supporters,but the oppositional power is also very strong.Some held opposition opinions from the standpoint of religion,some questioned about the methods and strategy.At the same time,the "race" between the revolutionaries and constitutionalists,also exist in Ecclesiatical station.Under the situation of the time,according to the attitudes toward the Qing dynasty,the missionaries divided into constitutionalist and revolutionist.Represented by Yu Kohtsung,the constitutionalists finally shifted to revolutionists.Eventually with the continuous support from revolutionists,religious freedom of American mode was constitutionalized.From the "religious tolerance" established in the modern missionary treaty to the "religious freedom"constitutionalized in 1912,freedom of religion in China experienced a hard course,from the international law and the foreign law,and then to the domestic law.The constitutionalizing of religious freedom built up a separation Barrier between religion and diplomacy,which was of great significance in history.