薛允升的第二类著作——其中一些明显经过他人编辑，更加难以捉摸。它们似乎是由技术性更强的文本组成，或牵涉司法尤其秋审文牍的撰写，或是薛在刑部任内制订的本部规章和其他制度性篇什。有些文牍可能是为了薛自己的工作参考，其他则为了他的同僚起草，被同僚在日常司法实践中奉为“圭臬”。然而，薛允升并不将之视作值得出版的重要作品，而是允许这些著作以抄本形式流通，同时也没有刻意掌控内中知识的准确性。显然，这些就是沈家本欲在《薛大司寇遗稿》名义下汇辑的文本实例。沈为《薛大司寇遗稿》撰写了序言，但事实上无法确定该书业已完成。家红得出的结论是：沈家本最终放弃了这项出版计划。
其实，我们并不清楚薛允升撰写的这些并不准备出版的司法指导用书的确切名单，薛任由这些著作以并不确实可靠的抄本形式在刑部同僚间流传。近年一些抄本再次浮出水面：诸如关于秋审术语和短句的《秋审分类批辞》和作为“秋审略节”撰写的教本——《秋审略例》。在本书最后，家红提及几种不同地点和不同条件下的《秋审略例》，以及一些奏折。这些内容在沈家本看来，也理应属于计划出版的薛允升遗稿。
对于缺乏实务经验的官员而言，这些遗稿显然就是为他们专门准备的指导用书。事实上，家红这部分讨论也涉及进入刑部的官员如何进行法律培训的问题。总的来说，这本书的引人入胜之处在于，它提供了19世纪末刑部的内部日常生活，刑部人员的行为和能力水平，团体和派系的存在，诸如此类。
据光绪版《大清会典》，刑部17省清吏司包括郎中、员外郎和主事在内，共有各级官员111名，负责审理各类法律案件。此外，还须增加一个未知却可能很庞大的数字：额外主事、试俸官员，以及京小官。同样，还有纸面上大约100名，但实际上更多的部内属吏。对此，本书并未言及。换句话说，这是一个庞大的官僚系统。可以想见，如同任何官僚机构那样，各位刑部职员的能力和贡献并不均一。人们并非因为在法律方面具有特殊才能进入刑部，相当多的刑部新职员——包括薛允升在内，都是在随机抽签的“签分刑部”过程中，派赴刑部学习行走。法律事务处理能力和知识智力上的真正投入，只有在他们来到刑部后才能显现出来。理论上，新职员被委托给经验丰富的官员，教授法律和司法程序的基础知识。但当他们获得新任命前，有人也可能没有学到多少法律知识。相比之下，那些成为权威法律专家的人当中，有的在部里工作了相当时间——长达二十年甚至更久，不断获得升迁，直至他们中有人被任命为知府或者御史。
本书介绍了一些刑部专家的传记片段。他们的职业生涯依循上述模式，并成为薛允升的亲密合作伙伴和崇拜者。家红征引了大量关于薛允升的评价，但仿佛所有作者都强调薛允升在刑部里面的崇高声望，凭借其精深法律知识和丰富司法实践，不断向门生故吏施加影响。通过现有资料我们可以鉴识出来至少25名刑部职官，成为薛允升律学作品的积极合作者。但其他人士散佚不传，家红估计总数应该超过50人。换句话说，这些人可以看成刑部精英之代表，但只占当时刑部全体实职和额外刑官的一小部分。
某些要求严格的刑部堂官认为，绝对有必要对属员进行培训、考核和提升。家红旁征博引地提醒我们，事实上刑部官员的平均能力远非足够，法律事务公认比较繁难，一般官员常常对此缺乏兴趣。因此，有时会出现一些比较积极的刑部尚书或者郎中，试图补救此弊。就像光绪初年发生的，在薛允升和其他人士强烈推动下，提升下属官僚对于律例细微之处的理解。本书征引的一个文献表明，1882年薛允升如何命令每位刑部司员将《大清律例》内的“妇女实发”——即女性是否应该实际执行流刑的法律条文，以说帖形式，指摘其中难点，并提出相应修改建议，以便考核他们的能力。在薛允升看来，结果不容乐观，因此他从自己的角度汇总大家意见，以便给同事们提供参考。
另外一位作出类似努力，力求强制教育司员，让他们恪尽职守的刑部尚书是赵舒翘。他也是陕西人，1898年接替薛允升出任刑部尚书。后来，1900年薛又在西安再次接任此职。赵全面系统地和每一个司的司员会面，询问他们有关清律的细节问题（通常很少有人能够回答），并鼓励他们努力学习。
在19世纪末和20世纪初，尽管许多人明显对此抱以冷漠和无知，甚至有些人不在其位，不司其职，但杰出而博学的官员们发挥的领导作用无疑提高了刑部人员素质和智识合作精神，也为沈家本等人监督和启发下开展法律改革创造了有利条件。由此来看，晚清数十年似乎是刑部历史上一个特殊时期，甚至是中国法律史的一个特殊时期。清朝前期是否也有类似行为和创造悸动，尚无法确定。我倾向认为，这个晚清律学的“黄金时代”虽然引人注目，但除了发生在第一次彻底改革中国治理方式的尝试前夕，事实上它并不唯一。
很明显，19世纪末这些提升法律知识的努力主要围绕秋审进行。秋审不仅调动了刑部最优秀人才，而且发展出特定的知识体系和司法程序。我们通过本书得知当时有两个学派——陕派和豫派，他们皆以秋审处为中心，并由著名的法律专家领导。两个学派在知识上的具体分别，我们还不是很清楚，似乎陕派在培训和挑选官员方面更为严格，但我们并不知道更多细节。不管怎样，薛允升被公认为陕派领袖，尽管他的门生和紧密合作者的圈子远远超出这个范畴。实际上，这两个学派与争权夺势的地域性派别有很大区别。恰恰相反，属于这两个学派的官员来自多个不同省份，绝非仅凭同乡关系而互相支持。据说，他们的唯一目的在于法律知识的提升。来自浙江的沈家本好像保持中立，即便不能准确将之归为薛氏门生，但毫无疑问，他也是薛允升的紧密合作者。
刑部当然也有地域性派别。显然最有势力的派别来自直隶。不知何故，来自直隶的刑部官员数量最多。1897年薛允升受到攻击，导致其降为宗人府府丞，这样的迁官被视作职业上的耻辱。这场攻击便来源于直隶一名颇有势力的官员——李念兹。李对薛允升怀恨在心，因为薛曾否决他对某一职位的营求。在李的阴谋下，两名御史弹劾薛允升犯下几项严重罪行，包括管理部务有所偏倚，收受生日贺礼，受财枉法，但薛最终由吏部查清免罪。另一方面，他被降职的理由其实是他的侄子牵涉案件腐败，薛则企图包庇。
薛彼时在刑部的地位似乎有所减弱。或许因为他独裁专断，偏向陕西同僚，以及某些人认为的恃才自傲，在他的同僚——至少一部分人中间已经积累不满。此外，1896年一名宫内太监杀死京城治安兵勇，尽管皇太后和光绪皇帝当时都主张从轻处罚，但薛坚持将之处以极刑，因而惹怒了慈禧太后。
无论如何，一位如此声名显赫的大臣，专业能力、知识才华和法律水平受到一致赞扬，却未能免于嫉妒，亦无法免受政治迫害。发生这样的事情，反而赋予他一些人性色彩，至少我是这样认为的。人物的另一面，是他对19世纪末中国社会日益严重的问题—所谓“矛盾”—的深层焦虑，增加了他作为法律专家的思想深度。这是家红在《读例存疑》的一些按语里找到的，薛允升在此用“世变”揭示罪名条例繁复如何损害清律的一致性。对于这种通常只针对特定一省的条例繁复，最终导致失去协调性，薛允升感到痛心。由此必然导致法律日益与社会脱节。然而，薛允升是否意识到他毕生奉献的神圣的中国法律机构此时已经临近家红所谓的“黄昏”，却很难说。
面对同僚堆积如山的正面评价，薛允升自然也有其缺点。一旦他成为全权的刑部尚书，甚至领导满族刑部尚书，他所获得的主导地位很可能最终使他与世隔绝，而不去在意那些本不属于他所偏爱的小型精英团体的僚属们的不满和沮丧。另一方面，亲密合作者和崇拜者的圈子组成这个小型精英团体，依然完全忠诚于他。不仅如此，家红所引用的材料使我们对于他们与薛允升始终保持的亲密关系，凝结这个团体的同志友谊，彼此之间的互动，乃至刑部以外的社会生活，多了几分了解。如何获得这种职业环境更为具体的影像，本身就很值得研究，而这不过是家红这部博大精深的著作为未来研究所开辟的众多道路之一。
魏丕信
法兰西学院, 巴黎
“Loss and Reappearance” (散佚與重現): in his new book bearing that title Sun Jiahong tells us about the unexpected recovery of several manuscripts originally compiled by the hero of his story, the great late-Qing jurist Xue Yunsheng 薛允升, and displaying various degrees of editing. More crucially, Mr. Sun shows us all the interesting and important information that can be extracted from those scattered and at first sight rather dry-looking bits of text (they are mostly incomplete fragments, and some are in a poor condition)—at least when one possesses the deep familiarity with the field and with the relevant sources that he has developed over years of research.
As reported by various sources, by the time Xue left Beijing in 1900 during the Eight-Nations army occupation of the capital, following the Boxer troubles, and returned to his native Xi’an, where the Qing court had found refuge, he reportedly had more or less completed, or at least worked on, several works which he apparently intended for eventual publication: Tang Ming lü hebian 唐明律合編, Duli cunyi 讀例存疑, Hanlü jicun 漢律輯存, Hanlü jueshi bi 漢律決事比, Dingli huibian 定例彙編, and Fuzhi beikao 服制備考. According to Shen Jiaben, already on the eve of the 1900 troubles four of these—Han lü jicun, Tang Ming lü heke 合刻 (hebian), Duli cunyi, and Fuzhi beikao—were considered as “finished” (成書) by Xue, and funds had been assembled by his colleagues at the Ministry of Justice (the Xingbu 刑部) to put them to print, but the project was stopped by the events.
When Shen Jiaben rejoined Xue Yunsheng in Xi’an after he was let go by the Western military officers who had arrested him in Baoding, he asked Xue about his manuscripts, and Xue told him that of the above-mentioned four works, only Hanlü jicun had been left in Beijing, the three others were safely with him. It seems that the manuscript of Hanlü jicun had been entrusted by Xue Yunsheng to a colleague who refused to give it back after Xue’s death; the text was retrieved only much later and it is now held by the Fu Sinian library in Taiwan (there is another manuscript copy in the library of Peking University). Of the three other works, which Xue Yunsheng had handed over to Shen Jiaben in Xi’an before they departed for Beijing with the court, only Duli cunyi could be published shortly after his death in Kaifeng in late 1901, on the way back to Beijing: it was edited by a team of Ministry of Justice officials headed by Shen Jiaben, then presented to the throne, and finally printed in 1906. As for the manuscripts of the two remaining works, they were taken away by a certain Fang Lianzhen 方連軫, a former Ministry of Justice official who had been close to Xue Yunsheng and was now an official in Anhui, where he planned to edit and print them—but he was never able to do it. In 1922 Tang Ming lü hebian could be borrowed from its then owner and published by Xu Shichang 徐世昌. Finally, after it had passed through many hands an incomplete manuscript copy of Fuzhi beikao ended up in the Shanghai library; it has never been printed.
Such is more or less the story that Sun Jiahong tells us in the greatest possible detail and basing himself on a large array of sources; but as we shall see there is much more in his book. In effect, today only two books by Xue Yunsheng are widely available to scholars in convenient modern editions: Duli cunyi and Tang Ming lü hebian. These are major works, massive and learned compilations which remain important sources for the history of Chinese law and which all of us are constantly referring to. In a section of the present book Sun Jiahong has endeavored to painstakingly extract from the Duli cunyi received text every possible bit of information on the historical development of Qing law, and to present the results in a clear, statistical form, while providing indications on its connection with social change (this last aspect would indeed deserve to be developed). But he discusses many other writings by Xue Yunsheng as well, and in particular he allows us to form an idea of the methodology adopted by Xue and the various ways he produced different sorts of texts.
There seems to be two main categories among these. The first category consists of a set of works that Xue Yunsheng edited with the view of ultimately publishing them—these are the various titles mentioned above. His aim in these works, apparently, was to produce a critical and historically-informed inventory of all the legal provisions—both statutes and substatutes—that went into the Qing penal code as it stood by his time, that is, in the Tongzhi and Guangxu periods. (The last systematic revision of Da Qing lüli was carried out in 1870, and according to Xue, who had participated in it, it was not a very good job.) This was not mere scholarly erudition, however. Xue Yunsheng was quite critical of many aspects of the Qing code—and openly so: Sun Jiahong debunks the myth that out of political caution Xue would criticize the Qing Code only indirectly through his considerations on the Ming Code, of which in fact the Qing Code was far from being a simple reduplication, as it is often said. (In his section on the evolution of Qing law as seen through Duli cunyi, Sun Jiahong shows how different from Ming statutory law the 1646 Qing Code and its successors were.) Xue Yunsheng’s goal was to locate inconsistencies in the Qing Code and trace their historical origins, find about useless or obsolete articles, discuss the appropriateness of punishments in certain articles—here comparison with Tang law was important—and so on. All of this was done with the aim of improving the Qing dynastic code when it would be ultimately revised, of making it into a more coherent, more objective, and more just body of law. Xue Yunsheng did not live long enough to witness the effort launched by the Qing court in the early years of the twentieth century to not just improve the Penal Code, but drastically reform and modernize it so as to respond to foreign pressure and make Chinese law more compatible with international standards, without however sacrificing its “Chineseness”—an effort in which, as we know, Shen Jiaben 沈家本 was the leading actor. Yet it is known that all the thinking that Xue had put in his commentaries (his anyu 按語) to the statutes and substatutes in Duli cunyi considerably influenced the work of the “New Policies” (xinzheng 新政) reformers of Chinese law.
As far as methodology is concerned, we learn in the present book that during the several decades he spent at the Ministry of Justice Xue Yunsheng proceeded by carefully accumulating and writing down the results of his research. The outcome, it was said (and Sun Jiahong’s research and systematic comparisons confirm this), was a giant but somewhat unwieldy manuscript comprising more than a hundred large fascicles (some say a hundred and several tens), a kind of database whose exact form and content we cannot know, since it has not been preserved: I would imagine—and this is suggested in an essay on Xue Yunsheng by his fellow Shaanxi man Li Yuerui 李岳瑞—that, similar to Tang Ming lü hebian and Duli cunyi (the contents of which were extracted from it), the underlying structure of the database was the succession of statutes and substatutes in Da Qing lüli 大清律例, to which Xue would attach all the historical and theoretical data, parallel texts, commentaries, etc., he could find as he advanced in his research. But it may also have been arranged by topics, or better, by periods—at one point Sun Jiahong suggests the possibility of a “section on the Tang Code” (Tanglü bufen 唐律部分) within the manuscript: we know that Xue’s concern was to study the evolution of law over the entirety of historical times in order to evaluate its present condition and make suggestions for its future. In any event, this mega-compilation was clearly not publishable in its current form, and for this reason Xue decided to prune down its contents, edit them, and, especially, reorganize them (or parts of them) into discrete treatises on particular topics, among them the four works mentioned above, which by 1900, as we saw, were in a state of sufficient completion to be considered for printing.
This was no solitary work. For example, Shen Jiaben mentions at one point that he occasionally participated in the research and editing for Xue’s original database, and obviously he was not the only one. More generally, Sun Jiahong cites a number of sources showing that a lot of collective work was going on at the Ministry under the guidance and supervision of Xue Yunsheng: everything indicates that Xue’s formidable erudition, intellectual authority, and hard-working habits conferred enormous prestige and influence on him and attracted the collaboration of junior colleagues who were eager to learn from him and participate in his great endeavor as research assistants, as editors, or even as mere copyists. Such collaboration is made especially apparent in the fragmentary manuscripts of Duli cunyi that Sun Jiahong has been lucky to discover in Beijing, Shanghai and Tokyo, which form an important part of the new evidence he adduces. The first section of his book is devoted to an exacting description and analysis of these manuscripts, which cover about one fifth of the complete Duli cunyi text. What they are showing us is work in progress: Xue Yunsheng would entrust younger colleagues with copying sections of his work, and then insert his own edits, cross out or modify sentences, add new remarks, use the scissors-and-paste method to rewrite segments of the text, redirect certain materials to other works he was planning, and insert instructions for future printing. These corrections of his own text by Xue Yunsheng appear to be quite substantial. They show that his ideas on certain points of law were liable to change during the long process of preparing Duli cunyi—and, it would seem, to change in the direction of a more critical approach to the text of the Qing Code. At the same time, his collaborators, some of whom are known by name, would also insert their own edits, paste slips of paper (簽條) with new opinions and new text, and intervene in various ways. Such was the case in particular with the posthumous editing and preparation for publication of Duli cunyi, which was a collective endeavor by Xue’s former colleagues and disciples, as attested by the score of collaborators whose names are listed in the memorial presenting the work to the throne. The new materials found by Sun Jiahong also demonstrate that during this last stretch of editing Duli cunyi the influence and intervention of Shen Jiaben, who was in charge of the project, was paramount—indeed, in one of his prefaces Shen does not hesitate to refer to himself as a “compiler” (bianzuan 編纂). As a matter of fact, it can be seen at places that his choices were different from those of Xue Yunsheng, that he added commentaries of his own, and that he left some questions open for further discussion. In general, it seems clear that Shen Jiaben’s contribution to the received text of Duli cunyi as it was eventually published was considerable.
A whole section of Sun Jiahong’s book is devoted to another treatise which was also extracted from the large database assembled by Xue Yunsheng during his decades at the Ministry of Justice, entitled Dingli huibian. Contrary to Duli cunyi and the other works that Xue had more or less completed by the end of his life, the exact circumstances of this one are somewhat elusive. The text is mentioned in the fanli 凡例 of Duli cunyi, according to which it was intended to be a sort of appendix to the main work, consisting of a compilation of the original memorials (yuanzou 原奏) and edicts (yuzhi 諭旨) discussing the creation or modification of substatutes (li 例). It can be seen in the Duli cunyi manuscripts analyzed by Sun Jiahong that at least some of these materials featured in the Duli cunyi original draft, but were then excised and redirected to Dingli huibian, still in the making. It is in fact unclear whether Xue Yunsheng was ever able to complete Dingli huibian. The reason why he was eager to compile these memorials was not only to offer the reader the full circumstances of the creation or modification of substatutes (i.e., not just the dates, as in Duli cunyi), but also, more simply, to preserve them from being scattered and lost: in his time, he said, only those posterior to 1750 were kept at the Ministry, and much research was necessary to retrieve the contents of about half of the earlier ones.
Today we do have access to at least a part of this lost text. A manuscript which apparently bore the abbreviated title Huibian was acquired in 1998 by my late friend Tian Tao 田濤, who published it in 2002 under the title Tang Ming Qing sanlü huibian 唐明清三律彙編. (The present whereabouts of the original manuscript are not known and Sun Jiahong was not able to examine it.) The problem discussed here is that in their introduction Tian Tao and his co-author Ma Zhibing 馬志冰 misinterpreted the text as a comparison of the codes of the Tang, Ming, and Qing dynasties, seen as a sort of continuation to Tang Ming lü hebian—hence the title they decided to give to the published edition. But as Sun Jiahong demonstrates, its nature is completely different: about three quarters of the so-called Tang Ming Qing sanlü huibian consist of memorials and edicts related to the creation or modification of substatutes—in other words, Dingli huibian materials, some of which can be found on slips pasted in the Duli cunyi manuscripts in Beijing and Tokyo, but were later excised. Sun Jiahong therefore concludes that Dingli huibian might be a more appropriate title for the manuscript rescued and published by Tian Tao.
The second category of works by Xue Yunsheng (some of them heavily edited by others) is much more elusive. They seem to consist of texts of a more technical nature, regarding either the writing of documents—particularly Autumn Assizes documents—or Ministry regulations and other institutional matters, which Xue produced within the Ministry of Justice. While some may have been reference materials he kept for his own work, others were drafted for the sake of his colleagues, who would then use them as “revered models” (guinie 圭臬) in their daily activities. Xue did not regard these writings as important works deserving publication, and he allowed them to circulate in the form of copies, the accuracy of which he did not attempt to control. Such apparently was the case of the texts that were to be compiled by Shen Jiaben as Xue’s “posthumous manuscripts” under the title Xue da sikou yigao 薛大司寇遺稿, a work for which Shen wrote a preface but which has not been preserved—in fact it is not even sure that the manuscript was ever completed, and Sun Jiahong concludes that Shen eventually dropped the idea of publishing it.
In reality, we do not know the exact list of these practical guides and anthologies of materials that Xue Yunsheng did not care to edit and publish and that circulated among his colleagues in the form of more or less faithful copies. Some have resurfaced: besides Qiushen fenlei pici 秋審分類批辭, a glossary of terms and phrases related to the Autumn Assizes, and Qiushen lüeli 秋審略例, a textbook on writing Autumn Assizes “case abstracts” (lüejie 略節) to which the last section of the present book is devoted, Sun Jiahong mentions several pieces, including some memorials, that he has been able to retrieve in various places and in various conditions. Indeed, some of these pieces may have been considered by Shen Jiaben for inclusion in the collection of Xue Yunsheng’s posthumous manuscripts that he planned.
These “posthumous manuscripts” appear to have been mostly guidebooks aimed at officials lacking sufficient experience. As a matter of fact, the section where Sun Jiahong discusses them also deals with the question of how the officials entering the Ministry of Justice were trained in law. And more generally, one thing that particularly interested me in his book is all the information he provides along the way regarding life inside the Ministry of Justice in the late nineteenth century, the behavior and level of competence of its personnel, the existence of groups and factions, and so forth.
