在省例与习俗之间:清代闽东契约书写格式中的法律意识

Between Provincial Law and Custom:Legal Consciousness in the Writing Format of Mindong Contract in the Qing Dynasty

省例是清代国家律例的重要补充形式,上承国家法宗旨,下接地方习俗。同治《福建省例》对乡村绝卖、活卖或典当田宅等契约书写均有固定模式,约束契约书写格式。但民间社会书写契约时并未完全遵从省例,保留有明显的习俗痕迹。闽东文书无论是绝卖缴税的红契还是活卖或典当不缴税的白契,多为单契。闽东乡村女性立契的形式,不仅反映了省例与习俗交织互存的关联,也显示出人们在乡村买卖田房时存有国家在场的意识。

Provincial law is an important supplementary form of national law in the Qing Dynasty.It is the subdivision of national law according to provincial conditions and the local law exercised in a province.The writing of contracts in the Qing Dynasty was restricted and regulated by provincial law.The academia mostly focused on economic history,and seldom studied the influence of provincial laws on the writing of contracts from the perspective of legal history,ignoring the important role of provincial law in the writing of contracts.Provincial law is an essential bridge of communication between national law and folk customs in the Qing Dynasty and is the product of harmonization between national law and local customs.The sale of fields and houses in the civil society in the Mindong in Qing Dynasty was carried out through written contracts.Since at least the 25th year of Qianlong s reign,Fujian had promulgated the provincial law of“lease and sale contract type”to regulate the writing of contracts such as complete sales,flexible sales,or pawn of rural land and houses,and promote the fixed format of all kinds of contracts.The existence of a large number of contract documents presided over by women reflected that the writing of contracts in Mindong was influenced by both provincial law and folk customs.As a vulnerable group in traditional society,the contracts presided over by women were written on behalf of others,or they dictated their own wishes,but the format of contract writing was similar to the common Fujian contracts.It can be seen that the provincial law s subdivision of the national law on the sale of land and houses was accepted by the civil society.Although the format of the tail of the contract presided by women in Mindong was not completely uniform,the main idea was consistent with the provincial law.To avoid paying taxes or being extorted by petty officials,the folk did not fully obey the provincial law when they wrote,so that there were obvious traces of custom.Generally,all kinds of contract writing presided over by women in Mindong were in accordance with provincial law,and there were only slight differences in the“ghostwriting”,“people”or sequencing at the end of the contract.Whether it is the red contract that needs to pay taxes for complete sales or the white contract that does not need to pay taxes for flexible sales and pawns,most of them are in the form of single contract,which is quite different from the requirements of“up and down contracts”stipulated by the provincial law.On the one hand,it is related to the government s failure to comply with the law and regulations;on the other hand,it is related to the inherent customs of rural acquaintance society,which reveals the relationship between provincial law and customs in rural daily life.Based on the analysis of a large number of original contracts,this paper draws the following conclusions.Firstly,women were at the edge of traditional society,but they increasingly emphasized their components when they led the contract,indicating that women s autonomy was constantly awakening.Secondly,provincial law and customs were interwoven,forming the consciousness of the presence of the state in rural society,and highlighting the deep-rooted customs.Thirdly,focusing on the provincial law is the key to understanding the same writing format of contracts in different regions,further promoting the stagnant contract research in academia.