Imperial China's Border Control Law


Imperial China's Border Control Law

R. RANDLE EDWARDS*

INTRODUCTION

The passage of persons, things, and even ideas across China's
land and sea boundaries was subject to a comprehensive network of
rules promulgated by the Qing state (1644-1911) and its predecessors.
This intricate regulatory system was of functional importance in the
management of China's relations with foreign countries, and it offers
rich food for comparative thinking about the evolution of rules for
interstate conduct. Yet this normative system has largely escaped
study, in part because law was never highly regarded by the official
chroniclers of Chinese history and in part because the rules them-
selves are widely scattered throughout the numerous compendia of
laws and regulations. This article will introduce and examine the bor-
der control regulations and procedures of the Qing Dynasty. Selected
cases will be used to illustrate the dynamic process of interstate law-
making in China's relations with some of its East Asian neighbors in
the later imperial era.

This article has two principal aims. One is to survey the laws on
boundary regulation and show that some of the basic operating prin-
ciples and procedures which developed during the Imperial era resem-
ble concepts or practices separately developed in the West. The other
principal aim is to provide historians of China's foreign relations with
a key to the maze of interlocking rules and regulations which estab-
lished the framework governing Qing foreign relations. This article
also illustrates how Qing officials applied the often conflicting man-
dates emanating from the ideology of the tribute system, on the one
hand, and the stipulations in the regulations of the "Six Boards ' on
the other.

Close study of the records of imperial China's foreign relations
does not support the thesis that China in the past always dictated the
terms of its relations with other states, as suggested by the traditional
"tributary system" model. Rather, this record reveals a complex

* Professor of Law, Columbia University School of Law, and Director, Center for Chi-

nese Legal Studies.
1. The "Six Boards" were the principal executive organs of the Qing state: the Boards of

Civil Appointments, Revenue, Rites, War, Punishments and Public Works.
2. THE CHINESE WORLD ORDER 1-19 (J. Fairbank ed. 1968). See also the seminal study



JOURNAL OF CHINESE LAW

mixture of rules and practices, some reflecting the hierarchal presup-
positions of the tribute model, others representing ad hoc working
compromises between China and other countries. Yet another cate-
gory of rules and practices appears to have been grounded in shared
notions of fairness, equality, reciprocity, and mutual respect for "ter-
ritorial sovereignty."' 3 Indeed, Qing boundary rules and cases span-
ning more than one hundred years indicate that substantive equality
and reciprocity, coupled with Sinocentric hierarchy in form, were the
dominant characteristics of the border control system, at least with
regard to Qing relations with Korea, Vietnam, Siam and Burma.

This essay will focus on Qing relations with these four countries,
with occasional references to the treatment of Western traders, mis-
sionaries, and diplomats. Qing relations with Russia,4 the Mongol
tribes and other nomadic and semi-nomadic peoples on China's inner
Asian frontier will not be examined in detail here in order to isolate
and examine interstate norms that developed in a more or less "pure"
East Asian setting.

The article is divided into four sections. The first introduces
basic concepts and principles. The second discusses sources of Qing
law. Sections three and four survey the border control rules dealing
with the passage of persons, things and ideas across China's national
frontier.

I. QING BORDER CONTROL LAW: BASIC CONCEPTS

AND PRINCIPLES

The core concepts and principles governing the enactment and
application of Qing border control law are introduced under three
topical headings: territory and territorial sovereignty; impartiality,
reciprocity, and equality in Qing foreign relations; and the centraliza-
tion and bureaucratization of the Qing border control system. These
concepts and principles represent the Chinese self-image and do not
always conform to the actual Qing practice. Nevertheless, they con-
stitute the chief guidelines for the behavior of the Qing court and local
officials. Moreover, these basic doctrines were regularly and publicly
invoked by the Chinese authorities, helping to shape rules and proce-
dures accepted on both sides of the Chinese boundary. In other

of the tributary system under the Qing in S.Y. TENG & J. FAIRBANK, CH'ING ADMINISTRA-
TION: THREE STUDIES 107-218 (1961).

3. "Territorial sovereignty" as used in this article means that a government claims, and
is allowed by other states, authority over all persons and activities within its borders. It is not
used with the full meaning of the term in contemporary international usage.

4. For a comprehensive study of the establishment of the Sino-Russian treaty system, see
M. MANCALL, RUSSIA AND CHINA: THEIR DIPLOMATIC RELATIONS TO 1728 (1971).

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words, these notions were fundamental in the evolution of what might
be termed an indigenous East Asian system of international law.

A. Territory and Territorial Sovereignty

Did the Qing authorities have any idea of fixed national bounda-
ries serving as political-legal dividers between two sovereign states?
The answer is unequivocally affirmative. Indeed, it might well have
been taken for granted, given China's long existence as a bureaucratic
state with powers of government delegated to civil and military offi-
cials with precisely defined powers over a given territorial area. Yet,
some scholars have questioned whether imperial China's foreign rela-
tions were significantly influenced by a notion of national powers and
responsibilities based on a territorial principle. Thus, it seems appro-
priate to illustrate this point.

The heavily documented record of Qing foreign relations with its
East Asian neighbors contains numerous references to exact national
boundaries.5 For example, in a dispute arising in 1805 involving con-
flicting territorial claims between China and Vietnam, the Chinese
Governor-General stated that the area in dispute had long since been
a part of Chinese territory (fiu if bantu).6 Furthermore, he continued,
the Chinese had twice previously, in 1782 and 1792, rejected requests
from the King of Annam7 to demarcate the border (shenhua bianjie);
in those earlier cases the Chinese Governor-General had noted that
"the national boundary along the border of Yunnan Province is
demarcated by nature, rendering it unnecessary to delineate it anew"
(Yunnan yanbian jiangie tianran panfen, wu suo yong qi shenhua).8

In a similar dispute with Burma two years later (1807), the same
Governor-General stated in a communication to the Burmese King
that the Sino-Burmese "boundary is quite clear" (iangie shenming);
he attributed an erroneous claim by a Burmese local official to his
"ignorance of the boundary between China and foreign countries."
(buzhi ZhongwaiJiaojie).9 And, in a continuing dispute with Burma
over this area, in 1809 the Chinese Emperor stated that the frontier

5. Several different terms were used to denote the meaning of China's national boundary
as a fixed line: bianjie,jiaojie,jiangie, dingfie and difie.

6. 1 Qingdai Wagiao Shiliao: Jiaqingchao [hereinafter WS:JC] [Historical Materials
Concerning Foreign Relations in the Qing Period: the Jiaqing Reign] 41a (1931), (photo
reprint [hereinafter WS Reprint] 93 (1968)).

7. 39 Da Qing Huidian [hereinafter HD] [Collected Statutes of the Qing] 2a-b (1899),
reprinted with Da Qing Huidian Shili [hereinafter HDSL] [Administrative Statutes with Prece-
dents of the Great Qing Dynasty] in I Da Qing Huidian (photo reprint [hereinafter HD
Reprint] 93 (1963)).

S. 1 WS:JC, supra note 6, at 42a (WS Reprint 95).
9. 2 WS:JC, supra note 6, at 7a (VS Reprint 133).

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regions (bianjiao difang) have fixed boundaries (sheyou dingfie) and he
flatly rejected the suggestion by a Burmese local official that the area
in dispute was under the joint jurisdiction of China and Burma (jun-
xiang guanxia).0 An imperial edict in 1808, forwarded to the Gover-
nor-General of Liangguang (Guangdong and Guangxi) for him to
transmit to the British troops who at the time were illegally occupying
China's territory of Macao, is even more explicit on the question of
national borders: "Both China and foreign countries have definite
boundaries." (Zhongguo waifan ziyou yiding fiangfie).I1

The same border conflict literature contains ample references by
the Chinese emperor or his high officials to the term "territory." Vari-
ous expressions were used to denote the idea of a finite land and water
area under the exclusive control of the central political authority of a
country. Indeed, the Chinese character for "country" (guo) contains
elements representing people (a mouth), defense forces (a spear) and
land enclosed on all sides by a boundary line.

The Qing archives contain voluminous official records reporting
the handling of cases involving violation of China's territorial sover-
eignty. In these documents we find unmistakable indications that the
Qing authorities regarded their political and military authority to be
rooted in the right to control a geographic area within precisely
known parameters. For example, in a case noted above, the British
invaded Macao on the pretext that they were protecting its Portu-
guese residents from French conquest. In response to the British
action, the Emperor and the Liangguang Governor-General issued a
succession of irate edicts and memorials. They declared that the Por-
tuguese in Macao "are living in Chinese territory" (zai Zhongguo
difang juzhu),12 and that "Macao is the territory of the Celestial
Empire" (Aomen xi Tianchao dijie).13 They charged that the English
warships clearly understood the waters around Macao to be "Chinese
sea" (Zhongguo haimian).14 These documents emphatically conclude
that the landing of British troops in Macao constitutes "unauthorized
intrusion into Chinese territory" (shanru neidi). 5

Perhaps the clearest statement of the concept of territoriality in
Qing usage is the following passage from an edict issued by the
Qianlong Emperor in 1793, in which he rejects the English request for
cession to them of two Chinese islands to serve as trade depots:

10. 3 WS:JC, supra note 6, at la (,VS Reprint 239).
11. 2 WS:JC, supra note 6, at 28b (WS Reprint 176).
12. Id.
13. 3 WS:JC, supra note 6, at 2b (WS Reprint 242).
14. 2 WS:JC, supra note 6, at 29b (WS Reprint 178).
15. 2 WS:JC, supra note 6, at 31a (WS Reprint 181).



BORDER CONTROL LAW

The border of the Chinese Empire is very strictly delineated.
Foreigners have never been allowed to violate the border in
the slightest way. . . Every foot of land in the Celestial
Empire belongs to a territorial district with precisely demar-
cated boundaries. Even islands and reefs must be carefully
identified as to location and must be governed by and belong
to a specific territorial unit of government. . . [I]f every
Western government trading with China made such a
demand, it would be impossible for the Celestial Empire to
comply.16

Both the explicit nature of these references and their context
demonstrate that the authors of the statements regarded the rulers of
given territory as exclusively sovereign over it. This is further demon-
strated in several ways: by numerous cases in which Chinese officials
protest intrusions by foreign troops or warships onto Chinese soil or
into the Chinese "internal sea" (neiyang); by exercise of unilateral
control over the conditions of alien entry into and exit from China; by
imposing controls on the foreigners' claim of extraterritorial right to
exercise criminal jurisdiction over crimes committed by aliens on Chi-
nese soil; and by a stated policy denying to Chinese civil or military
officials the authority to intervene in matters outside Chinese terri-
tory. These points are discussed and documented in Sections III and
IV.

Not only was travel across national land and sea boundaries sub-
ject to documentary controls, internal travel was subject to the same
strict regulation. The diary of the Japanese monk, Ennin, who trav-
elled to China during the 9th century A.D., demonstrates that even at
that early date travellers from district to district within the country
were required to possess travel documents that were carefully scruti-
nized at barrier stations on the district boundary. 17

B. Impartiality, Reciprocity, and Equality in Qing Foreign Relations

The suggestion that the principles of impartiality, reciprocity,
and equality influenced Qing foreign relations may come as a surprise
to those who have accepted the view that imperial China had a superi-
ority complex. This inflated self-image, some have argued, rendered
China incapable of accepting an international system founded on rela-
tions between equal sovereign nation states. Although the Sinocentric
world view of the hierarchal tribute system did contribute to China's

16. 23 Yue Haiguan Zhi [hereinafter YHZ] [Gazetteer of Guangdong Maritime Cus-
toms] (photo reprint) 10a-b (1968).

17. ENNIN'S DIARY (E. Reischauer trans. 1955).

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reluctance to enter the "family of nations," also important was its
policy of preferring minimal trans-border activity to avoid disruption
of the domestic political and social order. In handling those interstate
contacts which it could not avoid, however, the Qing Emperor and his
high officials often took pains to emphasize China's adherence to the
principles of impartiality, equality, and reciprocity.

The expression commonly used in Qing documents by officials
stressing China's policy of impartiality is "to regard all with equal
benevolence" (yishi tongren). Usually employed when the Qing
authorities were refusing a request by one country for special favors,18

the phrase yishi tongren was also used to declare a policy of treating
aliens equally with Chinese subjects in a 1772 case in which the Chi-
nese Emperor gave asylum to 400 Annamese refugees. 19 On several
occasions, the Qing authorities based their refusal to be drawn into
quarrels between two other countries on their long-standing policy of
impartiality, claiming to be "not biased toward one or the other"
(liang wu pianxiang),20 "not in the least biased" (hao wu pianxiang),21

or "not making the slightest differentiation in treatment" (hao wu
qubie).22 In declining to get involved in such foreign conflicts, the
Chinese government proclaimed a policy of non-interference (bing bu
guowen) in other countries' problems.23

At least one document states that the Qing might intervene and
take sides in a war if one state were a tributary of China and one
not.24 Actual practice suggests, however, that even in such a case
China might be reluctant to become involved. In 1801, the Qing

18. For example, in 1807 the Qing authorities refused a Burmese request to give them
military aid against Siam. 2 WS:JC, supra note 6, at 4b (WS Reprint 128). This principle was
also invoked at a 1759 meeting where the restrictive Canton System trade regulations were
explained to European merchants by the imperial commissioner who had been sent to investi-
gate their complaints. He noted that "the Celestial Empire treats all barbarians alike," a
message that brought little comfort under the circumstances. 1 A DOCUMENTARY CHRONI-

CLE OF SINO-WESTERN RELATIONS (1644-1820) (L.S. Fu ed.) [hereinafter A Documentary
Chronicle] 221 (1966).

19. 511 HDSL, supra note 7, at 20a-b (15 HD Reprint 11,866). Another phrase connot-
ing equal treatment was used by the Qianlong Emperor in 1737 in ordering succor to foreign-
ers shipwrecked in Chinese waters: "China does not discriminate in the least between Chinese
and foreigners" (neiwai bingwu qishO.

20. From an edict declining involvement in the conflict between Nongnai and Annam. 1
WS:JC, supra note 6, at 4b-5a (WS Reprint 20-21).

21. From a later edict (1808) drawing a comparison between Franco-Portuguese hostili-
ties and the Burma-Siam war. 2 WS:JC, supra note 6, at 28b (WS Reprint 176).

22. 2 WS:JC, supra note 6, at 4b (VS Reprint 128).
23. From an edict of 1808, supra note 21, disclaiming any interest in distant European

squabbles between Portugal and France. 2 WS:JC, supra note 6, at 28b (WS Reprint 176).
24. From an 1807 memorial of the Governor-General of Yungui (Yunnan and Guizhou

provinces), reporting that he had transmitted to the Burmese envoy the Emperor's decree
rejecting the Burmese request for military aid on the ground that the Celestial Empire does not

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Emperor invoked the impartiality principle in refusing a request from
the rebel chief, Nongnai,25 for military assistance against the King of
Annam.26 However, the Emperor did indicate that he would provide
asylum to the rebel and his dependents if Nongnai were to be
defeated.2 7 Aside from the principle of impartiality, another good
reason for Qing neutrality in the Annam civil war was that only two
decades previously Chinese troops had in fact intervened there in an
earlier instance of civil strife in order to protect its vassal, the King of
Annam. The Chinese troops were trounced by the rebel leader who
then acceded to the Annamese throne and became the properly sub-
missive vassal of Beijing.28

The principle of reciprocity is implicit in several policies and
practices regularly followed by the Qing border control administra-
tion. For example, all foreign nationals who accidentally wandered
across the border or were shipwrecked on China's shores were fed,
clothed and returned to their own country at the expense of the Chi-
nese government.29 The Chinese authorities expressed the hope that
other countries would show the same consideration to Chinese sub-
jects in distress.30 Chinese records report many cases where Siam,

take sides in a conflict between two of its vassals. 2 WS:JC, supra note 6, at 4b (WS Reprint
128).

25. A city-state in southern Annam, the modern city of Saigon, now Ho Chi Minh City.
The rebel leader did, in fact, succeed in defeating the King of Annam in 1803. He then
changed the name of the country to Vietnam and was recognized by the Chinese Emperor as
the new King. 7 Qingshi [History of the Qing] 5,759 (1961).

26. 1 WS:JC, supra note 6, at 5a (WS Reprint 21).
27. Id.
28. Lam, Intervention Versus Tribute in Sino-Vietnamese Relations, in THE CHINESE

WORLD ORDER, supra note 2, at 170-72.
29. This policy has deep roots in Chinese history. It was formally enacted as a binding

principle of Qing foreign relations law in an imperial edict issued in the first year of Qianlong
(1735), 513 HDSL, supra note 7, at 14a-b (15 HD Reprint 11,886) and 270 HDSL 4a-b (11
HD Reprint 8,666). Relevant provisions are set forth in 186 Libu Zeli [hereinafter LZ] [Regu-
lations of the Board of Rites] la-2 (Beijing, 1841) (2 photo reprint [hereinafter LZ Reprint]
1092-93 (1966)); for an English translation of the pertinent provision from the Qianlong Col-
lected Statutes, see THREE STUDIES, supra note 2, at 145. For cases involving the application
of this policy, see 1 A DOCUMENTARY CHRONICLE, supra note 18, at 107, 111, 167, 170, 175-
76 and 197. See also 2 H. MORSE, THE CHRONICLES OF THE EAST INDIA COMPANY TRADING
TO CHINA 1635-1834 327 (Reprint edition, 1966) reporting on a case in which six English
sailors who deserted their ship on the coast of Fujian Province in 1799 were fed by the local
Chinese authorities for 120 days and then returned to the head of the British merchant com-
munity in Canton; see STAUNTON, TA TSING LEU LEE 520 (London, 1810) for an appended
translation of an edict from the Liangguang Governor-General to the English regarding an
1805 English shipwreck in which the ship was plundered and its crew robbed. The Governor-
General promised to make every effort to recover the property and punish the thieves.

30. 39 HD, supra note 7, at 13b-14a (1 HD Reprint 43), translation in THREE STUDIES,

supra note 2, at 145; see also 186 LZ, supra note 29, at lb (2 LZ Reprint 1092) and a 1689 edict
from the Chinese Emperor to the Korean King, 510 HDSL, supra note 7, at 17b (15 HD
Reprint 11,853), directing the King both to allow all Chinese merchant ships blown to Korea

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Korea, Liuqiu31, and Annam repatriated shipwrecked Chinese and
were rewarded with presents from the emperor.32

The principle of reciprocity is the basis for China's traditional
practice with respect to the exercise of criminal jurisdiction and extra-
dition.33 Although the actual Qing alien jurisdiction policies fluctu-
ated, they generally reflected a tacit understanding with neighboring
countries that the latter would handle like cases in like manner. It
was also a common practice for China to extradite criminals to
Korea, Vietnam, and Burma and to ask the kings of those countries to
do the same.34 This policy apparently was applied even to genuine
political refugees, with the exception of the 1772 Annamese case men-
tioned above. Thus, in 1779-80 and in 1812, leaders of defeated polit-
ical factions were sent back with their families to Annam.35

The principle of reciprocity was also invoked implicitly by the
Jiaqing Emperor in the following excerpt from an 1808 edict
addressed to the British forces who had illegally invaded China's ter-
ritory of Macao:

After all, can you think of any instance in which Chinese
warships have sailed across the outer ocean to occupy terri-
tory belonging to your country?36

Needless to say, the British would have been hard put to answer in the
affirmative.

C. Centralization and Bureaucratization of the Qing Border

Control System

Management of foreign relations in the Qing Dynasty has several

to sell their goods and return home and to report the particulars to Beijing. A subsequent
edict, in 1722, directs the Korean King to conform to the established rule of sending back
Chinese ships if they possess a license; if not, the King should try and sentence them "accord-
ing to Korean law," submitting the provisional sentence to the Chinese Emperor for approval,
629 HDSL 4b-5a (17 HD Reprint 13,361-62).

31. See Sakai, The Ryukyu (Liu-ch'iu) Islands as a Fief of Satsuma, in THE CHINESE
WORLD ORDER, supra note 2, at 112-34.

32. 513 HDSL, supra note 7, at 12b-28a (15 HD Reprint 11,885-93).
33. For a comprehensive analysis of the Qing law on alien jurisdiction and the evolution

of limited jurisdiction over Westerners in the pre-Opium War period see Edwards, Ch'ing
Legal Jurisdiction Over Foreigners, in ESSAYS ON CHINA'S LEGAL TRADITION 222 (J. Cohen,
R. Edwards, and F.M. Chang Chen eds. 1980).

34. For example, see five edicts from the Chinese Emperor to the kings of Korea, Burma,
and Vietnam between the years 1801 and 1812, in 1 WS:JC, supra note 6, at 9b-10b (WS
Reprint 30-31), 2 WS:JC, supra note 6, at 6a-7b (WS Reprint 131-34), 2 WS:JC, supra note 6,
at 15a-b (WS Reprint 149-50), 2 WS:JC, supra note 6, at 15b-18b (WS Reprint 150-56), and 4
WS:JC, supra note 6, at 3a-4a (WS Reprint 363-65).

35. 4 WS:JC, supra note 6, at 3a-4a (WS Reprint 363-65).
36. 2 WS:JC, supra note 6, at 28b (WS Reprint 176).



BORDER CONTROL LAW

features in common with that in the People's Republic of China
today. One is the strict control of movement either way across
China's borders. Another feature made possible by the restriction on
traffic is the fact that the highest echelons of the government are
informed about, and often participate in handling, even relatively
minor matters pertaining to foreigners. In Qing practice this meant
that the responsible military and civil officials in direct control of bor-
der areas lacked discretion to take decisive action pending instruc-
tions from the emperor.3 7 They had to conform closely to the
prescriptions of the numerous rules and regulations governing frontier
defense. Local officials along the frontier would report (bing) inci-
dents to the governor and governor-general, who would investigate
and then memorialize the emperor. If the matter appeared simple,
the governor-general's initial memorial would propose a resolution,
and the emperor would issue an edict of approval, with or without
amendments. If the matter required communication with the king of
a neighboring country, the governor-general's memorial to the
emperor would enclose a draft (wengao) communication (zhaohui)
from himself to the king,38 and the emperor would deliberate with his
chief advisers in the Grand Council (Junjichu) and would transmit an
edict to the governor-general via the Grand Council. Despite the fact
that Beijing's prior approval was required for all major decisions in
cases involving the national frontier, such as the British invasion of
Macao in 1808, the governors-general, who were known as the "high
ministers responsible for sealing the frontier" (fengfiang dali), were
often impeached and subjected to criminal sanctions if the incident
turned out badly. This usually resulted from a delay in reporting.
Wishful thinking often led the provincial officials to suppress informa-
tion about troublesome problems, hoping that they would somehow
disappear before the central government discovered them. In the case
of the British invasion of Macao, which had lasted far too long to suit
the Emperor, Governor-General Wu was tried and sentenced to ban-
ishment to Yili for delaying his initial report and for failure to take
resolute steps to expel the British.3 9 Wu received no credit for the fact
that his patience and his use of the denial of trade to the British con-

37. This discussion of the Qing decision-making procedure in cases involving frontier
defense is based primarily on hundreds of cases in the Huidian Shill (HDSL), supra note 7, and
the Qingdai Waifiao Shiliao: Jiaqing Chao (WS:JC) supra note 6. Reference to virtually any of
the specific cases cited in the footnotes to this article would illustrate how the process worked
in concrete instances.

38. For example, see the draft communication from the Governor-General of Yungui to
the King of Burma in 1807, in 2 WS:JC, supra note 6, at 6a-7b (WS Reprint 131-34).

39. 3 WS:JC, supra note 6, at 16 (WS Reprint 269).

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tributed to their eventual withdrawal from Chinese territory without
the loss of a single Chinese life.

Substantive rules governing China's foreign relations accorded
neighboring countries more or less equal treatment with China, but in
communications protocol the foreign king acknowledged his status to
be inferior to the Chinese emperor, at least as reflected in the Chinese
documents. Foreign kings wishing to communicate with China had
to forward their communications via the nearest Chinese governor-
general, and replies were sent through the same official. Despite this
evidence of formalistic subordination, the governors-general's com-
munications to the foreign kings were usually couched in the most
respectful terms, referring to the other country as "your honorable
country" (guiguo). ° Moreover, instead of ordering or directing the
Burmese King to comply with the Emperor's wishes, the Yunnan-
Guizhou Governor-General politely requested (qing) him to
comply.

41

II. QING LEGAL SOURCES

Rules pertaining to border control administration are located in
several official compendia, reflecting the involvement of many
branches of the bureaucracy, civil as well as military, in supervising
frontier relations. The official description of the functions and powers
of all governmental offices, including those responsible for frontier
affairs, is contained in the Da Qing Huidian (The Collected Statutes of
the Qing).42 Official diplomatic missions and all related correspon-
dence were initially placed under the primary jurisdiction of the
Board of Rites (Libu).43 In 1790, however, jurisdiction over tribute
system communication with all foreign countries except Korea
(which remained under the Board of Rites), Russia and Mongolia
(both of which were under the Court of Colonial Affairs (Lifanyuan))
was transferred to the Imperial Household (Neiwufu). 4 The Board of
Rites was also responsible for supervising trade between China and
Korea .4  The Collected Statutes of the Qing assigned to the Board of
Revenue (Hubu) authority over foreign trade tariff policy and admin-

40. For such a reference in an 1805 communication to the King of Vietnam see 1 WS:JC,
supra note 6, at 42a-b (WS Reprint 95-96); for a similar reference in a communication to the
King of Burma in 1807, see 2 WS:JC, supra note 6, at 6a (WS Reprint 131).

41. 2 WS:JC, supra note 6, at 7a (WS Reprint 133).
42. See supra note 7.
43. 39 HD, supra note 7, at 2a-4a (1 HD Reprint 407-08).
44. See 171 LZ, supra note 29, at 3b (2 LZ Reprint 1027); 39 HD, supra note 7, at 9b (1

HD Reprint 411); and 514 HDSL, supra note 7, at 8b-9a (15 HD Reprint 11,897).
45. 184 LZ, supra note 29, at la (2 LZ Reprint 1088); 185 LZ 2b (2 LZ Reprint 1091).

See also 39 HD, supra note 7, at 12b (1 HD Reprint 412).



BORDER CONTROL LAW

istration.46 Principal authority for maintenance of the border con-
trol scheme was assigned to the Board of War (Bingbu).47 Since civil
officials shared with military officials responsibility for enforcement of
border regulations, the Board of Civil Appointments (Libu) was also
given certain functions pertaining to frontier officials.48 Finally, as
suggested by its name, the Board of Punishments (Xingbu) was
responsible for determination of guilt and application of appropriate
criminal sanctions for the violation of any statute carrying a criminal
penalty, including certain border regulations.

Another important Qing compilation, the Da Qing Huidian Shili
(Collected Qing Statutes with Precedents) is a rich collection of
abridged case reports, memorials, and edicts illustrating the evolution
of the law of all the boards.4 9 It is a compact legislative history of the
Qing dynasty, arranged according to the chief substantive functions of
the Six Boards and other central government agencies.

Each of the Six Boards and other central government agencies
compiled a compendium of regulations that it had promulgated in
order to execute its assigned functions; upon approval by the emperor,
such regulations became binding law. Since the Board of Punish-
ments was the principal law enforcement organ, it is natural that the
body of penal regulations it enforced, called Da Qing Lli (Statutes
and Sub-statutes of the Qing)O was the most comprehensive of all the

46. 17 HD, supra note 7, at 5b-6a (1 HD Reprint 181); 23 HD, supra note 7, at lOb-12a
(1 HD Reprint 242).

47. 49 HD, supra note 7, at 9a-14a (1 HD Reprint 513-15).
48. 11 HD, supra note 7, at 2a (1 HID Reprint 1127), setting forth disciplinary sanctions

for officials who accept bribes to allow persons to leave China illegally. See also 11 HD, supra
note 7, at 4a (1 HD Reprint 128) for a list of six regulations relating to border defense.

49. See supra note 7. For materials relating to border control, under the section concern-
ing the Board of Civil Appointments, see 119 HDSL, supra note 7, at 22b-23a (8 HD Reprint
6681-82), and 119 HDSL la (8 HD Reprint 6671); under the section dealing with the Board of
Rites, see 511 HDSL 9a to 514 HDSL la (15 HD Reprint 11,856-97); under the Board of War,
see 627 HDSL la to 631 HDSL lb (17 HD Reprint 13,329-89); and under the Board of Reve-
nue, see 774 HDSL Ia to 776 HDSL 20a (19 HD Reprint 14,925-15,956). It should be stressed
that the Huidian Shill does not set forth the binding law in force at any particular point in
time. For such law, one must look at the regulations (zeli) of the board or boards with jurisdic-
tion over the subject matter.

50. The most useful single source for the study of Qing penal law is Dull Cunyi [Concen-
tration on Doubtful Matters While Perusing the Sub-Statutes] (C.C. Huang ed. 1970) [herein-
after DC]. This work contains the complete text of the Qing Penal Code, and provides the
date of origin of each 1i (sub-statute) in the Qing Penal Code and an expert analysis of its
purpose, ambiguities, degree of obsolescence and standard interpretation. In addition, it fur-
nishes valuable cross references to related statutes, not only in the Qing Penal Code but also in
other administrative compendia. An especially handy feature of the later edition is that num-
bers have been added for each statute and sub-statute, greatly facilitating the use of the earlier
cross references. All references this paper makes to articles in the Qing Penal Code will cite
the article number and volume and page number to the DC. Another valuable source for
study of Qing penal law is the Da Qing Lzili Huitong Xinzuan [hereinafter HX] [New Complete

1987]



JOURNAL OF CHINESE LAW

compendia of ministry-issued regulations. Aside from its own rules, it
incorporated explicitly or implicitly many of the regulations of the
other boards. This compendium is often referred to as "The Qing
Code," but a search for authoritative law on a given subject can not
stop with the penal code. In pursuit of the governing law on border
control, or any other subject, one must look at the regulations issued
by the other ministries with jurisdiction over the relevant subject mat-
ter. Thus, for our purposes, we must also examine the disciplinary
regulations of the Board of Civil Office,51 the regulations of the Board
of Revenue,5" the Board of Rites,5 3 the Board of War,5 4 the Imperial
Household" and the Court of Colonial Affairs.5 6

The task is further complicated by the existence of certain impe-
rial case decisions which were explicitly designated as binding law for
handling similar cases in the future. For example, some decisions
bore the appellation "general circular" (tongxing), which means that

Revised and Annotated Qing Penal Code] (1873), (photo reprint, 1964) [hereinafter HX
Reprint], a private edition containing cross references, case summaries, and excerpts from
leading private commentaries to the code.

51. Qinding Jiaqing Libu Chufen Zeli [hereinafter LCZ] [Disciplinary Regulations of the
Board of Civil Appointments for the Jiaqing Period], especially 36 LCZ, dealing with coastal
defense, and 37 LCZ, dealing with border trade; see also Qinding Chongxiu Liubu Chufen Zeli
[hereinafter CZ] [Imperially Endorsed and Revised Disciplinary Regulations of the Six
Boards, Guangxu period] (1887) 38 CZ la to 40 CZ 7b, reprinted as Item 332 of 2 linda
Zhongguo Shiliao Zongkan [Compendium of Modem Chinese Historical Materials] [hereinaf-
ter CZ Reprint] 757-806 (1969). These are the Board of War sections of the CZ, dealing with
military weapons, coastal defense, and harbor defense.

52. See, for example, Qianlong Hubu Zeli [Regulations of the Board of Revenue:
Qianlong Period]. 55:la-b contains regulations prescribing a tariff exemption for tribute trade;
57:la-5b deals with enforcement of customs laws for ordinary trading vessels; 58:5a-7a sets
forth prohibitions pertaining to customs administration. For a later edition of the Board of
Revenue regulations, see Qinding Hubu Zeli: Dongzhi Ban [hereinafter HBZL] [Regulations
of the Board of Revenue: Dongzhi Period] 38 HBZL l la-19a, 41 HBZL 20a-39a, 42 HBZL
44a-47b, 90 HBZL 58-63, (photo reprint, 1968) [hereinafter HBZL Reprint], (6 HBZL Reprint
2769-85, 2973-3011; 7 HBZL Reprint 3103-10 and 12 HBZL Reprint 6131-41).

53. See 171 LZ, supra note 29, la to 172 LZ 22b, 185 LZ la to 187 LZ 3a for the
regulations of the Reception Department. For an English translation of the 1690 Kangxi and
the 1764 Qianlong versions of these regulations, see THREE STUDIES, supra note 2, at 135-45.
For the comparable provisions in force during the Daoguang period (1821-1850), see 2 LZ
Reprint 1026-44 and 1091-94.

54. See 11 Qinding Qianlong Zhongshu Zhengkao [Regulations of the Board of War:
Qianlong Period] 1-48 for defense of passes and fords, including rules governing ocean patrols,
and Qinding Daoguang Zhongshu Zhengkao [hereinafter ZZ] [Regulations of the Board of
War: Daoguang period] 22 ZZ la to 23 ZZ 41a (5 ZZ Reprint (1972). See also Bingbu Chufen
Zeli [Disciplinary Regulations of the Board of War] sections entitled Guanjin (Prohibitions
Relating to Passes) and Haiin (Prohibitions Relating to the Ocean).

55. See 4 Zongguan Neiwufu Tang Xianxing Zeli [Current Regulations of the Imperial
Household Office], which contains rules governing the reception of tribute gifts from foreign
countries.

56. See Lifanbu Zeli [Regulations of the Court of Colonial Affairs] section entitled
Bianjin: Eluosi Shili [Frontier: Russian Affairs].



BORDER CONTROL LAW

they were to be communicated promptly to all offices with powers of
criminal adjudication (wenxingyamen) for their compliance.- Some,
but not all, "general circulars" were incorporated into the text of the
Qing penal code during the revisions which occurred roughly once
every five years.- 8 Even those "general circulars" not so incorporated
apparently retained their binding force indefinitely. In addition to the
"general circular" problem, some imperial edicts disposing of individ-
ual cases conclude with the order "Let this serve as a permanent rule"
(yong zhuo weili)- 9

Locating these two types of binding rules is a difficult process.
Many are contained in collections of central government directives
compiled by provincial governments. 60 Others may be found in unof-
ficial collections of case decisions, 61 or in annotated private editions of
the Qing penal code.62 Moreover, although the Qing adjudication
process required courts of first instance to base their decisions on the
appropriate statute drawn from the comprehensive network described
above, in instances where no law directly governed the facts of the
case it would be referred to higher authorities. They would either
recommend following an established case decision (cheng'an) or
would in effect create new law by drawing comparisons between the
present case and previously decided ones. 63 Accordingly, the histo-

57. D. BODDE AND C. MORRIS, LAW IN IMPERIAL CHINA 152 (1967); see also Chang
Chen, Provincial Documents of Laws and Regulations in the Ch'ing Period, 3 QINGSHI WENTI
6:28,31-32 (1976).

58. LAW IN IMPERIAL CHINA, supra note 57, at 152.
59. For instance, the 1787 edict establishing a fixed procedure for rescue and repatriation

of shipwrecked aliens contained this injunction. 513 HDSL, supra note 7, at 14a-b (15 HD
Reprint 11,886). See discussion, supra note 31.

60. See generally Chang Chen, supra note 57.
61. Decided cases were not officially published, but several excellent collections based on

official archives were compiled by retired officials. Richest in both quantity and quality are the
four sets of cases in the Xing'an Huilan [Conspectus of Criminal Cases], containing cases
decided between the 1790s and the 1880s. For a discussion of these and other Qing case collec-
tions, see LAW IN IMPERIAL CHINA, supra note 57, at 144-59; and see also Chang Chen, Book
Review, 29 HARVARD JOURNAL OF ASIATIC STUDIES 276-77 (1969) (reviewing LAW IN
IMPERIAL CHINA). Hundreds of additional case reports are also contained in other unclassi-
fied documentary collections, such as the Da Qing Lichao Shilu [Veritable Record of the Suc-
cessive Qing Dynastic Reigns], the Ming-Qing Shiliao [Historical Materials of the Ming and
Qing Dynasties], the Junjichu [Grand Council] archives, and the Qingdai Waijiao Shiliao,
supra note 6.

62. See supra note 50; and see Chang Chen, supra note 61, at 282-83.
63. For example, in an 1805 memorial to the Emperor reporting its investigation and

provisional sentencing of a Western missionary, Adeodato, who was charged with subverting
popular morality and with illegal communication in a foreign language with other countries,
the Board of Punishments notes the lack of a specific provision on Catholicism in the penal
code: "[In the absence of a directly controlling statute] naturally we should follow the impe-
rial edicts disposing of Catholic cases arising in 1784 and 1785." 1 WS:JC, supra note 6, at
25b-26 (WS Reprint 62-63). For a discussion of the limited conditions under which a decided

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JOURNAL OF CHINESE LAW

rian of Chinese law must carefully search case collections for deci-
sions that may be pertinent to his area of interest.

III. SUBSTANTIVE LAW FOR QING FRONTIER CONTROL: PERSONS

When the Qing Dynasty succeeded the Ming it perpetuated
China's long established bureaucratic system of government, includ-
ing the norms for border security. Although the Qing authorities
found it necessary, as had their predecessors, to change their border
laws in response to changing circumstances (yinshi zhiyi), these
changes all took place within the conceptual parameters and political
priorities discussed in Section I. This section provides a survey of the
basic substance of Qing law regulating human traffic across the fron-
tier as that law had evolved up until the broadside shock of the
Opium War and its aftermath, the "unequal treaty system" imposed
by the Western powers.'

Movement across China's sea frontier was generally prohibited
between 1668 and 1684 due to the continuing harassment off the coast
by Ming loyalists based in Taiwan. 65 After 1684 sea travel was placed
on the same basis as passage across the land frontier. Individuals with
a legitimate purpose, such as trade or fishing, could go abroad pro-
vided they complied with the border control procedures summarized
below.

A. Going to Sea - Licensing and Passport Procedures

Persons wishing to travel beyond China's inner ocean (neiyang)
into the outer ocean (waiyang) either for the purpose of fishing or
trade had to obtain a license (chuanzhao) for their ship as well as an
individual passport (yaopai) for each person on board.6 6 Unless they
already owned a ship, the first step was to report (chengbao) to the

case (cheng'an) may be cited as authority, see the upper column commentary to the Qing Penal
Code, 1 HX Reprint, supra note 50, at 762, and the pertinent sub-statute in the adjudication
section of the Qing Penal Code Article 415-18 in 5 HX Reprint 3718, 5 DC, supra note 50, at
1277.

64. For a useful discussion of the forced exposure of the Qing government to Western
concepts and practices of international law, see 1 COHEN & CHIU, PEOPLE'S REPUBLIC OF
CHINA AND INTERNATIONAL LAW 5-12 (1974). See also I. Hsu, CHINA'S ENTRANCE INTO
THE FAMILY OF NATIONS: THE DIPLOMATIC PHASE, 1858-1880 (1960).

65. Mancall, The Ch'ing Tribute System: An (Interpretative) Essay, in THE CHINESE
WORLD ORDER, supra note 2, at 63-89.

66. For a provision requiring a permit (zhizhao) for going to sea, see 629 HDSL, supra
note 7, at la-3a (17 HD at 13,360-61); for a provision directing port officers to examine ships'
licenses (chuanzhao), see 630 HDSL la (17 HD Reprint 13,367); for a rule requiring submis-
sion of ship licenses for examination by the district magistrate, see 19 HX, supra note 50, at
23a-b (3 HX Reprint 1717-18); for a rule requiring all laborers (duogong) and sailors
(shuishou) aboard ship to carry a "waist passport" (yaopai) with the bearer's name, age,



BORDER CONTROL LAW

district or department magistrate their desire to build a ship. Con-
struction could begin only after the magistrate received written guar-
antees (baojie) from the boat owners' collective responsibility unit
(aojia), the license applicants' clan head (huzu), the head of his neigh-
borhood collective tax collection unit (lizhang) and from his neigh-
bors (linyou).67 After completion of his ship, the license applicant
would again report to the magistrate, who was required to make a
personal inspection of the vessel. If satisfied, the magistrate would
then issue a ship license (variously referred to as zhaopiao, piaozhao,
yinzhao, chuanzhao or zhizhao), which apparently had to be renewed
each year.68 On the face of the document, the magistrate would list
the name, age, appearance and native place of each member of the
crew, an inventory of all implements (qixie), all nails and other metal
supplies, all other goods on board and the destination and purpose of
the voyage.69 The name of the ship, the number of its license and its
home country were carved in big characters on the bow of the
vessel.7°

appearance, and native place inscribed thereon, see 19 HX 23b (3 HX Reprint 1718). For the
latter provision, see also 775 HDSL 7b-8a (19 HD Reprint 14,940).

67. These requirements are set forth in a sub-statute in Qing Penal Code Article 225-03,
3 DC, supra note 50, at 506-07. This law was enacted in 1703 after the Board of War had
deliberated on a proposal submitted by Jin Shirong, Governor-General of Fujian and Zhejiang.
See also 775 HDSL, supra note 7, at 6b-7a (19 HD Reprint 14,939-40), 19 HX, supra note 50,
at 22a-b (6 HX Reprint 1715-16).

68. Qing Penal Code Article 225-03, 3 DC, supra note 50, at 506-07, 22 ZZ, supra note
54, at 5la, 41 HBZL, supra note 52, at 22b (6 HBZL Reprint 2978), and 19 HX, supra note 50,
at 3a-b (3 HX Reprint 1715-16). Provisions relating to the issuance of licenses (zhizhao) to
sea-going vessels are contained in 41 HBZL 20a-b (6 HBZL Reprint 2973-74); 22 ZZ, supra
note 54, at 34a-40a also contains provisions concerning licenses for fishing and merchant ves-
sels (including various terms for licenses, such as chuanzhao,youzhao, shangchuanyinzhao and
zhizhao).

69. Qing Penal Code Article 225-03, 3 DC, supra note 50, at 506. See also 120 HDSL,
supra note 7, at 3b (8 HD Reprint 6688), 163 KangxiShilu 6b, 39 LCZ, supra note 51, at 3a-b
(2 LCZ Reprint 779-80) regulating the number and specifications of cannons ocean-going ships
might take with them. See also 22-23 ZZ, supra note 54, for provisions governing inspection of
merchant and fishing ships to detect prohibited export items.

70. 120 HDSL, supra note 7, at 3b (8 HD Reprint 6688). The coastal provinces appar-
ently possessed authority to enact procedural rules varying slightly from those described in the
text. For example, the provincial regulations (shengl) for Guangdong Province stipulated that
all fishing boats were required to obtain licenses from the provincial financial commissioner
(sizhao). 6 Yuedong Shengli Xinzuan [New Edition of Guangdong Provincial Regulations]
lOa-b (1846) (2 Photo Reprint 553-54 (1968)). To obtain this license, the boat owner's collec-
tive responsibility association (aojia) had to submit to the district magistrate a registration,
providing the name, age and appearance for the members of each fishing household plus the
name, number and measurements of the fishing boats. The magistrate would then compile a
master register (zhengce), submitting one copy to the provincial financial commissioner to
obtain licenses for each ship and one copy to the port guard (shoukou ying xun), so that each
time someone wished to leave port the individual ship license could be compared with the
information in the master register. Old licenses had to be returned in the sixth month of each

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Foreign ships, too, had to have a port entry and exit permit
(hongzhao, yinzhao orpaizhao) before they were permitted to enter or
leave Chinese ports.7 ' Ships en route to Canton's port of Whampoa
first had to stop at Macao and secure the entry document from the
Chinese sub-prefect. Failure to get such a permit was one of the rea-
sons the Chinese authorities cited for expelling the first British trade
commissioner, Lord Napier, from Canton in 1834.72

On leaving or entering port, Chinese fishing boats and merchant
ships had to report for inspection (chayan) by the harbor security offi-
cials (shoukou guanbian).73 If the ship's passengers and cargo did not
conform to the ship's documents and the numbered register (haobu)
held by the port officials, the captain would be interrogated on the
spot (fishipanjie).7 g If the port official was not satisfied with the cap-
tain's story, he would turn him over to the district magistrate for
criminal investigation; if the captain's story was satisfactory, a nota-
tion would be made in the register and the ship would be cleared for
exit or entry.

We have noted above that the Qing central government wished
to be kept well informed about all matters pertaining to the frontier.
Thus, in 1728 the Emperor decreed that in the fourth month of each
year the governors-general of all coastal provinces should submit to
the Board of Revenue a comprehensive report of all merchant vessels
leaving its ports for foreign countries; in the ninth month they should
submit a comprehensive report on all trade vessels returning in that
season.

75

B. Crossing the Land Frontier - Passports and Guarantees

The Qing penal code stipulated that all Chinese passing through
a frontier control station must present a passport (variously called
wenyin, wenpiao, yinpiao, paizhao, zhaopiao and zhizhao) issued by the

year, and new ones issued in the seventh month. No new license could be issued after the first
day of the ninth month.

71. In addition to obtaining a permit to enter port, Western merchant ships arriving in
Macao for purposes of trading there or in Canton were also required to register with the Chi-
nese sub-prefect in Macao. 629 HDSL, supra note 7, at 5b-6b (17 HD Reprint 13,362). See
also 23 ZZ, supra note 54, at 192a-b, 41 HBZL, supra note 52, at 37b-38a (6 HBZL Reprint
3008-09) for a regulation stipulating that foreign ships lacking a sealed entry permit (yinzhao)
shall not be permitted to enter port.

72. 27 YHKC 23a-32a.
73. Qing Penal Code Article 225-23, 3 DC, supra note 50, at 515. This sub-statute was

enacted in 1760 in response to a memorial from Li Zhiyun, Censor for Zhejiang. See also an
imperial edict of 1772 concerning the licensing and port inspection procedure, 239 HDSL,
supra note 7, at 30b (10 HD Reprint 8271).

74. 239 HDSL, supra note 7, at 30b (10 HD Reprint 8271).
75. 74 Yongzheng Shilu 2a-b (2 Yongzheng Reprint 1129).



BORDER CONTROL LAW

district magistrate of his place of residence. 76  The person going
abroad also had to present official and personal guarantees (yinjie and
ganjie) to the effect that he was not a "lawless person" (feilei). The
officer on duty (zhirizhe) had to examine carefully the passport to con-
firm the name, appearance and native place of the traveller.77 The law
also required the frontier guards to maintain and report to the Board
of War at the end of each year a numbered register of all persons
crossing the border.7"

C. Unauthorized Crossing of the Frontier - Prohibitions
and Punishments

This impressive system of frontier control through licensing and
passports, collective responsibility, and careful screening of all traffic
across the borders, was reinforced by coercive sanctions for those per-
sons who did not comply with the above described bureaucratic
requirements. All unauthorized crossing of the frontier (siyue yuan-
bian) was prohibited under threat of criminal penalty.7 9 The penalty
varied according to the purposes and behavior of the offender. Simple
unauthorized crossing, without any aggravating circumstances, was
punished with one hundred blows of the heavy bamboo and three
years' penal servitude. Intent, however, was required. Poor people
who wandered across the frontier while searching for food in the for-
ests were not punished.80 Persons going abroad without authority
who subsequently engaged in "traffic with foreigners" (iaotong wai-
jing) were subject to strangulation after the assizes." In 1740 several
Chinese and Koreans were sentenced under this statute for unauthor-
ized crossing back and forth over the frontier and for erecting and

76. Qing Penal Code Article 220-02, 3 DC, supra note 50, at 492, and Article 220-00, 3
DC 491. Further provisions relating to the issuance and examination of passports for persons
crossing the land frontier are set forth in 19 -X, supra note 50, at 3a-b (3 HX Reprint 1677-
78); 40 LCZ, supra note 51, at 61-b (2 LCZ Reprint 803-04), concerning issuance of a passport
stamped by the district magistrate (yinwen piao); 42 HBZL, supra note 52, at 46a-47b (7 HBZL
Reprint 3107-10); 23 ZZ, supra note 54, at 6a-8a concerningyinpiao; 23 ZZ 39a-40a, dealing
with issuance of passports (paizhao) to Chinese merchants going to Vietnam to trade, and also
governing illegal crossing of the frontier into Korea and Vietnam; 19 HX 3a (3 HX Reprint
1679), dealing with the treatment of persons leaving China without a passport (wu wenpiao);
and 628 HDSL, supra note 7, at 20b (17 HD Reprint 13,355) on the use of passports (wenpiao).

77. Qing Penal Code Article 220-02, 3 DC, supra note 50, at 492.
78. Id.
79. The basic statute is Qing Penal Code Article 220, 3 DC, supra note 50, at 491, enti-

tled Siyue Maodu Guanjin Lui [literally, the "Law Governing Unauthorized Transit Through
Passes and Across Fords"].

80. See, for example, two 1740 cases in which the Chinese and Korean authorities each
released subjects of the other country who had wandered across the border, 511 HDSL, supra
note 7, at 9b-10a (15 HD Reprint 11,860-61).

81. Qing Penal Code Article 220, 3 DC, supra note 50, at 491.

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living in tents.8 2 The imperial edict handing down the sentence noted
that it was appropriate to apply this statute with its "mild" 83 punish-
ment since no serious crime such as robbery or homicide was
involved. This ruling conveys some idea of the meaning of "trafficking
with foreigners" as well as the seriousness with which illegal border
crossing was regarded. Aside from this basic statute, the penal code
contained several other more narrowly focused statutes punishing
unauthorized crossing of the border for various specific purposes.
Not surprisingly, one such law made the plotting or commission of
treason subject to the penalty of death by decapitation. 84

Two other statutes enacted in 1716 and 1723 prohibited Chinese
subjects from fishing in Korean waters or crossing the Sino-Korean
boundary river,85 or from entering Korea to rob or pillage.86 The
penalty for violation of the first provision was military banishment
within China. The other statute explicitly authorized the Korean king
to execute the offender on the spot; those captured alive were to be
returned to China for prosecution and punishment. These two stat-
utes were based on a series of edicts issued to cope with what must
have been a serious problem of Chinese intrusion into Korean terri-
tory. One of these edicts, handed down in 1711, declared that Chi-
nese fishing boats that persisted in fishing in the Sino-Korean border
area despite previous warnings were to be regarded as pirates and
could be pursued and exterminated by the Korean king.87

Another string of edicts beginning in 1715 and extending at least
to 1842 enforced a rule, jointly established by the Chinese and Korean
authorities, prohibiting residence or farming near the Sino-Korean
border.88 This rule was also set forth in a regulation issued by the

82. 511 HDSL, supra note 7, at 9b (5 HD Reprint 11,860).
83. Strangulation was not considered as severe a punishment as decapitation. Moreover,

the death penalty administered "after the assizes" meant that the life of the condemned person
might be spared after review, in contrast to the "immediate death penalty" (lijue).

84. Qing Penal Code Article 255-00, 3 DC, supra note 50, at 558-59 stipulates the pen-
alty of death by decapitation for those traitors who "turn their backs on their own country and
stealthily serve another country." For this provision, see also 22 HX, supra note 50, at 7a.8b
(3 HX Reprint 1877-80). Also of special interest is the provision in the voluntary surrender
section of the Qing Penal Code stipulating that a traitor who returns to his own native place
shall be given a two-degree reduction in punishment, even though he has not in fact turned
himself in voluntarily, Qing Penal Code Article 025-00, 2 DC 107, in 4 HX 18a-21b (1 HX
Reprint 445-52).

85. Qing Penal Code Article 225-35, 3 DC, supra note 50, at 519.

86. Qing Penal Code Article 225-37, 3 DC, supra note 50, at 520.
87. 511 HDSL, supra note 7, at 4a-b (15 HD Reprint 11,858).
88. For a 1750 example, see 511 HDSL, supra note 7, at 5a (15 HD Reprint 11,858). For

a 1748 example, see 511 HDSL 12a-b (15 HD Reprint 11,862). For an 1842 example, see 512
HDSL 16b-17a (15 HD Reprint 11,876).

[1:33



BORDER CONTROL LAW

Board of Rites.89 One edict even indicates that to prevent mutual ter-
ritorial infringement and conflict along their common boundary,
China and Korea maintained a "no man's land," a strip of land more
than thirty miles in width running along the frontier.9° The Chinese
border officials were directed to remove forcibly all Chinese subjects
who had settled as farmers within Korean territory and to demolish
the huts they had erected there; none were permitted "to retain a sin-
gle square inch of Korean territory."'" This sensitivity of the Chinese
Emperor to the sovereign prerogatives of the Korean king over his
own territory is explicitly and convincingly demonstrated by edicts of
173092 and 174693 rejecting proposals by Chinese border officials to
establish checkpoints on the Sino-Korean border. Even though in
both cases the Korean king is reported as having "humbly requested"
(kenqing) the Emperor to desist from establishing checkpoints, the
Emperor's denial of his own border officials' proposal in effect recog-
nized the Korean King's territorial sovereignty. The Chinese
Emperor also showed deference to the Korean king with regard to his
handling of Chinese who had illegally entered Korea. A 1717 edict 94

authorized the Korean king to sentence such offenders in accordance
with Korean law (zhao qi guofa shenni); the sentence, however, had to
be reported to the Emperor via the Board of Rites. Only after he
issued a decree of approval could the sentence be executed. Later
edicts indicate that the procedure was subsequently modified, with the
Korean authorities being exhorted by the Chinese Emperor to pursue
and return to China all Chinese crossing without authority into
Korea.9"

As noted, the only legitimate way that Chinese could leave their
country was to secure a passport permitting them to go abroad for
specified purposes, including tribute system diplomacy, military mis-
sions, trade, or fishing. Permanent emigration was not a legitimate
reason for exit. Nevertheless, poverty forced thousands of Chinese
families from the Fujian and Guangdong coastal areas to violate the
law by emigrating to Annam, Burma and Siam in search of a
livelihood.

Occasional relief was granted the poor souls who were usually

89. 187 LZ, supra note 29, at lb (2 LZ Reprint 1093).
90. 511 HDSL, supra note 7, at lla-b (15 HD Reprint 11,861).
91. 512 HDSL, supra note 7, at 16b-17a (15 HD Reprint 11,856).
92. 511 HDSL, supra note 7, at 7b (15 HD Reprint 11,859).
93. 511 HDSL, supra note 7, at lla-b (15 HD Reprint 11,861).
94. 511 HDSL, supra note 7, at 5b (15 HD Reprint 11,858).
95. For example, see an edict of 1744, 511 HDSL, supra note 7, at lOa- lla (15 HD

Reprint 11,861), and an edict of 1803, 512 HDSL 4b-6a (15 HD Reprint 11,870-71).

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JOURNAL OF CHINESE LAW

forced to choose between death by starvation at home or the chance
of death by execution for turning their back on China. Thus, an impe-
rial amnesty was declared in 1728 to allow the return to China of
those who had illegally emigrated prior to 1717.96 Moreover, other
selective exceptions were made to allow illegal emigrants to return
from abroad to their native place without suffering criminal punish-
ment.9 7 The Yongzheng Emperor in 1723 displayed genuine compas-
sion in handling the case of some Chinese who had gone abroad
illegally and had returned to Canton as crew members on a Siamese
trading vessel. Decreeing that they should be allowed to go back to
Siam with the ship, the Emperor stated: "they have lived in that coun-
try for several generations and each have relatives, wives, and chil-
dren there. It would be very harsh to force them to return to their
Chinese native place. Let them return to Siam to live." 98

Such kind measures were the exception. The rule was to subject
returnees to harsh treatment. Thus, in 1772 the leader of a group of
illegal Chinese emigrants who had peacefully tilled land in Siam for
several years until their arrest and deportation by the Siamese author-
ities, was sentenced to the death penalty, under a widely used penal
sub-statute entitled "Collaborating with Foreigners and Cheating
Them out of Their Money" (Jiaofie Waiguo Kuangpian Caiwu).99 The
general suspicion with which emigrants were regarded by the authori-
ties is suggested by the fact that this statute is located in the section
entitled "Interrogation of Spies" (Panjie Jianxi).1°° In many cases
involving boundary disputes or the behavior of resident aliens, if the
foreign country offered resistance to the Chinese authorities, and par-
ticularly when the resistance took the form of a communication writ-
ten in Chinese, the Qing officials would voice the suspicion that a
"Chinese traitor" (hanjian) must be at the root of the trouble. For

96. Edict of the Yongzheng Emperor, acknowledging the benevolent policy of his father,
the Kangxi Emperor. 776 HDSL, supra note 7, at 14b-15a (19 HD Reprint 14,953). A similar
edict was issued by the next emperor, Qianlong, in 1735. 775 HDSL 13a (19 HD Reprint
14,943). In 1754, Qianlong issued another edict authorizing the return home of any Chinese
who had gone abroad to trade, regardless of how long he had been absent. 19 HX, supra note
50, at 30a (3 HX Reprint 1731) and 630 HDSL 6a-b (17 HD Reprint 13,370).

97. See imperial edict of 1722, in 511 HDSL, supra note 7, at 5b-6a (15 HD Reprint
11,858-59).

98. 511 HDSL, supra note 7, at 6a (15 HD Reprint 11,859). This act may have been
atypical, for Yongzheng has been characterized as being basically opposed to emigration. See
Mancall, supra note 65, at 89.

99. Qing Penal Code Article 224-00, 3 DC, supra note 50, at 496.
100. Qing Penal Code Article 224-01, 3 DC, supra note 50, at 497; 19 HX, supra note 50,

at 4a (3 HX Reprint 1705). The split personality of these rules, concern lest foreigners be
cheated by Chinese and fear bordering on paranoia at any contact between Chinese and for-
eigners, illustrates the "arm's length" policy regarding aliens that characterized Qing border
control policy.



BORDER CONTROL LAW

example, in an 1808 case where a Burmese local official submitted to
the Chinese authorities a document in Chinese making the "absurd"
claim that Burma and China were exercising joint sovereignty over a
disputed area, the Chinese promptly demanded that the Burmese turn
over the "Chinese traitor" who must have drafted the document. 10'

The persistence of the problem of illegal Chinese emigration, and
a perception on the part of Qing officials that the 1772 case may have
been handled in an excessively severe and indiscriminating manner, is
suggested by the handling of a similar case three years later. 102 In the
latter case, eighteen Chinese who were apprehended on their return to
China from Annam, where they had lived and worked in the mines
for many years, were subjected to three different types of treatment,
and the case disposition was classified as a strict regulation (yanding
zhangcheng) for the guidance of magistrates deciding similar cases in
the future: (1) Those offenders whose attitude and behavior evinced
disrespect for the law (]ieaozhe) and who thus could not be allowed to
remain in China's heartland (buke liu yu neidi) were sent to Urumqi
and other border areas to till the land; (2) drifters and persons with-
out means of livelihood (youshou wuyizhe) were settled and placed
under control (ancha) in the various provinces; (3) those persons who
had committed no crime other than illegal emigration were allowed to
return to their native places where they were placed under strict con-
trol (yanxingjuguan) by the district magistrate.

Sterner treatment was meted out in 1779 to a group of Chinese
who had gone to Annam years before to work in the mines and had
married Annamese women; they returned to China because of unrest
in Annam and because of a rumor that the Chinese border might be
tightly sealed.103 The group leader was sentenced to strangulation
after the assizes for an aggravated violation of the sub-statute on
"hooligans illicitly crossing the frontier and remaining to trade"; the
aggravating factor was marrying an Annamese woman. The other
Chinese in the group were banished as slaves to Chinese troops in
distant border regions. The Annamese wives were returned to the
Annamese King. The memorial disposing of this case does not
explain why the 1775 "strict regulation," which appears to be directly
on point, was not applied in this instance. The sentences seem partic-
ularly harsh when compared with the reduced penalties granted to
traitors (pantu) returning to China from abroad.1° Presumably, by
being lenient the state would receive less political dividends from poor

101. 2 WS:JC, supra note 6, at 15b,17a-b (WS Reprint 150,153-54).
102. 511 HDSL, supra note 7, at 20b-21a (15 HD Reprint 11,866).
103. 1 Ming-Qing Shiliao, supra note 61, at 8b.
104. See supra note 84.

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JOURNAL OF CHINESE LAW

emigrants then it would from rebels and traitors who might for that
reason terminate their anti-state activity.

Another principle invoked by numerous imperial edicts over the
centuries, and applied in China's foreign relations with Korea, Russia,
Vietnam and Burma, forbade Chinese officials from crossing the bor-
der.105 Although some documents suggest a "hot pursuit" exception
in the case of troops following rebels fleeing across the frontier 10 6 or
civil officials looking for a fugitive traitor, 107 the general rule was that
Chinese civil and military officials had no authority beyond the fron-
tier. All transnational official business had to be effected through
request to the foreign king.

In summary, the rules barring unauthorized Chinese crossing of
the national frontier are a confusing and often contradictory maze of
stern prohibitions. Nevertheless, certain clear conclusions emerge.
First, the principle of mutual respect for territorial sovereignty,
slightly bruised in practice but always staunchly endorsed in theory,
appears to have shaped both the substance of frontier control rules
and the general pattern of their application. Secondly, the governing
principle of absolute closure of the frontier, in the absence of specific
documentary authority, remained vital throughout the pre-Opium
War period; its goals of minimum traffic and maximum security for
the border were promoted through published prohibitions and pun-
ishments that must have inspired considerable fear despite, or perhaps
because of, the broad range of sanctions for like offenses.

105. For an 1807 case relating to the China-Burma border, see 2 WS:JC, supra note 6, at
6a,7a (WS Reprint 131,133); the same policy led to the impeachment of an assistant depart-
ment magistrate (zhoupan) who, in 1808, followed a criminal suspect into Vietnam. He should
have followed the correct procedure of first reporting to the governor-general, who would then
get an imperial decree directing that a request be sent to the King of Vietnam to extradite the
suspect. 2 WS:JC, supra note 6, at 15a-b (WS Reprint 149-50). See also 19 HX, supra note 50,
at 21b-22a (3 HX Reprint 1714-15).

106. See an imperial decree of 1758 stating that Chinese soldiers may cross the Russian
border when arresting obvious robbers, despite a provision in the Sino-Russian Treaty of
Kiakhta of 1727 providing that neither side may violate the other's border. The Emperor
interpreted the provision to mean that "[i]f the robbers have fled to so great a distance that we
can no longer see their tracks and shadows, we should observe that article of the treaty and
abandon the chase. However, if the robbers are still plainly in sight when they enter Russian
territory, then we should follow them closely and catch them directly in order to save the time
involved in sending letters to Russia and awaiting an answer." A DOCUMENTARY CHRONI-
CLE, supra note 18, at 213-14.

107. The 1808 case discussed supra in note 105 contains language implying that the Chi-
nese official's action might have been condoned if the person he was chasing was a traitor
(panmin). 2 WS:JC, supra note 6, at 15b (WS Reprint 150).

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BORDER CONTROL LAW

D. Foreigners Crossing the Chinese Border - With and
Without Permission

As already suggested above, the same ideal of closure applied to
foreigners entering Qing China. They were allowed into the "inte-
rior" only for specified purposes. Moreover, all entering aliens were
subject to documentary controls, civil escort, and military surveil-
lance.10 As we have seen, foreigners who were fugitives from their
home authorities usually were apprehended by Chinese officials and
returned to their own country in conformity with a customary prac-
tice of reciprocal extradition. 109 Foreigners who accidentally
wandered into Chinese territory or were cast upon its shores by storm
were cared for and returned home safely. 10

Any aliens entering Chinese territory without authority were
ordinarily deported for sanctioning by their own home authorities. In
some cases, the Chinese authorities would direct the foreign king how
to punish the offender. Particularly in the case of Korean offenders,
the Chinese emperor sought to insure that the criminal would get the
benefit of review by the emperor and, in appropriate cases, by the
three high legal tribunals that each year supervised the "autumn
assizes" in Beijing."'

In cases where the Chinese authorities had doubts about whether
the foreign offender would be punished properly if deported, the crim-
inal might be tried in China" 12 or returned home with specific instruc-
tions to his king to handle the matter strictly.1 3 We learn something
about traditional Chinese "due process" from such a case arising in

108. For tribute mission members, see THREE STUDIES, supra note 2, at 144-45; for for-
eign merchants at Canton, see Edwards, Old Canton System of Foreign Trade, in LAW AND
POLITICS IN CHINA'S FOREIGN TRADE 362-67 (V.H. Li ed. 1977); for control of Western
priests allowed to enter Beijing to serve the emperor, see 511 HDSL, supra note 7, at 19a-b (15
HD Reprint 11,865).

109. See supra note 33 and accompanying text.
110. See supra note 29 and accompanying text.
111. For example, see a 1776 imperial edict commuting to banishment the death

sentences of several Koreans who survived fourteen assizes reviews. 511 HDSL, supra note 7,
at 21b (15 HD Reprint 11,866).

112. In a case decided in 1740, the Chinese Board of Punishments even went so far as to
try, in absentia, a Korean who had gone back and forth across the Sino-Korean frontier with-
out a passport and had lived with Chinese. The Korean was convicted and sentenced to stran-
gulation under Qing Penal Code Article 220-00, which governs illegal crossing of the frontier
to "traffic with foreigners." The Korean King was advised to keep the criminal in jail pending
review of the case at the autumn assizes. 511 HDSL, supra note 7, at 9b (15 HD Reprint
11,860).

113. For a 1761 case involving a Korean offender turned over to the Korean King for
trial and sentencing, subject to Chinese imperial review, approval and autumn assizes proce-
dure, see 511 HDSL, supra note 7, at 15b-16a (15 HD Reprint 11,863-64).

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JOURNAL OF CHINESE LAW

1764.114 It involved several Koreans who had illegally entered China
to trap mink. The Korean King proposed sentencing them to immedi-
ate decapitation. The Chinese Emperor ruled that the same offense in
the future could be punished as the King recommended. However,
since previous cases of the same type had not been punished so
severely, to punish the present offenders with immediate death would
be incorrect since they had no prior notice. It would be like "killing
without first trying to educate."

Various categories of aliens were granted entry to China under
conditions unilaterally prescribed by the Qing authorities. Thus,
Western merchants were allowed to reside only in Macao, and season-
ally in Canton, under close supervision by the Chinese civil and mili-
tary officials and were prohibited from entering into contact with the
Chinese populace.115 Western merchant ships were allowed to go up
to Canton only after receiving on board a Chinese pilot 116 and under-
going inspection by the Chinese harbor police. Warships were not
allowed to enter China's "inner ocean"'17I and foreign troops, not sur-
prisingly, were barred from entering Chinese territory.11 8  Russian
trade was restricted to the border post of Kiakhta from the mid- 18th
to the mid-19th Centuries" 9 and similar restrictions existed with
respect to Sino-Vietnamese and Sino-Korean trade.120

A tiny handful of Catholic priests were allowed to enter China to
serve the imperial court as astronomers and mathematicians. 121 They
were required to carry identification cards, and for most of the Qing
period they were barred from leaving Beijing, from preaching, and

114. 511 HDSL, supra note 7, at 17b-18b (15 HID Reprint 11,864-65).
115. See generally Edwards, supra note 108.
116. See a secret report (michen) to the Emperor from the Liangguang Governor-Gen-

eral in 1805, concerning foreign trade at Canton and the reorganization of the "hong
merchant" control system. 4 WS:JC, supra note 6, at 21b-22a (WS Reprint 400-01).

117. 23 YHZ, supra note 16, and 240 HDSL, supra note 7, at 2a (10 HD Reprint 8,276).
118. See the discussion of the Chinese protest over the British invasion of Macao in 1808,

supra note 11 and accompanying text. See also an 1812 communication the King of Siam
telling him to keep his troops out of Chinese territory in the future. 4 WS:JC, supra note 6, at
2a (WS Reprint 361).

119. See Mancall, supra note 4, at 249-65.
120. Chin, Sino-Korean Tributary Relations in the Ch'ing Period, in THE CHINESE

WORLD ORDER, supra note 2, at 107-09.
121. European priests desiring to go to Beijing to serve in the emperor's court had to

comply with a very elaborate procedure governing entry permission, travel route, clothing,
residence, and limitations on contact with the Chinese populace. 511 HDSL, supra note 7, at
19a-b (15 HD Reprint 11,865). See also a letter from the Qianlong Emperor to King George
III of England in 1793. 23 YHZ, supra note 16, at 84a, English translation in J. CRONMER-
BYNG, AN EMBASSY TO CHINA: LORD MACARTNEY'S JOURNAL 1793-1794 338 (1962). For
a detailed statement of the rules for European employment and residence in Beijing, see the
edict of the Jiaqing Emperor in 512 HDSL 3b-4b (15 HD Reprint 11,869-70).

[1:33



BORDER CONTROL LAW

from contact with the Chinese people. 122 An even smaller group of
Russians was permitted to reside in the "Russian Hostel" in Beijing as
language students. 123 They too were subject to very tight restrictions
on their movements and contacts. A final category of foreigners
authorized to enter China were envoys with "tribute" missions.124

These visitors were lavishly entertained at the expense of the Chinese
state but were closely escorted and prevented from having contact
with ordinary Chinese.1 21

IV. THINGS AND IDEAS

Given the Chinese perception that they had little to gain and
much to lose from free trade and unlimited exposure to alien religious
and political beliefs, it is perhaps not surprising to learn that the ideal
of minimum traffic extended to the regulation of the passage of things
and ideas across national boundaries. Although the exact content of
many of the rules changed from time to time over the two hundred
years of Qing history that concern us, certain principles and even
some of the substantive prescriptions remained constant.

A. Exports

Concern for border defense led the early Chinese rulers to pro-
hibit export of books on Chinese geography. 126  This rule was
enforced even to the point of confiscating an important gazetteer from
the baggage of a departing Korean tribute envoy in 169 1.127 The
envoy was not punished since the Chinese for millennia have custom-
arily recognized the personal immunity of foreign diplomats.28

Another category banned from export was history books. 2 9 This

122. An imperial edict of 1706 required European missionaries to obtain a certificate
from the Imperial Household Office, indicating name, age, church and years of residence in
China, carry it at all times and show it to district magistrates on demand. A DOCUMENTARY
CHRONICLE, supra note 18, at 114. For edicts of 1801, 1803 and 1811, enjoining the missiona-
ries from having contact with any Chinese other than their civil service colleagues, see 512
HDSL, supra note 7, at 3b-4b (15 HD Reprint 11,869-70) and 1 A DOCUMENTARY CHRONI-

CLE, supra note 18, at 352 and 358. For a document setting forth the ban on preaching to
Chinese, see 23 YHZ, supra note 16, at 2a.

123. E. WIDMER, THE RUSSIAN ECCLESIASTICAL MISSION IN PEKING DURING THE
EIGHTEENTH CENTURY 112 (1976).

124. 39 HD, supra note 7, at 2a-15b (1 HD Reprint 407-14), 510-14 HDSL, supra note 7,
at (15 HD Reprint 1845-99) and translation of the Kangxi and Qianlong regulations for tribute
missions in THREE STUDIES, supra note 2, at 135-45.

125. Id. See also 23 YHZ, supra note 16, at 84a.
126. 187 LZ, supra note 29, at 2b (2 LZ Reprint 1094).
127. 511 HDSL, supra note 7, at 3a (15 HD Reprint 11,857).
128. Id.
129. 185 LZ, supra note 29, at la (2 LZ Reprint 1091), 187 LZ 2b (2 LZ Reprint 1094),

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JOURNAL OF CHINESE LAW

prohibition may seem strange to Westerners, but for hundreds of
years the Chinese have considered history books to be a valuable
source of political guidance, to be preserved and studied by Chinese
officials but denied to potential foreign enemies. Law books, too, fell
within this ban. Thus, when the British in 1805 asked for a copy of
the Qing code, the request was refused. 130 Instead, the Chinese
authorities provided them with a few code excerpts relating to a pend-
ing dispute over a violation of Chinese law by a British sailor.
Unknown to the Chinese, however, a resident British linguist, Sir
George Thomas Staunton, had acquired a copy of the penal code and
also the illegal services of a competent Chinese assistant, enabling him
in 1810 to produce the first major translation of Chinese laws into a
Western language. 31 Staunton was subsequently a great thorn in the
side of the Chinese, testifying to the wisdom of the prohibition.

Military weapons and human slaves were subject to an absolute
export ban; horses, cattle, military supplies, metal implements, cop-
per, iron, and certain fabrics were subject to general export controls
and could be exported only with official permission. 32 The export of
various metals was sometimes banned and sometimes permitted in
limited quantities. 133 Cotton, silk, tea, and grains were also subject to
fluctuating export controls, depending upon the Qing government's
current perception of the impact of the outflow upon Chinese domes-
tic supply and price.1 34

HDSL, supra note 7, at 511:lb (15 HD Reprint 11,856), 775 HDSL 2b-4a (19 HD Reprint
14,937-38) and Qing Penal Code Article 225-12, 3 DC, supra note 50, at 511.

130. Morse, supra note 29, at 342-43.
131. Staunton, supra note 29.
132. See Qing Penal Code Articles 225-00, 3 DC, supra note 50, at 503; 225-03, 3 DC

506; 225-09, 3 DC 509; and 225-10, 3 DC 509.
133. For silver, see Qing Penal Code Article 225-09, 3 DC, supra note 50 at 509 and 40

HBZL, supra note 52, at 34a-b (6 HBZL Reprint 3001); for copper, see Qing Penal Code
Articles 225-10, 3 DC 509, and 225-12, 3 DC 511; for edicts illustrating the changing policies
with regard to control of copper exports, see 775 HDSL, supra note 7, at 18a (19 HD Reprint
14,945) and 776 HDSL lb (19 HD Reprint 14,946-47).

134. See Qing Penal Code Articles 225-10, 3 DC, supra note 50, at 494-95, and 224-09, 3
DC 500-01; and see edicts relating to control of silk export in 511 HDSL, supra note 7, at 13b-
14a (15 HD Reprint 11,862-63), 511 HDSL 15b (15 HD Reprint 11,863) and 630 HDSL lOa-
1la (17 HD Reprint 13,372). For rice controls, see Article 225-11, 3 DC 510-11 and edicts in
775 HDSL 13a-15a (19 HD Reprint 14,943-44). See also 41 HBZL, supra note 52, at 24a-b (6
HD Reprint 2981), 41 HBZL 25a (6 HD Reprint 2983), 41 HBZL 28a (6 HD Reprint 2989),
41 HBZL 32a (6 HD 2997), 22 ZZ, supra note 54, at 47a, 22 ZZ 48b, 726 HDSL 8b-9a (17 HD
Reprint 13,333), 629 HDSL 3a-3b (17 HD Reprint 13,361), 630 HDSL lb (17 HD Reprint
13,367) and 2 CZ, supra note 51, at 784a. For other grains, see Article 225-11, 3 DC 510-11),
an edict in 627 HDSL 8b (17 HD Reprint 13,333), 630 HDSL 2a (17 HD Reprint 13,377), 630
HDSL 22b-23a (19 HD Reprint 13,378), 775 HDSL 13a-15a (19 HD Reprint 14,943-44), 2 CZ
784a and 41 HBZL 25a (6 HD Reprint 2983). For tea controls, see Article 225-34, 3 DC 519,
630 HDSL 23a-b (17 HD Reprint 13,378) and 776 HDSL 3a-b (19 HD Reprint 14,947).



BORDER CONTROL LAW

B. Imports

Consistent with the concern for security was a ban on foreign
ships bringing weapons into China's internal waters. A regulation
required their surrender on entry and return on departure from Chi-
nese waters. 135 Strictly enforced in the early part of the 18th Century,
this rule was later allowed to lapse. Another prohibition banned the
import of opium. The principal concern over the opium trade was
over the outflow of silver. An important secondary concern was for
the morale of the soldiers and citizens who became addicts. 136

C. Ideas

Although no Qing law banned the export or import of ideas as
such, many border control rules were essentially aimed at preventing
the outflow of knowledge concerning China's political system and
military security and banning the influx of heterodox religious and
political concepts. Thus, the rules relating to proper procedure for
communication between China and foreign countries and the laws
governing heterodox religions and collaboration with aliens all served
to restrict the quantity and screen the content of ideas and informa-
tion passing in either direction across the Chinese frontier.

As we have seen, foreign countries could communicate with the
Chinese court only by complying with a prescribed form, routing
messages either from the foreign local official to the Chinese local offi-
cial and up the bureaucratic ladder to the emperor, or from the for-
eign king in his own language to the Chinese viceroy, for forwarding
directly to the emperor or via the Board of Rites. Moreover, under
the Canton regulations of 1760, all mail between the European
merchants in Canton and Macao and the Jesuits working in the impe-
rial court in Beijing was supposed to be forwarded through Chinese
bureaucratic channels and memorialized to the emperor.1 37 Commu-
nications not couched in proper form were rejected and returned
unread.

With respect to religion, aliens were allowed to retain their own
beliefs and to engage in their own form of worship, but they were
prohibited, under threat of harsh penal sanctions, from attempting to

135. 39 CZ, supra note 51, at 3a-b (2 CZ Reprint 779-80), 630 HDSL, supra note 7, at
15b-16a (17 HD Reprint 13,374-75) and 22 ZZ, supra note 54, at 43a-b.

136. 775 HDSL, supra note 7, at 10a (19 HD Reprint 14,941), 775 HDSL 10b (19 HD
Reprint 14,941), 39 CZ, supra note 51, at 61 (2 CZ Reprint 785), 39 CZ 6a-b (2 CZ Reprint
785-86).

137. A DOCUMENTARY CHRONICLE, supra note 18, at 226, 245-47.

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JOURNAL OF CHINESE LAW

make Chinese converts.'38 Catholicism was considered to be a direct
threat to the political order for it criticized ancestor worship, a major
pillar of the social and political system. 139 Many Western Catholic
missionaries were executed, imprisoned, or deported for violation of
this ban."4 Their followers were also severely punished. The Western
priests in Beijing were also prohibited from importing and publishing
Catholic religious tracts.'41 As with other aspects of Qing foreign
relations policies, control of foreign missionaries was more liberal in
the early part of the dynasty and became stricter in the late 18th
Century. 1

42

The principal Qing legal instrument for insulating the Chinese
body politic from aliens was the previously cited statute prescribing
heavy criminal sanctions for the offense of "collaborating with aliens"
(fiaojie waiguo). 14 3 Originally aimed at preventing Han Chinese from
entering tribal minority areas to cheat the local population, the statute
was used widely to punish Chinese for unauthorized contact with for-
eigners. We have seen it applied to Chinese settlers deported from
Siam to China in 1772. It was also used as the basis for applying the
death penalty to Chinese who secretly wrote petitions for foreigners
or who taught them the Chinese language."4 A related pair of stat-
utes is found in the section entitled "Leaking Important Military Mat-
ters" (Louxie Junqing Dashi). The basic statute imposes heavy
penalties on anyone disclosing military secrets; 145 the first sub-statute
under this statute prescribes the punishment of military banishment
for any civilian or military personnel who, through unauthorized con-
tact with members of a foreign tribute mission, discloses military
secrets. 

146

Aside from these principal provisions, many of the other rules

138. 3 WS:JC, supra note 6, at 42 (WS Reprint 321); and A DOCUMENTARY CHRONI-
CLE, supra note 18, at 143-73.

139. See A DOCUMENTARY CHRONICLE, supra note 18, at 339-40, for a letter from a
prominent Chinese Confucian scholar to a Korean scholar, in 1798, explaining why Catholi-
cism could not be tolerated in China.

140. See A DOCUMENTARY CHRONICLE, supra note 18, at 299-300, 352-57, 384-85 and
396-400 for such occurrences in 1785, 1805, 1811 and 1815.

141. Id. at 352-57.
142. Wakeman, High Ch'ing: 1683-1839, in MODERN EAST ASIA: ESSAYS IN INTERPRE-

TATION 23-25 (J. Crowley ed. 1970).
143. Supra note 99. For a fascinating essay on these laws from the point of view of the

European community in China in the 1830's, see the essay by Morrison, 3 THE CHINESE
REPOSITORY 9:421-23.

144. For example, see an imperial decree of 1759 ordering the execution of Liu Yapian
for writing a Chinese language petition which a foreign prisoner submitted to the Emperor, A
DOCUMENTARY CHRONICLE, supra note 18, at 422-24.

145. Qing Penal Code Article 202-00, 3 DC, supra note 50, at 462.
146. Qing Penal Code Article 202-01, 3 DC, supra note 50, at 463.



BORDER CONTROL LAW

discussed in Sections I and III helped to keep the movement of ideas
across the frontier down to a trickle. While in the short run these
prohibitions may have effectively insulated China from truly undesir-
able foreign influences, the underlying philosophy of isolationism and
the laws derived from it also denied to China the benefit of the rapid
developments in scientific thought and technology taking place in the
Western world. Under China's current leadership, perhaps the old
legacy of the ideal of a sealed frontier will finally succumb and China
will be able to participate fully in global intellectual, technological
and commercial exchange.

CONCLUSION

The contention that imperial China in its foreign relations clearly
acknowledged the prerogatives of rulers of sovereign territory, as well
as the compelling equity of the notion of reciprocity in relations
between states, indicates the need for scholars of Chinese history to
take another look at the reasons for China's slow and painful entry
into the modern "family of nations." Also deserving of attention are
the ideal of closure and total control of cross-border traffic, and the
related idea that the movement of anything at all - person, thing or
idea - across the border was an important matter that had to be
reported upwards and resolved only by the top leadership. The fact
that these similar values have been reflected at times in the foreign
policy of the People's Republic of China testifies to the deep-rooted
nature of these traditional conceptions of the optimal means of insur-
ing national security and domestic political stability.

I have provided statutory authority and extensive citation to
actual case decisions to demonstrate that the Qing emperors claimed
to have exact knowledge of the extent of the territory under their rule.
These sources have also shown that the Chinese rulers perceived their
legal authority as absolute within, but in general not extending
beyond, China's national borders.

The influence of the principles of reciprocity, neutrality, and
equality in the drafting and interpretation of Qing border control laws
reflects both a perception of the fairness of reciprocity and a recogni-
tion of the limits of Qing power to influence events beyond its borders.
Acknowledgment of equivalent rights and powers in neighboring
states was, no doubt, a practical precondition for securing the cooper-
ation of those states in enforcing China's own national policies and
laws relating to frontier security.

Nothing legally moved across the Chinese border without prior
official permission. Nor did any individual have an absolute right to

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JOURNAL OF CHINESE LAW

leave or enter Chinese territory. Violators of these prohibitions were
severely punished.

Study of these attitudes and practices of the Qing rulers may
even offer some insight into contemporary Chinese behavior. It can
plausibly be argued that some of the present leaders of China share
the Qing view that traffic across the border should be carefully
screened and kept to a manageable trickle. Although China's doors
now have been opened somewhat wider for foreign visitors it is
unlikely that Beijing will soon endorse a policy of unrestricted entry
into and exit from China. The governments of China and Vietnam
are still faced with many of the same questions that plagued their
predecessors two centuries ago, for example, a dispute over the loca-
tion of the boundary line and over the nature of the rules governing
traffic across the border.

This study, together with other recent case studies of traditional
Chinese law, reminds us that the bureaucratic approach to regulatory
problems, domestic and foreign, has a long history in China. Students
of contemporary Chinese law should take note of the necessity to look
beyond the more accessible laws and statutes to examine the internal
regulations of the principal organs of the state bureaucracy.

I conclude with a parallel between the Qing border control poli-
cies we have examined and the policy recently adopted by China's
current leaders to invite an infusion of Western capital, scientific
thought, and technological know-how. During the Qing Dynasty
prior to 1841, the only Westerners granted lawful entry into China
were traders (who were restricted to Canton), the handful of tribute
diplomats who went to Beijing under close escort, and the Jesuit
employees of the imperial court. Foreign presence was tolerated only
because the emperor found the granting of limited foreign access use-
ful for political and scientific purposes.

Foreign ideas and customs were generally banned as a threat to
the dominant Confucian idealogy. These restrictive policies and laws
were ultimately abolished only by superior Western economic, mili-
tary, and technological might. The opening of Qing China to foreign
trade and missionary activity introduced a flood of alien ideas that
helped to stimulate an intellectual ferment and political action leading
to the downfall of the imperial order. The intriguing question is
whether today's leaders of China will be able to succeed, where the
Qing rulers failed, in restricting the influence of "Western studies" to
utilitarian purposes and protecting the purity of "Chinese studies" as
the basis for political and social life.