清季司法主权的丧失 THE LOSS OF JUDICIAL SOVEREIGNTY IN THE ...
一、领事裁判权和会审公廨制度
1.Consular Jurisdiction and Joint Trial System
鸦片战争结束后，中英《南京条约》规定：“凡系大英国人，无论本国、属国军民等，今在中国所管辖各地方被禁者，大清大皇帝准即释放。”“凡系中国人，前在英人所据之邑居住者，或与英人有来往者，或有跟随及俟候英国官人者，均由大皇帝俯降御旨，誊录天下，恩准全然免罪；且凡系中国人，为英国事被拿监禁受难者，亦加恩释放。”《南京条约》中这些条款的签订标志着中国开始丧失司法主权。第二年，中英双方再次签订《五口通商章程》，其中“英人华民交涉词讼一款”规定：“倘遇有交涉词讼，管事官（即领事）不能劝息，又不能将就，即移请华官公同查明其事，既得实情，即为秉公定断，免滋讼端。其英人如何科罪，由英国议定章程、法律，发给管事官（即领事）照办。华人如何科罪，应治以中国之法。”这无疑是领事裁判权制度在中国的开端。此后，凡在中国享有领事裁判权的国家，其侨民可不受中国法律的管辖，无论发生怎样违反中国法律的行为，或者成为民事、刑事诉讼当事人，中国的司法机关都无权裁判，只能由该国领事或该国设在中国的司法机构依据其本国法律进行裁判。咸丰八年（1858）《（中英）天津条约》第十五款“英国属民相涉案件，不论人、产，皆归英官查办”和第十六款“英国民人有犯事者，皆由英国惩办”的签订则使列强巩固并扩大了已攫取的领事裁判权。
咸丰十年十月（1860 年12 月）英国驻华公使普鲁斯照会清政府要求在天津设立租界
In December 1860， British Minister Proust sent a note to the Qing government demanding the establishment of a concession in Tianjin
After the Opium War, the Treaty of Nanjing stipulated that “the Great Emperor of the Qing Dynasty will release all the British who are forbidden in China,regardless of their own country, military and civil affairs”.“All those who are Chinese, who lived in the cities where the British lived, who have contacts with the British, or who follow and wait for the British officials, will be given the imperial edict by the Great Emperor, transcribed from the world, and will be free from all guilt.Moreover, all those who are Chinese and imprisoned for British affairs will be released with grace.” The signing of these clauses in the Treaty of Nanjing marked the beginning of China's loss of judicial sovereignty.In the following year, China and Britain signed the Five Ports Trade Constitution again,in which “the English and Chinese people's litigations” stipulates: “If there is a litigation, the steward (i.e.the consul) cannot persuade or make do with it.He will ask the Chinese officials and the public to find out the matter.When the truth is obtained, he will make a fair decision and avoid litigation.The British were punished in accordance with the articles of association and laws agreed upon by the United Kingdom, and sent them to the bailiff (i.e.the consul).Chinese people should be punished according to Chinese law.” This was undoubtedly the beginning of consular jurisdiction system in China.Since then, any country with consular jurisdiction in China might not be subject to the jurisdiction of Chinese law.No matter how it violated Chinese law or became a party to civil or criminal proceedings, the Chinese judicial organ had no right to make a judgment.It could only make a judgment by the consul of that country or the judicial organ of that country in China in accordance with its domestic law.In 1858, the Treaty of Tianjin between China and Britain was signed.The signing of the article 15 “Cases involving the British people, regardless of person or property, shall be investigated and dealt with by the British officials” and the article 16 “If the British people have offenders, they shall be punished by the British” consolidated and expanded the jurisdiction seized by the powers.
与领事裁判权相关，中国的司法主权受到列强侵犯的另一个重要表现就是会审公廨制度的建立。同治三年（1864），清政府采纳英国驻沪领事巴夏礼的建议，在上海英租界设立理事衙门（又称“洋泾浜北首理事衙门”），由中外官员共同审理华洋之间的案件。会审公廨制度严重破坏了中国的司法主权，它令外国领事、陪审官可以根据利益的需要直接干预审判；而纯粹华人之间的案子，外国陪审官也会以各种各样的理由介入，清政府的司法主权遭到了进一步的侵犯。
Related to consular jurisdiction, another important manifestation of the infringement of China's judicial sovereignty by foreign powers was the establishment of the joint trial system.In 1864, the Qing government adopted the proposal of British Consul Harry Parkes in Shanghai and set up a council yamen (also known as“the northern head Council yamen of the Pidgin Creek”) in the British concession of Shanghai, where Chinese and foreign officials jointly tried the cases between China and foreign countries.The joint trial system had seriously damaged China's judicial sovereignty, which enabled foreign consuls and jurors to directly intervene in judicial activities according to their own interests.In the case of only Chinese litigants existed, foreign jurors would intervene in the trial for various reasons,which further infringed the judicial sovereignty of the Qing government.
领事裁判权使洋人获得了保障利益的治外法权，会审公廨制度又成了列强干预司法、干预审判的工具，不仅严重侵蚀了中国的司法主权，而且大大超出了保护外国侨民不受中国法律制裁的本意，成了在华洋人攫取各种利益的保护伞。至19世纪末，清政府逐渐认识到丧失司法主权对国家政权造成的危害，并开始有意识地作出反应，而清末司法改革也呼之欲出。
Consular jurisdiction gave foreigners extraterritoriality to protect their interests, and the system of joint trial had become a tool for foreign powers to intervene in justice and trial, which not only seriously eroded China's judicial sovereignty, but also went far beyond the original intention of protecting foreign nationals from Chinese legal sanctions and became a protective umbrella for foreigners in China to seize various interests.By the end of the 19th century, the Qing government gradually realized the harm of the loss of judicial sovereignty to the state power, and began to respond consciously, and the judicial reform in the late Qing Dynasty was about to come out.
二、天津教案的影响
2.The Influence of Tianjin Religious Case
咸丰十年（1860）第二次鸦片战争结束以后，天津被迫开为通商口岸，英、美、法三国率先胁迫清政府将海河西岸的紫竹林一带划为租界，从此拉开了天津近代历史的序幕。随着领事裁判权的确立，天津的司法主权也开始受到挑战。如果说会审公廨制度是洋人平缓攫取上海司法主权工具的话，那么天津教案就是有关洋人观审、会审的一次激烈的碰撞与爆发。
After the end of the Second Opium War in 1860, Tianjin was forced to open as a trading port.Britain, the United States, and France took the lead in coercing the Qing government to delimit the Zizhulin area on the west bank of the Haihe River as a concession, which opened the prelude of Tianjin's modern history.With the establishment of consular jurisdiction, Tianjin's judicial sovereignty began to be challenged.If the joint trial system was a tool for foreigners to seize the judicial sovereignty of Shanghai, then the Tianjin Religious Case was a fierce collision and outbreak of the joint trial of foreigners.
咸丰十一年（1861）年末，法国天主教遣使会神父和仁爱会的修女购买了天津三岔河口北岸望海楼旧址及其西侧崇禧观的一公顷土地。同治八年（1869），法国神父谢福音拆除崇禧观和附近民房以建造望海楼教堂，引起了当地百姓极大的愤慨。第二年夏，天津爆发瘟疫，法国人开办的育婴堂中30余名儿童死亡，关于天主教神父和修女派人用药迷拐孩子并挖眼剖心制药的谣言随即流传开来。
咸丰十一年（1861）年末天津天主堂地基立契（左）
In early 1862， the foundation contract of Tianjin Catholic Church （left）(https://www.daowen.com)
同治元年（1862）望海楼教堂的永租执照（右）
The permanent license of the Church of Our Lady of Victory in 1862 （right）
At the end of 1861, the French Catholic missionary priest and the nuns of Daughters of Charity purchased one hectare of the former site of Wanghai building on the north bank of sanchahekou in Tianjin and Chongxi Temple on the west side.In 1869, the French priest Chevrier demolished Chongxi Temple and nearby houses to build the Church of Our Lady of Victory, which aroused great indignation of the local people.In the summer of the next year, a plague broke out in Tianjin, and more than 30 children died in the French nursery.Rumors spreaded that Catholic priests and nuns sent people to abduct children with drugs and made drugs by digging their eyes and dissecting their hearts.
民间组织水火会开始主动组织捉拿人贩子，不久即捕获一名叫武兰珍的迷拐犯。武兰珍供称其作案所用迷药是法国天主教仁慈堂所提供。未经核实的消息不胫而走，聚集在教堂外的愤怒市民与教堂人员发生口角，抛砖互殴。
The non-governmental organization Shuihuohui began to take the initiative to arrest the traffickers, and soon captured a abductor named Wu Lanzhen.Wu Lanzhen confessed that the drug used in her crime was provided by the French Catholic Mercy Church.The unverified news spreaded like wildfire, and angry citizens gathered outside the church quarreled with church staff, and fought each other with brick.
仁慈堂修女本拟请民众派代表入内调查真相，不过被法国领事丰大业阻止。他带人闯入三口通商大臣驻地和天津府衙，要求崇厚、张光藻派兵镇压，却没得到满意的结果。丰大业后于狮子林浮桥上遇到静海知县刘杰，辩论中，丰大业向刘杰开枪，射到挡在前面的刘杰家人刘七。围观百姓被丰大业的开枪行为激怒，打死了丰大业、领事馆秘书西蒙、领事馆翻译夫妇、神父谢福音以及多名法国、俄国商人，望海楼教堂、育婴堂以及教堂旁的法国领事馆均遭到焚毁，酿成了震惊中外的天津教案。
The nun of Mercy Church originally asked the people to send representatives to investigate the truth, but she was blocked by the French consul Fontanier.He led people to break into the residence of Three-port Commerce Minister and Tianjin government, and demanded Chonghou and Zhang Guangzao to send troops to suppress them,but he didn't get satisfactory results.Fontanier met Liu Jie later, the county magistrate of Jinghai, on the Shizilin bridge.During the debate, Fontanier shot Liu Qi, a family member who was standing in front of Liu Jie.Enraged by Fontanier's shooting, the onlookers killed Fontanier, the consulate secretary Simon, the consulate interpreter and his wife, priest Chevrier, and a number of French and Russian businessmen.The Church of Our Lady of Victory, the French nursery and the French Consulate beside the church were all burned, resulting in a shocking Tianjin Religious Case.
天津教案爆发后，涉案国法、俄、西、美、普、比、英纷纷出面干涉，威胁清政府要公平妥善的处理。最终，清政府在法国的要求下，判决处死变乱中为首的16人，4人缓刑，充军流放25人，并将天津知府张光藻、静海知县刘杰革职，充军发配到黑龙江，赔偿法国损失46万两白银，赔偿俄、英、美各两万两白银，并派崇厚出使法国道歉。
After the outbreak of the Tianjin Religious Case, France, Russia, Spain, the United States, Prussia, Belgium and Britain intervened one after another, and they threated the Qing government to deal with it fairly and properly.Finally, at the request of France, the Qing government sentenced 16 people to death, 4 to probation,25 to exile, and sent Zhang Guangzao, the magistrate of Tianjin, and Liu Jie, the magistrate of Jinghai, to Heilongjiang Province.Moreover the Qing government compensated France for the loss of 460000 taels of silver, Russia, Britain, and the United States for 20000 taels of silver, and sent Chonghou to France to apologize.
焚毁后的仁慈堂
Mercy Church after burning
天津教案不仅在当时引起了巨大的轰动，而且影响深远。清政府的立法权、司法权都受到了极大的干涉和削弱。曾国藩和清政府本不想处罚地方官员，但迫于各国公使、领事的压力，最终不得不将府县官员撤职。同时，拥有观审权、会审权的外国代表在审案时，往往对中国法官施加压力，要求清政府满足自己的要求。于是，地方官权量利弊，大多采取隐瞒案件真相的手段，牺牲一些普通民众来了结案件，从而严重破坏了司法的公正。
Tianjin Religious Case not only caused a huge sensation at that time, but also had a far-reaching impact.The legislative and judicial powers of the Qing government were greatly interfered and weakened.Zeng Guofan and the Qing government did not want to punish local officials, but under the pressure of ministers and consuls of various countries, they had to remove the officials from their posts.At the same time, the foreign representatives who had the power of observation and joint trial often exerted pressure on the Chinese judges to meet their own requirements.As a result, local officials closed the case by sacrificing ordinary people and concealing the facts of the case, thus it seriously undermined the judicial justice.
总之，天津教案的处理充分暴露了清政府司法主权的丧失，不过也为督促清季司法改革，甚至废除领事裁判权，增添了一枚重重的砝码。
In a word, the handling of Tianjin Religious Case fully exposed the loss of judicial sovereignty of the Qing government, but also added a heavy weight to urge the judicial reform in the Qing Dynasty and even abolished the consular jurisdiction.
第一代仁慈堂
The first Mercy Church