Legal Reform in Taiwan under Japanese Colonial Rule, 1895-1945

The Reception of Western Law

Tay-sheng Wang

• Publisher: University of Washington Press
• Year: 2014
• Print ISBN: 9780295978277
• eBook ISBN: 9780295803883
• Topic: History
• Subtopic: Asian History
• Index: History

Taiwan's modern legal system--quite different from those of both traditional China and the People's Republic--has evolved since the advent of Japanese rule in 1895. Japan has gradually adopted Western law during the 19th-century and when it occupied Taiwan--a frontier society composed of Han Chinese settlers--its codes were instituted for the purpose of rapidly assimilating the Taiwanese people into Japanese society. Tay-sheng Wang's comprehensive study lays a solid foundation for future analyses of Taiwanese law. It documents how Western traditions influenced the formation of Taiwan's modern legal structure through the conduit of Japanese colonial rule and demonstrates the extent to which legal concepts diverged from the Chinese legal tradition and moved toward Western law.

1 / Background of Legal Reform

To determine the legal and social context in which modern Western law was implemented in Taiwan at the end of the nineteenth century, I will first briefly describe the development of Taiwan’s society under various outside rulers before the advent of Japanese authorities in 1895. This exposition is necessary not only to understand the later modernization (Westernization) of law by the Japanese regime but also to appraise the colonial Japanese achievement in Taiwan.

TAIWAN SOCIETY AND OLD RULERS (PRE-1895)

Taiwan comprises the main island of Taiwan (Formosa; hereafter referred to as Taiwan Island) and its adjacent islands, mainly the Pescadores (P’eng-hu). Taiwan Island lies a hundred miles east of China, some seven hundred miles south of Japan, and two hundred miles north of the Philippine Islands. It is surrounded by the Pacific Ocean, which for sometime isolated it from the neighboring imperial Chinese as well as from the Hindu and Buddhist civilizations of East and Southeast Asia. The maritime expansion of Europe in Asia in the sixteenth and seventeenth centuries, however, brought Taiwan into the mainstream of global development. Aborigines, Han Chinese, Japanese, and Europeans have all helped to shape the history of Taiwan.¹

With an area of 13,807 square miles, Taiwan Island is a little larger than the Netherlands, a trifle smaller than Switzerland.² The Pescadores encompass only 48 square miles but are important for Taiwan because of their strategic location, slightly east of the midway point of the Taiwan Strait, which separates Taiwan from the East Asian continent.³ At one-sixth the size of Korea, another important Japanese colony, Taiwan was a mere 5.34 percent of the total size of the prewar Japanese empire.⁴ Needless to say, compared to mainland China, Taiwan is nothing more than a tiny island.

Early History of Taiwan (Pre-1624)

Exactly how long Taiwan has been inhabited is not known, but Taiwan “aborigines” are probably the earliest inhabitants of the historical period.⁵ Racially they belong to the Proto-Malay group and are different from the Han Chinese (Han-jen). Linguistically and culturally, the aborigines are akin to the Malayo-Polynesian peoples of the Philippines and other parts of Southeastern Asia.⁶ Before contacting other civilizations, they generally practiced primitive subsistence farming, which was supplemented by hunting and fishing.⁷

The second major group to contact Taiwan, at this point inhabited by these aborigines, undoubtedly were the Han Chinese, although when this contact began has yet to be conclusively determined.⁸ At least some Han Chinese from southern Fukien province of China (Ch’üan-chou) migrated to the Pescadores in the twelfth century. The Pescadores then became a part of Fukien in Southern Sung China (1127–1279). The Mongol empire in China (1280–1368) later installed a local administrative official on the Pescadores. At that time, Han Chinese were aware of Taiwan Island, but only a few fishers and traders occasionally visited the island. Continuous migration of the Han Chinese to Taiwan was hindered by the maritime prohibition policy of Ming China (1368–1644), under which the administrative office in the Pescadores was abolished and the Han people were moved back to the Chinese mainland. Beyond the jurisdiction of the Ming government from this point on, Taiwan was thus an ideal shelter for Chinese and Japanese pirate-traders who often attacked the coastal areas of China. Ming forces were sent to the Pescadores and Taiwan Island to annihilate those pirates, but Ming contact with Taiwan was limited to this occasional policing of the area.⁹ One of the pirate-trade groups operating in the Taiwan Strait at this time developed into the Cheng band; in 1662 they became the Cheng regime on Taiwan, which will be discussed later.¹⁰

The first Japanese who had contact with Taiwan were pirate-traders. By about 1560 they already regarded Taiwan as their base for invading Fukien. Merchants from Nagasaki, having obtained special government licenses, opened offices in northern Taiwan Island (Keelung) in 1592. In the next year, Toyotomi Hideyoshi tried to send a letter to order Takasago (or Takaya-makuni; namely, Taiwan) to submit tribute to Japan, but there was no government on the island to receive the order. Then, after an unsuccessful attempt at contact in 1609, the Tokugawa shogunate sent a fleet to conquer Taiwan in 1615, but this attempt failed because the fleet encountered a typhoon. Japanese pirate-traders, however, continued to use Taiwan as a trading base until the bakufu ordered the closing of Japan (sakoku) in 1639.¹¹

European explorers, missionaries, and traders composed the fourth group of arrivals to Taiwan. In the 1550s, Taiwan was “discovered” and named Ilha Formosa (beautiful island) by the Portuguese.¹² Because of Taiwan’s strategic location regarding trade with China and Japan, it became one of the important targets for control by the European maritime powers. In the late sixteenth century, the Spanish based in Manila tried to conquer Taiwan Island but, like the Japanese, failed because their ships were sunk by a typhoon.¹³

The Dutch came next to the Taiwan Strait in search of a base for trade with China. In 1622, the Dutch occupied the Pescadores. After initial conflict and negotiation, the Dutch and Ming China finally reached an agreement in 1624 that required the Dutch to abandon the Pescadores but allowed them to occupy Taiwan Island; accompanying the agreement was a mutual understanding that the Dutch were permitted to trade with China. Thus the Dutch, the latest arrivals, with some assistance from Ming China, moved to occupy Taiwan Island.¹⁴

Dutch and Spanish Colonial Rule (1624–62)

The Dutch Republic established its authority on Taiwan Island in 1624, the first alien, colonial regime on the island.¹⁵ The Dutch constructed forts at present-day Tainan (a city in southern Taiwan) as their headquarters.¹⁶ The task of governing the island was undertaken by a trading organization, the Dutch East India Company. Since the company was entrusted with diplomatic, administrative, judicial, and other functions of sovereignty by the Dutch government, the Dutch Republic legally exercised its authority on Taiwan Island.¹⁷ The Spanish had established another regime in northern Taiwan Island (1626–42), and the Pescadores remained under the jurisdiction of Ming China. Thus, Taiwan, as defined today, was simultaneously subjected to three sovereigns.¹⁸

The Dutch occupation of Taiwan Island was chiefly motivated by the prospect of mercantile profits, not by a desire to extend territorial power.¹⁹ As a business organization, the Dutch authorities in the island were organized as efficiently as possible. With a small number of personnel, the company’s governor of Taiwan and his council exercised all administrative and judicial functions under the supervision of the East Indian Government (the central government) in Batavia (in Jakarta). To cut costs, the Dutch allowed the aborigines and Han Chinese to elect their own chiefs with the approval of the colonial authorities. Receiving instructions from the company, the chiefs were for all practical purposes in charge of the administrative and judicial affairs of their people. Dutch justice in fact applied only to cases involving Europeans.²⁰ The Dutch colonialists adopted the principle of legal dualism for colonized peoples and merely brought a premodern pattern of Western government to the island.

During the late period of Dutch rule, as Dutch trade with China became difficult because of problems in acquiring needed merchandise from wartime China, Dutch interest in the island gradually declined.²¹ The Dutch finally were ousted from Taiwan Island in 1662 by the Cheng band, another maritime power in the Taiwan Strait, ending their thirty-eight-year rule in Taiwan.

The Dutch, no doubt, did profit through their exploitation of both the Han Chinese and the aborigines, but they also left something behind for Taiwan.

Because, beginning in the 1630s, the Dutch East India Company in Taiwan, as in Java, recruited farmers from China to develop colonial agriculture, many Han Chinese peasants living in southern Fukien were attracted to Taiwan Island and settled there for the first time. Because of famine, war, and overpopulation in China, this movement continued through the late period of Dutch rule.²² The population of Han Chinese settlers during the Dutch period is estimated at fifty thousand. Although the Han Chinese effectively colonized Taiwan Island, these settlers did not establish their own government, but were governed by the Dutch colonial regime. The 1652 Kuo Huai-i Incident, in which Han Chinese rebelled against the government in response to heavy tax burdens, reflects the inherent conflict between Han Chinese settlers and Dutch colonialists during this time.²³

Dutch colonialism deeply affected the agricultural development of the island. To increase production for export, the company improved cultivation and encouraged the development of commercial crops such as sugarcane. Han Chinese settlers therefore were introduced to mercantilist production, which was different from their original self-sufficiency production on the Chinese mainland.²⁴

Dutch “civilizing” effects had considerable influence upon the aborigines. Although some aborigines rejected Dutch rule and moved to mountain areas beyond Dutch control, many aborigines accepted Dutch rule and settled in plains areas and were later referred to as “plains aborigines” during the Ch’ing and Japanese periods. In Ch’ing Taiwan, the aborigines who had been governed by the Dutch continued to use roman script for transliterating their local dialects in contracts with Han Chinese.²⁵

A few important Dutch legal measures were followed up by later Chinese regimes on Taiwan. The Dutch crown fields and taxation system continued to be enforced on the island by the Cheng regime. The system of local chiefs was also maintained by the immigrant society of Taiwan.²⁶

The Spanish colonial rule in northern Taiwan Island did not succeed. Concerned about Dutch threats to the safety of their trading establishment in Manila, the Spanish constructed forts at Keelung and Tanshui (in northern Taiwan Island) in 1626 and 1629, respectively. They used these forts for commercial and religious purposes as well; however, an inhospitable natural environment and lack of funds made it difficult for the Spanish to achieve their goals. Gradually their holdings on the island were no longer considered an asset for which it was worth fighting. In 1642, the Dutch in the south ousted the Spanish from the island. The Spanish therefore had little influence on northern Taiwan Island.²⁷

Military Rule of the Cheng Regime (1662–83)

As the Dutch had defeated the Spanish, in 1662 a band of pirate-traders led by Cheng Ch’eng-kung (known as Koxinga in the West) defeated the Dutch on the island and imposed their authority over Taiwan Island as well as the Pescadores. Koxinga organized the Cheng band into a government at Amoy (a port of Fukien) in 1655 under the nominal jurisdiction of the Southern Ming government. Four years later the Southern Ming government was extinguished by the Manchu forces, who had established the Ch’ing dynasty in most of China in 1644. When Koxinga led his men to attack the Dutch on Taiwan Island in 1661, there was no Ming government in China. Therefore, after 1662 the Cheng government became, de facto, the supreme authority on the island. Subsequently, Taiwan was recognized as an independent state by Europeans.²⁸ However, from the viewpoint of the aborigines and those Han Chinese who had settled on the island during the Dutch period, the Cheng government was an alien, Han Chinese regime.²⁹

In fact, the Cheng rulers were unwilling to reside on the island; they regarded Taiwan as a temporary base for war against the Ch’ing to restore Ming rule in China.³⁰ Taking advantage of an unrelated insurrection against the Ch’ing empire in 1673, the second ruler of the Cheng regime, Cheng Ching, mounted a military counterattack against mainland China. However, a shortage of supplies by 1679 brought failure, and he returned to Taiwan in the next year.³¹

The Ch’ing government was concerned with the Cheng regime’s threats to Ch’ing authority on mainland China rather than the acquisition of Taiwan. In the peace talks of 1679 the Ch’ing negotiators expressed their willingness to treat Taiwan as an independent state like Korea or Japan since Taiwan originally was not included in the territory of China but was simply exploited by the Cheng family; however, the Cheng forces in return had to withdraw from and stop attacking Ch’ing China.³² When the Cheng regime insisted on keeping a port on China’s coast, the peace talks broke down, and the Ch’ing government decided to invade Taiwan. In 1683, Shih Lang, a former Cheng commander, led a Ch’ing fleet to attack Taiwan. By this time, six years of continuous fighting in China had exhausted the Cheng regime. The Cheng government soon surrendered, and their twenty-one-year rule on Taiwan came to an end.³³ Within a period of less than sixty years, sovereignty over Taiwan had changed three times.

One of the most stimulating effects of the Cheng regime on Taiwan’s society was the legacy of the legal and political system of imperial China and the Confucian educational institutions it bequeathed.³⁴ Under Cheng rule, Taiwan basically changed from a Dutch plantation colony into a Han Chinese settlement colony.³⁵

The sinicization of Taiwan under the Cheng rule should not be overemphasized, however.³⁶ The Han Chinese on Taiwan, unlike those in China, maintained a practical and pragmatic relationship with the European powers.³⁷ The Confucian literati made up only a very small portion of the whole population in Taiwan society.³⁸ With prosperous international trade, many people on Taiwan, unlike those in the inland areas of China, conducted or were influenced by mercantile activities. Moreover, because of the hostility between the Ch’ing and the Cheng, the Han Chinese on Taiwan were separated from those in mainland China politically, socially, and economically.³⁹

The Cheng regime, although established by Han Chinese, did not give unlimited advantages to the Han Chinese settlers. In the beginning, the settlers welcomed the advent of Koxinga’s government.⁴⁰ To feed a large number of soldiers, the Cheng government reclaimed vast tracts of land for agriculture through a military colony system, under which soldiers were required to engage in farming in their garrisons. To the detriment of the aborigines, Han Chinese settlers thus acquired more land to cultivate, and their population increased to a hundred thousand at least, almost double that during the Dutch period.⁴¹ Nevertheless, the rulers of this dynasty, pursuing their own political ambitions, refused to make peace with Ch’ing China and continued to fight for restoration of Ming rule in China at the expense of the settlers. The Han Chinese settlers on Taiwan therefore were ruled by a militarized government under martial law. The settlers also had to pay onerous taxes—as heavy as the Dutch had levied—to support Cheng’s expensive military action...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction
• 1 / Background of Legal Reform
• 2 / Reception of Western Law in Colonial Legislation
• 3 / Modern Judiciary in the Colony
• 4 / Criminal Justice and Changing Society
• 5 / Westernization of Civil Justice
• 6 / Appraisal and Legacy
• Conclusion
• Appendix A / Development of Taiwanese Law
• Appendix B / The Law Relating to Laws and Ordinances to Be Enforced in Taiwan
• Appendix C / The Civil, Commercial, and Criminal Law
• Appendix D / The Bandit Punishment Law
• Glossary
• Abbreviations
• Notes
• Bibliography
• Index