Abstract:

The 1746 law is an important statute that reflected the relationship between the customary law of Qalqa and the code of Mongγul ?aγa?a enacted by the Qing government. As the QingEmpire strengthened its control over Qalqa from the 1720s to 1730s, articles on theft and robbery in the Mongγul ?aγa?a were actively applied to Qalqa. To deter theft and robbery, the Qalqa’s nobles drew up the 1746 law by themselves without permission from the Qing government. The 1746 law was mainly based on old articles of the Mongγul ?aγa?a and supplemented with the Qalqa’s original compensation practices. It was also a workaround to deal with the problems of crime compensation and the escorting of criminals. The Qalqa vice-generals’ law is not the 1746 law. The former derived from customary law of Qalqa and had been applied in secret by Qlaqa’s nobles to settle livestock-stealing cases for a long time. The two laws represent two ways that in consideration of their own benefits and realistic needs, the Qalqa’s nobles changed the Mongγul ?aγa?a flexibly and followed customary law to tackle issues with the Mongγul ?aγa?a. Thus, the Mongγul ?aγa?a became dominant in Qalqa. Meanwhile, the customary law, while conflicting with the Mongγul ?aγa?a, still played a role in society of Qalqa through combination with the Mongγul ?aγa?a or by being applied in secret by Qalqa’s nobles.

摘要：

《喀尔喀济鲁姆》之乾隆十一年法是反映清朝蒙古律与喀尔喀习惯法关系的一则重要法规。雍正末至乾隆初年，随着清朝对喀尔喀统治的加强，蒙古律盗贼例得以全面贯彻实施。喀尔喀王公为解决由此而引发的盗贼赔偿与解送问题，在未经清廷许可的情况下制定乾隆十一年法，恢复蒙古律旧例的同时，补入喀尔喀习惯法，对蒙古律进行了变通处理。“喀尔喀四部副将军所定法规”与乾隆十一年法性质迥异，二者并非同一法规。前者来源于喀尔喀习惯法，作为惩治牲畜偷盗犯的法规长期被喀尔喀王公私下采用。这两则法规分别代表喀尔喀王公出于自身利益与现实需求，以变通处理与因循旧习的方式应对清朝蒙古律。这两种方式既彰显了蒙古律在喀尔喀占据统治地位，同时反映出与蒙古律相抵触的喀尔喀习惯法仍以或明或暗的形式，在喀尔喀社会中发挥着作用。