THE n ''dm Ch 'in<3. FAMILY LAW OF THE CHINESE 0 BY P. G. VON MOLLENDORFF SHANGHAI; Printed by Kelly & Walsh, Limited, Nanking Boad. 1 8 9 6 . 1 J I i 1 i 'I I \ I k } f i 4 I i THE FAMILY LAW OF THE CHINESE, V ' Sr.* • St Jf I r \ r W" ’ • i I I *• THE FAMILY LAW OF THE CHINESE P. G. VON MOLLENDORFF SHANGHAI : Printed by Kelly & Walsh, Limited, Nanking Road. 1 8 9 6 . THE FAMILY LAW OF THE CHINESE. PREFACE. N 1878 I read an essay on the Family Law of the Ohinese I before the North-China Bi-anch of the Royal Asiatic Society at Shanghai, which appeared in the Society’s Journal [N.S. vol. XIII (1879) p. 99-121]. I had been largely indebted to Mr. E. H. Parker, H.B.M.’s Consul, for valuable notes relating to my subject, and in a lengthy review of my essay in the China Revleiv [vol. VIII (1879) p. 67-107] that gentleman again added a number of suggestions and observa- tions. These together with new investigations of my own have made it desirable to republish thei old essay, with the necessary alterations and additions. Of the legal literature of China I have principally consulted the Statute Law and the Ordinances of the present dynasty ^ {Ta -chHng-lu-li), of which the laws relating to the present subject have been translated by Mr. G. Jamieson in the China Review [vol. X (1881) p. 77-99]. In the arrangement of the subject before me I have taken as a basis the Roman law, which, owing to its logical structure and general completeness, has become a typical system, and 2 THE FAMILY LAW OF THE CHINESE. has formed the foundation of the jurisprudence of all Euro- pean nations. I have chiefly consulted the works of Puchta, Mackeldey, Dernburg [^Privatrecld, 2nd ed., vol. Ill, 1881] and others, for the Canon law Walter’s Kirchenrecht. For the Jewish law the interesting work [in German] of S. Mayer on the Laws of the Jews, Athenians and Romans, furnished comparisons, ideas and suggestions. Since the first edition of my essay, the Realencyclopiidie fur Bihel nnd Talmud [by Dr. Hamburger, 2 vols. and o Supplements (1870-1892)] has become a standard work, to which 1 am much indebted. Some sentences have been quoted from Maine’s Ancient Laio, 6th ed. 1876, and from J. F. McLennan’s Studies in Ancient History, 1876, specially chapter II, p. 13 ss. 1 have also made use of C. N. Starcke, The Primitive Family in its Origin and Development, London, 1889. The frequent comparisons with Jewish and Roman Law have been made with the object of proving that the Chinese laws and customs are pervaded by the same spirit of common humanity as those of other ancient peoples. I have constantly consulted the valuable Chinese-English Dictionary by H. A. Giles, Shanghai, 1892, and the excellent NederlandscJt-chineesch Woordenhoek by G. Schlegel, 4 vols. 1886-90. The latter is a mine of information and far too little known. The trouble of having to use it with the help of an Euglish-Dutch pocket-dictionary is too slight to stand in the way of its general use. THE FAMILY LAW OF THE CHINESE. 3 TABLE OF CONTENTS. Introduction. A. — On Marriage. 1. General Kemarks. 2. Requirements for concluding marriages. 0. Betrothal. 4. Marriage. 5. Relation of husband and wife to each other. G. Dissolution of marriage. 7. Bigamy. 8. Polygamy and Polyandry. 9. Second nuptials and violation of the time of mourning. B. — On F atria Potestas. 1. General Remarks. 2. On the rights of both parents with regard to their children. 3. On the rights of the husband with regard to his wife. 4. On the duties of the children towards their parents. Ancestral worship. 5. Acquisition oi patria potestas. a. By max'riage. b. By procreation. c. By adoption. 1. General Requirements. 2. Special Requirements. 3. Effects of arrogation and of adoption. 6. Termination of patria potestas. C. — On Guardianship. Alphabetical Index. 4 THE FAMILY LAW OF THE CHINESE. INTRODUCTION. As iu the ancient Jewish state, the family is the unit of the Chinese ; on its model the state is governed, and from the social conditions of the families the family law received its foundations. In this sense the state is called the family of the nation ^ kuo chia) and prefects and magistrates are popularly styled kuan), parent officials. The Chinese family life, with its sexual purity coupled with filial piety, has greatly contributed towards the main- tenance of the Chinese nation. Everything revolves round the family as the centre, and the family circle with its natural conservatism has had a beneficial influence towards the outside world. The Chinese family life compares favourably with the somewhat too loose bonds of the occidental, — in fact, in family life China presents herself at her best. In tlie (Chinese mind law^ ^ lit II.) and general custom kuel chii) are mixed up and cannot be kept separated. A Chinese judge will always modify the rigour of the law if local usage (lifters from it ; and a Chinese will in-variably be in favour of ® sa ch‘'i)uj U (the applicatiou of special circumstances) in each case. In this sense the term “ family law ” is to be understood not merely as a statement of the Chinese family laws (leges) but including also general usages, which will have to enter largely into a future codification of the Chinese law, especially private law. Tradition tells us very little of the family life of the Chinese in antiquity. Its foundations can be clearly recog- nised in the classical writings ; in the Shiking, or Book of Odes, we even find traces of marriage by capture. ' Generally speaking the lit have been superseded by the li, but in the marriage laws the Hi are still mostly in force. THE FAMILY LAW OF THE CHINESE. 5 The Chinese family cliia) embraces, like the Attic 01 X 05 and the Jewish mishpachah, all members of the same household which stand under one head or pater familias chang, ^ ^ chia chu, ^ ^ ckia chiln), without distinction, whether they have entered the family through marriage or adoption, and including servants and slaves.^ It is obligatory that all members of the family bear the same family name hsing) as in India, Greece, and Rome.^ Even with adoption a kind of quasi relationship is formed. In the oldest time of Chinese history the number of families may have been the same as the number of clans ; the ancient term po hsing (the Hundred Family names, the people) occurs in the Shuhing [I, 2 and frequently].^ The idea that there exists a kind of relationship between families bearing the same name has lived up to the present time \_see beloiv — “Impediments to Marriage”]. Within the family the Chinese distinguish four grades of relationship, which follow according to the proximity of descent, without distinguishing thereby between consanguinity nei chHn) and affinity toai gin). Genealogical tables are given in the Jn ^ ^0 chHng lii li), vol. I, fob 1-6. Compare W. H. Medhurst, Ch.B.R.A.S., 1853, “ Marriage, Affinity, and Inheritance in China ” [see also Dr. Legge’s Liki, vol. I, p. 202-209]. C. N. Starcke [ The Primitioe Family, p. 201-3, 206, 298] discusses the different terms of Chinese relationship, but his authorities The Prussian Landrecht [I, 1, § 3] also includes the servants in the family. ’ McLennan, l.c., p. 217. * See VON DER Gabelentz, Chinese Grammai', p. 360. — S. Wells Williams [in his Si/llabie Dictiotianj , p. 1242] dates back the beginning of family names to over 3,000 years, without, however, quoting any authority in support of this statement. /See c/L-c H. A. Giles, “ The Family Name.s,” Journal Ch. B.R.A.S., vol. XXI (1887) p. 2.)(). G. Jamieson, “ Note on the Origin of the Family Names,” Ch Rev., vol X. (1881), p. 89-93. 2 6 THE FAMILY LAW OF THE CHINESE. were not free from error. The Relationships are presented by G. ScHLEGEL in his Woordenhoek [vol. I, p. ISdS] in a tabular form, in which, however, the relationships by adoption are omitted, the others are given in the Tsiang-tsiu (Amoy) dialect of the lower classes. A. J. May has compiled a list of all relationships in the China Review [vol. XXI (1894), p. 15-39], which also is not quite complete and expressed in Cantonese. G. Jamieson [C/t/na Review, vol. X (1881), p. 199-200] gives also a table of the ^ kindred on the male side only. The above-mentioned four grades of relationship, with the legal time for mourning, given hereafter, are taken from the useful little letter-writer ^ ^ ftlj (Jiuan hsianc/ >/ao tse, Important Rules for the Officials aud the People), by Lu JuN-HSiANG (^ ^), Shanghai, 1892, 2 vols. Iti". 1st grade. — Term of mourning three years (usually re- duced to 27 mouths). Called ^ § chan ts^ui (mourning garments with frayed edges). For man and 7vife : the hus- band’s parents. For ivife and concubine : the husband. Term of mourning one year. Called ^ ^ chi nien. For man : sons, wife of eldest son, grandsons (descended from wife), uncle aud his wife, daughters if unmarried, brothers, sister if unmarried, nephew (brother’s son), niece (brother’s daughter) if unmarried. For wife : her parents and grand- parents. For concubine : wife of husband, husband’s pai-ents, sous (her own and those of the wife and of other concubines). This term of one year is also kept by a man of double sacra (— - ^ ^ « tzu shuang t’iao) on the death of his own parents. Term of mourning five months. Called ^ ^ tzu ts^ui (mourning garments with unhemmed, but even cut edges), with the addition 10^ 1^ chang cJdi, i.e. in the lifetime of the parents. For man : the great-grandpai’cuts, the great-great- THE FAMILY LAW OP THE CHINESE. 7 graiitl parents, the grandparents, the wife. If the parents are already dead, the term of mourning is only three months pu chang ch‘'i). For ivife : her great-grandparents and g reat-great-g rand par en ts . 2nd grade. — Term of mourning nine months. Called u h'ofai i hu (Better establish a home than cut off one). THE FAMILY LAW OF THE CHINESE. 11 to marry, it is scarcely possible to find an old bachelor, and an old maid is a rarity. Chinese law further recognises the importance of marriage by giving a long list of marriage laws.^'^ We must add, however, that marriage is not absolutely compulsory, nor is celibacy punished, as was the case under the Jewish law and the Attic code of Solon. “ The Chinese distinguish between two kinds of marriage which, not incorrectly, may be termed connulnum and concii- binatus. In the first case they are obliged to be content with one wife** c/ih), who, like the Jewish and Roman, unlike the Greek, wife, shares the rank and honour of the husband. This wife is almost invariably chosen by the pater familias^^ from a family of equal position and circumstances ; but the latter is not a conditio sine <]ua non and the requirement of equality of rank which led in Europe during the Middle Ages to the absurdity of marriages on the left hand {inatrimonium ad morganaticamy* has been almost unknown in China. The wife is generally a woman with small feet. Concubinage is, however, at the same time permitted, and marriage with several concubines cJdieh) is allowed. The number of these, besides the one wife, is not limited by law, but only one wife is permitted. The better classes do not give their daughters to a man already married ; Manchu girls are not allowed to become concubines. G. Jamieson, “ Translations from the LU-li, or General Code of Laws,” China Review, vol. VIII, vol. IX, vol. X, p. 77-99 (the Marriage Laws). " Among the Israelites each man was obliged to marry, and could be forced by the authorities to fulfil his duty until he had a son or a daughter ; compare Pollux, III, 48 ; VIII, 40 (Mayer, l.c., vol. II, p. 286). Like the Romans, J. de nuptiis, 1, 10. — 1. 2 C. dc ineesttis et in- vtilibm nuptiis, o, 5. — 1. 1 D. de his qui not. inf. 3, 2. — There is an excep- tion when a man is a Jilius fimilias for two families [see below under “ Adoptions ”J. As in Biblical antiijuity, Gen. 24, 21 ; Exod. 21, 9, ’’ In Germany finally abolished by Reichsgesetz of 6th Feb. 1875. 12 THE FAMILY LAW OF THE CHINESE. Whilst the marriage with the wife c1t''i) is concluded by the parents of the two parties, the man is allowed to choose the concubines himself. These may be of low rank, even slaves, and have, without regard to priority of marriage, equal rank among themselves, but are subjected to the au- thority of the wife. The husband has not the right of degrading his wife, without sufficient reason,’^ to the rank of a concubine, nor of raising a concubine to the rank of a wife whilst the wife is alive. The wife is considered the mother of all the children born in the family’® and is honoured by the latter as their mother. The reason for the greater number of marriages with concubines is barrenness of the wife.^^ 2. — Requirements for concluding Marriages. A. — Absolute Impediments to Marriage. The attainment of puberty required by the Roman’® and Canon’® law, of a certain age, as prescribed by modern legis- lation, as a pre-requisite for concluding marriage, is not known to Chinese law. It is, however, an established custom, that men marry when over twenty years of age, and that girls are rarely given in marriage before their fifteenth year. But as there are many exceptions in the laws in favour of persons See below, “ Impediments to Marriage.” The same in Jewish law [see Mayer, l.e., vol. II, p. 339] and in Mohammedan law [see G. Rosen, in Ztsohrift £>. J/. G., vol. XXII, p. 543J. ” This is probably the case with all polygamic peoples. — The ancient Jewish custom was [Mayer, l.c., vol. II, p. 339] — as it was considered a disgrace to have no children — the wife in such case induced her husband to take a maid-servant as concubine, the child len born by the latter were considered hers and she was no longer childless. Pr. J. dc 7iU2>tus, I, 10.— 1. 14, D. 23, 1.— 1. 4 D. 23, 2. ” Tit., X, 4, 2 Lih. text. Becret., 4, 2. THE FAMILY LAW OF THE CHINESE, 13 under fifteen years of age, we may consider the latter as the age required for marrying. Very early marriages are not as common in China as is generally believed : the common practice is to provide early in life a suitable wife for the son and a husband for the daughter, and to marry them when their character is formed.^” In China puberty commences at the same age as in Europe. The old idea that puberty arrives earlier in hot than in temperate climates is exploded by modern investigations. Suitability of age is generally recommended, as also that a young girl should not be married to an old man.^^ But an early marriage in China is understood in the sense of an early settlement in life.^^ Non-attainment of puberty, disease, or other defects (as insauit}', deafness and dumbness, etc.) are considered impediments, if no notice of them has been given in the marriage contract. The defect of eunuchs naturally debars them from marrying. The right of having eunuchs t‘ai-chien, ^ lao-kung) is an Imperial prerogative, and is also granted to the highest members of the Imperial family. It is also a prerogative of the king of Corea, who ranked with, but before. Imperial princes of the 1st order (1^ icang). As eunuchs have to serve and to live in the palace nei kuaii), it is for this reason alone impossible for them to marry. There are, however, eunuchs at Peking who had children before their mutilation and who may obtain permission to visit their families from time to time. Cases may occur Cp, Sirach, 7, 27 ; 42, 9-10. The same in the Talmud. Compare the German proverb jung gefreit, hat keinen gereut.” See Hhiliintj, 1, 11, 1 and 11, 5, 0 [Legge, vol. Ill, p. 157 and 239]. 14 THE FAMILY LAW OF THE CHINESE. where a eunuch, who by intrigues in the palace has risen to a position of honour, takes a wife pro forma and adopts a son for the succession.*^ B . — Melatioe Impediments. 1. — On Account of Relationship. Marriage between relations of all grades of agnatic relationship is prohibited ; “ cognates cannot marry any one of the generation above or below, but may marry any one of the same generation, not being agnate.”^® For the relationship by adoption the prohibition does not remain in force after the first adoption has been dissolved by a new one.^® It may be here observed that there exists in China no relationship between the husband and his wife’s sister, as is the case according to the Canonical, and after it the English law.^' In fact, since the Emperor Shun married the two daughters of Yao [2357-2255 B.C.],^® such marriages are of frequent occurrence in China, probably because a wife finding that a concubine will be taken prefers to share the affection of her husband with her sister rather than with a stranger. -* See G. C. Stent, “ Chinese Eunuchs,” J, of N.C.B. of I'.A.S., vol. XI (1877), p. 143. “ G. Jamieson, l.c., vol. X, p. 82. This was contrary to Roman law. Based, as far as I can see, on Lev., 18, 18 : “ neither shalt thou take a wife to her sister to vex her, beside the other in her lifetime ; ” which can only apply to marr 3 nng two sisters at the same time, and not to marrying the sister after the wife’s death. Mengtzu, V, I, 4 [Legge, II, p. 220]. From the Lild [vol. I, p. 132] it would appear that Shun had three wives. THE FAMILY LAW OF THE CHINESE. 15 Altogether, there is no relationship between the relatives of the husband and those of the wife (called ^ ^ yin-chHn). Relationship is always implied by the fact of bearing the same family name : — ^ IS ^ ^0 thing Using pu wei hun yin (those of the same family name do not inter- marry).^® Considering that for a population of 400 millions only about 438®® family names exist, this impediment appears severe in the highest degree. In the course of ages®^ it happened that whole communities were composed of people with the same surname, so that men desirous of marriage had to look elsewhere for wives, and often to under- take for this purpose expensive voyages. Where a surname has two distinct origins, persons of the same surname may intermarry, provided that their line of ancestry can be traced from the separate stock, ^ thing Using pu thing tsung (of the same surname but of different ancestry),®® e.g. persons of the name of cU^e. On the other hand, families of the same ancestry have branched off under a different name and do not intermarry, as ^ and both pronounced Usii, w'ho were one family until the reign of Yung-CHEIng [1723-36].®® It is the same with ^ and ^yeU, and with ^ yang and ^ yi. An expedient to mitigate this Enclogamic marriage is excluded. In the Institutes of Manu it is laid down that a “ twice-born ” man (i.e., one belonging to the sacerdotal, military, or commercial class [Manu, X, 4]) might elect for nuptials “a woman not descended from his paternal or maternal ancestors within the sixth degree and who is not known by her family name to be of the same primitive stock with his father” [see McLennan, p. 84], — The American Indians profess to consider it highly criminal for a man to marry a woman whose totem, (family name) is the same as his own, and they relate instances where young men, for a violation of this rule, have been put to death by their own relatives [see McLennan, p. 97 ; C. N. Starcke, p. 32J. — The Australians are also divided into branches (innrdoo), within which marriage is forbidden. ** 408 simple and .80 double ones [.w H. A. Giles, “ The Family Names,” J. of N.C.B. of R.A.S., vol. XXI (1887), p. 256J. The prohibition occurs in books as early as the Tso ehvan (^ '@) and the Lun uii (i^ m)* H. A. Giles, l.c., p. 25(1. “ H. A. Giles, l.c., p. 265, 283. 16 THE FAMILY LAAV OF THE CHINESE, law has also been found, Durino; the reign of Yung-lo [ 1403 - 25 ] those families who took part in the grain transport were called military families ^ chiin chid), the others being called families of the people ^ min chid). Since that time the distinction between chiin and min has been maintained, and marriages between a chiin and a min family bearing the same surname are permitted, — almost the only exception to the above-mentioned prohibition. Amongst the Manchus, Mr, Parker says, cousins descended through male ancestors and having the same surname may intermarry after the fifth generation ; but I have not been able to verify this statement. It will thus be seen that in China, as throughout America and Australia, the clan is exogamous, that is, marriage within the clan is forbidden,^^ 2, — On Account of Affinity, Marriage is not alloAved with sisters of the wives of ascendants or descendants, with the father’s or the mother’s sister-in-law, or with the sister of the son-in-law. Further, marriage is forbidden Avith the step-daughter and Avith female relations Avithin the fourth degree of relation- ship,^® with a AvidoAv of a relative of the fourth degree, or AAuth the sister of the AvidoAved daughter-in-laAv, Marriages Avith AvidoAvs of relatives of a nearer degree are considered incestuous. Decapitation is the punishment of marriage Avith the father’s or grandfather’s former Avives,®'’’ or with sisters of th(i father, C. N. Starcke, I.C., p, 44, “ As in Canonical law, cap. 8, X, 4, 14 ; WALTER, Kirclienrecht, § 310. ^ Reuben lost his right of primogeniture for such incest [Gen., 35, 22], THR FAMILY LAW OF THR CIIINESR. 17 Whoever marries his brother’s widow is strangled.''^' The re-marriage of the childless widow to her deceased husband’s brother, the so-called levirate,^** was of common occurrence with many nations in ancient times and is still in vogue in the Caucasusd® Among the Jews this custom existed before Moses, but was confined to the case of the widow being childless [Dent., 25, 7]. In CJhina, as already mentioned, the levirate is prohibited, but some assert that the Mohammedans in Peking practise it, and that it also occurs in the district of Huai-an in the province of Kiangsu. A writer in the China Rei'iew [vol. X (1881), p. 71] asserts its pr.actice for the provinces of Kiangsi, Hupeh and Szechuan. I have not been able to find the slightest trace of it, and it can never be of the same importance with the Chinese as with other people (e.g. to keep the family property), as posthumous adoption, the Chinese substitute for it, fully meets the object.^^ 8. — On Account of other Reasons. To marry during the legal time of mourning is prohibited [see above, p. 7]. Marriage with concubines is, however, not punished in this case, unless either the bride or the bridegroom is in Decapitation, i.e. mutilation of the body, is a heavier punishment than strangulation. Or the dispensation from it through the ceremony of taking off the shoe (chaliza') of the Jews [Deut., 25, 7 : Ruth, 4. 7]. ™ In India [ Bohlen, Iiidim, vol. II, p. 182 ], Persia [ Kleuker, ZcndaceHta, vol. Ill, p. 226], the Gallas [Bhcce. It., II. p. 223], and many other peoples [see 0. N. Staecke, Ic., p. 165]. It e.xisted amongst the Huns and in ancient Corea [see E. H. Parker in Transact, of As. Sue. of Japan, vol. XVIII, part II (1890), p. 169]. Bodenstedt, Die Volltev des Kauhasus, p. 82. ’’ G. Jamieson [China. Review, X, p. 83] says : In view of the severe penalty for it, it is scarcely possible that the levirate can be practised in any part of China. 18 THE FAMILY LAW OF THE CHINESE. mourning for a parent, or the bride for her late husband, even if the marriage had never been consummated. It is considered to be a time of mournino; for children or grand- children if father or mother or grandparent is confined in prison for a capital offence. In accordance with the principle of Chinese marriage — i.c., that the pater familias makes the marriage contract,— marriage is in this case permitted if the head of the family in prison gives his assent. The usual ceremonies and festivities are, however, to be omitted. Marriage is forbidden with a woman who has committed a crime and has fled for fear of punishment. In this pro- hibition is included marriage between an adulteress and her seducer.^^ Whoever forces the wife or daughter of a free man to marry either with himself or with a son, grandson, younger brother, or nephew, i.e., with a /jlkis familias, is to be strangled. According to Roman law marriage could not be concluded between persons who stood to each other in the relation of guardianship, as tutor and pupilla.'^'^ In China these are near relations, as only relatives or adoptive parents are able to exercise the right of guardianship and to acquire through it the patria potestas. A runaway female slave is not allowed to marry, as she can be lawfully given into marriage by no one except her master. Popular opinion is against a widow ( kua-fu ) marrying again. The Liki [ Legge, vol. I, p. 439 ] says : — “ Once mated with her husband, all her life she will not The same as in Roman law, according to which widows and their new husbands were punished if remarried before the end of the time of mourning [1. I, 11-13, J). de his q 2 ii not. inf., 3, 2. — Const. 2, 0. 5, 9]. " Also prohibited by Roman law [1. 26, £>. de ritw miptiarum, 23, 2. — 1. 13, D. de his quw not. inf., 34, 9. — 1. 29, § 1, D. ad legem Jul. de adult, 48, 5. — Nov. 134, si quis autem, c. 12] ; also by Attic law [1. 11, § 11, -O. ad leg. Jnl. de adult., 48, 5], and by the Jews [Mayer, l.c., vol. II, p. 320]. 1. 66, D. de ritu nupt., 23, 2. — C, 5, 6, THE FAMILY LAW OF THE CHINESE. 19 change, .and hence, when the husband dies, she will not marry again. ” If after the death of her husband she remains under the power of her husband’s father or brother, whose power over her is, however, of the slightest, she will be prevented by them from tying a new matrimonial knot. There are even cases in which a widow instead of remaining in the family of her former husband successfully repudiates any connexion with it and disregards its wishes. The proverb expresses the popular mind in this respect : if heaven wants to rain or your mother to marry again, nothing can prevent them (?c » T JR ^ S S nl W tHen yao hsia niang yao cilia ton fa k''o chili). It is, however, not considered decent for a widow to marry again, and one who refuses all offers in this respect (or who does not want to add another fiddle- string u m ^ met hsin lisu lisien) may receive for her faithfulness an imperial reward in the form of a gateway (W ^ p‘'ai-fang or p^ai-lou), which is erected in the place where she lives. After the bestowal of such reward she is not allowed to change her mind.^® Should the head of the family try to force her into a new marriage, she is not obliged to obey. If she commits suicide — the common expedient of the unprotected female in China — the he.ad of the family is punished. If, however, the marriage be concluded, she shall live with her new husband, the marriage presents, or rather the purchase-money paid for her, being forfeited. It is a rule that, in order to secure greater impartiality, officials cannot hold office in their native province. For the same reason they are not allowed to marry a woman It was considered decent, according to tlie national feeling of the Eomans, that a widow should remain single, univira meant the same as castiisivia. Such a one was highly esteemed and received the wreath of chastity [ Val. Max., II, c. I ; Prop., IV, eleg. 12 ; Puelita, Inst. Ill, p. 177]. — The Jews, on the contrary, were much in favour of a second marriage of young widows [Mayek, l.c., vol. I, p. 322]. 20 THE FAMILY LAW OF THE CHINESE. micler their jurisdiction, or out of a family that has an interest in the performance of their official duty. An official who is related to one of the parties is not even allowed to sit as judge.^® On account of inequality of rank, marriages between officials and actresses or singing girls are not allowed. Such marriages are also forbidden to the sons or grandsons of nobles with hereditary rank (dlspamgium, we'sall/ance), the punishment in such cases being degradation to a lower class of nobility and eventually loss of it.^' . A widow of a man of rank may not remarry. Buddhist priests (f[j ho-shang) and nuns (/g ^5 ni- kti), and those Taoist priests tao-Jen) and nuns tao-ku) who do not shave their heads, but bind the hair in a net or head-band ffl icang-chia^^), are not allowed A similar thought prohibited in Rome marriage between a ■jynvvincue and a woman of his province \l. 57, 2 )''- D. dv ritu nupt., 23, 2. — Cod. Tlieod., 3, II. — Cod. Just., 5, tit. 2, 7]. There are in China D classes of hereditary nobility : 5 @ (cJtio') and i (yii). The 5 cJtio are : ^ Jijmg duke, hou marquis, Fiirst (often called marquis), f|^ count or earl, ^ tzu baron, ^ nan baronet. When the nobility conferred is not “ hereditar)' in perpetuity ” sUih Jisi loang f t), each descendant takes one rank lower than his father ; so that the son of a kvng becomes hou, the son of a hou becomes po, and so forth, nobility ceasing altogether with the son of a tzu. The 4 gii are military nobility. In Corea the nobility is divided into four political parties ssu .ve, Cor. sa sdh). These were formerly ciilled pei jen. Cor. in (northerners), A Cor. namiii (southerners), ^ A jen. Cor. tong In (easterners), m A hsi jen. Cor. .ve-in (westerners). After splitting into factious the}" are now called (1) lau-lun, Cor. noron, the most powerful party, a branch of the former ® A sie-in, (2) ® A namin, the largest, which has completely absorbed the m A tongin, (3) sioron, the inconsiderable remaining portion of the ® A sie-in, which at present has joined the noron, (4) siopuh, the only remaining branch of pnhin and in league with the namin. The members of each party do not intermarry with those of another. The old Chinese fashion, still in use in Corea [called mang-hcn}. THE FAMILY LAW OF THE CHINESE. 21 to marry. Only Taoist priests tao-shih, or P5 Wl men-chu) who shave their head and plait their hair like other Chinese, in fact lay brothers, ma}" marry. A priest who obtains a woman under the pretence that she shall marry another, and who then marries her himself, is severely punished. Marriage is impossible between male slaves and free women.^® Any impediment to marriage renders the marriage already concluded null and void the impedimenta are always dirimentia. Ignorance of them exempts the parties from punishment, hut the marriage is dissolved. In accord- ance with the sense of the marriage contract the parties who signed it are punished if the marriage laws are transgressed, the go-between only if he was aware of the illegality ; hut husband and wife are not punished unless they are sid juris. If the father, grandfather, or uncle signed the contract, they alone are punished ; if it was another relation, he is punished as principal, and husband and wife as accomplices. The purchase-money is in each case forfeited, except when the parties were ignorant of the existence of of the impediment. A dispensation in cases of impediments to marriage is not admissible.®* In China difference of religion has no influence upon marriacie. o According to the laws of the Lombards, parents had the right o killing or selling their daughters, if they married one in socage [Mayek. l.r., vol. II, p. 301]; in earlier times marriage between a free woman and K slave was not sanctioned, and the slave was put to death if he took the free woman by force [Gkimm, p. 324. See C. N. Stakcke, l.o., p. lOOJ. ^ As in the time of .Justinian [§I2, ./. de iinptii-x^ 1, 10 ; C. 5, 8], Modern legislation flistiintuishes between impediinenta juris jiuhllci which render a marriage null and void — c.i/., incest, bigamy, and adultery — and impedi- menta juris privati which make the marriage invalid, if only private interests are involved. Also unknown to the Jews [see Mayeb, l.c., vol. II, p. 315]. 4 22 THE FAMILY LAW OF THE CHINESE. The law says®^ that it is forbidden to intermarry with some of the savages ; but this is not carried out in practice. In Formosa the (’hiuese constantly intermarry with the savages ; that is to say, arriving singly they readily take savage girls as wives, chiefly from the settled tribes ^ shu-fan), who have adopted Chinese surnames. d. — B etrothal. A. — The Contract. The mutual promise of marriage formed with the Romans an act of social and moral im})ortance as a prepara- tion for marriage. In China the parties concerned are noi the principal ones. The conclusion, however, of a justuni matrimoniuni has to be preceded by a contract,®^ in which the amount of presents (arrhee spoiisalittce) and the latest day for concluding the marriage are fixed. When made, the contract, if in writing (jjj^ ^ li-shu), is signed by those persons in whose patria potestas bridegroom and bride stand ; the latter never sign it, unless both have no older relations. This last condition, and the fact of the son holding office, being the only cases in which a fiUus or a jilia fanuUas becomes sai juris. This is the chief distinction between the Chinese and the Homan marriage. Before the contract is signed presents are sent to the family of the bride ^ na-tsai, in common parlance ^ lo-tvvj, giving of earnest). Then cards, with the names, birthdays, etc. inscribed thereon, are exchanged (jS Vuny- G. Jamieson, China licrinc, X, p. 88. “ Known by the Romans [1. 2, 1>. dc s2)oiisalihits, 23, 1] and hy the old German law [Eicuhoun, Itcchtsgeschichte, §51, §183, §321]. THE FAMILY LAW OF THE CHINESE. 23 keny, spoken of as ^ iven-miny, asking of names). When the parties are satisfied with all this, agreement is expressed by sending proof (,^ ^ na-cheny, commonly called iceu-tiny, settling the language), when the contract ^ li-shu) is exchanged. Thus the animus matrimonii, the intention of husband and wife to form a connexion for life, can, with the above- mentioned exceptions, have no place in China. In Rome the assent of the pater familias was required, but could only be refused for special reasons ; husband and wife, however, were allowed free choice. Among the Chinese the heads of the himilies alone choose, and the inclination of the prinin'pal ])arties is never consulted. If the son is absent from home, or if by mere chance a love match does happen, the assent of the parents has to be obtained ju ? pi ku* fu mu (how do we proceed in taking a wife ? announce- ment must first be made to our parents).®'* f Shikinq, I, VIII, Ode VI, 3.] The preliminary negotiations are carried on by go- betweens m A mei-jen, ^ ^ mei-kou, tft \ chimy-jen and mm mei-p‘'o), who, mostly women, form an important part in the whole transaction. Male and female, says the Liki [vol. I, p. 78, Legge], without the intervention of the matchmaker, do not know each other’s name. Although the proverb asserts that nine out of ten go-betweens are swindlers shih mei chiu khiany'), still as without clouds in the sky it cannot rain, so without go-betweens a match can never be made ^ Emperor Shun married without thus informing his parents, fearing they might prevent him from doing so [Slenfltzu, IV, XXVI, 2. Legge, II, p. 189]. He considered that obtaining posterity was the higher dutjr. 24 THE FAMILY LAW OF THE CHINESE. t^ien shang wu yun pu hsia yii, ti hsia u'u mei pu cli^eng ch^in).^^ Before the signature of the contract by tlie heads of the families, both parties convince themselves of the truth of the statements regarding the persons of the bride and the bridegroom, that they are sound in body and mind, and that they are not older than stated. The festivities of the betrothal then commence. As lies in the nature of the case, the age of the betrothed parties — except that it be too great — is of no consecpience.''’® It often happens that a betrothal is entered upon by friendly families at a time when bride and bridegroom are not over three or four years of age. The betrothal of unborn children is forbidden. B. — Effects of Betrothal. The contract of betrothal gives both parties a right to sue for the conclusion of marriage.®^ The party who refuses to keep the contract is punished with fifty blows, and the court enforces the marriage. Where the contract “ Other proverbs are ; ch‘u cin ju III), fei mei pu te, how is it taking a wife? without go-between it cannot be done {^Shilling. I, VIII, Ode VI, 3-1. Compare LUci, I, 78, Leuge, II, p. 297]. Or cieU pi tung mei, marriage must be negotiated through a go-between. The Jews also use go-betweens (^shadehhi), the Greeks had female go- betweens TzpogDYiSTpica ; in Rome a unptiarum conciliator was similarly employed, who, if present at the marriage, was called atispex nuptiarum. “Compare the Roman law [?. 14, D. de sponst., 23, 1]: in sponsalibus contrahendis aetas contrahentium definita non est, ut in matrimoniis — si non sint minores quam septem annos. The same according to the Canonical, but not according to the old Roman law [I. 2, §2, D. dr dicers, repnd., 21, 21 ; 1. 2, D. do spoils., 23, 1 ; 1. 131, U. de verb, obi., 45, 1 ; Const. 2, C. de inutil, stipiil., 8, 39. It was not until the time of the Christian Emperors that loss was entailed by repudiation without proper cause [1. 5, C. de spans., 5, 1]. Compare the English breach of promise cases. THE FAMILY LA.\V OF THE CHINESE. 25 is not made in writing, the acceptance of presents is taken as proof of the agreement.'^** The betrothal may even he maintained if the family of the bride enters into a second betrothal and only in case the family of the first bridegroom waives its claim may the bride marrv the second bridegroom. The presents are in this case to be returned. A forcible abduction of tlie bride before the time fixed for the marriage is punishable, as is also any delay on the ])art of the bride’s family beyond that time.''" A singular situation arises if a filiiis famil/((,s is betrothed during Ids absence from the family, his grandfatlier, father, uncle or older cousin, i.e., a person in wliose potestas he stands, having, in the meantime, chosen a bride for 1dm, and havinor signed the contract. If the son has married, the betrothal made by the head of the family is dissolved. Otherwise the contract made by his family takes precedence over the one made by himself. C. — Dissolution of the Betrothal. If after signing the contract it appears that false state- ments have been made by the family of the bride, then the contract is void, the presents are returned, and the pater familias of the bride receives eighty blows. The punishment for a like fraud on the part of the bridegroom’s family is more severe, and the bride keeps the presents. Should the “ In ancient times the Jews celehrated betrothal and marriage at the same time; considerabl}' later, in the 3rd century A. D., the betrothal consisted in sending the bride something valuable or a document, declaring at the same time that he took her to be his wife. l!y this she became so far his wife that any breach on her part was punished with death. ^ The Roman law punished this with infamy [1. 1. 1. 13, D. de his qui not. in/., 3, 2 ; Const. 18, 6'. ad legem Jul. de adult., 9, 9]. ™ Roman law allowed an action for delay of marriage where without sufficient reason the delay extended over two or three years [Const. Iti, C. dr episc. and., 1, 4 ; Const. 2, 5, C. de spousal., u, 1 ; Const. 2, C. de rejJivd., 5, 17 j. 2G THE FAMILY LAW OF THE CHINESE. fraud be discovered after tlie marriage, an action for divorce can be entered. If the betrothal be dissolved before marriage, either through the death of bride or bridegroom, or through withdrawal of both parties (repudium voluntarium), or through a delay on the part of the bridegroom’s family for over five years, or throngh an impediment to marriage just arisen or only just discovered, then the presents have to be returned. If the marriage be not concluded, through the repiidiiim of one party, the party innocent of the dissolution of the betrothal gets back or keeps the presents. The fact of bride or bridegroom having been punished for theft or fornication gives a right to the other party to cancel the contract. 4. — Conclusion of Marriage. “ The ceremony of marriage,” says the Liki [Legge, vol. II, p. 428], “was intended to be a bond between two [families of different] surnames, with a view, in its retro- spective character, to secure the services in the ancestral temple, and, in its prospective character, to secure the con- tinuance of the family line. Therefore the superior man set great value on it. Hence, in regard to the various [introductory] ceremonies, — the proposal with its accom- panying gift [ always a goose ] ; the inquiries about the [lady’s] name; the intimation of the approving divination; the receiving the special offerings ; and the request to fix the day ; — these all were received by the principal party, as he rested on his mat or leaning-stool in the ancestral temple.” When the parties desire to conclude the marriage, presents of silks ( ^ ^ 7ia-pl, spoken of as ^ jfi§ fa-ll, the THE FAMILY LAW OF THE CHINESE. 27 great ceremony) are sent to the father of the bride, and a further document ( ^ li-shii, like the first one, also called llg ^ Jnm-shu, the horoscopes of the betrothed couple) ])asses.**^ This is the marriage contract stipulating the sum for the bride, which sometimes amounts to thousands of taels. The marriage is therefore preceded by a purchase, which is no mere sham transaction like the T.oman coeintio, but corresponds to the purchase of the ancient German laws and to that of the Jewish law.®^ By acce])ting the purchase-money, the father of the bride sells and manumits his daughter to the bridegroom’s family, to which she henceforth belongs. Then a date is fixed (mm commonly called Q sung-jih., sending the day), and on that day the presents, together with her furniture, boxes of clothing, eatables, etc., are paraded through the streets to the bridegroom’s house, and the bride herself is brought in a closed red chair with music to her new home, where she is personally welcomed (1^ ^ rh^ln-ging).^^ The bride and bride- groom then kneel together before the ancestral shrine ^ pai-t^ang, ^ pai-t^ien-ti, to worship heaven and earth) of the latter’s family. They next drink together the nujitial cup (g chin) — usually two cups tied together by a red string**® — and the marriage ceremony terminates ch^eng-li). Tlie Jewish h-thuhah Tobias 7, 14) and the Homan conscript io, contained the undertaken by the husband. The Roman contract itself was called puctio nvjrtialis, yayr/tat ^•jyypT’.yv.i, the document itself tahnUe nvpfialcs. See Mayer, l.c., II, p. 353. The 'J’almvid says : The matrimonial purchase-money belongs to the father [Mayer, l.c., II, p. 326]. The conclusion of the Jewish marriage consists in the bride being led by the bridegroom into the nuptial chamber or being received into the bridegroom’s house. The latter ceremony is to-day represented by the chvppah or canopy, under which betrothal and marriage are celebrated at the same time [cide M. .Sach.s, Gchcthvch dec (Hre.slau, 18921 I>. 466], ’ “According to the lAhl [ Legge, vol. II, p. 429] two halve.s of a melon.— This bridal drink [Hrauttrunk] was also known to the Germans [r. Weiniiold, Die dcutschoi Frauen im Miitelalter, pp. 225, 264J. 28 THE FAMILY LAW OF THE CHINESE. The wife leaves her family for ever ^ c/t/a)®® and belongs to the family of the husband,®^ i.e., she considers the parents of her husband as her own, and mourns for them legally a longer time (three years) than for her parents (one year).®* In China, then, the church has nothing to do with marriage ; neither are the usual ceremonies and festivi- ties absolutely necessary for the conclusion of a jiistum matrimonhnn, as long as the consensits rnatrimonialis exists between those persons who sign the marriage contract. In fact when the bride has been brought up in the family of her future husband, as sometimes happens,®® the red chair and the ])arading of presents through the streets become useless. But, like the Jews, the Chinese invite guests, relations, and friends,’'^ who keep up the festivities for three days. During these three days the bride is accompanied by bridesmaids (XW ta-cluti), who constantly attend on her. A peculiar custom is the so-called brawl-room (^ ^ nao-famj). During the first three nights the newly married couple are con- stantly disturbed by practical jokes executed by relations (in some provinces even by complete strangers), everybody trying “ The same expression is used for a man who becomes a priest or a maiden who joins a nunnery. The Chinese custom requires a man to cleave to his father and mother and to (•omi)el his wife to do the same. Christianity by requiring a man to leave his father and mother and to cleave to his wife [Matth., 19, 6; Gal., 4, 22-28 ; Eph.. .5, 31] has not expressed the jiopular sentiment and is not in accordance with Roman and modern law precepts. The beautiful words addressed by Ruth, the Moabite, to her Jewish mother-in-law Naomi f Ruth, 1, 1(). Comp. 2 Sam.. 15. 21] are often quoted in marriage sermons, but only mean that Ruth, the ancestress of the house of David, joins the Jewish faith. According to the Jewish law, the family of the mother is not called family [Maykk, Z.c., 11, 283]. See later on, under “ Adoption.” See Smith, Chine-te. CharaetcvMieit, p. 11(1. Thus giving due importance and sufficient publicity to the ceremony \_Liki, 1, p. 78 (Legge)]. THE FAMILV law OF THE CHINESE. 29 to obtain clothes or other objects of necessity or value from the bridal chamber, which the bridegroom has to redeem on the following day with wine, cake, etc. Marriage, therefore, as we have seen, is concluded in China by the will of the parties concerned being expressed in a public manner. So it was according to Roman law and, closely following it, the Canonical law,’^^ until the Concilium Tcidentinum (1545-63) introduced a formal act and made marriag-e a religious institution. This led to the doctrine of the indissolubility of the marriage bond, and the church arrogated to itself the exclusive right to decide in matrimonial cases. From that time began the differences between state and church which are only now on the point of being settled. • In the ordinary course of events the Chinese wife brings no dowry (^1^ chia-chuaiig, ^ chuang-lien) to her husband. Still she may inherit, or she may be sm/ and possess money, land, or houses. In this case she can have her rights protected in the marriage contract.^"* Whilst the acquisition of a wife is called marriage ch‘‘ii-cldi, ch^eng-cliHn, ^ ch^eng-lnm), the ceremonies of which have a sacramental character, the expressions for the acquisition of a concubine (j^ U or ^ mat or ^ chih ^ e/dieh) point to the inferiority of the action. The union is concluded without music and without the red chair.’^* The punishment for transgressions against the marriage laws in 1. 22, C. de nuptiis, 5, 4. Cap. I-X, de spans, et mate., 4, 1. Compare the special dowry contract of the Romans, pacta dotalitia (the document itself being called dotis tahuloe). The Jews also mentioned the dowry (jiedmiya. Compare Ezech., 16, 33) in the hethitha ; the dowry, whether consisting of movable or immovable goods, but in most cases comprising female slaves, was called harzel ( pems ferrenm). ” The same with the Jews: wives with nuptials and with marriage contract, conculjincs ( p'do/irsli) without cither; the same with the Greek Txyjlu^ ; diltereiit, however, with the Komau pclle.r [1, 111, D. dc verb, siijnij., JO, IG ; .Vor., 18, c, 5], 30 THE FAMILY LAW OF THE CHINESE. the case of a concubine are less severe than in the case of a wife. Marriage is called ^ ^i-un-yin ; to marry a husband is ^ ^ cliia-fu for wife and concubine alike (|§ ^ ^ nan him nil chia, the man marries, the wife takes a husband). [Compare the Italian casare^. 5 . — Relation of Husband and Wife to each other. Through the marriage the wife becomes, as was the case according to the law before Justinian,^® not only u,co)- but comes also into the manus niariti. She ceases to be sa/ juris, if she ever was it, and leaves the patria potestas, if she stood under it.’'^ It is in consequence of the way in which the wife comes into the jjower of her husband that she acquires very few rights with the marriage. Though she shares the rank and honours of her husband,'® she has no right to demand conjugal fidelity from him,'’® whilst she, by sinning against it, commits a heinous crime. It is a cause for divorce if the wife beats her husband [a case probably as rare in C'hina as with us, and, when it happens, more likely to be quietly endured than brought into court], but the husband has the right to inflict corporal jmuishment on her. He is, however, punishable if by doing this he inflicts a wound ; but he escapes with a fine if he and his wife are willing to be divorced. ™ See Mackeldey, Lchrh. des i-dni. R., 14th ed., 11, p. 266 ; compare Giiji Jiixtit., § 4!), § 108 8S., II, § 86 ss. ” Mackeldey, l.c., II, p. 274, note ; GaJ. Inst., Ill, § 14, 24. As the Roman n.vor shared the dignltas niariti. Unlike the Romans [.Ver., 117, c. 0, § .6: liceat mnlieri propter hanc etiani causam matrimoniiim dissolvere]. In ancient times the Chinese hns- baiul's adultery was punished by castration {jfi^ m f'li-hsiiiij). THE FAMILY LAW OF THE CHINESE. 31 The wife owes the husband implicit obedience, and is not allowed to leave the house without his permission. If she disobeys, her husband may sell her to another as a concubine. The wife belongs to her husband’s family even after his death if she leaves it, either to return to her own or to marry again, she has to leave behind her husband’s estate, including what she brought with her. But her husband may have been the oldest member of his stock ; in that case, after his death his power is transferred to his wife, and one not unfrecjuently hears of an old lady managing the family estate with only one son assisting hei’, the others living in other provinces and receiving their orders from her. After her death the family property is divided ^ ch^ari) amongst the sons, who then become sui juris and register themselves as new families or households hu). The wife cannot possess property of her own as long as her husband lives ; everything she possessed before entering into the manus passes into the hands of her husband,*^ so that even property inherited by her remains with the husband after the marriage has been dissolved,*^ unless it had been otherwise stipulated in the marriage contract. Although, therefore, the questions of dos, paraphernce, j^acta dotalitia, and donatio infer virum et uxorem do not really exist in Chinese law any more than they existed in the ancient Roman law, still a divorced wife or a widow will always take her jewellery and silks away with her. And it is in such that any donatio of the husband is invested. ® Similar to the Roman law [1. 22, § 1, D. nd municlj). et dc ineol., 50, 1 ; vidua mulier ami.-!si mariti domicilium retinet], *' See Mackeldey, l.c., vol. II, p. 275 ; Gaj. Inst., II, § 86, III, § 82 ; XIX. § 18. Gfij. Inst., II, § 98: si quam in manum ut uxorem reciperimus, ejus res ad nos transeunt. 32 THE FAMILY LAW OF THE CHINESE. The husband is not liable for debts contracted by his wife before marriage, unless she was sui jmus and bad no family when he married her. If the husband changes his residence, the wife is obliged to follow him if he wishes it.^® Poor people change their domicilium only to emigrate to another province ; people of the better classes generally leave their first wife at home, to educate the children and to look after the family property, and take a concubine at the new place. The emigration of females to foreign parts is prohibited. With all his power the husband is not allowed to hire out his wife to prostitution,*^ although it does occur that a man whose wife has not borne a son, and does not allow him to purchase a concubine, hires for a time the wife of another to get a son by her. This is unlawful and not considered decent.*® But it is lawful for a man to enter into a contract with a widow and hire her for a certain number of years, until he gets a son by her. In this case the woman need not leave her former husband’s family. 6. — Dissolution of Marriage. Marriage is naturallv dissolved bv the death of either husband or wife. Another cause for the dissolution is divorce.*® This may be either enforced by law or be a voluntary act. The question is a disputed one with us Bern burg, l.c.. vol. II, p. 10]. The same in Jewish law [Lev., 18, 20]. — In Rome Icnnnmvm facere was punished with infamy [1. 1, 1. 4. § 2, 3, D. de hist qui not. in f., .3, 2. — 1. 43, § 6-9, D. de ritu mqjtiarum, 23, 2j. “ The Hindu in such cases will have recourse to “ niuoya," i.e., hand over his childless wife to another man to obtain a child. See Starcke, l.c., p. 142. cilia, fen eh'i. ^ fen yiian, which expre.ssions are also used for a one-sided divorce, when the husband sends his wife away, the Greek K7ro7repi{/t;. THR FAMILY LAW OF THE CHINESE. as a . — A divorce tmist take place if tliere exists an impedi- ment to marriage, or if the wife commits adultery. The husband has in the latter case the right to kill both adulterers, if he surprises them in Jiagi'a)ite delicto.^^ If he does not kill the wife, she is punished and sold as a concubine, the pur- chase-money for her being forfeited. If the adulterer kills the husband, the wife is strangled.**** h . — A divorce may take place — 1. — If both husband and wife are willing to dissolve marriage (owing, e.g., to incompatibility of temper). 2. — If the wife leaves the house against the will of the husband ;**** should she marry whilst absent, she is strangled. 8. — If the wife beats her husband. 4. — If the marriage contract contained false state- ments. 5. — If the wife has one of the following seven faults : barrenness, sensuality, want of filial piety to- wards the husband’s parents, loquacity, thievish- ness, jealousy and distrust, or an incurable disease. The husband, however, is obliged to keep her in spite of one or several of the above-mentioned faults if she has kept the full term of mourning for three years after the death of *' Comp. Lev., 20, 10. The husband who kills both and thus maintains the purity of the family is invariably rewarded by the local official and praised by the people. A correspondent from Tsfinti-kiang-p'u de.scribes such a case in the North-China Daily Nnat of 19th Nov. 1894, and, evidently dissatisfied with the morality of the transaction, adds ; “the most deplorable feattire of the case is the fact of the official’s letting the murderer go scot free, and public opinion justifying him fully in winking at such brutality. ’ ** Compare 1. 43, § 12, 13, D. de ritii, nuptiarum, 23, 2. On account of the suspicion of adultery ; the Canon law required more than mere suspicion, e.g., cap. 12 X, dr 2tr(fiinmi)tionibiiH ; witnesses who solum cum sola, nudum cum nuda in eodcm levtn ja.cenfrm ea ut vrcdehant intentione, ut ram cognuscrret cavmliter, viderunt. u THE FAMILY LAW OF THE CHINESE. his parents ; or if his family, having been poor at the time of the marriage, have since become wealthy ; and, lastly, if the wife has no other relations to whom she may return after the divorce. When the divorced wife leaves the house, the husband may give her a bill of divorce ^ Iix/n xhn, ^ ^ fen xlai), a specimen of which is printed in G. Schlegel’s Woordenhoek [vol. I, p. 1053]. According to Roman law the action for divorce was a private one, open to wife and husband alike.®*^ The Chinese wife may only bring an action if she thinks her husband is willing to give her her liberty, or if her husband has beaten her cruelly, or if she was deceived by false statements in the marriage contract, or if her husband was or has become a leper.®^ The effects of the dissolution of marriage are the following : the marriage is considered as having never been concluded ; the wife returns to her family, if the latter will receive her, the children remaining with the father, and the purchase-money being given back to the husband, except when the latter was the cause of the divorce. If the family will not receive her back, she becomes sui juris. All relationship through the wife ceases with the divorce.®^ A third way of dissolving a marriage is the official declaration of death, if the husband has absconded and has not been heard of for three years. The wife abandoned can 1. 2, C. (le inut. stipvlat., 8, 39.— 1. 14, C. de nuptiix, 5, 4. The Canon law has made marriage indissoluble [Cniif. Trxd. .?m., 24, dc mcramenin matrimaim, cap. 7. Compare also Matth., 19. fi]. During the .so-called enlightenment of last century the facilitie.s for divorce were carried almost as far as in China and had to be considerably reduced. In the United States the most frivolous rules as to divorce seem to exist, and it appears to be granted from arbitrary motives. The same in Roman law [1. 3, § 1, D. dr pontxdnndn, 3, 1. — J. de nuptiis, 1, 10]. — The Canon law is of course different. THE FAMILY LAW OF THE CHINESE. 35 then demand such a declaration, especially if the family of her husband will not or cannot pay for her maintenance. The time within which, after dissolution of marriage, a legitimate child can he born is fixed by Roman law at from 182 to 300 days, or 10 months, by modern legislation at from 210 to 302 days. In C'hiua a pregnant wife is rarely or never divorced, but after she has left the house of her husband for good the child she bears cannot be claimed by him. 7. — Big.VMY ^ slmaiKj shth). As before mentioned, the wife who maliciously leaves her husband and marries another during the lifetime of her first husband is strangled. If the husband, in the lifetime of his first wife marries another c7tb‘, not a concubine ^ cJi^ieJi ; he is allowed to have as many of the latter as he likes), the marriage is null and void ; the wife returns to her family, and her father keeps the purchase-money, unless he knew of the existence of the first wife. In this case the money is forfeited. A man who does double sacra is excepted ( — • ^ ^ i t:u sJmang tHao) ; his marriage with a second wife cliH) is not considered bigamous. O 8. — Polygamy and Polyandry. In ancient times we find no people strictly monogamous. Polygamy was universally jjractised, generally without dis- tinction between the wives, but sometimes a kind of monogamy existed side Ijy side with ])ermitted polygamy, be., one wife and several concubines. In this case the latter 36 THE EAMILY LAW OE THE CHINESE. were slaves and subjected to the wife.®^ Sensuality did not always lead to it, frequently the barrenness of the wife and the tendency to strengthen the family influence by having many sons was the guiding motive. Amongst the Jews it was an ancient custom which the Mosaic legislation neither cancelled nor sanctioned, expecting that time only could effect a change in a custom of such antiquity. In the Old Testament [Deut., 21, 15] it is rarely mentioned: — Ahraham took Hagar as a concubine and divorced her when his wife hore a son.®^ But he had other concubines beside Hagar [Gen., 25, 6]. Jacob had two wives, Leah and Eachel, and besides two concubines, Bilha and Silpa, whose sons were all legitimate. Esau had many wives. King Solomon’s polygamy, which probably sprung from his love of splendour, is severely censured [1 K., 11, 1. Comp. Matth., 18, 25; Luke, 1, 5].®® In the 11th century polygamy was finally abolished, at least for the Jews in Europe, by R. Gerschom, of W orms, in consultation with several other authorities. In China the case stands similarly. If the first wife is barren, a concubine is purchased, but almost always with the consent of the wife. Filial piety demands that the family he continued, so that there be worship at the ancestral graves.®® The concubines stand under the authority of the wife, their children regard her as their mother, for whose death they go into mourning for three years. It is self-evident that this is only an external form and that a child will always love its own mother. The statement of ” See C. N. Starcke, l.r., p. 2G1. Ishmael was his legitimate son, and that Abraham, instigated by Sarah’s jealousy, sent him away too, was wrong. “Mn Talmudic times the concubine (jiilegeKch ) was a legitimate wife, but without the contract (hethuha), given only to the first wife. * Mevgtzu. IV, XXVI, 1 [Legoe. 11. p. 189]:— ^ ^ M pn lixiao yu mn wx. hnu icei tti (having no descendants is the greatest of the three uiidutiful acts). THE FAMILY LAW OF THE CHINESE. 37 T. Unger, iu his book on marriage,®^ that the children of a concubine treat their mother with contempt, is based on some misunderstanding. Amongst the lower classes in China polygamy is not the rule. In the better classes the first wife is frequently but slightly younger than her husband, and fades, in conse- quence of nursing her children too long — sometimes five or even six years, — earlier than her European sister. She remains at home to look after the children and the property, whilst her husband — official or merchant — is often absent for years. It is then that a concubine is taken, though rarely as long as the first wife is young. Polygamy has been called the “ fruitful source of so much anguish and death by suicide.” This is a sweeping statement. Most cases of polygamy occur in well-to-do families, whose means permit to them the maintenance of separate establishments for each wdfe, and the family life is not always disturbed.®* Though undoubtedly a great evil, polygamy is so deeply rooted that reform cannot readily be effected. Even Chris- tianity has no direct prohibition against it,®® and Bishop CoLENSO was of opinion that a convert with a plurality of wives was not required to put any of them away.^®® In Corea, where practically the same family laws are in force as in China, the children of concubines do Eke in ihver iceltkistoriscken Entyvickelung, quoted by C. N. SXARCKE, l.c.t p. 158. ** Although a proverb says ^ ^ tm ^ M ^ Mm pi mei (Eick ckiao fci kuci fang ckih fn (beautiful maids and lovely concubines are not a blessing of the ladies’ apartments) ; or clrii (Ei cEii fe ck'ii rk'ick ck'n xe (we marry a wife for her virtue, a concubine for her beauty). Only a bishop was required to be the husband of one wife [1 Tim. .S, 2 ; Tit. 1, G, 7 : (/.ixg yvjxr/.bg a.vr,p. Letter to the Archbishop of Canterbury ; Cambridge, 1862. G 38 THE FAMILY LAW OF THE CHINESE. not inherit the noble rank of their father (they are called ilmidnff). Polyandry, which has to be treated in this chapter, is in China proper found exclusively in the prefectural city of T‘ing-chou in the province of Fukien, whose inhabitants speak the Hakka dialect. This polyandry of Fukien, carried by emigrants to Formosa, is of local origin, being caused by the extreme poverty of the above-mentioned district, in which, again, only the very jjoorest practise it. Here the brothers, who are the husbands of one wife, live with her alternately for some period. In the same place child murder is of common occurrence, so that infanticide and polyandry seem both to spring from poverty. McLennan asserts that infanticide took its I’ise from the nomadic life of the primitive hordes, and that polyandry was the natural consequence of it, because women were scarce [Studien, p. 131, 134]. This was certainly not the cause of the Fukienese polyandry 9. — Second Nuptials kon) and Violation OF the Time of Mourning. After the death of the first wife, remarriage by the hus- band is permitted without any delay. The requirements of the household may often render it absolutely necessary. The widow, however, against whose remarriage custom is 101 PolyauJry is prautisud in Tibut, Kunawar, and auiong the Todas [C. N. Starcke, I.C., ]!. 163]; it is described as follows : — Should there be more brothers, and they agree to the arrangement, the juniors become inferior husbands to the wife of the elder ; all the children, however, .are considered as belonging to the he.ad of the family [spo Moorcro1''T & Trebek, Trarris', I. p. 321. C. N. Starcke. p. 134], — C. R. Markham \Narrathr of the Mission of (Ipopi^p Iloqlc to Tihrt (London, 1H76), p. 336 ) iiuotes Horace della Penna [1730] as an authority for saying that the wife attributes the olfspring to him by whom she says she was with child. THE FAMILY LAW OF THE CHINESE. ?)f) generally opposed, lias to mourn three years for her husband, in which time she is not allowed to marry.^“^ The widow of a man of rank is not allowed to marry again. If the husband has left his wife, she may claim a divorce, or rather permission to marry again, but she has to wait for three years, as if the husband were dead. A peculiar custom exists in some parts of China, e.g., at Niugpo a marriage between a widow and a widower, usually both of advanced age, is concluded with the under- standing that the widoM' belongs spiritually to her former husband, i.e., when she dies her body is claimed by his family and is buried with him. To marry a widow is called ^ ^ ^ hurt, to take a second husband ^ ^ hai chia, or fan t^ou chia. 7?._0N patria potestas. 1. — General Remarks. As was the rule according to the Roman laAv of the time before Justinian, all persons who depend on a pater faniilias, either grandfather, father, uncle, mother, or husband, stand in China under patria potestas. Such persons are therefore either the wives of the pater familias or his sons The Roman term of mourning ended after 10 months, the breach of which was punished [Z. 1, C. 11, §1, and §.S, D. de hit qui not. inf., 3, 2. M>v., 22, c. 22]. The sense of cap. 5, X, de secundis nuptiis, 4, 21, is slightly different. 40 THE FAMILY LAW OF THE CHINESE. and daughters or more distant descendants on the male line, or slaves. The patria jwtestas is the same as the domini potestas, the power of the master over his slaves, according to the ancient lioman law. Tlie children of a pater familias are either legitimate or illegitimate. If a man has got a girl with child, he must marry her ; if he has a wife already, he must take her as a concubine. But in any case, even if he is prevented by death from marrying her, the child is considered his legitimate offspring. The master may dispose of the children of his slaves in marriage ^ chn hun), but has to obtain the consent of the child’s parents if he w’ants to dispose of them in any other way. Illegitimate children whose lather is known but who are not made legitimate per sidise. Even in this century it is cn>tomarv in Sweden to idace. in the coltin tobacco- j.ipe.s, knives, and even a full bottle of whiskj’ [Weinhold, A/tiiord. Lvbcii, !>. 4!);t. H. I’AUL, l.c., vol. 1, j). liiOOj. \V. A. P. Martin, llaalin Papers, Second Series (1894), p. 346. Sec H. Paul, l.c., vol. I, p. 998. — The idea that the dead invisibly participate iq the meal we find everywhere. Compare the Irish wakes. THE FAMILY LAW OF THE CHINESE. 49 tlie quo.stiou was put to the vote and it was decided “ that this CVinference affirm the belief tliat idolatry is an essential constituent of ancestral worshi[). ” The (Jonference con- demned all idolatrous customs, all customs that recognise any being as worthy of worshi[) aside from the true God. Gr. Yates, a well-known missionary, says [p. 012] that throe evils come from ancestral worship : — ] . — “ Betrothal of children at an early age, by which millions are made miserable for life.” Now it is w(“ll known how much our line of thought is indiumced by general custom. What appears to ns as want of freedom and even severity does not appear so to the ( *hines(> mind. The Chinese consider marriage as a business, in which the erotic element need not enter at all or is perhaps con- sidered troublesome. This was also the view taken in Europe in former ages^'^® and the betrothal of children was a common practice. The romantic love in marriage is a thing of modern times. But even now it is not considered a necessary factor ; equal aims and equal interests are more conducive to a happy union than mere love. We cannot hold ancestral worship responsible for early betrothals. 2. — “ Polygamy, the fruitful source of so much anguish and death by suicide.” Poh'gamy, as we have already said, is certainly an evil, but it is still practised by the great majority of mankind. “Anguish and death by suicide,” said to be provoked by ])olygamy, are, in my opinion, not of frequent occurrence in China, because the evil is firmly established and the Cdiinese woman hardly considers it as baneful. In the majority of cases, but not in all, barrenness of the wife and the desire to have children lead to poh'gamy. Love of splendour, the wish to have a large family (and Paul, Grundriss, vol, II, 2, p. 217, 50 THE FAMILY LAW OF THE CHINESE. hence greater influence), and carnal considerations have as much to do witli it as ancestral worship. But before we judge others, ought we not to inquire into our own position? Have we realised the ideal of marriage of one man with one woman ? or have we, to use the words of a modern author, rounded Seraglio Point, but not passed (!ape Turk yet? 3. — “ The heavy tax in support of this worship.” The daily expenditure of 3G0 millions in joss-sticks alone certainly comes to a respectable total at the end of the year, and the spending of so much money may be called an utter waste, but it can hardly he called an evil, and is not a heavy tax on the individual. A paper by Dr. Martin \_Record of Conf., pp. 619-631] pleads for tolerance ; Dr. H. Blodget [ih., pp. 631-654] condemns ancestral worship as antagonistic to Christianity ; Dr. E. Faber has given a concise and terse rdsum(^ of the whole question [pp. 654-655]. Now religious Conferences and Councils have invariably been failures when absolute truth was to he ascertained, and I am afraid this last Conference was no exception to the rule. It is more than doubtful whether idolatry is really an essential constituent of ancestral worship. Idolatry is “ the worship of idols, images, or anything made by hands, or which is not God” [Webster]. If the Chinese “worship” their dead as idols, they also worship their living parents in the same way, for the ancestral rites are but a continuation of the filial love shown to the living. In such rites there is no “worship” in our sense of the term, and by substituting “ cult ” the baneful spell of the word is broken. Ancestral worship is only external religion, but it has taken deep root in the hearts of the Chinese. Only thorough teaching can undermine it. A true convert to Christianity As W. Williams [Middle Kingdom, vol. II, p. 279] has done ; lie computes the yearly expenditure at one dollar per head. THE FAMILY LAW OF THE CHINESE. 51 will soon give up the superstitions closely connected with ancestral worship, and we have for this a good example in the Chinese Mohammedans, who with their better creed soon gave up the superstitious practices. The early church acted more wisely than our modern missionaries, for old customs which appeared dangerous to the new creed, but the sudden prohibition of which would have been unwise, were changed into Christian festivals. England and Germany olfer many examples of this practice [comp. Beda, Hist. eccL, I, 30, ed. Holder]. The difference between the sacrifices to God and those offered to ancestors is well drawn in the Liki [Legge, vol. I, p. 413] : — “ In the sacrifice to God we have the utmost expression of reverence, in the sacrifices of the ancestral temple we have the utmost expression of humanity.” In India a somewhat similar cult of the dead existed, but as to its present state 1 have no authorities. 5. — Acquisition of Patria Potestas. Patria potestas may be acquired (a) through marriage, {h) through procreation, (c) through adoption, and (d) through purchase, the last method differing in nowise from (a) and (c). If the person who acquires patria potestas in one of these four ways stands himself under patria potestas, then he acquires it for his pater fainilias : — (a.) Bp Marriape. — The wife belongs after marriage to the family of her husband, and stands in his manus or in the patria potestas of that person under ■whose patria potestas the husband stands. (6.) By Procreation . — Children come under the patria potestas of their fixther, whether born by a wife or by a concubine. W . Calaxd, Altindixvlu r Ahiiviicultux. Las Q'ladda, uacii dcu verschiedeueu Scliulcii dargestellt. Leideu, 1893. 52 THE FAMILY LAW OF THE CHINESE. (c.) Bij Adoption . — To explain this institution, most important in Chinese law, we take the Roman law as a type.‘^^ A man may adopt a person as son or (laughter, or, it he formerly had sons, as grandchild, hut not as hrother, wile, or concubine. In China nearly all adoptions take place in child- less families, and among these the greater part are adoptions of sons. Five per cent of all families in China })Ossess adopted children [E. H. Parker]. What is said with regard to adoption among the ancient Greeks holds good for the Chinese : — The dying out of a family was to be prevented, as by the desolation of the house the dead lost their religious honours, the gods of the family their sacrifices, the hearth its flame, and the forefathers their name among the living. The oldest recorded instance of adoption in China is that of Shun being received into the family of Emperor Yao [2200 B.C.] Adoption, like marriage and the ac([uisition of slaves, rests in China upon purchase, concerning which a contract is made, with the difference that the word “wife,” “son,” “ daughter,” or “ slave ” is s])ecifically mentioned in it. The most frequent case is the adoption of a nephew by a childless uncle. This nephew is generally a younger son, who then leaves his father’s family and his son becomes the grandson of the adopt- ing uncle. If there is only one nephew whose duty it is to continue the line of his father, he has to marry another wife c/th'), whose male issue is considered that of tlie uncle. The nephew has thus to perform doubl(! sacra and is called “ one son with two ancestral halls” f ^ M 1)1 ^ slinanp ti. Jamieson, '• Tin- History of Adoiition miuI its Ilelalioii to Muileni Wills” IChiita Itaviciv, XVIII (1S8!)), pp. i:i7-I4(>]. Compare 1. 37, j>r. J). dc adopt., 1, 7. Compare the hnv of Mann. IX, 127, lo'.l ; tlie Hindu considers it a religious duty to have a son, by whose means he may pay oft his debt to his forefathers. If without ollspriiig he must adopt a child. THE FAMILY LAW OF THE CHINESE. 53 Viao). Ho mourns the three years’ term for his adoptive father and only one year for his parents. If he leaves only one son, the latter has, like his father, to marry two wives ; the issue of the one is that of his grandfather, that of the other continues the uncle’s family. When two sous are obtained the ancestral hall is completed t7«‘en^ tHao). This, then, constitutes the only case where a Chinese may have two wives chH) at the same time. ^Vhere there is no son or nephew, but only a daughter, a son-in-law may be taken into the family, who leaves his own family without being actually adopted. This is called chao Iisii, inviting a son-in-law. It being prohibited in China for officials to hold office in their native province, ado})tion becomes the means of avoiding this restriction. The official in question is adopted into a family of another province, accjuires thus a right of domicile {chi in the province of his adopted j)arents, and may now hold an office in the province originally his native one. In the same way confiscation of property is prevented by adoption, if such confiscation is imminent on account of the crimes of near relatives. The general reason for adoption is to continue the stock, ^ ^ chieh tsung tzn. Adoption of agnates is called ch‘‘hig chi (taking over the succession), ^ ||^ kuo ssa (going over to be heir), or ^ kuo ssu (going over to the saci-a). There is a distinction between this and the adoption of a stranger : — ^ ^ i tza (or ni'i) and ^ ^ (7t7 tza (or )m) godchildren or filii lustrici, or ^ ^ (rearing a child). As long as the former is possible, few will resort to the latter fiction. The adoption of cognates is called ^ kuei tsung (returning to the stock). A. — (lieneral Requirements of Adoption. As the main idea of Chinese adoption, it may be stated 8 54 THE FAMILY LAW OF THE CHINESE. tbat only children out of tainilies who bear the same family name may he adopted, as otherwise, according to the Chinese, the difference between families would soon cease to exist. No special requirements are prescribed for the ado[)ter, and the law fixes no age limit under which one may not adopt, although it is usual for the adopter to be older than the person to be adopted. Foundlings under three years’ old may be adopted without further ceremony. An adopter may emancipate the adopted, and adopt him a second time.’’''^ The wife, acquiring after the death of her husband his patria potestas, has therefore the right of adopting she has, however, to ask the consent of the nearest male relation of her late husband, for adoption as well as for dat/o in adoptionem. She has further the right of preventing the legitimate or adopted sons of her former husband from giving themselves into arrogation against her wish. The adoption of one’s younger brother or one’s uncle, even if the latter is younger than the nephew, is not allowed ; for the same reason the uncle may not adopt a nephew who is older or of the same age as himself. An interesting case is that of a foreigner desiring to adopt the two illegitimate children he had by a Chinese woman who had subsequently absconded. According to the law of his As is tliu case in Itoiuan law [§ 4, J. dc adopt., 1,11: luinorem iiatu non posse majorein adoptare placet ; adoptionem enini natui'aui iniitatur et pro monstro est, ut major sit tilius quam pater. Debit ita(iue is qui sibi per adoptionem vel arrogationem fllium facit, plena pubertate, id est xviii annis prtecedere. L., 40, § 1, 1). de adopt., 1, 7]. Not so in Roman law \ l,, 37, § 1, D. dc adopt., 1, 7 : eum queni quis adoptavit emancipatum vel in adoptionem datum iterum non potest adoptare]. The same in ancient Egypt [.w. Mayer, l.r., II, p. 427], but not so in Rome !’§ 10, J. da adopt., 1, 11: femiine (luoque adoptare non possunt. Const., h, 1. de adopt., 8, 48 : mulierem (luidem (ju:e nec sues filios habet in ^Mjtcstatc, arrogarc non posse certuiu est]. THK FAMILY LAW OF THE CHINESE. country he could only legitimise his children, so long as their mother was living, hy siil>se(piens matvimoiium. This was impossible, as the woman could not be found. The Chinese authorities were then asked to allow these children to take the foreign nationality of their father ; and after obtaining this permission, the children were adopted by the father. B . — Special Riapnrements of Adoption and Arrogation. Whoever wants to give himself into arrogation must ask for the consent of the nearest relations of his former pater familias. If he has elder brothers alive, their consent also must be asked. In the lifetime of his father the sou may give himself into arrogation, even without the consent of his father or his relations, if the father is insane and poor, so that the son by the arrogation acquires the means of support- ing him. If the father is far away the son is allowed to be arrogated, but the father may, on his return, claim back his son. According to its nature, the datio in adoptioneni is, properly speaking, a sale (renditio), to which only the consent the pater familias is required; the person to be adopted is not asked except he be a son holding office. In practice, however, it never happens that an adult married son is sold into adoption against his own free will. The wife of the adopted follows her husband, but the children remain in the family of the pater familias A man having sous of his own may not adopt a stranger as their elder brother, but he may adopt grandchildren, as According to Homan law the children of an arrogated person followed their father, while the children of an adopted person remained with their grandfather [C. 2, § 2, D. de adopt, 1, 7 : is qui liberos in potestate habet, si se arrogandum dederit, non solum ipse potestati arrogatoris subjicitur, sed et liberi ejus in ejusdern hunt i)otestate tamquam nepotes. L., 40, pr. D. do adopt., 1,7: quod non similariter in adoptione contingit, nam nepotes ex eo in avi naturalis retinentur potestate. — L., 20, 27, D, ibid. : ex adoptive natus adoptivi locuH} obtinet in jure civili]. 56 THE FAMILY LAW OF THE CHINESE. sons of his legitimate or adopted sons. After his death the latter have the right to dissolve such adoptions. Brothers may, after the death of their parents, give their elder or younger sisters into adoption, hut not without the consent of the latter. Even after death a films posthumus may be adopted for a man by his relations or friends, in case he died without any male descendants ; preference is given, in such cases, to a nephew of the (h>ceased. By special grace the Emperor may do this for princes of the blood or high dignitaries, hut in all cases with the consent of the male relatives of the deceased. By this means the levirate, as stated above, becomes unnecessary. C. — Efi-'ects of Ar rogation and of Adoption. In China the effects are in either case the same.^^^ The adopted becomes agnate of all agnates of the arrogater or of the adopter. Altogether, the adopted son (or daughter) has a better position than the natural one, as he cannot he sold without the consent of his natural parents, unless a second adoption he of real benefit to the child. He has all the rights of a son (or daughter). In the case of inheritance, natural as well as adopted sons take precedence of all daughters.^"*^ Should the adopter have sons born after the adoption, so that the oi’iginal cause for the adoption no longer exists, he may cancel the adoption, if the parents are willing to take back the child. The child, however, must be kept if no member of his family lives to whom he can return ; only officials may thus be left without family. This adoption after death was also known to the Greeks Mayer, l.r.. IT, 429, who quotes Deinosth. and Is.'cus]. Not so in Roman law fl. 1, 1. 2.S, D. de adupt., 1, § 2. J. dc adojd., 1, 11. — Const. 10, § 5, C. dc adopt. ^ 8, 48. — § 18, J. dc hercd., 8, 1]. See Ch. Alabaster, “The Law of Inheritance,’’ China Review, vol, V (1876), pp. 191-195. THE FAMILY LAW OF THE CHINESE. 57 The adopted child being regarded as the real child of his adopted parents, these must give their consent if the cliild wants to commence a three years’ mourning after the death of his natural parents. An official is not allowed to mourn two terms of three years, but only one term for his adopted father, as mourning means in this case withdrawal for the time from official life. G.— TlCnMlNATIOX OF TFIE PaTKIA PoTRSTAS. With the death of the father his power passes to the mother, and after her death to the eldest son, who then has also power over his younger brothers and elder and younger sisters. The father’s power does not cease throughout his lifetime, except with his own free will or where the son holds office. Unless with the special permission of the Emperor, the father cannot in the latter case exercise power over his son. As already mentioned, the son becomes (junsi sni juris if the father is insane and at the same time ])oor. Excepting where the father gives himself into arrogation, so that his children come under the power of his arrogater, the father’s power may cease with his will : — 1. — By sale into adoption, by which the son acquires agnate rights in the family of his adopted father. 2. — By sale of a daughter into marriage, she becoming an agnate in her husband’s family and enterino- his mamts. 3. — By permission to the children to enter a religious order. They then lose their family name and leave the family connexion altogether ^ r/ru chia). 4. — By exposing the children in tender age. The finder may lawfully adopt them if under three 58 THK FAMILY LAW OF THE CHINESE, years of age.*^^ If older, they are not allowed to be exposed, and only the ways mentioned under No. 1 and No. 3 are left to the father to rid himself of his child. In contradistinction to the lioman law,^'*^ the father may relinquish his power even against the wish of his children. An emancipation in the Roman sense, by which the emancipated person becomes sui juris, does not exist in China. After the death of the father the daughter becomes sui juris, if a widow and having sons, the son only in case he has a family. C.— ON GUARDIANSHIP. If at the time of the parents’ death the children are still very young (under seven years), and no head of the family exists who has ipso jure a right to the patria potestas, the father’s power devolves upon one of the male relations of the same surname (iBi a « t^ung iising ch'‘in c/iH), if no testamentaria tutela has been ordered. If no such relation exist, then one among the male relations of a different sur- name (^^ a « wai hsing chHn ch'‘i) is chosen. To be without any such relationship is in China an imj)ossibility. If after the father’s death no relation is willing to take the responsibility of the patria potestas upon himself, such guardian has to be appointed ( Co ku, to confide an orphan to any one, ^ ^ Co hi che, a guardian). Const. 2, 4, C. de infant, erpo.^., S, 52. Nov. 163, c. 1 (non gloss.). A'cy., 89, c. 11, pv,-. solvere jus patric'e potestatis jnvitis filiis non permissum est patribus. THE FAMILY LAW OF THE CHINESE. 59 The guardian has the full patria potestas and, like the father, retains it, with the above-mentioned exceptions, as long as he lives. The property of the child, of which the guardian has the full usufruct, continues to be the child’s. When a widow remarries, the children by her first husband come under the power of the second. But if a son of her first husband returns, with the consent of the second husband, to his father’s family (5ll ^ M ^ tsung, an orphan returning to his ancestors), a guardian has to be appointed. Between tutor and pupilla a marriage is impossible ; it would be considered incestuous. 60 THE FAMILY LAW OF THE CHINESE. INDEX. Adoption • 6, 14, 62 Marriage - . . - 9. „ posthumous ■ - 17, 66 „ contract . - 22, Adultery 18, 30, 33, 43 Mengtzu- - 14. 23, Ancestral worship • - . 44, 46 Mesalliance Betrothal • 22 Mohammedans - 17, Bigamy - - - - 35 Mourning, time of . 6, 17, 28, 53, Bridesmaids - - 28 Nao-fang (brawl-room) - Burial - . • - 44 Nigoya (Hindu) Children 41 ; exposin g children 67 ; 1 Nobility - . . - - 20, illegitimate 40. Nuns . . . - 20, Clan ... - - 5, 40 Nuptial cup Concubinage • - 11, 29, 36 Officials - - . 19, 42, 43, 53, Corea ... ■ 13, 20, 37 Orphans - . . - 18, Death of husband, declaration of 34 Pater familias . 5, Deceased wife’s sister - 14 Patria potestas -39, 41, 61, Divorce 30, 32, 39, 42 ; bill of • 34 Polyandry Dowry ... - 29 Polygamy Eunuchs ... - 13 Presents - . . ■ 22, 25, Family ... - 4 Priests . . . - - 20, „ names - • - 6, 16 Puberty - . . Filial piety - 43 Rank, inequality of - Go-betweens - - 23 Relationship, grades of - God, name for . ■ 47 Remarriage - 17, .38, Guardian - - 18, 68 Savages . . . Husband and wife • - 21, 30, 43 Servants ... Impediments • - 12 Sinking ... 4, 10, 13, 23, Infanticide - 38, 42, 57 Slinking ... . Law and Custom • 4 Shun, Emperor • 14, 23, Levirate . - - - - 17, 18 Slaves ... ■ 6,8,21, LiM ' * 1 10, 14, 18, 23, 24, 26, 28, 46, 47, 61 Term question - Wife 11, 30, 36, Manchu . - - • 8, 11, 16 Widow ... 18, 20, 38, 42, Manu ... - - 16,62 Yao, Emperor- . - 14, 26 27 36 20 ol 57 28 32 39 67 27 67 58 39 57 38 36 26 67 12 20 5 69 23 6 24 5 62 40 47 52 69 52