• 1 On the local impact of land reform in Guangdong, see, for example, Helen F. Siu, Agents and Victims (...)

1In the early 1950s, a team of cadres from the recently victorious Communist Party would arrive in villages in the southern part of Guangdong province, as part of the Land Reform. Their objective was to establish the dividing lines of landlord/peasant classes among the villagers, and redistribute the land rights in a class “struggle” against the landlords. The struggle would also involve a public punishment and sometimes execution, of the landlords.1

• 2 On how landlordism and village-level leadership was traditionally based on these ancestral estates, (...)
• 3 For a basic outline of the institution, Patrick Hase, “The Clan and the Customary Law: Tso and Tong (...)
• 4 Such New Territories villages as Wong Tsuk Yeung and Tsang Tai Uk have been known to have all villa (...)

2However, one problem frequently faced by the cadres was that the “landlord”, in the case of these Guangdong villages, while continuing to own and rent out land, had already been dead for centuries.2 This reflected a form of property owning known to the scholarship as zuchan, or lineage property, where the nominal owner would be a common ancestor of a group of people residing in the village. The holding entity would be referred to in the ancestor’s personal name followed by the suffix zu 祖 denoting “ancestor”, or in the name of an ancestral hall, tang 堂 or ci 祠.3 In some cases, all the land in the village would be held in this form, and all living inhabitants would technically be tenants of the ancestor, tilling the ancestor’s land and paying him rent. Therefore the “landlord” who might be the object of class struggle, and potentially a party to be killed, had in fact already been dead for centuries.4

• 5 On one hand, this limitation will make it rational for the author to limit the analysis to “late im (...)

4The creation of these ancestral trusts was one of the strategies through which property would be kept intact through the generations, as well as an option when in the absence of heirs to household property. A key element in this system was that while an individual could be the nominal “owner” of property, the property ultimately belonged to the continuity of the line of patrilineal descent. The individual being but the nominal owner, in the event of his death the line of descent had the option of continuing to hold the property in his name. In order to fully explain this system, however, it would be necessary to briefly outline the principles and practices of property holding and inheritance in traditional China. This notion of “traditional China”, for a legal historian focusing on the interaction between modern western legal systems and Chinese practices that existed before such interaction, refers to the traditional elements of the societies of the late Qing and Republican periods, traditional elements that informed this interaction. Much of these elements were formed and inherited through the Ming and Qing period, and in practice we will be looking at the dynamics of social change occurring in these periods.5

• 6 Imperial China did not have a written Family Law or Inheritance Law. There were codes basically dea (...)
• 7 This was one of the main theses of Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edi (...)

5The primary unit of property holding in traditional China6 is known to have been the household. It was a unit typically consisting of two to three generations, with the paterfamilias as the household head: what defined the household, however was the financial arrangement of “common living, joint property” (tongju gongcai 同居共). In this arrangement, all income of the household members would go into one common account, while all expenditure would also be provided for through that same account. While “common living” denotes the idea that all members reside together and eat together, a member could live and work away from home and still participate in this relationship, by sending his income and treating his own expenditures as part of the household’s expenditure. The notion of “shared property” not only refers to the practice of day-to-day household finances being conducted through a common account, but also that what is accumulated and purchased becomes household property, from which the members benefit jointly.7

• 8 Contrast Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 149-163, an (...)
• 9 For an analysis of such activities using village account books, see Kentaro Matsubara, “Law of the (...)

6While some past scholars have dubbed this a form of family “communism”, it has been shown that the household head, the paterfamilias, had unchallenged authority over the other members in terms of deciding how to dispose of the property.8 The nominal owner of the household property was also the paterfamilias himself, and other members of the household usually could not own landed property, or take out loans from lineage estates.9 Here, in the household property, we see the basic structure parallel to that of lineage property, where an individual is the nominal owner of property, but it functions as a form of common property where the individual’s direct descendants both contribute to and benefit from that property.

• 10 This is a term that frequently appears in Chûgoku Nôson Kankô Chôsa (Rural Customs and Practices of (...)
• 11 CN v. 5, p. 72.

7A crucial aspect of this relationship of “common living, shared property” is that it can be continued after the death of the paterfamilias. Once the latter is dead, no one individual has unchallenged authority over the use and disposal of household property, but typically the sons of the late household head would jointly take over its management, such managers being called dangjia 当家.10 Theoretically, this relationship can continue for generations. When the generation of the original household head’s sons dies out, the grandsons’ generation can take over the management, maintaining the “common living, shared property”. Indeed, there are numerous reports of families maintaining the relationship for multiple generations.11

• 12 David Wakefield, Fenjia: Household and Inheritance in Qing and Republican China, Honolulu, Universi (...)

8In such a case, it will be clear, the whole idea of “inheriting” property is basically redundant, as a property owner’s death does not create a vacuum in ownership, and the household continues indefinitely to function as a unit for property holding. In reality, however, such continuation of the household unit for multiple generations was exceptional, and property would usually be inherited from generation to generation. The procedure for such transmission, however, was again different from the notion of inheritance upon death.12

• 13 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 268.

9The relationship of “common living, joint property” could, and usually would, be ended by the members’ decision to “divide” the household. This act of household division was called fenjia 分家, and could take place either before or after the death of the household head. It was deemed that there was a right time for this division: not too early, as the sons would not yet be mature enough to manage their own households responsibly; not too late, as the sons without the burden of household management would remain irresponsible and frivolous.13

• 14 There was a provision to this effect in the Qing Code: The Great Qing Code, Laws Relating to the Bo (...)
• 15 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 175-179.

10In cases where division took place before the death of the paterfamilias, the decision to divide was the household head’s and his alone. This was part of his authority to dispose of the property, and other members of the household could not demand household division against the will of the household head.14 Moreover, the household head could also decide how much property should be set aside for himself, a share that is known as the yanglaofen 養老分, the share providing for old age.15

• 16 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 193.

11However, there was one area to which the household head’s authority to dispose of the property did not extend, and that was how the property would actually be divided in the process of household division. The iron rule was that the property was to be divided equally among all sons. A Qing magistrate disallowed the division of a household head who tried to divide his property giving two brothers shares of 60% and 40% respectively, and decreed that the brother with the larger share pay the other the difference of 1,500 taels in their shares.16

• 17 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, see also Rubie S. Watso (...)

12In cases the household had not been divided at the time of the death of the household head, division would take place when the sons could agree. This could be immediately after their father’s death, or some years after. The sons would typically set aside a yanglaofen for their mother(s), also set aside some funds if they had any unmarried sisters to provide for their dowry in the event of their marriage, and divide the remainder equally among them.17 Once the division was complete, each brother would then become the head of his newly established household, starting a new relationship of common living, joint property.

• 18 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 243-245.

13In this process, the death of the paterfamilias necessitates a change in the management of household property, but not in its ownership. On the one hand, the household can continue to function as a unit of income, expenditure and property holding. On the other hand, management of the property becomes a matter for joint decisions for the sons, including whether and when to divide the household.18 An implication of this system was that the custom of drawing up wills never became the norm in traditional Chinese society. Other than the important point that equal division was a prerequisite, if the paterfamilias wished to influence how the division took place, he had the option of dividing the household within his lifetime, and there was no need of a document that would only be valid in the event of his death.

• 19 D. M. Emrys Evans, “Common Law in a Chinese Setting. The Kernel or the Nut?”, Hong Kong Law Journal(...)

14When the British colonised Hong Kong, they established a system of succession law for the Chinese inhabitants where the substantive law would be Chinese Law and Custom but the procedural law would be British. Since the Chinese did not have the custom of drawing up wills, what developed was a system of case law regarding intestate succession, dealing with such issues as the widow’s capacity to act as the “administratrix” of the “estate”, or if an unmarried daughter had the “right” to a share of the property that was being divided, which would customarily have been set aside as a dowry in the event of her marriage.19

• 20 For the classic formulation of a “lineage society” where these properties form the basis of the loc (...)

15Another body of case law that emerged in the colony of Hong Kong was regarding the legal status of ancestral property. The above description of family property holding household division has deliberately omitted the creation and management of ancestral property, briefly touched upon in the introduction of this paper. Ancestral property, explicitly a form of “property without owners” in that the “owner” was dead, could have multiple functions, but one was to avoid one possible consequence of the system of equal division among brothers, i.e. the loss of unity resulting in the diminution of the total value of the property.20

• 21 For an example of the former process, see Kentaro Matsubara (Jiantailang Songyuan 松原 健太郎), “Shi xin (...)

16Ancestral property could be established either by one party “donating” property to a particular ancestor and setting up a management structure for it, or at the point of household division, usually after the death of the household head. The brothers could keep part of the property intact, and establish that part as ancestral property, from which they would jointly benefit. The ancestor whose name in which the property was held would usually be the deceased father of the brothers.21

• 22 Maurice Freedman, Chinese Lineage and Society: Fukien and Kwangtung, London, The Athlone Press, 196 (...)

17The choice of ancestor had real consequences, because it determined the scope of beneficiaries. If ancestral property was established in the name of the founding ancestor of a lineage village, then all the members of the lineage in that village would have a claim to benefit from the property. If it was an ancestor of the second generation, then it would be the direct descendants of that second generation ancestor that could benefit from the property, excluding the descendants of all other second generation ancestors. If, as in the case of establishing ancestral property at household division, the ancestor was the late father of the brothers establishing it, it would just be these brothers who could be beneficiaries. As multiple bodies of ancestral property could be established in one lineage group, this created differences in wealth among lineage members, with certain members benefiting from multiple bodies of ancestral property, others from only one, that of the founding ancestor; a process well known through Maurice Freedman’s description of “asymmetrical segmentation”.22

• 23 On this institution, the Jisi Gongye under Japanese colonial rule, see Tay-Sheng Wang, Legal Reform (...)

18The case law that developed in Hong Kong regarding ancestral property treated these institutions as trusts. While being a typically common law (as opposed to civil law) interpretation of the Chinese institution –the Japanese colonists in Taiwan, coming from a civil law background, would use a different legal analogy–, it captured the aspect of there being no outright owner, but a trustee in the form, of the manager of the property, and a group of beneficiaries who had little control over the management.23

• 24 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 35-39. This reconstr (...)

21The notion of patrilineal descent is represented by the term zong 宗. It signifies the continuity of the male line, in which a person’s qi 氣 –literally meaning breath, but denoting more the essence of a person’s life– is transmitted from father to son. Father and son are said to be of the same qi, and this qi becomes a fundamental part of personal identity. A person’s qi is also reflected in his/her surname, and this does not change throughout one’s life, regardless of whether one marries. A simple consequence of this notion is that women do not change their surnames when they marry. This is important in that the bride retains the representation of her qi inherited from her father, and also to show that the taboo of marrying a person of the same surname is not being broken. This last taboo, alongside with the taboo of adoption of a person with a different surname (tongxing buhun 同姓不婚, yixing buyang 異姓不養), reflect how the continuity of qi along the lines of patrilineal descent, the zong, is conceptualised in an almost biological manner.24

• 25 This analogy is taken directly from Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd ed (...)

22The analogy often used is that of a tree. On one hand, a tree has its soft, green parts, the new buds coming out to form new branches, the leaves, or the soft roots that reach further into the ground. These are seen as the “living” parts of the tree. It is through the activities of these living parts that the tree continues to grow, absorbs water, and is allowed to convert sunlight into the energy that fuels the tree’s activities. Then there are the “wooden” parts, the branches, boughs, the hardened roots connected to the trunk. These do not engage in such activity as the “living” parts in the same way, but these parts once were the soft buds and roots in the tree’s younger days, and even after ceasing to function as such, they are still integral parts of the tree, through which the living energy courses, which hold together the organism of the tree. In the analogy of the Chinese continuity of patrilineal descent, the “living” parts are equated with the living members in this line of descent, while the “wooden” parts are seen as the deceased ancestors. There is a sense of mutual reliance, where one does not exist without the other, and the notion that an individual member continues to live as part of the tree even after his death (the analogy can be pushed further, equating adoption with grafting, and equating women in the family with the leaves, which fall off the tree but become part of the earth that nurtures other trees, but we will not pursue that here).25

• 26 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 190-194.

23A term that people might use to describe this (somewhat abstract) continuity of the male line would be zuzong 族宗, as opposed to the inverted term zongzu 宗族 (lineage), which would denote a more concrete group of people with actual members. And it is this identification with the zuzong that appears to explain how, on one hand, a household head had unchallenged power to manage and dispose of the household property, but on the other hand, was next to powerless in deciding how this property should be inherited by his sons.26

• 27 Kentaro Matsubara (Jiantailang Songyuan 松原 健太郎), “Shi xintuo haishi faren? Zhongguo zongzu caichan (...)

25There is a sense of eternity in this continuity of life, and indeed, this became a problem with British colonial law in Hong Kong. As ancestral property was meant to be eternal, and it was seen in British legal terms as trust property, it was deemed to violate the “Rule Against Perpetuities”, a legal rule that forbids property to be held in trust with no time limit.27 Either way, according to this notion, individuals would live and die, temporarily looking after property, but still be part of this “eternal” entity, to which this property belonged, in the end.

• 28 Hiroshi Watanabe, Nihon seiji shisoshi 17-19 seiki (A History of Japanese Political Thought, 1600-1 (...)
• 29 Hiroshi Watanabe, Nihon seiji shisoshi 17-19 seiki (A History of Japanese Political Thought, 1600-1 (...)

27When one looks at the Chinese family as a continuity of qi through the male line of descent, and units of living and property holding that are created at certain points, an aspect that stands out is that the continuity of the family is an end in itself, not reliant on any external factors such as the State. This is in stark contrast with the premodern Japanese family, where its ultimate raison d’être was to fulfil its function in the state apparatus (dubbed the kashoku kokka 家職国家, a state of family businesses).28 In the Japanese case, one could be born into the family whose head always occupies, generation after generation, the position of second accounting officer in the bursary of his samurai domain (which would effectively be the state in Tokugawa period Japan). Moreover, a fishmonger’s family would see their business of providing fish to the people in the neighbourhood as fulfilling an important function in the state. The business would be handed down from father to son, but of course just to one son, usually the eldest, who would then hand it to his eldest. Adoption would be made with the explicit purpose of ensuring the continuity of the family business, and adoption from outside the family was common, as ability would count more than genealogy.29

• 30 Takeshi Hamashita, Kindai Chugoku no kokusaiteki keiki: Choko boeki shisutemu to kindai Ajia (China (...)

28In the Chinese case, in the first instance, the state, or government, did not feature in the identity of the family. In most of imperial China, government officials were recruited through an open civil-service examination, and while historical attempts to the contrary existed, as a general rule no family was institutionally tied to governing, or to a particular profession. A family would change occupations freely, and the line of male descent transcended dynasties, as well as national borders. It was not rare for a lineage group to have operations both within and outside the dynastic territory, some members taking local nationalities. This did not negate their sense of belonging to a Chinese lineage, identifying themselves with the continuity of the male line of descent.30

• 31 As of 1800, the population of the dynastic territory of the Qing is estimated at roughly 400 millio (...)
• 32 For an analysis of the situation, see Kentaro Matsubara, “Land Registration and Local Society in Qi (...)

31The registration system of land and population established at the beginning of the Ming dynasty (1368-1644) became quickly redundant with population growth and widespread migration within China. This system, called the lijia, registered “households” hu 戸and grouped them into units of 10 and 110, noting their property and their tax burden, but with the institution of household division described above, households multiplied with generational change, while registration of these changes was not easy because of the small size of the bureaucracy.31 Thus, on one hand, the government records on who held what land became obsolete in the early stages of the Ming dynasty, and on the other hand the succeeding Qing dynasty (1644-1911) inherited those already outdated records for the purpose of land taxation. This means that for most of this period, the government had no reliable records of who held what land. This situation did not change throughout the Qing and Republican periods.32

• 33 For a recent reformulation of the relative distinction, see Hiroaki Terada, Chugoku hoseishi (China (...)
• 34 On problems of enforcement and how judgments generally required consent from the parties, see Shûzo(...)

32At the same time, the understaffed bureaucracy was not capable of enforcing civil judgments. There is a long-standing debate on how the civil/criminal distinction applies to the case of traditional China (the Chinese themselves did not make that distinction), but in most cases the two aspects were intertwined in a single procedure.33 Enforcing a criminal judgment was relatively easy in bureaucratic terms: one just had to make sure of the custody of one person and carry out the punishment. Enforcing a civil judgment was another matter. For a magistrate presiding over (on average) 200,000 people in his county, it was no simple matter to make sure that a judgment establishing the borderline between two plots in a land dispute in an area that might be at a distance of three days walk away from the county capital was actually enforced.34

• 35 Kentaro Matsubara, “Traditional Land Rights in Hong Kong’s New Territories”, in Billy So, Ramon Mye (...)
• 36 This imperial “land law”, not formulated as a system of rights and duties but rather as a list of l (...)

34The nature of this agreement, tightly connected with processes of local social structuring through intermarriage, credit relationships and territorial formation, would be the subject of other papers.35 Moreover, this property regime, where each right had to be protected in this manner, coexisted with another level of property law, which was stipulated in Imperial law. In the Imperial law, the registration system was very much alive, and ownership of land was organised in a simpler manner, backed up by punishments in the criminal code for aberrations of this order.36 The Qing government had to navigate between this unenforceable law and the property regime of agreement among local parties. It is worth noting here that household and lineage property in late imperial and republican China existed within this regime, on one hand reliant on mutual recognition and nongovernmental enforcement among parties, on the other hand subject to an unenforceable imperial law.

• 37 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 21 and 114.

35We thus come back to considering family property in late imperial and traditional China, and how the notions of death and eternal life informed the attitudes toward property in the family. We have already seen how practices were informed by the notion of household property ultimately belonging to the continuity of the line of patrilineal descent, and the sense that household heads were temporal custodians of this property. This notion of the continuity of the line of descent and individuals partaking in this (eternal) continuity, both before and after death, was in turn underpinned by the continuation of rituals.37

• 38 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975.

36For an individual to partake in this form of eternal life, what was essential was that he (or she) perform the rituals of ancestral worship during his/her lifetime, and then have his/her own descendants continue performing rituals for him/her. Household property was held and divided in such a way that ensured that every person born in a line of descent could be integrated in this chain of rituals. Women were born into one line of descent, inheriting the qi of their fathers. They would then marry into another line of descent, and participate in the rituals worshipping their husband’s ancestors. When a woman had borne sons, she would have descendants who would one day carry out worship rituals for her as an ancestor, alongside her husband.38

• 39 Emily Ahern, The Cult of the Dead in a Chinese Village, Stanford, Stanford University Press, 1973; (...)

37Of course, not all women would marry and bear sons. Both the childless woman and (if she was married) her husband would be under threat of not having heirs to continue their ritual worship, and thus be excluded from the eternal continuity of descent. Those who died without such descendants were thought to become “ghosts” gui 鬼, and this would be a different kind of death from the ordinary biological death, where one is continuously integrated into the zong.39 Strategies were devised to avoid this kind of death without descendants to carry on ancestral rituals ensuring one’s integration into the line of descent.

• 40 See, for example, Arthur P. Wolf, Chieh-shan Huang, Marriage and Adoption in China, 1845-1945, Stan (...)

38The most common way to ensure the continuation of ancestral rituals was adoption. If one was married and did not have a son, the couple could adopt a member of the same lineage, who was of the “correct” generation. The adopted son needed to be of the same generation as the non-existent natural son would have been, which meant one could adopt a nephew but not a cousin or a great-nephew. This rule was in line with the notion seeing the family as a biological organism akin to a tree, where the right kind of branch (of the same family, and of the correct generation) should be grafted to continue a healthy and balanced growth of the tree as a whole.40

• 41 Arthur P. Wolf, Chieh-shan Huang, Marriage and Adoption in China, 1845-1945, Stanford, Stanford Uni (...)
• 42 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 111-114.

39This adoption could take place either within the lifetime of the parents or after their death. Various arrangements existed for the upbringing of posthumously adopted sons. If one of the parents was alive, he could be brought up by the surviving parent. If both parents were dead, the nominal adoption of a son of a brother or cousin of the deceased husband (and would-be-father) could take place, and this son would be raised by his natural family, while nominally being the adopted son of a deceased couple.41 Either way, what was deemed important was the continuation of ancestral rituals. Property (or rather the position of temporary custodian of that part of the property ultimately belonging to the line of descent) would be inherited by this adopted son, whose responsibility it was to continue the ancestral rituals and then maintain the line of descent.42

• 43 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 326-350.

40While it was important for ancestral rituals to persist, and the general rule was that the adopted son would inherit the adoptive father’s household property in its entirety, the choice of this adoptive son among lineage members was not always simple, as there was naturally an element of competition over the household property. In these cases, lineages devised ways of equitable division of the property, sometimes at the expense of following the rules of division to the letter. For example, it was possible for an adopted son to have already been party to household division of his own birth-father’s household, and then be adopted into another line of descent, so that he would inherit property from two households. There would also be cases where a dispute would arise as to which of the different lineage members, each with a claim to be adopted, would be the adopted son, particularly in cases of posthumous adoption. In such cases, lineage members would devise different ways of division, such as allowing one party to be the adoptive son, but also giving part of the property to another party, with an eye to overall equity.43 Such cases also brought about solutions other than simple division, which will be turned to below.

• 44 See William Jones, The Great Qing Code, Oxford and New York, Clarendon Press - Oxford University Pr (...)
• 45 Such a case is reported in CN v. 3, p. 118; see Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobu (...)

41In some cases, adoption could be cancelled, either by the adoptive father or son. While the son going back to his original father’s line of descent was generally forbidden, in cases where the adoptive father had a natural son after adopting from outside, or if the son’s original father would be left without an heir, this could be allowed.44 However, although this was stipulated in the written law, there are reports of lineages strongly opposing such practices, with adopted sons being forced to remain in their adopted father’s line of descent, and only in the event where an adopted son had a second son, this second son would be allowed to inherit his grandfather’s (the adopted son’s original father) line of descent.45

• 46 The Great Qing Code, Laws Relating to the Board of Revenue, Households and Services, Violating the (...)

42Another practice was to receive adoptive husbands (of daughters) into the lineage. Male adoption from outside the surname group was against the general principle of the zong, but this practice has found certain recognition in Ming and Qing legislation. However, the rights enjoyed by such husbands within the receiving lineage was severely limited: they did not necessarily change their surnames, and their rights to inheritance were limited by law to cases where they had good relations with the (adoptive) parents.46

• 47 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 376-382.

44In such cases, there was the custom of marrying this son posthumously. The custom is known as minghun 冥婚, and the bride could either be a woman who had died before her own marriage, or a living woman. In the former case, it would typically be the deceased man’s parents who would search for a family who had lost a daughter before her marriage, and arrange for the marriage of the two deceased persons.47

• 48 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975.

45Such a marriage would involve both a wedding ceremony and a burial, as it was important to have the two corpses buried together. In practical terms, this would involve the corpses, which would have been provisionally buried, being dug up and reburied after a wedding ceremony. After this official marriage, then the couple could be entered into the genealogy of the husband’s family, and adoption of a son who never saw his official parents together also became possible.48

• 49 Diana Martin, “Chinese Ghost Marriage”, in Hugh D. R. Baker, Steven Feuchtwang (eds.), Old State in (...)
• 50 Janice E. Stockard, Daughters of the Canton Delta, Hong Kong, Hong Kong University Press, 1992, p.  (...)
• 51 Supplementary Clause 5 to the article on Violating the Law in Establishing an Heir (see note 45).

47Such needs on the part of the families would also allow posthumous marriages between one dead party and one living party. There are reports from Taiwan on a custom involving a deceased woman’s family placing a packet containing cash as well as the woman’s fingernails or hair, so that an unmarried man would pick it up and then be talked into taking this dead woman as his primary wife to be entered into his genealogy, while being allowed to later “remarry” a living woman.49 In Guangdong and among Singaporean Chinese, there are studies on the custom where the bride in a posthumous marriage would be a living woman.50 Moreover, there were Qing legislations on women marrying dead husbands, typically when the fiancé died before their actual marriage, and the woman had to proceed with the wedding, conducting the rituals of mourning and vowing to celibacy.51 She would then reside with the husband’s family, and if they adopted a son for the couple, be charged with bringing him up.

• 52 For recent media coverage, see, for example: “Murdered mentally disabled women sold as ‘corpse brid (...)

48Posthumous marriage is still widely practiced in China today, and there is no shortage of news stories involving the trafficking of corpses, or even cases of murder, where mentally disabled women were killed by men posing as matchmakers, to be sold as a corpse in a posthumous marriage.52

• 53 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 371-375.

49Ghost marriages would take on further significance when an heir is posthumously appointed for the deceased, thus integrating the deceased into the continuity of rituals. Not all deceased sons, however, were eligible for posthumous marriage, and there was an age threshold where families would consider it necessary for the deceased child to have an heir and have his line of descent continued. Debates on this age threshold changed from period to period, and different custom surveys report different families with different notions on this age, but the general rule found in the written laws is that depending on the period and code, the threshold would be somewhere between sixteen and twenty.53

• 54 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 377, 392.

50However, surveys of customs reveal that in many families the threshold was much lower, and while a dispute on whether a boy who died at twelve should be given an heir has been reported, and one survey cites a custom of appointing an heir for any son surviving after the age of three or four, a majority of reports puts the threshold around the age of ten.54 If no son survived after this threshold, then that would be a matter for straightforward adoption by the father, not involving posthumous marriages or finding an heir of a grandson’s generation.

• 55 William Jones, The Great Qing Code, Oxford and New York, Clarendon Press - Oxford University Press, (...)
• 56 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 401-409.

52The written law in Ming and Qing times stipulated that when there was no eligible heir for adoption in the same zong, the property should go to daughters, either married or unmarried, if there were any.55 However, a look at cases and custom surveys reveals that at least in Qing and Republican times, this rule was not necessarily followed.56

• 57 Shûzo Shiga, Chûgoku kazokuhô no genri, Tokyo, Sobunsha, 2nd edition, 1975, p. 408-409.

55There are also cases where the funds were used to establish an ancestral trust, or to create a school. While it is known that the Song government (960-1279) was active in confiscating property from families without heirs, the Ming and Qing governments would generally allow lineage members to dispose of the property as they saw fit.57