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Dangerous Women or Women in Danger? Women and Properties of Extinct Households in Late Imperial China

Femmes dangereuses ou femmes en péril ? Les femmes et la propriété des biens de maisons en voie d’extinction en Chine impériale tardive
Sun Jiahong et Luca Gabbiani

Résumés

Au cours de son évolution, la tradition juridique chinoise a produit une série de lois et de règles pour encadrer les cas de successions vacantes. À cela se superposaient les différentes pratiques ou « coutumes » locales. Dans un contexte profondément marqué par un parti pris culturel en faveur des hommes, ce corpus réglementaire et « coutumier » a eu un impact significatif sur l’accès des femmes au droit de propriété. Si le statut social et le rôle joué au sein de la famille permettent d’expliquer en partie les différences observables au cas par cas, dans l’absolu, il était pour ainsi dire impossible pour les femmes d’être traitées sur un pied d’égalité avec les hommes pour ce qui concerne les biens en héritage. Aux yeux de nombreux hommes, les veuves, les filles et les belles-filles représentaient bien souvent un danger pour l’intégrité des biens d’un foyer. Comme le démontrent de nombreuses affaires judiciaires remontant à la dynastie des Qing, ces « femmes dangereuses » – les veuves en particulier – étaient régulièrement confrontées à des pressions familiales de tous ordres, qui pouvaient déboucher sur la précarisation de leur situation matérielle, sinon sur des atteintes à leur intégrité physique. Confrontées à ces « femmes en danger », les autorités ont peu à peu élaboré des réponses sur le plan juridique et plus encore symbolique, afin de leur apporter une forme de protection.

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Notes de l’auteur

This article has been written four-handedly upon a preliminary research by Professor Sun.

Texte intégral

Introduction

1Nowadays in China, if a family does not have male children, it is not regarded as a big problem anymore. With the changes in economic and social conditions, the desire of young Chinese couples to give birth to male children is far less intense than that of their ancestors. More and more people are in fact choosing not to have children at all, in order to enjoy a freer way of life or to avoid the economic and financial burden of having to raise and support them. However, no matter the family, over time, its members are bound to disappear, leading to the division of family possessions through inheritance. In such instances, it may occur that due to the lack of an heir, a family’s properties remain without owner. In this contribution, we will not consider how contemporary Chinese law deals with such instances. Rather, we will seek to explain how similar circumstances were addressed in China’s past, and more specifically during the Qing dynasty (1644-1911). For, if the absolute absence of an heir was, admittedly, a less common feature during the late imperial period, circumstances in which “properties without owners” occurred also existed in those times. But before we start, we would like to make a few observations.

  • 1 One example among many others, here, is Timothy Brook, Jérôme Bourgon, Gregory Blue, Death by a Tho (...)
  • 2 For some insights into this debate, see for example Shūzō Shiga, “Custom as Source of Law in Tradit (...)

2General knowledge of China’s age-long juridical tradition has vastly expanded in the last decades and this advancement has in good part been informed by a comparative approach. In recent years, scholars in the field have tended to set their works on Chinese “traditional” law in a wider framework, linking it to the cultural and mental make-up of the period(s) under scrutiny, thus providing renewed perspectives on China’s imperial state and its legal foundations.1 Nevertheless, some long held views about China’s premodern legal system –one could talk of stereotypes, or even of dogmas– have remained relatively untouched to this day. Among these, the question of knowing whether imperial China’s juridical build-up took full account of so-called “civil” legal matters stands out. Due to the lack of a state-sanctioned corpus of written laws and norms on civil issues, which characterizes the history China’s entire imperial regime, describing the spirit of the legislative process and the evolution of the judicial machinery in this specific domain of the law have turned into topics of heated debates among specialists. In fact, a consensual answer to this question is still pending.2

3In this article, we do not have the pretention to offer an answer. Our goal is to add some elements to the debate and provide some additional food for thought. The general premises upon which rests our approach is based on the following few considerations. First, it should be noted that the amount of material relating to civil matters in imperial China’s past is unevenly distributed in time. As elsewhere in the world, the further we go back in time, the less likely are we to secure access to numerous and homogenous corpora of legal documents, whereas the reverse is true for more recent epochs. Being more numerous, the documentation from recent periods provides historians with opportunities to describe the workings of society and its institutions from a richer, or at least a more pluralistic, point of view. This being said, it is well known that a lack of resources should not be mechanically taken as proof of the non-existence of specific phenomena in a given period of time. Comparisons across time should thus be undertaken while keeping in mind the specificities not only of each time period under scrutiny, but also the amount and type of resources available. It is only under such conditions, in other words by comparing what is comparable, that one may avoid the risk of making simplistic value judgements at the historical level.

4Second, for any given time period, social and institutional phenomena are poised to be observed through the lens of the general and the particular, the ordinary and the extraordinary. In this regard, the field of legal history is no exception. China can boast of a very long history, and even though its institutions and degree of unity have evolved and varied from one dynasty to the next, the state apparatus as a whole has tended to expand over time. Similarly, even though its legal apparatus lacked a full-fledged written civil code –a fact that ought not to be considered as a shortcoming of its legal structure– and even though, at least from a modern civil law standpoint, the degree of institutional involvement in the drafting of legal norms and regulations on civil matters remained, objectively, very limited, it is possible to find in all the regions of the empire sets of deeply entrenched practices, customs, and usages related to the civil dimensions of community life, which never stopped evolving. Therefore, in order to study the history of civil law and justice in premodern China, it is necessary to start from these local practices, customs, and usages. They must be set at the heart of any comparative approach between Western and Chinese legal history.

  • 3 Dorothea Heuschert, “Legal Pluralism in the Qing Empire: Manchu Legislation for the Mongols”, The I (...)

5Third, none of imperial China’s successive polities was ever built on a single ethnic group. At any given time of the country’s long imperial history, the state’s administrative structures governed over an ethnically plural set of populations, with the Mongol and Manchu conquest dynasties of the Yuan (1279-1368) and Qing (1644-1911) being admittedly the most significant examples in this regard. Therefore, when studying China’s long legal tradition, taking into account the possible influence on the general legal structure of the empire of local practices or usages, and of regulations linked to specific ethnic groups, is a necessity. Assessing the extent of such an influence has been on the agenda of legal historians for some time, as the recourse to the notion of legal pluralism to define the legal tradition of the Chinese empire tends to show.3 Evidently, providing a clear-cut picture of the situation at any given time is a difficult task, as it varied from one period to the other. But overlooking the plurality of sources of China’s legal tradition can expose to various forms of criticism, from “sinocentrism” to “cultural particularism”.

  • 4 For a presentation of these reports, see Shūzō Shiga 滋賀秀三, “Chūgoku minshōji shūkan chōsa hōkokurok (...)

6In the light of these three observations, it seems to us that the enterprise on which the late Qing and early Republican authorities embarked during the early decades of the 20th century, aimed at providing modern China with a civil law system emulating those of mainland European countries and Japan, is of utmost importance. In an effort to compile the country’s first civil law code, specialized jurists were put in charge of a country-wide inquiry on customs and usages regarding civil matters. These men, most of whom combined a deep understanding of the empire’s legal traditions with an education in modern law, produced a series of reports on local customs, which testify of their intent to set up bridges between the populations’ customary usages and modern, civil law oriented, legislative action. By their scope and the range of topics included, the results were unprecedented.4 To present-day historians, this unparalleled initiative provides a rather unique window on the legal norms and regulations in use with regard to civil matters during the late imperial period, as well as on the actual workings of the judicial apparatus. Generally speaking, these resources offer a rare opportunity to explore the history of China’s “traditional” civil law, across accustomed time and spatial limitations.

7All this explains why, as readers will probably notice, in our way of tapping these resources, we do not put as much emphasis on specificities linked to space, time, or individual emperors’ reigns, as on sketching out the contours and describing some of the features of what may eventually end up being called late imperial China’s civil law regime. Rather than present a clear-cut picture of its contents and evolution in time, our aim is to shed light on its underlying legislative logic, or spirit, through the analysis of some of its laws and regulations.

8As mentioned at the start, this article will focus on inheritance, and more specifically on cases in which male heirs happened to be lacking. In a first step, we will introduce the notion of “extinct household” (juehu 絕戶), which, in imperial China’s legal glossary, is probably the one closest to that of “property without owner” or “in abeyance”. We will do so relying primarily on state promulgated laws and regulations, in order to sketch out how the authorities approached this issue. We will then turn our attention to the issue of women and their access to inheritance during China’s late imperial period. In a cultural context heavily influenced by values –generally labelled as Confucian– conveying a strong sense of the primacy of men over women, the issue of extinct households and the role and position of women in inheritance appear closely related. In this section, we will propose a picture of how women’s “rights” to property were conceived and how these conceptions were actually implemented in society. We will resort to official provisions, to judicial cases and to examples drawn from the late Qing and early Republican civil custom reports, and center the analysis on the two central female figures in such situations, the widowed wife (simultaneously daughter or sister-in-law) and the orphan daughter (or daughters). In the third and last section, we will highlight the tensions which developed in time around the participation of women –for both wives and daughters– in extinct households’ inheritance. Even though women’s claims to non-male heir successions were supported by some legal provisions, and even more so by local usages, notably through inheritance wills, they were often regarded as a threat to the unity of a family’s properties, thus putting these women in a precarious position. As judicial cases show, at times, such situations could end up in dramatic fashion. Disturbing as they were to the authorities as well as to the local communities, such incidents spurred reactions from the state apparatus, which we will outline in order to wrap up the presentation.

“Properties without Owners” and “Properties of Extinct Households”

9Strictly speaking, the expression “property without owner” (wu zhu caichan 無主財產) does not exist in traditional China’s legal literature, but one can find a similar legal notion, “property of an extinct household” (juehu caichan 絕戶財產). If both notions are somewhat similar –for example in the fact that they imply the necessary distribution of such possessions under certain circumstances–, the latter opens perspectives on some specificities of the Chinese legal tradition and has produced, in time, a series of important legal principles and judicial practices.

10The notion of “extinct household” had at least two implications in the context of late imperial China. One was linked to the fiscal system: the household (hu ) being regarded by the state as the basic fiscal unit, when one such household became extinct due to the lack of a male heir, its fiscal obligations were terminated and it was removed from the national household registration system. The second implication relates to local communities, of which individual households, or families, made up the basic units. As a consequence of the extinction of such a unit due to the lack of a male child, the ritual obligations with regard to the ancestors, among which regular sacrificial offerings, could not be carried on, resulting in the severance of that part of the kin relationship inside the community. Yet, for all its socio-ritual and administrative implications, the extinction of a household also gave rise to unavoidable issues regarding the inheritance of family properties and of family identity, two problems which are, in fact, difficult to dissociate altogether.

  • 5 On the notion of “custom” in the Chinese traditional context, see Jérôme Bourgon, “‘Uncivil dialogu (...)
  • 6 See Shūzō Shiga 滋賀秀三, Chūgoku kazokuhō no genri 中国家族法の原理 (Principles of Chinese Family Law), Tōkyō, (...)

11It may be first noted that, even though in traditional China’s legal construct such divisions as civil law, criminal law, administrative law or commercial law did not exist, a fact historians have long been aware of, a certain number of statutory legal norms were nevertheless promulgated in the successive dynastic codes in order to deal with household possessions. Family matters, including of course inheritance, be it of a family blood line or of material possessions, were long considered private matters in which state interference needed be minimal, thus, the main incentive for the authorities to elaborate written rules on successions was of course linked to the necessity to stabilize the tax base and safeguard social order. But in order to secure the authority and effectiveness of these norms, local communities were allowed to adapt them to local conditions. From there derived a series of practices –if not “customs” in the strict sense5– on inheritance, which could vary significantly on a regional basis.6

12Historical materials dating back to the Tang dynasty (CE 618-907) and the Song dynasty (CE 960-1279) show that when the extinction of a household occurred, the way an heir could be chosen by the extended family had to comply with official etiquette and legal rules. For example, the laws of the Song code provided:

  • 7 According to this law, widowed daughters could receive only half of the possessions given to unmarr (...)
  • 8 One fourth of the possessions.
  • 9 See anonymous, Ming gong shupan qingmingji 名公書判清明集, reedition, Beijing, Zhonghua shuju, 2002, p. 28 (...)

According to the law: In all cases of an extinct household establishing an [adopted] son or [adopted] grandson as an heir to perpetuate the line –that is to say when the elders among the close parents instruct such an individual to take up the succession–, regarding the properties, if the household comprises only unmarried daughters (zaishi nü 在室女), the [newly appointed heir] should be given one fourth of the household properties. If it also counts widowed daughters (guizong nü 歸宗女), he shall be given one fifth of the household properties. The four fifths [of the possessions] that unmarried and widowed daughters may get [in total] shall be given out to them according to the law on extinguished households.7 If there are only widowed daughters, apart from giving his share [to the appointed heir]8 according to the law on extinguished households, half of the remaining possessions will be given to the daughters and the rest shall be appropriated by the state. If there are only married daughters, the household’s entire possessions shall be divided into three parts, two being distributed evenly among the married daughters and the appointed heir, while the last shall be appropriated by the state. If there are neither unmarried, nor widowed or married daughters, [the appointed heir] will receive one third of the possessions up to the amount of 3,000 strings of cash. [If the properties] are worth 20,000 strings of cash, 2,000 strings shall be added [to the part of the appointed heir].9

準法諸已絕之家而立繼絕子孫謂近親尊長命繼者於絕家財產若只有在室諸女即以全戶四分之壹給之。若又有歸宗諸女,給五分之壹。其在室並歸宗女,即以所得四分,依戶絕法給之。止有歸宗諸女,依戶絕法給外,即以其余減半給之,余沒官。止有出嫁諸女者,即以全戶三分為率,以二分與出嫁女均給,壹分沒官。若無在室、歸宗、出嫁諸女,即以全戶三分給壹,並至三千貫止;即及二萬貫,增給二千貫.

13This passage shows that in Song times, the law offered the possibility for close relatives of a household lacking a male heir to designate a male successor for this household from outside the direct patrilineal line. It also offers a very detailed account of the distinctions made among the women of the extinguished household regarding the inheritance of its properties. Three distinct cases are presented here: that of the unmarried daughter, that of the widowed daughter who returned to her parents’ household, and that of the married daughter. For all three cases, the text provides legal guidance on the share of the possessions each should receive. Interestingly, it also shows that, in such circumstances, part of the inheritance was to be turned over to the state, implying a sort of predatory stance from the part of the government toward “private” household properties.

14Within families, in turn, the approach was premised on traditional social and ritual values, which regarded women as inferior to men –the locus classicus in this instance being nan zun nü bei (男尊女卑), which can be rendered as “men are esteemed, whereas women are subaltern”. In line with this view, the ratio of male and female inheritance was different, the men’s share being systematically greater than that of women. But as the above Song-period regulation testifies, when parents did not have male sons, female rights to the properties could not be completely ignored, irrespectively of the concerned woman’s (or women’s) social status, that is, whether she was married, not married, or widowed and had returned to her parents’ home.

  • 10 See Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 10-13.

15In addition, even if Song law stipulated that the government was to appropriate parts of the possessions of extinguished households, the extent to which it actually did so is difficult to establish. Donations were a convenient and legal means through which families and local communities could seek to thwart a possible attack by state authorities on the properties of households facing extinction. Such transfers of possessions were in fact not uncommon, and, among the possible beneficiaries, one finds daughters, close or distant relatives, temples and other religious institutions, and even friends.10 One can surmise that this kind of wealth transfer was difficult to control for the government. And even if it may have been aware of the existence of such practices, from an administrative point of view, the sheer cost of trying to restrain them would certainly have proven too high, not to speak of imposing an actual ban on them.

  • 11 See Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, (...)

16Judging from the above-mentioned legal provision, the state’s framing of the distribution of an extinct household’s possessions imposed limits on the possible shares to be received either by the appointed heir or the daughters. It seems that the maximum limit was set at 3,000 strings of copper coins. The amount could eventually rise up to 5,000 strings of cash in the case of wealthy families going extinct. For individual families, the actual levels of wealth implied by these limits (9,000 strings and up to, or even more than, 20,000 strings of cash) seem quite high: at the time, it is doubtful that a significant part of the empire’s households enjoyed a socio-economic situation that allowed them to control possessions varying in value from 9,000 to up to 20,000 strings of cash. Therefore, by framing legally the way the inheritance of extinguished households was to be distributed, the Song authorities’ main purpose was most probably focused on maintaining social order and economic equity, rather than on simply laying hands on the wealth of families and local communities.11

  • 12 See for example Jianguo Dai, 戴建國, Tang Song biange shiqide falü yu shehui 唐宋變革時期的法律與社會 (Law and Soc (...)

17In the past, many works devoted to the legal dimension of the history of private goods and possessions in the Chinese world have concentrated on the Tang and Song eras (7th to 13th centuries). By and large, most of these studies have revolved around administrative sources such as the Tang Code (Tanglü shuyi 唐律疏議), the Song Code (Song xingtong 宋刑統), and the Draft administrative compendium of the Song dynasty (Song huiyao jigao 宋會要輯稿), as well as on other resources, always of an official nature.12 These research efforts, focusing on a specific topic, generally approach only a certain historical period or dynasty, and do not venture into comparing the long-term evolutions of Chinese legal history from the perspective of their objects of study. This is mainly due to the fact that the documentation preserved today allowing to shed light on the general legal framework of the Tang and Song dynasties is mainly made up of administrative sources. These do not allow to grasp the grass-root legal practices of the times and the civil “customs” from which the former derived. Thus, it is difficult for scholars studying these periods to describe the actual workings of the legal build-up and to extrapolate civil customs from the contents of written legal provisions.

  • 13 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999 (...)

18Regrettably, this has led some scholars to regard codified laws as mirror images of the actual inner workings of society.13 Fortunately, the variety of resources of a legal nature dating back to the late imperial period –i.e. the Ming (1368-1644) and Qing dynasties (1644-1911)– and to the early Republican era (1912-1937) allow to overcome this hindrance. They open up perspectives on the diversity of legal acts and on the modus operandi of the judicial apparatus in its relation with communities and individuals.

  • 14 Minshi daquan, Shanghai, Shanghai shudian Press, 2002, especially chapters 5-6.
  • 15 See Zhengzhen Du 杜正貞, Jindai shanqu de xiguan, qiyue yu quanli: Longquan sifa dang’an de shehuishi (...)

19What these sources tend to show is that legal practice was far more complex and more likely to change than the legal norm. The records of civil customs investigations conducted in the late Qing dynasty and the early Republic in order to compile the Civil Code shed direct light on the variety of legal cultures which developed in China over time, due to the sheer size of the country. Among different provinces, counties and cities, or even between villages and towns, there existed many different rules which framed the transmission of status inside the family or the inheritance and distribution of assets.14 One important aspect of this body of rules is that, even though it was not completely consistent with official statutory laws, it was resorted to unless the parties filed a lawsuit with the government. As some heated debates among late imperial and early republican jurists tend to show, a good number of these rules which were applied in the Song dynasty, in particular those linked to the distribution of household goods, remained in use up until the late nineteenth and early twentieth centuries.15

20Similar materials dating back to the Tang and Song dynasties are very few. It is thus much more difficult to assess the extent to which community-based regulations about household properties allocation actually differed from the official legislation in those earlier periods. However, it seems reasonable to keep in mind that, when perusing the official legal codes of Tang and Song times in order to study legal and social issues, a cautious stance should be adopted as to the actual effectiveness of the written law.

21In what follows, we would like to explore a dimension, which has received little attention in the works on the extinction of households in Chinese imperial law mentioned above: the rights of female members to parts of the family’s assets. Three types of historical materials will mainly be put to use, all dating back to the Qing dynasty and the early Republican era. First, we will consider the state’s official codes, namely the various editions of the Great Qing Code (Da Qing lüli 大清律例), and the work by the famous jurist Xue Yunsheng 薛允升 (1820-1901) called Doubts remaining upon reading the substatutes (Du li cun yi 讀例存疑), which provides an analytical and critical view of the contents of Qing-era official legislation. We will also make use of the items included in the Compendium of civil customs of China (Zhongguo minshi xiguan daquan 中國民事習慣大全). First published in 1924, this repository was the result of the late Qing and early Republican large-scale civil custom investigations mentioned above, conducted in the wake of the effort to compile China’s first modern civil code. It includes a large amount of the country’s most colorful “civil custom” norms. Finally, we will also turn to Ming and Qing dynasty case collections. Reflecting the actual work of the judicial apparatus, these were left behind for posterity by many judicial officials. They provide a large sample of judicial records in which one can find many cases of disputes over household properties.

Women’s Rights to Extinct Household Properties

  • 16 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, “Illegally Establishi (...)

22Ming and Qing dynasty legislation stated that the legitimate heir of a family was the eldest son of the first official wife (zhengqi 正妻). In case the first official wife reached the age of 50 without having borne a male child, the husband was allowed to designate as his heir the eldest of his sons born to a secondary wife or to a concubine. In case none of the wives or concubines had given birth to a male child, the law provided for the selection of an heir among the young boys belonging to the same clan. In principle, the adoption of a boy from another clan was legally forbidden, to avoid the transmission of the household’s properties to a clan or family having a different surname. An exception to this rule, however, stated that a boy bearing a different surname who had been abandoned by his parents under the age of three could be adopted into a non-related family, and thus change his surname. He could not, however, be immediately designated as heir to his new household.16

  • 17 Tongzhi tiaoge jiaozhu 通制條格校注, reedition annotated by Linggui Fang 方齡貴, Beijing, Zhonghua publishin (...)
  • 18 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 6, p. 34.

23Spanning the late nineteenth and early twentieth centuries, the civil customs’ survey shows that apart from the above-mentioned limited official legal norms, Chinese families could actually resort to various schemes in order to perpetuate the family bloodline. One such expedient, for example, implied that the son-less parents of a married daughter draw up a written agreement with their son-in-law stipulating their right to choose one son among those eventually borne by their daughter (i.e. one of their grandsons), whom they would adopt in order to have him inherit the maternal grandparents’ bloodline. This practice was quite common during the Song and Yuan dynasties, and was by and large accepted by the authorities. In the Yuan dynasty opus called Tongzhi tiaoge 通制條格, for example, were included a series of regulations and judicial records of this kind.17 In addition, the civil custom investigation records of Tongling county (銅陵), in Anhui province, show that in the late Qing period, it was common usage for local families lacking a son to purchase and adopt a boy under three years of age, thus changing his surname, in order to make him the family’s future successor.18 This way of doing things is quite in line with the official regulations mentioned above, but for one clear difference: in Tongling in fact, it seems that the young boys who were bought to become heirs could be designated as such almost immediately after their purchase, whereas official regulations provided that the family had to wait for an –undetermined– lapse of time before the designation. Whether intentionally or not, the state authorities did not set a clear timeline for the establishment of an heir in such circumstances. This points to a lack of support on their side for the practice of buying boys from a different clan. From a legal point of view, this lukewarm posture may well have been linked to the effective limitations the practice imposed on the role of the family or the clan in the selection process of an adequate heir.

  • 19 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 6.

24Another example of a “civil custom” in such instances is provided in the case of Hui’an county (惠安), in Fujian province. In this locale, married couples without children would first purchase a young girl from outside their clan. They would then propose the latter as a child-bride to an unmarried man inside their own family, regardless of his position in the order of inheritance. Upon his acceptance to marry the girl, he would become the family’s heir and inherit its properties.19

25Obviously, the logic underlying such usages was closely related to patriarchy. But even so, the existence of women could not be completely obliterated when considering the issue of the permanence of a family’s bloodline, especially in the context of a household’s imminent or actual extinction. In what follows we will examine how women’s property rights were taken into consideration in such circumstances with regard to their statuses as wives or daughters.

Wives

  • 20 This legal term first appeared in the Yuan dianzhang 元典章 (Collected Laws and Institutions of the Yu (...)

26In traditional China, women could have various marital statuses, either as primary or secondary wives, or as concubines. Children born of a same man would address the wives of their father using different titles, depending on whether they had borne them or not. All were linked to the notion of “mother”, such as senior mother (dimu 嫡母), junior mother (shumu 庶母), concubine mother (cimu 慈母), foster mother (yangmu 養母), step-mother (jimu 繼母), divorced mother (chumu 出母), remarried mother (jiamu 嫁母), and nursing mother (rumu 乳母). Taken together, these designations were referred to as the “eight mothers” (八母 ba mu).20 As far as family politics were concerned, the primary wife and senior mother enjoyed the highest status because of her close links to her husband. Thus, in the absence of male descendants, the primary wife often played a central role in the selection of an heir and in the securing of a share of the family’s assets to cover for her and her husband’s needs until their death.

  • 21 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-2.

27In the event of the extinction of a household, what rights did the wife have over the family properties after her husband’s death? One problem lies in the fact that very little is said about such a situation in the Qing Code. In principle, after the death of a husband, the wife could inherit the latter’s share of the properties as long as she did not remarry and continued to live in her husband’s family. If the wife were to remarry, not only would she lose her husband’s share, but also the dowry she had brought into the marriage relationship.21 Obviously, this legal provision did not encourage widowed wives to leave their late husbands’ families, since their access to the properties was subordinated to their remaining with their in-laws. Stricto sensu, this was tantamount to restricting women’s rights to property. This legislation was embedded in a wider framework of moral propriety, which expected of a widow that she remain in her late husband’s family even in the absence of any household properties to be inherited.

  • 22 Patricia Buckley Ebrey, The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Per (...)
  • 23 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999 (...)

28As Patricia Ebrey has shown, during the Song dynasty imperial authorities started to pay special attention to widowed women, officially endorsing conservative chastity.22 This specific phenomenon is also mentioned by Kathryn Bernhardt, who actually coined the expression “chastity worship” to highlight the special care given to women in courts of justice of the late imperial period. Bernhardt considers that the notion of widow chastity gained considerable moral value during the late Ming and early Qing dynasties, giving rise to a strong normative force, which led public officials to pay increased attention to the needs of virtuous widows, be it in their life time, for example by expanding their decision-making power in the process of selection of an heir, or after their death, by emphasizing their right to ancestral worship, to be provided by the selected heir. In such instances, according to Bernhardt, the heir would not only inherit the dead husband’s share of the assets but also the one passed down by his chaste widow.23

  • 24 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999 (...)

29Whether the official endorsement of chastity worship starting from the Song dynasty should be regarded as a mark of an accrued attention given to women by state authorities is actually open to debate, and so is the idea that it became a unique legal phenomenon in the late imperial period. In fact, Bernhardt admits that not all officials at the time attached great importance, in judicial practice, to the establishment of a female inheritance deed. More significantly, she also acknowledges that even in instances where such a deed did exist, the sources do not allow to consider that the male-driven succession process had actually been replaced by a form of succession centered on the widow.24

  • 25 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-01, 78- (...)
  • 26 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 5-11.

30A childless widow posed yet another set of issues. Could she rightfully choose an heir in order to maintain the ritual duties to the family line of her dead husband? And could she inherit the family properties? According to the stipulations of the Qing Code cited earlier, neither of these “rights” was clearly drawn out in imperial legislation. If widowed women ever wanted to exercise such rights, two major conditions had to be met. First, as we have seen, the widow needed to remain in her late husband’s household and not remarry. Second, male members of the husband’s family were to be included in the heir selection process, possibly even preside over it. Moreover, before being officially established as heir to the deceased husband, the individual selected was to be approved during a general family meeting, which the other male members of the family would attend.25 Interestingly, the civil customs surveys of the late nineteenth and early twentieth centuries show that a similar pattern was prevalent in most of the empire’s provinces.26

31In other words, no matter how much the late imperial authorities may have respected the opinions of women in the process of inheritance, or how much they may have cared for the livelihood as well as postmortem fate of widows, the whole process of selecting an heir was always carried out in the name of the continuity of the deceased male’s family line. The issue of the widowed wives’ rights to the extinct household’s properties was thus systematically overshadowed by that of the continuity of the male family line. As a result, all the assets, including the dowry brought by women from their parents’ families, were at least nominally to remain within the control of the deceased husband’s family. In such circumstances, putting the emphasis on the role played by widows in the heir selection process should not lead to considering that in this way women actually gained the right to make decisions independently of their in-law families’ male members. In such light, chastity worship is thus better defined as a means devised to ensure a form of livelihood to widowed women in a deeply patriarchal context of property rights and inheritance legislation.

  • 27 Yan passed the third and last level of the examination system, which awarded the title of jinshi ((...)
  • 28 Junyan Yan, Mengshuizhai cundu 盟水齋存牘, 1631 preface of the author, Beijing reedition, Zhongguo zheng (...)

32Even though the Ming and Qing legal and administrative codes advocated that widows should continue to live in their husbands’ families, in practice, their remarriage was a relatively common feature. One such case was recorded in an official handbook by Yan Junyan 顏俊彥, who was active as imperial official between 1628 and 1666.27 Yan’s record states that a man named Lu Weichao 盧惟超 was married twice, but neither of his wives ever bore him a child. His household was thus running the risk of going extinct. Lu Weichao decided to adopt a boy in order to maintain his family blood line and had him renamed Lu Yinglong 盧應龍. After Lu Weichao passed away, Ms. Deng 鄧氏, his second wife, chose to remarry rather than continue to live as a widow in the Lu family. Before her remarriage, she sold Lu Weichao’s house to her neighbor, Zhang Xingxiang 張興祥. Upon hearing this, the leaders of the Lu family petitioned the local authorities asking them to invalidate the sale, so as to protect the interests of the deceased, Lu Weichao, and of his heir, Lu Yinglong. As the local official in charge, Yan Junyan learned that the house had already been demolished. He thus ordered Zhang Xingxiang to pay thirty-two ounces of silver as compensation to Lu Yinglong, in order for him to meet his obligations as ritual heir of Lu Weichao and to cover for his ordinary living needs. Yan’s decision was later fully supported by his superior at the provincial level. In the documents the two officials wrote about this case, both severely reprimanded Zhang Xingxiang for attempting to elicit from Ms. Deng part of the properties of the Lu family.28 Ms. Deng, on the other hand, was only lightly scolded by the two men, despite her role in the whole affair. This tends to show that the remarriage of widowed women was common at the time, regardless of the actual moral expectations set forth in the official legislation.

Daughters

33In China’s late imperial context, one can distinguish three different statuses for daughters: “daughters in room”, which refers to unmarried daughters; “married daughters”; and “returning daughters”, i.e. divorced women who returned to their parents’ household. Generally speaking, the legal status of a returning daughter was by and large similar to that of a daughter in room, apart from a possible age difference.

  • 29 See above paragraph 12 the passage translated from the Ming gong shupan qingmingji.

34As we have mentioned above, during the Song dynasty, statutorily, a daughter could not inherit more than 50% of the whole parental patrimony, moreover with a maximum limit of 3,000 or 5,000 strings of copper cash.29 The same provision provided the possibility for the government to appropriate part of the assets. Under the Ming and Qing dynasties, the legislation also included legal norms framing the rights of daughters to inherit properties and the basic underlying principle was somewhat similar to that found in the Song legislation. The following article, found in the Qing Code but which actually dates back to the Ming dynasty, clearly stipulates that a biological daughter, whether “in room” or married, had the right to inherit the parents’ properties:

  • 30 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 88, substatute 88-2.

With regard to the assets of an extinct household, if in the whole patrilineal clan there is no possible [male] heir, the daughters are to inherit. If there is no daughter, the local official shall petition his hierarchy and propose that the assets be taken over [by the state]”.30

一、戶絶財産果無同宗應繼之人所有親女承受。無女者,聽地方官詳明上司,酌撥充公.

  • 31 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 88, substatute 88-2.
  • 32 Wenjun Xu, 許文濬, Tajingting andu 塔景亭案牘, 1924 author preface, Beijing reedition, Beijing daxue chuban (...)
  • 33 The information presented in this section is drawn from Minshi daquan, Shanghai, Shanghai shudian p (...)

35This legal provision draws a line of inheritance in which a daughter comes after any eligible male from the patrilineal clan. Contrary to the provision in use in the Song dynasty, the authorities could consider appropriating the assets only in the case of the lack of a daughter. As Xue Yunsheng suggests in a comment about this article, in such circumstances, implementing the confiscation was far from an easy task.31 Xue’s opinion reflected a common sense among officials at that time. In 1912, a local magistrate in Shanghai, discussing women’s inheritance rights to household properties, considered that daughters: “[…] can naturally inherit the extinct household’s properties.” Aware of some of the legal principles of the Western tradition in this respect, he added: “In line with Western customs, all the household properties should be distributed to the closest relatives”.32 In the mind of this early twentieth century Chinese legal specialist, a daughter’s right to inherit her parents’ household assets was similarly recognized by the Eastern and Western legal traditions, and was perfectly justified. In practice however, the rich evidence collected during the early 20th century civil customs’ investigations shows that even at that time, a daughter’s actual right to inherit, and the share of the assets she could expect to receive, varied from place to place. We will illustrate this point with the example of the seventeen counties of Heilongjiang province (黑龍江).33

36In this instance, the question asked in the survey was “Do married and unmarried women have the right to inherit an extinct household’s properties?” (yizi weizi zhi nü you wu chengshou juechan zhi quanli 已字未字之女有無承受絕產之權利). Such a phrasing tends to show that no a priori distinction was made between married and unmarried women and that they enjoyed an equivalent legal status. The table below sums up the information provided by the territorial units which replied to the survey.

Table 1. Main categories of inheritance rights for daughters drawn from Heilongjiang province’s customs investigation, early 20th century

Type

Territorial unit

Quantity

Based on the will

Longjiang county, Lanxi county, Mulan county, Suiling county, Longzhen county, Suihua county

6

Right of priority

Buxi temporary bureau, Qinggang county, Mulan county, Hailun county, Bayan county, Tangyuan county

6

Preferential share

Lanxi county, Dayi county, Qidong county, Nehe county

4

Maximum share of 50%

Tailai county

1

No clear specifications

Longjiang county, Suidong temporary bureau, Jialing county, Longzhen county, Suihua county, Tongbei county

6

Source: Zhongguo minshi xiguan daquan, chapter 5, p. 10-12.

37A first aspect to underline is that six out of the seventeen administrative units explicitly recognized the validity of an inheritance will. In other words, in case of a household going extinct, its assets would be distributed according to the protocol of the will. Daughters’ rights, when included in the latter, would thus be upheld. For the counties which did not mention the question of the will, three situations can be delineated: a right of priority over the assets for daughters, their access to inheritance with a preferential share, and their access to the inheritance with an upper limit of 50% of the total value of the assets.

38In all, two-thirds of the territorial units investigated (11 out of 17, equivalent to 64%) clearly upheld the right of daughters to inherit the household properties of their parents. In fact, when the information is provided, it appears that the lowest share of all assets a daughter could inherit amounted to 50%. Of the six units which did not specify a ratio –less than 36% of the total–, four belong to the group upholding the validity of a will. We can fairly assume that in such cases, too, daughters would gain access to at least parts –if not all– of the assets in the wake of their parents disappearance.

39The records also point to other individuals or organizations who could benefit from the succession to an extinct household’s properties. These include ancestral halls, family relatives, members of the clergy, such as lamas, monks, and nuns, as well as temples or other social groups. In the absence of a will, the decision to allocate parts of the assets to such potential beneficiaries was generally made during a family meeting. Although these “outsiders” may have represented, at times, serious competitors for access to household properties, overall, the possibility for daughters, whether married or not, to inherit still ran quite high.

40A comparison of the legal provisions of the Qing Code with the information disclosed in these reports allows to point out two noteworthy aspects. First, notwithstanding the fact that the statutory order placed an agnate nephew well ahead of a daughter in the line of succession, in practice, instituting a nephew as heir seems to have proved very difficult. Selecting a suitable boy from the same clan (i.e. sharing agnate blood and the same patronym) to stand as ritual heir to a potentially extinct household was a relatively straightforward task –ordinarily, a reunion of the male members of the extended family would achieve such a goal through discussion–, but the probability for a nephew to inherit the extinct household’s properties was actually lower than that of the latter’s daughter(s).

41Second, whereas the written law clearly stipulated that in the absence of suitable successors (whether nephew, boy from the same clan, or daughter), an extinct household’s properties could be appropriated by the state, the survey reports never allude to the fact, not to mention the actual share of the properties the state could be allowed to appropriate for itself. We are thus left to surmise that in case of absence of any possible heir, the assets were either retrieved by other distant relatives or donated to members of the clergy or to religious institutions before the government could exert its right. If this were the case, it would validate Xue Yunsheng’s comment above, and show that, in a context devoid of judicial precedents and of civil customary materials to support them, the legal provisions found in the Tang and Song codes about the right of the government to appropriate as much as half of an extinct household’s properties should not be taken for granted.

  • 34 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 15.
  • 35 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 15.

42The above elaborations should not lead us to consider that daughters’ rights to their family’s assets were upheld all over China’s territory as they were in the administrative units of Heilongjiang province. A good share of evidence dating back to the Qing dynasty shows that in many places around the country, local customs did not qualify female children as eligible inheritors of their parents. In Qingyuan county, Zhili province (清苑, 直隸), for example, the assets of an extinct household were generally seized by the leaders of the extended family, the daughters of the deceased having generally no right to the inheritance.34 In Hubei province (湖北), the customary usage in Zhushan (竹山), Jingshan (京山), Tongshan (銅山), and Gucheng (谷城) counties denied to children the right to inherit all their parents’ properties, but they were allowed to allocate some part of the landed inheritance to cover for a daughter’s dowry under the label of “remembrance fields” (遺念田 yinian tian). In Hanyang (漢陽), Macheng (麻城), and Wufeng (五峰) counties, always in Hubei province, an unmarried daughter had no rights over the succession of her parents, but a married daughter could access parts of, or even the whole, inheritance if her husband –i.e. the son-in-law– had previously agreed to live on his in-laws’ estate. One last example from Hubei province comes from Qianjiang county (潛江). There, the daughter could inherit all the properties, but had to monetarily compensate her eventual agnate cousins –the agnate nephews of her late father.35

  • 36 For example, in Heilongjiang province, Longjiang county 龍江縣, Lanxi county 蘭西縣, Mulan County 木蘭縣, Su (...)

43Another striking feature of the customs’ reports is the absence, in all but those submitted by Heilongjiang province, of any clear mention of the legal status of wills. In China’s late imperial context, it was generally agreed that such a document, when drafted pre-mortem, was to be upheld and protected by the law in case of dispute, a feature which worked to impede opportunities for outsiders to compete for an extinct household’s properties.36 In such a framework, it seems natural that son-less parents faced with the prospect of their assets being seized by the government would choose to draft a will designating a daughter as inheritor, even though this de facto tilting towards intra-family female inheritance was inconsistent with some provisions of the written law.

  • 37 Philip Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared, Stanfo (...)

44Researchers have pondered for some time now on the inconsistency between the law, as it was written and promulgated, and local customs relating to civil matters in China’s late imperial context. Philip Huang and Kathryn Bernhardt, for example, have argued that the distance between the law and actual judicial decisions, or “civil customs”, delineated an intermediary space between the state and local communities in which legal norms sanctioned by the former were mediated in their actual application by de facto social practice. Influential in the academic field for some time, their point of view seriously called into question the role and impact of the imperial state and of its administrative and legal structure in implementing actual control over society.37 We do not concur with this interpretation. A quick foray into the art of Chinese traditional painting will help convey the point at stake here.

  • 38 This is labelled as liu bai (留白), or “leaving blanks,” in traditional Chinese treatises on painting (...)

45Artists of the past in China were often keen on leaving parts of the canvas untouched as a means to express the wanted artistic effect.38 Rarely did they spread paint over the entire canvas. In a way, the legislators of imperial China’s age long legal tradition worked in a similar way. The vast majority of the laws they wrote and codified in time were devised to penalize what was regarded as criminal behavior, so that the part of the canvas devoted to civil matters was largely left blank. All through the 20th century, up to Huang and Bernhardt’s assessments, this peculiarity has been generally considered as a flaw of China’s premodern legal regime. But when one considers the degree of sophistication of its groundings and that of the codified criminal laws it produced over the ages, one cannot but feel that leaving aside civil matters, to name just this field of modern law, was more than a mishap. In the language of the law of those times, these issues were considered to be “trivial things” (xishi 細事), best left to be dealt with by local communities themselves, eventually under the mediation of local state authorities. They stood outside of the realm of what legislators and statesmen considered to be the necessary corpus of the law, the goal of which was to distinguish criminal from non-criminal behavior, in the hope of maintaining order and stability inside society through the strict punishment of the former.

  • 39 Among the most well-known repositories of local judicial archives of the Qing are those of Ba count (...)
  • 40 See Xiaoye Zhang, “Legitimate but Illegal: Case Studies of Civil Justice in the Ming and Qing Dynas (...)

46If we adopt this point of view, then what imperial China’s lawmakers did, as far as civil matters were concerned, was to leave extra room –or blanks– for the development of “customs”. As long as local practices and usages in such issues as marriage, debt, real estate transactions, inheritance, etc., did not openly go against the authority of official statutory laws, the government would not interfere actively or take steps to ban them. But when disputes arose, local magistrates did intervene. In fact, as the large corpus of local judicial archives and judicial casebooks dating back to the Ming and Qing dynasties shows, most of the workload of magistrates administering local territorial units was precisely devoted to such “trivial matters”.39 Considering the non-criminal nature of the latter and the criminal dimension of the legal codes, it is not surprising that in such instances officials would seldom adjudicate according to provisions of statutory law. Rather, they would base their search for a suitable solution on their own common sense and on the local usages, or ways of doing, that could be documented in and by the community.40

  • 41 A typical example is that of divorce and the custody of children. In farming villages of the South (...)

47This type of situation is not limited to China’s past. In some regions of the country today, a hiatus between official norms and their everyday application can still be observed, especially in rural communities, where the strict expression of legal norms can, at times, be impeded by practices deemed relevant by the local population.41 But should manifestations of the sort be considered only through the lens of the state’s lack of control and inability to implement legal powers? From an historical point of view, in other words when analyzing a context antedating the introduction of the modern notion of the “rule of law”, the question appears more complex.

  • 42 See Susumu Fuma 夫馬進, Chūgoku soshō shakaishi no kenkyū 中国訴訟社会史の研究 (A Study in the Social History of (...)
  • 43 Paul Katz, Divine Justice. Religion and the Development of Legal Culture, London and New York, Rout (...)

48Late imperial China’s society, like most if not all societies at the time, was a contentious one.42 If state justice was possibly the main recourse in criminal matters –this is at least the image conveyed by the imperial judicial records–, when “trivial things” were concerned, it was but one of the options. Mediation could be found inside the community, through its influential members, its elders or associative groups, such as guilds, linages or clans. Religion was also an alternative –in criminal affairs as well–, through the intervention of clerical figures or through judicial rituals carried out in temples.43 Justice as a practice, and possibly as a notion, was thus much more fluid than what we today generally see as a state prerogative closely related to its monopoly on violence. Considering this fluidity as a flaw is tantamount to imposing a contemporary reading on an historical phenomenon based on different principles.

  • 44 Among others, the various scholarly works of the late Qing jurist Yunsheng Xue 薛允升 (1820-1901) prov (...)

49Late imperial China’s multiform legal regime worked for decades and over centuries, a fact which demonstrates that it served its purpose. The countless transformations it went through testify to the flaws which were identified over time and to its highly evolutive nature, which allowed for it to fit over the longue durée with the society and political regime it was an emanation of.44 The process of rendering justice, in this framework, was built around a judicial continuum, in which the distinction between the state and society were partly blurred in matters of a non-criminal nature, and where local communities, through their representatives, were called into play and could take an active role. Observed through the contemporary lens of what ought to constitute a rational legal regime, such a system may well entail a downgrading of the role of state authorities. But taken as a whole and considered through an historical lens, it seems to us that it provides, more importantly, an interesting perspective on the degree of “judicial” maturity of the society and political structure which devised it. In this regard, the late Chinese empire offers a telling example –notwithstanding its geographic span and socio-ethnic diversity, two factors which put serious limits on any attempt at generalizing.

  • 45 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999 (...)

50To conclude this section, we will consider one last practical case in order to sum up the information gathered. The case is that of a deceased husband having left behind a widow and a daughter. The question raised, in this instance, is whether there were differences in terms of rights of succession between the widow and the daughter. Based on what has been highlighted above, we know that following the husband’s death, if the wife did not choose to remarry and continued to live in her husband’s family, she would be qualified to inherit the assets. Yet, her rights to dispose of them would be monitored and restrained by her late husband’s male kin. The daughter, whether married or not, would not be in a position to challenge her mother’s inheritance rights. She could inherit only if both her parents were deceased and no agnate nephew existed in the patrilinear family.45 But, with her mother still alive, a part of the inheritance could be set a part to make up for her dowry, if she was still unmarried. A married daughter, on the other hand, could eventually gain access to the assets if she and her husband decided to live with her widowed mother on the late father’s estate. If the father had drawn a will before his death, the division of his properties among his widow and his daughter (whether married or not) would have to be dealt with in accordance with the will.

Dangerous Women or Women in Danger?

  • 46 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 4. The counties listed as perp (...)

51In the early twentieth century, several counties of Shaanxi province (陝西) reported the existence of a peculiar inheritance ritual called “head bassin” (dingpen 頂盆). If a son-less man died without having instituted an heir, a family meeting would be set up in order to select a suitable one from among the eligible agnate males of the same linage. During the funeral ceremony, the selected heir would appear holding on top of his head a basin containing ashes. As the coffin of the deceased was carried out of the house, he was to smash the basin on the ground in public, a gesture which confirmed to all that he had been made the ritual inheritor.46

  • 47 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 4
  • 48 Xueshun Hu 胡學醇, Wenxin yi yu 問心一隅, 1851 preface, p. 41a.

52In China as elsewhere, inheritance and succession have always been matters of family line, while at the same time including a strong patrimonial dimension. In spite of the centrality of kinship and etiquette in the late imperial context, seldom did individuals only care about the perpetuation of the family blood line without giving any consideration to material assets. Another local usage from Shaanxi province illustrates this fact. As the record says, in Weinan county (渭南縣) no male member of the family of an indebted extinct household would ever consider being instituted as its heir, even nominally. In such instances, when the coffin of the deceased was carried out of the house, the basin with the ashes would simply be placed on top of it, indicating that the deceased had no offspring. Such a household would probably go effectively extinct.47 Conversely, when a household on the verge of extinction could boast some wealth, the selection of an heir could turn into a form of competition because of the interest the assets aroused among the family and kin. In the legal terminology of the times, such a situation was generally described as “causing disorder in the clan” (luanzong 亂宗), with the idea that those rushing ahead to contend to others the status of heir were “[…] fools […] actually fighting for the real estate assets”.48

  • 49 In imperial China, the traditional social expectations towards women were subsumed in the “Three Su (...)

53In such a competitive environment, and with a legal framework which, by and large, lacked positive checks establishing a clear status for widows and daughters, succession and inheritance could turn out to be serious challenges to women. In-laws, for example, would commonly consider that the wife constituted a potential threat for a couple’s assets, even if during the marriage, the couple had taken steps to distinguish its own assets from those of the husband’s larger family. In the eyes of her husband’s male kin, a widow could always by suspected of wanting to transfer part, if not all, of the properties to her own family. She could also decide to sell them off, in parts or in totality, or bring about their devaluation through inefficient management. In case an heir had been appointed before the husband’s death, nothing could ensure that an harmonious relationship would prevail between the two, especially if the widow considered it her right to conduct the education of the heir. Daughters did not fare much better, as we have seen, and marriage possibly made the situation even more difficult. Due to the traditional subordination of women to men in imperial China,49 marital union traditionally implied that a woman integrated a new family and thus surrendered all rights to partake in her own parents’ succession and meddle in her original family’s affairs.

  • 50 Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, (...)

54In the following pages, we will analyze a series of three legal cases drawn from an eighteenth century casebook which records the everyday experience of an imperial official named Xu Shilin 徐士林 (1684-1741), who served as magistrate of various administrative units of Anhui province during the 1730s.50 As we will see, they provide meaningful insights on the awkward dialectics of widowhood in Qing China, a status which left women in an uncomfortable in-between position with regard to succession and inheritance, framed by inward vulnerability and outward menace.

55The first of these cases revolves around the properties of a man of Anqing prefecture (安慶府) called Zhang Mei 張眉. Wealthy, Zhang Mei owned six estates (zhuangtian 莊田). He was married to a Ms. Jiang 蔣氏 and together they had three daughters. Sonless and critically ill for some time, he decided to convene a family meeting in order to designate a ritual heir for his branch of the family. Zhang Yongbiao 張永彪 was appointed to this responsibility. He was an agnate nephew of Zhang Mei’s, the second son of his brother Zhang Yanwan 張言萬. Zhang Yanwan readily accepted this decision. Yet, Zhang Mei, out of deep affection for his beloved daughters, also wrote a will before his death, in which he bequeathed three of his estates to them –one to each. Furious, Zhang Yanwan was not in a position to openly criticize his brother. He thus deliberately shirked his responsibility as witness for Zhang Mei’s will and did not sign the document. Soon after, the latter passed away.

56In the next six months, Zhang Yanwan first forced his son, Zhang Yongbiao, to move back into his original household, and then forcibly seized the rent derived from the agricultural lands of one of the three estates Zhang Mei had left to his daughters, and which were under the responsibility of the widow, Ms. Jiang. Around that same time, Zhang Hanwan 張含萬, another of Zhang Mei’s brothers, took over the rent of another of his nieces’ estates. In response, the helpless widow turned to the government and sued her two brothers-in-law. Zhang Yanwan and Zhang Hanwan counter-attacked by arguing that Ms. Jiang actually had an outstanding debt toward them and by accusing her of having expelled from her household the designated ritual heir, Zhang Yongbiao.

  • 51 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reediti (...)

57Admittedly, Zhang Yanwan had some reasons to raise objections against Zhang Mei’s decision to bequeath three estates to his daughters, thus limiting the access of the ritual heir, his son, to parts of the inheritance. But by forcibly seizing the rental revenue of two of the daughters’ estates, both he and his brother clearly breached the law. After a thorough investigation, Xu Shilin ordered that the two brothers reimburse Ms. Jiang for the illegally seized amounts of rent and for all additional revenues drawn from the two estates they might have pocketed. They were also fined for their reckless behavior and the sum collected was allocated to cover for the costs of the repairs to a local temple. Finally, magistrate Xu ordered that the management of the daughters’ estates be put into the hands of the designated ritual heir, Zhang Yongbiao, who, in this role, was to act in the name Ms. Jiang, as Zhang Mei had originally specified in his will.51

58This lawsuit provides interesting perspectives on the tensions which could be triggered inside an extended family by the extinction of one of its wealthy branches. It also highlights the fact that the existence of a will was not always a sufficient expedient to thwart any challenges inside the family about the inheritance. Put in the uneasy position of having to start a lawsuit against her two brothers-in-law in order to protect her rights and those of her daughters, the widow, Ms. Jiang, clearly got the support of the authorities, including Xu Shilin. Whether this would have been ordinarily the case in similar circumstances is very difficult to assess –judiciary casebooks naturally tend to set their authors in a favorable light–, but as we will see below, feuds over succession could easily end up in dramas. Here, the fact that the deceased had drawn up a will may have played a role in the outcome. In fact, apart from fining the two brothers-in-law, the judgement actually upheld the contents of the will, imposing that the family as a whole abide by its clauses.

59In the following case, set this time in Taihu county (太湖縣), the protagonists are a man named Lü Yongzhang 呂永章 and his wife, Ah Wang 阿汪. The two had a child who, unfortunately, died at a young age. Some years later, as Ah Wang was pregnant once again, Lü Yongzhang died of illness, leaving his wife in charge of a series of valuable estates. Not knowing whether the child Ah Wang bore would be a boy or a girl, one of Lü Yongzhang’s cousins, Lü Yonglong 呂永龍, insisted that Ah Wang select his son, Lü Xingmi 呂興秘, as the ritual heir to her late husband’s branch of the family. However, Ah Wang refused and filed a formal complaint against Lü Yonglong with the local authorities.

  • 52 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-3.
  • 53 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reediti (...)

60The lawsuit was first heard at the county level, where the investigation established that Lü Yongzhang had not selected an heir before his death, and that in such circumstances, the issue was whether or not Lü Yongzhong’s claim for his son, Lü Xingmi, to become the ritual heir of this extinct branch of the family was legally grounded. In his judgement, the Taihu county local magistrate rejected the claim, arguing that because the father and the son had entered into a dispute with Lü Yongzhang’s widow, Ah Wang, the necessary harmony between the would-be heir and his would-be stepmother could not be ensured. This would most probably result in Ah Wang filing another lawsuit in order to revoke the heir and search for a more suitable one. Qing codified law provided that if a ritual heir selected to be the successor of a household at risk of extinction did not get along with the remaining members of his new family –especially an aged couple or a widow–, he could be revoked and a new heir selected.52 Unsatisfied by this judgement, Lü Yonglong and his son filed an appeal to the prefectural court, bringing Xu Shilin into play. Xu endorsed his subordinate’s point of view, but since during the process of appeal Ah Wang actually gave birth to a boy, the whole issue lost its raison d’être and Lü Yonglong and Lü Xingmi’s attempt at syphoning off Lü Yongzhang’s possessions resulted in complete failure. Nevertheless, considering the direct family bonds which linked the Lü father and son to their cousin Lü Yongzhang and his family, Xu Shilin sentenced Lü Yonglong to wearing the cangue in public for a period of one month, to which he added thirty blows of the heavy bamboo.53

61This case aptly illustrates the sort of urge that assets for which inheritance claims were not clearly delineated could spark off among the kin of an extended family during a succession. Even though pregnant, the widow, Ah Wang, was put under pressure by one of her late husband’s cousins who, craving for the deceased’s assets, tried to force the setting up if son as ritual heir. The internecine competition must have been quite fierce, as the appeal of the first judgement tends to show, but in this instance too, the widow did find support from the authorities. The whole affair was brought to its end by the fact that Ah Wang provided her late husband with a male heir, but the cousin, Lü Yongzhong, had to experience the humiliation of being punished for his improper behavior. In this instance, we are only left to imagine the type of relations which must have subsequently endured between the parties.

62The third affair provides a glimpse into the tensions in which families could get entangled in the wake of selecting a ritual heir. Wang Zongzhuo 汪宗卓 lived a happy and prosperous life in his natal Anhui province. Without children, he passed away one day, leaving behind no one but his concubine, Ms. Song 宋氏. As was typical in instances of household extinction, after the funeral, a family meeting was set up in order to select a ritual heir. Ms. Song was invited to take part in the process, which eventually designated to this role a certain Wang Wensi 汪文祀, a distant linage member. Disappointed by this outcome, Wang Zonghong 汪宗洪, one of the deceased’s cousins, filed a lawsuit. He claimed, first of all, that Ms. Song, as a prostitute, had no right to be part of the selection process. He then argued that the heir should have been selected from among his sons, in accordance with the legal inheritance order, because he held a closer blood relationship to Wang Zongzhuo than Wang Wensi’s father did. During the investigation, Xu Shilin found that Wang Zongzhuo and Wang Zonghong were indeed agnate cousins, sharing the same grandfather. But he also learned that the relationship between the two was far from harmonious. In fact, as a result of their repeated disputes, Wang Zongzhuo had gone as far as to recriminate against Wang Zonghong in his will. With this information at hand, Xu Shilin decided to repeal Wang Zonghong’s motion and to confirm the selection of Wang Wensi as heir of Wang Zongzhuo. He also confirmed the validity of the selection process, despite Ms. Song’s role in it.

  • 54 Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, (...)

63In his discussion of the case, Xu centers on the testament, on its authenticity and on the extent of its legal force. He considers that in his times, special emphasis was put by magistrates on the legal force of an authentic will, considering it as a central element for the safeguarding of the interests of the extinct household. As the last remaining member of an extinct household, and even though she was “only” a concubine and thus enjoyed a lower status than that of a primary wife, Ms. Song was legally entitled to attend to the interests she shared with her late husband, including the discussions on the appointment of an heir. Evidently, Xu Shilin did not buy into Wang Zhonghong’s defamatory claim that she was a prostitute.54

64These three cases represent only the tip of the iceberg of Xu Shilin’s judicial experience; similarly, they represent only an infinitesimal part of the cases regarding the process of inheritance of extinct households. But they expose in a vivid way how, in such situations, women’s rights to have access to the succession were often jeopardized, generally by the greed of members of their family. Widows, sisters, and daughters could all be victims of such configurations, and men, whether in-laws or direct kin, would resort to almost any means in order to take control of the coveted assets, including slandering the honor of women and infringing upon their freedom. At times, male in-laws came to regard widows themselves, especially when still young, as assets that could be taken advantage of in the inheritance process by pressuring them to accept to be sold to another family for remarriage. Local judicial archives as well as magistrates’ casebooks contain plenty of examples of the sort. These were recorded because they generally ended up in a dramatic fashion, as the following affair, which was also dealt with by Xu Shilin, aptly illustrates.

65Ms. Tian 田氏, from Suzhou county (宿州), married at the age of twenty a man named Fang Cai 方才. Two years in the marriage, and after she had given a boy to the family, her husband unfortunately passed away. To add to the widow’s misfortunes, the young child died three years later. At this stage, to avoid the extinction of Fang Cai’s household, one of his nephews was appointed as his ritual heir during a meeting of the male members of the extended family. Thereafter, Ms. Tian shared with two of her sisters-in-law (Ms. Wang 王氏 and Ms. Guo 郭氏), themselves widows, the task of looking after their mother-in-law, who had been widowed for years. However, because of her young age, Ms. Tian was targeted by Fang Cai’s younger brother, Fang De 方德, for remarriage.

66During the summer of 1729, without Ms. Tian’s consent, Fang De drew up a marriage contract in order to force her to remarry with a man named Deng Meng 鄧孟, and went as far as to summon the members of the Deng family to come and take Ms. Tian away. Ms. Wang, one of the two sisters-in-law with whom she lived, uncovered the scheme and helped her hide, causing the failure of Fang De’s plan. However, he did not give up. Some months later, he prepared a new marriage contract in order to sell out Ms. Tian to another man. One day, at dusk, he came up to her house accompanied by a group of people. This time, Ms. Wang was unable to stop him, so that Ms. Tian was dragged out of the house, tied up in a sedan chair and, although she resisted desperately, taken away. While being sent to her new husband’s family, Ms. Tian kept on crying and yelling and, as she tried to break free, she eventually fell from the sedan chair and was rescued by some neighbors after hard-fought efforts. Yet, despite the support of the latter and of her sisters-in-law, she felt disgraced and humiliated to the point that she committed suicide on the very next day.

  • 55 The statute applied in such circumstances was that of “forcing someone to commit suicide” (weibi re (...)
  • 56 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reediti (...)

67In light of such heinous acts, Xu Shilin punished all those who had taken part in the scheme. Fang De, the main culprit, was sentenced to two months of public exposure with the cangue and one hundred blows of the heavy bamboo. In the face of Ms. Tian’s unfortunate fate and of her lost life, the sentence may seem lenient, but it was rendered in accordance with the law.55 Xu’s account of the case does not allow to grasp the reasons which brought Fang De to pursue his remarrying scheme up to such a dramatic ending. But whether he considered her as an asset to be sold to the highest bidder, or as a weight for the future of the Fang family’s livelihood, it is clear that the treatment to which Ms. Tian was exposed must have had the consent of a majority of its male members.56

  • 57 Yun Zhu 朱橒, Yuedong cheng’an chubian 粵東成案初編, 1832, v. 12, p. 64-65.
  • 58 Matthew Sommer, Polyandry and Wife-Selling in Qing Dynasty China. Survival Strategies and Judicial (...)

68Despite the fact that it is difficult to assess with precision the actual prevalence of such dramatic situations, they unveil yet another revealing facet of the precariousness of women in China’s late imperial society. In fact, evidence shows that sonless widows’ of an extinct household could find themselves in an endangered position even in cases where matters relating to inheritance rights on material assets were not directly at stake. In the late 1820s in Guangdong province (廣東), for example, a certain Ms. Ye 葉氏, a long-time widow who had borne no son to her late husband and who had nevertheless decided to live in her in-laws’ family, had been beaten to death by two of her brothers-in-law after she had sternly resisted for some time their appeals for her to remarry.57 Here, as in Ms. Tian’s case above, nothing in the presentation of the affair points to the fact that the drama which unfolded was linked to potential risks posed by the widow to the in-laws’ family properties. Rather, they ought to be interpreted in the light of the commodification of women.58

  • 59 For a telling example dating back to the second half of the nineteenth century, see Yifeng Nie 聶亦峰, (...)

69Widows of an extinct household, and their eventual orphan daughters, could turn out to be factors of uncertainty as far as the inheritance of assets was concerned, but they were probably more often considered as financial liabilities for their in-laws. In a social fabric which legally accepted the sale of human beings, they could be turned into assets from which profit was potentially to be earned. The death of an heirless husband introduced a form of imbalance inside the family, an uncertainty in the order of inheritance, and opened up opportunities for the expression of all forms of greed among the other male members of the family. Vulnerability was the main characteristic of women directly entangled in such situations, and this was especially true of widows of extinct households. The isolated posture in which they found themselves inside their in-laws’ family and the passivity in which they were generally confined, increased the danger which came with the covetousness of male kin. In fact, orphan sons, however eager they might have been to appropriate all the assets of their deceased fathers, were less likely to go against the rights of their widowed mothers, and when they did, were generally scornfully reprimanded by the authorities.59

  • 60 Janet Theiss, Disgraceful Matters. The Politics of Chastity in Eighteenth-Century China, Berkeley, (...)
  • 61 See Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, (...)

70As the work of Janet Theiss has aptly shown, family issues linked to women, and to widows in particular, have produced a generous amount of judicial paperwork over China’s late imperial period.60 In the face of these situations, the imperial authorities did not remain utterly silent. In fact, China’s landscape progressively covered itself with wooden arches (paifang 牌坊) celebrating chaste women who, as widows, had made the vow to never remarry so as to honor their late husband and their in-laws’ family. Awarded and funded by local or provincial authorities, these highly symbolic structures, which could be frequently spotted in and around the villages and towns of the empire, can be interpreted as reflections of the tension with which Chinese society dealt with the figures of “endangered dangerous women” at the time. By enhancing the prestige of the families whose widows could boast to have been recognized as chaste by the state, they were also powerful symbols which certainly helped tame the asset-or marriage-related ardors of the male members of the family honored in this way. This entailed that the widow remains chaste for the remaining of her life –i.e. that she abandon all idea of remarriage– and go on living in her in-laws’ family. Because of the tensions such a “choice” could provoke, some imperial administrators advocated that the authorities also provide these women with material resources to support their subsistence.61

  • 62 Qinding Libu zeli 欽定禮部則例, 1820, v. 48, p. 1-24.
  • 63 See Janet Theiss, Disgraceful Matters. The Politics of Chastity in Eighteenth-Century China, Berkel (...)

71The edification of ceremonial arches was one of the means to which administrators would turn to, and it was the most spectacular. It could be done upon the direct request of the authorities, but it could also be spurred by a demand issued by members of the gentry elite of a given community. Early regulations stipulated that ceremonial arches could be awarded to widows only after they had reached the threshold of twenty years of chaste widowhood. As time went by though, this limit was moved back, to the point that by the first decades of the nineteenth century, it had shrunk to a mere six years.62 This significant diminution points out the importance of the phenomenon and should probably be interpreted, among others, as a marker of the growing sense of the necessity to protect the material and physical well-being of widows, in a late imperial context where they somehow came to epitomize the figure of the “endangered woman”. These ceremonial arches were also readily erected when women –especially widows– were killed because of issues linked to forced remarriage or inheritance. In the above cases of Ms. Tian and Ms. Ye, the local authorities petitioned the court in the capital to have memorial arches built in their honor. This was a way to pacify and appease their ghostly spirits as well as a means for the whole community to partake in their remembrance. Arches dedicated to chaste women were thus sources of enhanced local prestige for these women –in life and death– and for their families, but when they served the purpose of commemorating their untimely death, they also played the role of instruments for the edification of the whole local community.63

  • 64 Jiangsu shengli sanbian 江蘇省例三編, 1880.

72The sources show that issuing “certificates of chastity” (jinjiepai 矜節牌) were another means to which the late imperial local authorities resorted to. In a way quite similar to the memorial arches, these certificates, which were once again specifically meant for widows, provided the latter with an official recognition of their right to remain chaste and never remarry. Simpler to deal with and less onerous than arches, they were drafted only for women still alive, and certainly provided a certain degree of security to them and to the estates or assets they might be in charge of. An example of such a certificate is presented below, in figure 1. It is extracted from a late-Qing era collection of local regulations from Jiangsu 江蘇 province, which shows that provincial officials at the time had at their disposal pre-printed forms of these certificates, which could thus be readily written out as a means to safeguard the properties and personal safety of chaste and pious women. The text of the form clearly stipulates that the recipient has willingly chosen to remain in widowhood and not remarry, and commands that all her relatives honor her wish and treat her with respect. It then warns those who might consider seducing her or, even worse, try to force her to remarry, that they will be severely prosecuted. It concludes by expressing the hope that the recipient will maintain her chastity over the years, so that her example, together with that of other similar chaste widows, might be presented in due time to the imperial court in the capital, where she might be awarded even more significant honors.64

Figure 1. Late Qing-era certificate of chastity

Figure 1. Late Qing-era certificate of chastity

Source: Jiangsu shengli sanbian 江蘇省例三編, 1880 edition.

73The options listed above show that notwithstanding the fact that China’s late imperial cultural framework was not geared towards upholding the rights and role of women in the matters of inheritance, institutional and legal tools did exist, which could provide a form of protection for the latter, especially in instances of household extinction. Of course, the decision to make use of such tools or not rested in the hands of the local administrators and clearly depended on their level of acquaintance with, and of command over, the administrative machinery. In the specific case of extinct households, the example of memorial arches built in honor of chaste widows tends to reflect a form of awareness, inside the bureaucracy and in parts of the social elites of the times, of the unfair treatment women were subjected to. Even though the situation did not lead to a major legislative breakthrough at the time, the trend can be seen as reflecting the progressive shift inside the state apparatus from an approach at first limited to the judicial handling of possible crimes or misdemeanors related to conflictual processes of succession in which women were central actors, to a stance where prevention of such criminal acts –and thus the protection of women– gained some momentum.

Conclusion

74In imperial China, the way the assets of an extinct household have been dealt with has been subject to a variety factors. Starting from the Tang and Song dynasties, Chinese state authorities have established a series of basic legal provisions concerning household properties, framed by a large number of judicial practices. At the geographical scale of imperial China, it should come as no surprise that a wide range of diversified civil “customs” have also had a profound impact on inheritance, and more specifically on the rights of women to partake in the succession process of their extinct household. Many signs indicate that the legal provisions to be applied empire-wide inevitably ran counter to part of the customary practices followed locally, but as long as the latter did not directly challenge the legal authority of imperial legislation, they could remain of use in local society.

75In such a framework, the inheritance rights of women over the assets of an extinct household were by and large determined by social status and by the different regional customary practices. However, one basic principle prevailed all over the empire: male superiority, deeply inscribed in the minds of the times as well as in imperial legislation, made it so to speak impossible for women to gain inheritance rights similar to those of men. In such instances, daughters, whether married or unmarried, would definitely be subject to unfair treatment by their male kin. As for widows, we have seen that even if they chose to remain in their husband’s original family and preserved their chastity, they would still have a hard time getting rid of the intrigues set up by their in-laws’ male family members wishing to appropriate the assets left behind by the deceased. In fact, in the eyes of the latter, women in general, including daughters and daughters-in-laws, were likely to be a threat for the properties of their families. For one thing, their sole presence was likely to lead to the reduction of the amount of assets the male ritual heir would likely inherit. But the main fear, especially regarding outside women who had entered a family by marriage, was that they could trigger the transfer of parts of their in-laws’ assets back to their original families. This kind of masculine prejudice not only completely ignored the legal personality of women, but also considered them as a risk factor. Resulting from the deeply entrenched conviction that men and women were not equal, this configuration has had profound, and at times dramatic, effects on the lives of generations of Chinese women.

76Confronted with the “civil” litigations, if not the outright criminal cases, stemming from the dialectical notions of “dangerous women” and “women in danger”, a growing number of local officials tried to provide protection to women through judicial and/or administrative means. Moral precepts and legal provisions certainly served as buffering instruments, just as symbolic gestures did. As we have seen, the most significant among these symbolic gestures were the awarding of memorial arches and the issuing of chastity licenses. But it should be made clear here that in such a context of radical discrimination against women, all these official measures were but palliatives falling far short of offering a positive solution to the situation.

77To sum up, late imperial Chinese women lacked an active and dynamic hold on their rights to own properties. This was largely due to the inequality between men and women embedded in China’s culture and in its age-long legal tradition. This legal inferiority was accompanied by a serious lack of economic independence, and the interaction between these two factors lead to the effective limitation of women’s property rights. It would be the task of China’s twentieth century legislators, under the Republican as well as the Communist regimes, to progressively release Chinese women from their predicament, by setting up the conditions for their economic empowerment and by acknowledging their rights as equal to those of men under the rule of law.

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Notes

1 One example among many others, here, is Timothy Brook, Jérôme Bourgon, Gregory Blue, Death by a Thousand Cuts, Cambridge-Massachusetts, Harvard University Press, 2008.

2 For some insights into this debate, see for example Shūzō Shiga, “Custom as Source of Law in Traditional China”, in La Coutume (Recueils de la Société Jean Bodin pour l’histoire comparative des institutions, v. 53, 1992, 3ème partie), Bruxelles, 1992, p. 413-425; Shūzō Shiga 滋賀秀三, “Shindai no minji saiban ni tsuite” 清代の民事裁判について (“On civil justice under the Qing dynasty”), in Chugoku – sakai to bunka 中国社会と文化, v. 13, 1998, p. 226-252; Philip Huang, Civil Justice in China: Representation and Practice in the Qing, Stanford, Stanford University Press, 1998; Jérôme Bourgon, “‘Uncivil dialogue’. Law and Costum did not Merge into Civil Law under the Qing”, Late Imperial China, v. 23, no 1, June 2002, p. 50-90; Jérôme Bourgon, “La coutume et le droit en Chine à la fin de l’empire”, Annales HSS, v. 54-5, p. 1073-1107.

3 Dorothea Heuschert, “Legal Pluralism in the Qing Empire: Manchu Legislation for the Mongols”, The International History Review, no 20-22, 1998, here p. 310-324; Zhiqiang Wang 王志強, Fa lü duoyuan shijiao xia de Qingdai guojia fa 法律多元視角下的清代國家法 (The Laws of the Qing Dynasty Observed under the Lens of Legal Pluralism), Beijing, Beijing daxue chubanshe, 2003.

4 For a presentation of these reports, see Shūzō Shiga 滋賀秀三, “Chūgoku minshōji shūkan chōsa hōkokuroku” 中国民商事習慣調査報告録 (“Presentation of the Reports on Civil and Commercial Customs of China”), in Shūzō Shiga (ed.), Chūgoku hōseishi: qihon shiryo no kenkyū 中国法制史: 基本資料の研究, Tokyo, Tokyo daigaku shuppankai, 1993, p. 807-833. See also Peisheng Shi 施沛生 (ed.), Zhongguo minshi xiguan daquan 中國民事習慣大全 (Compendium of Civil Customs of China), 1924, thereafter Minshi daquan, Shanghai, Shanghai shudian press, 2002; Ministry of Justice and Administration of Republic of China, Minshi xiguan diaocha baogaolu 民事習慣調查報告錄 (Reports on the Civil Customs of China), Beijing, Zhongguo zhengfa daxue chubanshe, 1998.

5 On the notion of “custom” in the Chinese traditional context, see Jérôme Bourgon, “‘Uncivil dialogue’. Law and Costum did not Merge into Civil Law under the Qing”, Late Imperial China, v. 23, no 1, June 2002, p. 50-90.

6 See Shūzō Shiga 滋賀秀三, Chūgoku kazokuhō no genri 中国家族法の原理 (Principles of Chinese Family Law), Tōkyō, Sōbunsha, 1967 (Chinese edition translated by Jianguo Zhang 張建國 and Li Li 李力, Beijing, Falü chubanshe, 2003).

7 According to this law, widowed daughters could receive only half of the possessions given to unmarried daughters. In other words, taking into consideration the fact that one fifth of the properties were to be given to the appointed heir, unmarried daughters could receive as much as 8/15th of the properties and widowed daughters 4/15th.

8 One fourth of the possessions.

9 See anonymous, Ming gong shupan qingmingji 名公書判清明集, reedition, Beijing, Zhonghua shuju, 2002, p. 288. In general, one string of cash (guan ) amounted to 1,000 copper coins.

10 See Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 10-13.

11 See Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999, p. 13-17; Noboru Niida 仁井田陞, Shina mibunhō shi 支那身分法史 (A History of Chinese Status Law), Tokyo, Tōhō bunka gakuin, 1942.

12 See for example Jianguo Dai, 戴建國, Tang Song biange shiqide falü yu shehui 唐宋變革時期的法律與社會 (Law and Society during the Tang-Song Transition), Shanghai, Shanghai guji chubanshe, 2010; Tie Xing 邢鐵, Tang Song fenjia zhidu 唐宋分家制度 (The Family Wealth Division System in the Tang and Song Dynasties), Beijing, Shangwu yinshuguan, 2010; Shuyuan Li 李淑媛, Zhengcai jingchan: Tang Song de jiachan yu falü 爭財競產: 唐宋的家產與法律 (Competing for Properties: Family Possessions and the Law in the Tang and Song Period), Beijing, Beijing daxue chubanshe, 2007.

13 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999; Shūzō Shiga 滋賀秀三, Chūgoku kazokuhō no genri 中国家族法の原理 (Principles of Chinese Family Law), Tōkyō, Sōbunsha, 1967 (Chinese edition translated by Jianguo Zhang 張建國 and Li Li 李力, Beijing, Falü chubanshe, 2003).

14 Minshi daquan, Shanghai, Shanghai shudian Press, 2002, especially chapters 5-6.

15 See Zhengzhen Du 杜正貞, Jindai shanqu de xiguan, qiyue yu quanli: Longquan sifa dang’an de shehuishi yanjiu 近代山區的習慣, 契約與權利: 龍泉司法檔案的社會史研究 (Customs, Contracts and Rights in a Modern Mountainous Society: a Social History Study of Longquan Judicial Archives), Beijing, Zhonghua shuju, 2018. See also the two following articles of the same author, “Songdai yilai guafu lisiquan wenti de zaiyanjiu – jiyu fadian, pandu he dang’an deng shiliao de fansi” 宋代以來寡婦立嗣權問題的再研究基於法典判牘和檔案等史料的反思 (“The Issue of Widows Adopting a Heir since the Song dynasty – A Reappraisal Based such Historical Materials as Law Codes, Judicial Verdicts and Archival Documents”), in Wenshi 文史, 2014-2, p. 175-193 ; “Minguo de zhaozhuihun shu yu zhaozhuihun susong – yi Longquan sifa dang’an wei zhongxin de yanjiu” 民國的招贅婚書與招贅婚訴訟以龍泉司法檔案為中心的研究 (“Matrilocal Marriage Certificates and Litigations in Republican China: A Study Based on the Judicial Archives of Longquan”), in Zhengfa luntan 政法論壇, 2014-3, p. 143-152.

16 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, “Illegally Establishing an Heir” (“Li dizi weifa” 立嫡子違法). The Qing Code was organized along the institutional lines of the imperial administration and listed the main laws of the empire, also known as articles ( ), followed by the substatutes (tiaoli 條例) which were appended to them.

17 Tongzhi tiaoge jiaozhu 通制條格校注, reedition annotated by Linggui Fang 方齡貴, Beijing, Zhonghua publishing house, 2001, v. 3-4.

18 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 6, p. 34.

19 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 6.

20 This legal term first appeared in the Yuan dianzhang 元典章 (Collected Laws and Institutions of the Yuan dynasty). See Gaohua Chen 陳高華, Fan Zhang 張帆, Xiao Liu 劉曉, Baohai Dang 黨寶海 (eds), Yuan dianzhang, 4 volumes, Beijing, Zhonghua shuju, Tianjin, Tianjin guji chubanshe, 2011, p. 1057. It was then passed on to the Ming and Qing dynasties’ legal codes.

21 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-2.

22 Patricia Buckley Ebrey, The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period, Berkeley, Los Angeles and London, University of California Press, 1993, p. 200.

23 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999, chapter 2, p. 67-69.

24 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999, chapter 2, p. 70-71.

25 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-01, 78-02, 78-03.

26 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 5-11.

27 Yan passed the third and last level of the examination system, which awarded the title of jinshi (進士, or “presented scholar”), in 1628. It gave direct access to employment in the imperial administration.

28 Junyan Yan, Mengshuizhai cundu 盟水齋存牘, 1631 preface of the author, Beijing reedition, Zhongguo zhengfa daxue chubanshe, 2002, p. 200.

29 See above paragraph 12 the passage translated from the Ming gong shupan qingmingji.

30 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 88, substatute 88-2.

31 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 88, substatute 88-2.

32 Wenjun Xu, 許文濬, Tajingting andu 塔景亭案牘, 1924 author preface, Beijing reedition, Beijing daxue chubanshe, 2007, p. 23.

33 The information presented in this section is drawn from Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 10-12.

34 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 15.

35 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 15.

36 For example, in Heilongjiang province, Longjiang county 龍江縣, Lanxi county 蘭西縣, Mulan County 木蘭縣, Suihua county 綏化縣 and other places, paid special attention to the deceasedʼs will. In comparison with the classic order of succession, the will had absolute priority in terms of legal effect. See Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 10-12.

37 Philip Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared, Stanford, Stanford University Press, 2001; Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999.

38 This is labelled as liu bai (留白), or “leaving blanks,” in traditional Chinese treatises on painting techniques.

39 Among the most well-known repositories of local judicial archives of the Qing are those of Ba county, in Sichuan (巴縣, 四川), and of Baodi county, in Zhili (寶坻縣, 直隸). The latter have been largely perused by Huang and Bernhardt. For an overview of the amount of judicial casebooks available for researchers to use, see Pierre-Etienne Will et al. (eds), Official Handbooks and Anthologies of Imperial China: A Descriptive and Critical Bibliography, 2 volumes, Leiden and Boston, Brill, 2020.

40 See Xiaoye Zhang, “Legitimate but Illegal: Case Studies of Civil Justice in the Ming and Qing Dynasties”, Études chinoises, no 28, 2009, p. 73-94; Hiroaki Terada 寺田浩明, “Qingdai minshi shenpan: yingzhi ji yiyi” 清代民事審判: 性質及意義 (“Civil Justice in the Qing Dynasty: Nature and Meaning”), in Beida falü pinglun 北大法律評論, no 1-2, 1999, p. 292-306. It should be noted that in China’s late imperial context, jurisprudence in such instances did not play a similar role as in other common law traditions.

41 A typical example is that of divorce and the custody of children. In farming villages of the South of China, it is often the case that even when a court order is issued putting a child in the custody of the mother, in practice, the child will actually continue living in the father’s family. Although mothers and their relatives may feel dissatisfied, most never file lawsuits in court to try to have the actual divorce sentence applied, thus acquiescing to the effectiveness of this local “custom.”

42 See Susumu Fuma 夫馬進, Chūgoku soshō shakaishi no kenkyū 中国訴訟社会史の研究 (A Study in the Social History of Litigation in China), Kyoto, Kyoto daigaku gakujutsu shuppankai, 2011; Thomas Buoye, Manslaughter, Markets, and Moral Economy: Violent Disputes over Property Rights in Eighteenth-Century China, Cambridge, Cambridge University Press, 2000.

43 Paul Katz, Divine Justice. Religion and the Development of Legal Culture, London and New York, Routledge, 2009; Jérôme Bourgon, “Aspects of Chinese Legal Culture – Part One: The Articulation of Written Law, State, and Society”, in International Journal of Asian Studies, v. 4-2, 2007, p. 241-258.

44 Among others, the various scholarly works of the late Qing jurist Yunsheng Xue 薛允升 (1820-1901) provide ample testimony of the evolutive character of imperial China’s legal tradition. His Du li cun yi 讀例存疑 (Doubts Remaining upon Reading the Substatutes), published post mortem in 1905, offers a telling example of the evolution of Ming and Qing statutory law.

45 Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999, p. 17.

46 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 4. The counties listed as perpetuating this ritual are those of Huaxian (華縣), Weinan (渭南), Huayin (華陰), Binxian (邠縣), and Lintong (臨潼).

47 Minshi daquan, Shanghai, Shanghai shudian press, 2002, chapter 5, p. 4

48 Xueshun Hu 胡學醇, Wenxin yi yu 問心一隅, 1851 preface, p. 41a.

49 In imperial China, the traditional social expectations towards women were subsumed in the “Three Subordinations and Four Virtues” (san cong si de 三從四德). The three subordinations were: to the father before marriage, to the husband once married, and to the son if widowed.

50 Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, 2001.

51 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, 2001, p. 163-164.

52 Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 9, article 78, substatute 78-3.

53 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, 2001, p. 167-168.

54 Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, 2001, p. 638-639.

55 The statute applied in such circumstances was that of “forcing someone to commit suicide” (weibi ren zhi si 威逼人致死). See Yunsheng Xue, Du li cun yi, Beijing, Hanmao zhai 翰茂齋, 1906, v. 34, statute 299.

56 See Shilin Xu 徐士林 (1684-1741), Xu gong yanci 徐公讞詞 (Judgements of Mr. Xu), Jinan, Qilu Press reedition, 2001, p. 120-123.

57 Yun Zhu 朱橒, Yuedong cheng’an chubian 粵東成案初編, 1832, v. 12, p. 64-65.

58 Matthew Sommer, Polyandry and Wife-Selling in Qing Dynasty China. Survival Strategies and Judicial Interventions, Berkeley, Los Angeles and London, University of California Press, 2015.

59 For a telling example dating back to the second half of the nineteenth century, see Yifeng Nie 聶亦峰, Nie Yifeng xiansheng weizai gongdu 聶亦峰先生為宰公牘, Nanchang, Jiangxi Renmin Press reedition, 2012, p. 238.

60 Janet Theiss, Disgraceful Matters. The Politics of Chastity in Eighteenth-Century China, Berkeley, Los Angeles and London, University of California Press, 2004.

61 See Kathryn Bernhardt, Women and Property in China, 960-1949, Stanford, Stanford University Press, 1999, p. 66.

62 Qinding Libu zeli 欽定禮部則例, 1820, v. 48, p. 1-24.

63 See Janet Theiss, Disgraceful Matters. The Politics of Chastity in Eighteenth-Century China, Berkeley, Los Angeles and London, University of California Press, 2004.

64 Jiangsu shengli sanbian 江蘇省例三編, 1880.

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Titre Figure 1. Late Qing-era certificate of chastity
Légende Source: Jiangsu shengli sanbian 江蘇省例三編, 1880 edition.
URL http://journals.openedition.org/acrh/docannexe/image/11547/img-1.jpg
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Sun Jiahong et Luca Gabbiani, « Dangerous Women or Women in Danger? Women and Properties of Extinct Households in Late Imperial China »L’Atelier du Centre de recherches historiques [En ligne], 22 | 2020, mis en ligne le 25 novembre 2020, consulté le 26 octobre 2021. URL : http://journals.openedition.org/acrh/11547 ; DOI : https://doi.org/10.4000/acrh.11547

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Auteurs

Sun Jiahong

The author is research fellow at the Law Institute of the Chinese Academy of Social Sciences in Beijing. A specialist of Chinese legal history, he has published numerous articles on such topics as late Qing dynasty legal reforms, traditional manuals for litigation masters, as well as China’s economy in the modern era. Some of his research work on China’s legal history has been awarded prestigious academic prizes in China (including the Hu Sheng prize for talented young scholars of the Chinese Academy of Social Sciences). E-mail: 13693221808 [arobase] 163 [point] com.

Sun Jiahong est chercheur à l’Institut de droit de l’Académie chinoise des Sciences Sociales. Spécialiste de l’histoire du droit chinois, il a publié de nombreux articles, notamment sur les réformes juridiques de la fin de la dynastie Qing et sur les manuels traditionnels à l’usage des « maîtres de chicanes » de l’époque impériale, ainsi que sur l’économie chinoise à l’époque moderne et contemporaine. Certains de ses travaux consacrés à l’histoire du droit en Chine ont été couronnés par les prix académiques les plus prestigieux en Chine (en particulier le prix Hu Sheng pour les jeunes chercheurs de talent décerné par l’Académie chinoise des Sciences Sociales). E-mail: 13693221808 [arobase] 163 [point] com

Luca Gabbiani

The author is associate professor at the French School for East Asian Studies (École française d’Extrême-Orient), in Paris. A specialist of late imperial Chinese history, his works centers on urban history, approaching this issue from a social and institutional perspective. He has been involved in various international research programs linked to imperial China’s legal and judicial apparatus. He has published several books and articles on these topics. He teaches at the French School for Advanced Studies in the Social Sciences (École des Hautes Études en Sciences Sociales). E-mail: luca [point] gabbiani [arobase] efeo [point] net.

Luca Gabbiani est maître de conférences à l’École française d’Extrême-Orient. Il est spécialiste de l’histoire urbaine de l’empire chinois tardif, objet qu’il approche sous l’angle de l’histoire sociale et institutionnelle. Il a collaboré à plusieurs programmes de recherche internationaux consacrés à l’histoire du droit chinois et des infrastructures judiciaires de l’empire. Il a publié plusieurs ouvrages et articles sur ces sujets. Il enseigne à l’École des Hautes Études en Sciences Sociales. E-mail: luca [point] gabbiani [arobase] efeo [point] net

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