• 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

• 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.

• 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

• 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

• 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

• 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

• 27 Yan passed the third and last level of the examination system, which awarded the title of jinshi (進 (...)
• 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.

• 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:

• 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

• 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.

• 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.

• 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

• 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

• 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

• 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