THE CHINESE EMPIRE.
A treatise on the marriage and divorce laws of the world would be
incomplete without a chapter dealing with the law of the most compact
nationality in history.
Chinese law is the growth of many centuries and is based on immemorial
custom, but with all its antiquity and wealth of precedent, it has not yet
passed the system of exacting testimony from witnesses by physical
torture.
The first evidence of civil law to be found in Chinese history or
tradition is the recognition and regulation of the status of marriage. Its
fundamental principle is parental authority.
Though in a sense systematic, the laws of China are not as yet in a
concentrated or scientific form. Under the present dynasty the collection
of laws which is applied by the courts is called _Ta Ch'ing Lii Li_.
Two things are to be said in favour of the laws of China--the first being
that every Chinese is within the law, and that the person is considered of
more importance than property.
MARRIAGE.--A Chinese is not permitted to have more than one wife. He may,
however, in addition, keep concubines, or "secondary wives." Both wives
and concubines have a legal status.
The wife is considered to be a relative of all her husband's family, but a
concubine is not so considered. It is an offence for a man to degrade his
wife to the level of a concubine, or to elevate a concubine to the level
of his wife.
The consent of the parties, which is the first requisite of a valid
marriage in Christendom, is legally of no consequence in China. It is the
consent of the parents of the respective parties which is material and
necessary.
The consent of the father of the woman is sufficient, and if he is dead
then the mother may give the necessary consent.
The preliminary stages of a Chinese marriage are elaborately formal. It is
the duty of the families of the intended bride and bridegroom to ascertain
whether or not the parties have the capacity to conclude marriage. Certain
introductions and exchange of social courtesies follow. If everything
appears satisfactory the parties acting on behalf of the intended bride
send a note of "eight characters" to the parties acting in behalf of the
prospective bridegroom, which note is practically a proposal of marriage.
If the terms of the proposed marriage are agreed upon the next thing is
for the representatives of the parties to draft and execute the articles
of marriage.
The courts will hold it to be a marriage if the betrothal is regular, even
if there is no consummation.
It is essential to a legal marriage that the written consent of the woman
be obtained; it is not sufficient that the woman herself gives free
consent.
Fraud makes the marriage a nullity. In his book, "Notes and Commentaries
on Chinese Criminal Law," Mr. Ernest Alabaster tells of the case of "Mrs.
Wang." It appears that an old reprobate, knowing that the girl's parents
would refuse him because of his ugliness of face and character, sent a
handsome young nephew to represent him in the marriage negotiations. The
impersonation brought about the signing of the contract, and the old man
secured possession of the bride. Soon after the wedding he ill-treated his
young wife and one night she strangled him. The court decided that the
woman had committed an unjustifiable homicide and that the victim was not
her husband.
IMPEDIMENTS.--Intermarriage is forbidden between ascendants and
descendants and between kinsmen by consanguinity or affinity up to the
fourth degree.
Marriage is also forbidden between persons having the same _Hsing_, or
surname.
A free person cannot contract a valid marriage with a slave.
A mother and daughter must not marry father and son.
Marriage is absolutely forbidden to a Buddhist or Taoist priest.
An official must not marry a wife or buy a concubine within his
jurisdiction.
It is unlawful for a person of official rank to take as his secondary wife
or concubine an actress, singing woman or a prostitute.
No one must marry a female fugitive from justice.
Marriage of a deceased brother's widow is against the law.
It should be remembered that it is a criminal offence to contract an
invalid marriage. For example, not very long ago a prince of the Imperial
family purchased a singing girl as his secondary wife or concubine. The
marriage was declared null and he was sentenced to receive sixty blows for
attempting to contract an illegal secondary marriage.
WIDOWS.--A widow or divorced woman can contract a new marriage, but she
must first obtain consent of her parents and wait until the customary
period of mourning is completed.
DIVORCE.--As an institution divorce is almost as ancient in China as
marriage. Marriage is not considered as in any respect a religious
contract, but as a status created principally for the comfort of man and
the continuance of the race. As woman is considered an inferior creature
to man she has not the same rights in or out of a court of law. However,
she can obtain, against her husband's will, an absolute divorce on the
following grounds:
1. Impotency. If her husband is unable to perform the sexual act a wife
can compel him to grant her a deed of divorcement.
2. If a man sells his wife to another the woman is _ipso facto_ divorced
from both men.
3. If a man induces his wife to become a prostitute, or accepts her
earnings as such, the wife is entitled to a decree of absolute divorce.
We can find no other causes which entitle a woman to a divorce from her
husband. His adultery, cruelty, abandonment, neglect or drunkenness
furnishes no ground for a dissolution of the marriage.
For a husband divorce is very easy. The so-called "seven valid reasons"
enable any man so inclined to practically discard his wife when it pleases
him. The seven "reasons" or causes are:
1. Talkativeness.
2. Wantonness.
3. Theft.
4. Barrenness.
5. Disobedience to parents of husband.
6. Jealousy.
7. Inveterate infirmity.
The last of the seven reasons permits a man to get rid of a wife who is
incurably ill or infirm.
MUTUAL CONSENT.--If husband and wife mutually agree upon divorce the
courts, by ancient custom, will ratify their agreement. Although the
Chinese law does not consider the consent or non-consent of the parties as
of any consequence in creating the status of marriage, it, by a peculiar
process of logic, permits them to end the relationship whenever they
mutually please so to do.
Perhaps one can easier understand the marriage and divorce laws of the
Chinese Empire by remembering that all Chinese laws are supposed to follow
the instincts of the people (_Shun po hsing chi ching_).
GENERAL OBSERVATIONS.--The present laws and customs of China are but
little changed from the time of the Tang Dynasty, which reigned nearly
thirteen hundred years ago.
Then, as now, a poor man who finds himself unable to support his wife,
may, if she has no parents to take her back, sell her to his richer
neighbour.
The judicial machinery of the Chinese Empire is the elaboration of
centuries of customs and precedents. In the first instance parties seeking
legal redress apply by complaint to the lowest court having jurisdiction
within the district of their domicile. If dissatisfied with the decision
an appeal can be made first to the District Magistracy, then to the
Prefecture, and after that to the Supreme Provincial Court. If the
questions involved are sufficiently important a further appeal may be
prosecuted before the Judiciary Board, which sits in Peking and is the
highest judicial court in the Empire.
In theory a defeated suitor can appeal from the Judiciary Board to the
fountain of law and justice, His Imperial Majesty, the Emperor of China,
but there are few cases, according to the record, which have gone so far.
We are of the opinion that Chinese law will never approach a scientific
system until China recognizes the necessity and value of having
professional advocates and jurists to point out the way to better things.
INDEX
A
Alabama, 151
Alaska, 152
Alberta, 207
Algeria, 137
Argentina, 218
Arizona, 153
Arkansas, 154
Australia, 238
Austria, 67
B
Belgium, 53
Brazil, 223
British Columbia, 206
Bulgaria, 129
C
California, 155
Canada, 199
China, 265
Colorado, 156
Connecticut, 158
Cuba, 227
D
Delaware, 159
Denmark, 81
District of Columbia, 157
E
Egypt, 137
England, 16
F
Finland, 94
Florida, 161
France, 38
G
Georgia, 162
Germany, 60
Greece, 132
H
Hindu Law, 256
Holland, 100
Hungary, 72
I
Idaho, 163
Illinois, 164
India, 137
Indiana, 165
Indian Territory, 165
Iowa, 166
Ireland, 36
Italy, 46
J
Japan, 104
Jews, Laws for, 96
K
Kansas, 167
Kentucky, 167
L
Louisiana, 168
M
Maine, 169
Manitoba, 199
Maryland, 169
Massachusetts, 170
Mexico, 209
Michigan, 172
Minnesota, 172
Mississippi, 173
Missouri, 174
Mohammedan Law, 137
Montana, 175
Morocco, 137
N
Nebraska, 175
Nevada, 176
New Brunswick, 206
Newfoundland, 208
New Hampshire, 177
New Jersey, 177
New Mexico, 179
New South Wales, 246
New York, 179
New Zealand, 250
North Carolina, 184
North Dakota, 184
Northwest Territories, 207
Norway, 85
Nova Scotia, 207
O
Ohio, 185
Oklahoma, 186
Ontario, 204
Oregon, 187
P
Pennsylvania, 187
Persia, 137
Portugal, 117
Prince Edward Island, 199
Q
Quebec, 204
Queensland, 248
R
Rhode Island, 189
Roumania, 121
Russia, 89
S
Saskatchewan, 199
Scotland, 32
Servia, 125
South Australia, 248
South Carolina, 190
South Dakota, 190
Spain, 110
Sweden, 76
Switzerland, 57
T
Tasmania, 248
Tennessee, 191
Texas, 192
Transylvania, 72
Turkey, 137
U
United States of America, 148
Utah, 193
V
Vermont, 193
Victoria, 243
Virginia, 194
W
Washington, 195
West Australia, 248
West Virginia, 196
Wisconsin, 197
Wyoming, 198