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Published online by Cambridge University Press: 28 October 2011
After a period of Mongolian rule during the Yüan Dynasty (1279–1368), the first Ming emperor, T'ai-tsu, tried to build a new empire on a solid footing. From the start, he paid a lot of attention to legislation as a means of guaranteeing stability in the empire. The emperor's concern for stability resulted in an imperial decree stipulating that the Ming Code, established and adapted under his supervision, had to remain unchanged for the remainder of the dynasty. As social and economic evolutions called for modifications in the Ming legislation, a way had to be found to introduce these changes. This article examines how a number of so-called “precedents,” relating to dissolution of marriage and engagement on the initiative of women and their natal families, were proposed and adopted during the mid-Ming period. By looking into the individual proposals, we will try to find the specific problems that threatened a consistent application and enforcement of these precedents.
1. T'ai-tsu is the posthumous title of Emperor Chu Yüan-chang, who ruled between 1368 and 1398, during the Hung-wu reign period. See Langlois, John D. Jr, “The Hung-wu Reign, 1368–1398,” in The Cambridge History of China, vol. 7, The Ming Dynasty, 1368–1644, Part I, ed. Mote, Frederick W. and Twitchett, Denis (Cambridge: Cambridge University Press, 1988), 107–81.Google Scholar
2. On the structure of the Ming code, see Langlois, John D. Jr., “The Code and Ad Hoc-Legislation in Ming Law,” Asia Major, 3d ser., 6.2 (1993): 174.Google Scholar
3. I have chosen to translate li as “precedents” as long as they were not appended to the code and to designate the li that were collected and edited together with the “statutes” of the code with the term “sub-statutes.”
4. Emperor Hui-ti, 1399–1403.
5. The Ch'eng-hua period, under Emperor Hsien-tsung, lasted from 1465 to 1488. On the Ch'eng-hua reign, see Mote, Frederick W., “The Ch'eng-hua and Hung-chih Reigns, 1465–1505,” in The Cambridge History of China, vol. 7, The Ming Dynasty, 1368–1644, Parti, ed. Mote, Frederick W. and Twitchett, Denis (Cambridge: Cambridge University Press), 344–50.Google Scholar
6. Langlois, “The Code and Ad Hoc Legislation,” 85–95. In Langlois, John D. Jr, “Ming Law,” in The Cambridge History of China, vol. 8, The Ming Dynasty, 1368–1644, Part II, ed. Twitchett, Denis and Mote, Frederick W. (Cambridge: Cambridge University Press, 1998), 95–100Google Scholar, we find the views and argumentation of two officials, Ch'iu Chiin and Ho Ch'iao-hsin, in favor of a compilation of li.
7. The Hung-chih government period, under Emperor Hsiao-tsung, lasted from 1488 to 1505. On the Hung-chih reign, see Mote, “The Ch'eng-hua and Hung-chih Reigns,” 351–57.
8. The Huang Ming t'iao-fa shih-lei-tsuan, as reconstructed by Ta-t'ao Chiang, Yi-fan Yang, Yil-t'ang Yang, Kuo-fan Sung, Tu-ts'ai Liu, Kuei-lien Li, and Pei-p'ing Sung, and edited in Chung-kuo chen-hsi fa-lii tien-chi chi-ch'eng (“A collection of rare Chinese legal works”), pt. 2, vol. 4, ed. Liu, Hai-nien and Yang, Yi-fan (Peking: K'o-hsiieh Ch'u-pan-she, 1994).Google Scholar
9. Investigating censors, members of the censorate in the capital, were charged with gath-ering complaints from the population against officials, with reviewing penal trials, and with impeaching or sanctioning officials for misconduct. They checked the records in government agencies in the capital but could also be dispatched to local units of territorial administration, as regional inspectors. Hucker, Charles O., A Dictionary of Official Titles in Imperial China (Stanford: Stanford University Press, 1985), 145–46.Google Scholar
10. Franke, Wolfgang, An Introduction to the Sources of Ming History (Kuala Lumpur: University of Malaya Press, 1968), 187.Google Scholar
11. If the work was written by Tai Chin during his censorial career, as stated in the introduction of the “Classified regulations of the Great Ming” (an introduction that was added to the work later), then it is hard to understand why Tai Chin omitted a series of precedents of which the promulgation followed that of the precedents included in the “Classified regulations of the Great Ming” but preceded his appointment as an investigating censor (after which he was supposed to have written the work). Huang, Chang-chien, Ming-tai lii-li hui-pien (“A complete compilation of the statutes and sub-statutes of the Ming dynasty”) (Taipei: Chung-yang Yen-chiu-yüan Li-shih Yii-yen Yen-chiu-so, 1979), 4–5.Google Scholar
12. The six ministries (liu pu) of the central government were the ministry of revenue (hu-pu), the ministry of rites (li-pu), the ministry of war (ping-pu), the ministry of justice (hsing-pu), the ministry of personnel (li-pu), and the ministry of works (kung-pu). Hucker, A Dictionary of Official Titles, 319.
13. The “five basic punishments” (wu hsing) officially accepted during the Ming were blows with a light bamboo stick, blows with a heavy bamboo stick, penal servitude for a maximum term of five years, exile for life, and the death penalty. Miinzel, Frank, Slrafrecht im alien China, nach den Strafrechtskapiteln in den Ming-annalen (Wiesbaden: Otto Har-rassowitz, 1968), 38–39.Google Scholar Only the classification of the five punishments under a separate heading is different from the Ming code, where the five punishments do not form a separate section.
14. One of the two proposals that do not date from that period is from the Cheng-t'ung reign of Emperor Ying-tsung (1436–1450) and the other is from the Chia-ching period of Emperor Shih-tsung (1522–1567). See Liu and Yang, Chung-kuo chen-hsi fa-lii tien-chi chi-ch'eng, 2.
15. The censorate (tu ch'a-yiian) was a central government bureau charged with disciplinary surveillance over all government officials and with checking judicial records and holding inspections. Hucker, A Dictionary of Official Titles, 536. Of the memorials and proposals in the “Classified regulations of the great Ming,” twenty-nine were entered by the censorate. See Liu and Yang, Chung-kuo chen-hsi fa-lii tien-chi chi-ch'eng, 2.
16. On the years during which the documents included were submitted, see ibid.
17. Ibid., 2–4.
18. A list of all known editions of the Ming code, many of them with li appended, can be found in Franke, An Introduction to the Sources of Ming History, 184–87.
19. Most of the precedents from these collections have been brought together in Huang, Ming-tai lii-li hui-pien.
20. None of the precedents examined here can be found among those from later collections as brought together by Huang, Ming-tai lii-li hui-pien.
21. For a general introduction to marriage in imperial China, see Ch'ü, T'ung-tsu, Law and Society in Traditional China (Paris: Mouton, 1961), 91–127.Google Scholar
22. Weggel, Oskar, Chinesische Rechtsgeschichte (Leiden: E. J. Brill, 1980), 185–86.Google Scholar
23. Philip C. C. Huang argues that these gifts were also of symbolic importance and not purely economic. Huang, Philip C. C., Civil Justice in China (Stanford: Stanford University Press, 1996), 56–57.Google Scholar
24. T'ung, Kuang-cheng, “Min-shih fa-lü” (“Civil Law”), in Chung-kuo fa-chih t'ung-shih (“A comprehensive history of the Chinese legal system”), ed. Chang, Chin-fan and Huai, Hsiao-feng (Peking: Fa-lü Ch'u-pan-she, 1998), 7:284.Google Scholar
25. An example is given by Ebrey, Patricia B., “Shifts in Marriage Finance from the Sixth to the Thirteenth Century,” in Marriage and Inequality in Chinese Society, ed. Watson, Rubie S. and Ebrey, Patricia B. (Berkeley: University of California Press, 1991), 111.Google Scholar
26. On the use of marriages to establish networks of connections, see Ebrey, “Shifts in Marriage Finance,” 116.
27. Waltner, Ann B., “Infanticide and Dowry in Ming and Early Qing China,” in Chinese Views of Childhood, ed. Kinney, Anne B. (Honolulu: University of Hawai'i Press, 1995), 204–6Google Scholar, and Ebrey, Patricia B., The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period (Berkeley: University of California Press, 1993), 99–103.Google Scholar On the imperial decree, see also Birge, Bettine, “Levirate Marriage and the Revival of Widow Chastity in Yuan China,” Asia Major, 3d ser., 7.2 (1995): 107–46.Google Scholar
28. On the Mongolian levirate system, see Birge, “Levirate Marriage,” 123–28 and 143–45.
29. Chin, Mei, “T'ang-ch'ao te hun-yin chia-t'ing fa-lü” (“Marriage and family laws during the T'ang Dynasty”), in Chung-kuo fa-chih t'ung-shih (“A comprehensive history of the Chinese legal system”), ed. Ch'en, P'eng-sheng (Peking: Fa-lii Ch'u-pan-she, 1998), 4:558–62.Google Scholar
30. The prescribed period of mourning for a deceased parent was three years in theory (twenty-seven months in practice); during this period, the sons and daughters of the deceased were not allowed to marry. Bodde, Derk and Morris, Clarence, Law in Imperial China (Cambridge: Harvard University Press, 1967), 35–36.CrossRefGoogle Scholar
31. Wang, Tse-sin, Le Divorce en Chine (Paris: Les Éditions Domat-Montchrestien, 1932), 26–29.Google Scholar
32. Huang, Civil Justice in China, 29.
33. Waltner, Ann B., “Breaking the Law: Family Violence, Gender and Hierarchy in the Code of the Ming Dynasty,” Ming Studies 36 (1996): 34–35.Google Scholar
34. Ebrey, The Inner Quarters, 259.
35. This crime was punished with one hundred blows with the heavy bamboo staff for the husband, his wife, and the person who paid them to divorce. The matrimonial gifts were confiscated, and the woman was returned to her family. Sommer, Matthew H., Sex, Law, and Society in Imperial China (Stanford: Stanford University Press, 2000), 58.Google Scholar Sommer includes this “buying of divorces” in a section on “illicit sexual intercourse” and not in the chapters on marriage and divorce.
36. The system of informal justice consisted of mediation by family or community leaders in family matters and local disputes; in many contractual matters (such as loans, land sales, but also marriages), a third party acted as the middleman or guarantor. Huang, Civil Justice in China, 58–61.
37. On the use of clan rules and family rules to settle minor marital disputes, and the settling of serious marital disputes by the official authorities, see Pien, Li, “Ming-tai Hui-chou te min-shih chiu-fan yu min-shih su-sung” (“Civil disputes and lawsuits in Hui-chou during the Ming Dynasty”), Li-shih yen-chiu (“Historical Research”) 1 (2000): 99.Google Scholar
38. Twenty-four out of the 460 articles in the Ming code were articles on marriage. Related to the matter of divorce are also some of the regulations on sexual violations, contained in eleven articles of the Ming code. Langlois, “Ming Law,” 174.
39. The ministry of revenue (hu-pu), one of the six ministries of the central government, was in general charge of tax and population matters, such as registration of the population, marriages, and inheritances. Hucker, A Dictionary of Official Titles, 258, and Rotours, Robert Des, Traité desfonctionnaires et traité de l'armée (Leiden: E. J. Brill, 1948), 71–74.Google Scholar
40. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 567–73. The legal provision of which the origin is explained in book thirteen, paragraph twenty-seven, dates from 1468, but the text of paragraph twenty-seven also contains a section from a related memorial of 1452 and an article from the “Great Ming Commandments” of 1368. For reasons of clarity, we have arranged these legal stipulations and precedents in chronological order. Paragraph twenty-eight contains a memorial, and the imperial precedent that followed it, of 1483.
41. The “Ta Ming Ling” was issued by the first emperor of the Ming in 1368. It partially provided the basic material for later versions of the “Great Ming Code (“Ta Ming Lü”), that was revised for the last time in 1397. Farmer, Edward L., Zhu Yuanzhang and Early Ming Legislation: The Reordering of Chinese Society Following the Era of Mongol Rule (Leiden: E. J. Brill, 1995), 69–73, 159.Google Scholar
42. The senior relative who acted as the person in charge of the marriage was responsible, and liable for punishment, if he arranged a marriage that was contrary to the law, such as letting a woman who was not officially divorced remarry, or letting a couple marry within the mourning period for a senior relative. This is illustrated in paragraph thirty-one of the thirteenth book of the “Classified regulations of the great Ming.” See Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 572. This paragraph refers to the memorial of Yang, an administrative assistant in the court of judicial review (ta-li ssu), a central government agency responsible for reviewing records of judicial proceedings and for recommending cases to the emperor for revision (Hucker, A Dictionary of Official Titles, 468). The minister of justice, Ho, forwarded this proposal to the emperor, who approved it.
From now on, if [the local officials] are confronted with accusations against people who married during the period of mourning [for a deceased parent], it is necessary to investigate these matters in detail, based on the testimony of the matchmaker. If the disease of the relative was already critical [when they were getting married], and if the man joined the family of the woman, or the woman joined the family of the man, thereby following the orders given by senior relatives, then they are forgiven. Only the person who presides over the wedding is prosecuted, and [the newly wedded couple] does not have to separate.
On the responsibility of the person who was in charge of the marriage, see also Jones, William C., The Great Qing Code (Oxford: Clarendon Press, 1994), 135, 123.Google Scholar
43. In the Chinese text, both “t'u” and “liu” are used. “T'u” is generally translated as “penal servitude,” which means that the convict was sent to another province, where he had to work, usually in iron or salt mines. The standard terms for “penal servitude” were one, two, or three years; there were however also “supplementary degrees,” resulting in maximum terms of four and five years. “Liu” corresponded to “life exile,” regarded as one of the most serious punishments, since an individual was isolated from his family and community for good, at a distance of 2,000 to 3,000 li (1,000 to 1,500 km.). See Bodde and Morris, Law in Imperial China, 77–87.
44. A woman who committed adultery was punished with eighty blows of the heavy bamboo stick, and she could be sold in marriage by her husband. Sommer, Sex, Law, and Society in Imperial China, 325.
45. Wang, Le Divorce en Chine, 65.
46. Liu and Yang, Chung-kuo chen-hsifa-lil tien-chi chi-ch'eng, 568–69. A translation of this section can also be found in Farmer, Zhu Yuanzhang and Early Ming Legislation, 159.
47. See T'ung, “Min-shih fa-lü,” 287–88. In these cases, her husband could even decide to marry her off or to sell her. Jones, The Great Qing Code, 134. The eighty or one hundred beatings with the heavy bamboo stick can be considered severe, since the maximum number of blows a convict could receive was one hundred. Bodde and Morris, Law in Imperial China, 77.
48. Langlois, “Ming Law,” 173.
49. Huai, Hsiao-feng, Ta Ming Lü (“The Great Ming Code”) (Peking: Fa-lii ch'u-pan-she, 1998), 65.Google Scholar
50. Ibid., 59.
51. Wang Chi (1378–1460) was, at the time he entered his memorial, holding the position of minister of war (ping-pu shang-shu), together with an assignment as supreme commander (tsung-tu), delegated to deal with military problems in regions that were not limited to one province. L. Carrington Goodrich and Fang, Chaoying, Dictionary of Ming Biography (New York: Columbia University Press, 1976), 1350–51.Google Scholar On his memorial in this case, see also Langlois, “Ming Law,” 196–97. Apart of the memorial, where Wang Chi requests a ruling in the specific case of Lu and Ko, can also be found in Huai, Hsiao-feng and Li, Ming, eds., Tang Ming lii ho-pien (“A joint compilation of statutes of T'ang and Ming”) (Peking: Fa-Lu Ch'u-pan-she, 1999), 325.Google Scholar
52. This refers to merchants who were traveling throughout the empire, or even outside the empire. During the Ming, there was a considerable number of itinerant traders who engaged in trade, also maritime trade. Most of the trade in Ming China was long-distance trade between different regions, rather than trade within the regions. Most of this long-distance trade happened along the rivers, especially the Ch'ang-chiang and the Grand Canal. Heijdra, Martin, “The Socio-Economic Development of Rural China during the Ming,” in The Cambridge History of China, vol. 8, The Ming Dynasty, 1368–1644, Part II, ed. Twitchett, Denis and Mote, Frederick W. (Cambridge: Cambridge University Press, 1998), 498–99.Google Scholar
53. This corvée consisted of compulsory state service, such as transport and construction works, imposed on all classes of the population, with the exception of government officials. This labor service usually happened under the supervision of district authorities. These services could sometimes be commuted to payments of goods or money. Hucker, A Dictionary of Official Titles, 106.
54. During the Ming, officials could hold the same office for at most three terms of three years each. After this maximum term of nine years, they had to be transferred to another post. In most cases, an official only served one or two terms in the same office, and he could be transferred at any time before finishing his term. Ibid., 35–36. This measure was aimed at preventing the relationship between the official and the powerful local families from becoming too close, since close relationships were likely to stimulate corruption and favoritism.
55. It was not unusual that the parents of very young children already agreed on a future marriage. Sometimes, the grandparents or parents of an extremely young or even unborn child drew up a marriage agreement for the child; these agreements were not accepted as legally binding. It also happened that young girls were handed over to the family of their future husband, to be educated in his family; this way, the family of the girl did not have to spend any more money on her education, whereas the family of the future bridegroom could save the cost of betrothal and wedding gifts. T'ung, “Min-shih fa-lii,” 281.
56. The “usual procedure” here refers to the statute according to which a woman who, without the consent of the man and his family and without officially having ended the relationship, withdrew from a marital agreement, was sentenced. See above.
57. Liu and Yang, Chung-kuo chen-hsifa-lü tien-chi chi-ch'eng, 568.
58. Ibid., 567.
59. “Prefectures” (fu) were local units of territorial administration, headed by a prefect (chih-fu). They consisted of several “districts” (hsien). Sometimes, the intermediate level of “sub-prefectures” (chou) was installed between the levels of prefectures and districts. Hucker, A Dictionary of Official Titles, 216.
60. “Military families” (chün-hu), as opposed to “civilian families” (min-hu) and “artisan families” (chiang-hu, hereditary craftsmen), were families with a special status, who, from generation to generation, had to provide soldiers, and who lived in the so-called “military colonies” (chün-t'un). Three out of ten men from these families had to perform military tasks, and the other seven out of ten had to do agricultural work to ensure the food production for the army. The system, which had also existed in previous dynasties, was installed by the first Ming emperor. The military colonies were spread all over the empire, with concentrations in the metropolitan areas around Nan-ching and Pei-ching, and in Liao-ning, Yunnan, and Kuei-chou. Gernet, Jacques, Le monde Chinois (Paris: Armand Colin, 1972), 358–60Google Scholar, and Hucker, Charles O., The Censorial System of Ming China (Stanford: Stanford University Press, 1966), 34.Google Scholar
61. Soldiers were periodically sent to the capital for special training and to the frontier defense units for military campaigns. See Hucker, The Censorial System of Ming China, 34.
62. An important regulation to be mentioned here is that an official was not permitted to hold office in his native province nor in any neighboring province within five hundred li (approximately 250 km.) of his home town. Ch'ü, T'ung-tsu, Local Government in China under the Ch'ing (Cambridge: Harvard University Press, 1962), 21.CrossRefGoogle Scholar
63. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 567.
64. When a couple separated with mutual consent, a written agreement was drawn up, of which both parties received a copy, in order to avoid future disputes and to ensure that none of the parties would risk a punishment. Wang, Le Divorce en Chine, 70.
65. A woman could marry at the age of fourteen, and a man could get married at the age of sixteen. T'ung, “Min-shih fa-lii,” 281.
66. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 567.
67. All sons had to contribute equally to the maintenance of their old or diseased parents. If the parents were too old or too ill to be able to provide for themselves, their sons or grandsons had to take this task upon them. In the first place, they had to cultivate their land, the “old-age maintenance land” (yang-lao ti). If they refused, they were liable for punishment. This obligation explains why it was not unlikely that a son who lived elsewhere had to return to his parents and spend several years with them, cultivating their land and taking care of them. Huang, Civil Justice in China, 31.
68. Peasants in need of cash often mortgaged their grounds by means of a “conditional sale” (tien). In this system, they received about three quarters of the market value of their land from another private person. To gain back their property rights, they had to repay this price within a certain period of time, during which the creditor could use the land. Ibid., 36–39.
69. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 567.
70. This refers to the period immediately after the proposal of Wang Chi had been accepted by the emperor, when the precedent that originated from his proposal was still valid.
71. The precedent had indeed been revoked in 1465, so there was no longer any legal reason why the administrators would have had to follow it.
72. “The ministries in question”: most probably referring to the ministry of justice (hsing-pu), the ministry of revenue (hu-pu), and/or the ministry of personnel (li-pu) that was responsible for the officials, including the local magistrates.
73. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 567–68.
74. On these contracts, see Huang, Civil Justice in China, 92–93. The marriage contracts and agreements had to contain the following information: the identity and age of the two partners, the identity and signature of the person in charge of the marriage and of the matchmaker. See T'ung, “Min-shih Fa-lü,” 284.
75. Liu and Yang, Chung-kuo chen-hsi fa-lü tien-chi chi-ch'eng, 569.
76. Assistant magistrates (chu-pu) belonged to the staff of local units of territorial administration, especially districts, where they served under the vice magistrates and the district magistrate. See Hucker, A Dictionary of Official Titles, 182. Liu Ting was an assistant magistrate in the district of Li-yang in the present-day province of Chiang-su.
77. The “statutes” are the stipulations in the Ming code, whereas the “precedent” refers to the li issued in 1468.
78. Since the woman was not officially divorced, she was not authorized to remarry.
79. The provincial administration commissions (ch 'eng-hsiian pu-cheng shih ssu or pu-cheng ssu) were agencies at the provincial level, in charge of directing the routine administration of prefectures, sub-prefectures and districts, and especially the fiscal administration of these local units of territorial administration. Hucker, A Dictionary of Official Titles, 127.
80. The provincial surveillance commissions (an-ch'a ssu) were responsible for overseeing the judicial and surveillance activities in each province. Ibid., 103.
81. The southern metropolitan area (nan chih-li) was the region around the old Ming capital (until 1421), Nan-ching, and corresponded roughly to the present-day provinces of Chiang-su and An-hui. The northern metropolitan area (pei chih-li) was the region around the new Ming capital (after 1421), Pei-ching, and corresponded roughly to the present-day province of Ho-pei. The two metropolitan areas were supervised directly by the central government, without the intermediate level of provincial authorities. Ibid., 160.
82. The community elders (li-lao) were designated by the district magistrates. In each officially recognized community (li), they were in charge of local judicial matters. They played an important role in the informal judicial practice, in which they had a mediating function. Ibid., 306.
83. Liu and Yang, Chung-kuo chen-hsi fa-lii tien-chi chi-ch'eng, 569–70.
84. Sommer, Sex, Law, and Society in Imperial China, 317–18.
85. Ibid., 170. On chastity, see also Carlitz, Katherine, “Shrines, Governing-Class Identity, and the Cult of Widow Fidelity in Mid-Ming Chiang-nan,” in The Journal of Asian Studies 59.3 (1997): 612–40.CrossRefGoogle Scholar
86. On widow chastity during the Yuan from 1300 on, see Birge, “Levirate Marriage,” 128–43.
87. Huang, Ming-tai lii-li hui-pien, 499–512, contains precedents on marriage and divorce from most of the later collections of Ming precedents.
88. Huang, Civil Justice in China, 93.