CHAPTER XXXIV

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