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The following section on marriage corresponds with the Third Division, Book III, statues CI to CXVII in Staunton's edition (section 9 of the Chinese edition).
|* The peculiar customs and usages which are adverted to in this book of the laws, will be found illustrated and exemplified in a pleasing manner, together with an interesting picture of domestic life in China, in an English translation of a Chinese novel, which was edited many years ago by the learned and ingenious Dr. Percy, Bishop of Dromore, under the title of "Hau-Kiou-Choaan, or the Pleasing History." —The translation of this little work, not having been edited by the translator, and having, in part, been taken from a Portuguese version, cannot be expected to be minutely accurate, though perhaps sufficiently so for the purpose in view, and the translator of the present work has had the satisfaction of ascertaining its authenticity, by a comparison with the Chinese original, of which he has a copy now in his possession.|
When a marriage is intended to be contracted, it shall be, in the first instance reciprocally explained to, and clearly understood by, the families interested, whether the parties who design to marry are or are not, diseased, infirm, aged, or under age; and whether they are the children of their parents by blood, or only by adoption; if either of the contracting families then object, the proceedings shall be carried no further; if they still approve, they shall then in conjunction with the negotiators of the marriage, if such there be, draw up the marriage-articles, and determine the amount of the marriage-presents.
If, after the woman is thus regularly affianced by the recognition of the marriage-articles, or by a personal interview and agreement between the families, the family of the intended bride should repent having entered into the contract, and refuse to execute it, the person amongst them who had authority to give her away shall be punished with 50 blows, and the marriage shall be completed agreeably to the original contract. —Although the marriage-articles should not have been drawn up in writing, the acceptance of the marriage-presents shall be sufficient evidence of the agreement between the parties.
If, after the female is affianced, but previous to the completion of the marriage, her family promises her in marriage to another, the person having authority to give her away shall be punished with 70 blows; if such promise is made after the first marriage is actually completed, (that is to say, the bride is personally presented to and received by the bridegroom) the punishment shall be increased to 80 blows.
If the person who accepts such promise is, at the same time, aware of the existence of a previous contract or marriage, he shall participate equally in the punishment, and whatever marriage-presents he may have transmitted on the strength of such promise, shall be forfeited to government. —On the other hand, if ignorant thereof, he shall not be punishable, and the marriage-presents made by him shall be restored. —The bride shall remain with the bridegroom to whom she was first married or affianced, unless he declines, in which case he shall receive back the amount of his marriage-present, and the bride shall be transferred to the family of the bridegroom to whom the was. secondly affianced.
If the family of the intended bridegroom, after having agreed as aforesaid, repents of the contract, and makes marriage-presents to another woman, the same punishment shall be inflicted, as in the cases already mentioned. The bridegroom shall be obliged to receive his originally intended bride; and the female, to whom he is secondly affianced, shall retain the marriage-presents made to her, and be at the same time at liberty to marry another person.
If either of the contracted parties, previous to the completion of the marriage, are guilty of theft or adultery; that is to say, have been convicted of offences of such a description, the law for punishing a breach of the contract as aforesaid shall not be enforced. If the family of the bride deceives the family of the bridegroom, so as to induce them to contract a marriage, by indicating and leading them to expect a different person from the one actually named and described in the contract, the giver away of the woman shall be punished with 80 blows, and her family shall restore the marriage-presents. If the family of the bridegroom is guilty of this offence, the punishment of the contractor shall be one degree more severe, and the marriage-presents shall remain with the family of the bride. If such marriage, thus contracted through misrepresentation, is not completed, the bride or bridegroom, whom the other party had been led to expect, shall complete the marriage, Instead of the bride or bridegroom who had been deceitfully substituted; if the marriage under the aforesaid false pretences, had nevertheless been completed, it shall be sufficient that the parties be separated.
Although the parties had been lawfully affianced to each other, and the marriage presents delivered and accepted; yet if the bridegroom forcibly takes away his bride, previous to the period agreed upon, or if the bride is designedly retained and refused to the bridegroom, after such period is arrived, the contractor of the marriage in the latter case, and the bridegroom in the former case, shall be punished with 50 blows.
If, while a junior relation is at a distance from his family, and engaged either in trade, or in official employment under government, his grandfather, father, uncle, or senior cousin, binds him by a marriage-contract, and he, being ignorant thereof, happens to contract and complete a marriage with some other female during his absence, such marriage shall be held valid, and the contract made by his relations being therefore set aside, the affianced female will be at liberty to contract another marriage. If however, such absent junior member of a family had only contracted a marriage, he shall relinquish it, and in preference fulfill that contract of marriage which had been made for him by his relations, the female to whom he had personally contracted himself, being also freed from her engagement to him. —A breach of this law shall be punished with 80 blows, and compliance with these regulations shall be duly enforced by the magistrate of the district.
Whoever lends any one of his wives, to be hired as a temporary wife, shall be punished with 80 blows, —whoever lends his daughter in like manner, shall be punished with 60 blows; the wife or daughter in such cases, shall not beheld responsible.
Whoever, falsely representing any of his wives as his sister, gives her away in marriage, shall receive 100 blows, and the wife consenting thereto, shall be punished with 80 blows.
Those who knowingly receive in marriage the wives, or hire for a limited time the wives or daughters of others, shall participate equally in the aforesaid punishment, and the parties thus unlawfully connected, shall be separated; the daughter shall be returned to her parents, and the wife to the family to which she originally belonged; the pecuniary confederation in each case shall be forfeited to government. Those who ignorantly receive such persons in marriage, contrary to the laws, shall be excused, and recover the amount of the marriage-presents.
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|*-The peculiar limitations under which polygamy is allowed in China require here some explanation, as it was impossible in translating the text, to distinguish by any terms strictly appropriate, the two modes of espousal which are established by the Chinese laws, and which are equally distinct in point of form as in their legal consequences.|
|The first or principal wife is usually chosen for the husband by his parents or senior relations, out of a family equal in point of rank and to other circumstances to his own, and is espoused with as much splendour and ceremony as the parties can afford; and the bride, when she is received into the house of the bridegroom, acquires all the rights and privileges, which, under the degraded state of the female sex in Asiatic nations, can be supposed to belong to a lawful wife.|
|A Chinese may afterwards lawfully espouse other wives, agreeably to his own choice, and with fewer ceremonies, as well as without any regard to equality in point of family and connexions: these wives are all subordinate to the first wife, but equal in rank among themselves. In describing this connexion, the term inferior wife has been preferred to that of hand-maid, or concubine, as there are always certain forms of espousal, and as the children of such wives have a contingent right to the inheritance.|
Whoever degrades his first or principal wife to the condition of an inferior wife or concubine, shall be punished with 100 blows. Whoever, during the life-time of his first wife,. raises an inferior wife to the rank and condition o a first wife, shall be punished with 90 blows, and in both the cases, each of the several wives shall be replaced in the rank to which she was originally entitled upon her marriage.
Whoever, having a first wife living, enters into marriage with another female as a first wife, shall likewise be punished with 90 blows, and the marriage being considered null and void, the parties shall be separated, and the woman returned to her parents.
|*-It is remarked in a note in the original Chinese, that the bridegroom, who, instead of taking home his bride to his own house, lives with her at the house of her parents, by so doing, deviates from the established forms of espousal; but that having been once so received as a son-in-law, the law protects him in the right which he had acquired, of either remaining there with his wife, or taking her away with him to a separate establishment.|
Whoever either ejects the husband of his daughter whom he had received into his house as his son-in-law, or, receives into his house another person, as the husband of such daughter, shall be punished with 100 blows. The wife shall not be punished unless she had assisted and concurred in the ejection of her husband, in which case she shall likewise suffer 100 blows. The person, moreover, who is secondly received as a son-in-law, if privy to the illegality of the transaction, shall participate equally in the punishment, and forfeit to government the marriage-present, but otherwise, shall be excused from the punishment and the forfeiture. When the first marriage had been contracted, but not completed, the ejection of the intended son-in-law shall be punished less severely by five degrees. - The woman shall belong to her first contracted husband, and live with him separately from her father and mother.
If any man or woman enters into an equal marriage during the legal period of mourning for a deceased parent, or any widow enters into a second and equal marriage within the legal period of mourning for her deceased husband, the offending party shall be punished with 100 blows.
If it is not an equal match, that is to say, if a man takes an inferior wife from a subordinate rank, or a woman connects herself in marriage as one of the inferior wives of her husband, the punishment attending a breach of this law shall be less by two degrees.
If a widow who, during the life of her husband, had received honorary rank from the Emperor, ever marries again, she shall suffer punishment as above described, and moreover lose her rank, as well as be separated from her second husband.
Whoever knowingly contracts marriage with a widow of rank, or with any widow during the legal period of mourning, shall suffer punishment in each case proportionably less by five degrees, and the marriage-present shall be forfeited to government; if ignorant of the illegality of his conduct, he shall be exempt from punishment, and recover the marriage-present, but still be separated from his wife, as in the cases already stated.
Whoever marries on equal terms, during the period of legal mourning for a grand-father, grand-mother, uncle. or aunt, elder brother or elder sister, shall suffer 80 blows, but the marriage. shall nevertheless be valid.
The marriage of, or with, inferior wives within such period shall be excused.
Whoever within the period of mourning for a father, mother, father or mother-in-law, or for a husband, completes an intended marriage to which the parties had been previously affianced, shall be punished with 80 blows.
If a widow; after the expiration of mourning for her husband, is really unwilling to enter into a second marriage; and nevertheless, her parents, grand-parents, or the parents or grand-parents of her late husband, force her to marry again, the party so compelling his daughter or grand-daughter to marry, shall be punished with 80 blows. If the widow is so compelled by any other relation in the first degree, such relation shall be punished one degree more severely; —if in a more remote degree, two degrees more severely. Neither the widow nor her second husband shall in these cases be punishable. —If she marriage is only contracted, but not completed, the widow, shall remain in her first husband's family, and be permitted to continue 'single, and she marriage present shall be returned; —if the marriage has been completed, the widow shall live with her second husband, but the marriage-present shall be forfeited to government.
Whoever marries a wife or a husband upon equal terms of espousal, having a father, mother, grand-father or grand-mother at the same time under confinement in prison for a capital offence, shall be punished with 80 blows; —whoever at such time receives in marriage, or becomes by marriage, a subordinate wife, shall suffer punishment less by two degrees.
Nevertheless, if any such person enters into the marriage state at such period, by the express command of his or her parent or grandparent in prison, no punishment shall ensue, provided the usual feast and entertainment is omitted; otherwise a punishment of 80 blows shall still be inflicted.
Whenever any persons having the same family-name intermarry, the parties and the contractor of the marriage shall each receive 60 blows, and the marriage being null and void, the man and woman shall be separated, and the marriage-presents forfeited to government *.
|*-The most usual term in the Chinese language for describing " the people or nation," is Pe-sing, or " the hundred names." [Băixìng 百姓 —DKJ] Although the names of families in China are at present somewhat more numerous, they are very few in proportion to the immense population, and the restrictions imposed by this law upon marriage must therefore be often embarrassing and inconvenient, however little the choice and inclination of the parties themselves, may under any circumstances, be consulted.|
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In general all marriages between persons who through another marriage are already related to each other in any of the four degrees, and all marriages with sisters by the same mother, though by a different father, or with the daughters of a wife's former husband, shall be considered as incestuous, and punished according to the law against a criminal intercourse with such relations *:
|*-The book of the laws referred to in this and the following section is contained in the criminal division of the code, and entitled, Incest and Adultery.|
A man shall not marry his father's or mother's sister-in-law, his father's or mother's aunt's daughters, his son-in-law's or daughter-in-law's sister, or his grandson's wife's sister, on pain of receiving 100 blows for such offence.
Whoever marries his mother's brothers or mother's sister's daughter, shall receive 80 blows, and in these as well as the foregoing cases, the marriage shall be annulled, and the marriage-present forfeited.
Whoever marries a female relation beyond the fourth degree, or the widow of a male relation equally remote, shall be punished with 100 blows. Whoever marries the widow of a relation in the fourth degree, or of a sister's son, shall be punished with 60 blows, and one year's banishment. —Whoever marries the widow of any nearer relation, shall be punished according to the law against incestuous connexions with such persons. Nevertheless, when the connexion had been broken by a divorce, or an intervening marriage with a stranger, the offence shall in general be only punished with 80 blows.
Whoever receives in marriage any of his father's or grandfathers former wives, or his father's sisters, shall, whether they had been divorced or re-married, in all cases suffer death, by being beheaded. Whoever marries his brother's widow, shall be strangled.
The foregoing cases, in general apply to first wives only, and the punishment of marrying the inferior wives of such relatives as aforesaid, shall be less in each case by two degrees.
Whoever marries any female relation in the fourth, or any nearer degree, shall be punished according to the law concerning incest, and all such incestuous marriages shall be null and void.
If any officer belonging to the government of a city of the first, second, or third order, marries, while in office, the wife or daughter of any inhabitant of the country under his jurisdiction, he shall be punished with 80 blows.
If any officer of government marries the wife or daughter of any person having an interest in the legal proceedings at the same time under his investigation, he shall be punished with 100 blows, and the member of the family of the bride, who gave her away, shall be equally punishable. The woman, whether previously married or not, shall be restored to her parents, and the marriage-present forfeited in every case to government.
If the officer of government accomplishes the marriage by the force or influence of his authority, his punishment shall be increased two degrees, and the family of the female, being in such a case exempt from responsibility, she shall, if previously single, be restored to her parents; and if previously married, to her former husband, the marriage-present shall, not in either case be forfeited.
If any officer of government, instead of marrying the female himself in any of the above cases, gives her in marriage to his son, grandson, younger brother, nephew, or other person belonging to his house-hold, he shall be liable to the same punishment as aforesaid, but neither the bride nor the bridegroom shall suffer for such offence.
When the marriage is a compensation for some unjust decision on a subject under the magistrate's investigation, the punishment shall be increased as far as the law, applicable to such a deviation from justice, may authorize.
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Whoever receives and marries a female criminal, who had absconded from the fear of punishment, shall, whether she had been previously married or not, be punishable to the full extent of the crime such female had committed, setting aside only the aggravation of two degrees to which she is liable from her being a fugitive, and with a reduction of one degree, when. the offence of the female is of a nature to be punishable with death. The marriage shall moreover be annulled, and the parties separated, unless the, female was previously single, and obtains the benefit of a special or general pardon. When the person marrying a criminal fugitive had been ignorant of the circumstance of her being such, he shall be excused.
Whoever, confiding in his power and influence, seizes by violence the wife or daughter of a free-man, and carries her away to make her one of his wives, shall suffer death, by being strangled after the usual period of confinement.
If the female was single, she shall be returned to her parents or relations; and, if previously married, to her lawful husband. Whoever, instead of marrying such female himself, gives her in marriage to his son, grand-son, brother, nephew, or other person of his household, shall be liable to the same punishment, and the parties shall be separated, as in the former case; but the husband, not being the contriver of the offence, shall not be punishable.
If any officer or clerk of government, either in the civil or military department, marries, as his first or other wife, a female musician or comedian, he shall be punished with 60 blows, and the marriage being null and void, the female shall be sent back to her parents and rendered incapable of returning to her profession. The marriage-present shall be forfeited to government.
If the son or grand-son, being the heir of any officer of government having hereditary rank, commits this offence; he shall suffer the same punishment, and whenever he succeeds to the inheritance, his parental honours shall descend to him under a reduction of one degree.
|*-See Section 42. and 77 relative to these orders of priesthood in China. [These passages are not included in this extract. —DKJ]|
[This refers to Buddhist and Daoist priests. Foe is clearly fó 佛 (Buddha). Tao-sse is probably dàoshì 道士 (Daoist priest). —DKJ]
If any priest of Foe or Tao-sse takes a first or inferior wife, he shall be punished with 80 blows, and expelled from the order to which he belonged. The member of the family of the female who gave her away in marriage shall be equally punishable; the marriage shall be null and void, the female sent back to her family, and the marriage-present forfeited to government; all the other priests of the same establishment who were privy to the offence, shall be subject to the same corporal punishment, but not to expulsion from their order; if ignorant of the offence having been committed, they shall not suffer punishment in any respect.
If a priest solicits a woman in marriage, under pretence of obtaining a wife for his relations or servants, and afterwards appropriates the female to himself, the offence shall be punished according to the law prohibiting incestuous intercourse and adultery.
If any master of a family solicits and obtains in marriage for his slave, the daughter of a free-man, he shall be punished with 80 blows; —the member of the family who gives away the female in marriage shall suffer the same punishment, if aware that the intended husband is a slave, but not otherwise.
A slave soliciting and obtaining a daughter of a free-man in marriage, shall also be punished in the same manner; and if the master of the slave contents thereto, he shall suffer punishment less by two degrees; but, if he moreover receives such free-woman into his family as a slave, he shall be punished with 100 blows.
Likewise, whoever falsely represents a slave to be free, and thereby procures such slave a free husband or wife, shall suffer 90 blows. In all these cases the marriage shall be null and void, and the parties replaced in the ranks they had respectively held in the community.
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If a husband repudiates his first wife, without her having broken the matrimonial connexion by the crime of adultery, or otherwise; and without her having furnished him with any of the seven justifying causes of divorce, he shall in every such case be punished with 80 blows. Moreover, although one of the seven justifying causes of divorce should be chargeable upon the wife, namely, (1) barrenness; (2) lasciviousness;. (3) disregard of her husband's parents; (4) talkativeness; (5) thievish propensities; (6) envious and suspicious temper; and, lastly, (7) inveterate infirmity; yet, if any of the three reasons against a divorce should exist, namely, (1) the wife's having mourned three years for her husband's parents; (2) the family's having become rich after having been poor previous to, and at the time of, marriage; and, (3) the wife's having no parents living to receive her back again; in these cases, none of the seven aforementioned causes will justify a divorce, and the husband who puts away his wife upon such grounds, shall suffer punishment two degrees less than that last stated, and be obliged to receive her again.
If the wife shall have broken the matrimonial connexion by an act of adultery, or by any other act, which by law not only authorizes but requires that the parties should be separated, the husband shall receive a punishment of 80 blows, if he retains her.
When the husband and wife do not agree, and both parties are desirous of separation, the law limiting the right of divorce shall not be enforced to prevent it.
If, upon the husband's refusing to contest to a divorce, the wife quits her home and absconds, she shall be punished with 100 blows, and her husband shall be allowed to sell her in marriage; if, during such absence from her home, she contracts marriage with another person, she shall suffer death, by being strangled, after the usual period of confinement.
If, previous to the expiration of a period of three years after a husband had deserted and been no more heard of by his wife, such wife, without giving notice at a tribunal of government, should likewise quit her home and abscond, she shall be punished with 80 blows; and the punishment shall be increased to 100 blows, if she should moreover presume to contract another marriage within such period.
In all the foregoing cases, the first wife only is intended to be adverted to, but the laws in every instance shall be applied in cases of the inferior wives, upon a reduction being made in the punishment to the extent of two degrees for each offence.
To render the act of the wife a second marriage, there must have been a person to give her away to the new husband, and a delivery of marriage-presents; otherwise, it is to be considered simply as a case of adultery.
If a female slave deserts from her master's house, she shall be punished with 80 blows, or with 100 blows if she contracts a marriage during such absence, and in both cases she shall be restored to her master:
Whoever harbours a fugitive wife or slave, or marries them knowing them To be fugitives, shall participate equally in their punishment, except in capital cases, when the punishment shall be reduced one degree. The marriage-present in all such cases is forfeited to, government. When, however, the person harbouring or marrying the fugitive is really ignorant of her criminality, he shall not be subject to any punishment, and shall be even entitled to demand the return of the marriage-present. `
In the foregoing cases, if the giver-away in marriage of a fugitive wife, in the absence of her lawful husband, is an elder relation in the first degree of such female, the punishment attending such unlawful marriage shall be solely inflicted on the relation, and the female shall suffer, without aggravation, the punishment to which she was liable as a fugitive.
If the giver-away in marriage of such female was any more remote elder relation, the relation shall still be punished as in the last instance, but the female and the person marrying her, shall likewise be punishable, as accessories to the aggravated offence. If, in such cases, the proposal of the marriage is shown to arise from the parties themselves, they shall be punished as principals, and the giver-away of the female as an accessory only; but the punishment of the latter, although in extreme cases nominally capital, shall never exceed 100 blows and perpetual banishment to the distance of 3000 lee.
In all marriages contracted contrary to law, if the giver-away of the bride, or the contractor of the marriage on the part of the husband, is the paternal or maternal grand-father, grand-mother, father, mother, paternal uncle or aunt, or paternal elder male or female cousin, the punishment denounced by law full be solely inflicted on such relations, and the parties themselves shall not be held responsible.
When the giver-away of the wife, or contractor of the marriage as aforesaid, is a more remote relation of the party marrying, but is still the chief agent in procuring the unlawful marriage, he or she shall be punished as a principal, but the husband and wife shall likewise participate in the punishment of the offence, as accessories.
If, on the contrary, the unlawful marriage contracted as above originated with the parties themselves, they shall be punished as principals in the offence, and those who contracted the match for them, as accessories only.
When, according to the application of these rules, the parties to a marriage are punishable as principals with death, the law shall be carried strictly into effect; but, when the persons who contracted an unlawful marriage in behalf of others, are nominally liable to capital punishment, it shall be mitigated one degree; those, however, who are punished as their accessories, shall still suffer as accessories to a capital offence.
Moreover, if the husband and wife, in consequence of having been previously terrified and threatened by their elder relations, had entered into an unlawful marriage, which they had not themselves devised or originated; or if the husband was not twenty years of age complete, and the wife had never previously quitted her parent's roof, the contractors on each side of the unlawful marriage shall, under such circumstances, be alone punishable and responsible;
When any unlawful marriage has been only contracted, but not completed, the punishment of the responsible parties shall always be less by five degrees.
The negotiator of any unlawful marriage, knowing it be unlawful, shall suffer punishment within one degree of that inflicted on the responsible party, but otherwise shall be, excused.
In general, in every case in which it is directed that an unlawful marriage shall be annulled, the parties shall be placed in the same condition as that in which they were previous to the marriage; and although any general act of pardon should intervene, and occasion a remission of the punishment denounced by law against them as public offenders, such pardon shall be no bar to the divorce.
In general also, when the party giving the marriage-present is, at the same time, aware of the unlawfulness of the transaction, such present shall be forfeited to government; but otherwise it shall be restored to the giver.
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