Dominiek Delporte

Precedents and the Dissolution of Marriage Agreements in Ming China (1368–1644). Insights from the "Classified Regulations of the Great Ming," Book 13

After a period of Mongolian rule during the Yüan Dynasty (1279–1368), the first Ming emperor, T'ai-tsu,¹ 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

Lü and Li

The "Great Ming Code," "Ta Ming Lü," that underwent its final revision under T'ai-tsu in 1397, consisted, in its final version, of 460 lü, "statutes," permanent provisions that were classified under seven headings (general principles, administrative statutes, civil statutes, ritual statutes, military statutes, penal statutes, and statutes on public works).² These statutes provided specific penal sanctions for violations against the rules they set out. 2

     After T'ai-tsu, no Ming emperor altered the code and its statutes, although social and economic changes sometimes required an extension or an "updating" of certain statutes. This problem was solved by issuing ad hoc edicts and regulations that had the force of laws and that served as precedents in subsequent similar cases. These "precedents," "li," were valid until they were officially withdrawn or replaced by the emperor. Most originated in petitions submitted to the emperor by officials who felt the need for new or additional provisions regulating matters they were familiar with or concerned about, and for which they found it hard to apply the statutes in the code. In their memorials to the throne, they proposed specific changes in the legislation, and they tried to give sufficient argumentation to defend their proposals. The emperor could then respond by issuing a precedent that made the proposed change in legislation. Sometimes, selections of these li were collected and edited. The demand for their codification grew stronger as the Ming went on, and occasionally collections of li were edited together with the statutes of the code as "sub-statutes" that complemented the "statutes" in the code.³ 3

     The first Ming emperor issued many ad hoc decrees, sometimes almost arbitrarily, so that the precedents started to contradict each other or were not even known to the officials who had to apply them. His successor, Chien-wen,⁴ tried to reduce the number of precedents drastically. But after his short reign, his successors continued to issue numerous ad hoc precedents that sometimes conflicted with the code or with each other. Only in the second half of the fifteenth century, the Ch'eng-hua emperor⁵ took firm steps to solve the inconsistency in Ming legislation. In 1465, he abolished all the precedents promulgated by previous emperors, retaining only the "Great Ming Code" as the basis for legislation. Since the code alone proved to be insufficient to deal with legal matters in the changing socio-economic environment of the Ming, the Ch'eng-hua emperor himself also issued a number of new precedents, and several high officials pressured the emperor to recover some of the abolished precedents of the past. During the years that followed, these officials repeatedly proposed to select and collect a number of precedents that officials were allowed to apply.⁶ 4

     In 1500, during the Hung-chih reign,⁷ the first official collection of Ming precedents was issued under the title "Wen-hsing t'iao-li" ("Itemized precedents for trying penal matters"). The Hung-chih emperor was extremely devoted to Confucianism and deeply concerned about the functioning of the government and the judicial administration. Out of this concern, he had the administration and the code examined, and he appointed new officials in important central judicial bureaus. One of the most important achievements of his judicial reforms was the promulgation of the "Itemized precedents for trying penal matters," a work that contained a number of carefully reviewed and officially recognized precedents. 5

The "Classified Regulations of the Great Ming"

The order for the compilation of the "Huang Ming t'iao-fa shih-lei-tsuan" ("Classified regulations of the great Ming")⁸ was given by the Hung-chih emperor. The work is traditionally attributed to investigating censor⁹ Tai Chin (1484–1548), who is said to have finished it between 1531 and 1533,¹⁰ but who was probably not the real author of this work.¹¹ The "Classified regulations of the great Ming" contain provisions in the form of li, together with the memorials, petitions, and requests for imperial sanction that had led to the issuing of these decrees. These memorials and li were classified according to the structure of the official Ming code (one section with general principles, six sections with regulations relating to each of the six ministries,¹² and one section on the five punishments),¹³ and not chronologically. With the exception of two memorials,¹⁴ all were submitted to the emperor between 1464 and 1494, during the Ch'eng-hua and Hung-chih government periods, by the censorate,¹⁵ the six ministries, and other government bureaus who received and transmitted them.¹⁶ Many of the memorials entered and the decrees promulgated prior to the Ch'eng-hua era are lost, and for many of the edicts issued after the reign of Hsiao-tsung, only the text of the decrees themselves is still extant, without the memorials that led to their promulgation. 6

     The term "t'iao-fa" ("regulations") was, traditionally, a designation for imperial edicts and regulations that had the force of laws. When written down and collected, these "t'iao-fa" ("regulations") often had specific instances attached to them that served as precedents for officials who had to judge cases according to these regulations. Compilations of these regulations and their "attachments" were then called "shih-lei" ("classified according to the matter").¹⁷ In the "Classified regulations of the great Ming," the memorials that had led to the promulgation of each individual "precedent" (li) were attached to the different regulations. The "Classified regulations of the great Ming" give instances of these proposals written by magistrates of different classes and functions, asking for imperial approval. Generally, the "Classified regulations of the great Ming" also include a description of the procedure of submitting, transmitting, and accepting the individual proposals. In most cases, they give the titles of the precedents that resulted from these proposals. In only a few instances, the proposal itself is preserved, but the exact title of the corresponding precedent is lost. 7

     The number of precedents contained in the "Classified regulations of the great Ming" is much larger than the number of precedents in the "Wen-hsing t'iao-li" or later collections of precedents, of which many were appended to editions of the code.¹⁸ The latter only contained a limited selection of precedents.¹⁹ The "Classified regulations of the great Ming" contain many precedents that were never appended to the later editions of the code that appeared in the sixteenth century. The selected precedents printed together with the code as "sub-statutes" were undoubtedly better known to the officials than those that were not selected for these collections. The latter might be forgotten, or overlooked, or officials were simply not aware of their existence. And even if the officials knew them, they probably felt much less pressure to apply them than they did for the sub-statutes.²⁰ That does not mean that they were less valid—they were valid until they were officially revoked. But their status and recognition among officials appear to have been much lower than that of those appended to the code. 8

Marriages in Imperial China

In this section, we can only give an ideal "standard model" of the complex practice of marriage, which varied according to region and social class. These variations made it difficult for the officials to apply the judicial regulations in the specific context of each case.²¹ The model described applies to most of the elite families and relatively wealthy ordinary families. Among the socially lower classes, marriage customs often diverged from this general model, and regional differences were more apparent. 9

     Engagements, marriages, and divorces in imperial China were a matter of family interests and alliances, rather than affectionate relationships between individuals. The mutual consent of both family heads was required before a couple could get married. People did not have the right to refuse marriage if the senior relatives (mostly the parents and/or grandparents) had agreed with the senior relatives of the wedding partner. The normal procedure of engagements and weddings consisted of the so-called "six rites":²² first, a mediator officially established the contact between the two families; then, the name and date of birth of the girl were ceremoniously asked. After this was done, the horoscopes were consulted to determine whether the marriage would be favorable or not; next, the father of the bridegroom handed over the betrothal gifts;²³ this was followed by fixing the day of the wedding; and finally, the bride was taken to the bridegroom's house. The go-between, whose function was to establish the contacts and to facilitate the reaching of an agreement, was a man or woman, often from the immediate environment of one of the partners, such as a neighbor or a relative. The mediator also composed the matrimonial contract. This included the sum of the bride price, the identity and age of both partners, and the identity of the person who presided over the wedding ceremony, usually the parents or grandparents. Both families then received a copy of this contract.²⁴ 10

     The family of the bride had to give a dowry, often consisting of cash, land, clothing, or jewelry, to the family of her husband. Generally, until the Sung dynasty (960–1271/1279), the dowry was smaller in value than the betrothal gifts given by the family of the groom. In the early Sung, the size and value of the dowry started to increase. In many cases—especially in elite families—the value of the dowry was as high as the value of the betrothal gifts, or even higher. In ordinary peasant families, the dowry was probably smaller in value than the betrothal gifts the woman's family received, but also among some of these families, the dowry could be high.²⁵ The increasing value of dowries from the Sung on was probably a consequence of the aspirations of the emerging elite to build up networks of connections in order to facilitate their official careers. The heads of these families tried to marry their daughters or granddaughters off to influential families that were more established. These families expected, of course, that the parents of their daughter-in-law could afford to give her a substantial dowry.²⁶ Also in the Ming, the dowry was in many cases as valuable as the betrothal gifts the bride's family received. 11

     The betrothal gifts, handed over by the bridegroom's family to the bride's natal family, were also an important factor in marriages. At the dissolution of a marriage or engagement, the man's family could reclaim these betrothal gifts under certain conditions. This prospect could persuade them to take judicial steps against the woman if she decided to divorce or end the engagement. 12

     During the Yüan dynasty (1271/1279–1368), under Mongolian rule, important evolutions took place in the field of marriage and divorce law that continued to shape the Chinese approach towards marriage and divorce in the Ming. The Mongolian levirate system allowed older relatives to obtain, by inheritance, the wife of a deceased younger relative. The rights over a woman belonged to the family of her husband forever and could be passed to other relatives if the husband died. Thus the wife's property—she was usually given livestock by her husband's family when she married—remained with the husband's family. In 1271, an edict from Khubilai stipulated that the practice of levirate had to be extended to the Chinese in his empire, and the Chinese rule that a widow could return to her family after her husband's death, and stay chaste, was also abandoned. The authority to arrange a new marriage was taken away from the woman and her natal family and was given to her husband's family. This also meant that the woman's right to take her dowry with her (back to her natal family or to a new husband), if her husband died or in case of a divorce, disappeared. According to a decree, the dowry had to remain with the family of the man at the dissolution of a marriage.²⁷ In the late 1270s, the enforcement of these rules on Chinese became less strict, but many Chinese families still applied them. After Khubilai died in 1294, his successor, Temür, was more interested in Confucianism, and he tried to limit the application of levirate rules. Still, for several decades and even centuries, many Chinese families continued to feel that the rights over women, their labor, and their marriage gifts belonged to the husbands' families rather than their natal families.²⁸ 13

     Also in the Ming and Ch'ing dynasties, severe restrictions were placed on women's control over the dowries they brought with them, especially on the possibility for these women to take their dowry with them if they divorced or if their husbands died. Husbands and their families kept a strong sense of "perpetual control over the woman." 14

The Dissolution of Marriages and Engagements in Imperial China

The initiative for a divorce in imperial China came, in almost all cases, from the husband and his family. The man traditionally had "seven grounds for repudiation" that he could invoke to divorce his wife: if his wife could bear no son; if his wife was wanton; if she did not obey her parents-in-law; if she was gossipy and meddlesome; if she committed theft; if she was jealous and envious; and if she had a dangerous disease.²⁹ He could, however, not reject his wife if she had shown considerable respect for his family by mourning for his parents during the full three-year mourning period,³⁰ if she had no family left to return to, or if the couple's initially poor household had acquired wealth after the marriage.³¹ 15

     Prior to the Ming (1368–1644), when the wife and her family wanted a dissolution of a marriage agreement, the fulfilment of their wish was, in a large majority of the cases, impossible without the consent of the husband and his family. In the case where a man beat his wife so seriously that she broke a limb, a tooth, a finger or a toe, she could instigate a divorce.³² Acts of extreme violence, committed by either of the spouses against relatives of the other, or either spouse having sexual relations with close relatives of the other, made an end to the "relation of confidence" between the two families. In these cases, a dissolution of the marriage was compulsory. These compulsory divorces were called "i-chüeh," "breaking the bond," since the actions of one of the partners had broken the bond between the two families. These were the only legal grounds for a woman to obtain a divorce.³³ In some individual cases, however, the dissolution of a marriage initiated by the wife was accepted, even by the judicial authorities. Patricia Ebrey gives a few examples, such as a case in which the emperor allowed, as a special favor, the divorce of a woman from her mentally ill man, as petitioned by her grandfather, or one in which a wife was allowed to leave her husband because he could not support her materially.³⁴ In most cases, however, judges did not accept such petitions, as they did not have any legal grounds. 16

     In the Mongolian Yüan dynasty, dissolutions of marriage agreements on the initiative of women and their natal families were made nearly impossible, as the right over the women had to remain with the family of her husband, no matter what happened. If the couple did divorce, the woman could not take her dowry with her into a new marriage. 17

     In the Ming Dynasty, there was increased legal consideration of the petitions from women and their families who found themselves in situations for which a dissolution of the marriage or the engagement was the only reasonable solution. The texts translated below refer to cases in which divorce, or breaking off the engagement, was not obligatory, but in which a woman and her family did have the right to petition for a dissolution of the marriage agreement, although, as we will see, the local government officials did not always want to recognize these rights. 18

     In cases involving divorce on the initiative of the man and his family, the possibility and relative freedom to divorce one's wife were frequently abused, as can be seen from a statute in the Ming code that refers to cases where people "bought" a divorce. In such instances, somebody paid the husband in order to make him divorce his wife, so that the "buyer" could marry her.³⁵ 19

Ming "Commandments," "Statutes," and "Precedents" on Divorce and Dissolution of Engagements

Civil disputes were generally supposed to be dealt with by the informal judicial system,³⁶ unless they involved criminal actions. In some disputes, however, no informal settlement that was satisfying for the parties involved could be reached, so that these parties, or at least one of them, expected the government magistrates to judge their case.³⁷ A clear instance of such matters are marriage and divorce cases³⁸—not the ones caused by criminal actions committed by one of the partners, such as violence, but cases in which a divorce, or the discontinuing of an engagement, was petitioned for by a woman who was abandoned or nearly abandoned by her partner. The legal provisions for dealing with such cases were not always sufficient, and they needed to be supplemented by precedents issued by the emperor. The thirteenth book of the "Classified regulations of the great Ming" contains such precedents, with the related memorials and proposals attached to them, that were to be applied in matters of civil nature, matters dealt with by the ministry of revenue.³⁹ These regulations also contain precedents (in paragraphs twenty-seven and twenty-eight)⁴⁰ for judging cases in which a woman and her family could, successfully, submit petitions asking for permission to divorce or to withdraw from a marriage agreement. 20

The Provisions in the "Ming Commandments" and the "Ming Code"

The first collection of legal rules of the Ming was entitled "Ta Ming Ling" ("Great Ming Commandments").⁴¹ In addition to these "commandments" ("ling"), a first body of "statutes" ("lü") was composed in the early days of the Ming Dynasty. One of the articles in the section of "Regulations for the ministry of revenue" in the "Ta Ming Ling" offers detailed stipulations regulating divorce and withdrawal from marital agreements. In the article on "arranged marriages," we find the following provisions: 21

In all cases where a man and a woman get married, their wedding is presided over by their grandparents or their parents.⁴² In all cases where they do not have grandparents or parents [anymore], the wedding is presided over by other relatives. If, after the husband dies, the wife remarries and takes her daughter with her, then the mother [alone] arranges the marriage of her daughter. If they are engaged, but they are not married yet, and one [of them], man or woman, dies, then the betrothal gifts [that the woman's family has received] do not have to be returned [to the family of the man]. If the man to whom she is engaged commits theft, and he is banished⁴³ as a criminal to another region, and the family of the woman wishes to break off [the relationship], then they may [do so, in which case they must] return the betrothal presents. If the woman to whom [a man] is engaged commits adultery, and she is sentenced for it,⁴⁴ and the family of the man wishes to terminate [the relationship], then they recover the betrothal gifts. If, five years after [the contracted date], the man has still not married her, or he has deserted her [after their marriage] and has not come back yet after three years, then, in both cases, [the local officials] are authorized, after [the woman and her family] have reported [the man's absence and their choice to withdraw from the marital agreement] to the authorities, to issue a certificate [to the family of the woman, allowing her] to marry another man,⁴⁵ and the betrothal gifts do not have to be returned [to the family of the man].⁴⁶

This article clearly states the conditions under which the local authorities had to accept requests to terminate marriages or engagements, and obviously, the long-term absence of a woman's husband or fiancé was one of these conditions. If the woman and her family decided to withdraw from the marital agreement, then they had to turn to the authorities first. Only after the authorities had approved and issued a certificate declaring that her previous engagement had been nullified, could she marry somebody else. 22

     If a woman left her husband for a new marriage partner on her own initiative, without his consent and without a valid reason, she was liable for punishment, in the form of one hundred blows with a heavy bamboo staff. If she left within three years after her husband had deserted her, without informing the authorities, then she would receive eighty blows with a heavy bamboo staff. If she also remarried on her own initiative, she would receive the full one hundred strokes.⁴⁷ 23

     If a woman wished to cancel her engagement to a man, and received official authorization to do so, her natal family could keep the betrothal presents. If she did so without authorization, and married somebody else, this new marriage was classified as "adultery," and she had to return the betrothal gifts to the man's family. The rights over the woman were transferred from her natal family to the man's family with the giving of the betrothal gifts, even if no formal contract had been signed yet at that moment. 24

     In 1373, the founding emperor ordered his officials to revise the code. The "statutes" (lü) were revised, and many of the original "commandments" (ling) were included in this new version of the code. But a number of "commandments" were not included, and they lost their significance in the legal system of the Ming.⁴⁸ Further revisions followed, and only a fraction of the original "commandment" translated above was retained in the final version of the "Great Ming Code." The final version of the statute on "dismissing a wife" ("ch'u-ch'i") contains, among others, the following stipulation: 25

If, because her husband has deserted her, [a woman] leaves [the house of her husband] within three years [after the husband's departure] without entering a plaint with the authorities, she will receive eighty blows with the heavy bamboo. If she remarries on her own initiative, she will receive one hundred blows with the heavy bamboo.⁴⁹

This statute does imply that a woman could leave freely if her husband had left her and had not returned after three years, and that she was not punished if she reported her husband's absence and her intention to leave to the authorities. But no further guarantees are given about matters such as her right to remarry. That this stipulation, in comparison to the "commandment," was too vague and hollow, can be seen from memorials and precedents that were issued later, and that are translated below. 26

     In the statutes on marriage, we also find the stipulation that a woman's natal family had to return the betrothal gifts they had received from the family of the man if she left the latter illegally.⁵⁰ 27

The Precedent of 1452

The first precedent (li) resurrecting the contents of the original "commandment" ("ling") was issued in 1452, as an imperial reply to the memorial of Wang Chi.⁵¹ In 1452, Wang directed a memorial to the throne, asking to reverse a judicial decision in the case of a certain Lü Ying, son of a military commander, who was engaged to a girl named Ko, daughter of a guard commander. After the engagement, Lü Ying was transferred to a garrison in the north, where he married another woman and also took a concubine. Meanwhile, Ko had grown up and had married a certain Liu Yü, and she had given birth to his three children. Lü Ying then entered an accusation against her, demanding that she leave Liu Yü and become his concubine. The lower court agreed with Lü that Ko had remarried illegally, and that she had to leave her husband to marry Lü Ying. Wang Chi was convinced that she had the right to remarry and took his objections to the imperial court. It is not totally clear why a minister of war was so concerned about a civil case. As the matter involved the families of two military commanders, his personal relations with these commanders probably urged him to intervene. In his memorial to the throne, we find the following complaints: 28

I have noticed that recently, there are rascals and vagrants who, after they have agreed on getting married, are either afraid that they will not earn enough [income to provide their household with] food, [so that] at the first opportunity, they shirk responsibility and flee from home, or who leave for elsewhere to engage in trade,⁵² and [there] they do as they please and wander about. Some of these people do not go back for five or seven years. Some have to perform corvée labour⁵³ in another region, others are transferred⁵⁴ as officials to another bureau. There are some of whom no news gets through [to their fiancée] for seven or eight years. They even indulge in sexual licentiousness and forget to behave in a correct manner. They neglect [their relation with] the woman they were originally engaged to, they take another wife and [sometimes also] concubines, and [with them] they have children and start a family. [In the meantime], the father or elder brothers of the woman to whom [the man who has left] was originally engaged feel pity because of the fact that their daughter [or sister] has already grown up⁵⁵ and it might be too late for her to find a partner, or the family is experiencing [financial] difficulties and cannot provide for her, and they reach a point where they have no possibility but to marry her off to somebody else. Then, they are confronted with lawsuits and disputations [by the man to whom their daughter or sister was originally engaged or by his family]. The responsible authorities only judge according to the usual procedure⁵⁶ [without taking the special circumstances into account], and they decide that the woman has to be handed back [by her family] to the man to whom she was originally engaged, or that [her husband] has to sell her off for marriage, or they force her to become a concubine, and she has to leave her family. This severs relations and cuts through all affective connections. It runs counter to all moral principles. These situations are really worthy of compassion. Please consider this memorial.⁵⁷

In many cases, a woman who had been deserted by her husband or fiancé could not divorce her husband or put an end to her engagement, since her partner did not agree, and also the authorities were not willing to accept her demand. If, in these cases, the woman did not comply, she risked punishment for "adultery" according to the provisions mentioned above. 29

     The pressure exercised by the man's family on the local authorities was probably in most cases the main reason why these local officials were reluctant to accept a woman's petition for the dissolution of a marriage agreement. As we have seen above, the rights and legal control over a woman were, through the engagement or marriage, passed on from her family to the family of her husband. If a woman or her family could initiate a divorce, that would mean that the husband's family's control over a woman's "person, labor, and property" was at risk. This control included the possibility that the husband's family might sell a woman off for remarriage or as a concubine if the husband rejected her. Or the husband might take her as his concubine after having deserted her and having married another woman, as Wang Chi notes in his memorial. 30

     Not only the divorce or the dissolution of the marital agreement in itself seems to have been the root of discussion but also the question of whether a new engagement and marriage of the woman were legal or not. Since she had never formally, by means of a written agreement or an official certificate, put an end to the previous engagement, her new relationship was, strictly speaking, "adulterous," which meant that she was liable for punishment. If the husband's family could accuse the wife of remarrying illegally—which legally corresponded to illicit sex—and the authorities accepted their claim, they could recover the betrothal gifts that they had given to the woman's family. If the authorities accepted the woman's claim, however, these betrothal gifts would not have to be returned. This must have been an important reason for the husband's family to enter legal plaints with the authorities, in an effort to have the new marriage considered "illegal." 31

     Wang requested the throne to forbid men who had left their fiancée and had not returned for more than three years to claim her as their wife or concubine and to hinder their remarriage. The emperor issued a decree, in which he approved his proposal. 32

The Precedent of 1468

In 1465, the Ch'eng-hua emperor, who ruled between 1465 and 1488, abolished all precedents issued since the beginning of the Ming. This measure was aimed at bringing more consistency in the legislation of the Ming, since certain precedents had become useless or contradicted each other but had never been officially withdrawn. This also meant that the 1452 li lost its validity and that the only legislation governing the dissolution of marriage agreements consisted of the one stipulation in the lü ("statute") on "dismissing one's wife." 33

     In 1468, a new proposal to expand and clarify the legislation regulating the dissolution of marriage agreements led to the promulgation, by the Ch'eng-hua emperor, of a new li entitled: "The precedent that stipulates that, if a man is engaged and he has not married yet five years after [the contracted date], without any good reason, or if a husband has deserted [his wife] and has not returned after three years, [the woman] has, in both cases, the right to bring the matter before the authorities, and to marry another man."⁵⁸ 34

     The proposal was initiated by a local magistrate, Chang K'uei, who was the head of the prefecture of Ju-ning in the province of Ho-nan.⁵⁹ His request was passed on to the emperor by the ministry of rites. It was entitled: "[I beg the emperor to] reconfirm the old precedent [of 1452], in order to straighten things out in the field of [legislation on] marriage." 35

I have seen that everywhere, in military and civilian families,⁶⁰ after a man and a woman are engaged, there are cases in which [the man] goes to another prefecture to make a living because he experiences [financial] difficulties, and that there are cases in which he is [stationed] far away in a border region because of his military service;⁶¹ [I have seen] that there are cases in which [the man] engages in trade elsewhere, and does not return for many years; and that there are cases in which the man, being a government magistrate, goes to another place to take up an official position,⁶² and registers there. There are [all these] cases where a man and a woman do not marry, and where the two families are not united, and where they voluntarily put an end to their relationship.⁶³

In some cases where the man was absent for a long time, and not likely to return, both partners and their families mutually agreed to break off their relationship (marriage or engagement). This was, naturally, impossible if one of the partners did not agree. 36

There are [also] cases where a man and a woman do not reach a consent, and do not draw up an agreement to separate.⁶⁴ If the man has left for a far away place, and he does not come back, and if [in the meantime] the woman [he is engaged to] has grown up [and reached the normal age at which she can marry⁶⁵], then she wishes to get married with somebody else, but she is also afraid that the man to whom she was originally engaged might return and dispute it, and lodge a complaint against her; or, if she wishes to observe the prescribed period of mourning [for one of her own parents] which is several years long, and if then [because of this] the moment of the wedding is delayed, then sometimes [her fiancé] does not respect the custom [of mourning, by trying to force her to marry during the mourning period]. If, because of [one of] these [reasons mentioned above], the situation has reached a point where there is no alternative, then she [ends up leaving this man, and] marries another man. If, after the wedding [with this other man], when she has already given birth to sons or daughters, the person to whom she was originally engaged absolutely does not [agree with] the discontinuing of the relationship and the separation, or if he is resentful, or if he has come back from his escape to another place, then [in many cases] he goes to the prefectural authorities to dispute it, and to enter an accusation against her. The magistrates there [in the local government office in that prefecture] usually make no distinction between the [different] motives for the discontinuing of relationships and the separations. In all [the above-mentioned circumstances], they decide that she has to return to her previous fiancé."⁶⁶

     The author of this proposal argues that the accusations and sentences against these women are undeserved and unreasonable. Not only did the officials not accept a woman's request to divorce or to put an end to her relationship; if she did leave her husband without having received any official authorization, and started a new relationship or marriage, they accepted the plaints entered by the husband and his family and prosecuted her. 37

Amongst these, there are [also] cases were they do not want to separate, but [the man's] life is threatened [so that he has to flee to a far away place], there are cases in which mother and son are separated, but [the mother] falls ill [so that her son has to leave his fiancée to go and take care of her],⁶⁷ there are cases in which people mortgage grounds⁶⁸ and use [the money they receive for mortgaging] one property to get another property back [so that they finally return to the mortgaged estate and leave their fiancée behind]. There are all [these cases] that should not be brought to court, but that are nevertheless disputed in courts for years on end. Such attitudes amongst the population are really harmful for public morals; they cause deep sorrow for the people.⁶⁹

     Next, the author of this memorial refers to the above-mentioned memorial submitted to the throne fifteen years earlier by Wang Chi. He acknowledges that Wang Chi's memorial, and the li that followed it, had had the desired effect, but he explicitly states that this effect had only been temporary, and that the withdrawal of this precedent—together with all other precedents issued up to then—had given rise to abuses and malpractices. 38

In marriage cases like these [immediately after the imperial approval of Wang Chi's proposal], if the man [in his absence] had not presented any gifts [to his fiancée] for two or three years, then the woman's family was authorized to go to the authorities to set forth their cause; [in] all [these cases], the woman could marry another man. Even if her former man returned, he was absolutely not authorized to lodge a complaint against her and to dispute it. This was the current practice throughout the empire.⁷⁰ Recently, the administrators, in all localities, do not follow this precedent, since they regard it as obsolete.⁷¹ This situation is really not desirable. Now we beg for imperial instructions, ordering the ministries in question⁷² to deliberate, and to reconfirm for the whole empire that, each time marriage cases like these occur, [namely] if the man is elsewhere, and the woman has grown up [in the meantime], [but] the man does not marry her for many years, then, [even though] they either have, on the official level, a written document, or, on the private level, a written [marriage] contract, the officials are, according to the old precedent, not authorized to decide that she has to go back to her former betrothed. [In] all [these cases], she can follow her new fiancé, and complete the marriage with him. This way, marriages will be successful, and the [marriage] customs will be pure and honest. Litigation [concerning these matters] will be diminished, and people will be what they were long ago.⁷³

     This memorial mentions two different kinds of marriage contracts: private, informal agreements, and formal, legitimate contracts. Such contracts needed to meet the necessary requirements before they were considered legally binding and before they could be used to prove one's right in a lawsuit.⁷⁴ 39

     That a new memorial was entered three years after the 1452 precedent had been withdrawn (together with the other precedents) shows that this withdrawal had, apparently, given free rein to the families of the husbands whose wives or fiancées wanted to terminate the marriage or engagement. These women had no legal ground left on which they could fall back to justify their claim, except for the insufficiently detailed stipulation of the "Great Ming Code." The husband and his family could now again feel justified to enter plaints, and officials—who had, with the disappearance of the precedent, no clear rules on which to base their decisions—gave in to the pressure or did not even bother to make distinctions between the different motives for which the woman wanted to leave her husband or fiancé. In many cases, the pressure on local officials must have been extremely high, especially if the man's family was more powerful than the woman's natal family. This was often the case, since, as we have seen, marriage was an ideal way for the woman's family to build networks of connections. Thus, many families tried to marry their daughters off to members of more "established" families with more influence, including influence over the local officials. Also if the two families lived in separate districts, the situation was to the advantage of the man's family, especially if they had some power and influence: their charges against a woman who decided to leave them were entered at the local government bureau in their district (where the woman was still registered as belonging to the family of her in-laws). The magistrates would have felt more pressure to give in to a powerful local family rather than to a family from another district. 40

     No mention is made of any control or pressure from the central government on the enforcement of the legislation on marriages, engagements, and divorces. These civil cases (hu-hun hsi-shih: "minor matters of households and marriages") were not the object of standard review procedures in the capital, so that they hardly ever reached the capital and were generally not much of a concern for the central authorities. If these memorials had not been entered, probably nothing would have been undertaken by the central authorities, who might have been totally unaware of certain problems. Because of the disinterest of the central authorities, local officials enjoyed a relative freedom in judging these matters. The enforcement of the statutes and precedents on marriage and divorce was apparently hardly supervised by the central authorities, despite the fact that civil cases were becoming more numerous in Ming society. 41

     The new memorial, that basically asked to restore the 1452 precedent, was accepted and an imperial decree, establishing a new li, followed it. 42

The Precedent of 1483

The pressure exercised by the husband's family on local officials did not disappear after the issuing of the 1468 precedent. It may not have diminished at all. This can be seen from a new memorial, entered in 1483. In response to the memorial, Emperor Hsien-tsung issued a new, similar precedent, some fifteen years after issuing the precedent we have studied above: "If a woman is engaged to somebody, and her fiancé has deserted her or he engages in trade elsewhere, and he has not come back after a long time, then [the officials] must let her remarry, according to the precedent."⁷⁵ The promulgation of this precedent found its origin in a new request to the emperor, this time submitted in 1483 by Liu Ting, an assistant magistrate.⁷⁶ 43

I am aware of the fact that, among the population, the marriage of a man and a woman is the greatest moral obligation of the people. I see that there are unmarried girls everywhere who were already betrothed to somebody, through the services of a matchmaker, when they were still children. Either because the man they were originally engaged to has deserted them, or because he has gone into hiding due to a wrong [he has committed], [or because] he engages in trade elsewhere, after ten or twenty years or more, [the man] then [finally] ends up marrying a woman in that other place, and they have children, [so that] he is not willing to return to his home region.

      This makes that the family of the woman [to whom he was originally engaged] brings her up and provides for her until she is a grown-up woman, and that she is running out of time [to get married], but she does not dare to marry somebody else. The parents of the girl either accept [this situation], or, according to the precedent [that allows them to do so], they marry their girl off to somebody else. [In this last case, however,] the parents and the other relatives of the man to whom she was originally engaged do not respect the statutes and the precedent, ⁷⁷ and in a false manner, they compose treacherous plots. They collaborate with the man to whom she was originally engaged in his deliberate, wicked actions, and they feign and make up false stories. Stopping this kind of deceit is not easy. The officials also do not know [who to believe], and they are betrayed by these [evil plots]. For years on end this continues, and the marriage [between the woman and her new fiancé] cannot be completed. ⁷⁸ When there is really no way out [of the dispute], the ones amongst these [women] who have their minds bent on ideals and integrity then finally do not dare to marry someone else and to lose their chastity, whereas the ones who are morally not so strong behave in a way contrary to human obligations and injurious to public morals [by remarrying without officially having ended their previous engagement]. These situations really arouse compassion. I now beg for imperial instructions, ordering the ministry of rites to reconfirm—and to pass it to the provincial administration commissions, ⁷⁹ and to the provincial surveillance commissions, ⁸⁰ as well as to the prefectures and sub-prefectures in the northern and southern metropolitan area ⁸¹ —that from now on, if there are, among the population, girls who have from a young age been betrothed to somebody, and the man to whom they have originally been betrothed has deserted them, or he has gone into hiding because of a crime [he has committed], or he is engaging in trade elsewhere, and he has not come back after a long time, the parents of these girls and the community elders ⁸² [are then authorized to] take their case to the authorities, and that [the authorities must then] issue an official certificate, [allowing her to] marry another man. This way, the woman will not lose her chastity [by marrying another man without having officially ended her previous betrothal], and there will be no indignation and sorrow among the people. By these means, this custom [of petitioning for official authorization for a divorce, which will avoid any future disputes,] will be promoted. Please consider this proposal." ⁸³

     This request repeatedly raises the issue of chastity. It was not uncommon for women who had been abandoned, or for women who had married husbands who could not provide for them, to remarry, or to resort to prostitution or adultery.⁸⁴ As long as the woman was not officially divorced, any of these actions were regarded as illicit sex outside her marriage, which was a criminal act that could lead to prosecution, and she was regarded as unchaste. On the other hand, a woman was regarded as extremely chaste if, after her betrothed had died before the consummation of their marriage, she stayed with his parents to serve them and did not remarry.⁸⁵ 44

     In the Yüan dynasty, under the strict application of Mongolian levirate rules, all widowed or divorced women could be forced to remarry by their in-laws. In the legislation from the early 1300s on, chastity became an important ideal. It was a legitimate way to escape levirate marriage, as the woman's in-laws could not force her to remarry if she chose to stay chaste (although remarriage on her own initiative was still strictly forbidden).⁸⁶ In the Ming, widow chastity was promoted and extremely popular, and women who committed suicide in order to stay chaste became local heroines. 45

     This chastity cult may have led to resistance against the 1468 precedent. Although this precedent allowed an "abandoned" woman to remarry on her own initiative, it still did not mean that her remarriage was morally acceptable for a society that promoted chastity so ardently. It was still perceived as "adulterous" and "unchaste." The threat of losing her chastity was very dissuasive for a woman and her relatives who wanted to initiate a divorce or put an end to an engagement. Not only did she risk punishment for "illicit sex," but her family was also likely to lose a great deal of social recognition. If the woman's remarriage was found to be "illicit," they would also be sentenced to giving back the betrothal gifts, which were, in the case of a relatively poor family, probably already half spent. 46

     Liu Ting's proposal also points out that, even if officials were willing to accept a woman's request for the dissolution of her marriage or engagement, and even though the legislation had, thanks to the 1468 precedent, become clearer on this point, there were still problems of a very practical nature: it was in many cases nearly impossible to determine who was speaking the truth, since almost no woman would be able to prove the duration of her fiancé's or husband's absence. His relatives "feigned and made up false stories" and willingly confirmed that he had come back during the period of absence claimed by the woman, whereas the woman could only testify that she had never seen him during that period. In such word-against-word situations, some officials apparently did not dare to make a decision. Thus they could not issue a certificate to allow the woman to remarry. Liu Ting's proposal did address these problems, but he could not lessen the doubt of the officials in those situations. What is important in his memorial—and in the precedent issued by the emperor in response—is the confirmation of the woman's right to marry somebody else than the absent man to whom she is engaged or married, and especially of the duty of the officials to issue an official certificate—after which she could remarry without facing the threat of losing chastity and being prosecuted. 47

Further Legal Evolutions in the Field of Divorce Law

In later collections of Ming precedents,⁸⁷ we find no other precedents overruling the 1468 and 1483 precedents. Therefore, we can assume that these precedents remained valid for the remainder of the Ming. Their enforcement probably also became easier after they had been gathered in the "Classified regulations of the great Ming" in the early sixteenth century, but, as the precedents themselves—or any reconfirmation of them—can not be found in any collection of li appended to the code, we can also assume that their enforcement was sometimes still problematic. This was because the "codified sub-statutes" were better known and often better observed than the li that were not edited with the code and also because the concept of "perpetual rights" over women by their husband's families continued to exist. Even in the Ch'ing dynasty (1644–1912), this concept did not disappear totally. The Ch'ing had, however, more solid, codified legal provisions for these matters: a sub-statute under article 116 of the Ch'ing code stipulates, just as in the Ming "commandment" and precedents, that a woman could put an end to her engagement if the man, five years after the contracted date, had still not married her, and that a wife could have her marriage nullified if her husband left her and did not return for three years.⁸⁸ 48

Conclusion

The precedents ("li") that necessarily supplemented the code clearly grew from judicial practice. They originated in proposals and petitions of magistrates (such as, in the cases translated above, a minister of war, but also a local magistrate) who found themselves or their subordinates confronted with specific problems and who could not solve these problems in a satisfying way due to gaps or shortcomings in the unchangeable official Ming code. They tried, in a never-ending stream of memorials, to make the emperor aware of the existence of these problems and of the need for detailed provisions to avoid and solve them. Thus, the great number of li issued by the Ming emperors found their origin in the permanent character of the Ming code. These provisions were not limited to the specific situations for which they were issued but also functioned as precedents for taking decisions in similar problematic situations that arose later. 49

     As the initial legislation (the "statutes" in the final versions of the "Great Ming Code") proved insufficient to address certain problems in the field of dissolution of marriage agreements, officials directed memorials to the throne, requesting to expand this legislation by issuing new provisions, li. We have looked at three of these precedents: the 1453 precedent (withdrawn in 1465, together with all other precedents issued before), the 1468 precedent, and the 1483 one. 50

     Several factors challenged the enforcement of these precedents regulating the dissolution of marriage agreements. For instance, before 1500, there were no collections of precedents, so that officials did not always know what precedents existed (which was probably even more the case for the so-called "minor matters of households and marriages") and were even confronted with contradicting precedents. The abolishing of all precedents in 1465 made the new li legislation issued after 1465 clearer and more consistent, but the communication of these precedents to the local authorities was sometimes still problematic. In addition, the control on the application of such li as the ones on dissolution of marital agreements seems to have been far from strict. 51

     The in-laws of a woman who wanted a dissolution of her marriage agreement could put a lot of pressure on the local officials. As they were, in many cases, more influential (especially locally) than the woman's natal family, and as they often "feigned and made up false stories," so that "the officials did not know [who to believe]," the magistrates often decided in favor of the woman's in-laws, even if that meant that they had to act against existing precedents. 52

     The objections of the in-laws against a dissolution of the engagement or marriage, and against a possible remarriage of the woman on her own initiative, originated primarily in the concept of "perpetual rights over a woman, her body, labour and property," imposed on the Chinese during the Mongolian Yüan dynasty in the form of levirate marriage. As the strict imposition of levirate marriage disappeared, the concept of "perpetual rights" remained. If the woman left her husband's family or gave up her engagement, any new relationship she started on her own initiative was considered "adulterous." This gave the man's family the right to reclaim the betrothal gifts they had given—a prospect that definitely encouraged them to have the woman prosecuted, and which gave the woman often no other choice than to abstain from remarriage. It was the only way of avoiding prosecution or even a forced remarriage arranged by her in-laws. Even after li were issued that guaranteed (by issuing official permits) the woman's right to exit the "perpetual" bond with her in-laws, the latter pressured the officials not to apply them. 53

     The authors of the memorials tried to solve this problem by pointing out the duty of the officials to accept a woman's claim to end her marriage bond (and her in-laws' rights over her) if her fiancé or husband had deserted her. They pointed out the need to issue certificates, allowing the woman to marry somebody else, so that her in-laws would be unable to have her prosecuted by the judicial authorities. Still, there was a lot of resistance against precedents that allowed women to remarry, an act considered "unchaste" in a society that upheld the ideal of chastity. 54

     The precedents studied in this article have been limited to only one kind, the ones on the dissolution of marriages and engagements. But we can assume that many other "precedents" struggled with similar problems of enforcement, especially precedents regulating civil matters. The control of the central government on these matters was less strict, which allowed the individuals or families involved to put pressure on the local magistrates in an effort to defend their own interests. 55

Dominiek Delporte is a research assistant in the Chinese Language and Culture Department at the University of Ghent <Dominiek.Delporte@rug.ac.be>. The author wishes to thank Professor Bart Dessein (University of Ghent) and the four anonymous referees of Law and History Review for their invaluable comments and advice and would also like to thank the Chiang Ching-kuo Foundation for providing a library travel grant to conduct research for this article. All translations are the author's.

Notes
^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 John D. Langlois, Jr., "The Hung-wu Reign, 1368–1398," in The Cambridge History of China, vol.7, The Ming Dynasty, 1368–1644, Part I, ed. Frederick W. Mote and Denis Twitchett (Cambridge: Cambridge University Press, 1988), 107–81.

^2. On the structure of the Ming code, see John D. Langlois, Jr., "The Code and Ad Hoc Legislation in Ming Law," Asia Major, 3d ser., 6.2 (1993): 174.

^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 Frederick W. Mote, "The Ch'eng-hua and Hung-chih Reigns, 1465–1505," in The Cambridge History of China, vol. 7, The Ming Dynasty, 1368–1644, Part I, ed. Frederick W. Mote and Denis Twitchett (Cambridge: Cambridge University Press), 344–50.

^6. Langlois, "The Code and Ad Hoc Legislation," 85–95. In John D. Langlois, Jr., "Ming Law," in The Cambridge History of China, vol. 8, The Ming Dynasty, 1368–1644, Part II, ed. Denis Twitchett and Frederick W. Mote (Cambridge: Cambridge University Press, 1998), 95–100, we find the views and argumentation of two officials, Ch'iu Chün 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, Yü-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-lü tien-chi chi-ch'eng ("A collection of rare Chinese legal works"), pt. 2, vol. 4, ed. Hai-nien Liu and Yi-fan Yang (Peking: K'o-hsüeh Ch'u-pan-she, 1994).

^9. Investigating censors, members of the censorate in the capital, were charged with gathering 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. Charles O. Hucker, A Dictionary of Official Titles in Imperial China (Stanford: Stanford University Press, 1985), 145–46.

^10. Wolfgang Franke, An Introduction to the Sources of Ming History (Kuala Lumpur: University of Malaya Press, 1968), 187.

^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). Chang-chien Huang, Ming-tai lü-li hui-pien ("A complete compilation of the statutes and sub-statutes of the Ming dynasty") (Taipei: Chung-yang Yen-chiu-yüan Li-shih Yü-yen Yen-chiu-so, 1979), 4–5.

^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. Frank Münzel, Strafrecht im alten China, nach den Strafrechtskapiteln in den Ming-annalen (Wiesbaden: Otto Harrassowitz, 1968), 38–39. 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-lü tien-chi chi-ch'eng, 2.

^15. The censorate (tu ch'a-yüan) 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-lü 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 lü-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 lü-li hui-pien.

^21. For a general introduction to marriage in imperial China, see T'ung-tsu Ch'ü, Law and Society in Traditional China (Paris: Mouton, 1961), 91–127.

^22. Oskar Weggel, Chinesische Rechtsgeschichte (Leiden: E. J. Brill, 1980), 185–86.

^23. Philip C. C. Huang argues that these gifts were also of symbolic importance and not purely economic. Philip C. C. Huang, Civil Justice in China (Stanford: Stanford University Press, 1996), 56–57.

^24. Kuang-cheng T'ung, "Min-shih fa-lü" ("Civil Law"), in Chung-kuo fa-chih t'ung-shih ("A comprehensive history of the Chinese legal system"), ed. Chin-fan Chang and Hsiao-feng Huai (Peking: Fa-lü Ch'u-pan-she, 1998), 7:284.

^25. An example is given by Patricia B. Ebrey, "Shifts in Marriage Finance from the Sixth to the Thirteenth Century," in Marriage and Inequality in Chinese Society, ed. Rubie S. Watson and Patricia B. Ebrey (Berkeley: University of California Press, 1991), 111.

^26. On the use of marriages to establish networks of connections, see Ebrey, "Shifts in Marriage Finance," 116.

^27. Ann B. Waltner, "Infanticide and Dowry in Ming and Early Qing China," in Chinese Views of Childhood, ed. Anne B. Kinney (Honolulu: University of Hawai'i Press, 1995), 204–6, and Patricia B. Ebrey, The Inner Quarters: Marriage and the Lives of Chinese Women in the Sung Period (Berkeley: University of California Press, 1993), 99–103. On the imperial decree, see also Bettine Birge, "Levirate Marriage and the Revival of Widow Chastity in Yüan China," Asia Major, 3d ser., 7.2 (1995): 107–46.

^28. On the Mongolian levirate system, see Birge, "Levirate Marriage," 123–28 and 143–45.

^29. Mei Chin, "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. P'eng-sheng Ch'en (Peking: Fa-lü Ch'u-pan-she, 1998), 4:558–62.

^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. Derk Bodde and Clarence Morris, Law in Imperial China (Cambridge: Harvard University Press, 1967), 35–36.

^31. Tse-sin Wang, Le Divorce en Chine (Paris: Les Éditions Domat-Montchrestien, 1932), 26–29.

^32. Huang, Civil Justice in China, 29.

^33. Ann B. Waltner, "Breaking the Law: Family Violence, Gender and Hierarchy in the Code of the Ming Dynasty," Ming Studies 36 (1996): 34–35.

^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. Matthew H. Sommer, Sex, Law, and Society in Imperial China (Stanford: Stanford University Press, 2000), 58. 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 Li Pien, "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.

^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 Robert Des Rotours, Traité des fonctionnaires et traité de l'armée (Leiden: E. J. Brill, 1948), 71–74.

^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. Edward L. Farmer, 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.

^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 William C. Jones, The Great Qing Code (Oxford: Clarendon Press, 1994), 135, 123.
^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-hsi fa-lü 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. Hsiao-feng Huai, Ta Ming Lü ("The Great Ming Code") (Peking: Fa-lü ch'u-pan-she, 1998), 65.

^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 Chaoying Fang, Dictionary of Ming Biography (New York: Columbia University Press, 1976), 1350–51. On his memorial in this case, see also Langlois, "Ming Law," 196–97. A part of the memorial, where Wang Chi requests a ruling in the specific case of Lu and Ko, can also be found in Hsiao-feng Huai and Ming Li, eds., T'ang Ming lü ho-pien ("A joint compilation of statutes of T'ang and Ming") (Peking: Fa-Lü Ch'u-pan-she, 1999), 325.

^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. Martin Heijdra, "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. Denis Twitchett and Frederick W. Mote (Cambridge: Cambridge University Press, 1998), 498–99.

^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-lü," 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-hsi fa-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, Yün-nan, and Kuei-chou. Jacques Gernet, Le monde Chinois (Paris: Armand Colin, 1972), 358–60, and Charles O. Hucker, The Censorial System of Ming China (Stanford: Stanford University Press, 1966), 34.

^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. T'ung-tsu Ch'ü, Local Government in China under the Ch'ing (Cambridge: Harvard University Press, 1962), 21.

^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-lü," 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-hsüan 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-lü 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 Katherine Carlitz, "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.

^86. On widow chastity during the Yüan from 1300 on, see Birge, "Levirate Marriage," 128–43.

^87. Huang, Ming-tai lü-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.

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