No. 228.
Mr. Denby
to Mr. Bayard.
Peking, August 12, 1888. (Received October 8.)
Sir: I have the honor to make herein some observations on certain questions of Chinese law. I receive frequent letters touching these subjects. Possibly the subjoined abstract may serve the purpose of my correspondents.
Descents.—Primogeniture does not exist, except that there is hereditary succession of certain ranks and dignities. The persons inheriting the family property are all the sons, whether born of the principal or inferior wives. Division is made by stirpes, the grandsons taking the father’s shares. Daughters do not inherit. If they are married, they get nothing; unmarried, a sum is provided for their marriage expenses. The unmarried daughters remain with the eldest son. For this reason his share is sometimes larger than that of his brother. If there are no male heirs, and no successor has been adopted, the daughters divide the inheritance. In default of lineal heirs, collaterals inherit. An estate is not forfeited to the Government as long as any relatives of the decedent remain. Collaterals so inheriting are bound to the worship of ancestors and taking care of the family tomb.
Wills.—The system of bequeathing property by will does not generally exist. Wills are sometimes made by wealthy persons in order to save litigation, and are acquiesced in by the heirs. But the law provides what disposition shall be made of the property of a decedent.
There is no fixed form for wills. The signature of a testator to a written will would be sufficient. The wishes of the testator may be verbally expressed to the family.
A will made in a foreign country is held good in China as to property there situate belonging to foreigners.
Probate courts.—Probate courts do not exist in China. Documents devising property are retained by the legal heirs.
Ownership of lands.—Theoretically the land belongs to the Emperor 5, practically, the holder has all the rights of conveyance and mortgager which exist elsewhere.
There have been cases where the Government has taken property without compensation, but ordinarily an assessed valuation is paid when land is taken for public use.
The land tax is one of the most important taxes. If that is regularly paid, the owner is secure in his possesions.
Conveyances.—On the sale of land the old deeds are transferred to the purchaser. A new deed is made, which is acknowledged and sealed by the magistrate of the district, who keeps a record of the transfer.
Leases are in writing.
Marriages.—No marriage certificate issues. Section 101 of the code contains minute rules as to the contraction of marriage. The first or principal wife is usually chosen for the husband by his parents or senior relations. She is supposed to be his equal in rank. She acquires all the rights and privileges which in Asiatic nations appertain to a wife. She can not hold separate property free of her husband’s control.
Other wives may afterwards be taken, as the man pleases, with few ceremonies and without regard to rank. The secondary wives are subordinate to the first wife, but equal among themselves. They are called [Page 347] inferior wives and not concubines. Their children are legitimate. There is no limit to the number of secondary wives.
Majority of infants.—Practically, during the life-time of the parents they control the child at pleasure.
Naturalization.—There is no law on the subject, but in practice foreigners may place themselves under the protection of Chinese law.
Courts of justice.—The lowest court is that of the district magistrate; the next is that of the prefect 5 the third, that of the Taotai; the fourth, the provincial judge.
Appeal is allowed from a lower to a higher court, from district to department. It is sometimes allowed to the governor and the governor-general and then to Peking. The magistrate is called “the parent of the people.”
Attorneys are not employed in legal proceedings.
The highest court in the Empire is the Hsing Pu, or tribunal of punishments. The Emperor very rarely overrules its decisions.
There are separate judicial tribunals for the members of the banner corps, the imperial clan, and the imperial household.
Here is also a grand court of revision, which exercises general supervision over the administration of the law.
It is scarcely necessary to remark that under the treaties with China the foreign powers administer their own laws in the consular courts. The nationality of the defendant determines the jurisdiction of the consul. A person is sued before and tried by his own consul and according to the laws of his own land.
In what I have written I have given the law as affecting Chinese only.
I have, etc.,