Marriage and the Law in the Age of Khubilai Khan: Cases from the Yuan Dianzhang

323 Pages·2017·4.314 MB·English

by  Bettine Birge

Marriage and the Law
in the Age of Khubilai Khan
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Marriage and the Law
in the Age of Khubilai Khan
Cases from the Yuan dianzhang
bettine birge
Cambridge, Mas sa chu setts, and London, England 2017
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Copyright © 2017 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of Amer i ca
First printing
Library of Congress Cataloging- in- Publication Data
Names: Birge, Bettine, translator. | Container of (work): Birge, Bettine. Age
of Khubilai Khan and the Yuan dianzhang.
Title: Marriage and the law in the age of Khubilai Khan : cases from the Yuan
dianzhang / Bettine Birge.
Other titles: Container of (expression): Yuan dian zhang. 18. English.
Description: Cambridge, Massachusetts : Harvard University Press, 2017. |
Includes Part I “The Age of Khubilai Khan and the Yuan dianzhang”—a text
by Bettine Birge, and Part II “Chapter 18 ‘Marriage’ from the Yuan
dianzhang”—an annotated translation of a medieval Chinese legal text. |
Includes bibliographical references and index.
Identifiers: LCCN 2016046674 | ISBN 9780674975514 (alk. paper)
Subjects: LCSH: Marriage law—China—History—To 1500—Sources. | Marriage
law—China—Cases—Early works to 1800. | Yuan dian zhang. |
China—History—Yuan dynasty, 1260–1368. | LCGFT: Court decisions and
opinions.
Classification: LCC KNN542 .A49 2017 | DDC 346.5101/609023—dc23
LC record available at https://lccn.loc.gov/2016046674
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For Peter and Henry
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Contents
Maps, Figures, and Charts viii
Abbreviations ix
Introduction 1
part 1 The Age of Khubilai Khan and the Yuan dianzhang
1 The Historical and Social Context of the Yuan dianzhang 15
2 Yuan Administration and the Legal System 36
3 Origins, Contents, and Transmission of the Yuan dianzhang 57
4 Notes on the Translation 78
part ii Chapter 18, “Marriage,” from the Yuan dianzhang
An Annotated Translation
5 Sections 1–2: Marriage Rites and Exchanges; Getting Married 87
6 Sections 3–5: Marriage between Officials and Commoners; 168
Marriages of Military Personnel; Divorce
7 Sections 6–8: When the Husband Dies; Levirate Marriage; 208
No Levirate Marriage
8 Sections 9–12: Secondary Wives; Marriage between Slaves and 254
Commoners; Marriage of Entertainers; Marriage during the
Mourning Period
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Contents vii
appendix a: Translation of Title Page of the Yuan dianzhang 279
appendix b: Marriage Cases from Chapter 18 of the 281
Yuan dianzhang in Chronological Order
appendix c: Marriage Cases from Chapter 18 of the 283
Yuan dianzhang with Dates
Bibliography 285
Acknowl edgments 309
Index 313
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Introduction
In the summer of 1317, a young w idow named A- Duan, who had been living
in northeast China with her natal f ather and caring for her four c hildren, filed
a lawsuit accusing her late husband’s younger brother of raping her and forcing
her to marry him in a levirate union (in which a widow marries a younger male
relative of her deceased husband). As recorded in case 55 of chapter 18 of the
great legal compilation Yuan dianzhang, in her plaint A- Duan testified:
My mother- in- law, A- Ma, summoned me to her house to cook a meal. In the
after noon, I wanted to go back home. But suddenly my brother- in- law Tian
Changyi took me, A- Duan, and dragged me into the main room of the h ouse
where he lived. He closed the door and ordered his b rother Tian Lu’er to watch
it. Then [his other b rother] Tian Wu’er grabbed my two hands, while Tian
Changyi took a cudgel and hit me twice on the left shoulder until I couldn’t
move. Then they tied my hair to the win dow lattice and stripped off my clothes.
My brother- in- law Tian Wu’er held my hands down so that his older brother
Tian Changyi could consummate the levirate marriage.
Chapter 18, titled “Marriage” (hunyin 婚姻), of the 1322 legal compendium Yuan
dianzhang, or Statutes and Pre ce dents of the Yuan Dynasty (full title Dayuan
shengzheng guochao dianzhang 大元聖政國朝典章 [Statutes and pre ce dents of
the sacred administration of the g reat Yuan dynastic state]) provides a vivid por-
trayal of life in medieval China under the Mongol empire. The text is a re-
markable collection of local case rec ords, judicial verdicts, imperial edicts, and
administrative decisions, which reveal the social tensions and po liti cal changes
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2 Marriage and the Law in the Age of Khubilai Khan
that accompanied the imposition of Mongol rule and China’s transition into
the early modern era.
This book pres ents a complete translation of chapter 18, “Marriage,” of the
Yuan dianzhang. The chapter contains seventy- five documents varying in length
from a few lines to several pages. Th ese span the years from 1268 to 1319, but
the majority take place during the reign of Khubilai Khan (1260–1294), the
grand son of Chinggis Khan, who established Mongol rule over China and pre-
sided over a vast world empire. They bring alive the poignancy and drama of
everyday life as well as the dilemmas faced by local magistrates and high offi-
cials in governing thirteenth- and fourteenth- century China. They rec ord con-
flict and contention in local communities over issues such as marital infidelity,
divorce, wife- selling, runaway slaves, w idow remarriage, absconding husbands,
and maintenance of hereditary military house holds.
The denouement of the case of A- Duan illustrates the multiple significances
of the Yuan dianzhang text. The verdict reflects the par tic u lar time during
the Yuan dynasty that her case came to court. Years earlier, in 1271, Khubilai
Khan had legalized forced levirate marriages for all people under his rule, in
accordance with Mongol customary law (case 18.49). Under the law, the ac-
tions of A- Duan’s brother- in- law would have been perfectly legal. Indeed, in
a nearly identical case, a w idow in 1273 lost her suit and was forced to marry
her brother- in- law who had violated her (case 18.51). By contrast, A- Duan in
1317 won her suit. She was allowed to return to her father’s h ouse hold with her
children, and her brother- in- law received the harsh punishment of 97 blows
of the heavy stick for “Rape of a W oman without a Husband.” In the years
between 1271 and 1317, the legal climate had radically shifted, and new laws
allowed a widow to resist levirate marriage by staying chaste. Such shifts and
reversals of marriage law w ere common during the century of Mongol rule in
China (1260–1368), as the Mongol khans and their Chinese and Inner Asian
advisors wrestled with the contradictions between diff er ent legal traditions,
diff er ent local practices, and diff er ent value systems in their attempts to keep
order among an ethnically and socially diverse population. Chapter 18 of the
Yuan dianzhang draws us into the tangled world of Yuan administration and
the judicial system.
The extraordinary value of the Yuan dianzhang has been widely recognized.
Faculty study groups in Tokyo, Kyoto, Taipei, and Beijing have focused on it for
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Introduction 3
de cades, and their members have produced numerous studies of the text. In
recent years t here have been lively discussions in print and online over the mean-
ings of terms and interpretation of passages. Th ese discussions reflect the lin-
guistic challenges the text pres ents. The text contains Yuan- era specialized terms
and lacunae and corruptions that have made parts hard to decipher. It is written
in a combination of classical bureaucratic Chinese, Yuan colloquial Chinese,
and Sino- Mongolian, the last a form of direct translation from Mongolian that
preserves the Mongolian syntax and uses Chinese characters to represent Mon-
golian words. This hybrid language is one of the most impor tant features of the
Yuan dianzhang, for it purports to rec ord the actual pronouncements in Mon-
golian of the Mongol rulers and their close advisors. It gives us a sense of “lis-
tening in” on the speech of Khubilai Khan and other Yuan emperors.
The translation in this volume is based on the original 1322 Yuan edition of
the Yuan dianzhang published in photoreproduction by the National Palace Mu-
seum in Taipei in 1972 and 1976. It is the first translation into any language of
this section of the text, and it is intended to make available to a wide audience
one of the most impor tant sources we have for understanding Yuan law and so-
cial history. Part I of this work provides background to the translation. It con-
tains chapters on the historical and social context of the Yuan dian zhang; Yuan
administration and the l egal system; the origins, contents, and transmission of
the Yuan dianzhang text; and notes to explain the conventions I use in the trans-
lation. Part II consists of the translation itself.1 The translation includes annota-
tions with short introductions to each case explaining its context and historical
significance. The translation and annotation are meant to convey the meaning
and significance of the text both in its own historical context and as interpreted
for a Western audience eight centuries and a world away from the age of Khu-
bilai Khan.
Mongols, Marriage, and the Law
The Mongol conquest of most of Asia, the Middle East, and parts of Eu rope in
the thirteenth century was an event of world historic proportions. The occupation
1. The cases in chapter 18 of the Yuan dianzhang are not ordered chronologically overall;
they are in chronological order only within each of twelve sections of the chapter. For readers
who are interested, a list of all the cases in chronological order appears in Appendix B.
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