STATUTE AND CUSTOM IN MANCHU CHINA
The cession of Hong Kong took place at the end of the second century of Manchu rule in China. The dynasty had many notable achievements to its credit. It had bound Chinese, Mongols, Tibetans and Turkis into a vast and polyglot empire, and to China herself, the only part of the Manchu dominions to concern us here, it had restored orderly government after the confusion of the last years of the house of Ming.
Great collections of statutes covered nearly every topic of public law, and voluminous reports testify to the careful supervision of administration. But private law was based on custom, and nothing in the nature of a civil code had come into existence. This customary law, * P. 442.founded at any rate as regards family affairs on the system of beliefs known to foreigners as Confucianism, was remarkably uniform throughout the country, and was assumed to be sufficiently well- known not to require statutory definition. However, on top of this customary basis there was erected, if one is permitted to borrow the vocabulary of Marxism, a superstructure of legislation. Mr Haydon says that the Manchu Penal Code—and it should be pointed out that the Penal Code was only a part of the vast corpus of statutes—‘can by its very nature have little application to domestic affairs, the law of which is essentially civil in character’.1 In fact, the legislator often took care to confirm die rules of customary law by providing sanctions for breaches of them in domestic and other matters. Even today these penal enactments are of practical importance in the sense that they throw light on some topics that might otherwise be obscure. For instance, it is extremely hard for a foreign student to understand the true nature of family property, or the effect of the contract of betrothal, without the help of the Manchu Penal Code.
But if the legislator’s purpose was usually to confirm and defend the customary law, there were occasions when he endeavoured to modify it.
The most remarkable example of this concerns a very ancient form of land tenure called dien. This institution had several characteristics which rendered it obnoxious to any tidy administration, and in the eighteenth century the Manchu government, then at the very height of its power, promulgated a number of statutes designed to change the nature of dien completely. It must be emphasized that such legislation was completely binding on all courts. Yet the Chinese then, as now, were not a litigious people and preferred whenever possible not to invoke the assistance of the state in the settlement of their private disputes. Time passed, and in due course the Manchus fell and were succeeded by a Republic. Thirty years ago the Chinese National Government, in its Civil Code, followed its imperial predecessor and attempted to remould dien into a more manageable shape. Yet nothing is more certain than that up to the Communist victory in 1949 dien continued to exist throughout China in its original form, quite uninfluenced either by Manchu or Nationalist legislation.1In the Chinese law and custom of 1843, which we must consider to be the starting point of Chinese law in colonial Hong Kong, there were a number of these topics, where the statute law, applied by the
1 P. 232.
1 H. McAleavy, ‘Dien in China and Vietnam’, Journal of Asian Studies, May 1958, pp. 403-15
Chinese courts, laid down one rule, and custom, followed by the great mass of the people, persisted in another. Which of the two, custom or statute, ought to be recognized by the Hong Kong courts? The question is clearly of the first importance, yet strangely enough it does not appear to have been raised, let alone answered. True, Mr Haydon and Mr Greenfield seem to avoid the difficulty by ignoring statute law altogether, but that will surely not do. On the other hand, the Reports of 1953 and i960 are more respectful to the Manchu legislation. The former especially turns for enlightenment to Staunton’s translation of the Manchu Penal Code, and complains only of its meagreness in civil doctrines, which leaves ‘ample scope for its amplification by local custom’.1 However, each report contains a recommendation on a certain topic of family law, the acceptance of either of which (for they are mutually contradictory) would mean in effect that the Hong Kong Government had at last, even if without knowing it, taken sides in the conflict. The topic in question is the institution known as kim tiu marriage, and it is important enough in Chinese society to merit a few words of explanation.