WIFE AND CONCUBINE
Yet there were serious difficulties in the way of such a solution. From the earliest ages Chinese law allowed a man to have only one wife at a time. This wife shared her husband’s status in die family and the clan.
During the husband’s life, the rights attached to that status were exercized by him alone, but after his death many of them passed to his wife. Among these, until any son of die marriage reached maturity, was the right to administer the family estate, and, if there should be no son, to appoint a successor.1 Concubines, who could be taken without restriction of number, enjoyed no comparable rights, and as a rule were limited, and then only in the absence of a legitimate widow, to expressing their opinion in die family or clan council.1 It follows that in the case of kim tiu it would not suffice, in order to keep the lines distinct, to select a concubine to beget children for line A, while a wife attended to line B. After the kim tiu successor’s death, the wife would manage the affairs of both lines, very likely to the injury of line A.This essential difference between wife and concubine must be insisted upon, if Chinese family law is to be understood at all. It was a difference not of degree, but of kind. And here we are confronted with a puzzle in the Hong Kong books. The Report of i960 states uncompromisingly: ‘The taking of a concubine by a man implies another, and nearly always an earlier, marriage to the wife’.3 And there is a reference to ‘mistresses euphemistically called concubines and attached to a Chinese Modem Marriage, a Registry Marriage, or a Reputed Marriage’4 which leaves in the mind of the reader a strong impression that the validity of a concubine’s status depends not only on the existence but also on the nature of her husband’s marriage to another woman as a lawful wife.
The Report of 1953 quotes an opinion, written by the Attorney General of Hong Kong in 1936, that: ‘The condition which turns a kept woman into a concubine is here acceptance by the wife as a potential bearer of legitimate children to the family. The ceremony usually consists of her introduction in the family house to the wife, to whom she makes obeisance and offers a cup of tea. If this offering is accepted the wife usually assigns to her definite quarters or a courtyard in the principal or some other house belonging to the family and thereafter she is a woman member of the family and, if she bears chil- 1 Shiga, pp. 40-5. 2 Shiga, pp. q8-66.
1 P. 1. 4 P. 17.
dren, her children will be recognized as having equal legitimate status with that of the wife’s own children.’1 Elsewhere, however, the same report gives the view of a Chinese lawyer, Dr Tung, who denies that under the law of the Manchu dynasty a man could not take a concubine unless he had been married. When asked: ‘What would be the position if a man took a tsip (concubine) before he had ever been married?’ Dr Tung answered: ‘It is a rare case where a man takes a tsip before he has ever been married’.1 Mr Greenfield in the article already referred to says: ‘Although a concubine could be taken before a tsai (wife), this appears to have been of very rare occurrence.’3
Now the reader, bewildered by these contradictory statements, may fairly complain that no authorities are cited in support of the views expressed. Surely nothing would settle the question one way or the other more convincingly than a reference to a Chinese text? And such texts exist. The law-book from the Southern Sung dynasty already mentioned tells of two men who remained unmarried but begot sons by concubines, and under the early Republic the Peking Supreme Court held that an agreement to marry was not broken if the man, before marriage, took a concubine.4 From these examples it can be affirmed without any hesitation that concubinage did not depend for its validity on the existence of a marriage.