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Thursday, September 21, 2017

The Nguyen dynasty and its legislation in the first half of the 19th century

Updated: 15:34’ - 24/02/2011

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Lawyer Tran Thi Tuyet          

State and Law Research Institute

 

In order to maintain the increasingly dictatorial monarchy, the Nguyen dynasty attached special importance to building and using its legal tools. Against that background, “Hoang trieu luat le” (The Royal Court Laws and Customs) appeared as the most important and typical code applied throughout the tenures of various Nguyen Kings: Gia Long (1802-1819), Minh Mang (1820-1840), Thieu Tri (1841-1846), Tu Duc (1847-1882).

The compilation of “Hoang trieu luat le”, which was also known as “Quoc trieu luat le” or “Bo luat Gia Long” (the Gia Long code), commenced in 1811, the 10th year under king Gia Long, and completed in 1815 with king Gia Long himself editing it, writing the foreword and ratifying its promulgation.

The code contained 398 articles arranged in 22 volumes. Excluding 45 articles in the first part “Danh le” (Appelation) of the code that prescribed the general principles on crimes, penalties and in the last part “Ti dan dieu luat” (citing provisions of law), prescribing similar cases of application, the remainting articles of the code were classified into six types corresponding to six types of State affairs under taken by six ministries in the royal court “Luat Lai” (law governing the promotion, appointment, recruitment, training of mandarins): 27 articles; “Luat Ho: (governing marriage, family, land property): 66 articles; “Luat Le” (law on protocol, royal ceremony): 26 articles, “Luat Binh” (Military Law): 58 articles; “Luat Hinh” (Criminal Law): 166 articles and “Luat Cong” (law governing public facilities: irrigation works, construction of mausoleums, temples, shrines): 10 articles.

Many researchers thought that “Hoang Trieu luat le” was almost the exact copy of the “Dai Thanh luat le” (of the Man Ching dynasty of China) not only in its structure, but also in its specific articles, accompanied practices and comments of the Chinese code.

Like other feudal laws, “Hoang trieu luat le” was a complicated code that regulated relations in various domains of the social life. All the articles of the code were written in the form of provisions of the criminal law, applicable to criminal measures and reflected the prominent feature of the code, that is the criminal law.

Most of the articles in “Hoang trieu luat le” (166/398) were of criminal laws including the common criminal law, the martial criminal law and the administrative criminal law... Such general issues of the criminal law as the criminal liabilities and penalties in “Hoang trieu luat le” were basically similar to those in the Hong Duc code of the Le dynasty. However, due to practical conditions, “Hoang trieu luat le” bore its own traits, reflecting a tendency of harsh repression of criminal character.

With the code’s punitive and repressive significance in its criminal liabilities, the scope of penalties was broadened. The principle of collective criminal liability for a crime committed by a member of that collective was applicable to crimes against the safety of the dynasty, the interests of the king and the royal family. Article 223 of the code prescribed that for case of treason plot (dethroning the king) and high treason plot (destroying temples, palaces, shrines for kings’ worship), the convicted’s  grandfather, father, sons, grandsons and brothers aged from 16 upward would be beheaded, and those who were aged from 15 downward would be forced together with the convicted’s mother, wife, daughters and sisters to work as slaves; and the property of the convicted would be confiscated. Those who knew the crime but failed to denounce it would be executed by beheading.

In order to ensure that not any act dangerous and harmful to the dynasty as well as the feudal state would be left unpunished, the Gia Long code also applied penalties according to similar crimes (Article 43 and the Table for citing legal provisions). Article 351 prescribed penalties against acts which “should not have been done” so that they shall be applicable to cases of punishment against acts which were contrary to the wish of the authorities but not prescribed by law.

The system of penalties in the Gia Long code remained to be the system of classic penalties practiced by the feudal state, which were barbarous and harsh, though specific. For instance, in “ngu hinh” (five forms of death sentence), only two forms of death sentence were stipulated: “Giao” (garotting) and “tram” (to be beheaded). But in some specific provisions, other forms such as “lang tri” (cutting flesh piece by piece or taking eyeballs of the convicted who would suffer from slow death), “tram hieu” (beheaded and the head were put up for public display); and “luc thi” (beheaded and the body was chopped into very small pieces). The code also prescribed in details the sizes, the shapes, the substance of the punitive tools and their application methods against the convicted. Under the code, corporal punishments against the criminals were allowed. With the too specific prescription of criminal acts and the penalties thereto, the Gia Long code proved to be irrational and inhumane. For instance, rule No.13 in Article 261 of the code stipulated that the insane people were still subject to criminal liability for their acts of law offences.

Heavily relying on code of the Man Tsing dynasty of the feudal China, the Gia Long code contained a few provisions (only 28 of the total 329 Articles) on civil law as well as the law on the family and marriage, which were not suitable to the practical conditions of the then Vietnamese society. Though there were no specific articles on the ownership, the Gia Long code acknowledged three forms of ownership: the State ownership, the communal and village ownership and the private ownership, in which special attention was paid to the protection of the private ownership, first and foremost the interests and privileges of the king, the royal family and the ruling feudal landlord class with a view to protecting and consolidating the feudal social order and maintaining the inequality between classes and social casts. Those crimes committed against the private ownership would be severely punished. People who committed burglary or robbery were subject to capital punishment without any exception, including people entitled to preferential treatment.

The Gia Long code also contained very few provisions on contracts and inheritance while having rejected fairly progressive provisions of the Hong Duc code regarding the interests of individual citizens and the entire nation, the promotion of agricultural and industrial production as well as provisions reflecting the nation’s fine traditions of humanity. Some people think that this was a regress as the code broke off relations with the nation’s traditions and legal ideology.

In order to protect the interests of a certain clan, the Gia Long code only stipulated the sons’ rights to inheritance. The daughters were only entitled to inherit estates when there was in the family or the family line no man eligible for the inheritance. The code also failed to define the property relationships between the husband and the wife. The woman had to totally depend on her husband. When her husband died, she had no right to any property of the family.

The code of conducts according to the Confucian morality and hierarchy  in the family and the society was strictly observed. The order of precedence between the king and the subject, between the teacher and the student, between the parents and the children, between the eldest brother and younger brothers and sisters, between the husband and the wife, between the master and the servant were well protected by severe punishments for violators of such order. If people of lower ranks treated people of higher ranks not in accordance with the prescribed feudal ethics, they were subject to harsh punishments which varied from 300 wooden stick beatings and three years of hard labor or garroting or carving flesh out until death as defined in Articles 280, 282, 283, 284, etc.

Coming into being at a time when the Vietnamese feudal regime was in decline, the feudal State became outmoded, being unable to meet the demand of the development of history and the ruling feudal class cared for nothing but the protection of feudal hierarchy and their own interests, the Gia Long code reflected the true nature of the then increasingly dictatorial monarchy of the Nguyen dynasty in general and the Gia Long regime in particular which was perhaps the most barbarous regime in Vietnam’s feudal history. With its obstinate and highly repressive character, the Gia Long code became an active instrument of the Nguyen feudalists in exercising their dictatorship against the people.

Being almost the duplicate of the code of Man Ching dynasty of the feudal China, the Gia Long code was not suited to the practical conditions of the then Vietnamese society and its effect was very limited. Subsequently, various kings of the Nguyen dynasty, from Gia Long to Minh Mang, Thieu Tri, Tu Duc, promulgated different decrees, amending, supplementing the code and guiding the implementation thereof. Particularly, king Minh Mang in the early period of the Nguyen dynasty who played a prominent role in consolidating the central monarchichal state and made positive contributions to the legislative activities of the Nguyen dynasty. Under his rule, experiences drawn from the practical application of laws were used as basis for amending, supplementing and elaborating the Gia Long code. Minh Mang himself promulgated numerous decrees to regulate and ensure the collection of land tax, to overcome and handle the land tax evasion, stipulate the trading and inheritance of land, to punish people who committed burglary, robbery, adultery, gambling, making counterfeit money, and people who preached or followed Christianity.

It must be, however, admitted that all the amendments and supplements made to the Gia Long code by various kings of the Nguyen dynasty in the early 19th century did not aim at bringing about the social progress nor reducing the cruelty of the Gia Long code but on the contrary enhanced the repressiveness of the legislation of the Nguyen dynasty.

Besides, the Nguyen dynasty published a number of legal books systematizing the legal documents. In 1833, king Minh Mang promulgated the “Dai Nam hoi dien toat yeu” collection, clearly defining the functions, powers and tasks of mandarins and State bodies. In 1843, king Thieu Tri published the book titled “Dai Nam hoi dien su le” containing legal documents promulgated during the times of king Gia Long and Minh Mang.

Later, all legal documents promulgated to amend and supplement the Gia Long code and guide the implementation thereof and all other documents implemented during the tenures of various kings of the Nguyen dynasty were collected into a book called “Quoc trieu the le”, recording them in the order of the promulgation years and grouping them according to the tasks of 6 ministries: ho (marriage, family, land property), le (protocol, ceremony), lai (personnel, organization), hinh (justice), binh (defense), cong (public facilities).

In short, the Nguyen dynasty’s legislation in general and the Gia Long code in particular failed to bring into full play their effect due to their repressive and barbarous nature. In reality, under the Nguyen dynasty, people continued to observe the traditional customs and practices as well as the order of the Le dynasty’s legislation.

The Gia Long code, due to its repressive nature, was maintained by the French colonialist in their domination of northern and central Vietnam till the 30s of the 20th century.-

 

VNL_KH1 

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