>>Basic principles of Vietnam's ancient laws
>>Vietnam's ancient laws: sources and forms
Pham Diem
The State and Law Research Institute
In the traditional society of Vietnam, marriage stemmed from not only the interests of the involved parties, the woman and the man, but also the interests of the two families and lineanages. Moreover, marriage had to comply with the patriarchichal principles, being fully subject to the decisive power of the grandparents and parents. And the conjugal institutions in the ancient laws of Vietnam strictly adhered to such ideology.
I. Conjugal conditions
Under the ancient laws, the marriage had to satisfy the following conditions:
1. It had to be approved by the parents on both sides (the girl’s parents and the boy’s parents)
Article 314 of Hong Duc Code (the 15th century) stipulated: Those who get married without consents of their parents shall have to pay a fine to the girls’ families, asking for their forgiveness, if such persons are males, or shall be subject to 50 whippings if they are females. So, under this Article, marriage had to be baptized by the parents on both sides or the nearest among their senior next of kin. This might be considered the most basic condition for marriage, which negated the young people’s freedom in deciding their marriage. It stemmed from the perception that marriage was characterized by the relationship that had to stem from the interests of the big families as well as the lineages, enhance the relationship between the two families and the two lineages and carry on the traditions of the lines of descent. Therefore, marriage had to be placed under the scrutiny and decision of the family patriarchs within any personal freedom given to the involved couples.
This condition was similarly reflected in its spirit and content at Articles 94 and 109 of Gia Long Code (the 19th century), which also prescribed that the parents, grandparents or senior relatives (if parents and grandparents had died) would preside over the weddings. If a marriage was considered illegal, the person who presided over the wedding would be punished while the involved couple was found not guilty. If a marriage was decided by the couple themselves without consents of their parents, they were considered the principal while the person who had presided over their wedding was the accomplice. By having so provided for, the feudal law-makers further emphasized the great role and power of the family patriarchs in their children’s marriage.
However, the last clause of Article 94 of Gia Long Code defined an exception that if a man worked as a mandarin far away from home or did business or worked to earn his living far away from home and got married while his grand parents and parents at home did not know and married another girl for him, the earlier marriage would be valid.
Generally speaking, the prerequisite for marriage was the consent of the family patriarchs. This proves all true to the Vietnamese saying that “children shall sit where they are placed by their parents.”
2. Prohibition of marriage between people of the same blood lines
Vietnam’s ancient laws also forbade marriage between people of the same blood lines. Article 319 of Hong Duc Code stipulated: Those who get married with their aunts (their fathers’ sisters or their mothers’ sisters), their wives’ own daughters or other close relatives shall be considered having committed adultery and punished by law.
In “Thien Nam du ha tap” (a book on the systematic legislation of the Le dynasty, 15th-18th centuries), it was stated that the marriage between people of the same family line, the first cousin was strictly forbidden, and that those who got married with their aunts, their sisters, their wives’ own daughters or next of kin would be punished for incest and adultery.
So, under the Le dynasty’s legislation, people of the same spear-side relations, near or far, were forbidden to marry each other while for the spindle-side relations, only those who were close in blood were not allowed to marry each other.
Articles 100, 101 and 102 of Gia Long Code stipulated as follows:
- People of the same spear-side relations who marry each other shall be subject to 60 sticks’ beating and their marriage must be dissolved immediately.
- People of the same spindle-side relations who are close and marry each other shall be subject to 100 sticks’ beating and their marriage must be dissolved immediately.
- If half brothers and sisters of the same mother but different father marry each other or men marry their wives’ own daughters, they shall all be sentenced to corvee labor for three years.
3. Prohibition of marriage while in the period of mourning for parents or husbands
For the Vietnamese, it is customary that children were not allowed to get married during the three-year period of mournings for their dead fathers or mothers in order to show their filial piety. And women had to mourn for their deceased husbands also for three years to show their unshakable loyalty while the husbands did not have to mourn for their deceased wives. Consequently, any children who got married during the period of mourning for their parents were considered undutiful to their parents, and any women who failed to mourn for their deceased husbands for three years were considered disloyal to their husbands.
Article 317 of Hong Duc Code stipulated those who got married during the period of mourning for their parents or their husbands would be sentenced to “do” (corvee labor); those who were aware of this but persisted in their marriage would be subject to three-grade virtue demotion and the dissolution of their marriage.
Article 98 of Gia Long Code stated that those who were in the three-year period of mourning for their parents or their husbands married wives or husbands would be penalized with 100 sticks’ beating, or those who married concubines during that period would be subject to 80 sticks’ beating. For all these people, their marriages would be dissolved.
This Article explained: As the mourning for the parents has not ended and sons marry wives or daughters marry husbands they have forgotten their deep grieves over the death of their parents; as the mourning for their husbands has not ended and women remarried, they have forgotten their dutifulness and demonstrated their disloyalty. For all these cases, people would be subject to 100 sticks’ beating.
Both Hong Duc and Gia Long Code, in Article 2, stipulated that those who get married during the period of mourning for one’s parents or husbands would commit one of 10 serious crimes.
4. Prohibition of marriage when one’s grandparents or parents were imprisoned:
Those who got married while their grand parents or parents were imprisoned were also considered undutiful.
Article 318 of Hong Duc Code prescribed that those who got married while their grand parents or parents were imprisoned would be all subject to the three-grade virtue demotion and the dissolution of their marriage. However, an exception was defined by this Article that if their detained grand parents or parents gave their consents, they might organize the wedding ceremony but not the party. If this law provision was violated, the violators would be demoted one grade of virtue.
Article 99 of Gia Long Code stipulated that those who got married while their grand parents or parents were sentenced to death and being detained would be penalized with 80 sticks’ beating. If their grand parents or parents gave their consents, they would be immune from such beating but not allowed to organize their weddings lavishly.
5. In marriage, the “the-thiep” (wife-concubine) order must be observed
Feudal regimes recognized that a man might marry more than one wife. The first woman he married was called “vo ca” (legitimate wife) while the woman (women) he married later was called “vo le” (concubine). In the family, “vo ca” held a higher position than “vo le” and the wife-concubine order had to be strictly observed.
Article 309 of Hong Duc Code stipulated that those men who made concubines their legitimate wives or those who loved their concubines too much to be lukewarm towards their legitimate wives would be accused.
Meanwhile Article 96 of Gia Long Code made the case more specific by stating that if a man made his legitimate wife the concubine, he would be subject to 100 sticks’ beating or made the concubine his legitimate wife while the later was still alive would be subject to 90 sticks’ beating and had to divorce the one he married later. This was clearly explained in the Article that the legitimate wife was on an equal position with the husband while the concubine was in a lower position. So, making the legitimate wife the concubine or a concubine the legitimate wife meant changing a person from a higher social position to a lower social position or vice versa, which contravened laws, slighted ethical behavior and the violators would be subject to stick-beating.
6. Mandarins were prohibited to marry women in localities they were governing
According to Article 317 of Hong Duc Code, those mandarins who marry women of the localities they are ruling would be subject to 70 sticks’ beating, three-grade virtue demotion and removal from office.
Article 103 of Gia Long Code stipulated that if mandarins married women of the localities they were governing, they would be subject to 80 sticks’ beating and the person on the bride’s family who presided over the wedding would be penalized the same, and the newly weds would have their marriage dissolved.
The prohibition of mandarins to marry women in the localities they were ruling aimed to prevent forced marriage and create favorable conditions for the mandarins to perform their official duties (particularly when they were in the chair of judges).
7. Prohibition to marry convicted women in hiding
According to Article 339 of Hong Duc Code, those who married convicted women in hiding would be brought to trial or pleaded not guilty if such had not been known to them.
Article 104 of Gia Long Code stipulated that those who knew women were accused and in hiding but still married them would be penalized the same as such women.
8. Prohibiting people with powers and influence to force their marriages with daughters of ordinary citizens
Article 338 of Hong Duc Code stated that those who had powers and influence but forced their marriages with daughters of commoners would be subject to “do” (corvee labor).
According to Article 105 of Gia Long Code, those who committed such offense would be subject to hanging to death.
9. Prohibition to marry the widow of one’s brother or teacher
Under Article 324 of Hong Duc Code, those men who got married with the widows of their brothers or teachers would be sentenced to exile; the involved women were subject to one-grade virtue demotion and their marriage dissolved. Such prohibition aimed to preserve the brotherhoods and loyal relationship between teachers and students.
However, this prohibition was not provided for in Gia Long Code.
10. Prohibiting mandarins and their sons to marry women in show business
Article 323 of Hong Duc Code stipulated that mandarins or their sons who married women singers or dancers would be subject to 70 sticks’ beating and their marriage would be dissolved. In the ancient oriental society, singers and dancers were considered low- and humble-ranking people while mandarins were high-ranking officials; hence people from these two social classes could not marry each other.
However, this prohibition was not specified in Gia Long Code.
11. Prohibiting free persons to marry slaves
Article 107 of Gia Long Code stipulated that if non-slaves and slaves were married to each other, the persons having presided over the weddings and the slaves would be penalized with 80 sticks’ beating and their marriage would be dissolved.
Hong Duc Code did not contain such prohibition.
12. Prohibiting clergy (Buddhist monks and nuns or Taoist hermits) to get married
According to Article 106 of Gia Long Code, if clergy persons got married, they and the persons having presided over their marriage were considered law offenders and would be punished by law, and in many cases their marriage had to be dissolved.
II. Conjugal forms and procedures
Article 315 of Hong Duc Code stipulated: If a person has agreed to marry his/her daughter to a man and received the engagement presents (such as money, silk, gold and silver, pigs, liquors) then later refuse to do so, such person shall be penalized with 80 sticks’ beating; if such girl is married to another man and the marriage is effected, he/she would be sentenced to corvee labor. The bridegroom would also be sentenced to corvee labor if he knew the case but still married the girl, or would not be guilty if he was not aware of the case. If the first man refuses to marry the girl, she would be married to the later man but her family shall have to refund in double the wedding presents as compensation to the former. If the man’s family has already offered the wedding presents but later refuses to marry the girl, the 80 sticks’ beating sanction shall be imposed and the wedding presents shall not be refunded.
Article 322 of Hong Duc Code further stated: An engaged woman might report to mandarins and ask for breaking off the engagement and return the engagement presents if her intended was struck with a serious disability, committed a crime or went bankrupt. A man might do the same to his fiancée but was not entitled to demand the return of engagement presents. Those who breached this regulation would be punished with 80 sticks’ beating.
It is revealed through the above-mentioned two Articles of Hong Duc Code and a number of other law provisions that marriage had to go through two stages:
- The engagement, for which the procedure was that the bridegroom’s family offered the engagement presents and the bride’s family accepted them. The engagement was valid from the time the engagement presents were offered and accepted to the time just before the wedding. With this, the marriage was legally valid because both sides could not break off the engagement except for cases mentioned above. However, the marriage was by then not actually valid though it was legally valid, as Article 314 stipulated: Unwed couples, though already engaged, who live together like husbands and wives, would be penalized by law.
- The wedding: The marriage would be actually valid only after the wedding ceremony, meaning from then on the couples could live together like husbands and wives. However, Hong Duc Code failed to specify the procedures for wedding which might be left by the feudal law-makers to the customs and practices of each locality.
Gia Long Code, Article 94, also stipulated that the marriage had to go through two stages: the engagement and the wedding. As Hong Duc Code specified only one procedure for the engagement, that was the offering and acceptance of engagement presents, Gia Long Code defined two procedures for the engagement, that was the engagement present offering and acceptance or the making of marriage lines by two families of the bride and the bridegroom, which was in fact a written commitment to marry their children to each other, originating from Chinese ancient law, not suitable to Vietnamese customs and practices; hence, the marriage lines were not actually applied.
Under Gia Long Code, engagement might be broken off if either of the couple committed adultery.-