>>Inheritance under ancient laws of Vietnam
>>Conjugal institutions under ancient laws of Vietnam
Pham Diem
State and Law Research Institute
The family and lineage relationship is one of the most basic relations in the society of the Vietnamese people. The ancestral worshiping is considered an extremely important thing in their spiritual life, and also the display of their ethics and dutifulness towards the dead. The ancestral-worshiping heritage is the portion of property assigned exclusively to the person who carries on the lineage and uses the yields therefrom to worship the dead.
In the ancient society, land and field constituted the fundamental asset of families. The inherited object in general and the ancestral-worshiping heritage in particular were largely land and field. It was due to the importance of the ancestral-worshiping heritage in people’s spiritual life as well as customs and practices, Vietnamese ancient law-makers, when prescribing the inheritance, paid special attention to the inheritance of ancestral-worshiping property.
The question of ancestral-worshiping property inheritance was presented most distinctively and concentratedly in Hong Duc Code (the 15th century), then defined generally in Gia Long Code (the 19th century). The makers of Hong Duc Code devoted 13 articles to providing the inheritance in general and the inheritance of ancestral-worshiping property in particular.
Article 388 defined generally the inheritance of property and the inheritance of ancestral-worshiping heritage.
Article 389 provided that parents had to nominate heirs to their ancestral-worshiping heritage according to the first paternal line of descent.
Article 390 prescribed the division of inherited land and fields among children and grandchildren.
Article 391 stipulated that in the event of sonlessness, the eldest daughters in families were entitled to the ancestral-worshipping land and field.
Article 392 provided that the ancestral-worshiping land and field would be given to the elder sons if the eldest sons were not qualified therefor.
Article 393 provided that the ancestral-worshiping land and field would be given to sons.
Article 394 stipulated the temporary holding of ancestral-worshiping land when the heir of the first paternal line of descent was absent.
Article 395 provided that the ancestral-worshiping land would be assigned to sons or grandsons, or to daughters of the first family branch in case of the absence thereof.
Article 396 provided guidance on a specific case of division of ancestral- worshiping heritage.
Article 397 provided guidance on another specific case of division of ancestral-worshiping heritage.
Articles 398 and 399 prescribed the time limits for the existence of the ancestral-worshiping land and field.
Article 400 put a ban on the sale of ancestral-worshiping land and field.
I. On the ancestral-worshiping land and field
Article 388 of the said Code provided that if both parents died leaving land and field without any testament, one-twentieth of such land would be deducted for ancestral-worshiping heritage and the rest would be divided among their children.
Article 389 stipulated that children assigned to take care of the ancestral-worshiping land, irrespective of whether they were high-ranking mandarins of the royal courts, local mandarins or commoners, of their ages and social positions, had to observe customs and practices.
Article 390 provided that parents had to think of their old ages and ready their testaments... Regarding the ancestral-worshiping land, the old customs and practices would apply, and one-twentieth of the total land would be put aside for such purpose. A father being the head of the lineage would deduct a portion of the lineage’s land as the ancestral-worshiping land, and when his eldest son acted as the head of the lineage, such ancestral-worshiping land would be added to the ordinary land before one-twentieth of which was taten out as the ancestral-worshiping portion and the remainder was divided among children. The same would be done by grandchildren. In cases where there were a large number of people while the land was so little, the portion of ancestral-worshiping land and the portion divided among children or grandchildren would be agreed upon among them provided that no disputes and conflicts occur.
So, these above articles of the Code clearly defined persons competent to set the ancestral-worshiping heritage, the object thereof and the quantitative limit.
Regarding the persons competent to set the ancestral-worshiping heritage, the makers of Hong Duc Code provided two following cases:
- The parents who owned the property might make their testaments and establish the ancestral-worshiping heritage therein.
- Where the parents died leaving no testaments, their offsprings or the head of the family line had to put aside a portion for use as the ancestral- worshiping heritage before dividing the rest among themselves.
In a nutshell, the ancestral-worshiping heritage could be established by the family heads during their lifetime, or by their offsprings or their relatives if they had died without any testaments.
Regarding the ancestral worshiping objects and their quantitative limits, the ancient legislators only mentioned the deduction of a portion of land, not other kind of property, as the ancestral-worshiping heritage. To them, it was customary among people that houses left by the deceased parents were used as places to worship the deceased; hence, they were usually assigned to the care of persons entitled to the ancestral-worshiping heritage. Once it became a long-standing and well-established folk custom and practice, it should not be stipulated in laws.
Yet, the ancient law-makers not only prescribed the quantitative limit of the ancestral-worshiping heritage, namely one-twentieth of the total land area owned by the family, but also stipulated this in two specific cases:
- The case of first-time establishment of ancestral-worshiping heritage.
- The case where the portion of ancestral-worshiping property was set by people of subsequent generations.
In order to illustrate the two cases mentioned above, Article 396 cited a concrete example: Mr. Pham Giap had two sons, the eldest son was Pham At and the other son was Pham Binh. He established the ancestral-worshiping land of two “mau” (a measuring unit equal to 3,600 m2) for the first time and assigned it to the care of his eldest son, Pham At, who added such land portion to his own land, then deducted one-twentieth of the total, equal to 5 “sao” (a measuring unit equal to 1/10 of “mau” or 363 m2), as the ancestral-worshiping land to be assigned to his eldest son.
Yet, the rate of one-twentieth of the total land deducted for ancestral-worshiping heritage was not fixed. The ancient law-makers proved to be more flexible in this regarding the cases where there were more people but only few land.
By putting the above-mentioned limit on the ancestral-worshiping land portion, the feudal law-makers wished to avoid the big accumulation of ancestral-worshiping land from generation to generation in order to reconcile the interests of family and lineage members while ensuring the material foundation for worshiping of the forebears.
On the time limit of the ancestral-worshipping heritage, Article 399 stipulated that the ancestral-worshiping land would be valid for five generations; past such time limit, the posterity had not to use such land portion for ancestral worshiping and such land portion would not be divided among lineage members in order to avoid disputes. So, the ancestral-worshiping land would be passed down through five generations, and according customs and practices, the persons of the fifth generation who kept the ancestral-worshiping land would be entitled to enjoy such land portion.
II. Regarding the heirs
So, under the ancient laws of Vietnam, who would be entitled to inherit the ancestral-worshiping property? and what would be their duties?
According to Article 389 of Hong Duc Code, the ancestral-worshiping land would be assigned to the eldest son of the first legitimate wife. If such eldest son died before his parents, his eldest son, namely the eldest grandson, would be given such land portion. In cases where there was no such grandson, the elder son would be chosen for the purpose. If the first legitimate wife had no sons, the best and most virtuous son of the concubine would be selected to take care of the ancestral-worshiping land. In cases where the eldest son or the eldest grandson was seriously disabled or spoiled, being unable to take care of the ancestral worshiping, the family master had to report such to the local mandarins for selection of the substitute.
Article 391 provided that the caretaker of the ancestral-worshiping land would select his eldest son to carry on the task of keeping such land portion. If he had no eldest son, the eldest daughter would be selected for the task. Meanwhile, Article 395 stipulated that if the parents had two sons, and their eldest son only had daughters while the elder son had sons, the ancestral-worshiping land portion would be assigned to the eldest son of the second son in the family. Yet, if subsequently, such eldest son of the second son only had daughters, the ancestral-worshiping land portion would be handed back to the daughter of the first son of the family.
So, under the above-quoted and other provisions of Hong Duc Code, the heir to the ancestral-worshiping heritage was selected from among people of three categories according to the following priority order:
1. Sons.
2. Daughters.
3. Relatives.
Among these people, the priority was given to children of the first legitimate wife before the children of concubines. Within a family branch, the priority was given to the eldest child before the elder one. Those who were seriously disabled or undutiful would not be entitled to inherit the ancestral-worshiping property.
It is stark clear that the ancestral-worshiping land was inherited on the following two principles: The principle of treasuring men more highly and the principle of treasuring the headship more highly (i.e. the head paternal branch of the lineage, the head (eldest) son of a family, the head (eldest) daughter of a family...). The first principle aimed to ensure that the ancestral-worshiping land would not be passed to other lineage. Meanwhile the second principle aimed to consolidate the patriarchical regime under the ideology of the Orient’s Confucianism. However, Hong Duc Code demonstrated a particular and progressive feature of the then Vietnamese legislation, which allowed daughters to inherit the ancestral-worshiping heritage in cases where the families had no sons.
According to Article 46 and Article 76 of Gia Long Code, the ancestral- worshiping land was passed only to sons. In cases where a family had no sons, such land portion would be passed to a male relative. The daughter of such family would be given such land only when there was not any male relative.
The difference in the priority order of the ancestral-worshiping land inheritance between Hong Duc Code and Gia Long Code can be summarized as follows:
Hong Duc Code: Sons, daughters, relatives
Gia Long Code: Sons, relatives, daughters.
Under the ancient laws as well as customs and practices of Vietnamese people, the heir to the ancestral-worshiping land had the following duties:
- To perform the ancestral worshiping, including the taking care of their forebears’ tombs and the organization of annual death anniversaries of the dead.
- To maintain and preserve the ancestral-worshipping land which was strictly banned by laws from trading.
Article 400 of Hong Duc Code stipulated: The ancestral-worshiping land must not be sold despite how poor the children are. Those who violate this shall be charged with the crime of undutifulness (one of the ten grave crimes under the feudal law). If a relative bought such land, he/she would have to return the land and lose the money; if an outsider bought the land, he/she must let such land be redeemed.
- To select the next heir to the ancestral-worshipping land.
Panoramically, the provisions on ancestral-worshiping land in the inheritance regime constitutes a particularity of the ancient laws of Vietnam. They clearly reflected the cultural traditions in the spiritual life as well as customs and social practices of the Vietnamese people.-