The role of women in Tonkinese religion and property 3n203z33g

Table of contents :
Frontmatter
Foreword (page 3)
Introduction (page 4)
Chapter One Devolution of the Huong‐Hoa (according to the Committee on Jurisprudence) (page 43)
Chapter Two Devolution of the Huong-Hoa (continued) - (Legislation of the Lê) (page 77)
Chapter Three Daughter‐In‐Law, Widow, Eldest Daughter (page 93)
Chapter Four The Husband‐Son‐In‐Law... Conclusion (page 126)
Index of Annamite and Sino‐Annamite Terms (page 146)

Citation preview

BEHAVIOR SCIENCE TRANSLATIONS ,

- THE ROLE OF WOMEN IN TONKINESE RELIGION AND PROPERTY

by

Pierre Lustéguy Translated by Charles A. Messner

Originally published under the title |

/ , "La Femme Annamite du Tonkin dans L'Institution des Biens Cultuels (Huong-Hoa)!!

Paris: L'Entente Linotypiste, 1935

Published by

Human Relations Area Files New Haven 1954

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P'IBLISHER'S PREFACE In the processing of data for the Human Relations Area Files all foreign language texts are translated into English. Member institutions receive copies for their Files. The translations may also be published in book form for general distribution in the series, Behavior Science Translations, of which the present volume is one title. The series is _. not.numbered; each volume is issued separately. In brackets throughout the text are found the page numbers of the original French text. The page references in the footnotes also refer to the pagination of the original French version; they may be located by utilizing the bracketed numbers in the text material of the present translation. The pages making up these publications are duplicates of the sheets which constitute the respective Files. The page headings carry the following information, in sequence from left to right: (1) the number assigned to this source inthe Files; (2) the author's name; (3) the page number; (4) the professional identification of the author: in this case, G - government attaché; (5) the HRAF analyst's evaluation of the source: in this case, 4 - excellent, secondary data; (6) the date of field work, © in parentheses; (7) the date of publication; (8) the ethnic group. | In the left hand margins of the pages are printed the category numbers referring to the classifications in the Outline of Cultural Materials (3rd Revised Edition, New Haven, 1950). The table of contents of this Outline, entitled 'Index: A Key to the Category Numbers," containing a. brief identification of each number of the classification, will be found in this volume, pp. iv-vii. These numbers serve primarily for the classification of the file sheets. They are retained in the publications as a highly serviceable and complete index. If a reader is particularly concerned with specific subjects he can find the corresponding numbers in the 'Key,"' or in the Outline, and look for these in the margins of the publication pages. When he has read all of the portions thus indexed he can be sure that the content of the book has been exhausted on the subject

of his concern, | |

The Human Relations Area Files is an inter-institutional non-profit research corporation consisting of sixteen American universities: Chicago, Colorado, Cornell, Harvard, Hawaii, Indiana, Iowa, Michigan,

North Carolina, Oklahoma, Pennsylvania, Princeton, Southern Cali- | fornia, Utah, Washington, and Yale. The publications issued by HRAF are produced at minimum expense and are sold at cost. For further information concerning the Files organization see Function and Scope of the Human Relations Area Files, Inc., New Haven, 1953. Correspondence should be directed to the Human Relations Area Files,

421 Humphrey Street, New Haven ll, Connecticut. iii

. | INDEX: A KEY TO THE CATEGORY NUMBERS

REPRINTED FROM THE OUTLINE OF CULTURAL MATERIALS : .

10 ORIENTATION 18 TOTAL CULTURE256 ——.Cereal $55 Canning Indusery | . 101 EL Echos Industry . 102 Identification Maps : 182 Function : . 257 |Confectionery Industries ; .

103 Place Names . 183 Norms 258 Miscellaneous Food Processing. 104 Glossary _ 184 Cultural Participation and Packing Industries

, 9% Summary 185 :Cultural Goals 26 FOOD CONSUMPTION |, 11Cultural BIBLIOGRAPHY . | 261 Gratification and Control of Hunger

111 Sources SourcesConsulted. Processed 191 . 19Speech LANGUAGE 262 Diet 112 263 Condiments 113 Comments Additional References 192 265. Vocabulary 264 Eating -_ . 114 . 193 Grammar Food Service Industries

Texts sti oo ee a

115 Informants 194 Phonology 266 Cannibalism. ,

«497 Field Data 194 Stylistics -.27 DRINK, DRUGS, AND INDULGENCE

7 | 197 Linguistic Relationships __ . 271 Water and Thirst

12 METHODOLOGY | 198 Special Languages 272 Nonalcoholic Beverages

121Practical Theoretical Orientation — a Alcoholic Beverages a , 122 Preparations 20esCand ICATION everage 123 Observational. Role . OM oewece Signs | | _ 275 Drinkingindustries Establishments

124. Interviewing _ 202 Transmission of Messages | 276. Narcotics and Stimulants

125 Tests and Schedules 203 Dissemination of News and Information 277 Tobacco Industry

126 204 _Press z | 278 Pharmaceuticals 127Recording Historical—§_—s Research 205: Postal System - . a oe .

128 Organization of Results 206 Telephone and Telegraph 28 LEATHER, TEXTILES, AND F ABRICS

- | | 207 Radio208 andPublic Television 281282 Work in Skins. 13 GEOGRAPHY Opinion Leather Industry . 132Topography‘. Climate 21211 RECORDS - 284 Knots 133 Mnemonic Devices — : 285and MatsLashings and Basketry :

131 Location . 283 Cordage . . : 134 Soil ‘212 Writing 286 Woven Fabrics — 135 Mineral Resources 213 Printing 287 Nonwoven Fabrics. : ' 136 137 Fauna 214 Publishing 288 Textile Industries Flora, 215 Photography oe (289 Paper Industry .14 ;HUMAN 216BIOLOGY Sound Records _ oo . £17 Archives 29 CLOTHING _—— 141 Anthropometry an 218 Writing and Printing Supplies -291 Normal Garb _ 142 Descriptive Somatology : : 292293 Special Garments 143 Genetics .. | 22 FOOD QUEST Paraphernalia 144 Racial Affinities — 221 Annual Cycle : 294 Clothing Manufacture

145 Collecting Special Clothing 146Ontogenetic Nutrition : Data. : 223222 Fowling 296.295 Garment CleaniggIndustries and Repairing

224 Hunting and Trapping :

15 BEHAVIOR PROCESSES AND PERSONALITY 225 Marine Hunting 30 ADORNMENT | ]

151 and Emotions Perception .227 226 Fishing Fishing 301 Ornament 152Sensation Drives and Gear 302 Toilet .

153 Modification of Behavior 228 Marine Industries 303 Manufacture of Toilet Accessories 154 Adjustment Processes © 304 Mutilation | oo

155. Personality Development 23 ANIMAL HUSBANDRY . . 305. Beauty Specialists |

156 Social Personality 231 Domesticated Animals 306 Jewelry Manufacture

157 Personality Traits 232 Applied Animal Science Oo oo 158 Personality Disorders 233 Pastoral Activities _ 31 EXPLOITATIVE ACTIVITIES |

Life History Materials 234 Raising Dairying312 - 341 Land Use _ 16159 DEMOGRAPHY 235 Poultry Water Supply 161Birth Ropulation 23637Wool Production 314 Lumera of P'opal ation 237 imal 'By By-product Products 163omposition Statistics Animal P of . 315forest Oil and Gas Wells. |

Morbidity 24 AGRICULTURE _ : 316 Mining and Quarrying ~-:164 165. Mortality 241 Tillage . _ 317 Special Deposits | 166 Internal Migration 242 Agricultural Science : . . 167 Immigration and Emigration 243 Cereal Agriculture : 32 PROCESSING OF BASIC MATERIALS 168 Population Policy . , 244 Vegetable Production . 321 Work in Bone, Horn, and Shelli

| a 245 Arboriculture | 322 Woodworking

17 171 HISTORY AND CULTURE 246 Forage Crops 323 Ceramic Distributional EvidenceCHANGE 247 Floriculture — 324 Stone IndustryIndustries ;

172Traditional Archeology : 248249 Textile 325 Metallurgy —. History SpecialAgriculture Crops 326 Smiths and Their Crafts _173 174 Historical Reconstruction 327 Iron and Steel Industry . 175 Recorded History 25 FOOD PROCESSING 328 Nonferrous Metal Industries

176Acculturation Innovation 251Preparation Preservation andAND Storage of Food 177 252 Food 33 BUILDING CONSTRUCTION 178 Socio-Cultural Trends 253 Meat Packing Industty’ 331 Construction Industry 254 Refrigeration Industry 332 Earth Moving 1v

:||

Structural Steel os San aren Sarena i

33 Masonry 406 407 Weight ing MMachinery hi 335 Carpentry Work Agricultural isp qarehousing |

536 Plumbing 41 TOOLS AND APPLIANCE tases 337 Electrical Installation Ss . 4 ; 338:"Tas Miscellaneous iz Geebeat TTools i ° “ol Higheaye:| : Building areTrades eneral Building Supplies Industries 413 Special Tools | ton Animal Transport

34 341 STRUCTURES 414415 Miscellaneous + Vehicles Architecture Utensils .Hardware ios fighway Transport 342 Dwellings 416 Appliances 495 Auxiliary Services 343 Outbuildings 417 ApparatusHighway ie a on

344 PublicStructures Structures. | fog os Rail Transport 345 Recreational | 42 PROPERTY Terminal Facilities | 346 Religious and Educational Structures _ 421 Property System 499 Highway and Railway

347 Structures 422 Property in Movables 348Business Industrial Structures 423 Real PropertyConstruction 50° | TR AK 349 Miscellaneous Structures 424 Incorporeal Property OUT Bony AIR TRANSPORT | | 425 Acquisition & Relinquishment of Property’ 302 Boat - . 35 EQUIPMENT. AND MAINTENANCE OF BUILDINGS 426 Borrowing and Lending 03 Wan eetiee Cprovemen 351 Grounds. 427 Renting and Leasing 203304 Waterways Improvements 352 Furniture . 428 Inheritance Port Facilities , 353 Interior Decoration 429 Administration 303 Water Transport 354 Heating and Lighting Equipment | 306 Alccrafe , 355 Miscellaneous Building Equipment 43 EXCHANGE Son Aratios 356 Housekeeping | - 431 Gift Giving . 508 Airport Facilities

357aintenance DomesticofService B Buying and3 Selling 909 Transport — Nondomestic Buildings Production andAlt Supply. LLn | AND

.SETTLEMENTS . & 434 Income .and Demand y Value . ° AST Stein esRROUTINES 36361 435 Price and 512 Daily sti ee Settlement Patterns 436 Medium of Exchange 313 Sleep! 362 Housing : 437 Exchange Transactions fineal Hh giene . 363 Streets and Traffic 438 Domestic Trade .514 315Eli Perse 365 say Facilities 439 Foreign Trade 516 Postures yBtene

5Parks Public Utilities . ‘Lei ime vides 41 Mercantile Business |

6 Conmercal ies ties 4 MARKETING 517 Leisure Time Activities

368 Miscellaneous Urban Facilities 442 Wholesale Marketing ia “321 Conv ersatic

369 Urban and Rural Life444 443 Retail Marketing $22 Huo Retail Businesses 523 Hobbie

37371 ENERGY Development AND POWER446 445. Service Industries $24 G ‘. | , Sales Promotion $25 372Power Fire 447 Advertising . 526 Athle ieGambli Scores

: 373 Light | 527 Rest Daye ced Holidays 374 Heat 48Power FINANCE 528 est Days and Holidays 375 Thermal 451 Accounting 52 Recresthan

376 Wo once _452 Credit453 9 Investment Recreational Facilities Electric Bankin ; 378 Atomic Energy Power 454 Saving ‘and 3 DL ARTS

_ 3 456 Insurance Representative Art

379 Miscellaneous Power Production 455 Speculation , 332 Represeneactre |

38 381 CHEMICAL INDUSTRIES 457 Foreign Exchange 534 Masical Instrume Chemical Engineering | 458 Business Cycles 535 Date |

382 Coal Products Deana 383Petroleum Rubber &Industry . 46 Industries LABOR| 536 5: Oran

384 Synthetics Industry462 461Division Labor and Leisure $38 539 bieeren 385 Industrial Chemicals of Labor by Sex Literery4 . . 386 Paint and hiertilizer Manufacture “3 Occupational Specialization _ Literary Texts Industry ‘Labor Suppl and Employmen 388 Soap and Allied Products 465 Wages and Salaries proymen 4 OM eee

389 Manufacture of Explosives 466 Labor Relations Conmercia vee: | | 467 Labor Organization 543 542 tibiicas Sports

39 CAPITAL GOODS INDUSTRIES 468 Collective Bargaining Expiitions

399 Manufacture i +n Musing pareProductions The i artlardware hine Induetries 47 ; | usical an eatrical

.393 Electrical Supplies Industry . BUTT Onnceship and Control of ANIZATION 340 Monon Picture Industry

"Lighting Applianc ivi ree Recrencie hotographic SIAC, oar . sg saan EP £ ComenceEquipment xpi $5 BIDUATION ANDae MOBILITY 394 Manufacture of Heating and Capital . a4 Otome rely and Cabarets

395 Man uf ia of Op om 6 ad ays Comacate Organization 349 Art & Recreational Supplies Industries

308 Railway Equipment Industry Mutual Aid 352 of Ante Thi of Highw i ' i476 22% of Names Animals 399anufacture Aircraft Industry ghway Vehicles 477 Names Competition 553 Namingand nd Things . 40 MACHINES _ 48 TRAVEL AND TRANSPORTATION 555 Talene Mobilit ouee 401 Mechanics | 4B2 Borden Conyi 556 Accumulation of Wealth 402 Industrial Machinery 483 Wei he Moving ~ 357 Manipulative Mobility

:7| |481 Status, Role, and Prestige Locomotion :|

ousehold Machines | i

402 TARE ie ICV abe ie and Appliances 484 Travel owns 958 Downward Mobility 405 Weighing, Measuring, and 486 Renulation of Teavel * S361 AL SA CATION

cording Machi Stratificatio g ines 487 Routese 562 See Status . . y

astes 646 Parliament | 5 Tactic: | | 365 Classes | 647 Administrative Agencies 1 Wore

263 Ethnic Stratification 645 Cabinet 724 Logistics —

avery eee 728 Peacemaking . | 571 Social Relationships and Groups 651 Taxation = . oe

0° Serfdom and Peonage. 648 international Relations | 727. Aftermath of Combat. 57 INTERPERSONAL RELATIONS 65 GOVERNMENT ACTIVITIES 729 War Veterans |

572 Friendships 652 Public Finance _ 73 |SOCIAL PROBLEMS— | 573 Cliques 653 Public Works . 731 Disasters 574 Visiting and Hospitality 654 Research and Development 732 Defectives _ Ce

375 Sodalities 635 56 Government Enterprises , 733 Alcoholism and Drug Addiction 576 Etiquette Government Regulation | 734 Invalidism ,

377 Ethics onl 658 Public Edveation Tg Revery y

groupandAntagonism PaterGovernment —_— ee, 736 737. Dependency _ $79 Brawls Riots 659 Miscellaneous Activities Old Age Dependency

; eeBEHAVIOR | 738 Delinquency — $8 MARRIAGE | 66 POLITICAL 138 Delingency”

581 Basis of Marriage 661 Exploitation 74 HEALTH AND'WELFARE

582 Regulation of Matriage 662 Political Intrigue 741 Philanthropic Foundations

583Arranging Mode of aMarriage by Public Service 742 Medical Research 584 Marrlage — | Pressure Politics _ 743 — Hospitals and Clinics $85 Nuptials 665 Political Parties , 744 Public Health.and Sanitation $86 Termination of Marriage 666 Elections | | 745 Social Insurances $87 Secondary Marriages 667 Political Machines 746 Public Assistance

588 Irregular Unions 668 Political Movements : 747 Private Welfare Agencies: 589 Celibacy 669 Revolution | an 748 Social Wok = }

59591.FAMILY 67Legal LAW Residence 671 Norms->95-SICKNESS: O31 Preventive Medicineoe . 592 Household — 672 Liability 752 Bodily Injuries 593 Family Relationships 673 Wrongs | 753 Theory of Disease 594 Nucleat Family er came 754 Sorcery: Oe , 393 Polygamy 676 Ancney 755 Magical and Mental Thetapy. 96 Exte : ed Families gency 756. Psychotherapists

iota Medical Care

597 Adoption 68 OFFENSES AND SANCTIONS 737, Medical Therapy —

60GO KINSHIP 681 Sanctions Life. 759aint Medical lneie_Tenioloy Sezet Ounce Lil Personnel ‘

02 Kin Relationships 684 Se ound Meni L ffens erson 76 DEATH | , .

603 Grandparents ard Grandchildren 685 operty, offen Offenses | _- 761 Life and Death

£05 Seancular and Nepotic Relatives 686 Nonfulflllmeat of Obligations 762 Suicide | 606 Parents-in-Law and Children-in-Law 687 Offenses against the State 764 F eel 607 Siblings-in-Law 88 Religious Offenses 765 Mourning a 608 Artificial Kin Relationships 689 Social Offenses 766 Deviant Mortuaty Practices -

609 Behavior toward Nonrelatives 69 JUSTICE 767 Mortuary Specialists ;

61.KIN GROUPS | 691 Litigation 768 : Social Retdjustments

indreds egal and Judicial Personnel . | ae :

6ul Rule of Descent on Judicial a yodieial P ‘el —-769 Cult of the Dead 614 sibs 695 ‘tial Precedee ne roceedings = 77 RELIGIOUS BELIEFS _

615 Phratries 696 Execution of Justice 7 cal General Character of Religion

Si les Kin Gow Be Ses Te a

616 MoietiesKin fonGroups Prisons Special and JailsCourts 773 Mythology 7 Bilinear | , “Animi

Sin mS olice . ir Forcesere rere ; 619 ‘Tribe end Nation 701 Military. Organization 776 Spirits and Gods

62 621 COMMUNITY Recruitment and778 Training 777Objects Luck'andand Chance = Co . | 703 702 Discipli d Moral Sacred Places

mmunity Seruccure iscipline and Morale 779: Theological Systems : |

on uncils Headmen : 704 Combat anon ore _ 4 ply anSeely missariat RETForces IctarieaDRAC ce.

626 Control 708Justice Auxiliary . he Propitiation id ' . 627 Social informal Ingroup | 784Corps hee dence aad Expiation

/ ilitary Engineerin . -

Distri Fi «can, 641 sa STATE . 3ongpre Priesthood ° 72 WV gations

628 Informal Intergroup Justice 71 MEATARY TECHNOLOGY 785 Asceticism Tatoo 63 TERRITORIAL ORGANIZATION 712 Military Installations 786 peices ion and Divinatiot ,

631owns Territorial Hierarchy ay Ordnance i | 788 ia Divination . Uniform and Accouterment as . :

33 Cities 715 Military Vehicles 789 Magic 634 Diswrices as Neva y ‘Aincre tt 79 ECCLESIASTICAL ORGANIZATION 636 Dependencies 718 Special Military Equipment 791 Magicians and©Diviners 719 Munitions Industries 792 Holy Men

642 Conacitatin a instigation of War Lhe Sects -_ . ay Chief Executive 722 Wartime Adjustments +07 Ursanized Ceremonial

Executive Household 723 Strategy 798 Religious Persecution vi

833 Sexual Intercourse .

On Miss fons Persecution 834 General Sex Restrictions 86 SOCIALIZATION nes 835 Kinship Regulation of Sex 6!SexTechoiques of and Tnew 836 Premarital Relations eaning Foodcation Training 80 NBOL Neweroloey. EASURES 837 Extramarital Sex Relations 863 Cleanliness Training

802 Numeration 838 Homosexuality 865 sex Training

803 Mathematics 839 Miscellaneous Sex Behavior 866 Intependence Traittag

804 Weights and Measures oo 867 Transmission of Social Norms 805 Ordering of Time alias Riera he 868 Transmission of Skills

843 Pregnancy |

81 EX ACT KNOWLEDGE 842 Conception 869 Transmission of Beliefs

B12 Philosophy 844 Childbirth 87 EDUCATION nel System” 813 Scientific Method 845 Difficult and Unusual Births 872 Ele jona Educart

814 Humanistic Studies 846 Postnatal Care 873. Liberal Aves Education 815 Pure Science _ 847 Abortion and Infanticide 874 Vocational Education

816 Applied Science 848 Hlegitimacy | 875 Teachers ;

821 Eth t 1 851 Social Placement | | a 823 Ethnogeography 853 Infant Feeding — 882 Sen rey en initiation

82 IDEAS ABOUT NATURE AND MAN 85 INFANCY AND CHILDHOOD. 876 Educational Theory and Methods

822 Ethnophysics °8Y 852. Ceremonial During Infancy and Childho 88 AOR BEBE NCE, ADULTHOOD, AND OLD AGE

824 Ethnobotany 854 Care1BB Adahrevene Acie 825 Ethnozoology 855 Infant Child Care Adolescent Activities 826 Ethnoanatomy 856 Development and Maturation 885 werty a 827 Ethnophysiology , 857 Childhood Activities ulthoo 828 of Children 886 Senescence 829Ethnopsychol E hnobeni858 fe Status By 887 Activities of the Aged

thnosocnonosy 888 Status and Treatment of the Aged

83 SEX

831 Sexuality |

832 Sexual Stimulation

vil

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61: Lustéguy--] G-4 (1925-1932) 1935 ~ - Vietnamese Table of Contents

Foreword ......26+- 0 6 + ee see ee eevee 3

Introduction |

Survey of the Annamite Family Organization.

- The Inquiry of the Committee on Jurisprudence

on Annamite Customs in Tonkin, ...... « 4 Chapter One

Devolution of the Huong -Hoa (according to the |

Committee on Jurisprudence)......... 43

Chapter Two

Devolution of the Huong -Hoa (continued) , oo

_ ~- (Legislation of the Lé)............ 17 Chapter Three

Daughter-In-Law, Widow, Eldest Daughter... 93

I. The Daughter-In-Law............-. 93

II. The Widow. .......-.-+4-+4-.06688-60-8 101 Ill. The Daughters .........-26+4.+2602008 113 Chapter Four

The Husband-Son-In-Law...Conclusion..... 126

I, The Husband-Son-In-Law........0... 126

II. Conclusion. .......0.--.65+4646+4-4048-8 — 140 Index of Annamite and Sino-Annamite Terms..... 146

61; Lustéguy--2 G-4 (1925-1932) 1935 Vietnamese ABBREVIATIONS

[The author consistently uses a cryptic set-of ,

his own abbreviations, It may be necessary to

consult the key to these abbreviations which > ,

are reproduced here. ----Translator |

A. Avis du Comite consultatif de Jurisprudence

_ porté au Recueil. [Opinion extracted from Collected Opinions of the Advisory Committee on Jurisprudence. |]

Arr. Arrét (de Cour d'Appel). [Decision (of Court

| of Appeals). ]

Art. Article (of the Code),

B.e.f.e.o. Bulletin de l'Ecole francaise d'Extreme-Orient, Bull. A.V. Hue Bulletin des Amis du Vieux Hué. |

Bull. Et. Ind. Bulletin de la Societé des Etudes Indochinoises.

(decision of). ] |

C.A. Cour d'Appel (arrét de). [Court of Appeals

C.C.T. Code Civil a l'usage des jurisdictions indigénes

, du Tonkin (1931). [Civil Code governing internal jurisdiction of Tonkin (1931). ] |

3 C.G. (or C. A.) Code of Gia-Long (known as Code Annamite).

C.L. Code of the L#@. D. Decree. J.J. Journal judiciaire de l'Indochine. J.O.I.C. Journal Officiel de l'Indochine.

Pen, Penant--Recueil général de Jurisprudence. Rec. Recueil des Avis du Comite de Jurisprudence. [Collected Opinions of Committee on _ Jurisprudence. |

Rev. Ind. Revue Indochinoise, [7] : , [In most cases, the original French has been given above, followed by the English

translation in brackets, Where no translation is given, the item is usually a publication, ---Translator ].

oo Foreword a

61; Lustéguy --3 G-4 (1925-1932) 1935 Vietnamese 121 In the course of two stays in Indochina, from 1925 to 1932, | | Thad noticed, first in Cochinchina and later in Tonkin, that

cultivated Annamites and inquisitive Frenchmen were | , interested in the rdéle of the Annamite woman in _particularly the family and in society. (1) | l. Lectures on the Annamite family. organization,

given at Saigon, particularly by the Mssrs. oo

Tavernier, colonial magistrate, and Duong-tan- , oO ‘Tai, a high Annamite official in the Government | — of Cochinchina, and at Hanoi by Mr. Ner, , :

, professor at the Lycée Albert-Sarraut, dealt to | , : a greater or less degree with the function of the _

Annamite woman. , ,

For my part, I was all the more inclined to study this | | countries, that the effective function of the Islamic women is much less restricted than is commonly thought. , 7 . Moreover, the duties of my profession enabled me to , question because I had previously noted, in Mohammedan ,

follow, in the matters falling under my jurisdiction, the

diverse family practices and to compare them with one ,

‘another in the three great countries of Annamite speech. , a About the same time, the Protectorate of Tonkin ordered

an inquiry on Annamite customs by a Committee on , | Jurisprudence. When the results were published in 1930, I

had the idea of comparing my personal impressions with the , , results of the inquiry. I wished to know under what conditions | the Annamite woman may come to inherit the property set

aside for family worship, designated in Annam by the , , expression Huong-hoa, or Incense and Lighting.

When I returned to France with the information thus , | gathered, I endeavored to utilize, in studying the question, | | _ [8] the resources offered by the University of Paris. This seemed to me the most scientific method, and besides, comparisons were indispensable with what we now know of It then became apparent that my study should be limited to | |

Chinese civilization. |

, two more precise points: on the one hand the worship | property, huong-hoa, and on the other, woman considered

strictly in accordance with her varying status in the family. | My research thus took this general direction. It led me to results which are for the most part critical. Perhaps these

61; Lusteguy--4 G-4 | (1925-1932) 1935 _ Vietnamese | 121 results, when examined with good will, may suggest new a investigations useful for a knowledge of Annamite mores. [9] 122, Iam unable adequately to express my gratitude.to Mr. Ed.

Mestre, Chief Lecturer [Maitre de Conferences] for Religions |

_ of Indochina at the Ecole des Hautes Etudes, for having so

| kindly guided me in the accomplishment of my work, andto | Mr. Marcel Granet, Administrator of the Institut des Hautes Etudes Chinoises, who encouraged and facilitated my _

disposal. | , a ,

research by putting the library of the Institute at my | Professor Fauconnet has kindly consented to preside at.

the. defense of this thesis. :

I beg him to receive here my most sincere thanks, as well -

as Mr. Jean Przyluski, Professor at the Collége de France, ,

- who has graciously acted as reporter, and Mr. Henri , 7 : -Maspero, Professor at the Collége de France, who has 3 consented to being a member of the jury. oo .

. My thanks.to Mr. Nguyén-van-To, Assistant at the Ecole | ,

francaise d'Extréme-Orient at Hanoi, for having so | | a

obligingly given me precious information;.to Mr. P. Mus, |

Member of the Ecole frangaise d'Extréme-Orient, for having _ , given me useful bibliographical information; and to the heads | of the Agence économique de 1"Indochine at Paris, where I | | oe ~ consulted books in their library. [10-- Blank page] [11] |

: , , INT RODUCTION , | OO

, oe I ,

123, Survey of Annamite Family Organization | | 671 The Inquiry of the Committee on Jurisprudence , _ on Annamite Customs in Tonkin

_. It was not an easy matter for Frenchmen living in ,

‘Indochina to get to know the Annamite customs which are so ,

different from occidental mores. BO The reality of the facts is sometimes so difficult to grasp

that a foreign observer, even when living among the ©

. .Annamites and speaking their language, may be led into

error. () One example among others may be cited; a , ,

1. "The European investigator can only ee7 observe from the outside. And, even if : : he knows the language, as he always —> | |

61; Lustéeguy--5 G-4 (1925-1932) 1935 Vietnamese

123 should, often he cannot penetrate inside"'. , |

671 R. Maunier, Preface to Dang-trinh-Ky, | L'Engagement des Personnes en Droit

annamite, pix, |

widowed wife possesses an incontestable authority in the

Annamite family which leads her to be given the title of ee chung-phu (2) -- the wife who commands. Now, it frequently | --2.. Since for technical reasons we cannot

indicate the intonation accents of Annamite ,

a words, will the corresponding Chinese term be given at least once in the text. / happens that this latter lets the eldest son appear to be the | head of the family, while in reality she remains absolute ,

mistress of the home. , , If an investigator may be led into error in this fashion, a ,

person wishing to become acquainted with Annamite mores by |

. characters. ee consulting literary sources (3) is perhaps no more fortunate. © ,

| 3. There is in Annam a literature in Chinese —

He has at his disposal, outside of a few scattered edicts, _ only two Codes, that of the dynasty of the Lé and the Code of oo Gia-Long. These texts, in Annam.as in China, aim at the | , reform of morality, and it is the Chinese classics which

constitute [12] the Code of civilized mores. Thus a monarch |

_ of the dynasty of the Lé, in the fifteenth century, introduced _

into his kingdom an adaptation of the Chinese Codes of the -

T'ang and of the Song, which is known under the name of Oo

Code des Lé. (4) |

671 4. Code des Le. -- It was under the reign of

175 Lé-thai-To (1428-1433), of the dynasty of the

Later L€ (Hau-Lé), that there was established os

| _ legislation on property and succession which | was completed in 1449 by the addition of fourteen | articles and still later by complementary ~ decrees published in 1461, 1511, and 1517. This legislation was grouped into a collection of a

hundred books in the fourteenth year Hong-duc |

| (1483) at the order of Lé-thanh-Ton (1460-1497). | - The last part of the work, relative to the ,

Oo 61: Lusteguy--6 G-4 (1925-1932) 1935. _ Vietnamese 671 administration and legislation of the Lé, was

«175 called Hong-duc hinh luaét or Code de Hong-duc, known today under the title of Code des Lé. -The manuscript of a copy of the Code made by Phan -huy-Chu (1780-1840) was rediscovered at Hué by Cl. Maitre. --This Code was translated

into French by R. Deloustal (B.e.f.e.0. 1908, 7

Vol. VIII, pp. 1. ff.;1910, pp. 500-505; 1911, pp. 302 ff.) —

The Code des L@, penetrated with Chinese ideas, 7

writes Cl. Maitre, reproduced "faithfully the — divisions of the Code of the T'ang, a prototype |

of all previous collections, and had retained more than one article. But it was the Chinese Code modified by centuries of history and by an

uninterrupted series of partial innovations. -- |

' When the emperor Lé-thanh-Ton in 1483

ordered the compilation of the great lost __ ,

juridical collection Code of Hong-duc, he did 7 , not servilely copy the Chinese legislation of | OO the period, but on the contrary classified and SO | disposed, in the traditional categories, all , laws and ordinances promulgated at various Oo Oo dates by his predecessors. It would seem | - that Annam thus freed itself little by little , a

421 . | ,

from the Empire of the North". (Cl. Maitre, | a Preface to La Justice dans l'Ancien Annam, | re

/ by R. Deloustal; B.e.f.e.0., 1908, p.177.) a =

7 175. In 1812, Gia-Long, the founder of anew dynasty, _- a

| 671 established a new Code (5) almost exactly reproducing that OS

, 5. Code de Gia-Long. --This Code, entitled - oo

Oe Hoang-Viét luat-lé, was prepared in18l2 at | , | | | the order of the emperor Gia-Long, who put © Se it into application in 1815. It was completed , So by later decrees and rejuvenated in 1923, | . during the reign of Khai-Dinh, with the title | of Recueil des Décrets et Réglements ~ | - Complementaires. --Drawn up in the form of. | , a penal codification, the work of Gia-Long is | _ a Chinese code "for having reproduced. almost BF textually the laws of the Manchu dynasty of the |

Thanh". (Cl. Maftre, in.B.e.f.e.0. 1908; oe

- .- ps 180). --It comprises principally 398 articles oe distriputed in 22 books, to which a great many a

commentaries have succeeded. Translated first

61: Lustéguy--7 G-4 (1925-1932) 1935 . Vietnamese

175 into English by Sir G. Staunton, then into ,

671 _ French by G. Aubaret (Code Annamite, Lois ,

421 et Réglements du Royaume d'Annam, Imp. |

- -Impé€riale, 2 vols., 1865), and by F. Philastre (Code Annamite, E. Leroux, 2 vols., 1876-1909).

; The Code Gia-Long was, at the moment of the arrival of the French in Indochina, the official

. Annamite Code. |

of the last imperial dynasty of China (Thanh dynasty).

Furthermore, these Codes are generally discreet as concerns relations between members of the family. (6) For 6. Cf. Luro, Le Pays d'Annam; "The public Powers respected the independence of families". ,

example, as far as the worship property tu-san (sseu-tch'an) | goes, this property is the object, in [13] the whole of the |

legislation of Gia-Long, of only one article. (7) As for the |

7. G.G. D.I., Art.87. | Oo

term huong~hoa (hiang-houg) designating the best-known _ 7 ,

family worship property, it is cited only once in the same legislation. (8) This huong-hoa property is dealt with more

«B.C. G. 67D. of Thi€u-tri, Art. 83. extensively (9) in the Code of the Lé, doubtless for the

Fe Complementary Decrees, Art. 387 to 399. | | |

| Trans. Deloustal, La Justice dans l'ancien | Annam (B.e.f.e.o. 1910, pp. 500-505). — Edicts: of the 2nd year Hong-Duc (1471), Art. 3 and 89 (B.e.f.e.o. 1911, pp. 48 and 53); of the 25th year H.D. (1494), Art. 2l and 22

cit. » Pp. 51). | .

(loc. cit., p.51); of the 28th year H.D. (loc.

i reason that it takes the Annamite customs of Tonkin more into account than does the Code Gia-Long, but these :

documents are generally lacking in clarity. a

121 The difficulty of direct observation and the partial | 114 bankruptcy of texts are not alone responsible for the 769 ignorance felt by Occidentals of the Annamite mores. The 593 preconceived notions of the investigators must also be

| , 61; Lustéguy--8 G-4 (1925-1932) 1935 Vietnamese ee

_114121 taken into account. 7 _ Europeans examine the native customs with their _— , ,

769 occidental mentality which is so different from that of the | oS 593 Orientals. Some of them have been led to make inexact | :

deductions by trusting to mere appearances which they ©

- _occidental culture. 7 | 7 oo Few European investigators have escaped this danger. J.G. _ , unconsciously exploit through a taste for parallelism and BS

Luro, one of the first in date (10) and most clairvoyant of the _ SO

a 10.. The investigation of J.B. Luro, naval re

, Be officer and administrator who arrived in 7 re

Cochinchina in 1864, dealt with the mores a SO

of Annamites of Cochinchina. The results = = |. | | .. of his research were made public in his» a , Cours d'administration given at Saigon in a ce a 1875 and in his work Le Pays d'Annam re (Paris, Leroux, 1897, 2nd ed. ). : Be For an evaluation of Luro's work, see ae oe a

| esp. the opinion sanctioned by Cl. E. —— 7 | ——- _ Maitre, in Compte Rendu de Briffayt,. | ee

a 1908, p. 22. | | a

I Etude sur les Biens cultuels, B.e.f.e.0. 7 oe

ss ss imvestigators, was partly able to avoid this defect, thanks to oe a constant seeking after objectivity and a reasoned method of oo

oe sociological investigation. This observer of the first hour | , oe

Annam such as it was at the time of his stay in a ,a sawCochinchina. | : OO os BS 593 The same may not be said, however, for all investigators. 7 114 Some of them have thought to see in the Annamite family the |

769 entire organization of the ancient gens. [14] Thus J. _ Oe

; Silvestre (11) thought he had rediscovered, "hidden under | ll. The long and highly serious inquiry on | Oo .. Annamite customs published by J. Silvestre , Oo | furnished the matter for two essential works; Oo |

| | L'Empire d'Annam et le Peuple Annamite a | | “. (Paris, Alcan, 1889); Considérations sur l'Etude du Droit Annamite (2 vols., Portail, |

Saigon, 2nd ed.,1923). _ Be

. | superstitions and errors, the exact.beliefs of our Aryan , ancestors concerning the soul and death, domestic religion,

, the cult of the dead and event, the sacred fire today reduced ©

114 | 7 vo _ Oo | p. 154. | | : 61; Lustéguy--9 G-4 (1925-1932) 1935 Vietnamese

, 593 to the fireplace, symbol of the family". (12) a

769 12. J. Silvestre, Considérations sur l'Etude = = © | du Droit annamite, 2nd ed.,p.41; same work, _- | _

Bn There is doubtless some resemblance between ancestor 7 Se - worship in Annam. and the cult of the dead in ancient Rome. ee ---- The deceased is the object of the same veneration, and So sss yemains invisible in the midst of his own people in Annam 7 as in the Ancient City. (13) The Annamite family also has oo

| 13, Fustel de Coulanges, La Cité antique, p. 35. a | its domestic altar. It makes offerings of food as the Romans = = used to offer food to their dead. 'The Annamite ancestral 7 , tablets evoke the images of the Lares and Penates, justas = the sticks of incense recall to mind the sacred fire of the i

Romans". (14) , , |

14. M. Ner, Centenaire de Fustel de Coulanges; a |

| La Cite Antique et 1'‘Annam d'Autrefois, p. 17. Be . Furthermore, the structure of the Annamite family is not. ; , absolutely without relationship with the morphology of the | , , . Roman family. Paternal authority, hierarchy and extended _ , , form of the family grouping placed before the eyes of tie | , | | Occidentals the organization of the ancient gens, especially an _ at-a time when the influence of Fustel de Coulanges was ee 769 Silvestre wrote: 'Annamite legislation--as well as their So 114. customs--follow from the patriarchal régime, which was ee 593 the constitutive régime of the ancient family, which was and ae still has remained, in these cividizations stationary forso | |

being felt. _ Se

| many centuries, the only, the true religion.. .4(15)"[15] So

15. "It is on this religious basis that the oe a 7 constitution of the government also rests, Oo So

for the domestic rules have invaded the , State which is considered to be only a great family of which the Sovereign is | the father and mother. The Sovéreign , and the mandarins in fact bear the title — : of father and mother of the people. Aa , |

, : J. Silvestre, op. cit.,p.3. |

114 ot |

61; Lustaguy--10 G-4 (1925-1932) 1935 Vietnamese: | 7 769 Pushing the comparison still.further, it was admitted (16) | |

593 16. 'The basis", says R. Crayssac, "of the a | _ . entire Sino-Annamite organization is the patriarchal state. In China and in Annam, as in old Rome, masterfully described by Fustel, |

~ + the outstanding characteristic of this system _. @ldest male member over all the other § | ,

~* 1s the authority accorded exclusively to the.

: _-. members of the family." (Kim-van-Kieou,. | a . Preface, p.8.) © : . wou EE, , Colonel Diguet writes: "In reading La Cite | , | . Antique, one would think one were really a glancing through a Code of Chinese and } pot, * Annamite institutions, as far as domestic _-

- . vi. ©: religion of the ancestors and the home, — ,

-. . + Kinship and rights of inheritance go." (Les. -_ | oe

- :P.Annamites, p.265) . | : oe BS | - And Pasquier: 'The first chapters of , La Cite Antique apply to the Annamite _ , , ' , _. people". (L'Annam d'Autrefois, p. Droit 21) , oe Similarly, Miraben (Précis .de :a

| |annamite, p.29) wrote that a father (or | a - mother) who punishes (by. virtue of Art. 288. | a

ay _ G..G.) children who have disobeyed him is | | an | “7°. Neapable of being pardoned for the death of a

, '. his son" whom he:may have struck inan -

: unreasonable fashion. © poe a Oo , ts, Cf. also A. Schreiner, Institutions OO , annamites (II, p.157). | CF

that the Annamite father was alone sui juris (17),.like the —

: 17; Although we may admit that the first ©~

' ° European observers may easily have been |

led into error with reference to Annamite , oo , | customs, we find it difficult to conceive , that specialists of colonial legislation: should still affirm today, like H. Solus: "The .

Annamite woman is incapable, and she may | not possess property of her own, all goods — ' }

being the property of the husband... present-_ day jurisprudence of the tribunals, reviving the ancient customs of the Lé, has decided

that a wife may possess property of her on

61; Lusteguy--ll G-4 (1925-1932) 1935 Vietnamese , 769 own...''; or again: ''Repudiation of a wife is no oo

114 longer allowed..." (Alloc. aux éléves de 1'Ecole |

593 -Coloniale de Paris, 1934.) | paterfamilias, and unchallenged master of the relatives, : capable of disposing in the most absolute manner of persons of both sexes (18) and of the property of the family clan. -

, 18. In this comparison with the ancient family, oo

the women of the Annamite gens necessarily ; . this fact (See below, p.24). They were moreover became incapable. Jurisprudence has evidenced . ;

regarded as incapable of "uniting the two an branches of each family, that of the past and that of the present, the dead and the living" (P. Giran, Magie et religions annamites, p. 449).

- Cf. cont. L:, Cadiére, in La Famille et la | - Religion en pays d'Annam (Bull. A.V. Hue, p. 396). |

, Finally, the appeared religious inaptitude of women , , to go without saying. Perhaps, people | | thought, like in Brahmanism ''for them [the Z women] there are no religious ceremonies accompanied by prayers. Such is the law; women, incompetent beings, are prevarication

| | itself''--and in any case a girl could never fill

, the need of a son, for only by a male descendant

: does man immortality. pay his (Law debt to the shades and obtain , of Manou, XVIII, pp. 259 ff. )-We shall see below that, if the complete capacity of

— Annamite women in matters pertaining to the | | cult is not absolutely proven, their religious

| aptitude is nowadays admitted (D-t-Tai, op. cit., pp. 32-33). .

(However, this comparison of Annam with the Ancient City , provoked a current of reaction by its very exaggeration. Thus _ |

| _ certain authors, like Cl. [16] Mattre (19), Deloustal (20) and |

_ 19. C.R. de Briffaut, Etude sur les Biens

cultuels. B.e.f.e.0. 1908, p. 14. ,

, 20. La Justice dans l'Ancien Annam (B.e.f.e.0., pp. 349 ff. ). Deloustal, who translated the

legislation of the Lé, has not limited himself ,

, | to the work of a translator. The appendices

and commentaries which accompany the text

| 61: Lustéguy--12 G-4 (1925-1932) 1935 — - Vietnamese 769 are the result of information obtained by Oy

(114 investigations made in Tonkin by the a

593 commentator himself. |

| recently Messrs. Tavernier (21). Ner (22) and Duong-tan-

21, A magistrate in Indochina, E. Tavernier has not stopped, in order to mete out justice _

, to the natives, with learning their Code. He : has further devoted himself, in Annamite ,

| territories, to sociological investigations | | , which have furnished material for lectures , , which he has delivered at Saigon, particularly |

Oo in 1926-1927. Cf. his works, Le Culte des oo , , Ancétres (in Bull. Et. Indoch. N.S. 1926, | | oo Vol. I, No. 2); La Famille Annamite, Saigon, 1927.

2, Op. cite, pe 22. oe |

/ - oo Tai (23) have taken pains to prove that there were only , ee (23. Duong-t4n-Tai, an Annamite official of

a Cochinchina with the detailed grade ofstudy phu, has a , devoted himself to a very of Oe

Annamite worship property and especially ne _ on

the Huong-hoa, or Incense and Fire. His Oo a research was the object of a series of ee Oe

7 lecturesat given by the investigator himself es Saigon in 1927. His work, La Part de © Oo a _ l'Encens et du Feu (Saigon, 1932), to which ee , . reference will frequently be made in the ae oe course of this study, is a veritable. treatise | :

on worship property. ,

_ Ancient City. ; , ee

‘apparent likenesses" between the Annamite City and the ;

- 593 - There is indeed a domestic cult in Annam as at Rome, but oo - ,

1l4 . among the Annamites it does not offer ''that beautiful re 769 organization attributed by Fustel to ancient religions". (24) oo

24. M. Ner, op. cit., p.23. , a

- While the latter seem to be perfectly organized and ee

61; Lusteguy--13 G-4 (1925-1932) 1935 Vietnamese | , | 593 homogeneous, the Annamite religion, writes Father | : 114 Cadiére(25) is ''formed of successive layers, of alluvial |

| ,769 | 25. The extensive work of Father L. Cadiére oe

is based, for its studies relative to the 7

Annamites, on numerous investigations -- a one might say a permanent investigation-- , 7 in the land of Annam. As regards family | an organization, see esp. his study La Famille | .

| Hue, 1930. oe a

et la Religion en pays d'Annam, Bull. A.V. - Se

deposits of all kinds laid down throughout the ages and as ne chance decreed the race's habitat, of ill-assimilated © oe

borrowings, memories of dominations undergone or oe imposed, of resurgences and survivals". (26)

, | annamites, pp- 275 ff. , : 26. L. Cadiére, Religions annamite et non |

769 There is indeed in Annam a family with an extensive form 114 which reminds one of the gens, but ta the degree that it OS 593 exists, its civil repercussions are very limited. Cl. Mattre an has noted that "it is by analogy with the Antique City and on | _ the model of [17] the latter that a legal existence has been oo

conferred on the Annamite gens...'! (27) te | 27. The author adds: ''...and created almost entire , : a family assemblage to which the Code of the Oo

Lé nowhere alludes and which Luro does not : | ' would have had to be founded after his course". :

. mention since, at least in Cochinchina, it , Cl. Maftre, C.R. de Briffaut, op. cit., p. 242.

| The Annamite father of the family is far from possessing | the importance of the paterfamilias and the absolute Oo authority of the latter over the goods and members of the | , , family grouping. Similarly, the legal and actual status of | woman cannot be compared to the status of the woman | :

, -alieni juris of ancient Rome. In fact, according to the | opinion of Cl. E. Maftre, ''the only point in which the

Annamites have shown an incontestable superiority over , a the other peoples of the Far East is the rank which they

have conferred on woman, a rank which makes of her almost a |

114 -

61: Lusteguy--14 G-4 (1925-1932) 1935 Vietnamese

, 769 the equal of the man". (28) a - ae |

| 593 28. Op. cit., p. 249. : | oe a Ner, who quotes this passage, then adds; "A strict } oe patriarchal organization, such as Fustel describes (29),

| 29. Fustel de Coulanges, La Cite antique, | a

pp. l2 ff.,35 ff., etc... , , a

would in Annam be a foreign importation which would never a

| have entirely blotted out more ancient traditions". (30) [for on

30. Op. cit., p. 23. | oe

author's refutation and his discussion of the Annamite | - a family, see following paragraphs pages 17-19, Category 116. Be

, ----Analyst] , | , a Oo

769 In reality, the Annamite family grouping suchas it appears = | 594 today may be schematized in the following fashion. The On 613 familial and ritual worship privilege, exercised particularly-- |

at least theoretically--by men, is transmitted through the - | is dictated by the status occupied by the mother in the | , family. The heir to the worship privilege is the principal 7 son, dich-tu (ti-tseu), that is to say the eldest son of the ,

- males. But the choice of the heir to the worship privilege — se

principal wife, dich-mau (tismou). (31) | a , 31. See below, pp. 46 ff. for further details |

on the order in which sons become eligible. | a 884 The principal wife possesses with respect to children and 595 property a power nearly equal to that of the husband. When Oo

589 widowed, her own authority is increased by the authority : 7 which the deceased personally exercised. The necessity of

perpetuating the family and insuring worship of the , ancestors seems to the Annamites [18] the reason for adding to the principal wife wives of second degree, situated, in the , family hierarchy, on the same level as the children. The , latter are dependent on their parents during their minority, : |

_ and acquire legal capacity only when they attain their , | majority (32) or when they marry, and only if they | , | 32. Even then they have a title only to

| property which their parents authorize

595 428 - -

61: Lustéguy--15 G-4 (1925-1932) 1935 Vietnamese |

884 them to possess. Cf. A. 74. :

589 maintain a separate establishment from the paternal home. :

. Family property belongs indivisibly to the father and oo , 613 mother. Whatever its origin, they are not in the habit of oo 594 disposing of it without one another's consent. (33) The _

769 . (33. Parents moreover feel that their property a is for their descendants, in virtue of the , o adage, ''We work for our children". A. 3l. a a _ patrimony may be divided among the children according to _ _

the parents' wishes. Part of the property is set aside asa a source of revenue dedicated to the maintenance of the oe family worship. This part, which remains indivisible among _ the interested relatives, is entrusted for safekeeping and CS | , administration to the heir of the worship privilege. The latter, in effect, also takes charge of the family cult. He - celebrates its rites before the altar of the ancestors, - 7 } generally installed at the center of the family home which - :

, is inhabited by the head of the cult. Posthumous honors are

, tendered by means of offerings of food, light and incense. a : _

, The exercise of the cult occasions family gatherings and a ceremonies, chiefly on the anniversaries of the deceased. (34) ©

34. For details on the worship ceremonies, |

cf. Dumoutier, Le Ritual Funéraire des _

Annamites; E. Souvignet, Varieétés tonkinoises, | pp. 398 ff.; E. Tavernier, Le Culte des Ancé@tres.

. The head of the cult then invites all the ancestors, by a ritual invocation (35), to come and take part in the |

35. Cf. Mme. G. Vassal, Mes trois ans , : d'Annam, p. 147.

celebration given in their honor. ! 428 The family worship is the symbolic manifestation of 769 family solidarity among the group of individuals bearing the

ae same family name, the same ho (36), and descended[19] from , 36. Ho signifies in Annamite: gathering of men, kinship, family clan, and, by extension, clan

, name. } According to the authors, the number of ,

61: Lustéguy--16 G-4 (1925-1932) 1935 . Vietnamese co

428 Annamite ho is very limited. E. Tavernier re

769 thinks that there are forty or so (La Famille oe Oo 613 (La Famille et la Religion, Bull. A.V. Hue, _ ns , | p. 355). But these are necessarily vague evaluations, since they are not based on | | , a 596. annamite), and Father Cadiére around thirty

_ statistics. | | Oo a

_ An investigation recently made by P: Gourou | ee

, in one of the most highly populated and , | important provinces of the Tonkinese Delta, the , ne | province of Bac-Ninh, would indicate that there | , | are in Tonkin about two hundred family names, 7 - are rare. Only a dozen of them are borne, in - oo the province of Bac-~Ninh, by 85 percent of the . ae

or Annamite ho. A large number of these ho ,

, families. These names are: Nguyén, Tran, Lé, BS

| _ Phan, Vu, Ngo, Do, Hoang, Dao, Dang, Duong, _ So | Dinh. The ho Nguyén is by far the most frequent — 7 (54 percent). That of Bui, which does not appear , a

: in this list, is said to be rather frequent in ee

7 - Tonkin. (Le Nom de Famille ou Ho chez les ae

1932, pp.481 ff.) | , - , |

Do Annamites du, Delta Tonkinois, B.e.f.e.o. ,

common ancestors. This extended form of family | _ yrelationship and the obligation incumbent upon Annamites a to perpetuate the ho at the same time as the ancestor |

worship has been the chief basis for the assimilation of :

_ the Annamite family to the ancient gens. , , - While some authors have justifiably raised their voice - oo | in protest against this confusion, others who have also been a

_able to avoid the influence of the Ancient City have © a

nevertheless committed the error of assimilating Annamite customs to certain other occidental institutions. Thus, in oe ae , _ relation to the property entrusted to the heir of the worship oe

| privilege for the maintenance of the domestic cult, Ch. Sn - Gosselin (37) and C. Briffaut (38) have tried to see in this -

37. L'Empire d'Annam, p. 5l. ee a 38. Etude sur les Biens cultuels familiaux, 1907. , - A magistrate in Indochina, C. Briffaut has | | _.. studied at first hand the organization of the Annamite City. His work is extensive. Although |

, one may justifiably reproach him with having. |

61; Lustéguy--17 G-4 (1925-1932) 1935 - Vietnamese a

oO 428 drawn questionable deductions from his 769 investigation, it is nonetheless true that 596 in dealing with property set aside for 7 613 family worship in the land of Annam he has reacted against the received opinions.

In seeking particularly to demonstrate the

originality of the Annamite custom and the . communistic character of native peoperty, -

, he has provoked a series of criticisms | ee

Annamite society. ,

and.studies profitable to a knowledge of '

institution a veritable primogeniture such as is found in . , British law or ancient French legislation. The reader will better understand from what follows, as we study the devolution of the huong-hoa [family worship property----

Analyst], that the European primogeniture--uniquely , favoring a deep-rooted aristocracy through the exclusive | |

privilege of the right of the eldest--has only a distant

_ relationship with the Annamite institution whose aim is to

577 | , perpetuate the memory of dead relatives and which is | .

particularly based on the sentiment of filial piety. (39) [for __ |

39. Cf. Duong-tan-Tai, op. cit., pp.195 ff. a

, - author's discussion of filial piety, see following Oo |

| paragraphs, page 20, category 116----Analyst] 593 Filial piety (40) has its moral basis in the idea [20] that

765 40. It will not be without interest to note ! that filial piety has also always been the moral basis of Chinese society. Le Ky

(Li-Ki), Ch. XXXIV, Sect.1l. Cf. also E. | | | Chavannes (Confucius, in Revue de Paris, , |

, 1903, pp. 827 ff.); F. Couvreur (Les

Quatre Livres); H. Doreé (Varietés sinologiques, Nos. 49 and 51); M. Granet

(La Religion des Chinois, p.89, and La

Civilisation chinoise, pp. 366 ff.); H. :

Maspero (La Chine antique, pp. 454 ff. ); a R. Grousset (Le Reveil de l'Asie, p. 230); | H. Cordier (La Piété filiale et le Culte |

- des Anc@tres en Chine), etc.

a child is obligated for many favors to his father and

| 577 | a - | 61: Lustéguy--18 G-4 (1925-1932) 1935 Vietnamese

_ 593 mother (41), who devote and sacrifice themselves in order a

765 41. Cf. Tran-van-Lieu, La Piete filiale; Sn _ Pandolfi, L'Enseignement de la Morale, : So

pp. 141 ff. Lo i a BS

| to raise him. (42) The result is a certain number of duties - -

: 42. Ng. Trai, Gia huan ca, p.28, Sect. 1, | i

Hanoi 1894. Ec.. L..Or. | a

for children to observe toward their parents, either while _ ; OS

_ the latter are still alive (43), such as submission and | a

43. Cf. Legislation of the Lé. Edicts: 2nd year , | a _Hong-duc (1471); ist year Canh-tri (1662). (B.e. 7 a | f.e.o0. 1910, p.24). C.G., Art. 285 ff. Tran- CS | / +quan-Van, Tién-hoc tan-bién, p.7. P. Babé, ~ oo , Bull. Et. Ind. 1912, No.62, p.39. Tran-trong-

_ kim, La Doctrine des Nho, pp. 60 ff., etc. Oo _ constant help, or after the parents' death (44), like OF 44, The advice of Confucius is always quoted 7 in this connection: "One must serve the dead , re (parents) as one-serves the living". (Lé-ky, | ae

Ch. XXVIII; Sect. 58) | ge

a Cf. C.L@, Art. 130,377, 379, etc.; C.G., | |

Art. 160 ff.; G. Dumoutier, op. cit.; L. -Gultru, Histoire de la Cochinchine, p. 127; : G. Durrwell, La Famille annamite et Le | Culte des Ancétres (Bull. Et. Ind., p. 908, ,

| No.posthumous 55, pp. 1 ff. ). , a | | worship and the duty of mourning. , -

Mourning, the principal manifestation (45) of filial piety, -

, point of view. | OS | a 45. As much fromthe legal as the moral ,

is evidenced by external marks of affliction. (46) Mourning |

46. Mourning is manifested by one's conduct, | by voluntary abstention from celebrations, by | | ] continence, by the adjournment of certain civil , :

61; Lustéeguy-~-19 G-4 . (1925-1932) 1935 - Vietnamese |

~ 593 actions (division of property, marriages, etc. ) ,

577 and also by the wearing of special garments a 7 765 (with symbolic pieces of cloth on the back and a chest), and by the carrying of the staff of tears |

(C.G. Trans. Philastre, Vol.I, p. 72). , ae

ss Cf. Diirrwell, op. cit., pp.16 ff.; Tran-van- | ,

Lieu, op. cit., pp. 51-56. Oo |

obligations extend to the other members of the family as OS well, but decrease with the distance of the relationship. The : ,

Annamite codes (47) have set up minute regulations a

: oe 47. Law 2nd year Hong-duc (1471), Art. 3. OO — . . Deloustal, Vol.I, p.163. Law 25th year eo . .. Hong-duc, Art.60; B.e.f.e.0.1910, p. 478. - |

: .. .-Edict L€ Huyén-Ton (1662-1671). Deloustal, OS ;

cit., p.152. €.G. Trans. Philastre, a —op.Vol. I, pp. 71-91. , an oo

governing mourning (48), the duration of which, for ; - 7

| 8. In China there are also minute regulations a ; a : | governing mourning. L@-Ky, Ch. V, XVIII and ' | , : XXXIV. Cf. M. Granet, La Civilisation 7 eg

chinoise, pp. 390 ff. a ,

| children who have lost their parents, is three years. (49) ae oe

oo: 49. Three years because it took the parents

_ three years to nurse the child and administer , — seven lunar months in reality. When it "lasts , — . -- twice until the anniversary of the event,. it is oo _ said to be of three years". (C.G., Vol.I, p. 72) ‘the first cares to him. Mourning lasts twenty-

769 The institution of worship property did not only suggest a 7 114 to [21] Briffaut a comparison with primogeniture.. The same — a

_428-author believed he saw in the huong-hoa [family worship | property----Analyst| a case of fideicommissary substitution (50); a kind of bequest which the beneficiary retains during

| a 50. C. Briffaut, Etude sur les biens cultuels. a ~ . - familiaux. Un_cas de substitution protei_ Commmiissaire en droit sino-annamite, | |

RB rn

ss ly Lustéguy--20 G-4 (1925-1932) 1935 Vietnamese = ne 769 his lifetime in order to transmit it, at his death, to another = —

«14. beneficiary designated by the first testator.(51) The opinion =...

oe _ --, BL. French Civil Code, Art.896. era

of Briffaut, which has been followed by an Annamite author, | oe en / Tran-van-Liéu (52), must be discarded. In fact, the re

oo , 52. ,Les fideicommissaires ensubstitutions droit annamite. , SO—’eea Annamite institution aims at providing for the needs of the = 3 | family worship cult, and the devolution of the huong-hoa oo ce _ operates not according to the fancy of the testator, as is 7 - / a

, the case in fideicommission, but according toan order: = = | 7 established by "natural law". (53) It is in effect the heirto = |

53. Annamites are in the habit of invoking | a "natural law''. It would seem more exact BS

to say moral law. - , , Oo ' te

the worship privilege who obligatorily receives the safe- = = keeping and administration of the huong-hoa, and we have -—™S

seen (54) that designation of this heir is nota matter of ; 54. See above, p.17; below, pp. 46 ff. cra

_ free choice. : an a oe a pe 602 In sum, the work of Briffaut seems to have been inspired a oe 7 , 613 by a desire to react against the practice entrenched in er

177, Annam, it would appear, ever since the promulgation of ==

- 428 the "'Chinese'' Code of Gia-Long. Reacting against the = 8 «© © | 769 Chinese law, Briffaut was thus led to seek the Annamite = 3

a 114 custom's own originality. This is a touchy business, = 3 oo

. | _°- precisely because of the many traces of Chinese influence, = =~ | -a consequence of a long Chinese domination. Certain = = © = -- practices may in fact be observed in Annamite society OS which it is difficult not to connect with Chinese institutions. _ on From what we have seen above, it results that the | OB } | Annamite City appears to be based on the following great | ; principles: the necessity of perpetuating the family line and Oo

, name, as well as the ancestor worship, partly founded on _ - , the sentiment of filial piety expressed in mourning. Now, all this is also to be found in China--common name (t'ong | sing), and common worship (t'ong tsong). The same mode eo

6; Lustéguy--21 G-4 — (1925-1932) 1935 “Vietnamese : +602 of designation of the chief kinsman (ta-tsong ) may also be

613. found there. (55) [22] ene

69 oppe 72 ff

| 428 =«=——ité«*US SG. ML. Grae, La Givilisation chinoise,

| -. , In Tonkin this person, heir to the worship privilege or

. dich-tu, is ‘called truong-t6c (tchang-tsou). (56) Age has no

| OS - 56. ‘Word for word, chief of téc, of kinship. - a _ . importance in his designation. A truong-téc may be a young.

| -man, even a child. (57) He presides atthe worship ne 7 | 57. In this cas e, he is assisted by a paternal uncle. | ceremonies (58) ; but he may address his ‘offerings only to oo

‘58, He it is who "receives the ancestors" on Oo _ anniversaries, addresses the ritual invocation

| ., to them, prostrates himself.and. offersup =

, — . incense, wine, food and votive papers to the — |

oo oe - ancestors, ~ ee SO

| a deceased parties who are older than himself. (59)He

| 59. For dead persons situated beneath him by -

_ the law of age, another member of the family

| performs the worship rites.(A. Schreiner, =

| oo Les Institutions annamites.) 9 , | - inhabits the family home containing the ancestors! altar. He has particular charge over maintenance of the tombs. | Finally, he is responsible for safekeeping and administra- _ tion of the huong-hoa [family worship property----Analyst] -- property. But he also has functions of atemporal order. | _ He participates (60) in contracts involving the family, whom

os 60. When he attains a majority, to be sure. OS _ he helps with his counsel in important affairs. His materia®

status, generally ameliorated by the fruits of the huong-hoa, >

— ofhis kinfolk. (6000

_ adds to his moral status which places him in the first rank =

| _ - 61. Beneficiary of the huong-hoa, a source of - | , : - |

- 61: Lustéguy--22 G-4 (1925-1932) 1935 Vietnamese : 602 considerable revenue, he isin principle 613 the wealthiest of the relatives, This 7 177 -- superiority implies duties toward the | a 428 , family. He is morally bound to assist, 769 within the limits of his resources, . 1 14 | poverty-striken relatives, and sometimes oe even to help needy relatives raise and educate their children. If he performs his duties |

_ honorably and truly applies the rule of family solidarity, the truong-tdc acquires

in return an indisputable influence over ,

, his relatives which is added to his

authority as chief of the cult, guardian of the altar where tablets embody the souls

| of the ancestors, and trustee of the ancestral

field where the ancestors' tombs are | }

generally situated, | - ,

602 The truong-téc, chief of the Tonkinese family in matters

595 pertaining to worship, may be compared with the t6n613 truong (tsong-tchang), who is the secular head of kinship in Tonkin. (62) The t6n-truong is the eldest, the most

62, As concerns Cochinchina, the expression

, t6n-truong designates simply a relative

preeminent in age. The expression truong-toc is understood to refer to the chief kinsman in

, both senses--civil and religious--at once. , This person, according to the Cochinchinese

a p. 264). author Duong-tan-Tai, has now lost much of his former importance (La Part de l'Encens,

respectable, the most influential and the most experienced

a of the relatives. He presides over secular gatherings of , the family, and gives advice to all the relatives. (63) He

, 63, Important acts of administration and : contracts of transfer of property are

, A.2, al.4, | OO , | estahlished with his effective cooperation.

moreover keeps watch over the [23] minor orphans (64)

64. He represents them before justice and even brings suits against relatives which

595 , | : a

61; Lustéeguy--23 G-4 (1925-1932) 1935 Vietnamese : |

602 children may not initiate. | |

613 and helps widowed wives. As in China, the principal wife |

chinh-that (cheng-che) is the wife in the strict sense. She 7 is the true mother, dich-mau, for all the children--her own a

as well as those of the wives of second degree. If the dich-

mau dies before her husband, she may have a replacement | (continuer), the ké-that (ki-che). , | (114 In their reaction against the assimilation of the Annamite a

769 City to the Chinese City, the authors--chiefly Annamite--

594 have emphasized the fact that a daughter may become the —~T 613 worship heir. We shall see that these cases of succession are limited to the family in the strict sense, or gia (kia).

The group of relatives gia-tdc (kia-tsou) (65) in effect oo

65. According to the Committee on a

Jurisprudence (Rec. A.,I), custom in Tonkin _ | distinguishes four kinds of relationships: | , l. gia-tdc, based on the closest blood ties, | ,

- comprising father, mother and children _ a living under the same roof; | | , Sn 2. cuu-t6c, composed of all the relatives | a in a common line of descent, from oneself ne back to one's great-great-grandfather and a

, down to one's great-great-grandson; , OC 3. tOng-t6c, composed of all the | a descendants of a common ancestor who bear ~ | , |

the same family name and have the same _ , |

worship. Marriage is forbidden between ,

them, but mourning is no longer obligatory Oo , - between persons whose relationship is , separated by more than five generations; - Oe 4. tinh, comprising all the persons who | ,

bear the same patronymic (ho) and who may _ Sn :

' thus be descended from a common ancestor. ! |

This relationship has no civil effects. _ ,

comprises close relatives living under the same roof. In

principle it is composed of a father, a mother and children. oo This first familial cell, which may have a separate

establishment from that of the husband's parents, is |

placed under the authority of the head of the family or gia- _ truong (kia-tchang). The gia-truong, if he is the eldest of

the elder branch (66) may at the same time be truong-toc, | 66. Or, lacking this, grandson of this elder |

61; Lusteguy--24 G-4 = (1925-1932) 1935 | Vietnamese . | 1l4 or of a younger brother, or else son ofa ,

T69 wife of second degree in the absence of any | , | |

594 male in direct line. See below, p. 51. BS | that is to say religious chief of the relatives and principal

worship heir in the family clan: Then the relatives (and © : above all the heads of gia) gather at his home to participate __ in the worship of the ancestors in direct line. Secondary cults (67) are the responsibility of the different [24] heads

67. The gia, says Father Cadiére, "practices | worship only imperfectly". For worship tobe ss complete, an extra quality must be added to

the family group and the head of the family in the strict sense must also be head of a branch of the family in the large sense (ho). -- La

Famille et la Religion en pays d'Annam, Bull.

ACV. Hué, p.364. © 2 2 | ,

of gia to honor the memory of their own dead relatives. The same obligation--the duty of filial piety par excellence--~-is - ¢€ommon to them all; the perpetuation of the race. _

671 © The uncertainty faced by everyone as regards the real - 186 customs of the Annamites has caused considerable

177 difficulty in the administration of the country and the | | .67 application of its laws. Administrators justly complained

of the divergence between the native mores and the provisions which might legally be applied. In like manner, magistrates who were charged with saying what is right

were greatly perplexed when it came to applying a Code

- contrary to the local customs. The result was an

incoherent jurisprudence (68) and a certain uneasiness [25]

671 68. Jurisprudence: the Wife's own Property.

421 A remarkable example of the inconsistency

562 of the jurispruderice may be drawn from its _ , |

177 “attitude as to whether property rights were | |

(eo AL or were not accorded to the Annamite wife. ,

- The French Tribunals began by judging — i -. “that the Annamite wife may have property . '

of her own inasmuch as in a case of dissolution

"of marriage “half the communal assets" ,

61: Lustéguy--25 | G-4 (1925-1932) 1935 Vietnamese |

671 return to her (C.A. Saigon, 12-18-1879; , | | 421 Juris. Lasserre) and since she also has ' | 562 "the right to take back her dowry"! (C.A. i

177 S., 11-20-1880, op. cit. ). Oo OS | ~42 Then, a decision of 9-8-1891 affirmed , a

| | on the contrary that the ''wife possesses | no property of her own as long as her | Oo husband is living''. This was based on -

the fact that the regime of the Annamite - , paternal and marital authority excluding | possibility of the existence of rival — | , rights confronting a father with a son, a On |

, family is strictly patriarchal, whence a

7 "the

husband with a wife..." (C.A.S., 8-3-1893; , J.J.,1894, p.18). See also in this connection Oo

, - 1893

the decisions of the Court of Saigon of 8-31- ae (J.J., February 1894);12-30-1893 (J.J, : — . June 1894); 7-12-1894 (J.J., December 1894); | Oo

7-5-1895 (Pen., 1896, p.20). re A reversal of opinion took place in 1907, , ae

when a decision of the Tribunal of

| Longxuyen (Cochinchina) stated: 'Annamite ; a law...modified by custom, has long a , admitted...the existence of property which a , a _

| is the wife's own..." , Se _ The Court of Appeals then invalidated this ee

. decision as "contrary to the very principles re | | of the original constitution of the native | ; ——

, family...the first effect of marriage is to oe , make the wife pass in manu mariti..."' ,

C.A.S., 4-30-1908 (J. J.,1910). Concordant , 7 - Opinion: C.A: Indochina, 4-30-1908 (J. J., , oO

-InDecember 1910). , oe 1910, the Court admitted on the , ,

, | contrary (C.A.S.,4-28-1910; Pen. , 1912, p. 81) |

| | that a wife might possess property of her own , when it specified, in a particular case, that a there was no grounds "for making an : oe

application of the principle, which is moreover ne contested, by virtue of which the Annamite , wife possesses no property of her own..." ee C.A.1.,4-2-1919 (J.J., May 1911). Concordant | | opinion: C.A:I., 9-30-1910 (Pen. , 1912). | Oe In 19ll, jurisprudence returned to its former | , wanderings. A wife may have no patrimony of = = |:

61; Lustéguy--26 G-4 (1925-1932) 1935 Vietnamese ©

— 671 her own. C.A.I., 5-11-1911 (J. J.,1912). See ne

— 421 also C.A.I., 5-11-1911 (J. J.,1912); C.A.I., ; | | 562 6-5-1913 (J.J.,1914, p.33). A decision of | | 177 3-31-1919, of the same opinion, said "that 4 42 in truth, if one consults the work of © | Deloustal on the Code of the L&, one is , tempted to grant the wife the right to a | share in the property acquired by the , married couple during their life together; | but one not to lose sight the fact that themust research which theofauthor. , =of the work has devoted himself has only |

| an historic interest, and that present ,

7 legislation of the land of Annam shall | | remain in force until such time as it

shall be abrogated". an , ‘This decision did not prevent a new oe &

orientation on the part of Jurisprudence, ~ ,

‘and the Annamite wife was again able to _ ,

_ have property of her own. , C.A.I., 5-1- : 1919 (J. J., March 1921, p.120). But a few

days later, the wife's property melted .

into the husband's to form only "one | . a | single patrimony, the exclusive property . , of the husband". C.A.I., 5-23-1919 (J. J., : 7 | | 1920, p. 57). The Court at Hanoi (10-9- — , 1919; J.J., 1922, p.46) judged in like | manner, the wife's dowry going after the © ' husband's death--and in the absence of |

children--to the deceased husband's relatives.

Jurisprudence changed again in 1921, , ,

basing its decision to grant the wife the right to possess property of her own on

"the Code of the L€, much more liberal _ ,

and in closer rapport with Annamite : _ mentality than the Code Gia-Long which |

- is merely the textual reproduction of the |

greater part of the antiquated and inhuman _. Manchu Code...'' C.A.S.,3-24-1921 (J.J.

1921, p. 388). See also C.A:S.,3-14-1929 | | (Pen. ,1930, p.15). | | This decision of jurisprudence seemed | a lasting one. Buta decision of 1929 > returned to the thesis according to which | the husband is ''sole master of property

61; Lustéguy--27 G-4 (1925-1932) 1935 Vietnamese

671 depending on the conjugal association and 421 the wife is incapable of possessing property a , 562 of her own". (C.A.S.,10-25-1929; Pen., a.

177 , (1930, p.199). | -42 _ ". For details on jurisprudence, see especially: _ , . Rep. Jurisp. Lasserre, Rec. Penant, Rec. }

-. Dareste, J. Ind. de 1"Ind.; and jurisprudence | |

| as reported by G. Ditrrwell, Doctrine et ; | | Jurisprudence; G. Michel, Jurisprudence - générale; C. Briffaut, Etude sur les Biens

| cultuels (pp. 15 ff.); N. de Gentile, Petit Rec. de Jurisp.; G. Boyer, Le régime des |

successions en Droit annamite; and especially ,

Nguyén-huy-Lai, Les régimes matrimoniaux

en Droit annamite (pp. 112-126). |

671 between Annamites and the French administration. In fact, | | 186 the mandarins in office at the beginning of the French | 177 occupation and the educated men of the village, whose .67 influence on men of the people as well as on officials is so.

! profound, were able to keep rein on the action of the | colonizers precisely by invoking the ignorance of French-

men concerning the institutions. , 7

592 It will not be out of place to note moreover that erroneous . ,

671 interpretation of local mores has not been confined only to 692 French officials and magistrates. The Annamite judges

177 themselves, educated in the French manner and tainted , .67 with occidentalism, seemed to deform their own customs. , An easily understood confusion was the result for persons

, bringing suit. But it was especially repugnant to the _

Annamites to submit to the mingling of, authority in family ,

affairs, who were thus led to bring before the tribunals

by the family itself. ,

disputes [26] regularly decided, from times immemorial, |

_ Men of good will had for a long time heen reacting against the fanciful interpretation of Annamite customs and

demanding a serious study of native institutions. It was | Oo

abnormal and impolitic to allow every magistrate and -

administrator to interpret in his own way, according to his intuition and his own prejudices, any given custom. As early as 1908 Cl. Maitre said, with the high authority

attaching to his reputation as a scholar: ''A revision of the | Code would thus not be an ill-advised measure". (69) This |

| 69. He added; "In returning to the juridical .

, doctrines of Annam, we at the same time , ,

61; Lusteguy--28 G-4. (1925-1932) 1935. = Vietnamese |

1908, pp.236ff.), -692177 | a _ ©||, 592 draw closer to our own". G.R. de Briffaut. a

| 671 Etude sur les Biens cultuels (B.e.f.e.0., 7 -67 opinion was reiterated by Boyer, a magistrate of Cochin- | _ china, who wrote: 'The work of tomorrow must be the

- methodical classification and the complete collection of the © oral and ritual customs of the Annamite people. "(70) |

70. G. Boyer, Le Régime des Successions en

_ Droit Annamite, 1920. — a 7

| J.B. Luro had already written in the Pays , | d'Annam: 'We must seek to learn the oral custom...In order to learn the civil law of this country one must have a profound :

, knowledge of the kingdom's mores and

_. philosophical doctrine." a , _

| | Finally, still later an Annamite of Tonkin, Nguyén-van_ Khoan, demonstrated the necessity of acting without delay _

ss - by noting that an "investigation will be all the more ©

unproductive because at the present time there isa’.

tendency to modernize everything, _even the rites", (71)

, 71. This remark was made in connection with |

| village cults. "Much time is needed for a_ — _ first-hand investigation, for collecting all the 7

a oral traditions and observing the mores of the |

inhabitants and then, as a control, tryingto

- obtain from interested villages permission to | ss. be present at the secret rites." Etude sur le | ,

— Dinh (B.e. f.e.0., 1930, p.139). ee ee

_ Everyone was thus agreed to undertake a serious investi- oy

a gation of local customs. It seemed best to pursue the : _

. investigation in the most varied social milieux (72) and in a _

~ 72. As early as 1908 Cl. E. Maitre said thata _ , Co , - “patient and systematic inquiry pursued in the | BS

most diverse Annamite milieux'was needed. | C.R. de Briffaut, B.e.f.e.0., 1908, p. 238. | | 7 : , _ all parts of the country, and also to entrust it chiefly to , a ; , specialists capable of accomplishing--after a detailed ,

; analysis of the mores in the living and accessible matter =—s_—> |

61; Lustéeguy--29 G-4 (1925-1932) 1935 Vietnamese 592 of present-day Annamite society-- an exact synthesis of ,

.67 | | | Hanoi in 1927.

, 671692the civilization of Annam. [27] , SF It would seem that it was not desired to make an investi- _

177 gation of this kind in Tonkin. But knowledge of the genuine , ,

-67 local customs was sought (73) thanks to the investigations -

671 | 73. Robin being Superior Resident of Tonkin , : ,

177 and Graffeuil interim Superior Resident. | : of an Advisory Committee on Jurisprudence, appointed at

The creation of this body was decided by the residential decree (74) of August 30, 1927 which particularly provided:

74. This residential decree especially aims, , ,

in its preamble, at ''the convention of November 6, 1926, assuring the Superior

| ' Resident of Tonkin the right to make laws 7 governing all matters native to Tonkin". | (Bull. Adm. du Tonkin, 2nd series, p. 2857.)

ARTICLE 1. -- An Advisory Committee on Jurisprudence is created at Hanoi to enlighten the decisions of the

administrative or juridical authority, as well as those of , , , , the Tribunals, on questions the solution of which requires _ a knowledge of the Annamite laws and of the usages and : customs of the natives of Tonkin... . - ART. 6.-- The Committee may deliberate only on matters which its President deems opportune to submit to

Tribunals. , , : ,

it, whether by virtue of his office, or at the request of the _ , administrative or juridical authority, or at that of the ART. 7. -- Questions of law [droit] on which the

_ Committee is asked to give its opinion must be put in an , explicit manner and without regard for persons. The : Committee deliberates behind closed doors. ....

| ART. 9. -- The President leads the discussion, and , does not have a deliberative vote. The Committee may hear any person and gather any documentation on the

questions of principle submitted for its opinion. The ,

Committee deliberates by a majority of votes. , ART. 10. -- The Secretary shall take the minutes of the deliberations. He is required to insert the text of the |

pertinent law or to declare that no such law exists. The minutes shall record only the majority opinion. However,

61; Lusteguy--30 G-4 (1925-1932) 1935 Vietnamese |

671 the Secretary must, when requested to do so, insert the | ,

177 opinions voiced by the different members. .... So -67 ART. 13. -- The opinions of the Committee have only a [28] purely advisory value and are-not to be consideredas,

Tribunals. " | |

binding either on the administrative authority or the _ : , _ This text shows the intention governing the creation of | |

the Advisory Committee, the composition of which was '

Committee included: , , - —

determined by a residential decree of January 6, 1928. The —

-- the First President of the Hanoi Court of Appeals (75),

75. Mr. Morché, First President of the — / |

Court, presided over the Committee during -

| president; | , , oe _ the entire duration of its labors. ,— a

-- an administrator of the Civil Services of Indochina; -

_ -- a judge of the Hanoi Court of Appeals; | , , | ,

_ -- eleven well-known Annamites of Tonkin, including one © | former minister, six high officials (four tong-déc (76) and

76. The t6ng-diéc of the Tonkinese provinces Oo ,

| of Ha-déng, Thai-binh, Bac-ninh and Phu-tho. _ | two tuan-phu (77) of Tonkin, a professor at the Ecole des.

77. The tuan-phu of the provinces of Son-t@y oe and Phuc-yen. Téng-ddc and tu@n-phu are > -

the highest grades in the Annamite , | i .

_ administrative hierarchy of Tonkin. Their |

members occupy, in the provinces, offices : corresponding to those of viceroy and - governors of provinces in the Imperial ,

Chinese administration. 7 | |

People); : , , a —

Hautes Etudes Indochinoises at Hanoi, two publicists, and

,

a member of the Chamber of Representatives of the ! -- a magistrate holding the office of Secretary; or a total of fifteen members. | | - The Committee met for the first time at the Hanoi / , . Superior Residence on July 18, 1928. A certain number of residential decrees successively modified, in the course of the years 1928 and 1929, the composition of this body,

61; Lustéguy--31 G-4 (1925-1932) 1935 Vietnamese

671 as its members died, departed, or resigned. Oo 177. The labors of the Advisory Committee on Jurisprudence © .67 terminated on August 14, 1930. The results of the inquiry - were published (78) by the Protectorate of Tonkin in an

78. Imprimerie Trung-Bac, Tan-Van, Hanoi, 1930.

official brochure entitled Recueil des Avis du Comité - consultatif de Jurisprudence annamite sur les coutumes des Annamites du Tonkin en matiére de droit de famille, _

Opinions of the Advisory Committee on Annamite —— Jurisprudence concerning customs of the Annamites of Tonkin in family law, inheritance and worship property. "'] The questions in this pamphlet are arranged in series and © numbered from 1 to 324. They [29] are followed by answers

| constituting the opinions of the Committee. The results of

| the inquiry have served as the basis for the Civil Code |

governing internal jurisdiction of Tonkin [French Code © Civil 4 l'usage des juxidictions.indigénes du'Tonkin] .. promulgated by res ident ial decree of March 30, 1931. (79) |

a : 79; Rendered effective by decree of the ,

SO General Government April 1, 1931 (J.O.1.C., oo

- OO _ No. 33 of April 25, 1931, pp. 1365 ff. )._ , oe _ There is little information on the way in which the | 7

- _ Committee worked. The 1927 decree indeed stipulates

SO that the deliberations must take place behind closed doors. |

Tt is perfectly normal, in consequence, that the files |

ae relative to Annamite laws of custom should not have been |

published. The work of the Commission is known, in sum, only by the publication of the Collected Opinions. We know — | re only that the Committee proceeded by questions, but we — a do not know who asked them, nor how and to whom they on - a , es were addressed. The considerable importance that this = } © a information would offer in an evaluation of the Opinions ee

_ of the Committee is not to be denied. Our study of the | ee

a - replies to the questionnaire will thus be made only by |

a means of the Collected Opinions. : . In any case, in order to emphasize the spirit presiding a

, over the Committee's work, it will not be without interest ae ee . to quote extracts from the presentation report (80) of the | a

| 80. In effect, the Commission for drawing OO

61: Lusteguy--32 G-4 (1925-1932) 1935. Vietnamese © | 671 up the Code was composed of four persons _ 177. . . who had taken part inthe work of the _

-67 Committee: Messrs. Morché, president; —

. and Guillemain,. administrator of the | first class of the Civil Services; and

| Their Excellencies Hoang-trong-Phu, | Tong-déc of Ha-déng; and Vu-ngoc-

_ .Hoanh, Téng-déc, member of the 2nd

_.,. Chamber of the Hanoi Court. of Appeals. | | | (5.0.1. C., No. 33 of 4-25-1931, p.1369.)

new (81) Tonkinese Civil Code which was drawnupin _ | :

_ 81. Legislation. --Before 1931, the oe |

.. . Annamites of Tonkin were governed by the | , a

-.... . Royal Ordinance of 7-16-1917 (which had ,

promulgated four codes: Organization of , .. | Annamite Jurisdiction [Organisation des OO | - ; | juridictions annamites], Commercial | CF a, _ Procedure [Procedure commerciale], _ 7 , -

- . Penal Procedure [Procedure penale], and | _ Penal Code [Gode penal]). The 1917 a . , Ordinance had been revised by those of ,

7-2-1920, 7-16-1921 and 8-23-1921. | |

Since the legislation in force in Tonkin , : did not exactly correspond to Annamite , | | - customs, the Governor-General had an ordered a Commission (Decree of 7-16- a On a. , 1917).to elaborate a plan for a Civil Code. Oe This code had been promulgated, as a , oe oo

. . tentative measure, by Royal Ordinance ,

of 10-4-1921, solely for Annamites of the 7 | 7 - province of Ha-d6ng So, , | | oO Oo In Cochinchina, legislation applicable _ re ,

' to the Annamites was unified by the two a

, _. decrees of 10-3-1883 (Sirey, Annotated | a | . Laws, p. 547). By reason of the _ oe , Oo , insufficiency of this legislation, the de _ a ae , _. Lanessan Commission had undertaken , the revision of the decrees from.1902 , :

to 1907. This work did not yield definitive , -. - results, nor did that of the magistrate |

. Bourayne (1905-06), - | In Annam, application of the Code Gia- , Long, the Code of the L@ and royal ,

61; Lusteguy--33. G-4 (1925-1932) 1935 Vietnamese _

671 ordinances continues. 177

.67 accordance with the investigation. [30] |

"The general spirit which has presided over this work

of codification has been one of not doing any injury to the , fundamental institutions of Annamite society, even while adapting them to the evolution of the mores and to the present social state of the natives. These institutions are determined by the age-old provisions of Chinese law, often very different from the ancient Annamite law, and

especially by customs which have been handed down through ,

the ages with the modifications and alterations which time

has made them undergo. :

Therefore the plan for a Civil Code takes most careful

‘account of the customs gathered in their most recent form by the Committee on Jurisprudence, particularly as concerns the constitution of the family and the rights of

inheritance and worship... ,

Institutions peculiar to the Annamites (82), such as the

82. These affirmations call for certain

| | reservations which will become apparent from the present study.

juridical status of the widowed wife, the huong-hoa, | [family worship property----Analyst], the ky-dién (ki-t'ien) [ricefields whose revenue is used for celebrations

of anniversaries of deaths----Analyst], and the h&au-dién ,

(heou-t'ien) [ricefields whose revenues are used to |

. celebrate the worship of the founder----Analyst], are

. provided for with the rights inherent in them, always with the native's point of view in mind. Far from being

denatured under the guise of codification, these ,

“institutions conserve their peculiar physiognomy and help ,

to give the project a distinct individuality and a purely

Annamite character... :

671 All the provisions concerning marriage take their

582 inspiration from custom, which has always been much 181 more liberal and much more humane than the Code of Gia}77 Long as concerns status of the wife, and whose evolution -67 has only tendered to emphasize this direction under the influence of Western ideas and the necessities of modern

: life. Neyertheless, the text maintains patriarchal

present state of things... | authority wherever it is not abusive or contrary to the

61; Lustéguy--34 G-4 (1925-1932) 1935 Veetnames< 582 The plan has particularly aimed at following custom in |

671 strictest fashion in the part relative to inheritance of |

181. worship property, for any departure from custom here | 177 would risk casting disorder into families and creating .67 disturbances dangerous to the social order...'' (83) [31] 83. J.O.1.C.,No. 33 of April 25, 1931, p. 1366.

671 The Collected Opinions reveal that the Committee on 17? Jurisprudence proceeded by questions which were . .67 apparently quite precise. It is a well-known fact that this method rarely gives responses which conform to reality. The reply is generally determined by the formulation of the question, and this latter is posed according to the interrogator's tendencies or field of specialization. Ifhe | is a jurist, the reply will be juridical in greater or less

: degree. , , ,

One may thus infer from a reading of the Collected | : French juridical terms. To be sure, the aim of the , Opinions that the questions are asked and answered in

Committee was to "enlighten the decisions of the ,

administrative or juridical authority, as well as those of | the Tribunals..." (84) and the labors of the Committee 84. Residential Decree of 8-30-1927, Art.l.w _

Bull. Adm. Tonkin, 2nd Series, p.2857. | were to enable the eventual elaboration of a Tonkinese Civil Code. But such considerations as these hardly account for the abuse of a juridical vocabulary. (85) In _

85. We shall be obliged, in the course of this _

. study--and particularly in dealing with the

of th inquiry--to use the language , ofresults the Committee. | /

order to describe customs and social practices, it would

, have been preferable simply to use the current speech. (86) _

: 86. This is probably what would have happened if an experienced ethnographer | a

or sociologist had been attached to the a

Advisory Committee on Jurisprudence. Thanks to such collaboration, the work would have gained in scope, in depth and ©

61: Lustéguy--35 G-4 (1925-1932) 1935 Vietnamese

| 671 perhaps in truth, without losing anything

67 |

177 of its juridical value.

There would have been nothing to prevent the

legislators from translating into juridical terms, at the time of the elaboration of the Code, the description couched in common terminology. One might imagine, from the fact that the Committee used juristic expressions, that the Annamites have

, familiarized themselves with certain juridical notions

enunciated in precise terms, as for example those of

civil capacity (87), emancipation (88), guardianship (89),

«68. A, 74,

" 88, A. 80--'"'The notion of emancipation

in unknown to custom," | ,

89. A. 78--'"'Guardianship of minor children

| is provided for neither by law nor by custom," action of disclaimer (90), one's 'own!'' property (91), etc. [32!

90. A.190. | | |

91, A.A. 41, 53, 61, 223, etc... ,

884 ) -

671 An enumeration of all the cases (92) where the inquiry

177 92, C.C.T. --Certain examples may moreover 421 also be drawn from the application of the

769 inquiry to the drawing-up of the Tonkinese Code. - QOne opinion defines the huong-hoa as the whole of property in the form of real estate ee devoted to worship, (A, 278)--Another opinion indicates that this worship property comprises all real estate capable of producing revenue. (A, 279, )--Further on, the Committee

categorically stipulates that the huong-hoa

cannot be composed of movable goods , which are susceptible of being too easily

| misappropriated by the beneficiary. Up to

, the present time, the Committee adds, the huong-hoa has never been composed either

of money or of movable goods. (A. 280. ). |

61; Lustéguy--36 . G-4 (1925+1932) 1935 Vietnamese | 671 — _«-Fhis response is in perfect conformity Oe : 884 with the law, with the custom, and with the

_ 177 opinion of the authors (Briffaut, Etude sur | - |

421 - les Biens cultuels, p. 77; Duong-tan-Tai, _ oe 769 op. cit., p.133).--It is also most prudent. | 7

| to anyone acquainted with the atavistic short- | sightedness of many Annamites. But the new Tonkinese Code provides that the "huong -hoa Oo

is the movable portion or the portion in oe , .

landed property of the patrimony reserved

for maintenance of worship." (C.C.T.,Art. 294). , Here is another example. As concerns the | .

designation of the huong-hoa, the inquiry |

! recognizes that by custom the oral form is |

| _ more used than the written form (A. 295). | | _ Yet the same Code stipulates that the | portion of the huong-hoa@ must be designated = in writing. (C.C.T., Art.395). --Itis © |

_ possible that this mode of designation offers — | more advantages than the oral form, but we | | are obliged to note; once again in this-case, a - the influence of the Occidental mentality |

, | . which prefers written documents to words.

| betrays an Occiderital influence would be too lengthy. We. shall limit ourselves to citing a few examples of clash. (93)

93. We know that clash (Eng.: to collide) |

| : results from.the contact of two civilizations. _ |

, | _’ Especially where colonization occurs, the

protectors usually influence the native a Oo

institutions. Thus R. Maunier has written

7 in La Loi frangaise et la Coutume indigéne , | 7 , eri Algerie (p.67): "Conscious or unconscious | , | : intervention, according to the circumstances, ,

: -has. occurred to change or better the native

: custom, and toimpress.more orless |

, firmly upon it-the spirit of our Law. '! ,

Thus, the Committee frequently refers to. the majority of . |

natives of both sexes. One might then think that this notion is Annamite just as it is Occidental, but a reading of certain of the Opinions proves that this is not at all the

| case. "Custom does not fix the age of majority in a

| 421 884 | | 177 94. A. 79. ,: Ol; Lustéguy--37 G-4 (1925-1932) 1935 Vietnamese ,

| 671 precise manner. ''(94) oe

769 But the Committee, desirous of avoiding indecision,

affirms that ''The official age of majority for boys may

thus be considered (95) as being fixed at the age of ,

95. Italics mine. The Committee bases its |

determination of the age of majority for a , a ,- :_ young man on certain of his rights and | duties.. (A. 79) As for the age of majority | — , co for girls, the Committee has no basis — | oo other than that of comparison with the boy. | . @ighteen'"'; and it adds; "It may be admitted that unmarried :

: - 58 : | — * - - girls reach a majority at the same age." There is in fact . for Annamites not a majority, but several different

Oo | , -. majorities according to their sex and the act to be , ,

| - - accomplished. [33] :

671 Similarly, whem the Committee asks the age of .

: | 582 marriage for each sex, the answer is that "parents hardly _ a

| | 96. Italics mine. , 97. A.128.

| 177 +ever marry (96) their children before they have attained

_ the age of puberty, i.e. fifteen for boys and twelve or | thirteen for girls." (97) Since such imprecision cannot |

satisfy the Committee, Opinion 128 adds in fine that ''The

| marriage". (98) | age of eighteen for boys and sixteen for girls is even

: most frequently admitted as the normal period for ,

_ , 98. Thereby enabling the legislator to make suitable provisions, that is to say analogous , | to the French Civil Code. See C.C.T., Art. 73; "Man may not contract marriage before - the age of eighteen, nor woman before the age of fifteen".

. Opinion 128 does not agree with Opinion | , ,

79, according to which a young man assumes : the virile bonnet at twenty andaatgirl =. — , assumes the hairpin sixteen.

61; Lusteguy--38 G-4 = (1925-1932) 1935 Vietnamese 585 The Committee also asked (A. 138): "At what exact moment are engaged couples considered to be married? '' The answer is that the marriage is final "after the .~.

ceremony before the ancestors! altar in the fiance's home , , and the obeisance of the fiancée before the fiancé's

| parents. These prostrations are the proof of the fiancée's , a consent to accept her fiance as husband". This opinion a First, in settling the question of knowing when the a

calls forth two observations; | : | _ Annamite marriage is final in so.categorical a fashion,

the Committee seems to have forgotten that in Far- ,

Eastern mores a marriage does not suddenly become final , |

after a given ceremony of the family or of the cult. The marriage is rather accomplished by a growing related-

. ness which originated in the relations between the two

families of the engaged couple. Moreover, the same ,

| opinion (99) betrays an excessive juridical scruple in

99, A.138. a Oo | |

attempting to find a proof of consent on the part of the

fiancée. In following the complex course of the mo

_ Annamite marriage, one would seek in vain for the _ moment when the children give their consent. Still less— |

can there be a question of precise proof. : What is more, opinion 147: answers this question by saying that marriage always has the character of an |

agreement between two [34] families. Consent of.the

parents thus suffices, in principle, for the marriage to 586 be valid. Finally question 162, on grounds for annulment

of marriage, shows that annulment may be requested |

‘when consent constitutes a vice...or there is violence , : and constraint exercised on one of the engaged parties..."'

(100), a a ee 100. A.162, Sect. 4. - ae, , All this leads to a complete lack of comprehension.

Opinion 138 cites the proof of personal consent on the _

_ part of the fiancée, a consent which becomes useless in ; opinion 147, but whose absence nevertheless constitutes,

for opinion 162, grounds for annulment of marriage. | Again in reference to marriage (101) the Committee 101. Despite the large number of questions

61: Lusteguy--39 G-4 — (1925-1932) 1935 Vietnamese _ ,

586 relative to marriage debated in the '

: Opinions, the Committee would not , seem to have described the Annamite , institution of lam ré (playing the son-

in-law), which will be considered in © , : | the course of this study (below, p. 96). |

| says: 'The grounds for dissolution of marriage are the Do _ death of one of the marriage partners...'' Nothing, a , priori, would lead one to suppose that it might be otherwise, but then what is the use of saying, in opinion 152, , sO - that when the principal wife, chinh that, chances to die she has a continuer in the person of the ké-that, who is a

| by definition the continuing wife? It must then be Oo

admitted that the matrimonial union was not dissolved by Ot

- the death of the chinh-that, but that it goes on with a new partner thus assuring the continuity of the marriage. (102) oo

, 102. See also A. 154. , a oO

, 586 The Committee also inquires: "Is repudiation still oo 177 practiced very widely?" (A.175.) The answer being that it "is hardly practiced except in rural areas among the

. lower classes. Everywhere else marriage partners have © So

| recourse to divorce proceedings. '' There are no grounds |

for contesting the fact that repudiation is disappearing in ,

| Tonkin and that it is being generally replaced by -

divorce. (103) But it would appear from the group of |

| exact information. , | - 103. Only a statistical investigation conducted in the country and in the cities can give us 7

- opinions dealing with repudiation that their authors are | _

trying to persuade us that divorce proceedings, a foreign , a importation, have supplanted repudiation in Tonkin. ,

| » Opinion 180 indeed states that ''divorce has today entered , the mores. First practiced by the well-to-do classes (104), =

, | 104. A fact which makes it indisputably - orthodox.

it is more and more becoming [35] a current practice in all classes of society. The establishment of the civil state

has rendered it necessary, since repudiation is no longer ,

177 . a

61: Lusteguy - -40 G-4 (1925-1932) 1935 Vietnamese | 586 valid (105) when marriages are regularly registered. ''

105. Italics mine. |

It is difficult to imagine that:a local practice as archaic as repudiation should disappear so rapidly in the face of

a custom recently imported from the West, but it is | |

completely incomprehensible that another Occidental , . practice, purely administrative in character--that of the Be

civil state--should be invoked as grounds for preventing 7 a... repudiation and "rendering divorce necessary''. One may

.. well ask, in this connection, what Annamite customs-- |

, -. which the Committee is supposed to be studying-- can |

of divorce. (106) ar - , , _

_ possibly have in common with the Occidental institution _ -

| 106. It is admitted that divorce produces |

ne _ the same effects as repudiation. On the other | hand, it is judged that one may go as far as , | divorce by mutual consent (A.182), by analogy

| with repudiation (A.169). | |

114. ~—~—s In sum, the opinions of the Committee on Jurisprudence, |

| 671 in spite of the matter with which they deal, cannot be -- . gonsidered to be the work of ethnographers. Their scope /-. is too exclusively juridical, and they are incomplete (107)

107. "Questions of Annamite customary law", writes Nguyén van TO, ''are not among those

, which can be resolved a priori by abstract , ,

oe reasoning and a general conclusion. ''-- , Bibliographical note C.C.T. in B.e.f.e.0. |

1932, p. 525. , a

' by virtue of the absence of statistical information. (108)

, 108. The opinions of the Committee need to So _ be completed by information drawn from. ne statistical investigations conducted in | different parts of the country.

We shall point out, as the occasion the necessity for investigations of this , |

presents itself in the course of this study,

order. Isolated investigators have —. , ce undertaken such steps on theirown . |

61; Lusteguy--41 G-4 — (1925-1932) 1935 . Vietnamese

| 114 initiative. R. Deloustal, in particular, _

671 has made personal investigations, for his OO commentary to the Code of the Lé@, of the

hereditary vocation of Tonkinese girls, in a ,

1911, p. 53.) | | cities as well as in the country. (B.e.f.e.o.

_ . Moreover, the opinions would seem.-to result from a evidence furnished by mandarins and educated Annamites -

in the cities and suburbs of the delta, and the mores of :

| marked. [36] | a

peasants and mountain folk are thus translated imperfectly |

oe _ at best. Finally, the Occidental tendency is far too ,

+114 Nevertheless, the considerable importance of the labors | 589 of the Committee on Jurisprudence is not to be denied. _ . 428 — In the first place, they tend to destroy certain erroneous | , : 671 Western judgments on Annamite mores, and in this way , OO to do away with causes of misunderstanding. One example (109) among others may be cited. The Annamite widow's , 109. Similarly, the Committee specifies that

"the idea of reserving a fixed portion of an , inheritance for the ultimate heirs is unknown : to custom", (A. 215); --that "the idea of accepting an estate without liability to debts , |

- beyond the assets descended is unknown to ,

, custom''.. (A. 222);--and that "the principle of entailing all property on the hereditary | , _ succession is not obligatory". (A. 245),etc. ©

, right to enjoy the property composing the estate of her ,

: dead husband had erroneously caused the case of the _Annamite widow to be assimilated to that of the French . usufructuary widow. (110) But this expression in no way |

| (110. Cf. H. Solus (All. aux éléves de 1'Ec. |

Cal. de Paris 1934): "the [Annamite] wife | of the first degree has usufructuary rights ,

at the death of her husband", ,

fits the concept which Annamites have of the rights of a

widow. In effect, the latter possesses not only all |

administrative powers over the hereditary succession of her husband, but she also has the powers of disposition which the deceased held, and she does not abandon these

589 _ 7 _ 428 lll. A.50. Cf.A.51l. © FS : , 671 a oO |

61; Lusteguy--42 . G-4 (1925-1932) 1935 Vietnamese |

114 when the son attains his majority. (111) To the Committee |

.. goes the credit for having made this notion more precise | and discarded the expression "usufructuary widow". 7 - In the second place, the opinions tend to do away with , the multiple contradictions between Annamite customs on the one hand and legislation (112) and jurisprudence on the

: , Il2. One thing seems certain of accomplishment,

re namely the acclimatization, among Annamites , of Tonkin, of juridical ideas and vocabulary.

a other. The material of the investigation has already been / used to bring Tonkinese legislation into relative harmony | |

_ with present-day customs by the establishment of a code

which respects, on the whole, the great institutions of — Oo _ . Annam. This is the first time that a task of such scope a

has been accomplished. Annamites will henceforth , generally be governed and judged on the basis of what :

they are, not what they ought to be but never have been.

671 While they constituted a compendium useful for | _ Occidentals, the Collected Opinions did not fail to |

interest [37] cultivated Annamites at the time of their , appearance. In fact, a number of the latter were moved _ to publish studies and theses (113) in which the authors ,

«113. The studies and theses by Annamites | _ which may be cited either as having been provoked or inspired by the labors of the

_ - Committee, or else as having simply =. a _ reported the Opinions are particularly; oe Nguyén-van-T0, Questions de Droit >

: - coutumier annamite. Hanoi; Studies |

(Phap-Vién-Bao), 1931. _ oo Nguyén-manh-Tuong, L'Individu dans , |

7 la _vieille Cité annamite. Montpellier, | - « Thesis, 1932. oe Le-van-H6, La Mére de Famille , | , annamite. Paris, Thesis, 1932. | , , Duong -tan-Tai, La Part de l'Encens |

et du Feu. Saigon, Treatise, 1932. . Dang-trinh-Ky, L'Engagement des _

“+, Personnes en Droit annamite. Paris, _ |

61; Lustéguy--43 G-4 (1925-1932) 1935 Vietnamese

-| | Bui-tuong-Chieu, 671 Thesis, 1933. La Polygamie dans le , Droit annamite. Paris, Thesis, 1933.

Le-van-Dinh, Le Culte des Ancێtres en

, Droit annamite. Paris, Thesis, 1934. ,

a Nguyen-huy-Lai, Les Regimes Matrimoniaux

en Droit annamite. Paris, Thesis, 1934. ,

generally sought to rediscover the existence of a truly national lore of custom. We shall endeavor in the present study to follow them on this ground, particularly. by joining together for the FIRST TIME two questions of the utmost concern.to them, that of the family worship property, and that of the status of woman in the family.

[38 Blank page] [39] 7 Chapter I

| DEVOLUTION OF THE HUONG-HOA | )

556 , oe ,

769 (according to the Committee on Jurisprudence)

771 Ancestor worship (1) may vary in the sums of money

, 1. Ancestor Worship. --We have seen above

| (p. 16), in connection with comparison of the | _ Annamite City with the Ancient’City, that : , ancestor worship in Annam is not to be confused with the domestic cult of Latin

‘ antiquity. As a general rule, one should , beware of confusing ancestor worship with

the cult of the dead. In the cult of the dead, |

/ all the dead, no matter who they may be, © | are honored by various rites, "usually , : public". Ancestor worship, on the contrary, takes place in private among groups who

claim a common descent and in view of , honoring the same ancestors. (B. Descamps, — in Le Genie des Religions, p. 250; H. Maspero, :

La Chine antique, p. 218.) , | | Similarly, one should not confuse ancestor

, worship, a purely familial institution, with | the extra-familial cult of the Spirits (Schreiner, | Les Institutions annamites, II, p.137) or with

that of the Genii such as, for example, the | ,

worship tendered by the village in the temples

61: Lusteguy --44 G-4 (1925-1932) 1935 - Vietnamese

769 (dinh) dedicated to the tutelary Genii and

556 which occasions manifestations "wholly oe

771 imagined and imposed on the superstitious , masses by the sorcerers...'' (Than-Kinh |

Review, 1928, No. 8, p. 766). For a | contrary opinion, see L. Cadiére, des ee Miss. Etrang. in L'Annam (p. 78), |

: -according to whom the ancestors "are | only a small part of the immense army of | oe spirits, and ancestor worship is only one | , ' of the diverse aspects of the Annamites'

On religion". See also the opinion of Hovelaque a _ (La_Chine, p.129) on ancestor worship. "A oe wholly human religion without metaphysic,

without church, without priests other than — the father of the family, without any other |

| god than humanity, without heaven or hell,

finding on the earth and in life its principle,

its ends, its sanctions and its rewards..."

, Compare Chantepis de la Saussaye in , - Manuel d'Histoire des Religions (p. 46): "The most noteworthy trait of this religion, |

besides the absence of a mythology and ofa | ,

doctrine, is that it has no priests. "' -

spent for this purpose according to the relative wealth of. a

the Annamite family. He who falls heir to the cult does not truly fulfill his obligation to the ancestors unless he does all in his power to endow the family worship with a maximum of splendor. Relatives and the public at large appraise the results. It should not be assumed that the

perpetuation [40] of ancestor worship is entirely : contingent on the existence of endowed funds. On the

contrary, poor families can perpetuate the cult at slight |

expense. - ; eg.

3° Property designated for worship (2) only enables the

423, ... 2. Worship property is designated in Annamite : by the expression tu-san (tu: cult, san: property). a This is property whose revenue, generally ,

oe speaking, maintains either the cult of the ©

, Geniior that of the ancestors. ,

ca Worship property (tu-san) should be | |

, distinguished from the burial grounds

| ph@n-dién (fan-t'i€n) or t6-phan (tsou-fan), |

61; Lusteguy--45 .G-4 (1925-1932) 1935 Vietnamese

423 the family. | ! 556 which are designed solely to receive 769 the mortal remains of members of

- devotee to sustain its splendor. It also constitutes, in the public eye, a basis for evaluating the filial piety of the descendants. A family clan is classed by the size of its expenditures, and rich families exploit the ostentatious character (3) of the worship solemnities to strengthen 3. Duong-tan-Tai, op. cit., pp.1lOl, 102,

248, 249, 268, 269.

|769 relatives. | ||

| their status in the city by means of endowments whose sumptuousness becomes evident at the death of their

, 556 In any case, only the altar of worship is "indispensable 778 for the religion of the ancestors". (4) Among poor people

| 428 4. A.278, Al. 3.

the altar is limited "very often to very few things: a table, an ash-receptacle, a worship tablet, an incense

burner and torches...'' (5) When the deceased has had. , 5. If parents leave no property, the

, worship heir must ''maintain this altar and

levy on his earnings sums sufficient for buying incense, lights and the various _ objects which the celebration of the worship ceremonies necessitates" (same opinion).

| better fortune, the various other forms of property | designated for worship purposes successively appear,

| first the house of worship and second the property of

huong-hoa {whose revenues were used for worship--

Analyst]. If the estate is wealthier still, a ky-dién

; [dien is a ricefield----Analyst] (6) is added whose | : 6. The ky-dién may thus, for a given cult,

be superimposed on the huong-hoa andthe

house of worship. It is particularly , designated for the celebration of anniversaries of the death of its designator or one of his relatives. Ky in fact

61; Lusteguy--46 .G-4 (1925-1932) 1935 = Vietnamese

556 _ Signifies anniversary. This worship : 769 relatives as a body, or to a single , 428 _ family branch. One of its peculiarities ,

, 778 property may be entrusted to the SO

is that it may be administered in 7

, turns (luan-phién) either by all the _ , members of the family clan or by a , representative of each of the branches | of the family. The ky-dién may never

oe be given away, but it is possible to sell or exchange it with the consent of the

relatives involved. In case the ,

obligations of the cult are not fulfilled, _

| the negligent relative may be discharged

see also A.278. | , |

| by the family. A.323, Sect.2. Ky-dién, , ‘revenues are put to work on the anniversaries of deaths,

, or else a ma-dién, whose revenues are designated to.

permit the purchase of [41] votive objects. (7) The richer |

? This refers to paper copies of ordinary , .

| a | objects, made between the first and second , , anniversaries of the death, and burned at

, the end of the sacrifice. Annamites think | - that in this way "the objects will be. a | received by the dead in the other world". _ a | Le-van-Dinh, Le Culte des Anc@tres en — , The ma-dién is tending to disappear ,

| , a - Droit annamite, p. 58. | ,

; from Tonkinese custom, | oo

_ the estate is, the greater the number of worship © -

, - ereated. (8) , oO oO -

, _ endowments with particular designations which may be _ |

, 8. Tonkinese custom licenses many other

| endowments. For besides the ones just cited. | | Oe example, the mOo-dién (vicefield for ' _. tombs) which serves to maintain the tombs _ | of ancestors of the rank of great-great- «> ,

| , grandfather. 7 , Oo

‘The Kia-li or Family Ritual of Ancient |

| _ China says of this: '...When.the relatives . : | died, they (the ricefields) were designated

as ricefields for tombs (m6-dién)". : ,

61; Lusteguy--47 (G-4 (1925-1932) 1935 Vietnamese

556 Deloustal, B.e.f.e.0., 1911, p. 50.

778 Similarly, the té-dién (ricefields for 769 sacrifices) which serve to pay the costs -

428 of sacrifices and commemorative ceremonies on official holidays or ,

anniversaries. This institution existed | , in ancient Chinese custom. The Kia-li , , , says that for intestate successions ''the twentieth part of the ricefields was taken | and designated as worship ricefields | , (té-dién)"". B.e.f.e.0.,1911, p. 52. According to Deloustal (loc. cit.) the expressions t@-dién and md-dién are

, scarcely used any more, and are replaced by ky-dién and hau-dién. The té-dién 7 appears to be the archaic Chinese form of

| the Annamite institution of huong-hoa.

In present-day China, particularly in

the province of Kiang-Sou, the family , worship is assured in the following fashion: | , , In most middle-class and poor families, where the estate is distributed equally among all the sons without setting aside

a portion for worship, each descendant | | renders the posthumous honors to the |

ancestors at his own expense and in his , own home.by (Compare the worship tendered : the heads of the Annamite gia, p. 23.).

: As for rich families or even families

— ! 7 only comfortably situated, they are in the habit of levying on the patrimony, at the , time of the succession, a portion designed | | to defray the costs of worship. The share

| of this reserve fund in the estate as a whole _ and its nature vary with different families.

It is administered either collectively by all Oo the children or by each of the sons or male descendants in turn. (Compare with ky-dién,

: | p.40 , and with luan-phién, p.49.) Worship is celebrated ina little ancestral temple

| - belonging to each family (family in the |

large sense, clan). ot

_ Note. --The equality of the sexes proclaimed ) by the new Chinese legislation (1928-1931) and particularly the right accorded to _

61: Lusteguy--48 G-4 (1925-1932) 1935 = Vietnamese

556 daughters to share in the hereditary

778 succession on the same basis as sons - , 769 _ still remains generally in the domain 428 of theory.

of Peo Yu of Shanghai. | This information is due to the kindness -—— _.

. 428 | | | , |

621 Furthermore, a person who dies without an heir may , 794 designate a hau endowment (9) in favor of a pagoda, (10)

769 9. Or hau-dién. Hau may be correctly

| translated as perpetuation, posterity; _ | , dién as ricefield. ©

10. The Buddhist pagoda (chua) is distinguished _ | from the communal village temple (dinh)

where the cult of the tutelary genie of the ,

village is celebrated. There are the hau-chua , , and the hau-dinh (endowment at the pagoda

a and endowment at the village temple). , a village or any other agglome-[42]}ration (11) to celebrate, ©

ll. In Tonkin there are the Xa, village;

- th6n, hamlet; giap, grouping of several | families united by common interests, especially pertaining to worship; and the , Xom, grouping of several families united , by bonds of worship and neighborhood. | at periods fixed by the founder (12), his own cult or that -

12. The hau endowment is established by a contract stating the location and nature of

| the property, the duties imposed on the

beneficiary and the quantity of offerings to be made on each occasion for worship. Any

, ) . person,-without distinction of sex, may , | establish a hau. The hau may lose its character of worship property if it is taken |

- _- back by its founder or his descendants on , account of lack of fulfillment of duties, or if it is alienated with their consent. The hau is administered either by the bonze of the pagoda or by certain members of the group to which it was entrusted, each in |

794 | : 7 oe 769 | ,

61; Lusteguy--49 G-4 (1925-1932) 1935 Vietnamese

621 their turn. A. 323, Sect.1, H@u-dién. a

428 of one of his relatives. (13) | | 7 , 13. Besides family worship institutions

there are in Tonkin endowments in honor of the Genii. The best-known are: the than-tu-dién, communal property for the cult of the tutelary Genie of the

— _ village, constituted by the communal / authorities, of which one part is administered by the guardian of the pagoda and the

other by each of those inhabitants in turn , (ludn-phién) who are responsible for

| offerings in the village temple (dinh); | the phat-tu-dién, a communal or private endowment of the Buddhist cult

, — celebrated at the pagoda (chua); | _ the tu-van-dién, devoted to Confucius and his disciples, and established by contributions; | , the thanh-minh-dién, a communal _ ricefield allocated to the cult of the

the tombs;

| _ Genii at the moment of the visits to __

, etc... A. 324. - , | the vo-pha-dién, a communal ricefield | : devoted to the cult of the military Genii, a

769 The best-known worship endowment, the huong-hoa, is oo

428 established by levying on the inheritance a share called , of incense and fire. (14) This title does not call to mind

, | 14. Or of incense and lighting. any of the peculiarities which distinguish the huong-hoa from the other forms of worship property such as the hau-dién, the ky-dien, or the m6-dién (15) for example,

15. The first is the ricefield of posterity; the second, the anniversary ricefield; the

, third, the ricefield of tombs etc. See above

ye pp. 40-41.

which are designated, as we have just seen, in the most

61; Lustéguy--50 G-4 (1925-1932) 1935 Vietnamese 769 characteristic fashion. These are moreover often

, 428 confused with the huong-hoa itself. od , |

The latter may nevertheless be distinguished by its «| Oo composition and by its social and religious role. (16) It

| | 16. It is also distinguished from. the hau-dién

| by its familial character. Whereas the hau a goes out of the family to be allocated toa ‘pagoda or a village, this is not the case for

| the huong-hoa which, like the ky-dién, is a . ,, ,has family worship property...as C. Briffaut , justly noted in his Etude sur les biens

| - cultuels familiaux. oe

comprises (17) chiefly [43] landed property bearing |

17. One should not lose sight of the fact that

the huong-hoa [family worship property---- , 7 Analyst] is theoretically an optional endowment. It is not obligatory for all families (A. 284). , The legislator of the Code of Gia-Long seems |

| to have judged it such. On the other hand, the | Code of the L@ obliged children to establish | 7

a huong-hoa upon the death of parents dying |

, intestate and leaving property capable of , : producing revenue. (C. Lé, Art. 287, B.e.f.e.0., ,

| | 1910, p. 500.) This obligation was also : z _ extended by the law of the L@ to parents who a

, themselves had a patrimony at their disposal. oe In fact, Annamites generally take advantage _ , of| children the division of their property among their. a to create a huong-hoa. If parents. oe | , | possessing property die intestate, their es

descendants have the duty to set aside a , oo

oo

huong-hoa fund, the establishment of which , an may be demanded by the worship heir. In the © _ absence of any estate whatsoever such an | ce establishment is optional, but the rules of | | , filial piety create a moral obligation for | a descendants who possess property to set up ' a huong-hoa with their own resources (A. 285).

revenue, that is to say arable land, and usually good |

ricefields. The family home containing an altar of the ,

428

| 61; Lusteguy--51 G-4 (1925-1932) 1935 Vietnamese | 769 ancestors is also joined to the worship endowment. (18)

18. The Committee on Jurisprudence ,

distinguishes within the huong-hoa : from the house of worship tu-duong ,

._ those lands which produce a revenue

(sseu-t'ang) and add (A. 278) that in poor families who do not possess a house of worship, the worship heir provides for worship in his own | house. Cf. €.C.T. (Art. 394) providing | that the huong-hoa "is composed of all property capable of producing revenue... '' As concerns the burial grounds t6-phan, which remain like the huong-hoa __ the indivisible property of the family, this property may not strictly be said to enter in the constitution of the huong-hoa, It remains at the disposition

, of all the relatives, who may come

whenever they wish and commune with

themselves before the tombs. Furthermore, these burial grounds are in principle imprescriptible, not attachable, and inalienable except for expropriation in the public utility or voluntary displacement of the tombs by decision of the family. (Cf. Philastre, _C.A.,Vol. Il, p.137; E. Tavernier, ©

Compte-Rendu de Duong-tan-Tai, La

, 154, 159.) , Part de l'Encens et du Feu, in Bull. de l'Enseignement Mut. du Tonkin, pp.

"It is on a plot of ground assigned to the huong-hoa"', writes Diirrwell, ''that the family tombs are found, and their

| maintenance is also assured by the help of special revenues arising from this property''. --La Famille annamite et le -Culte des Ancétres, in Bull. Et. Ind.,

p-l4. |

It is there that the worship ceremonies take place.

769 , Be

61; Lusteguy--52 G-4 (1925-1932) 1935 Vietnamese

671 The huong-hoa serves to pay all the expenses (19) : 428 19. It is for this reason that the huong-hoa . is composed of property bearing revenue. en It must not be such as to be consumed by use, and so Annamite tradition, inits |

wisdom, has always been of the opinion

: that only landed property, and more — especially productive ricefields, should | compose the huong-hoa. It is contrary to oO | custom and most imprudent as regards | |

the future to decide, as did the legislator

| in 1931, that this worship property may be

ae constituted of movable goods, which are

~ far too easily consumed. ''The huong-hoa : ee is the portion in movable goods or in real ae , estate of the patrimony..." provides Art. of the C. C.T.--For an opinion disagreeing |o ,, -, 394 with the legislator, see Le-van-Dinh, Le , 7 culte des anc@tres, p.65. --Cf. A. 279

and 280. Oo

| arising out of worship tendered on anniversaries as well | as the seasonal celebrations. (20) But it often happens | ,

20. We have seen above, pp. 40-41, that the ky-dién [dién is a ricefield--- -Analyst] . , on the contrary, serves only for anniversaries, and the ma-dién for buying | |

votive objects.

that the huong-hoa produces more than is needed for , purposes of worship. [44] The surplus revenue remains at the disposal of the worship heir (21) who uses it either

21. Duong-tan-Tai, op. cit., p. 268. to help poor relatives, or for himself. People have

acquired the habit, using juridical terminology, of Co designating this heir by the name of beneficiary of the } huong-hoa. This appellation is perfectly correct if we recall the Annamite expression which says that the heir

"eats the huong-hoa (an-huong-hoa) (22). '"' The berleficiary

22, A.278 (al. 1). , |

61; Lustéguy--53 G-4 (1925-1932) 1935 Vietnamese 671 thus has alt the interest from a common property and an

769 indivisible portion of the heritage. (23) He disposes of it |

428

, ; 23. The beneficiary thus does not possess , an absolute property right over the

worship property (A. 281), but only a right of enjoyment and administration, until at his own death his worship heir

, in turn inherits the huong-hoa portion

; under the same conditions. For this reason, it is not possible for the

beneficiary on his own authority to , modify the composition of the huong-hoa, ,

which can be changed only by the relatives involved. (Same Opinion).

in order to ensure the accomplishment of his duties, which consist not only in maintenance of the cult in the strict sense, but also in the obligation to invite the relatives to his home on certain occasions and to keep up relations between the different members of the family. (24)

, _ 24 The huong-hoa thus supports worship

tendered to a relative by one of his descendants or a substitute for him, while the hau-dién generally serves for worship

| of a dead person who has no posterity. __

: See, however, p. 52.

613 The principle question in the matter of the huong-hoa 428 is that of its devolution. The rule has it that the huong769 hoa must devolve upon the worship heir. (25) The latter 25. While we are particularly anxious not

to try to explain Annamite customs by ,

' Chinese mores, we feel obliged to point

out the Kia-li (Family Ritual of ancient : China) which provides that the inheritance portion of worship property was entrusted "to the eldest son in direct line (that is to

say to the worship heir) who used it to ,

defray the costs of worship" in application © of the principle of the communal nature of worship (t'ong-tsong), M. Granet, La

| - Civilisation chinoise (p. 369 in his analysis

61: Lustéguy--54 G-4 (1925-1932) 1935 Vietnamese

428 pp. 81 ff. | a,

| 613 of the Yi li); and La Religion des Chinois, , 769 On the influence of China on Annam, see R. Grousset, Le Réveil de l'Asie, p. 230. assumes an important place in the family organization, and the procedure of following the worship property through the hands of the possible heirs is therefore a

| good means toward understanding the functioning of the domestic organization. [45] Authors(26), as we have seen in the introduction, have

26. See especially C. Briffaut, Etude sur les

Biens cultuels, pp. 100 ff; Cl. E. Mattre,

C.R.C. Briffaut, Etude sur les Biens cultuels (B. e.f.e.0.,1908, pp. 236-249); E. Tavernier,

, Le Culte des Ancétres. La Famille annamite,

a pp. 29, 30, 56 ff.; Tran-van-Lieu, Les

substitutions fideicommissaires. La Piété

filiale comme fondement du Droit annamite, oo

| ‘pp. 60, 61; L. Cadiére, La Famille annamite (Bull. A. V. Hué, 1930, pp. 391 ff.); M. Ner,

La Cité antique et l'Annam d'autrefois, p. 23;

, Nguy@n-van-To, “Questions du Droit coutumier, pp. 5 to 1l; Duong-tan-Tai, La Part du Feu et , de l'Encens, pp. 32, 53, 224, 233, etc. particularly devoted themselves to the study of a controversial question, namely the eligibility of women

to inherit the worship property. ,

It was formerly thought that the portion of fire and incense [i.e., the share of the inheritance endowing the huong-hoa or family worship property. ----Analyst] must obligatorily devolve on an agnate male relative of the deceased who was of a lower generation than he. (27) This

27. Through the procedure of agnate

succession, successive beneficiaries of ,

the huong-hoa inevitably bear the same 7

ho as all their ancestors. ,

system is without doubt that of the Gia- Long legislation.

It is also, according to the Committee, that of present- ,

day custom. But the investigators admit that "there exists today a strong current! (28) of opposition to this system |

, 28. A. 301 (al. 2). |

769 |

61; Lustéguy--55 G-4 = (1925-1932) 1935 Vietnamese 613 which is moreover nothing else but a return to the custom re-

, 428 sulting from the legislation of the Le (29).

oe 29. See below pp. 54, 61 ff. | 613 It is in fact true to say that the Code of the Le allows the 562 eldest daughter of the deceased or a woman taking her place

428 to be chosen, in certain cases, as the worship heir. What , 769 is more, it provides rules of succession by which, in the case under consideration, the huong-hoa [family worship property --Analyst] may devolve upon the children of the daughters, that is to say upon cognates bearing different names, for ex-

| ample a Tran, then a Pham, etc. These principles, estab-

lished by the legislation of the Lé concurrently with those - governing exclusive devolution upon agnates, appear to contain something more than has been commonly emphasized. 613. As concerns the mode of devolution upon agnates, the rules 596 followed seem to have remained unchanged from the earliest 428 times until the period of Chinese domination (30). In this

769 | )

30. It is therefore perfectly logical for Deloustal to have recourse to ancient Chinese texts, such as the

| | Nghi-lé (Yi-Li), in order to interpret the system of worship devolution which involves both the designa -

oe tion of the worship heir and, in consequence, the

- transmission of the huong-hoa property. The expression huong-hoa in the sense of worship property , of a strictly defined type does not seem to be known

| _ in China, The Gia-l€ (Kia-li) speaks, as we have

| | seen above (p. 41) of t@-dién (tsi-tien) in the following , terms: ''Formerly, when an ancestral temple was , built, a levy was made on all the rice fields pos, , sessed (by the family) and the twentieth part of these , rice fields was designated as worship rice fields (te -dién). When all the relatives had died out, they

, were designated as rice fields for tombs (m6-dién). In succeeding times, whether it was a question of

, principal tablets or of adjunctive tablets, the same

| 61; Lustéguy--56 Ge-4 (1925-1932) 1935 Vietnamese —

, 613 procedure was followed. The administration of . , 596. this property was entrusted to the eldest sonin 428 _ direct line, who usedfft:te pay for the costs of |

769 worship. When the dead ancestors had left no | ,

worship rice fields, their children and grand- : — | Oo , children established this endowment themselves © a - by donating a part of their rice fields, and drew ee : up a contract. with each other which was then __

| | registered with the authorities. Worship rice a | , fields could not be used as collateral security,

, an _. When the line of relatives had died out (after the , - a | fifth generation) they.were transformed into =~ oe oe : | - rice fields far tombs. "' Ed, An. Vol. I, p. 9. - 7 | | See Deloustal, La Justice dans l'ancien Annam., | |

[46] respect, there is scarcely any difference between the — _ legislation of the Le and that of.the Nguyén. ~The Opinions of -

. the Committee [on Jurisprudence] reproduce the law, point- oe So ing out as occasion arises the differences in application on | -

the more obscure points, a a | | , The essence of the matter is that the worship heir must be | ,

the eldest son of the principal wife, the dich-tu (ti-tseu). The | , a other sons share in the ancestral cult, at the very least by | ° lending their presence and often by various contributions (31).

rr “31 It goes without saying that all the costs of worae _ Clary of the huong-hoa, But on anniversaries — , : : | the brothers of the heir and even other members _

, , | wo _ ship are borne by the worship heir, the benefi- _ OS of the family bring victuals and gifts: They have

, a moral obligation to do so, often the result of : 7

, a clause in the will of the designator (A.278). , | ) | Although they join with their elder brother, this latter alone , _ oe holds the privilege of rendering the posthumous honors. This , | _. is his affair in the strictest sense and he receives the huong-

, - hoa funds for this purpose. He is the chief relative or tOc- | , 7 -“truong (tsou-tchang). His married brothers, whose family = = __ BO groups form separate establishments (32), are only heads of

| 32. They may happento live under-the

596 . 769 | | ,

61; Lusteguy--57 G-4 ( 1925-1932) 1935 Vietnamese

613 same roof as the eldest.

- 428 families (33) or gia-truong (kia-tchang).

a 33. Or head of a house or household. _ Although the gia -truong, the mere head of a household, ,

only participates in worship without himself officiating, ,

this will not be the case for his eldest son and child of his principal wife. This son will have an ancestor of his own and will be a petty chief of relatives. A huong-hoa will have been established in his favor by his father and mother. If such an establishment has not been made, and there exists a patrimony, the children will proceed to do so previous to [47] dividing the balance of the estate. (34)

34. A. 284. | | This worship property will then be transmitted according to the rule from. ‘one principal son to the next, and the line of direct descent will be progressively enriched with ancestors until the fifth generation. In each generation from this time on, the tablet of the most distant ancestor will be taken down from the altar and worship will be

tendered to him in anonymous fashion and collectively with the ancestors who are still more remote. (35) |

— - 35. A. 321. |

182 The question then arises as to the fate reserved for the 671 huong-hoa [family worship property----Analyst] created 769 by the ancestor whose tablet has been taken down from 428 the altar. We learn from the explanations of the Committee

[on Jurisprudence----Analyst] (36) that, since the |

| 36. A.321. See also A. 1. | immediate line of descent comprises only the five (or

| nine) degrees of mourning, the huong-hoa set aside for the worship of the ancestor of the sixth generation becomes d6ng-t6ng property. In certain regions this

property continues to be transmitted to succeeding worship heirs. Elsewhere it becomes part of a fund specially set aside for the worship collectively

671 | , ,

61: Lustéguy--58 .G-4 | (1925-1932) 1935 .. Vietnamese ©

182 tendered (37) [48] to the ancestors more than five a

769 37. Xudan-thu. --By reason of the importance 428 in Tonkin of déng-t6ng property, and in the © . absence of precise information on this type _

of property, it will be of interest to compare ,

the institution known in Cochinchina by the name of Xuan-thu. The author Duong-tan-

Tai of Saigon has furnished a very detailed | |

description of this institution in his work | |

La Part d'Encens et du Feu. The expression |

Xuan-thu literally signifies ''beginning of Spring" because, in contrast with the huong- , hoa cult which is celebrated on the anniversary of the death of the ancestor in question, the

Xuan-thu cult must be celebrated in the first ,

ten days of springtime (p.104). The Xu@n-thu property is entrusted to male descendants, generally excluding the eldest son if the

: latter holds a title to huong-hoa property . (p. 102). The Xuan-thu is not regarded asa fund which absorbs expiring huong-hoa, but

as a special institution in itself. The , | establishment of a Xudn-thu endowment isan _ exceptional and even rare event which only very | wealthy and ''very old'' families have recourse to. _ [Tt would seem that in Cochinchina huong-hoa properties are put to another use after a time.

, . Annamites indeed believe that after a certain. number of generations there is no longer

] - any justification for individually worshipping a

| _ distant ancestor who is unknown tohis | |

descendants (p. 282). In order to accomplish this deconsecration, the interested members of the

family are convened in plenary assembly. The |

debate, generally a heated one, lasts several days. The question of deconsecration is not

difficult to settle, but the difficult point is the |

anticipated division of the proceeds of the

sale (p. 284). | oe The Committee on Jurisprudence declares, ,

on the other hand (A. 322), that the huong-hoa may never be divided. It disagrees in this

matter with Article 398 of the Code of the Lé. | - It would moreover appear that the social

61: Lustéguy--59 G-4 (1925-1932) 1935 Vietnamese

182 purpose of the institution is to oblige the ; 671 relatives to keep the worship inheritance , 769 undivided. Duong-tan-Tai, on his part, | 428 refers to division of property and development , of individualistic life (p. 286) as well as to

disintegration of the family (p? 381, Note 1). .

The cause would lie, according to him, in the

, appearance of trades, of competitors and of new needs in conjunction with population

growth forcing migration to cities (loc. cit. ). ,

The Annamite family of today "is broken up

, into infinitely small parts and property —

— division is the rule". (p. 137). a - generations removed. (38) This fund is administered as

| _ 38. The huong-hoa after the fifth generation. --In Oe _ regions where transmission of the huong-hoa from worship heir to worship heir goes on

| , indefinitely, it is probable that the various , , huong-hoa established by the descendants of _ each generation and accumulating in the hands , of the worship heir constitute, in the long run, too large a fund. It is doubtless to avoid too

| | great a development of this sort of mortmain

| that the Committee authorizes reductions of the huong-hoa (A. 283). |

, On the contrary, if the expiring huong -hoa in each generation is added to the fund devoted to the collective worship of distant ancestors,

7 this fact implies that the huong-hoa remains , completely distinct from the rest of the patrimony. It may be supposed, in passing, that in the |

, first case the tablet of the ancestor more than four generations removed is destroyed, and in

the second case preserved. Opinion 321 of the : Committee stipulates that worship of an -. ancestor by name continues after the fifth generation if that ancestor has distinguished

himself by services rendered to society or

the State, or by his private virtues. ,

_. It would seem that the first case is akin to

| the Cochinchinese custom, as was seen in the , note on the Xuan-thu. It may be supposed that wealthy families establish a Xuan-thu property

61; Lustéguy--60 . G-4 (1925-1932) 1935 Vietnamese

_ 182 under these circumstances--perhaps by oe , 671 reducing the huong-hoa. Whatever the facts ,

, 769 of the matter may be, a huong-hoa | 7 428 established in such a case would seem to be _ set aside for all sorts of worship services _

in general, hence for ordinary holidays as

well as anniversaries. ,

| _ In the second eventuality, where the

huong-hoa is more strictly attached to the

person of a given ancestor, it would seem

to be set aside more particularly for

anniversaries. , - ; , , |

, _ If we refer to the definition of huong-hoa

given by the Committee in Opinion 278, we | note that 'The huong-hoa is the whole of the | }

: landed property set aside for the worship of that person who established it, of his or , her spouse and of the paternal ancestors of | | , whom the legatee is the worship heir... It | | | , is set aside for the celebration of the various : . _ ceremonies of worship during the year, and , - must be entrusted to no one but the worship ,

| heir... The ky-dién is that portion of | , property which may further be set aside for , the worship of its designator or of a relative

, who has died that year, without any male _——ss«éposterity. It is exclusively reserved for

| celebration of the anniversary of the death

_ of the person whom it designates. It may be

- administered in turn by different members | | of the family or of a group, according to the |

| wish of the designator."

Do Duong-tan-Tai adds the following further ,

- information: 'The revenue of the huong-hoa _ |

- is according to the wishes of the designator |

, _ reserved for the worship of his memory or for the worship of one or several ancestors designated in the act of its establishment

a (p.112)... The ceremonies have not been

a strictly enumerated by law, but they have : at the very least been fixed by custom.

| , Burning sticks of incense (huong) and lamps or candles (hoa) on the altar at dawn and

| at dusk, celebrating the anniversary of

, death of the ancestor for whom the huong-hoa

61; Lusteguy--61 © G-4 (1925-1932) 1935 Vietnamese

, 182 has been established, making offerings to | 671 him during the Tét, [New Year's Day---769 Analyst] visiting his tomb at the celebration | | 428 of the Thanh-minh (Ts'ing-ming), and sweeping out his "last dwelling" or Tao-mo6 (Sao-mou) are the essential practices which family worship comprises. '' (p. 247).

| Duong-tan-Tai further writes: 'In general oe the beneficiary considers it a duty to invite

all his relatives to the worship solemnities. _ A moral duty, to be sure, but one which custom has consecrated in the long run. Any members of the family not invited would not fail to complain. We know that the anniversary of death must be celebrated in a worthy manner, with all desirable pomp. It is in the highest

, interest of the party involved to show that he | has not failed in his task, and the banquet

given at the end of this ceremony for the _ |

relatives often serves as a basis for the latter to evaluate the manner in which the beneficiary has acquitted himself of his

pp- 268, 269). | | | supreme duty during the year. '"' (Ibid. ,

_ [49] the family assembly decrees, either by the eldest - member of the tOng or by representatives of all the

branches in turn, in the manner luan-phién, the

administrator being onliged to underwrite the costs of the principal ritual celebrations. 428 After the fifth generation the group of agnate 769 descendants of an ancestor thus overflows the circle of

613 relationship, called cuu-t6c (kieou-tsou) (39), of the nine | 39. A.1l, Sect.2. "The cuu-tdc relationship

| or near relationship which comprises nine generations. It extends from oneself back to one's great-great-grandfather, and from oneself down to one's great-great-grandson..." see p. 23, Note.

| (or five) generations bound by mourning obligations. (40) 40. €.G., Art. 285 ff. See also above, p. 20.

| 769 | | rr

61; Lustéguy--62 G-4 (1925-1932) 1935 Vietnamese

, | 428 We then enter the circle of tong-tGc (41) relatives

| 613 41. A.1, Sect.3. "... Marriage is forbidden | | : between members of the same tong-tdc. | | : Mourning is no longer imposed between

, relatives more than five generations

removed from one another. '' See p. 23, Note 65.

"comprising all the descendants of a common ancestor | bearing the same family name and having the same worship". The posthumous honors rendered to the

, : ancestor change in character, and at the same time | property set aside for worship os no longer obligatorily administered by the relative who occupies the first rank and who has a right to the status of worship heir. The family assembly (42) is free to choose between the system

«42. See below, p.82, Note 49. of alternation (43) or the privilege of [50] age. (44) 43. Luan-phién (Louen-fan). --According to

: the Committee, only in Tonkin is luan-phién

| : a mode of administering certain worship , property. It would seem that in Cochinchina,

if we are to believe Duong-tan-Tai, luan-

| phién represents something altogether

different from a mere method of administration, ,

and that it is a kind of institution. _ oe

, . This author (op. cit.) furnishes details on | | the ludn-phién. In principle, the property |

passes successively to the various interested , parties or those who have a right init each _ year in turn, and in order of age. The eldest son has no particular rights in this privilege

, _ (p.100). The father of a family who has few ricefields and who prefers not to divide them | up may direct that all his children, without | | distinction of sex, may successively enjoy , them one year after another (p. 98). This is an ideal method for property bought by the father

under the condition that it may be redeemed

. by the seller (p.98). The part of an estate | reserved by the parents to support them in | , their old age (phan-duong-lao) when they |

| 61: Lustéguy--63 G-4 (1925-1932) 1935 Vietnamese 428. settle their property on their heirs by donation

769 generally becomes ludn-phién property (p. 98). | 613 Or again, the father may set aside a portion , , when he divides up his estate, and instead of : designating it as huong-hoa, may bestow the a | usufruct thereof either on all his children, . each in their turn (as is the general case), or only on his sons each in turn (an extremely |

, rare case), with an obligation for the

beneficiaries to offer worship in his honor (p. 99). The father of a family who has only female offspring may make use of this method

to establish a disguised huong-hoa which is i called huong-hoa-tac, that is to say a huong- |

hoa of extinction (p. 99). Children, both male and female, may freely enter into partnership and form a luan-phiێn fund to support worship

| for their parents (p. 99).

| Duong-tan-Tai further writes that: 'Luadn-

phién property is worship property only if _ a , the designator or designators so stipulate. In the absence of such stipulation, worship is optional for the beneficiaries. In fact,

, people never fail to observe the ritual duties, and the anniversary of death of the relative

who has founded a ludn-phién is celebrated | by each beneficiary in turn during his year a of usufruct. Through pride, the descendants

oo , often vie with one another to see who can | celebrate the ceremonies with the greatest

7 pomp and magnificence. '"' (pp. 101 and 102). oe } : . In practice, itis rare for lu€n-phién = = = 2 9 7. +s property to be preserved as such beyond

me . - the second generation because of complications , consequent upon the increase in the number

| of heirs in each branch by new births. To . ;- ,permits anticipate eventual disturbances, custom | the beneficiaries children andtograndchildren of : deceased dispose, by mutual , ) agreement, of this property in any way they , , wish, whether by sale or division among

themselves (p. 101). ,

Se The consequence of these extracts is that | the complications envisioned by the author | arise from the fact that, in his eyes, the : |

61; Lusteguy--64 G-4 (1925 -1932)1935 Vietnamese , 428 interested parties are necessarily _ 769 individuals. In the Tonkinese custom, on the ~ |

613 contrary, the luan-phién method may be used

for funds arising from huong-hoa which have _ expired because the interested parties are heads

of branches and not all the individuals of the ,

| various branches. Each relative will have his

share in the revenues of the common property at the time of holidays and family reunions.

What is more, says the Code of the Lé, if the , ,

huong-hoa devolving from a great-greatgrandfather or direct ancestor five generations back must not be divided, this is, says Art. 398, "in order to avoid the deplorable consequences ©

which arise from muddled claims".

829 44. In China in former times, people were 623 ranked in court meetings according to dignity, and in rural assemblies according to age. In

Tonkin the tradition was to classify communes |

according as the oligarchy which ruled each

one depended on merit (human right) or on age

(predominance of the aged: divine right). G. | Dumoutier, Essai sur les Tonkinois, Rev. ind.,

| March 1907, pp.306 ff.

428 Whichever mode is adopted, the worship property

769 frequently changes hands, and its indivisible character | 613 appears more clearly. We are confronted with a common fund belonging indivisibly to an exogamous group of agnate relatives linked by a common ancestor in a remote

generation. The revenue from this [51] property serves

. for collective ancestor worship at the time of the principal , seasonal and annual religious celebrations. The anniversary |

of the death of these ancestors then usually ceases to be , _celebrated. (45) _ a |

| 45. But they continue to be worshiped in the

a ritual celebrations which take place the third day of the third month and the fifth day of the fifth

month (A. 321). .

428 It would seem that tong-tdc groups of relatives [i.e. all

_ 613 descendants of a common ancestor bearing the same | | 769 family name and having the same worship. ----Analyst]

61: Lustéguy--65 G-4 (1925-1932) 1935 Vietnamese 428 must accumulate a great deal of indivisible wealth, since 613 the family branches of each generation who have more 769 than four immediate ancestors enrich the common worship fund with new additions. For the worship individually tendered to the four immediate ancestors, a certain - solidarity between the different branches of relatives indirectly tends to allow the continued enrichment of the — common fund. In fact, if one branch has no male posterity, the younger son of another branch is chosen as worship heir, so that neither the cult nor, in consequence, the transformation of huong-hoa | family worship property---Analyst] into a common fund for t6ng-toc relatives is interrupted.

_ These considerations apply to the normal case of ,

- worship succession. But there may be no relative qualified to inherit the huong-hoa in the capacity of | worship heir. This property must in fact be transmitted

, obligatorily to an heir of a generation lower than that of | the deceased, by virtue of the principle that worship is

tendered by a relative of a lower generation toa ,

preeminent relative (46), and never in the inverse

46. The Committee says (A.3): ''Every relative of a given generation is preeminent with respect to those of the following generation without distinction

of branches... Within the same generation .

a relative of an elder branch is preeminent with respect to a relative of flte younger branch’,

direction... | 7 _ | We have seen (47) that normally the worship heir is the

47.. See above, p.17, and also A. 86, 87. : eldest son of the principal wife. If the dich-tu [worship

; heir----Analyst] is dead or incapable, his principal

, eldest son, dich-tOn, becomes worship heir. In case the . wifets eldest son has died and left no male posterity, her second and then third sons are successively raised to the

| dignity of principal son. (48) . 48. A. 299.

In default of male descendants in direct line by the wife,

61; Lusteguy --66 G-4 ( 1925-1932) 1935 | Vietnamese | 428 recourse is had in a set order to sons im | 52) common 613 line, that is to say to male descendants of wives of

769 second degree. (49) a be | | 49, A. 299 (al. 2)...'Two eventualities may © | . gecur; Ll. If it is established in the family... | that the children follow the father (tong- = - phu), it is the eldest of all the sons of | | - wives of second degree who is the — a 7 beneficiary of the huong-hoa. This is the . , , most frequent case. 2. If in the family it | , . is. established that the children follow the mother (tong-m@u) then the huong-hoa

devolves upon the eldest son of the first —

wife of second degree." _ a

Cf. GC. Lé, Art. 388 (Decree of the oo | third year Hong-Thuan 1511). "A gifted ss son of a wife of second degree will then

: _ be chosen. '"' Cf. Deloustal, La Justice, a | B.e.f.e.0., 1910, pp. 500-505, 7 . In the absence of any male posterity,. recourse is had

to younger sons of other branches. (50) This procedure, |

50. A.299 (als3). | Oe |

"which is a designation of an heir", is called lap bie (FR). |

51. A.320, 86.

The heir, or thua-tu (52), "must obligatorily belong to the

| posterity. , a , .

52. The thua-tu is also called the designated |

same family as the defunct. In the absence of near

relatives, he must be chosen from distant relatives

53. A.92, | Be ,

bearing the same name as the deceased". (53) This is as

- much as to say, with contradictions which are only —

apparent, that there is an obligatory order of preference for the adoption. One goes from close relatives to more | distant relatives, from nephews and grandnephews to ,

| 61; Lustéguy--67 .G-4 (1925-1932) 1935 Vietnamese | | 428 cousins, always with the understanding that only agnates oe 613. of a generation lower than that of the deceased may be , 769 considered. In the absence of any such, a stranger may be ,

chosen, even if he bears a different ho. (54) | a |

, 54. A.92, in fine. a | ,

- | In any eventuality, a person can designate an heir and insure the transformation of a huong-hoa endowment into . a ; a. déng-tong fund [for the worship of ancestors more than we five centuries removed----Analyst] after five generations. When the contrary happens and the huong-hoa becomes a

hau (55) endowment [to perpetuate the memory of the _ | , 55. Hau-dién and huong-hoa often coexisted _ | for the same cult in the time of the L@ when -

, the designator feared a failure on the part of | , ‘his worship heir (see Deloustal, B.e.f.e.0., ,

| : 1911, p.157). In the hau as in the huong-hoa, .

collective worship is distinguished from — , | worship tendered to one individual. But the | | distinction is based only on the greater or | oe :

lesser importance of the endowment. It would ~’ ,

| , indefinitely. a .

seem that, at least in theory, the pagoda or ,

| village were bound to tender worship | , deceased, usually when there is no posterity----Analyst] | _ with the worship property allotted to the [53] Buddhist or

, village temple, or else when it devolves upon the =~ , daughters' descendants (56), this is either by the express.

| 56. This refers to possible cases envisaged - , a by the Committee in Opinion 322. Cf. the | | | | | edict of the Lé@ of 1494, Art.18 (B.e.f.e.0., |

) - 1911, p.60) in case the posterity becomes _ | | | extinct before the fifth generation counting : :

| from the person in whose name the huong-

| hoa was established, it is permissable to . designate as son and worship heir a child

, of another family clan, or else the property : a , becomes. the possession of the Buddhist a , religion. --See below, Po 65, Note.

7 428 | | ee

61; Lustéguy--68 .- G-4 | (1925-1932) 1935 Vietnamese |

| 613 wish of the family assembly (57) or because the family |

769 © 57. See below, p. 82. = * a clan has shrunk in numbers. But is the family assembly completely free to abstain from designating a worship

, heir and to modify the character of the huong-hoa by , transforming it, for example, intoa hau-dién? ; The more recent the creation of the huong-hoa is, the

. smaller the number of relatives constituting this a

, assembly. (58) This group of relatives may not be on good , z

| 58. See below, id. an |

terms with those of another branch, or they may be , | indifferent to the interests of the t6ng-t6c community. And |

| so careful steps are taken so that the family assembly | , does not abusively exploit the lack of male descendants. , , The Committee [on Jurisprudence----Analyst] , : particularly provides that if the deceased was himself a

: worship heir (59), in the absence of agnate nephews and ,

59. A.299.. Italics mine. . | _ grandnephews a worship heir shall necessarily be sought, _ if not among strangers, then at least in distant branches |

, of the family clan. | Z , oe , | , _ Thus, when the huong-hoa has once devolved on agnate

| | relatives, one should continue to transmit in the same | | manner. If the deceased was not himself a worship. heir, ; : ; 7 . there _. is there complete freedom of choice, always provided | are no agnate nephews, as to whether a worship Weir a | shall be designated or not. It will be possible, instead of ,

| _ establishing a huong-hoa, to insure his worship in some Oe _ other manner--by means, for example, of a ky-dién |

, [ricefields whose revenues are used to celebrate the , ,

| : anniversary of a death----Analyst] (60) or a hau-diérg |i).

| — 60. A.A. 278-323, Sect. 2. |

| . | 61. A.323, Sect.l. oO 7 |

| The degree of choice permitted the family assembly , depends therefore both on the distance in relationship of _the prospective worship heir, and on whether or not the |

| 61; Lusteguy--69 G-4 (1925-1932) 1935 Vietnamese 613. deceased was [53] himself in charge of a cult or onlya —

| 428 simple gia-truong [head of a household rather than a | 769 family----Analyst]. The family assembly in principle | devotes itself to anticipating and accomplishing the wishes of the deceased which this latter did not have time or did not take the precaution to express. If the family assembly

: enjoys greater latitude in establishing the cult of a simple

, _ gia-truong, this is doubtless because the latter is, during | his lifetime, in a better position than a truong-téc [the , , worship heir----Analyst] for example, to take the proper

steps for ensuring his own worship. , |

428 emphasis: Ss | . ,

| 562 Whatever the case may be, two important points bear 769 #4291. A person in charge of a cult and who has no male

descendant may not designate his adopted son or con-nudi

_ (62) as worship heir unless the latter belongs to the same | ,

| 62. A.98. The con-nudi is an ordinary | , adopted child who is not normally destined,

the thua-tu, to become worship heir. , Seeas isbelow, p.104. , a | branch as the designator, and is, when the designator ©

: has no sons, one of the first in line. The ordinary giatruong [i.e., head of a household----Analyst], on the , contrary, may designate his adopted son con-nu6i without | | any restriction as-to the latter's origin, and in preference

to agnate nephews. oo oe oe 2. It is now admitted that the head of a gia [family

_ household] may even entrust his cult to one of his daughters - in preference to his agnate nephews. The Committee [on Jurisprudence----Analyst] indeed pretends that law and custom deem daughters incapable of officiating in worship (63) and thus of becoming beneficiaries of huong-hoa. But

63. A.96. Thé Committee had the foresight |

: to add "in principle". See also A. 301 (al. 1).

the investigators recognize (64) "that there is today a —

64. A.301(al.4), 0 |

strong current of opinion which would have daughters

: designated as beneficiaries of huong-hoa"’. They add that _ "an agreement between the two opinions would appear to_

61: Lusteguy--70 G-4 | § (1925-1932) 1935 Vietnamese

: 562 be possible on the following basis: when the deceased was 428 the eldest son of the direct branch and, in consequence, 769 worship heir, designation of a male worship heir:is _ | obligatory. This worship heir must be chosen in the order

- specified by law. When, on the contrary, the deceased is a a younger son who has no offices [55] of worship (65), :

, 65. Italics mine. co , , - since the choice of a worship heir for his personal worship | is not obligatory, he is free to designate one of his —

daughters to be beneficiary of the huong-hoa endowment

he has established for his own worship". ss

593 An argument of a psychological order which sheds light

769 on the particularities of the younger son who is an ordinary |

, 428 gia-truong [i.e., head of a household, not the worship oe _ 562 heir----Analyst] and father of a family without male : , posterity is advanced in support of the right of daughters ,

to inherit the huong-hoa [family worship property ---- | | | | Analyst] when there is no son. Without doubt, like all _ Annamites, such a father would have preferred to give birth to at least one son. But since there are daughters,

| , "they ought to be chosen (66) as worship heiresses and ;

_ 666. A.301 (AL. 2), - a

- . benefit from the huong-hoa in preference to a nephew or _ -. more distant relative for whom the deceased might have

- only very little affection". (67) , Lo | ss 67, -Italics mime. | ; | os . It would seem that the argument is equally valid for the |

eldest son, head of the t6c. But it is difficult to interpret , the opinion of the investigators without taking into consideration the fact that the argument is advanced only

| for the ordinary head of a house who has no worship duties. , The eldest son, truong-tdc, owes affection to all the relatives of whom he is the chief [in worship matters---- _

, Analyst}. A younger son, who is not held to the same , moral jobligation, has a foremost attachment for those nearest to him and living in his home. | -

- 61; Lustéeguy--71 G-4 |. (1925-1932) 1935 Vietnamese . , 428 The affection of the head of the family is not confined

603 to the descendants of the first generation. The oft- |

769 employed expressions dich-tu, dich-ton, and tu-todn suffice 591 to show that the grandchildren are always in view. (68)

| 68. It will7be remembered that these , expressions signify: dich-tu: principal son; dich-t6n: principal grandson; tu-t6n:;

children and grandchildren. Not only does a gia-truong [head of a household---- |

| : Analyst] prefer his daughter to his agnate nephews, but ©

also his grandson and great-grandson. (69) Now, the latter / 69. According to the Committee's thesis (A. 322), also followed by the legislator (C.Cc.T., Art. 406), when a daughter who is the worship heiress dies, the huong-hoa (family worship property ----Analyst] . entrusted to her passes to her eldest son and eldest grandson.

: _do not bear the same ho [family name----Analyst] as the , gia-truong, but the name of this gia-truong's son-in-law. Can it be that the son-in-law's personality, the fact of his living under his father-in-law's roof or not and that he

| may also be an object of the father-in-law's affection are altogether discounted in the choice which [56] this father-

in-law makes between the various alternatives offered | a

him? When the head of a family prefers his daughter to . |

his agnate nephews as worship heiress, is it not because, with his son-in-law living under the same roof, ‘the giatruong has conceived a great affection for his grandchildren | who nevertheless beara different name? How many cases

of this sort are to be found in Tonkin? It would be easy to | | - answer these questions by a statistical investigation. _ 563 If such an inquiry were to establish that in the case of a 606 daughter who becomes worship heiress the son-in-law 769 ordinarily comes to live with his father-in-law, an obvious 428 comparison would be called for with a custom noted by the , 597 Committee [on Jurisprudence----Analyst] among the natives of the highlands and also recently: recognized by —

| the new Tonkinese legislation. (70) Among the Thd and Nung

, 70. C.C.T. 406 (Al. 2).

428

6l; Lustéguy--72 G-4 (1925-1932) 1935 Vietnamese

, 563 populations, and especially in the province of Lang-Son, 606 "the son-in-law is often adopted as worship heir by his

| 769 in-laws who have no male children. The will (71) [of the

597 71. Testament is the very term used by the | Committee in Opinion 301.

parents in his favor] contains a clause specifying that if | ever the son-in-law abandons his wife's family (72), he

72. Italics mine. | .

shall lose the huong-hoa [family worship property---- | Analyst] and all rights to the inheritance". (73)

73, Opinion 301, Al. 6, adds: ''Generally speaking, in matters of worship inheritance

, - the Th6, Nung and Muong populations follow | - the traditions of the Annamites of the delta. "' | Perhaps by this very facta connection might be found _ between two privileges granted in matters pertaining to worship heirs exclusively to the younger son who is a

simple gia-truong [head of a household----Analyst]. These | are the right to choose his daughter and that of designating | an adopted son con-nuoi. Such con-nuoi (74) would thus

, 74, See below, p. 103. , , appear to be sons-in-law--or daughters-in-law--by anticipation, In this way, thanks to these traits of mores _ of which only vestiges remain, one might seek to identify the archaic customs whence are derived the various

, oe - solutions given in Tonkin to the problem of the cult.of

parents dying without male descendants. _ — For the time being, it will be well to quote the words

, - of the [57] Committee regarding the custom of the _ , -; mountaineers of Upper Tonkin, where ''the son-in-law is _ often adopted as worship heir..." (75)."'\Among the Tho

75. A. 293(Al. 2). oe a and Nung populations, especially in the province of Lang Son, married daughters may be designated beneficiaries of the huong-hoa conjunctly with their husband who is

606 , , 769 76. Italics mine. ) 428 oo 61; Lustéguy--73 . G-4 (1925-1932) 1935 Vietnamese .

. 563 designated worship heir (76) by testament (77) with the . 597 77. A. 361 (Al. 3). Testament of the parents -in-law.

consent of the chief members of both families. In this | case, the son-in-law relinquishes the name of his own ,

law... '' (78). |

family (ho) to take the family name of his father-ine __ 7

78. Opinion 301 continues: "At the latter's

death he receives his inheritance without |

the deceased's daughters and grandchildren

being able to protest. In case of a divorce _ | granted to the wife against the husband, his oO wife remains sole beneficiary of the huong-

, hoa. She it is who then gives worship in the | .

: absence ofa son who has attained his | }

i , majority. . : " This Opinion reinforces the

| | terms of Opinion 293 (Al. 2), which states: — 'Among the Tho of the province of Lang-

| | Son, the son-in-law is often adopted as worship heir by his parents-in-law when | they have. no male children. In this case, | he relinquishes the name of his own | family to take the family name of his in-laws. ' Similarly, Opinion 96 states that "in the

highlands, and especially among the Thé populations of the provinces of L&ang-Son

| and Cao-Bang, custom has it that worship —

_ must be given by daughters when there are no sons. To be sure, the daughter must be _ married and her husband must consent to take the family name of his wife and

| officiate himself in the worship of his

in-laws". | ae

178 There can be no question of disassociating the |

562 functions of worship heir and of beneficiary of the huong-

. 769 hoa [family worship property----Analyst] in order to 428 grant one to the husband and the other/to the wife. The --4581 purpose is to form, in the absence of male descendants, a couple who are capable of giving worship to the > ancestors. In the light of this solution, which is in

61; Lustéguy--74 G-4 (1925-1932) 1935 - Vietnamese

769 a | so

178 perfect harmony with the ancient spirit of ancestor

oo 562 worship (79), the present-day Annamite system seems , 428 79. The conjugal couple. --It would indeed - | 581 seem that according to the old tradition of | — worship, posthumous honors must be

, tendered to a couple of ancestors bya couple | of marriage partners. In ancestor worship,

the individual has value only as a member of © | . | a couple which constitutes unity in the _ family and in the ancestral religion. "Man

and wife", writes Granet {La Polygynie a

, sororale, p.60), "took part in a repast so a | composed as to symbolize the duality and

union of the conjugal couple. Through its | | effect, they became two united halves and |

like a single body". © | ae While a man and his wife are alive they © . form a single body and constitute the

conjugal couple ''worthy of the joint | |

- sacerdotalism" (op. cit., p.61). When dead they form the ancestral couple: "The wife

is to so great an extent associated with the i

_ worship power of the husband and destined

| - to form with him a couple of ancestors, that | the attempt to establish the custom of _ | sacrificing her at the death of the husband,

, in spite of human morality, is evident. She , . - - must in all eventualities remain a widow,

| and the levirate is prohibited. '"' (Op. cit., | | p. 86, XIX, and,Le-Ky, I, p.226). Thus is seen the absolute necessity of

Oo marriage. Man alone is incapable of

| | guaranteeing the performance of worship.

The presence of the wife, an indispensable

auxiliary, is essential. (M. Granet, La _ Religion des Chinois, p. 86). The head of a

, - cult, states the Le-Ky, has absolute need, ,

in order to exercise his ministry, of the ! , , collaboration of a wife who will preside at his side in the worship ceremonies. «© | _(Couvreur, Le-Ky, p. 408). See also M. © ,

| - Granet, La Civilisation Chinoise, p. 387. | | 7 Granet emphasizes this ideain La © Polygynie sororale, p.59. "Marriage has

, 61; Lustéguy--75 G-4 | (1925-1932) 1935 Vietnamese , 178 as its purpose not so much enabling the

562 race to perpetuate itself as furnishing the , 428 the ancestor worship service. When one |

: 769 husband an indispensable collaborator in | |

| «581 takes a wife, one is authorized to ask a | family to give one of its children by the | great necessity of having a collaborator

| in the ministry. When one repudiates a , , wife, one endeavors to obtain her return

7 to her own family by using as a pretext ,

, one's incapacity to collaborate with her >

in the sacerdotal offices. "' a , .

| Collaboration of the wife is indispensable

- by reason of the disposition on the altar ,

oe of the ancestors' tablets (in the order called tchao-mou) classified not with

regard to the opposition of the sexes, |

| but by alternate generations (M. Granet,

| La Religion des Chinois, p, 87), that of ~

|a, ,the father and great-grandfather onand one- ~~ side, and that of the grandfather . - great-great-grandfather on the other. os - _ With the relatives divided into two | groups, the head of the family cannot

give worship to all the ancestors by a himself. He can address posthumous , honors onty 40 his grandfather and great- | | great-grandfathe r, forhe is onthe same /

, :SO side of the same group of relatives as | they are. (M. Granet,. La Polygynie 7 , sororale, p.62). Granet adds; "If his

| ‘marriage is anormal one andhis wife ; is the daughter of his father's sister, ,

, this wife (who necessarily belongs to the ~ |

: same group as her maternal uncle, that , is to say her father-in-law) is perfectly | “qualified to minister to the cult of the © , _ father and great-grandfather. And it may be . 7 seen that sacerdotal collaboration on the __ _ part of the married couple is in effect |

, | obligatory because it is derived, as in the tradition preserved by the Chinese authors, , , , from the ancient rules relative to exogamy, themselves consequences of the rule | ! 7

enforcing the separation of the sexes.'' The —

presence of the wife is necessary to complete

61; Lustéguy--76 | G-4 (1925-1932) 1935 | Vietnamese |

178 the unity of the worship couple. A wife who, , : 769 sacrifice, comes and helps him. She is 7

562 like her husband, "has prepared herself for

428 qualified to celebrate the cult of a female | 581 ancestor who, like herself, was annexed —

to the family as a daughter-in-law. '"' (M. | . Granet, La Civilisation Chinoise, p. 397). , Doubtless it would be imprudent,

without further proofs, to draw any |

: oe - conclusions regarding Annam from what , happened in ancient. China, ‘in spite of the

- close relation of the Upper-Tonkinese with

- VIII, p. 362). , |

the Chinese (Cf. L.C.Bonifacy, B.e.f.e.0.5

_ Nevertheless, we are obliged to note

that in Annamite ancestor worship the head of the family does not render the posthumous

| honors all by himself. His wife is a precious auxiliary. She prepares the offerings and takes care of the details of the ceremony.

, _ At the moment of the invocation, she often

: places herself on the same level as her , husband and performs prosternations like

, him. In sum, she has an active share in the

| cult. See L. Cadiéré, La Famille et la

oe, Religion, ‘in Bull. A.V. Hue, 1930, p. 394. doubly [58] inept. Worship is tendered during the first - generation by a daughter when there is no son. In the following generation, a grandson tendering worship to

his grandfather no longer bears the same ho as his

, ancestor. This anomaly became inevitable [59] the day when custom lost sight of the fact that the essential was | | _ to constitute a ministering couple and began asking instead whether girls were eligible to give worship and benefit from the huong-hoa. One might think that this propensity

| to puzzle over feminine capacity or incapacity is the __ og, result of a mistake on the part of contemporary Annamites who have become impregnated with Occidental

individualism (80), but this is not at all the case. They |

80. A few authors have indeed proffered the , opinion, which is plausible in a few cases

, from other points of view, that Western individualism has destroyed certain |

| Annamite institutions, for example that of ©

61: Lusteguy--77 G-4 (1925-1932) 1935 Vietnamese

78 collective property. (C. Briffaut, Etude a $62 sur les Biens cultuels, pp. 154 ff.) — | , ‘428 have envisaged the problem in this way for a long time.

| -. 581 [60--blank page] [61] ee | —

Chapter TO | en Se (continued) ,

| : DEVOLUTION OF THE HUONG-HOA |

a (Legislation of the Lé)

769 In support of the double thesis of the religious capability 613 of daughters to give worship to their dead relatives and--

, 428 a civil consequence of this religious capability--to become

-'78 beneficiaries of the huong-hoa [family worship property-- | 562 Analyst], it has been stressed that according to the ancient -Annamite custom sanctioned by the Code of the Lé a

| _daughter became worship heiress when there was no son | and then enjoyed the benefits of the huong-hoa.(1) [62] |

| 1. It would seem.-that the historical

| argument might well be turned against _ oO

the thesis it serves to defend if, on the | | | | _ other hand, it is true that today, ast”

_ Opinion 310 affirms, apart from rare , , exceptions, daughters are not beneficiaries |

| of ‘the_.huong-hoa, ‘for law and custom , ‘deem'them incapable of ministering to the cult. It follows from a comparison | |

_ of the ancient fact with the present-day | ss custom that the old custom cited is in | _

, — the process of disappearing. If a change

is taking place in the mores, why try to _ |

| ss withstand it? But it may then be asked _ | _ whether it is indeed true that daughters | | are today only rarely beneficiaries of 7

me - the huong-hoa and in an exceptional way.

_.. Tran-van-Lieu holds a diametrically | |

, } opposed view. He has written in his oo _ thes#s Les substitutions fidéicommissaires

(p..6 8) : "In practice, when the father of :

a family has only daughters for posterity, 7 | he almost always bequeaths to them his

estate and the huong-hoa. He has recourse | to adoption of a posterity as prescribed by

| $1: Lustéguy--78 © G-4 | (1925-1932) 1935 Vietnamese . 769 _ law only when he has no children. " -

$13 For similar views, see: L. Cadiére, => oe |

| _ 428 La Famille Annamite (Bull. A.V: Hué, ae - a ns Wo: pp. 394-398); E. Tavernier, inC.R. de re | — §62 | Duong-tan-Tai (Bull. de l'Ens. Mut. du st Tonkin, pp. 104-166); Ng.v.T6, in OB

Questions Droit coutumier annamite, a , _oo‘pp. 5 and ll;deLe-van-H6, inLa Mérede

|7:a |~.famille annamite, pp.20 ff. | Such divergent opinions on the present- me day custom make it necessary tohave _ . on

OS | recourse to statistical investigations. Itis . | ts give a solid basis to those affirmations —_—/

a me evident that in seeking by this method to |

re judged true one would necessarily be led | , oo _ to draw fine distinctions and to specify, | | | | oo | ' for example, the social class, the urban 7: ne or rural milieu in which the exceptional Oo | | _ fact is found, or again to distinguish the | Se dispositions made by the father according

_ to whether he is or is not the worship heir. - Indeed if one returns to the edict of the L@ of 1471, Art. 7 a 89 (2), one may read; "As concerns the administration ,

| oe 2. Edict.of the second year Hong-Duc.

a | Trans. by Deloustal, La Justice / BS : , dans l'ancien Annam (B.e.f.e.0., , a —. ss and safekeeping of the huong-hoa, when there is no elder

| | _ ss son (3) the elder daughter shall be employed (4) to take | CS

- | 3. On. _the meaning attributed in the time | | | of.the Lé to the term dich-tu (principal son), _oe| see Deloustal (B.e.f.e.0., 1911, p.54) who | | | reproduces a passage from.the Thiéu chinh © | |

, _thu according to which the sovereign ordered oe a | an inquiry concerning the rule obligating the Oo

| _, designation of the dich-tu. , '

Be .4, Italics mine. : en i , | _ care of the sacrifices. After she has had the enjoyment of

~~ the huong-hoa during her lifetime for her own.maintenance,

: it shall return to the relatives who shall administer |...

61; Lusteguy--79 © G-4 (1925-1932) 1935 Vietnamese

178 a

769 and keep it according to law.'' The clause ''vo-truong nam 613 dung truong nu thau-tu''--in the absence of an elder son, © 428 to employ the elder daughter to present offerings (5)--

562 5. Nguyen-van-T6 quotes this text and compares it with an old Sino-Annamite adage: 'Vo nam dung nf" (without a boy |

, one employs girls). He adds that, according to one view, the adage has its origin in the : law of Hong-Duc. This supposition cannot , be confirmed, for, ''born a short while ago,

, a Annamite folklore has not come out of the - groping period for good and all..." | , Questions de Droit coutumier annamite, p. 5.

: leaves no doubt relative to the religious capability of the , oe elder daughter to serve as substitute for an elder son. : , _ This substitution operates, however, under special a

, -. conditions. The text deals with the administration and . safekeeping of the portion of incense. (6) We shall see

Oo : 6. See alsoC.L., Art. 390: ''When there

a is a male child in the family, the administration , Bo and culckeeping of the huong-hoa property oo 7 shall be bequeathed to him. When there is no , ' , | male child, the keeping of these goods shall

be entrusted to the eldest daughter. It shall be , , a _ allowed to take the twentieth part of all lands

| - portion." —/a | D. Second year. Quang-Thiéu, 1517.

a and ricefields to constitute the huong-hoa

| pp. 500-505. | | _ Trans. Deloustal, B.e.f.e.o., 1910,

. that in another article treating of the creation of a huonghoa for the worship of parents who have had only daughters the dispositions prescribed are entirely different. Here, after the death of the eldest daughter, the huong-hoa

returns to the relatives (7) who administer and keep it in . 7. This is the word tong which Deloustal .

translates as relatives. |

accordance with the law.

, Another text (8) of the same date provides that 'when | 8. Law of the 2nd year Hong-Duc, Art. 14,

61; Lusteguy--80 G-4 (1925-1932) 1935 Vietnamese ae 769 in the Thiéu-chinh-thu. (B.e.f.e.0., 191, 178 an elder son has no male descendant, he shall enjoy [63] - 562 for his lifetime the benefits of the huong-hoa property for | his own maintenance, but at his death this property shall return to the younger sons. (9) If the younger sons have

9. Whereas one might expect the nephews, |

. ss according to the system of the Committee. | | no male descendants, the administration and keeping of the huong-hoa properties shall devolve (upon their death)

on the relatives." (10) a mo

10. Italics mine. : By the terms of the above articles, the. worship property .

_ which must finally return to the t6ng is no other than the

, - huong-hoa formerly created for the worship of an:ancestor-. or else the group of (11) huong-hoa--whose male ‘posterity

a ‘LL. Deloustal translated by the plural. , has died out (12) or is on the point of dying out. The .

«12, Edict of the Lé, 141, Art.89 (B.e.f.e.0.,

a 1911, p. 59). ee

absence of male descendants cannot prevent this property from returning to the relatives as a group. In the meantime, to be sure, enjoyment of the property will necessarily be allowed the last male descendants {13)

: : , , I3. Eldest first, then younger. , , during their lifetime, and even the eldest. daughter.

_-—s He who appears here as being without a'son is a living _ person. It would seem that, by the very fact that he has no _ male descendant, he does not hold the huong-hoa.in as : _ legitimate amanner as if he had one. The lack of male posterity seems to make itself felt from the very moment when he inherits the worship privilege, and not only at his _ death when the question of his own succession is raised.

61: Lustéguy - -81 G-4 (1925-1932) 1935 Vietnamese | 613. In ancient ancestor worship in China, it was necessary 428 for the deceased to be represented effectively at the time 769 of the worship ceremonies by a person who tasted the 562 offerings. (14) The deceased's representative was

| 14. Compare M. Granet, La Religion des , Chinois (pp. 83, 84): 'The communication with an ancestor which crowned the ,

, illumination produced by the ascetic , oo observances of the retreat was completed | by the communion-like effect of a repast |

which the pious son served his ancestor,

a which the latter consumed and of which , the son ate the remains. All this was done a in the most real fashion. The dead person |

- hada representative who ate and drank | for him... The representative was

supposed to be chosen from among the relatives. He even had obligatorily to be a grandson of the dead person, or failing _ this a relative of the deceased belonging

to the generation of his grandson... |

| Thus took place, from father to son, but | by the intermediary of the grandson, the ,

- transmission of the sacra. '' , . See the same author, La Civilisation

oe, Chinoise, pp. 367 ff. | supposed to be his grandson (15) or, failing this, a relative 15. Worship could thus be performed

7 perfectly only by a household including | ,

a male child. | | |

_ belonging [64] to the generation of the grandsons. It is perhaps for reasons of this order that the legislator of the L@é made special provisions for cases where the huonghoa devolved ona descendant without male posterity. The worship endowment had to pass to the younger brothers,

then to the sons of these latter, if there were any, other- |

_ wise the property returned to the relatives as a group.

_ Whereas in the system arising from -the Opinions of the |

- Committee [on Jurisprudence----Analyst] the question of the transmission of the huong-hoa is raised at the same _

time as the creation of a huong-hoa for the worship of ,

61; Lustéguy--82 G-4 (1925-1932) 1935 Vietnamese 613 parents dying without male posterity, the Code of the Le

428 distinguishes the one from the other. The case of the man >

, 769 who is himself a worship heir is thereby split. By the fact | 562 that the ancestors! huong-hoa devolves upon a younger

mere head of a gia. | These provisions may be interpreted by noting that the

brother, the succession of the eldest becomes that of a

| huong-hoa of the ancestors of the head of a cult without | male posterity will go to the téng, if his brothers are in

| « the same position. The extinction of the male line of

descent wouldthus have as a consequence the incorporation ; of the worship endowment in the déng-t6ng [i.e., fund set _ - aside for worship of ancestors more than five generations _ removed----Analyst], even though five generations had not

passed from the time of the founding of the huong-hoa. To | be sure, besides the fact that it would first pass from

, brother to brother (16), the eldest sister should be allowed 16. One of the reasons for this is that there |

_is a good chance of finding a male heir. .

428 , : , (B.e.f.e.0., 1911, p.60). — |

to enjoy the property during her lifetime. .

613 A later edict (17) contains an article only one part of oo

769 17. 25th year Hong-duc, Art. 18 |

which was reproduced by the Code of the Lé (18): 'When 18. Art. 398. Trans. Deloustal | (B.e.f.e.0.,1910, pp.504-505). | |

itisa question of a huong-hoa [family worship property-. Analyst] coming from a great-great-grandfather, that is

- to say from a fifth generation ancestor in direct line, since sentiments of affection and of gratitude which we owe our ancestors cease there where the obligation of wearing mourning ceases, the relatives shall not in this

- case divide the portion of land constituting the huong-hoa _ in order to avoid the deplorable disadvantages which result | from the tangled claims." [65] The edict further contained

, _the following provisions: "If the posterity of the person ~—| | in whose name the huong-hoa has been created should die out before the fifth generation has been reached, it will be possible to designate as its son a child of some other

61; Lusteguy - -83 G-4 (1925-1932) 1935 Vietnamese

- 613 family group (tong) in order to offer up the worship , 428 sacrifices. If this child does not consent to fulfilling the | 769 office of son, he must not inconsiderately claim the property (huong-hoa). The ricefields of this huong-hoa shall then be transformed into Buddhist religious property (19) of the native village of the aforesaid person

19. Cf. A.324, Sect.2. 'The phat tu dién are real estate designated for the maintenance of the Buddhist cult celebrated in the pagodas

7 (chua). They are either communal goods when the pagoda to which they are attached belongs

; to the communal domain, or else private property if the pagoda has been founded by individuals who have not renounced their right of proprietorship in favor of the |

| pp- 88-93. ,

village..."' See also D. t. Tai, op. cit.,

to serve to assure him worship at the pagoda where he |

shall be offered sacrifices according to Buddhist rite on the first and fifteenth days of each month. Those disobeying these provisions shall be punished in accordance with

the law. '' The huong-hoa thus becomes, after five

generations, a common dong-téng property.

| 562 When the posterity dies out before the fifth generation, 613 two solutions are envisaged: | 769 1. The worship property becomes a common déng-tdéng 428 fund [i.e., fund set aside for worship of ancestors more. | than five generations removed] when each male and eldest daughter of the last generation have successively enjoyed - it and carried on the worship ceremonies. 2. The last holder of the huong-hoa [family worship property----Analyst] may designate as posterity, to _

take the place of a son, a relative from another branch.

In case an agnate cousin of a. lower generation should refuse the office when offered, not only would he insult | whoever chose him, but he would also destroy the

| solidarity of the téng-tOc relatives [those worshipping the , ' game ancestors, ‘and having the same ho or family name--. | Analyst]. In such a case, the law provides, asa penalty, that the agnate who has refused may not afterwards claim the huong-hoa. It further determines that worship of the ancestors thus scorned shall be assured by the pagoda of

- endowment. , |

| the native village, the huong-hoa becoming a hau

61: Lustéguy - -84 G-4- (1925-1932) 1935 Vietnamese 562 +#«&It follows from this group of provisions, applicable in

613 the case of a worship heir without male posterity, that the 769 rdle [66] of women is inconsiderable. The daughter here

428 referred to is no other than the eldest sister ofa ,

generation without males. (20) By the fact that in sucha 20. See B.e.f.e.0.,191l,p.124. ''When an >

eldest son has no male descendants..."

case the huong-hoa passes in turn from the eldest to the younger brothers, all without sons (21), it is a foregone

2l. It would seem that under these conditions ,

unless there is a grandson of the deceased, the huong-hoa does not completely fulfill

its worship function. '

| conclusion that the eldest sister will enjoy this property

in her turn. It may be imagined that in the last analysis she will not perform the offices of worship any less perfectly than her brothers. Doubtless the worship devolution would reassume its normal course if one of the sons called to the succession were to become the father of a male child. But whether or not these sons have daughters is of no importance. Similarly, no change would occur if the eldest sister gave birth to boys, for she is

not regarded, in the present case, as a married woman, | |

but only in the capacity of eldest sister.

What happens, on the other hand, to the worship of a deceased who has had only daughters? We shall not here be preoccupied with learning whether the de cuius was a

worship heir, since the fate of the huong-hoa [family | ,

| wor ship property----Analyst] which he held is determined | by the rule mentioned above. The question now presents

itself as though only an ordinary gia-truong [head of a | household----Analyst] were involved. The general rule ,

: promulgated by the law of the Lé is as follows: "Art. 387. | , (22)--When a father and mother both die (23) leaving | 22. These articles are those of the , _ complementary decrees of the huong~hoa.

a Art. 387 is a decree on the second year _ | Quang Thuan (1461). Trans. R. Deloustal,

in La Justice dans l'Ancien Annam _

(B.e. f. e. 0. , 1910, p. 500). | : , |

, 23. Case of decease intestate. ,

oly Lusteguy--6" G-4 (1925-1932) 1935 Vietnamese 562 ricefields and lands for the disposition of which they have

613 not had time to transmit their last wishes by a will, if the 769 brothers and sisters proceed to a division among them| - 428 selves, they must (24) [67] reserve the twentieth part (25) 24, Italics mine. 25. Huong-Hoa Proportion. --Apparently

. the Annamites have always considered the | legal proportion of one-twentieth as a bare

minimum. J.B. Luro (Cours d'administration, 9th Lesson) understood it thus when he assimilated the huong-hoa portion to the lawful share in a succession. Jurisprudence, adopting the opinion of the author, has nevertheless judged that the huong-hoa may - generally not exceed the sum of a lawful

| share in a succession (arr. C. A. Saigon of 10-6-1913 and 5-7-1914; J. J. , 1915, pp. 62 and 297), , In fact, the proportion devoted to

worship property depends on the importance

| of the patrimony and of the worship obligations. It is about equal to the portion of a child,

higher if the expenses of worship are high, , lower in the opposite case. (A. 282).

Fixed by the testator, the proportion

is respected by the heirs, who may

nevertheless, in certain cases, have it modified by the family assembly (A. 283).

, of this property for the creation of a huong-hoa designed

to assure the worship of their parents. This share shall be | confided to the eldest son who shall have its administration and keeping. They shall divide the remainder. Children of wives of the second degree and of lower degree shall

, receive the share of a child of a principal wife diminished

, in just proportions. When confronted by formal instructions on the part of the parents or of a will, procedure shall be _

26, Italics mine. This doubtless refers to rules drawn up by the parents.

61: Lustéguy--86 G-4 © (1925-1932) 1935 © Vietnamese

428 these provisions shall lose their share in the succession." 613 The next article (388) specifies the order of devolution = 769 of the huong-hoa: dichstu [principal son, the worship =

(562_heir----Analysiigiiaain (pipinelpel ofsecond fue principal son----Analyst], younger brother, son of asop. wife of =

27. Art. 388: In all families, those of

dignitaries agd mandarins as wellas ; : simple indiyiduals, one must not, aS concerns songand grandsons called -

i upon to assure the worship of the = oo . ancestors, egnside rtheirage _ Oo ponder the situation, but nor observe thea

- conse casera reupotitheveldest She tion unt re = _ devolve soneee in direct

line (dich-=tu)y If the son indirect line Oo

| is dead, the ‘@ldest grandson shall be = _ chosen. In cagé.there'isno grandson = |

in direct lingy.@:younger-son shall be chosen. Ifthe principal wife has | | _ no childrenyi@ gifted son ofa wife of invalid or decreed unw orthy an a | - -

incapable of @ffering worship, the =

mandarin ofitp¢locality shallbe7 | : |informed and @hother sonore grandson sh@flibe chosen. The s——s—‘“‘—s—S

members of the family shall be | admitted to denounce those who act = = © in contravenfion:to thése provisions —-. 7 |

Throne. Couples shall be judged st a guilty of an @utrage to filial piety and | | ss lack of concord through infraction of the ritual laws or failure to observe Be 1511. Trans. by Deloustal, B.e.f.e.0., Article 392, covering the case where the dich-tuhas

61: Lustégsuy--€. G-6 (1925-1932) 1935 Vietnamese 428 only a [S&] daughter, provides as follows: "Art, 392, -613 When a father has had by his first wife a male child to 769 whom has been given the administration and keeping of

562 the huong-hoa property, and when this child of the first , |

wife has given birth only to a daughter, if it should | happen that the father, having married a concubine or a

slave, has of her an invalid male child and that this son , should give birth to a grandson, the lands and ricefields constituting the huong-hoa shall be bestowed on this ,

_ grandson (28) born to the invalid child, in order to stress |

, of the dich-tu. , 28. (Italics mine) and not to the daughter

the principle (29) that the family line must never die out."

29, (Italics mine) that is to say , |

, perpetuation of the ho.

Article 394 deals with the case where, when the family

| finally produces nothing but daughters, the huong-hoa |

| [family worship property----Analyst] must return to the

daughter born of the eldest son: ''When a father and mother have given birth to two male children, an elder son who has engendered only a daughter (30) and a younger

30. Italics mine. |

son having engendered a male child on whom the huonghoa portion devolves, then if the male child of the second

son gives birth only to a daughter, the huong-hoa in question must be returned to the daughter (31) born to the

| 31. This daughter bears the ancestor's ho.

It is not stated what will happen after her. The case also enters the jurisdiction of Art. 22 of the edict of 1494, to be studied below. elder son." (32) 32. Art. 395 cites a case of rivalry between

the purely female offspring of the elder son

, latter are the victors. | and the male children of the younger. The

"Art. 395, --Given that Pham-Giap has engendered an elder son, Pham-At, and a second son, Pham-Binh, and has designated two mau of lands and ricefields

61; Lustéguy--88 G-4 = (1925-1932) 1935 Vietnamese

428 for the creation of a huong-hoa the

613 — _ administration of which he has granted

769 to his elder son, Pham-At; if Pham-At ' 562 should at a given moment incorporate : oe these two m&u of ricefields intohis own | , lands and divide up the whole of his lands |

| , | between his children, reserving (of the ©

, former huong -hoa) only five sAo which

he leaves to his sons to ‘serve as huong-hoa,

, : and if it should then happen that the children oe of Pham-At should bring forth only daughters and the younger son of Pham- _ . - - Binh has male children and grandchildren, , | ae then the five sao of ricefields representing

To the present huong-hoa portion must devolve

, - | on the male children and grandchildren of Pham -Binh. They may not, on the pretext | that the huong-hoa portion originally left :

oo by the grandfather was two mau large, | :

, demand the additional amount and initiate __ , a claims.'' Trans. Deloustal, B.e. f. €.0.,.

a | 1910, pp. 500-505. — SF |

Article 396 cites an example of return of the huong-hoa from.a younger daughter to a granddaughter whose father , was an elder son prematurely [69] deceased. (33) But it is

33. "Art. 396.--A grandfather Tran-Giap |

, | has two children, boy and girl, an elder — son Tran-At, father of a daughter Tran- |

| , If,

| - thi-Dinh; and a daughter Tran-thi-Binh. a as a consequence of the premature | : death of Tran-At, father of Tran-thi-Dinh, , Oe and of the extreme youth of the latter, the grandfather Tran-Giap bequeathes the |

administration and keeping of that portion of lands and ricefields designated as huong-

| hoa to his daughter Tran-thi-Binh, oo _. nevertheless at the latter's death the lands } | and ricefields constituting the huong-hoa __ | | must be returned to Tran-thi-Dinh, _ daughter of the elder son Tran-At."'

| Trans. Deloustal, B.e.f.e.0., |

| 1910, pp. 500-505. ee :

61: Lustéguy--89 G-4 (1925-1932) 1935 Vietnamese . 428 Article 22 of an edict of 1494 (34) which contains the most —© 613

769 34, B.e.f.e.0.,1911, p.58. This article, ©

562 which illustrates by an example a case of | , devolution on the eldest daughter by

following the huong-hoa down to the second ,

generation, has not been incorporated in the Code of the Lé in the strict sense.

detailed explanation of the order of devolution by daughters. A father, Nguyén Giap, has only daughters, in the number of three, Nguyén thi At, Nguyen thi Binh, Nguyén

thi Dinh. A huong-hoa is set up and entrusted for ,

administration and safekeeping to the eldest daughter. This latter has a son, Tran Mau. At the death of his mother,

he may not inherit (35) tne huong-hoa. The younger sister | 35. Because he is not named Nguyen like his grandfather and his mother.

thi Binh will inherit it, then thi Dinh. But at the death of thi Dinh the huong-hoa will nevertheless return to Tran Mau, despite the difference in ho [family name---Analyst]. Still, Tran Mau will not pass it on to his own | sons, but rather to his uterine cousin Pham Canh, a male born of Nguyén thi Dinh. (36)

36, In this particular case the second daughter thi Binh has a daughter, but this latter would seem to be excluded, unless she receives the huong-hoa

, after her cousins. a

This order, says the text, ''clearly shows the degree of : kinship of each person", just as Article 392 of the code |

out'', (37) ,

"stresses the principle that a family line must never die , , 37. See above, p. 68.

, When one can no longer "stress'' the principle of descent

by fixing the huong-hoa [family worship property--Analyst] in a line of descent bearing the name of the deceased, one ~

contents oneself with stressing the degree of relationship. , Then transmission of the huong-hoa by turns is the rule.

This peculiarity suggests that in the legislation of the

, 61; Lusteguy--90 G-4 (1925-1932) 1935 Vietnamese 428 Le the expression huong-hoa is to be taken in the modern | _ ~ +613 Sense as long as the principle of descent is stressed. [70] | 769 But, in the second case, it applies to property which is

Analyst]. (38) : | ; 38. We have seen that the ky-dién does ; 562 more in the nature of a ky-di€n [ricefields whose revenues are used for celebrations of anniversaries of deaths----

not rightly pass to one single person, like the huong-hoa, but passes in turn

7 an _ (lu€@n-phién) to all the members of the |

a given family group (A.323). = |. . + ‘It is thus through the intermediary of the daughters that

| . one returns to the male descendants. But since these

latter do not bear the same ho as the relatives to whose

worship the huong-hoa is dedicated, this property will | . remain a rotating fund. (39) 39. There is one important difference in

this connection between the legislation of |

oo the L@ and Article 406 of the new Tonkinese . Civil Code which provides that: 'When the oo. _ deceased was the eldest son of the direct —

branch and therefore worship heir, the __

a beneficiary of the huong-hoa is necessarily

| amale. If the deceased was a younger son. and not worship heir, his eldest daughter,

- when there are no male descendants, may |

-. be designated beneficiary of the huong-hoa devoted to his own worship. In such a case,

: at the death of the beneficiary the huong-hoa | , | devolves on the eldest son of the daughter or,

| when there is none, on the eldest grandson..." | | G.C.T.,406; J.O.1.C. of 4-24-1931, p..1392. | ~ ‘To be sure, a daughter considered as such indeed : transmits to her son a certain right over the huong-hoa, _ but this right cannot be identified with the right of a true. worship heir. It grows difficult, under such conditions,

, , to consider the daughter a worship heiress in the fullest

, extent. Article 406 of the new Tonkinese Code in the last : : -- analysis has worship tendered by descendants bearing a

different ho from that of the ancestor. > |

61; Lustéguy--91 G-4 (1925-1932) 1935 Vietnamese ce 428 It would seem that even worship when offered by a son 613 in direct line who has no male children, and in every case 769 by daughters or their descendants, must be distinguished __ 562 from the kind of worship to which the huong-hoa [family

worship property----Analyst] is normally devoted. A ,

discrimination must be made. Such a huong-hoa may be . compared with the "worship obligations" (40) incumbent — 40. A.323, Sect. 2.

on relatives of the same generation in turn. The latter, : | .even when married, share in the rotation only in an 7

having no importance. . , a a We have further seen that the creation of a huong-hoa , : individual capacity, the person of their wife or husband

is not exclusive of other endowments in the same family.

, - Thus ky-dién or hau-dién [ricefields whose revenues are _

used to celebrate the worship of the founder who usually | |

has no posterity----Analyst] may coexist with a huong-

hoa. This latter, whose importance places it at the , highest level (41), devolves on the heir who gives worship.

| 41. The huong-hoa is of the first importance. .

"In the first place", says Opinion 278, ''the house of worship; in the second place, the _ huong-hoa; if the succession is still richer,

a ky-dién is added...'! ee | The [71] ky-dién, which may be superposed on a huong-hoa, falls to each of the concerned relatives in turn, who use its revenues for participation in the worship.

| - It is precisely because daughters have the ré6le of

participants (42) that the huong-hoa, when it devolves on ,

_ 42. Participants in worship (see p. 77-N) | as well as participants in worship property.

, them, takes the character of a rotating fund. It then

approaches the lud€n-phién method freely agreed on by , children of both sexes. In this case, celebration of the ancestor worship occasions rivalry in expenditures. (43)

- with lua@an-phién. ,

| 43. See above, p.49 (N.) in connection | |

61; Lustéguy- -92 G-4 (1925-1932) 1935 . Vietnamese | 428 This is, it would seem, a survival of ancient customs

613 where worship, tendered by a gathering of relatives, had a

769 not yet attained the degree of organization and § _.. , 562 regimentation found with the group of agnates. - , | It cannot be said that the legislation of the Lé affords a decisive proof in favor of the thesis according to which | woman has the same capability as man for giving worship to the ancestors and should in consequence be accorded identical rights over worship property. The dispositions - of the L@ rather afford an opportunity to note the particular fashion in which the huong-hoa [family worship

. property----Analyst] is transmitted when there are no

oe sons and daughters come into the picture. Ordinarily, on | - the contrary, the huong-hoa passes to a younger son only if the elder has neither sons nor grandsons: A daughter, - moreover, does not transmit it toher son, but instead to

her younger sisters in succession, in the order of their

, birth. When this generation is exhausted, it passes to the

men of the following generation, first the son of the eldest

daughter and, at his death, the son ofhis mother's |

_ This younger sister... os | ee mode af devolution recalls the method of rotation,

luan-phién, by which the ky-dién passes from one person

- to another. There is, to be sure, one difference; this , worship property changes hands periodically, and not only at the death of the titular holder. In spite of this distinction, one may compare it with the huong-hoa which, according to the law of the Lé, maternal cousins [72] successively received and which was set aside for the worship of their maternal grandfather. Today, in fact, a worship endow ment so designated would be a ky-dién--this is the case |

| for the endowment set aside for maternal parents. (44) It |

44. A.292. -=-"Generally a huong-hoa is not |

created for maternal parents, but it is a customary to create a ky-dién for their worship. "'

may well be that the peculiar characteristics which are

often pointed out in the legislation of the L€ as significant , of ancient Annamite customs stem in part froman _

imprecise use of the expression huong -hoa. (45). , | 45. The expression of ''portion of fire

. and incense"certain indeed suffers froma , imprecision, as we have seen p. 42.

61: Lusteguy--93 G-4 (1925-1932) 1935 Vietnamese 428 On the other hand, the huong-hoa during the first five 613 generations and the ky-dién partially duplicate each other 769 in that both serve to celebrate the anniversary of a given 562 ancestor's death. (46) The ky-di€n should especially be

, 46. See A. 278. devoted to this celebration--ky in fact signifies anniversary

, of the parents' death. It is not altogether impossible that daughters, by creating a huong-hoa which was in reality a ky-dién, in fact became responsible only for the cult of

~ an anniversary. This cult indeed has a funereal, negative 7

character (47) and is supposed to cease at the fifth . 47. Ky also means: to abstain, to fear. generation. [73]

Chapter III

DAUGHTER-IN-LAW, WIDOW, ELDEST DAUGHTER

L21 It would be a vain enterprise to attempt to demonstrate , 562 the legal capacity of Annamite woman, and her eventual equality with man, by considering only the cases where she intervenes alone, in the absence of a qualified male. On the other hand, a systematic parallel between representatives of the two sexes would lead only to contradictory remarks. The facts to be stressed in order to establish either the inferiority of woman or ‘on the importance of her réle have a precise relevance only

insofar as they are presented in the whole and the system , of which they are a part in real life. To limit ourselves _

-—s« to reality, therefore, it may be said that the status of the Annamite woman changes considerably according as she is a daughter-in-law, widow, or daughter.

596 |

5 81 I -- The Daughter-in-Law

884 Marriage is an essential condition of legal civil

421 capacity. for those who, in the Annamite family, are tu- , t6n (tseu-souen), that is to say children and grandchildren | of both sexes. The tu-tén living with their parents and

grandparents are strictly dependent on the head of the 7

family. They possess nothing of their own, and are obliged, for example, to yield the fruits of their labor up

596 | | |

61; Lusteguy--94 G-4 (1925-1932) 1935 Vietnamese 581 to their parents. (1) Both majors and minors are subject ,

. 824 l. In fact, parents often abandon a part of © 7 , 421 these fruits to the children (A. 73). _ oe , to the authority of their [74] parents. They have a capacity , of their own only when married and authorized (2) to live

2. "Even though they live under the same roof"

| (as their parents) (A. 73). ,

| | 3. A. 74. , | - ina separate establishment. (3)

Three conditions must thus be satisfied before one can

, - possess personal property: to have reached a majority, ,

, _ to be married, and to be authorized by one's parents to | live in a separate establishment, The Committee [on | _ Jurisprudence----Analyst], however, speaks of "majors who have an establishment separate from that of their | _ parents (gia-that)..."' (4) It further says: "By the fact of

4. This expression, found in the Che-King, . literature, ~-has the sense of couple, ,

sw -one of the oldest monuments of Chinese

| "being man and wife". , | | - Opinion 38 notes the use of the term

chinh-that (principal house) to designate —> the apartment reserved for the principal wife, in opposition to thi€n-phong (or bién- _

phong) (annexed chambers or dw elling

reserved for wives of second degree). , | , The word chinh-that applies to the wife | herself; that of thu-that (secondary house) . serves to designate wives of second degree.

marriage, a young man constitutes a home gia-that | (kia-che)". Does marriage alone suffice to accord the

| capacity to possess, or are there married. children who are not authorized to live apart? And which ones? The

eldest? The status of majority might also be confused oo.

, with that of marriage. To be sure, the Committee | | distinguishes (5) between the age of assumption of the _ 5. A. 79. --This Opinion begins by noting

|

«B24 | a

61; Lusteguy--95 G-4 (1925-1932) 1935 Vietnamese

58l that custom does not fix the age of , - ,

| 596 - majority in a precise manner. , :

421 virile bonnet and of the head-pin (6) -- sixteen for girls 6. On majority in China, see Granet,

La Civilisation chinoise, pp. 385 ff. and 407. } and twenty for men -- and the majority of eighteen given , ; as being the civil majority for both sexes. (7) The

, 7, A. 79. --In reality, as this Opinion adds, "the young man begins to have rights and

, - duties in his village at the age of eighteen. . It is then that he takes part in communal

life and pays taxes. The notables do not

, let him reach this age without summoning , , him to bear the communal burdens of a night watches, forced labor, etc... The

young eighteen-year-old gains advantages , |

in return: participation in celebrations,

iis place marked on the communal mat, sharing in division of ricefields. "'

— 641 596 ,

581 investigators conclude by saying that ''the official age of 596 majority for boys may thus be considered as being fixed 884 at eighteen years. It may be admitted that unmarried 421 girls reach a majority at the same age. '"' (8)

| 8, Same Opinion. See above, p. 32.

421 oo , ,

581 =The Committee thus distinguishes (9) minors,

884 9. A. 74.

- » unmarried majors [75] living under the partiarchal roof, and majors having a separate establishment from that of

their parents (gia-that). The first, minors, do not in © ,

principle possess property of their own. The second, unmarried majors dwelling in the patriarchal house, have proprietorship over goods which their parents authorize them to possess. And finally the last, majors who are separated from their parents, have full capacity and may

have property rights over goods which they hold or | acquire and which are distinct from the family patrimony.

61; Lusteguy--96 | _G-4 (1925-1932) 1935 Vietnamese | | 581 Furthermore, it would appear that marriage confers | 596 what the Committee calls civil capacity to both marriage

| 884 partners simultaneously, that is to say, in the last — 421 analysis, to the couple or gia-that. "By the actof.. > | marriage, the young man constitutes a home gia-that and,

even if he lives under the patriarchal roof, he is legally .

capable and his wife is equally capable as concerns property of which she has the disposition by the consent

of her husband. '' (10) - | 10.. A. 75. --In spite of the independence of

the young household, the husband must . account to his parents, as the same Opinion

notes, for the acts of his wife, the parents , not being able "to intervene except by | , exercising their moral authority. "' | 591 .A daughter-in-law entering into a new familial group 586 has the same duties as her husband towards her in-laws. 606 She particularly owes them respect and obedience. (11) She

ll. A. 150, which notes that she "must supply ;

| . their needs in the absence of her husband. . tt

| ‘See also A. 62. oo |

_ is. subject, with respect to them, to the same mourning : regulations as her husband. An Annamite proverb says

OO that "the daughter-in-law is the daughter of the house."

(12) When the young husband continues to live with his |

oo - 12. A. 151. --"'The son-in-law is a stranger" :

adds this proverb, but popular wisdom.also _ maintains that "a good son-in-law is worth ,

more than.a bad son",

. parents, the latter regard-their daughter-in-law as their

| 'own daughter, and endeavor to correct the young wife's |

| faults. (13) [76] Oo - |

a «13. A. 168. --"If they do not succeed", adds | a

this Opinion, "they return her toher own _ , , oe parents, informing the latter of the reasons

. for her return." Buta daughter-in-law © , _ may no longer be repudiated, says Opinion Oo

| 173, 'when the bride no longer has a father. |

Sh Lusteguy--97 Cy-4 925-1932) 1935 Vietnamese 591 nor mother to receive her; when she has worn

586 _mourning for the husband's father or mother; 606 or when the husband, poor at the time of marriage, has since become wealthy. Good

a , morality has never condoned a husband's _

OO leaving his wife after he has become wealthy | in order to take another wife of a higher

condition, when he married the first wife _

os , while he was still poor...'' This indeed

. demonstrates how a marriage is consolidated

Lbs ; through the course of certain events, | particularly through acts in which the daughter -

: in-law fulfills her duty as daughter of her

: parents -in-law. ,

581 A girl who is to become a daughter-in-law is sometinies + 584 brought into the house of her future in-laws while stil’ 606 very young, a fact which leads the Committee [on Jurisprudence ----Analyst] to state (14) that "some pare. 14. A. 128, which first notes that ''custom

, © does not fix an age for marriage of either

: boy or girl... Parents hardly ever marry off their children before they have reached

the age of puberty, i.e. fifteen for boys and tweive or thirteen for girls. The age of eighteen for boys and sixteen for giris is even most often admitted to be the normal

| time for marriage. "' ,

marry off their children while still very young. Such precocious marriages are usually motivated by family alliances. (15) Another purpose is to adapt the young wife

15. See above, p. 33. | to the habits of her husband's family. Until the time |

, when the daughter-in-law is of age to consummate the

marriage, her mother-in-law treats her as a daughter

rather than a daughter-in-law." ,

A daughter-in-law is thus a girl of a strange family whom one endeavors progressively (16) to make a true

. 16. GCompare the analogous progression

of the Chinese wife, the daughter-in-law (fou)

61: Lustéguy--98 G-4 (1925-1932) 1935 Vietnamese _ | 581 whose intimacy with the husband becomes , 584 established only gradually and is complete

, , 606 only at the end of conjugal life (M. Granet, . | | La Civilisation chinoise, pp. 417-420). Oo ,

| daughter of the house. An important step in this moral , transformation is the moment when the daughter-in-law

wears mourning for her husband's parents.

562 | , 562 father at the side of his widowed mother, the eldest son 769 so succeeds only in his capacity as worship heir (91); in — 91. And even in this capacity the eldest

, son is under the guardianship of his mother. , all.other things, he will succeed at the same time as his

, wife after the death of his mother, i ,

The eldest son accedes to domestic power either after ,

his wife, in case his mother dies first, or at the same time as his wife in case his mother dies first. In the

_ first case, he becomes head of the family by replacing

his father at the side of his own wife. In the second case, - he is head of the family only in appearance until such

time as his wife takes her place beside him as a

7 - replacement for the deceased widow. |; | | _ - . 769 These different cases of cooperation--between husband 562 and wife, between father-in-law and daughter-in-law,

between widow and eldest son--should be noted if we wish to understand the r6le of woman in worship. This latter

duty, in effect, seems to require a college of officiants,

manand woman. | | ree

In the usual case, husband and wife stand on the same level before the altar. According to, Father Cadiére, the wife [92] aids the husband and prepares the offerings. She is a co-participant and up to a certain point, he says,

a co-officiant.(92) — / So

: - 92. See above, pp. 76-77. > | _ The widow, who is nevertheless the most powerful

| individual, could not do without the cooperation of an. , agnate male relative to pronounce the invocation (93) -

93. See above, p. 81. } .

| _ when her son is too young to do so. (94) | .

, | 94. See A. 44-47. | a

562 Can the eldest daughter, who seems to be the only one | ~- 769 able to ‘manage the household without the cooperation of

a male colleague, also officiate alone? — 3 _ The Gommittee [on Jurisprudence----Analyst] |

61; Lustéguy--123 G-4 (1925-1932) 1935 Vietnamese 562 furnishes no information regarding the place of daughters 769 in worship, but Father Cadiére indicates (95) that "in

95. Bull. A.V. Hue,1930, op. cit., p.396. certain regions the role of a daughter who has been

- declared guardian of worship property becomes of the utmost importance. She exercises the function of

; minister of worship, presiding over the offerings made to the dead during the funeral ceremonies and later on at the funeral tablet standing in front of all those present and prostrating herself at the head of them all. "(96) It would

, 96. Italics mine. | seem to result that the eldest daughter is perfectly able to perform worship and to tender it alone as officiant. Her case is thus a very particular one. But this fact should not be admitted without an adequate check.

, 772 In the measure in which worship of the ancestors is

812 represented as entirely moral and symbolic, the ritual 562 salutations appear as the essential act. A daughter may 769 then acquit herself as well as a son. At the same time, it will be admitted that the huong-hoa is an endowment designed to subsidize meetings taking place on occasions of worship, and it will be judged that a daughter should

receive this subsidy whenever she supports these expenditures. (97)

| 97. The expenses for anniversaries (beef, pork, chicken, incense, oil, votive papers,

| etc...) fixed by the parents at the time they | create a huong-hoa are borne, stipulates , Opinion 278 (al. 4), ''by the worship heirs,

even by girls. '' |

The huong-hoa nevertheless appears to be nothing else but the ancient te-dién described by the Kia-li. (98) It is

, 98. See above, pe 41. a , the field, [93] an ancestral heritage, which produces the

offerings (99) whose emanations K'i are so pleasing to the

99. Offerings of food should, in fact, ~—

61; Lustéguy--124 ._G-4 (1925-1932) 1935 = Vietnamese

772 come from the ancestral field--from the | 812 - one constituting the portion of incense

562 and fire. This was the case in Ancient , 769 China. M. Granet writes: 'Just as it | ,

. 7 (the victim) had to come from the | - ancestral field, so the representative a , (of the ancestor) had to be chosen from _

among the relatives. ''(La Religion des | Chinois, p. 83.) And elsewhere: "The. offerings were usually composed essentially of cooked meat, cereals and drinks. To be pleasing to the ancestors

everything had to come from the

“démestic field and be prepared by the

family." (Op. cit., p. 81.) ,

7 ancestors. They recognize them as they recognize the

| voice and breath, K'i, of their descendant. >

| _ Could a daughter pronounce the invocation? We have

found no evidence ta this effect. Doubtless it is reasonable to think that the ancestors would hear the voice of their daughter. But the K'i or breath is opposed to the blood as

- that which is masculine and celestial is opposed to that ,

which is feminine and terrestrial. (100) , 100. Kili. --If we refer to China, as seen by _M. Granet (La Pensée Chinoise, pp. 399-401), we see that ''the Chinese, in fact, oppose the

blood to the breath, the Houen tothe Po... | The Houen is the K'i (or breath), and the Kili ;

, is

are the influences and Exhalations. The Ro, , the blood, but it is also the Tsing, or , Essence, and the Tsing are the Emanations.

|

In fact, in the K'i and the Tsing, which oO , breath, which constitute life, we discover _ constitute beings...as in the blood and

_ complex couples... The Houen and Poare ©

, - not two souls, one material and one , . spiritual, but rather the names given to two kinds of life principles, one of which comes from the Blood and all the humours of the

body, the other from the Breath and all the exhalations of the organism. The first kind |

; , are yang, for the father furnishes breath and | , | one's name, the second are yin, for the mother

61; Lustéguy--125 G-4 (1925-1932) 1935 - Vietnamese

772 furnishes blood and nourishment. The latter 812 , are connected with the Earth which bears and

~—562 nourishes, the former with Heaven which 769 embraces, warms and toward which the warm smoke of offerings is exhaled...'"'

, ~ It follows from these extracts that while , the mother furnishes. blood and is thus akin | to the nourishing Earth, the father possesses

breath, K'i, which "takes its flight toward the |

All-high there to shine" (op. cit., p. 399). ,

The invocation addressed to the ancestors

, at the time of worship also takes its flight toward Heaven, and it is perhaps necessary _ : , to have breath, or Kti, in order for the invocation to reach the ancestors. Note. --Since the Gommittee gave scarcely any information on worship itself (as was evidently not its purpose),

| | we have not deemed it fitting to study the , huong-hoa from the religious point of view. 769 According to the custom followed in Upper Tonkin, it ,

812 would appear that a son-in-law when he marries promises 562 to furnish the masculine element or K'i which is indispensable to the celebration of worship. But the Annamites deem celibacy on the part of the eldest

daughter meritorious (101) when she devotes herself to the

lOl. A. 125. ,

interests of the family. This [94] seems to go together with the symbolic and moral interpretation of the rites of

ancestor woOFfship. , , | How then are we to explain that the daughter should be

able to perform the r6le of a college of officiants in worship, and that she should be able to exercise a power in the family which the widow only acquires through _ marriage and her apprenticeship as daughter-in-law? Is this because an unmarried eldest daughter is in her own home? In this case, it would seem strange that she . has only rarely and in exceptional fashion an opportunity

to play an important part. — , , _ Is it not rather because the eldest daughter has in certain cases--or used to have--the same capability of procuring a son-in-law for her parents as the eldest son has of giving them a daughter-in-law? [95]

| 61: Lusteguy--126 © G-4 (1925-1932) 1935 Vietnamese a

) - Chapter IV a ,

THE HUSBAND - SON-IN-LAW... CONCLUSION |

584 | ‘I, -- The Husband - Son-in-law. _ When it describes the essential rites of the Annamite , marriage, those which "are at present observed by the wealthy as well as by the poor", the Committee [on Jurisprudence----Analyst] (1) limits them to three:

— L AL137 | |

, l. The asking in marriage or dam-vo, addressed by the boy's parents to the girl's parents; | | , . 2. The betrothal or hoi, which inaugurates a rather — long period (2) extending up to the celebration of the

- 2. Sometimes even several years. _ , ;

, marriage; during this period the boy's family is obligated , to give presents to the girl's parents on the occasion of - all the ritual celebrations (3); . , 3. Celebrations of the Tét, of the fifth day

of. the fifth month, and of the eighth month. |

, 3. ‘The celebration of the marriage or cuoi, when the 7

| fiance goes and gets the fiancée at her house and brings her to his parent's house, where she must henceforth live with him and share his duties of filial piety. (4)

a 4. Daughter-in-law and mother-in-law must not meet one another at this time. | , The latter "avoids being present at the | moment of the fiancee's entrance" (A.137).

practices. | |

583 According to rule it is thus women who become 606 displaced and change families. But there are exceptions

591 which are to be considered as more or less irregular | The Committee fon Jurisprudence----Analyst] alludes to only one case of a husband - son-in-law, and this case.

, appears to be morally justified by an actual situation. As _ | a general rule, a husband owes his wife's parents only

one year's mourning. He also owes them respect. But — :

606 a

61; Lustéguy--127 _G-4 (1925-1932) 1935 | Vietnamese 583 "certain families who have an only [96] daughter (5)

591 5. Italics mine. | ,

sometimes reach an agreement with the husband's family

, so that he comes to live with them. In this case, the sonin-law must treat his in-laws as his own parents." (6) —

| 6. A.151. | OO |

, Nevertheless, failure to comply with these obligations

does not carry with it any penalties, while on the part of

, a daughter-in-law it would be a case of repudiation. (7)

7. A.170, Sect.3. "Lack of respect for in-laws.''! Thus seen, this particular seems to be a softening of the

. general rule in favor of those who have an only daughter. , It is in reality related to an ancient practice. We do not know exactly when this practice fell into disuse, but other vestiges of it survive. 369 Whatever the case may be, during the betrothal period 606 when the fiancé's parents owe presents to the girl's 583 family, certain Annamites follow a custom known by the 431 name of lam-ré, or "playing the son-in-law". Briffaut, using the expression anomalous son-in-law [gendre anomal] (8), brought this custom to light. Presents are _ 8. The anomaly consists in the fact that the son-in-law, instead of taking his bride away, comes and lives at her house and works for

his in-laws. C. Briffaut, Le gendre anomal, |

in Tribune des Colonies et Protectorats; Idem, _ L'Esclavage et l'Engagement pour dettes dans -

See also Dang Trinh Ky, L'Engagement

, des personnes en Droit annamite (pp. 118-133), a work prefaced by R. Maunier as follows: "... This abnormal marriage was perhaps

| normal. It was the rule in old Japan, as well

| as in Malaya and Indonesia, for the husband , to come and live in the wife's house either

for good and all or for a limited time. He even lost his name and came under the power

61: Lusteguy--128 G-4 (1925-1932) 1935 Vietnamese ,

| 369 of his in-laws. The custom remains in

606 - force among the Man of Tonkin, according |

583 to Commander Bonifacy. It is the ambil- an

431 anak marriage of the Malayan co

oe archipelago" (p. xii). |

replaced by the services of the future son-in-law, who performs an apprenticeship of three years in the home of his father-in-law. This custom has been explained (9) by

this explanation. a , 9. The interested parties themselves give

saying that it involves a poor son-in-law (10) whose |

| | 10. See D.t. Ky, op. cit., p. 122. family cannot afford the traditional presents. The father-

, in-law accepts services in the place of presents. It is a __- practice which finds especial favor in rural areas. (11) [97] | ll. Compare D.t. Ky, op. cit., p.132. —

| , ‘This is also a custom of mountaineers |

a - mentioned by Bonifacy (Etudes Asiatiques, ~ Vol. I) (Man Cao lan): "The wife is bought : or won by the future husband's service | _ under his future father-in-law"! (p.75).

| | (Man Quan trang): "The marriage _ | is always preceded by an apprenticeship , | which the future son-in-law spends in

_ the house of his father-in-law. It _

: OO generally begins when the girl is fourteen - years old and the young man twenty. _

Oo ee This apprenticeship was formerly Six : a years long, but today it has been reduced |

| to three. In spite of this, the husband | must pay his wife 1 taél 4/10 in silver, a pig at least forty pounds in weight, three pairs of capons, and a little rice alcohol.

If the fiancé stops during the period of _

| _ apprenticeship, he has nothing to pay.

, If he is dismissed, he must be compensated.

_ The apprenticeship may also be replaced , or diminished by paying ten piastres a

61; Lusteguy--129 G-4 (1925-1932) 1935 Vietnamese

369 year. If the girl becomes pregnant 583 prospective husband is no longer

583

606 during the apprenticeship, the

431 free to quit" (p. 84). |

178 A son-in-law who thus wins the daughter by working 369 for his father-in-law is the object of derision (12),

587— 12. Compare C. Briffaut, Le gendre anomal,;

D.t.Ky, op. cit., p.13l. -

doubtless for the same reason that today, now that the custom of taking wives of second degree has almost been abandoned by city dwellers, whereas it survives in the country (13), these latter are beginning to be the object of 13. In the country wives of second degree —

are useful for directing the labors of the _ field. Some landowners have as many wives as they have agricultural holdings. _ scornful witticisms. (14) By deriding the husband - son14. A.126 (al. 4).

in-law, city dwellers meant to ridicule a sort of consort and servant without dignity of his wife's parents. Today it seems to them that the status of a wife of second degree

is contrary to the dignity of woman. 7

583 The custom of going and playing the son-in-law existed 991 in Tonkin in the time of the Lé. This dynasty, which is usually thought of as having respected custom, sought

precisely to extirpate this one. In an "Instructive on ,

moral reform! dated 1471, we read in article 6 (15): | ;

| 15. B.e.f.e.0., Vol. X, p. 35. _ "When the fiance's family has acted in accordance with

the marriage rites and he comes to seek his fiancée, she should be allowed to depart at once for her husband's house. The bad old custom of obliging the husband to remain and 'play the son-in-law' and of not allowing the young woman to depart for three years should not be conserved. This custom is nothing else than the Ts'‘in custom of taking a poor young man who comes and lives”

61; Lustéguy--130 G-4 = (1925-1932) 1935 .. Vietnamese

_ 583 in the house as son-in-law and adopted son. It should not a 591 be imitate. Those who act in contravention to these —

principles shall be punished." } -

| The expression 'Ts'in custom" should not lead the | reader into error, for itisa custom which the first | ,

| _ Chinese emperor [98] Ts'in Che-Houang struggled , against. (16) This ancient custom, designated by the word

| 16. See M. Granet, Danses et Legendes de __

| , :latheChine ancienne (pp.17, 276 ff.): "Ihave impression that the government of the

first emperor endeavored to spread the |

| principles of aristocratic law and |

morality among the people" (p.17, No. 2).

- "The custom of the nobles in fact — )

: , required that marriage should be — accomplished by the displacement of

women, with the latter figuring in the © | ] - family in the capacity of daughters-in-law, , and not the husbands in the capacity of -

sons-in-law (p.17). 7

oe chue (17), recalls, by the fact that it involves a son-in-law .

| ; - _ 17. See the Couvreur dictionary and the © , equivalent expressions signifying '"son-

: in-law adopted as son", "poor son-in-law | ,

| a who comes to live in the house of his oo

| | , father-in-law and take the place ofan | | an adopted son". =-Chué means: 1) to lend a | or borrow with security; 2) dependency, | ,

annexation, excrescence, appendix. _— 7 | | adopted as son, the custom followed bythe Thé and Nung _ 7 when they lack male descendants. Perhaps a more oe

| thorough investigation in the highlands would reveal that | | only poor ‘young people accept such a status. | . | This comparison, moreover, cannot precisely attest the

, existence of this ancient custom among the Annamites, but _ only that of a custom which would impose an apprenticeship on the future husband. It is as if the sovereign of the Lé _

dynasty here said to his subjects: "I suppose you do not go : _ so far as to follow the Ts'in custom of taking a poor young

| _ man as son-in-law and adopted son, but you do keep the © _ fiancé for three years and impose ‘playing the son-in-law'

Si: lusteguy--131 G-4 (1925-1932) 1935 | Vietnamese 583 on him, and this practice is just as detestable, andI

591 prohibit it." |

, It remains to be seen to what extent these two customs

are related to each other and to that of the highlands. 578 Provisions are to be found in the Chinese Code of the 606 last imperial dynasty (18) relative to an intermediate case |

, 18. Thanh Dynasty. , similar both to the ''anomalous son-in-law" of the old , custom of the husband - son-in-law, and to the Tho and

| Nung custom [of adopting a son-in-law as a son when they lack male descendants----Analyst]. This is the case of the individual designated by translators by the expression "son-in-law attached to the family of the father-in-law. "'

7 (19) Here laws are passed relative to [99] this individual 19. Father Hoang, Le Mariage chinois, pp. 96 ff.

in order to protect him. It would seem, in effect, that he

578 | |

is in need of guarantees against abusive dismissals on the 7 part of his wife and father-in-law, and against the

- intrigues of the latter's worship heir. ; :

5991 . Chinese law requires that it be stipulated in writing . . | 597 whether the invited son-in-law must "care for his father606 in-law in his old age (20)", that is to say reside with him

769 20. G. Boulais, Manuel du Code chinois, p. 259. until his death, or whether he is to leave his own family only for a limited number of years. The law provides that

an only son may not be an invited son-in-law. (21) He will Because he is indispensable to his : own| 21.parents. therefore be a younger son. A younger son might be designated worship heir, but the law forbids this. When one takes an invited son-in-law, one must nonetheless

adopt a member of one's own family stock capable of ,

| making the offerings to the ancestors. 7 ; _. The worship heir and the invited son-in-law share

a equally in the succession, and thence arises a conflict in | interests, marked especially by eventual schemes on the — | part of the worship heir wishing to come into the entire

61; Lusteguy —132 G4 = (1925-3932) 1935 Vietnamese

| 597 in-law, | |

591 succession by means of the dismissal of the invited son- | - 606 It should be noted that this rivality in which the Code

| 578 takes up the defence of the invited son-in-law results from | | 769 a situation imposed by the law itself. It is opposed to the son-in-law's being adopted as worship heir. __ | In order to prevent such adoption, the law particularly : , provides that invited sons-in-law shall retain their family name. Some of them, however, (22) take the name of their

22, Adds Father Hoang, op. cit., pp. 96 ff. | 7 father-in-law, but they are never legally recognized as heirs of the family. (23) | TO |

23. Worship heirs should be understood, for , | | as far as property is concerned, the son-in-law | and the worship heir divide it. — It would thus seem that the real practice in which the ; , : _. law here intervenes is precisely that one whose existence a | the Committee [on Jurisprudence ----Analyst] points out in the Tonkinese highlands. This custom is also the one

| _ with which the legislator concerns himself when he

. , endeavors to create respect for the distinction between 7 invited son-in-law and worship heir and to prohibit the _ |

: - same individual from embodying both qualities. There | must not be any adopted son-in-law as worship heir. This . |

is the point on which [100] there is a divergence between | ,

a Chinese mores which seem to conserve the ancient | | | - custom of the husband - son-in-law and Chinese law © ,

ss itself. This is also the essential difference between > _ -Annamite law and custom--as presented by the Committee --. on the one hand, and the custom of the mountaineers as

- reported in certain Opinions. (24)

| 24, A. 96, 293, 301. Oo | 369. One of the questions asked by the Committee [on |

582 Jurisprudence----Analyst] seems to inquire whether - | |

606 there is not an analogous institution among the Annamites. _ 597 It is conceived in the following terms: 'May a son-in-law _ be adopted, and in what cases does such adoption occur?" _. The answer is: 'The son-in-law may never be adopted,

597. |

61: Lustéguy--133 G-4 (1925-1932) 1935 Vietnamese | 369 for if he were he would be regarded as the son of the

person adopting him and could not be the husband of his - 582 606 sister. '"(25) pO,

= 625. A124. SO :

The answer is not as clear as it appears to be, for the -

word adoption leads to confusion wherever Annamite and

._ Chinese customs are involved. This Opinion might be ,

26. A. 121. | |

| contrasted with another (26): "If the adopted person bears . the name of the adopting person or if he is regarded as

_ belonging to the family (27), marriage prohibitions

/ 27. This need not therefore be the case. | | applying to relatives are the same as for the adopting ,

person's own children." — , . The custom followed by the Thé and Nung [of adoptinga _ - son-in-law as a son when they lack male descendants ----

Analyst] is shocking to the Annamites (28) even though |

, 28. This follows from Opinion 124 cited above. husbands and wives who bear the same name are i | frequently found (especially Nguyén, a relationship without civil consequences). According to this custom, the son-

in-law takes the name of his father-in-law so as to be |

| able to offer worship to the ancestors of his wife andin- | - laws who have thus become less remote from him. His

, wife and he then have in common both their name and ‘Known ancestors (29), and this is to say that there is a

re 29. Ancestors of the five generations of , , «mourning, and perhaps also ancestors to. SO whom collective worship is tendered. | | _ déng-tong relationship. Such a marriage violates the law of exogamy, and this is the reason why a person cannot | be both worship heir and invited son-in-law. Exogamy,

however, is in all societies so imperious a rule, that it , is indeed difficult to admit the existence [101] of current practices which do not respect it in raral or mountainous

61; LLusteguy - -134 G-4 (1925-1932) 1935 = Vietnamese 369 regions. It is almost certain that changes have occurred ._ 582 on one side or the other which have had the effe ct of...

a 606 putting archaic matr imonial. customs:inicontradiction--a 7

- exogamy. | —_ | - mo, ,

_ 597 contradiction more apparent than real--with the law of. ——-

| 369 The most that one can dohere is to indicate the __ , 613 direction in which useful research might be undertaken. _ | 606 Actual practices as well as laws and "Instructives for 582 moral reform" are tdiall intents and purposes the same : in Ghina and in Tonkin, not.excluding the highlands. Still ' on one important point Tonkin, and particularly the | _ Annamite region, would appear relatively archaic, in that

the number of the family names most frequently _ - encountered is very limited. Thus it. may be said of the | same name, Nguyén for example,. that it is; 1) the ho of . : ss an exogamous group, d6ng-téng relatives who bear the ©

‘same name and give worship to common ancestors; 2) the

| _ tinh ‘of a more extensive froup formed of "relatives" who

_ have the same name and "may descend from.acommon —©

| _ ancestor"; a tinh relationship has no civil consequences. —

; _ (30)."Perhaps it once had civil-consequences, and in this |

7 so 830, ALL. ee Oo

| case obligations of endogamy might arise. (31) It is not ,

oo 31h M. Granet has shown thatin ancient | oe ee China the rule governing matrimonial . _ , , BT _ unions is a double one, and that. one must a

crs marry a person of different name (yi sinh) ©

and: also marry within the traditional ~~ | + girele of relationships for intermarriage. ,

BB Vtes et. Chansons, pp.209to 2H. | | impossible that an investigation in rural and mountainous © areas might still today uncover traces of the ancient | | rules of endogamy and exogamy. It might well then appear | . that the son-in-law takes the name of his father-in-law

| in order to become affiliated with an endogamous group _ (32) and thus become capable of tendering worship to the _

a 32. All the more laudable in that the

, ss general tendency is to attach importance.

, only to the rule of exogamy. , —

61: Lusteguy- -135 G-4 (1925-1932) 1935 Vietnamese a 369 distant ancestor, the common ancestor from which those

613 who bear the same name may be descended.

606 #£Itis not impossible either that close examination might 582 reveal that the true rule is that a son-in-law must add the name of his father-in-law to his own. The [102] structure

oo of the double name (33) would bear witness to the fact that

, 33. Double names seem to have been frequent

| in ancient China.

, respected. _ , , the double rule of exogamy and endogamy had been

000 _ . In the absence of sufficient information concerning

| names, it will.be well to remember a characteristic of | : ancestor worship in ancient China. The mythical | sovereign Chouen, who was a husband -son-in-law (34),

34. See M. Granet, Danses et Légendes de

la Chine ancienne, pp. 257 ff. and p.17. received the abdication of his father-in-law Yao and later (35) assumed power permanently in the temple of Wen tsou.

35. After the period of mourning. _

| Wen tsou is no other, according to Sseu-ma Ts'ien, than

| the Great-Ancestor T'ai tsou (36) whose tablet was never

| | 36. M. Granet, Danses et Légendes, p.278, No. 4.

| removed from the altar. (37) According to another -

. 37. Le-Ky, Couvreur translation. , - interpretation, Wen tsou is the name of a temple, an ancient name of the house of the calendar. (38) In any case,

, 38. M. Granet, loc. cit. , , the husband-son-in-law here seems to be called upon to

celebrate the cult. of a group much more extensive than the ,

| exopgamous group of ddng-téng relatives.

Now if Yao summoned Chouen to him in the capacity of

| husband-son-in-law, this was not because he lacked male

posterity. On the contrary, he had nine sqns, of whom the

| 61: Lustéguy--136 . G-4 | (1925-1932) 1935 | Vietnamese 000 eldest, Tan-tchou, seems to have been the worship heir ,

| (39) of Yao. At the time when he succeeded to his father-

oO 39. Charged with worshipping the | | a

so _ immediate ancestors. OO Oo |

, in-law, Chouen offered to yield the power to Tan-tchou,

but "everyone took refuge with Chouen.'' (40) Between the | 40. M. Granet, Danses et Légendes, p. 278.

law... a

son or worship heir and the husband-son-in-law there ,

arose over the succession of Yao rivalry of the same order, it would seem, as that covered by the Chinese law of the Ts'ing which takes the part of the husband-son-in-

, When everyone (41) had taken refuge with Chouen and had >

| 41. Tien hia. This group which Chouen was to govern, which he assembled before. the GreatAncestor and which he offered to turn over to

7 the son of Yao plays the same role with respect |

, _ to the sovereign as the family assembly with | respect to the worship heir. |

, [103] thus prevented the abusive dismissal of the husband- | , son-in-law, the son and worship heir Tan-tchou was _ provided with a domain (42), retained the music and rites

, | _ 42. Perhaps a te-dién, corresponding to , sO the Annamite huong-hoa [family worship

_ property----Analyst]. . oo of his family, and was treated by Chouen not as a vassal, but as a guest. (43) | , : 43. M. Granet, Danses et Légendes, ; p-273, No.2. BO Another version--both are found in Sseu-ma-Ts'‘ien-- | a has it that Tan-tchou was excluded from the succession

a _ by his father who judged him unworthy. (44) In this second , | 44. "Maleficent", "degenerate", loc. cit. --

This version seems to return to the case , | | of absence of male posterity. oe

61; Lusteguy - -137 G-4 (1925-1932) 1935 Vietnamese 000 version, Chouen appears not only as a husband-son-in- | law, but more exactly, by virtue of the absence of a son,

| as an adopted son-in-law. The adoption did not make Chouen the brother of his wives, the daughters of Yao. The status of the husband-son-in-law is analogous to that |

of the daughter-in-law. He becomes the son of the father-in-law and mother-in-law just as the daughter -in-

: law becomes their daughter: provisorily. Like the daughter-in-law, he is put to the test, and may be , : repudiated (45) as long as he has not yet worn the three 45. The abuses against which Chinese law

protects him are one indication of this. , / years' mourning for his wife's parents. (46) Chouen thus 7 46. Chouen wore mourning for Yao for

three years. (M. Granet, Danses et , , Légendes, p. 278. )--''Wearing mourning | , - qualifies one for succession. Mourning | is a period of apprenticeship. "' (Op. cit., | p. 375.)--'"'The succession was finally , decided at the end of the mourning period

for Yao" (p. 276). --The period of | ,

mourning is an interregnum, etc... ,

received the succession of Yao and progressively became :

his son after a series of trials (47), the first and chief

47. M. Granet, op. cit., p.276. | one of which was precisely that of his marriage. (48)

48. Like a daughter-in-law, he assumed

, a rank among the tu-ton of Yao, at their , , , head. "In order to complete the test, Yao | entrusted his nine sons tohis future successor. He could in this way discover the latter's worth as a leader of men. M.

Granet, op. cit., p. 277. | 606 Since the adopted son-in-law is subjected toa series of

769 trials by the very fact of his marriage, his case is : ,

597 completely distinct from that of the agnate relative--of a , lower generation--adopted as worship heir (thua tu). (49) 49. The thua tu acceeds to worship directly, |

61; Lustéguy--138 G-4 (1925-1932) 1935 Vietnamese , 606 without an apprenticeship, just as the

769 eldest daughter temporarily assumes to

| 597 domestic power without having — a , , undergone the trial of marriage when , her parents die and the eldest sonis

. a minor. . yo , a

‘The language furthermore clearly distinguishes this kind of adoption [104] (lap tu ) from that of children of a strange family, and the expression con nudf (50) is used to

50. Nudi means to raise, nourish. In Sino-

, Annamite the expression thu duong, to keep or raise, is used. |

: designate the latter. A con nud? adoption takes place | _ through charity, through interest or through superstition. _ . (51) In explaining the consequences of such adoption, the

7 Sil A. 78. --"In the first case, a family which ) is well-off adopts a young child by paying a

sum of money to the parents of this child who : : are in need. In the second case, a creditor | | adopts the child of his debtor who is old

| enough to work and specifies inthe contract

that the sum of money lent shall not produce |

| any interest, the services of the child

OO standing in its stead. The third case of

, adoption has superstition as its cause. A

rich family adopts a child from a large © family to make him bear part of the dangers

. which may menace its children and so that he may cause the family which adopts him

his own family. re | i Adopted children are called con nuoi. :

a to share in the happiness which reigns in | They are generally well treated and may. |

, | leave their adoptive parents in order to , | ‘return to their own family. Those who. have been adopted at an early age

ordinarily receive a share in the inheritance ,

of the person adopting them. "' | | Committee [on Jurisprudence----Analyst] makes a | _ distinction according as the adopted child is regarded as

61: Lustéguy--139 G-4 (1925-1932) 1935 Vietnamese oe 606 a member of the family or as a servant, and especially oe 769 according as he has been adopted at an early age or later. 597 (52) Thus if the adopted child has not known (53) his own

| 52. A.106. --'"In principle, the consequences | a _ of the adoption are the same for adopted SO

children less than three years old and those a who have passed this age. In fact, families | become more attached to children adopted at an early age because they suppose that | they will have a more lively sentiment of = filial piety. "'

53. A.108. ,

parents or if he has been adopted at an early age, he |

takes the name of the person adopting him.In the opposite , case, he retains his own name and does not enter into the

family of the person adopting him (54), or else he bears ,

54. He is then subject to the same marriage | , prohibitions as the children of the person

adopting him. (A.121.) | |

- the name of the person adopting him followed by that of | | - his own parents.(55) In the legislation of the Le, (56) a | |

, 55. A.108, 110. Oo 56. B.e.f.e.0.,1910, p.497; 1911, p. 43 ff. | | oo

afterwards. , . a distinction was made according to whether the child had a

been adopted between the age of three and seven or

. These considerations of age and the diverse practices ,

relative to names would seem to indicate that the purpose , of con nudi adoption is to procure the family either

servants (57), sons or daughters, or else prospective | 57. It is forbidden to castrate them. --

C.G. (B.e.f. e.o.,1910, p. 361). |

sons-in-law or daughters -in-law. , _If.the adopting person has no son, and if he is an ordinary head of a gia [105] and not himself a worship heir,

61; Lustéguy--140 G-4 (1925-1932) 1935 Vietnamese 606 he is not obliged to take as worship heir an agnate nephew , 769 who would be thua tu, but he may instead designate his. 597 adopted child or con nu@i. (58) He may also designate his _

58. A.105. --The term con nui (the child

| whom one raises) carries a slightly _

_ inferior connotation. (In case there are no male children) they (the con nu6i) may

, | not be worship heirs unless they belong >

_ to the same family stock as the person |

adopting them. If the adopting person was |

a , - not himself a worship heir, he may

_ , designate his eldest son to carry on his worship.

daughter. oe ,

_ A comparison of these provisions would lead one to suppose that he might employ both choices at the same

oO time by marrying his daughter to his con nudi, we ek who was adopted after the age of seven and bore the name of his father-in-law followed by that of his own parents.

_ [106--Blank page] [107] , = oO oe YI. --Conclusion.. —

769 In Annamite lands as in China, cultivated persons | 181 consider a domestic organization where the son succeeds , 613 the father and transmits his name normal and natural, | while a line of wives from mother-in-law to daughter -inlaw step up to fill the places left vacant by daughters. The | _ destiny of the latter is to leave the paternal home to marry

mo Furthermore, a into a itstrange family. | Oo | is judged that the duty of each individual , is doubtless to give his full allegiance to this family

- organization. But individual participation must also be: |

| more active, and the individual must guarantee the

a perpetuation of the institution and venerate those who have

guaranteed this function before him. The name must be | transmitted indefinitely from father to son. Posthumous

honors must be guaranteed to each ancestor in the four | previous generations. (1) Their descendant is charged ,

: l. Father, grandfather, great-grandfather,

great-great-grandfather. , ,

with procuring them a male posterity to perpetuate the |

_ 61; Lusteguy- -141 G-4 (1925-1932) 1935 Vietnamese | 769 cult. All necessary steps are taken, moreover, to deal | 181 with extraordinary eventualities: wives of second degree, ;

613 and the possibility of designating as worship heir a | | nephew, a grandnephew, or even a stranger who will step © Oe , forward to bear and honor the name. These precautions | a

radically exclude any risk of interruption of the male line ae of descent. How then are we to explain that just sucha OS a

situation should nevertheless occur and capture the , | a These actual situations could not occur and become | oO

attention of the legislator? | a _

| invested with a degree of importance except, soto speak, , on the margin of the agnate organization, where different ©

customs still reign. The fact that the Annamite legislator _ Oo

| | feels called upon to reform the mores is significant in OS , this [108] respect. The exceptional dispositions which he | 7 has had to take locate clearly enough the obstacle which |

| holds this reform in check: it is to be found in the gia oe One should not limit oneself to presenting the an

, [household----Analyst]. ~ a , Annamite family as formed of a certain number of gia

classified among themselves according to definite 7

principles. Only those gia which are hereditarily endowed —-

, with a huong-hoa [family worship property----Analyst] oo

: are solidly incorporated in the agnate organization. As

for the gia of which a younger son is the head, it may | evolve in a different fashion and become disassociated 7 from the ho [family name, group of relatives giving

worship to same ancestors----Analyst] when it has only oe

practices. - _

daughters. The rules which it then follows may be | , compared to various customs of mountain-dwellers or , Chinese, and there seems to be a reversion to archaic , _ 177 Up to this point, we have encountered nothing _

— 66250000 769 specifically Annamite, except perhaps for the expression

428 huong-hoa [family worship property----Analyst] itself. (2) ,

2. The institution, if not the word huong-hoa, also existed in China under the name té-diém Be | (ts'i t'ién). --Deloustal, citing the Kia-li, in B.e.f.e.0.,19ll, p. 52. --See above, pp.42-45.

In the provisions which attempt to regularize certain of

: the practices (3) followed by the ordinary head of a gia | 3. In order the better to exclude certain others. |

- | 61: Lusteguy--142 G-4 (1925-1932)1935 = Vietnamese | 177 [household----Analyst] without male descendants and 769 which authorize him to create a huong-hoa under the _ 428 administration of his daughter, some people have thought |

562 to see a characteristic of purely Annamite mores as

| opposed, so they'thought, to Chinese customs. The ,

| _ importance of the réle of woman not only in popular _ Chinese customs and in ancient mores, but even in the homes of nobles (4), is today better understood. © |

ae 4. "No power, in the noble residence, is |

, | more stable than that at the disposal of the

a _ dynasty of mothers of a family.''M. Granet,

| , _ Danses et Légendes, p. 13. Oo | , 621 Deloustal has already dealt with another supposed

428 difference in mores. It was said that in Annam, contrary 369 to what was the case in China, daughters inherit just like 562 sons. After giving the necessary information, Deloustal

| 178 states that on this point the "reform of mores" in the , sense of excluding daughters from succession has | |

triumphed in the city, and at Hanoi daughters [109] have no share in succession. (5) "In rural areas, on the contrary,

Oo 5. '... The portion accorded daughters in

successions varies according to families _

and particularly according to localities. -

| At Hanoi, for example, daughters do not |

, ; share in an inheritance in many families, | , 7 - and only when the estate is considerable _ is a portion--and a negligible one-- = | | accorded them. The reason for this is that | they are supposed to receive their portion | , , at the time of their marriage, when a dowry in money or in kind is given them | to help them become established. This — |

_ dowry constitutes a sort of advance - an , inheritance portion." _

| RR,a 1911, Deloustal, La Justice...(B.e.f.e.0., | p. 53). --A. 245 (goods received are not entered as items in the hereditary succession. )-

| _ it is customary to give them a part of the succession. The

| importance of this share in comparison to that of sons_

os _ varies with the locality. "' (6) Thus, instead of an | _

6. R. Deloustal, loc.: cit. | |

51; Lusteguy--143 G-4 (1925-1932) 1935 Vietnamese — , 621 opposition between Chinese and Annamite customs, an | | - 428 opposition between rural and urban customs is found. The

, 369 latter are more impregnated with agnate law, and this is | 562 a characteristic common to China and to Annam. , 178 Here then is a milieu where reform of the mores | encounters obstacles. The countryside thus seems a vast |

element of resistance to reform of the mores. The same oe

, - may moreover be said of mountainous regions. This | double phenomenon leads one to think that in the villages, |

both in the delta and in the highlands, the gia [households a ----Analyst] are coordinated in a different way than in the , a great agnate family. or ho. Then too, the village is not an . amorphous grouping. It too has its own organization, its oe

, patron if not its ancestor, its cult and its worship !

property. To an even greater extent than the city, itis

closely related to the domestic organization. It remains _

the link of city Annamites with the land of their ancestors, a and every Annamite has a home in his native village. (7)

, 7. 'Formerly the Annamite had only one home, that of his native village. Today he | always retains his home in the village of

(A. 204. ) , oe

oe which he is a native and where he remains © , . enrolled on the roster of personal taxes..." ee Worship property for which there is no heir and also hau CO

, endowments [for perpetuating the memory of adeceased = =

Buddhist pagoda. (8) |

person----Analyst] go either to the village or to the , Oo

8. We have seen that in Cochinchina, in | order to purchase a posterity, men prefer. | to turn to the village temple (dinh), and a

oo women, especially old ones, to the pagoda (chua). a

. Duong-tan-Tai, op. cit., p. 94; G. a Goulet, Cultes et Religions de l'Indochine |

| annamite, p. Ll. | _ | ; There are not only correspondences between the ho, :

which is particularly urban, and the village, but also ,

points [110] of comparison. Worship property designated , for the cult of the village genie is, like that of the agnate

family, divided into two parts which are administered in | ,

different fashion. The first is, like the huong-hoa, |

61: Lustéguy--144 G-4 (1925-1932) 1935 | Vietnamese | 621 administered by a beneficiary charged with guaranteeing 428 permanency of the cult. The other, like a luan-phién —

178 | | ee a

369 property, is entrusted in rotation to registered persons |

562 (9) charged with furnishing offerings ''on anniversaries 9. It should be noted in passing that in order — to furnish the genie his temple guardian who,

Oo like a worship heir and beneficiary of a_

: huong-hoa, has the right of enjoyment of | , - property attached to his temple, a gia — | : must be broken up, for the temple guardian | - must be "preferably chosen from elder | registered persons, fathers of a family, of

good life and morals, and having made a vow

, of chastity. His designation is made either

, by renewable terms (one, two or three years),

! or in individual fashion, according to the | , ,

: - village. The sacred character of his mission , constrains him to certain obligations still _ rigorously prescribed by custom. He is | forbidden to continue life in common with |

| his wife, and to attend anniversaries and | |

funeral ceremonies, because his , :

| prosternations must be reserved exclusively

| | in honor of the protective genie of the

| village...'' Nevertheless, mourning in his .

| | | family obliges him to renounce his functions.

; (A.324, Sect.1, al.3.) |

| of the birth or divinization (10) of the genie. "' 10. (Italics mine.) A. 324, Sect.1, al. 4,

Than tu dién. 7 ,

In the great agnate family, men and women of one

, generation form two parallel hierarchies (elder brotherswives, younger brothers-wives of second degree, male servants-female servants) recalling the hierarchy of the

male inhabitants of the village: notables, registered |

persons, unregistered persons. ,

562 The village is composed of two communities in

621 juxtaposition, that of men and that of women. This , , , characteristic, which is more apparent among the

61; Lusteguy- -145 G-4 (1925-1932) 1935 Vietnamese 562 mountain dwellers (11) has been discerned by Przyluski(12) __

621

ll. See, for example, M. Granet, Fétes et

Chansons, the facts cited in Appendix III, ,

| , - -—pp. 284 to 288.

: B.e.f.e.0.,1909, pp. 757-764. , ,

12. Notes sur le culte des arbres au Tonkin. -- ,

in the delta. He states: ''It would appear that the | population of each village is divided, according to sex, ; into two distinct religious societies...'' The dinh, where

the council of notables meets, and the pagoda, meeting |

place of the brotherhood of ba-vai, are as the positive and negative poles of the Annamite commune. ''The dinh

is nothing but a house of men." (13) [111] © | 13. Op. cit., p. 759: ''The common house,

| | which it would be more exact to call the | oe house of men, for it is exclusively the male inhabitants who gather there. '! , Would not there be a better opportunity to observe in Bn what manner and to what extent woman is at home in the ,

common house? _ , an Oo | 114 There is every reason to believe, in sum, that the familial house (gia) here where the men have their own _

582 description given of Annamite domestic organization is ~.: ._..

| 613 exceedingly incomplete and that it would have been possible , to collect a greater number of popular customs. The réle . of women would doubtless have appeared more clearly. One important point still seems to have been made. The gia [familial home----Analyst] even when integrated into the ho [familial name, great agnate family, worshipping same ancestors ----Analyst] manifests its own tendencies

and asserts its independence to the prejudice of the , interests of the agnate group, when the time comes for it

to found a cult and choose between daughter (or son-in-law)

- and agnate nephew as beneficiary of the huong-hoa

[family worship property----Analyst] which it creates. } It would probably not be without value to examine,

among the peasants of mountain and plain, how the gia , agnate family, and when it remains before all else one , behaves when it is as yet not solidly integrated into the

house in a village. - 7 |

61; Lusteguy--146 . G-4 | (1925-1932) 1935 Vietnamese

104 [113] Index of Annamite and Sino-Annamite Terms _ An -huong -hoa | "Eating the Huong-Hoa"' by the

a , beneficiary . , , ,

. An-hoi_ To celebrate the request in

marriage (betrothal) | Ba -vai Buddhist devotee Chi , Family branch : Chi Hai, Ba Sister Two, Three , Chinh -that Principal lodging (principal wife) Chung -phu literally: wife who commands _

! a (the principal wife) __ : Chua | Buddhist pagoda ,

| Chue - Husband-Son-in-Law _ Con néi © . Adopted child => — . Cuoi _- Marriage © , |

: Cuu-tdc ! _ The nine degrees of kinship

: | _ (the relatives who carry on , : mourning one: for the other)

| [relative in a common line of _ descent from one's great-great- , | grandfather to one's great-great- | grandson----Analyst]

Dam-vo- . Marriage proposal | Dinh - Communal house , a Dich-mau The mother, principal wife,

| name given by all the children to — the principal wife | — -Dich-t6n Principal son of the principal son ©

, [114] | ,

- -Dich-tu Principal son [heir to the worship privilege----Analyst]

| —- Dong-tinh Dién- . Rice-fields , | Same clanname — | |

| Dbng-t6ng ~ es _ Of the same kinship, those who Dong-toc have the same name and are

a descended from common

| || Gia - worship a , a House, home (family children) a | and |

| | ancestors to whom they pay

Gia-truong Head of a family having a Gia-that , - House, establishment (denoting

oe - : - separate establishment.

| the conjugal group) |

61: Lusteguy--147 G-4 (1925-1932) 1935 Vietnamese >

, 104. Gia -toc . ‘The close relations inhabiting :

, , : the same house , Giap _ Grouping of inhabitants

Hau — | Servant Hau Endowment for perpetuating the | a - memory of a deceased person

Hau-dién Landed endowment (rice-fields)

_ whose| celebrate revenues are used to the worship of the

| | founder [who usually has no a , _ posterity----Analyst]

a|

, : family name :|| | | - Hoi Betrothal Ho Kinship in the general sense,

- Huong-hoa Incense and fire (property of..) . ,

en a Analyst]

[family worship property----

divorced , | by the children , |

Ke -that , Wife succeeding the principal wife

a | who has deceased or been

Ké-mau a Name given the succeeding wife

| anniversaries , - Ky-dién Rice-fields whose revenues are | ,

| | destined for the celebration of _ | | Lu4n-phién Rotation (said of the property

administered in turn by the |

, , descendants of the constituent) Lam ré Playing the son-in-law [115] | Lap-tu | - Action of establishing posterity , , [designation of an heir---- oo

- Analyst] , ,

Ma-dién Endowment of rice-fields for the | purchase of votive objects © ,

. Me-gia — | Venerable mother (name given by |— | all the children to the wife) - Minh ! Myself (name that husband and |

, | wife mutually give themselves) Mo-dién -Rice-fields whose revenues are

| the tombs

, destined for the maintenance of - Mon-sinh-dién - Rice-fields whose revenues are

, , reserved for the worship of the , a schoolmasters Noi-tuong General of the interior (said of _ the wife)

| 61: Lustéguy--148 G-4 | (1925-1932) 1935 ‘Vietnamese

104 Ph4n-dien Burial grounds © - Phan-duong-lao Part of the estate reserved for , ' the support of the old parents ©

Ph&t-tu-dien _. Endowment of rice-fields for the

ee a pagodas _ a . -Tam-tong Literally: the three dependences , maintenance of the Buddhist

, _Tao-mo (seeSweeping pageof the 90) , os | tombs (in the

oo Spring) , : -. are reserved for offerings

Te-dién — Property from which the proceeds

, , - tombs . a Tet oe First day of the Annamite year

Thanh -minh -dién - Communal property for the | , offerings to the Genii at. the time | ee of the holiday of the visit to the

, Th&n-tu-dién | - Communal rice-fields whose

oo a 8 revenues are reserved for the | worship of the tutelary Genie of

, a the village | |

- Thé-dich-thé wife; principal wife Thiép-gia Those added to the family (wife |

Thon - Hamlet , a CF , of the second degree) ©

Thua -tu Appointed heir of posterity [116]

, | | adopted child) , , , - Thu-that | _. Secondary house (wife of second Thu-duong _ - To take care of, to raise (an

|persons , - | degree) _ having the same

, - Tinh | _ Family name, relationship of all | _- patrynomic (ho), with no civil —

OOTon-truong : An Pre-eminent — effects Be | member ofa

| I family, secular head of kinship | | Tong-mau , Literally: to follow the mother

a (See page 52)”

Tong-phu Literally: to follow the father

BS , — (See page 52) _ a, , ~ TOng-t6c Kinship: common ancestor, ,

Br game ho | | Tu-van-dién _.Rice-fields reserved for the

, , Confucius , , BT maintenance of the worship of

| | 61; Lusteguy--149 G-4 (1925-1932) 1935 Vietnamese

104 Tu-san 7 worship property , Tu-duong | house of worship

both sexes ee , To-phan Burial grounds | - | Tu-tdn children and grandchildren of

TOc-truong or Kinship chief in worship matters | oe

, truong -tdc {worship heir----Analyst] , :

Van-danh Asking of the name (marriage) | a | Vo-pha-dién Communal rice-fields devoted to = |

Xa Village | a | Xom , _ Group of residences Se | the worship of the military genii = = -—

Xuan-thu Property devoted to the worship | | of ancestors belonging toa ..

five | Oo ,

generation other than the last I ,

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