清治臺灣與律例正統的距離：以死後立嗣及其在地多樣性為例

Gap between Law and Practices in Qing-Taiwan: Local Diversity of Posthumous Adoption

既有研究強調律例與地方官裁斷之落差。本文以大清律例、契字與《淡新檔案》中的死後立嗣為切入點，將問題從「是否依法而行」轉向檢視律例等正統規範在官民行動發揮怎麼樣的作用，並探討超越正統的祭祀多樣實踐。由於死後立嗣牽涉宗祧、寡婦貞節保障與家產爭端，律例予以高密度規範，例如，只有同宗昭穆相當之一人可為嗣子。男子能否被祭祀綜合考量是否成年、獨子，或有守節寡婦；寡婦在立嗣決策中之地位有一定保障。然而，本文分析之97件契字顯示：收養異姓養子為嗣，乃至更加背離正統的「複數同宗嗣子」與寡婦坐產招夫生子以承嗣先夫等安排並非罕見；許多被立嗣者為有兄弟之未成年男子——顯示立嗣除了為家族整體延續，也包含了對個人的死後照顧；庄約的立嗣銀條款顯現祭祀與家族鬆脫之可能性。死者兄弟與父母尊長乃主要立嗣決策者，而寡婦存在感則相對稀薄。不過，無子寡婦可利用異姓養子或坐產招夫爭取更多掌控權。死者女性尊長之「母命」則在死後立嗣決策與相關官司之裁斷有相當影響力。地方官並未一概否定偏離正統的民間立嗣實踐，在個案中可能採取三種不同模式：譴責否定、容忍不深究，與主動提出非正統安排以作為協調方案。作為正當化裁斷的說理資源之一，律例有時被地方官選擇性部分引用，有時被完全無視。藉由揭露清治臺灣祭祀的多樣性，本文希望提供超越單一正統的傳統圖像，以幫助我們思考與本土連結的現代法改革方案。

Existing research has revealed discrepancies between the legal code and verdicts of local magistrates in Qing Taiwan. By cross-examining the Qing Code, the Tan-Hsin Archives and private documents, with focus on posthumous adoption, this article analyzes the diversity of worship traditions, as well as the roles taken up by the Code and relevant orthodox norms in lawsuits and people’s daily lives. In view of the close relationship of posthumous adoption with continuation of the patrilineal family line, familial property division, and widows’protection, the Code provided more detailed provisions on the eligibility of heirs, who could posthumously attain an heir and who had the right to name heirs. For example, the Code stipulated that only a male of the same clan could be an heir. Furthermore, on the eligibility of being worshiped, factors such as attaining adulthood, having a chaste widow, or being the only son, shall be considered. The Code also granted widows a certain degree of power in the choice of heir.
However, private documents showed that appointed heirs with different surnames were in fact quite common. The language of relevant documents, and the fact that most of those who had posthumous adoption were unmarried and had male siblings, revealed that posthumous adoption not only served the purpose of lineage continuation, it was also a way to arrange for the“posthumous-care”of deceased relatives. It was not uncommon for a widow to bring in a matrilocal husband and bear a son to continue her deceased family line. So was the arrangement of multiple heirs from nuclear families of the deceased’s brothers. Finally, the fact that convents in local societies provided funding for adoptive heirs for those who died in battles against bandits, demonstrated that posthumous adoption was not confined to family affairs, but also involved the duty and entitlement of a member of self-defense groups in frontier societies.
With regards to the decision making of heir appointment, while existing studies focus
on the rights granted to widows by the Code, detailed analysis of private documents and the Tan-Hsin Archives showed a scarce presence of widows. The brothers and parents of the deceased played the primary roles. It is worth-mentioning that a childless widow could gain more control over the family property by adopting an heir outside of her deceased husband’s clan or, as mentioned earlier, by giving birth to a son to be the deceased husband’s heir. In addition, the female elders in the deceased’s family had considerable influence on posthumous adoption.
The Tan-Hsin Archives shows that the official stance did not entirely forbid the unorthodox practice of posthumous adoption. In fact, magistrates selectively adopted three different approaches: (1) condemn and reject, (2) tolerate and turn a blind eye to, and (3) proactively propose unorthodox practices as a solution for both parties. Accordingly, the Code might be cited as a legitimate resource for adjudication or completely ignored, depending on the case and situation. This article attempts to go beyond monotonous and orthodox understanding of posthumous adoption and to reveal the diverse nature of worship and family traditions in Qing-ruled Taiwan. It is hoped that the new understanding of traditions will help us reconsider how to reform the legal system in local contexts.