Lion and Dragon in Northern China

by Sir Reginald Fleming Johnston

In China all land theoretically belongs to the Emperor and the land-tax paid by cultivators may be regarded, from one point of view, as rent payable by tenant to proprietor. The Emperor is the Son of Heaven (T'ien Tzŭ) and owns the whole Empire (literally "what is under Heaven"—T'ien hsia): a fortiori he is owner of every separate patch of tilled land that the Empire contains. But for the people of China the ultimate rights of the Emperor are a matter of legal theory only. In practice, land is privately owned in China just as it is privately owned in England; but whereas in England a land-owner may (if his land is not "tied up") exercise all the rights of absolute ownership quite regardless of the wishes of his nearest relations, not to mention his distant cousins, in China the individual land-owner cannot disregard the inextinguishable rights of his family.[85]

Be it remembered, moreover, that "family" does not imply merely a father and a mother with their children. It includes also nephews, grand-nephews, cousins of several degrees, and in fact all who come within the description of wu fu, or persons on whose decease one must assume one of the five degrees of "mourning." In England, if a man's title-deeds are in order, and the land is free from encumbrances, no one will question his perfect right, as an independent individual, to sell his land how and to whom he chooses. It is unnecessary for him to consult relations, neighbours or friends. Now in Weihaiwei, which is a typical Chinese agricultural district, the man who tried to dispose of his landed property without fully discussing the whole matter with all the prominent members and "elders" of his village—or rather with those among them who are of the same surname and come within the wu fu—would find himself foiled at the outset, for no one would venture to run the risk of buying land that was being offered for sale in so peculiar and irregular a manner. Even if the purchaser, being a man of wealth and influence, were prepared to run all possible risks, who would be found to draw up the deed of sale? Who would take the place of the numerous relatives who always append their signatures to such documents as proof that all is in order? The would-be seller's title-deeds may be in perfect order; the land may have come down to him from his direct ancestors and his right to sell may be apparently incontestable. But he is not the less bound to satisfy his uncles and brothers and cousins, as well as his own sons, as to the reason for his desire to sell, and even if they agree that a sale is necessary (owing perhaps to the seller's debts) he is by no means permitted to dispose of the property by public auction or offer it to the highest bidder.

All his relatives, more or less in the order of their seniority or proximity, must be given the option of purchase, and if the price offered by an influential relative is considered fair by the general voice of the village or the clan, he must perforce accept it and be thankful or refrain from selling his land. The theory that seems to lie at the root of this custom is not that the land is the common property of the clan but that the individual per se is only the limb of a body, and cannot therefore act except in accordance with the will of the organism to which he belongs; and that it is contrary to the interests of the family that a portion of the real property belonging to any of its members should pass into alien hands.

Absolute sales of land are, indeed, not regarded with favour even if conducted according to the "rules." They have grown common in Weihaiwei during the past few years, partly because the great increase in the value of agricultural land has tempted many to take advantage of a condition of the real-estate market which they think may only be temporary; partly because foreign occupation and other recent events have opened out new avenues of employment to large numbers of the people who are willing, therefore, to dispose of the little plots of land that are no longer their all-in-all; partly because many of the smaller land-holders are engaging in commerce or emigrating to Chihli and to Manchuria. For these and other reasons a good deal of land has changed and is changing hands, but the old custom whereby real property can be transferred only from relative to relative is still observed with very slight if any relaxation of its former strictness.

A Chinese deed of sale, carefully examined, throws an interesting light on the systems of land-tenure and the conditions under which transfer is permissible. Without going into technical details, which would be of small interest to the general reader, attention may be drawn to the fact that the reason why the seller is disposing of his land must always be stated. The theory seems to be that he should not want to sell his land, and that his desire to do so is highly regrettable if not reprehensible. The document therefore sets forth in detail that (for example) "Ch'i Tê-jang of Ch'i-chia-chuang, being altogether without money or means of subsistence, is obliged to sell that piece of land measuring ... mu in extent, bounded as follows: ..., to his younger "brother" of the same generation [really a cousin] named Ch'i Shuan, to be held by him as his absolute property for ever."

To these clauses are appended any reservations or special provisions by which the purchaser is to be bound, and the deed closes with the statement that it is drawn up "in case hereafter there should be no proof of the transaction." Then follow the names and crosses of the witnesses, all of whom are members of the "family,"[86] the name of the writer of the deed, who is often a schoolmaster, and the name of the village headman, who is generally himself a relative. The witnesses, it will now be understood, are very far from being merely persons invited to testify to the execution of a deed. They have themselves been consulted at every step of the negotiations, it is they by whom the purchase price has probably been fixed, and their consent has been necessary before the deed could be drawn up or the land sold.

Mortgages in Weihaiwei, as probably in the rest of China, are much commoner than sales. A farmer will generally sell his land only because he must; he will mortgage it on very slender provocation. As a mortgage does not definitely alienate the land from the family, the customary rules regulating this transaction are much more flexible than those relating to sales. Sometimes a piece of land is merely mortgaged as security for a temporary loan, in which case the mortgagor remains on the land;[87] in other cases it is mortgaged because the owner is going abroad or because the opposition on the part of the family to a definite sale is too strong to be overcome. In such cases the rights of cultivation are transferred to the mortgagee. In the great majority of cases mortgaged lands are subsequently redeemed.[88]