Some of the customs regarding redemption are rather curious, and strongly emphasise the theory that redemption is a duty which must be undertaken by another member of the family if the original mortgagor will not or cannot do it himself. For example, A and B are two brothers. They fên chia, that is to say they set up separate establishments, each taking his own share of the family property. A remains at home, quietly cultivating his farm, while B decides to emigrate to Manchuria. In order to raise some necessary capital he decides to mortgage his share of the family land; but as neither A nor any other relative can provide the amount of money he requires, he is obliged to mortgage his property to an outsider C—a man of different surname who lives in a neighbouring village. This man C takes possession of the land as mortgagee and cultivates it for some years. B meanwhile is in Manchuria, and no one knows how he is faring, or whether he is alive or dead. A now goes to C and tells him that he wishes to redeem the land mortgaged to B. It is obvious that according to strict legality the land should only be redeemed by the original mortgagor. B's name alone is on the deed: A had nothing whatever to do with the transaction. Yet, by custom, C must resign the land to A; not merely because A produces the mortgage-price, but because he is one of B's family.
Perhaps several years later B returns from Manchuria. He has money and wishes to redeem his land. He soon discovers that it has been redeemed by his brother A. His own rights of redemption, however, are still valid; he applies to A for the return of the land for the same price at which it was originally mortgaged to C. A must comply. If B has been absent many years and meanwhile the land has greatly risen in value, A will probably give it up with a very bad grace. If the original mortgage-deed was badly drawn up or there are some doubts about what actually took place, A will perhaps refuse to surrender the land at all unless or until he is ordered to do so by the court. Litigation concerning transactions of this kind has been common in Weihaiwei of recent years. A man who mortgaged his land many years ago, perhaps at a time of famine and scarcity, for a ridiculously small sum, returns from abroad to find his land worth five or more times what it was worth then. He is naturally eager to redeem it, while the person in whose hands it now is—whether the original mortgagee or one of the mortgagor's family—is equally eager to retain it. The court in such cases naturally supports local custom, though there are sometimes bewildering complications which render it no easy matter to give a rigidly just decision. Deeds of sale and mortgage of real property used to be drawn up in an excessively vague and slipshod manner—the very boundaries of the land being either not mentioned at all or inaccurately; moreover nearly all such deeds were "white" deeds—that is to say they had not been put through the formal process of registration which would turn them into legal documents. To remedy this state of things (which was not to be wondered at in a district where ignorant peasants do their own conveyancing without legal assistance) certain recommendations were made some years ago which resulted in the adoption of a new system whereby all intending sellers and mortgagors of land are obliged to use an officially-stamped deed-form, on which spaces are provided for the proper description of land-areas and other necessary particulars. The forms are numbered and kept in counterfoil-books, and no deed can evade registration except through the negligence of Government clerks. Government has in this simple procedure a small but unfailing source of revenue, the magistrates find their labours in the court simplified, and the people are greatly benefited by having more satisfactory title-deeds to their lands (or rather proofs of legal purchase and mortgage) than they ever had before.
If the Chinese restrictions on a man's freedom to dispose of his own property are regarded from the Western point of view as an intolerable and unjustifiable interference with the rights of the individual, let it be remembered that the Chinese system is expressly intended to protect the family rather than the individual. But even so, does it not safeguard the rights of the individual as well? If A has complete control over his land and can bequeath it or sell it to whom he chooses, what about his son B? The average Chinese villager is at birth a potential landed proprietor.[89] His share in the family inheritance may be small, but his wants, too, are small. One often hears of an Englishman's desire to "found a family," by which is generally meant that he aspires to a position "in the county." The "family" of a Chinese never requires to be founded: it is there already. He does not require to engage a searcher of records to find out who his ancestors were so that he may be provided with a pedigree: he will find all the necessary information in the Ancestral Temple of his clan.
Whatever the faults of the Chinese social system may be there is no doubt that in Weihaiwei it very largely accounts for the complete absence of pauperism (though no one is rich), for the orderliness of the people (nearly every one has a stake in the land and has nothing to gain and everything to lose from disorder), for the uninterrupted succession of father and son in the homesteads, and for the long pedigrees attested by family graveyards and ancestral tablets. Certainly the family trees of many of the British Peerage or even of the English squirearchy and the chieftains of Scottish clans, would make a poor forest compared with those of the majority of the farmer-folk of Weihaiwei.
As a father cannot, except in exceptional circumstances, deprive his son of the family inheritance, it follows that a man's power of making a will is severely limited. The division of property between brothers may take place either after their father's death or while he is still living. The process is called fên chia,—Division of the Family. When brothers fên-chia it means in general terms that each takes his share of the family inheritance and leaves the paternal roof: and the document which is drawn up to define and give effect to the agreement is known as a fên-shu or written statement of the details of division.[90] The share of each participating member of the family is clearly stated in the fên-shu, and each is given a copy of the document to hold henceforth as his title-deed. A fên-shu is in Weihaiwei generally drawn up by mutual agreement between brothers after their father's death. If the arrangement is made during the father's (or mother's) lifetime, a portion of the property usually remains in the parent's hands as yang-lao-ti—"Nourish-old-age land." After his or her death the yang-lao-ti is made to bear the cost of the funeral, and what remains is divided up among the heirs. A portion of the property is sometimes set aside as chi t'ien (sacrificial land) to be cultivated in turn by all the brothers participating in the division. Sometimes the father keeps no yang-lao-ti for himself but merely stipulates either that he shall be supported by all his sons in turn or shall receive from them a fixed proportion of the produce of their several shares. The former of these arrangements works very well when the members of the family are in complete harmony with one another; but sometimes a discordant note is struck either by an unfilial son or (much more often) by one of the sons' wives, who perhaps fails to treat her husband's father with proper respect.[91] A woman in China, be it remembered, practically severs her connection with her own family when she marries; her husband's parents are henceforth regarded as her own, and she owes them just the same obedience and filial respect that are owed them by her husband. The patria potestas, in fact, is exerted not only over sons and grandsons but also over their wives. But in practice we find that sons' wives do not always, to put it mildly, show the meek and reverential obedience to their kung-tieh, or father-in-law, that Chinese law enjoins and public opinion considers desirable.
As the mother, no less than the father of a family, is made the object of ancestral "worship," it follows that she succeeds, nominally if not always actually, to her deceased husband's control over the family property. A widow is regarded as possessing a life-interest in her husband's lands, subject of course to the rights, actual or potential, of her sons. If the fên-chia has already taken place, all she can personally control is her yang-lao-ti. If, however, she enters into a second marriage, she must relinquish all her rights in her first husband's property. The reason of this is obvious. If widows were allowed to endow their second husbands with the property of the first, there would be a gradual disintegration of the system of family-ownership. There would no longer be any guarantee that the land would follow the "name."
If the "family-division" or fên-chia does not take place till after the father's death but during the lifetime of the mother, the deed of division or fên-shu must make reference to the fact that the transaction has received the mother's authorisation. The following may be taken as a very ordinary type of fên-shu in Weihaiwei: