VILLAGE LIFE AND LAND TENURE
To enter into a detailed description of Chinese village life would
take us far astray from the immediate purpose of this book, which is
to place before the reader a picture of Weihaiwei and the manners
and customs of its people. Many such manners and customs are indeed
common to the whole Empire, and in describing them we describe China;
others are, or may be, peculiar to eastern Shantung or to the districts
in proximity to the Promontory. Indeed, the student of sociological
conditions in various parts of Asia will perhaps observe how much
there is in common, with respect to village organisation, between the
people of Weihaiwei and those--for example--of many parts of the Indian
Empire. Far apart as the races concerned are in origin, traditions, and
geographical and climatic conditions, it is yet a fact that the village
communities of Weihaiwei at the present day are, in some important
respects, identical in structure with those of Burma, especially of
Upper Burma as it was before the annexation to the British Empire.
In outward appearance, it must be confessed, a Weihaiwei village is
a poor thing compared with a village on the banks of the Irrawaddy.
At close quarters it is often offensive both to the eye and to the
nostrils--for the peasantry of China are not a cleanly people. Seen
from a distance, the village that gives the greatest pleasure to
a European observer is the village that is almost entirely hidden
in a grove of trees. Not infrequently the villages have an almost
north-country English appearance. The houses are built of roughly-hewn
grey stone, of which there is abundance in the hills; the roofs are
usually of thatch, though the temples and some of the better-class
dwelling-houses are roofed with bluish-grey tiles. All buildings--even
temples--have very plain exteriors, and were evidently constructed
for use and not for outward show. There are no pagodas, and not much,
except a few twisted gables, that reminds one of southern China. Apart
from an occasional Chinese inscription cut on a block of stone (such
as "May a lucky star look down on us") or a crude representation of
the well-known figure of the _Yin_ and _Yang_ (according to Chinese
philosophy the complementary forces and qualities of nature),[72]
there is little to suggest Oriental surroundings. In the larger
villages may be seen theatrical pavilions in front of some of the local
temples, and these pavilions are often the most elaborate buildings,
as regards architectural structure and ornament, in their respective
neighbourhoods.
[Illustration: "WE ARE THREE" (see p. 250).]
[Illustration: VILLAGE OF T'ANG HO-HSI (see p. 128).]
The Weihaiwei Territory contains, as already stated, about three
hundred and fifteen villages and hamlets. Estimating the total area
of the Territory at three hundred square miles, and allowing for a
large hill-area of uncultivated barren land, we find that there are
probably about three villages, on an average, to every two square
miles of territory. No census has yet been taken, but the population
was long ago estimated by the military authorities (when they surveyed
the territory) at 500 to the square mile, which would give a total of
close on 150,000. I am inclined to think this estimate was too high
at the time it was made, though the present population, which has
been steadily increasing during the last decade, may not be far from
that figure. Continuing this rough estimate, it may be said that the
North Division[73] of the Territory contains 100 square miles with 84
villages, and a population of 50,000; the South Division 200 square
miles with 231 villages and a population of 100,000. There are no
walled towns or villages with the exception of the so-called city of
Weihaiwei, which is nominally under Chinese jurisdiction. There are six
market centres, all of which are situated in the South Division with
the exception of the first named: they are Weihaiwei city, Fêng-lin,
Ku-shan-hou, Ch'iao-Lou, Ts'ao-miao-tzŭ and Yang-t'ing. Market is held
at each of these places on every fifth day.
All these markets are of old standing with the exception of that of
Ku-shan-hou, which was established, or rather revived, in 1907. The
most important of the markets are those at Weihaiwei, Ch'iao-t'ou, and
Yang-t'ing. The merchandise sold includes all kinds of agricultural
produce in addition to material for clothing, cooking utensils, and
other household gear. Foreign cloth and fancy goods of a cheap kind
have a small sale. Beasts of burden are bought and sold as occasion
demands, but it is at the great annual fairs that they change hands in
largest numbers. These fairs were originally held in connection with
religious festivals, and, indeed, they are still semi-religious in
character. Men and women, especially the latter, flock to the temples,
which at other seasons are rarely visited, and burn incense before
the image of their favourite saint or deity; religious processions
are held--a great source of delight to the children, who are given
an opportunity of "dressing up"; and thousands of fire-crackers are
exploded in the temple courtyards. But it is the business aspect of the
fairs that appeals most strongly to the male adults who attend them,
for it is on these occasions that they hope to drive the best bargains
in the buying and selling of oxen, mules, ponies, donkeys and pigs.
A fair or _hui_[74] is held annually at most of the market centres
and at a few other places. One of the largest is held every spring
at T'ang-ho-hsi, close to the District Officer's headquarters, and
another at Pei-k'ou, where there is a temple in a picturesque defile.
Theatrical performances are always held on such occasions, in fact
they constitute part of the religious element of the _hui_. Though the
performances are secular in character they are known as _shên hsi_,
which might be translated "divine" or "religious drama."
The drama (such as it is) provides the most popular of all forms of
amusement among the agricultural classes. The actors are professionals,
who wander from place to place seeking engagements. Contracts are drawn
up by middlemen called _hsieh-hsi-ti_, and contain a concise statement
of how many days the performances are to be given (generally three or
four), how many actors are to take part in them, and what the payment
is to be. The actors carry with them their own garments, false beards,
masks and other "properties," while the stage is supplied by the
village. The stone-built theatrical pavilions usually face northwards,
towards the gateway of the temple with which they are connected.
Temples, and the images in them, face the south: thus the gods, for
whose benefit and in whose honour the plays are theoretically given,
have a full view of the entertainment. The spectators stand between the
temple and the stage. The performances (usually consisting of short
separate plays) take place at intervals throughout the whole of each
day.
[Illustration: A TYPICAL THEATRICAL STAGE BELONGING TO A TEMPLE
(see p. 130).]
[Illustration: VILLAGE THEATRICALS (see p. 132).]
There is very little originality in the plots of the pieces presented;
they are all taken from or founded on well-known Chinese legendary
episodes or on events described in famous historical novels. If this
were not the case, the dramatic methods in vogue in agricultural China
would have to be modified; for the dialogue cannot under present
conditions be heard distinctly except by a limited number of the
audience. Not to mention the gongs and cymbals of the orchestra, which
frequently come into action at what appears to foreigners to be the
wrong moment, the open air soon dissipates the players' voices, and the
great body of spectators ("audience" is hardly an appropriate word) is
apt to be somewhat restless, if not noisy. Female parts are generally
taken by specially trained boys or young men, though actresses are no
longer unknown in China. The acting is rarely good from a European
point of view; on the contrary, it is very stiff and full of what
seem to us ridiculous mannerisms. But it is unfair to judge of the
histrionic art of China from what one sees at a country fair.
The frequent association of the drama with religion in China will
naturally recall to the minds of students of English literature
the miracle-plays and mysteries of the Middle Ages in Europe. But
the analogy is not a very close one. The English drama, regarded
historically, may be said to be English through and through. The
changes it underwent were almost, if not quite, independent of the
history of the drama on the Continent. The evolution of the drama
can be traced step by step from its origin to its culmination in the
hands of the great Elizabethans. In China the origin of the drama is
doubtful; it is not (in its present or any similar form) of great
antiquity, and dramatic writing has never taken rank as a very high
form of art. Some of the elements of drama may probably be traced
in the stately gesture-dances, combined with music, of which we
read in some of the oldest Chinese books. Dances which are probably
very similar to those performed at the courts of the ruling dukes
in Confucius's time may be witnessed at the present day in parts of
Further India. In the old Indo-Chinese capital of Vientian on the
Mekong (now the capital of French Laos) I witnessed, in 1902, a dance
of this kind. By a stretch of the imagination it might have been styled
a drama in dumb show, but with more dumb show than drama: a dance that
aimed at expressing not so much the poetry of graceful movement as the
poetry of successive states of more or less dignified repose.
The Chinese drama of to-day is still a drama of posturing and gesture:
the player is for ever aiming at "striking an attitude." This is all
the more remarkable among a people who in ordinary life consider
gesture undignified and indicative of a lack of self-control. It
can, I think, be explained only as a survival from the days when
the Chinese drama consisted mainly of dance and music. The literary
developments of the drama--if indeed they may correctly be described
as developments--date only from the time of the Yüan dynasty
(1280-1367), and the popularity of the drama among the people seems to
have been only of gradual growth since that date. It was apparently
an importation from Central Asia, and came to China with the Mongol
conquerors. For some time this novel form of art was confined to
Peking and the other great centres of Mongol power, and to this day
the influence of Peking is shown in the very frequent employment of
the Peking dialect even in provinces where that form of speech is
unintelligible to the mass of the people.
A theatrical company may be engaged by any person or group of persons
willing to pay the required expenses. A theatrical entertainment is
not therefore necessarily connected with religion, though in Weihaiwei
it is generally so--at least in name. Occasionally a villager who
has acquired wealth in Manchuria or elsewhere makes a bid for local
popularity by paying the whole expenses out of his own pocket; but
as a rule the cost is met out of the common purse. This leads us
to a consideration of the internal polity and fiscal arrangements
of a Weihaiwei village, which must be clearly understood in their
main outlines if we are to arrive at any adequate conception of the
manner in which the peasants of this district, as of nearly the
whole of China, regulate their lives and allocate their rights and
responsibilities.
Certainly the main interest of the Territory, especially for those
interested in sociological questions, lies in the quiet and apparently
humdrum life of the village communities. As that life is now, so
it has been for unnumbered centuries. There is no manorial system,
no "villeinage," no landlordism, no rack-renting. The people of
Weihaiwei are practically a population of peasant proprietors, though
proprietorship is vested rather in the family (using the word in an
extended sense) than in the individual. Villages still bear, in very
many cases, the name of the family that lived in them as far back
as their history can be traced. Chang-chia-shan is the Hill of the
Chang family; Wang-chia-k'uang is the Defile of the Wang family;
Chiang-chia-k'ou is the Pass of the Chiang family; Yü-chia-chuang is
the village of the Yü family.
There is an old story of a weary traveller in Scotland who, having
arrived at a certain country town in the Border district late at
night, and finding closed doors everywhere, called out, "Are there no
Christians in this town?"--whereat an old woman popped her head out
of an upper window and replied, "Nae, nae, we're a' Johnstones and
Jardines here." The Scottish town at least had its two surnames; more
often than not a Weihaiwei village has only one. There may be Chinese
Johnstones or Chinese Jardines; but it is improbable that they will be
found together in the same village in such an old-fashioned district as
Weihaiwei. This is not, of course, universally the case. When a clan is
starved out of existence or has emigrated in a body, or, owing to its
paucity of numbers, has admitted immigrants, the village may gradually
become the property of several unrelated families. It is then known as
a _tsa hsing_ village, or village of miscellaneous surnames. Its old
name may or may not be perpetuated. Mêng-chia-chuang, which ought to
be the village of the Mêng family, is now the property of a well-to-do
family or clan named Liang, and the Mêngs have disappeared.
As a rule we find in Weihaiwei either that each village is exclusively
inhabited by the people of one name, who are all inter-related and
address each other as brothers and uncles and nephews, or that
one "surname" is in numbers, wealth and social influence greatly
predominant over the others. Title-deeds and tombstones testify to
the antiquity of many of the existing Weihaiwei families; many of the
peasant-proprietors who share the land among them to-day are the direct
or collateral descendants of the people who tilled the same fields in
the days of the Sung, Yüan and Ming dynasties.
There are considerable numbers, however, whose ancestors were
immigrants from other parts of China; some of these were military
colonists, some were transferred by Government from other provinces
as a result of political or social troubles connected with rebellions
or famines. There are many well-known residents who themselves have
never travelled beyond the boundaries of the Wên-têng and Jung-ch'êng
districts, but who are well aware, from their carefully-preserved
pedigree-scrolls, that their ancestors were brought hither by
Government hundreds of years ago from provinces as far distant as
Yünnan. The Roman Emperors, we know, frequently adopted a similar
method of dealing with certain political exigencies, for they
transferred whole bodies of people from one province of the Empire to
another; but the fate of the transferred Chinese was better than that
of many of the Roman provincials, for they retained their independence
and did not become the serfs of overlords.
A typical village of Weihaiwei may be defined as consisting of a
group of families all bearing the same surname and all tracing their
descent from a single ancestor or a single ancestral stock, each
family in the group constituting a semi-independent unit, owning
its own lands, possessing certain rights over a common tract of
pasture-land and sharing in the rights and responsibilities connected
with the upkeep of the Ancestral Temple[75] and its tablets,[76] the
family burial-ground,[77] and any land or property that may have been
specially set apart to provide for the expenses of religious ceremonies
and sacrifices.[78] The more mixed a village becomes, that is, the
greater the number of "surnames" that it contains, the more widely does
it depart from the uniformity implied by this description. There may,
for example, be several ancestral temples, several burial-grounds,
many different patches of sacrificial land; though if the immigrants
came from a village in the vicinity, and have left there the main body
of their clan, it sometimes happens that they will still associate
themselves with the parent-village rather than with that in which they
live, and will therefore refrain from establishing new centres of
ancestral worship.
The units of the village community are not individuals but families.
Nothing is more important for an understanding of the wonderfully
stable and long-lived social system of China than this fact: that the
social and the political unit are one and the same, and that this unit
is not the individual but the family.[79]
It is well known that this family-system exists, or till recently
existed, in nearly every Asiatic country; and that only within the
present generation the advance of European influence and legal notions
has in some parts of the Continent brought about a gradual tendency to
Western individualism.[80]
But the European must not too hastily assume, when he sees
individualism largely replacing the old family-system in such countries
as Japan, that the wiser heads in those countries regard the change as
being in all respects beneficial. Some of them are inclined to fear
that the new system--though its adoption may possibly be necessary
in order to supply their country with a certain brute strength which
the old system lacked, and so to enable it to cope with European
aggression--tends to the grievous injury of much that they believe to
be essential to true civilisation. They do not welcome with enthusiasm
the emergence above the social and political horizon of that strange
new star--the self-contained individual. They contemplate with
something like dismay the weakening or breaking of the old family
bonds, which if they were sometimes a hindrance to personal advancement
and had a cramping influence on the individual life, at least did much
to keep within bounds the primitive instincts of selfishness and greed.
Even in Europe there are thinkers who have expressed doubts as
to whether our Western individualism is not a terribly fragile
and unstable foundation on which to build a vast social system;
whether there are not already signs of decay in the very bases of
our civilisation. The truth of the matter is that there are certain
profound social problems which have never yet been solved either by
the East or by the West. We are all yet in various experimental stages
of social progress. It may be that if Western theories and ideals have
soared to greater heights, Eastern theories and ideals have aimed at
producing a greater fundamental solidity;[81] and that, the essential
differences being so great, it is inadvisable for either hemisphere
to press its ideals too persistently on the other, and dangerous for
either to abandon its own ideals too hastily in deference to the
other's teaching or example.
Most people have heard a great deal of the high standard of
commercial honour that prevails among the Chinese. Testimony to this
characteristic has been given so often by English merchants and
others that it seems unnecessary to insist upon it. I will only say,
in passing, that nearly all business transactions between Chinese
and Chinese, even those involving considerable sums of money, are
in Weihaiwei still carried out by word of mouth. The point to be
emphasised here is that the commercial honesty of the Chinese is to
a great extent dependent on and the result of their theory of the
relationship between the individual and the family, which theory is
in turn based on the social doctrines (such as filial piety) which
Confucius taught or sanctioned.
The Western individual who owes money and cannot or will not pay
can always shoot himself or abscond or go bankrupt. He may leave a
stigma on his family if it is known who his family are, but the debts
were his own and his relations cannot be held responsible. But the
identification of the interests and obligations of an individual with
those of his family have in agricultural China this peculiar and
socially beneficial result, that a man cannot dissolve his liabilities
by such a simple process as going bankrupt or dying.[82] His rights are
inherited by his sons: so are his liabilities. The law, it is true,
limits a man's liability for an ancestor's debts to the extent of his
own inheritance: but the rule of custom is sterner than the rule of
law. In 1907 a man whom we will call Ku brought me a petition in which
he stated that in the seventh year of Chia Ch'ing (one hundred and five
years earlier) an ancestor of his had contracted a debt of three _tiao_
(a sum which at the present day is worth five or six shillings) to a
man Liu. Liu's descendant, rummaging among the family archives, had
recently chanced to come across documentary evidence of this debt (the
grimy little scrap of paper was produced in court) and he forthwith
brought it to Ku, who had never heard of the transaction, with the
suggestion that final settlement of this long-standing little bill was
now eminently desirable. Principal and interest together then amounted
to something like twenty times the original amount.
The reason why Ku brought his case to my court was not that he objected
to this unexpected call upon his slender purse, for as it happened he
had already paid the whole amount without a murmur; he merely came to
suggest that as the original debtor had two direct living descendants
besides himself, those two persons should be required to pay their fair
shares of the ancestral debt. He wished to know the views of the court
on the point before he demanded payment from them. The man might in law
have repudiated this debt altogether: Chinese law does not and could
not go as far as local custom in settling questions that directly or
indirectly concern the honour of a family. Repudiation of an ancestor's
debt is, however, as rare in a Weihaiwei village as is bankruptcy.
Debts may go unpaid, but only at the risk of a "loss of face" that
would in most cases cause the debtor much greater inconvenience and
discomfort than the monetary loss.
Weihaiwei has as yet shown but little tendency to modify its
semi-patriarchal social system as a consequence of its fifteen years
of continuous contact with Western civilisation. The individual is
still sunk in the family. He cannot divest himself of the rights any
more than of the responsibilities that belong to him through his family
membership. The Weihaiwei farmer has indeed so limited a conception
of his own existence as a separate and distinct personality that in
ordinary speech he continually confuses himself with his ancestors or
with living members of his family. Examples of this are of repeated
occurrence in the law-courts. "I bought this land and now the Tung
family is trying to steal it from me," complains a petitioner. "When
did you buy it?" asks the magistrate. "Two hundred years ago," promptly
replies the oppressed one. Says another, "My rights to the property
of Sung Lien-têng are being contested by my distant cousin. I am
the rightful owner. I buried Sung Lien-têng and have charge of his
soul-tablet and carry out the ancestral ceremonies." "When did Sung
Lien-têng die?" questions the magistrate. "In the fortieth year of
K'ang Hsi" is the reply. This means that the deceased whose property is
in dispute died childless in 1701, that plaintiff's ancestor in that
year defrayed the funeral expenses and acted as chief mourner, that by
family agreement he was installed as adopted son to the deceased and
heir to his property, and that plaintiff claims to be the adopted son's
descendant and heir. Looking upon his family, dead and alive, as one
and indivisible, he could not see any practical difference between the
statement that certain funeral rites had been carried out by himself
and the statement that they had been carried out by a direct ancestor.
Another litigant, whose long residence abroad had had no apparent
effect on his general outlook on life, came to me very recently with
the complaint that on his return from Manchuria he had found his land
in the possession of a neighbour. "I went to Manchuria as my family
had not enough to eat," he said. "I came home this year and wished to
redeem the land I had mortgaged before I went away. But I found it had
been already redeemed by my neighbour, a cousin, and he refuses to let
me redeem it from him." On being asked when he had mortgaged his land
and emigrated, he replied: "In Chia Ch'ing 3"--that is, in 1798. He was
merely identifying himself with his own great-grandfather.
In another case a man whom I will call A brought a plaint to the effect
that he wished to adopt B, and that C for various reasons refused to
allow this adoption to take place. On investigation it turns out that
B is dead and that it is his infant son D whom A really wishes to
adopt. B and D--father and son--seem to A merely different expressions,
as it were, of the same entity. This does not mean, of course, that
supposing B were still alive it would not matter whether B or D
actually became A's adopted son. The rules of adoption in China are
strictly regulated. A man cannot adopt any one he likes. Not to mention
other necessary conditions, the person adopted must belong to the
appropriate generation, that is, to the generation immediately junior
to that of the adopter. In the case before us the infant D belonged to
the proper generation, and his father B could not have been adopted. To
our notions it seems all the stranger that A, knowing this, should have
spoken of B when he meant D: yet this manner of speech is exceedingly
common.
But after all, if we wish to assure ourselves that the individual is
not regarded as an independent unit we must rely on stronger evidence
than strange verbal inaccuracies. Perhaps the best and most convincing
proofs will be found in the restrictions placed on the powers of the
individual to dispose of real property.
It is necessary at the outset to lay stress on the fact that there
is no evidence, so far as I am aware, of the former existence, in
Weihaiwei or elsewhere in China, of agrarian communism. A village
community may indeed possess a common tract of pasture-land, or common
pasture or "fuel" rights over private hill-lands at certain seasons
of the year,[83] or some arable fields may under certain conditions
be cultivated by different persons or different families in turn: but
if we were to assume from this that all arable land was once owned in
common and that individual or family proprietorship has only gradually
superseded an old communistic system, we should be entirely wrong.
Students of the laws and customs relating to land must be careful, as
Fustel de Coulanges has clearly warned them, "not to confuse agrarian
communism with family ownership, which may in time become village
ownership without ceasing to be a real proprietorship."[84]
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]
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:
"This _fên-shu_ is made under the authority of Yü Ts'ung Shih.[92]
There are three sons, of whom the second, Shu-yen, has been
'adopted out' to another branch of the family.[93] The following
division of property is made between the eldest son Shu-tung and
the third son Shu-shan. The division is necessary because the
families of Shu-tung and Shu-shan have become so large that it
is no longer convenient for them all to live together. With the
knowledge and assent of their relatives they have drawn lots
for the division of the property, and the result is as follows:
Shu-tung's share is the plot of land ...; Shu-shan's share is the
family house, consisting of the three-roomed central building and
two side-buildings of two rooms each, together with the garden and
fields bounded.... This deed is made out in duplicate, in order
that Shu-tung and Shu-shan may each possess an original and hold
it as his just title to the property allotted to him. This deed
is drawn up and attested by the clan-members so that none of the
parties concerned may hereafter go back on the division of property
herein described. If any one raises any complaint hereafter,
let him be sent to the magistrate in order that he may receive
punishment for the crime of want of filial piety (_pu hsiao_)."
Then follow the names of a number of attesting and assenting relatives,
the name of the writer of the deed, and the date. Simultaneously a
second deed, called a _ch'u tan_ or Reservation of _Yang-lao-ti_, is
very often drawn up in such terms as these:
"This _ch'u tan_ is executed by Yü T'sung Shih. Inasmuch as her
three sons have set up separate establishments, and one of them,
namely her second son Shu-yen, has been adopted by another branch
of the family, Yü Ts'ung Shih, with the knowledge and assent of
the elders and relatives of the family, reserves to her own use
that house situated ... and that piece of land measuring ..., for
the purpose of providing for her support during life and for her
burial expenses after death.[94] All that remains of this property
after these charges have been met is to be equally divided between
the first and third sons T'sung Shu-tung and Ts'ung Shu-shan. The
second son, Ts'ung Shu-yen, has no share in or right to any portion
of this property, as he cannot carry the family property away with
him when he is 'adopted out.'[95] Lest there should be no proof of
this transaction hereafter, this deed is drawn up and attested, and
is to be preserved for future reference."
It will be seen from the first of these two documents that a method of
dividing real property among brothers is the drawing of lots (_nien
chu_ or _chiu fên_). There is no system of primogeniture: all the
brothers receive share and share alike. The process of lot-drawing
is a very simple one. The family-in-council begins by dividing the
property into a number of shares corresponding with the number of the
beneficiaries. The shares are approximately equal in value: one may
include the family dwelling-house and a small area of arable land;
another share, containing no house, will comprise a larger area of
land; and so forth. Descriptions of all the shares are written on
separate pieces of paper, which are folded up or twisted into little
bundles and thrown together in a heap. The second, third and fourth
brothers, and so on down to the youngest, draw lots, each in the
order of seniority; the sole remaining lot is thus left to the eldest
brother. Each must be content with the piece of land, or the house, or
the vegetable garden, as the case may be, which is inscribed on his
lot, though friendly exchanges are of course permissible. The eldest
brother is so far from having a claim to a larger or better share than
the rest that, as we see, he is not even entitled to draw the first
lot: probably, indeed, it is to emphasise the principle of share and
share alike that custom requires him to take the lot that is left to
the last. The drawing of lots is not resorted to in cases where the
shares are all equal and there are no preferences.
If as a result of repeated subdivisions the family property has become
so small that there is not enough to "go round," or the family is so
large that an equal division would leave each with too little for
his support, the usual arrangement is for the entire property to be
mortgaged or sold to the nearest relatives who are willing to buy. The
cash proceeds are then divided equally among the brothers, who separate
to seek their fortunes, each according to his bent. One may emigrate
to Manchuria, or join his numerous fellow-provincials in the capital,
another may set up a shop in the neighbouring market-village, a third
may wander off to one of the great commercial ports on the coast, and
seek employment under foreigners. The unsuccessful ones may possibly
never be heard of again; the successful ones will probably return after
many days to their native village and re-purchase or redeem the old
family property.
The remarkable increase in the value of agricultural land that has
taken place in the Weihaiwei Territory during the past few years is a
pleasant symptom of the advancing prosperity of the people. The fact
must be admitted, however, that the increase is to a considerable
extent due to their economic backwardness. There is a serious want of
local means for the satisfactory investment of capital. To purchase
land is to the great mass of the population the only safe way in which
savings or profits can be employed. The consequence is that the land
has now acquired a somewhat fictitious value, a fact which may come
prominently into view if the people should be visited by some calamity
such as a succession of bad harvests.
FOOTNOTES:
[72] See pp. 262 _seq._
[73] See pp. 97-8.
[74] The word may be translated as "a coming together." It is the usual
word for a "society" or "club."
[75] _Chia miao._
[76] _Shên chu._
[77] _Huo Ying-ti._
[78] _Chi-t'ien._
[79] As an indication of how widely sundered are the theory and
practice of East and West in the matter of social organisation, D. G.
Ritchie's _Natural Rights_ (1903 ed.), pp. 259-60, may be consulted.
"No real or positive equality in social conditions," says that writer,
"can be secured so long as individuals are looked at in any respect as
members of families, and not in every respect as members of the State
alone." Yet in China, where individuals are in almost every respect
regarded as members of families, and never dream of claiming to be
members of the State alone, there is far greater equality in social
conditions than there is in the individualistic States of the West! Let
us hope for China's sake that this fact will not be overlooked by those
young patriot-reformers who are casting about for ways and means of
raising their country in the scale of nations.
[80] The family-system has of course existed in regions other than
Asia. "In most of the Greek states and in Rome," says Sir Henry Maine
(_Ancient Law_, 4th ed., p. 128), "there long remained the vestiges
of an ascending series of groups out of which the State was at first
constituted.... The elementary group is the Family, connected by common
subjection to the highest male ascendant. The aggregation of Families
forms the Gens or House. The aggregation of Houses makes the Tribe.
The aggregation of Tribes constitutes the commonwealth." In another
place (p. 126) he speaks of "the clearest indications that society
in primitive times was not what it is assumed to be at present, a
collection of _individuals_. In fact, and in the view of the men who
composed it, it was _an aggregation of families_. The contrast may be
most forcibly expressed by saying that the _unit_ of an ancient society
was the Family, of a modern society the individual." Had Maine been
acquainted with the details of the social organisation of the Chinese
he would have found a copious source from which to draw illustrations
of his thesis, and would have perceived that the family-unit system is
not yet to be spoken of as a vanished phase of social development.
[81] "The whole Chinese administrative system is based on the doctrine
of filial piety, in its most extended signification of duty to natural
parents and also to political parents, as the Emperor's magistrates
are to this day familiarly called. China is thus one vast republic
of innumerable private families, or petty _imperia_, within one
public family, or general _imperium_; the organisation consists of a
number of self-producing and ever-multiplying independent cells, each
maintaining a complete administrative existence apart from the central
power. Doubtless, it is this fact which in a large measure accounts
for China's indestructibility in the face of so many conquests and
revolutions."--PROF. E. H. PARKER in the _Journal of the Royal Asiatic
Society (China Branch)_, vol. xl. (1909), p. 14.
[82] It must be understood that what is referred to is "custom" rather
than law, and that these remarks are not always applicable to the
business relations between Chinese and foreigners at the treaty-ports,
where commercial intercourse is to a great extent conducted on Western
lines. When an English banker declares (as he has declared) that the
word of a Chinese is as good as his bond, he is paying a compliment not
so much to the character of the Chinese people (who as individuals are
no more though perhaps no less trustworthy than average Englishmen),
as to the fundamental soundness of the Chinese social system. If that
system is subverted, through the efforts either of foreign advisers
or of Chinese reformers, the moral results may be disastrous beyond
conception. Let there be evolution by all means; not revolution.
[83] As, for instance, after the silk worms have been taken off the
scrub-oak bushes.
[84] _The Origin of Property in Land_, transl. by M. Ashley, p. 151.
[85] Perhaps it is hardly necessary to explain that a Chinese who cuts
himself adrift from his family, or emigrates, or sets up in business
in some distant town or in a foreign Settlement such as Shanghai, may
and often does acquire real property under conditions that render
him absolutely independent of his family or clan. The family-rights
are not, indeed, extinguished: they are merely in abeyance owing to
the difficulty or impossibility of enforcing them. Yet the theory
of family-ownership is often--thanks to Chinese conservatism and
clan-loyalty--fully recognised even in such cases as these.
[86] The Chinese word for "Family" (_chia_) is often more suitably
rendered with the word "Clan."
[87] This is a customary, not a legal, arrangement.
[88] In Weihaiwei a mortgage is regarded as an out-and-out sale if the
right of redemption is not exercised after a definite number of years.
[89] This may be compared with Hindu custom. "The instant a child is
born he acquires a vested right in his father's property, which cannot
be sold without recognition of his joint ownership" (Maine's _Ancient
Law_, p. 228). Cf. also Plato, _Laws_, xi.: "You cannot leave your
property to whomsoever you please, because your property belongs to
your family, that is, to your ancestors and your descendants." This is
the Chinese theory precisely.
[90] The _fên-shu_ being "neither secret, deferred, nor revocable,"
may be compared with the early Roman "Will," which was not a Will at
all in the modern sense of the word. See Lord Avebury's _Origin of
Civilisation_ (6th ed.), pp. 486-7.
[91] Cf. p. 199.
[92] That is, Mrs. Yü _née_ Ts'ung.
[93] Cf. pp. 205, 284 _seq._
[94] _Shêng yang ssŭ tsang._
[95] _Pu nêng tai ch'an ch'u chi._