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China Legal Science 2023年第3期 | 中国明清时代地权秩序的维系与凭证
Zou Yasha
TABLE OF CONTENTS
I. CONTRACT AND LEGALITY OF LAND RIGHTII. MULTIPLE PROOFS OF THE LEGALITY OF LAND RIGHTIII. FUNDAMENTAL FACTORS FOR THE MAINTENANCE OF LAND RIGHT ORDERIV. CONCLUSION
In China’s Ming and Qing dynasties, the legitimacy of individuals’ land title was not clearly confirmed by the government, nor was it acknowledged in national codes by means of abstract and systematic expression. Given the lack of state intervention in civil activities, the civil society spontaneously established a mechanism to prove the legitimacy of the land’s ‘origin’ and stabilize the ‘property of land’ system. A large number of judicial cases and folk customs in this period show that the contract is an important proof of the legitimacy of land title and direct evidence used in dispute settlement, but it is not, as Hiroaki Terada said, the only certificate of title. In practice, the contract, official land map, receipt of grain tax, deed tax, tombstone, and genealogy, etc. jointly provide legitimacy for the ‘property of land’ system. On a deeper level, unlike the western contract, which is the product of the legal protection of private rights, the social relations and the rule by etiquette in China at that time were the fundamental elements in shaping the unique contract culture of traditional society and maintaining the system of ‘property of land’.
At present, a stable property right system is the premise of social stability and social order, as well as the basis of the circulation of things. The stability of the ‘property of land (guan ye)’ system in the Ming and Qing dynasties also needed a legitimate foundation. In the Ming and Qing dynasties, the government’s governance of land was only limited to land tax, and therefore legitimacy and justification of individuals’ land title were not clearly confirmed by the government and the code, and the maintenance of the ‘property of land’ system was left to the civil society. Since the state and society were the dual players in land title management, we can only seek the legitimate origin of ‘property of land’ from judicial precedents and folk customs.
Japanese scholar Hiroaki Terada believes that in the Qing dynasty, ‘the so-called ‘land ownership’ refers to the whole legitimizing process presented to the society in which the previous land owner passes the land title to the current land owner by delivering a sale deed, hence the current owner legitimately obtains the land title.’ (At that time, the whole process was called ‘origin’, which was specifically manifested in a non-callable deed written and delivered by the previous owner). ‘In land trading, the deed written by the seller and handed over to the buyer is the only certificate of land title for the buyer, which has the function of winning support or protection from the society’. In Terada’s view, the contract becomes the legal proof of the ‘origin’, and the ‘origin’ shows the legitimacy of the owner’s land title, so the contract is the only means for the ‘origin of the land title’ to continue legally. Chinese scholars also generally acknowledge the role played by contract in the ‘property of land’ system: ‘The deed obtained from the previous owner makes the property right (real right) look like creditor’s right in nature, and it proves the legitimacy of real estate rights through a series of buyer-seller relationships.’
Undoubtedly, the contract played an important role in the traditional ‘property of land’ system. However, a noteworthy phenomenon is that in civil transactions and judicial trials, there were also a large number of cases where the land title was not arbitrarily denied only due to the absence of the contract. Then, is the contract the only evidence of the legitimacy of ‘property of land’ in the Ming and Qing dynasties? What role did the contract play in the land title management of the Ming and Qing dynasties? In the Ming and Qing dynasties when there was no legal confirmation of property right, what was used to prove the legitimacy of the ‘property of land’ system and maintain its basic stability? This paper is an attempt to address these questions through analyzing judicial cases, civil customs and contracts.
I. CONTRACT AND LEGALITY OF LAND RIGHT
In the land contract of the Ming and Qing dynasties, there were usually clauses that explain the source of land to indicate the legitimacy of the land to be disposed of. The types of sources mainly included ‘inherited’, ‘divided’ and ‘acquired’. ‘Inherited’ means the property is left by ancestors, ‘divided’ means the land was divided from the family property, and ‘acquired’ means the land was either bought or developed by the owner. In addition, there were often expressions in the contract, saying ‘once the money is paid and the deed is delivered, the buyer can start farming, recruiting tenants, and managing the land’. Such formatted expression shows the general demand back then for proving the legitimate origin and clear ownership of the traded land.
In the Ming and Qing dynasties, people could obtain land either by officially confirmed means such as reclaiming and rewarding or by non-official ways of buying, selling, pawning, inheriting and gifting. Except for the land obtained by reclaiming wasteland, the owner of which was issued by the government the Certificate of Land Tax Paid, the change in land title as a result of land sale, inheritance and household division and property separation was mainly confirmed by the contract concluded between traders, and the government generally did not interfere. The land acquired by reclamation mainly occurred at the beginning of a dynasty or in the aftermath of a war. In most other times, the contract was the proof of the legitimacy of ‘property of land’. Therefore, the contract had been generally recognized by the people as a proof of the legitimacy of the land title. In the Ming and Qing dynasties, there was a custom of handing over the previous land deeds to the buyer in many areas.
The contract was also recognized by the official law as a proof of the legality of land. The Great Qing Code (Da Qing Lü Li) regarded the contract as key evidence to solve the disputes over land property: ‘In civil disputes over the title to grave-hills, property rights obtained in recent years are decided by the deeds under seal. If the property rights were obtained from the long past, it is necessary to check their serial number, acreage, register, and receipt of land tax. If these pieces of evidence support each other, the land title then can be confirmed. If these pieces of evidence do not support each other, and there is neither register nor record of grain tax, the contract signed in the long past or the family biography shall not be used as evidence of land title, and those who groundlessly sue others for land trespass will be convicted and punished according to the law.’ The proclamation by the vice governor of Zhejiang Province in the thirty-eighth year of Emperor Qianlong’s reign (1773) stated: ‘Individuals’ ‘property of land’ is confirmed by contracts, which means no contract, no ‘property of land’.’ This proclamation raised the status of the contract to a higher level: ‘no contract, no property of land’. Although this was not necessarily always the case in practice, it showed the official position on the contract to a certain extent.
A large number of cases in the Ming and Qing dynasties illustrated the role of contracts as direct evidence in judicial trials. In a case tried by Yan Junyan, a judicial official of Guangzhou government in the Ming dynasty, Chen Jie’s house was bought from Cao Maode and Cao Maode bought the house from Zhong Yinghong. Chen Jie had lived in the house for twenty-nine years with no objection from anyone. Now Chen Jie was in financial difficulties and sold the house to Chen Yiwang. However, at the time of the transaction, Zhong Jizhi and Zhong Jizu, the sons of Zhong Yinghong, came forward to obstruct, claiming that the house belonged to the military and was leased to Chen Jie who overstayed long and refused to move out. Therefore a dispute arose between the two sides. ‘The official asked the Zhong brothers to show the lease, and they claimed that they had lost it. Then what was their evidence? They showed a picture of the house without the geographical position marked, which made it difficult to assume that Chen Jie’s house is the house in the picture. Chen Jie’s deed was real and irrefutable, and the words of the Zhong brothers were groundless, so we did not have to wait until they finished their words to know that what they brought was a false charge.’ In this case, Chen Jie won the case, because the deed of the sale that he had was irrefutable, and the Zhong brothers did not have the deed, and thereby ‘they were found guilty of false accusation’.
A case in the memorial of the Qing dynasty reflected the official way of settling land disputes and the role of contracts. The Ministry of Home Affairs reported that grain transport soldier Gao Biaofang in Nanchang of Jiangxi Province accused Tao Yu, a scholar in the county, and others of occupying his ancestral property for benefit with fake contracts for 14 years. Officials in Nanchang, after nine rounds of investigation, ruled that Gao and Tao manage the land separately according to their contracts. Tao refused to accept this, and turned to sue Gao. Gao Biaofang complained that a clerk under the surname of Wan who worked in the provincial government was Tao’s relative, who was the reason why the case was protracted. For this case, the Ministry of Home Affairs believed that ‘the lawsuit on real estate should be ruled according to the deeds and grain tax receipt’, taking deeds and tax receipt as the evidence for clear judgment of the case. The Ministry of Home Affairs decided that the key to the case was to ‘retrieve the tax receipt and summon the two parties for inquiry’ and interrogate relevant officials to see whether they had committed illegalities for personal gains.
In the Ming and Qing dynasties, the role of the contract was recognized in folk customs and judicial trials. The contract was an important basis of land ownership and direct evidence for dispute settlement. Contracts, tax receipts and the official register played a joint role in proving the legitimacy of land title and resolving judicial disputes, which was of great significance for maintaining the ‘property of land’ system.
In the Ming and Qing dynasties, although the contract was an important proof of the legitimacy of land title, it was undeniable that there were a large number of contracts that were not or could not be delivered in non-official land transactions. In many areas, there was a custom of not handing over to the buyer the contract that the seller obtained from the previous seller in land transactions.
The contract was not delivered because either the contract had been lost, destroyed by fire, or had to be kept as proof of adjacent land parcels of a larger piece of land from which the sold land parcel was divided. In Fujian and regions south of the Yangtze River, land parcels were traded frequently, and the land title was often divided as a result. When a piece of land as a family property was divided into smaller land parcels for different family members or sold separately to different buyers, not all the new land owners could get the original contract. Therefore, it was often written in the new land deed that ‘the contract of the previous deal is kept as evidence for other adjacent land parcels and cannot be delivered.’ Land transactions were not affected by such an arrangement. In some areas, it was customary to note the specific situation in the contract, or to make a statement saying ‘The former contract shall be deemed invalid should it be picked up later by others’.
In many cases, the government did not arbitrarily deny the owner’s rights simply because there was no former contract. Some judicial officials believed that ‘it is common to sell different parts of a land separately without handing over the former contract to the sellers’. The Official Contract of Li Sheng and Others’ Land Sale in the Eighth Year of Emperor Yongle’s Reign issued in Huizhou in 1410 in the Ming dynasty recorded that:
Li Sheng from Town 11 and his nephew Shi Xuan inherited from his grandfather a parcel of land that was previously bought by his grandfather from Zhang Demao who lived in Town 31 of Xiuning County. The land is located in Neighbourhood 1 of our town, registered under the name of Zhang’s Garden at the Dock and numbered 93 with a total coverage of 1 mu and 1 jiao. ... Today, this land parcel together with the bamboos planted on it is sold to Wu Xiren with a signed contract at a current negotiated price of 30 guan in banknotes, and the price is paid in full today. … All the previous relevant deeds have not been found, and will not be valid if they appear in the future. This officially approved contract is hence issued as evidence.
In this officially approved contract, ‘all the previous relevant deeds have not been found’, which indicated that the seller had not found the former contract. However, the government did not deny the seller’s land title, nor did the government stop this land transaction. The two parties just agreed in the contract that ‘the previous deeds will not be valid if they appear in the future’. The government confirmed the legitimacy of the owner’s land title and the transaction. In another lawsuit in the Qing dynasty, we can tell that judicial officials did the same thing:
Zheng Haoshi once helped her parents ‘redeem a piece of land and build a house’. Hao Hu’er, the younger brother of Zheng Haoshi, ‘knew that the deed was lost, and refused to pay the debt against his conscience.’ Fan Zengxiang, an official who tried the lawsuit, said, ‘If this is true, then what Hao Hu’er did is extremely illegal.’ He then sent attendants to cooperate with the previous owner Hao Tianyuan to investigate whether Zheng Haoshi helped her parents ‘redeem the land and build a house’. If this is true, then according to the originally agreed plan, just let ‘Hao Hu’erpay 20 strings of coins to settle the case, so as to avoid bringing the case to the court, and hurting their family affection.’ In this case, the deed was lost, and the official did not directly deny the owner’s title to the house, rather, he confirmed her land title based on other evidence and the investigation results.
In the above-mentioned custom and judicial practice, the contract was not taken as indispensable evidence, and the legitimacy of ‘origin’ can be proved by other evidence. These common customary and judicial practices showed that it was not like what Hiroaki Terada said that the deed was the only certificate of land title.
II. MULTIPLE PROOFS OF THE LEGALITY OF LAND RIGHT
At this point, the problem to be answered urgently is, in those areas where the delivery of contract was not necessary or possible, what then was the certificate of ‘property of land’ to maintain the stability of land management?
In the Ming and Qing dynasties, the records in the official land map were one of the powerful evidence of the legitimacy of land titles. In the third year of Emperor Hongwu’s reign in the Ming dynasty (1370), the household registration system was established to collect statistics of the villagers’ birthplace, family population and land property. In the 14th year of Emperor Hongwu’s reign (1381), the household registration started again, registering the household population, property, land and taxes as the legal basis for the country to govern population, land property and taxes. In the 20th year of Emperor Hongwu’s reign (1387), by collecting data of land and property, the land map was completed for the first time, recording in detail the owner’s name, acreage and land shape of each household with serial number. The land map is not only the document certificate for the state to confirm the land title and levy land taxes, but also the legal basis for the official to settle land disputes. Therefore, the History of the Ming Dynasty (Ming Shi) says: ‘The land map is the basis for land dispute settlement; the household register is the basis for taxation.’
In the early years of the Qing dynasty, in order to strengthen the government’s control of society, in the 3rd year of Emperor Shunzhi’s reign, The Tax Book (Fu Shui Quan Shu) was compiled, recording in detail lands, household population, farmlands, taxes and so on. In the 11th year of Emperor Shunzhi’s reign, officials started to compile the household register, investigating, collecting data of and checking the land, and completed the land measurement register as well as the household register in the 14th year of Emperor Shunzhi’s reign. During Emperor Kangxi’s reign, the government once ‘stopped compiling household register’, and then, in order to promote the implementation of the reform of ‘canceling poll tax and levying land tax only’, the land map system was re-established in the 51st year of Emperor Kangxi’s reign (1712).
In the Ming and Qing dynasties, the records in the land map and household register were regarded by judicial officials as important evidence for dispute settlement. Even if there was a contract, they would still check it against the official documents. If they were not consistent with one another, the contract would not be considered valid. A case file from the Qing dynasty recorded: ‘Meng Dazhu holds a contract sealed in the 2nd year of Emperor Tongzhi’s reign, which records that Sun Wuting sold the land under the serial number of Li No.310 with an acreage of 4 mu, 4 fen and 1 li. He also holds the household record and tax receipts of all these years, so it seems that he has solid evidence of his title to this land.’ After investigation, it was found that the land under the serial number of Li No. 310 had an acreage of 2 mu, 6 li and 2 hao, which was inconsistent with the acreage recorded in the contract. Besides, the deed recorded that the then registrar was Sun Zhangxing from Nandong village, however, in the official household register, there was not such a household under the name of Sun Zhangxing. There were still many signs of erasure in the contract. Finally, the magistrate of the county decided that Meng Dazhu’s contract was fake, and the land property was ‘owned by Sun Qichang’, and ‘the contract, household record and tax receipt were invalidated and attached to the file.’ During the investigation of this case, judicial officials checked the contract against the official land map, household register and other documents, and identified the contract as forged because of many inconsistencies.
However, household registration and land registration made by the government were not stable systems running throughout the Ming and Qing dynasties. Land register depended on a strong government for maintenance and update. But this was not something that the government could afford throughout the whole dynasty. At the same time, the household register was revised once every ten years, severely lagging behind the social reality. Therefore, as documents with official authority, household register and land register only played a limited role in the judicial trial and the ‘property of land’ system as one of the evidence due to their own limitations.
One of the major sources of private land title in the Ming and Qing dynasties was to issue government decrees to distribute wasteland to farmers for ‘reclaiming and farming and grant them permanent title to these reclaimed lands.’ The Ming dynasty confirmed the land title to the reclaimed land by decree, and issued a ‘household certificate’ to prove the land title, and the official land certificate issued by the Qing dynasty was a ‘license’. Such official practices generally occurred when lands were abandoned due to warfare, or when new lands were found with no owners. Official household certificates or licences no doubt were the most powerful evidence in the ‘property of land’ system and the judicial trial, but only a very limited number of lands could obtain such official certificates.
The receipt of tax payment was powerful evidence of land title and could be recognized by judicial officials. Owners must pay taxes and grain, and get receipts from the government. In judicial trials, it was common for officials to use such receipts as one of the shreds of evidence to settle disputes. The Qing dynasty’s Legal Decisions in Si Xi Lodge (Si Xi Zhai Jue Shi) recorded: ‘Ye Xiyi accused Lin Meirong and others of trying to forcefully occupy the grave hill. Although the contract of the ancestral graves was lost for a long time, he still had the receipt of grain taxation. However, the Lin household had no contract nor grain tax receipt, and could only argue with groundless words, then how was it possible for a land without grain?’ In this case, the official decided that Ye Xiyi had no contract but a grain tax receipt, while Lin had neither a contract nor a grain tax receipt, then Ye was ruled as the owner of the land.
However, there were often loopholes in taking grain tax receipts alone as a proof of dispute resolution. The local regulation in Jiangxi Province of the Qing dynasty, Key Political Affairs of Jiangxi, mentioned: ‘Most of the lands were inherited from ancestors long ago and did not have any contracts or vouchers left, leaving the land boundary unclear. Tenants knew that land owners had no evidence, and then conspired to divide the land into different land parcels, marked the four boundaries, and secretly went to the county office to register the land parcels as farmland for benefit. As time went by they would refuse to pay rent and return the land. When the landlord brought the dispute to the county official, the tenant then would present the grain tax receipt and the land register, which rendered the landlord’s accusation unsupported, and then the case would remain unsettled for years.’ During the Qing dynasty, people realized that grain tax receipts were not enough to be the only evidence to solve disputes over land property. The same was true of the deed. Although the national legislation stipulated that land and house transactions should pay taxes, however, there were a large number of white deeds with tax unpaid which were still recognized by folk custom. At the same time, due to the lax management or review of deed tax, the tax was only paid in case of litigation rather than immediately after the land transaction.
In addition to the above official certificates, folk genealogies and tombstones can also be used as proof of ownership of grave lands and hills. Judicial officials sometimes use genealogy as evidence in disputes over graves. Legal Decisions in Si Xi Lodge of the Qing dynasty recorded: ‘The genealogy was set up in the long past, and it is impossible for descendants to trace back to their ancestors. Therefore, the date of death, name, official status, family name, number of children, and burial place can be found in the genealogy.’ The genealogy records related information about ancestral graves, which has a certain probative effect in the settlement of land ownership disputes. In a case of the Qing dynasty, the mountain farm belonged to three clans. There was a dispute over the land ownership between two clans. One party’s contract was lost, and they only kept the genealogy engraved on the tombstone with a map of the grave hill and the lease contract of the hill left from the years in the reign of Emperor Qianlong. Judicial officials believed that: ‘Although the grave hill dispute is normally ruled on the basis of the deed rather than the tombstone genealogy, they must also check the accuracy and solidness of the genealogy, and whether the deed is consistent with the contract so as to rule on the case with righteousness and justice’. The judicial officials ruled in favor of the party who had the tombstone genealogy.
In addition, through the research on folk records, some scholars believe that the parties will not only provide some ‘authentic’ evidence such as contracts, land maps, tax receipts, tombstones, genealogies, etc., but also quote legends and stories, so that we can have a deeper understanding of the role of historical and cultural resources in proving the legitimacy of land title, and better understand the ‘origin’ and its relationship with ‘property of land’.
Through the above investigation, we can see that the contract was not the only evidence of the legitimacy of land title in the Ming and Qing dynasties. In those areas where the delivery of the contract was not necessary or possible, judicial officials would not arbitrarily determine that there was no land title, and civil society would not directly deny the landowner’s right. Judicial officials will comprehensively inspect evidence such as contract, official land map and land register, grain tax receipt and tombstones, genealogies and other evidence to rule on land ownership in dispute settlement. The above certificates together constitute the proof of the ‘origin’ of ‘property of land’ and maintain the stability of the land title management in the Ming and Qing dynasties.
III. FUNDAMENTAL FACTORS FOR THE MAINTENANCE OF LAND RIGHT ORDER
The above conclusion raises a new question to be answered: Since none of the above-mentioned evidence is durable, stable and unique, then there must be places where the above-mentioned evidence is lacking, that is, there is no contract and no official certificate nor map, and how can the ‘property of land’ system be maintained in these places?
The author believes that in the Ming and Qing dynasties, the legitimacy of ‘property of land’ was not solely proved by the above evidence, which was only the basis of official’s trial in the judicial process. As a matter of fact, the legitimacy of ‘property of land’ was proved by the whole rural society, and it was an important function of rural social autonomy to prove the legitimacy of property of land. At that time, the social relations and the culture of rule by rites in the acquaintance society were the fundamental factors to maintain ‘property of land’.
Different from today’s stranger society, the society in the Ming and Qing dynasties was an acquaintance society, and the land transaction and order of land title were formed in a society where villagers were basically fixed and not very mobile for generations. In such a ‘society without strangers’ and relatively closed areas, people were familiar with each other or connected by someone they both know. Village leaders, relatives, and neighbors together formed a soft environment for people to live in. Land transaction in such a closed society ‘was a ‘personalized transaction’, that is, there was a certain blood relationship or geographical relationship between the two parties in the first place, and this relationship would be involved in the transaction.’
The more effective rule formed in such an environment was not the law, but the compulsion through etiquette, morality and public opinion. Under the interpersonal network composed of direct or indirect connections, people paid more attention to the moral judgment by others in the acquaintance society than to the legal trial. Legal and judicial trials had only a very limited impact in the field of private rights, and their fairness and rationality were always questioned by the public. It could be said that a person who won the case in the trial may not be accepted and recognized in the acquaintance society. ‘For the concept of shame and morality, indecent things were despised by Chinese people, and general disputes could be solved by the sense of shame and morality. ... Most people living in a traditional society were confined to this network of ‘acquaintance relationship’ all their lives, so the negative moral evaluation from acquaintances was ‘unbearable for them’’. In the acquaintance society, the existence of the ‘middleman’ was representative, and its essence lay in creating a kind of ‘flexible order’, which was more flexible than the ‘rigid order’ set by the state and paid more attention to the emotional function of society.
The same was true of the contract. Although it was the most direct proof of ‘property of land’ system, its role in civil transactions was not irreplaceable. In case of its loss or damage, the probative function of its substitute was equally recognized. This was a result of the flexible system in the Ming and Qing dynasties. The following is the contract document reissued by the government when the original officially recognized deed was lost.
The Official Red Deed was issued in the 11th year of Emperor Tongzhi’s reign (1872) to Quan Lvshi from Wanping County for repaying land tax: Quan Lvshi had an ancestral house, located in the south of Road Xikou of Annanying, outside of Qianmen, which had two southern rooms, two northern rooms, two western platforms, and one shed in the backyard, totaling seven rooms. The price is seventy-two silver ingots. The old house deed was stolen on his trip to Jiangsu for government affairs, and now, he is willing to go to the county office to pay land tax according to the regulations and apply for ‘property of land’ of the house. There is no false statement. If it is found false, the guarantor is willing to plead guilty for that. Hereby, this deed upon the repayment of land tax is reissued as a certificate. (PS: Should the old deed be found in the future, it is invalid.)
The officially reissued deed can naturally become a powerful certificate of the land title. However, in the era when the government’s responsibilities were not clear and common people’s land matters were regarded as trivial matters, local governments could not all reissue deeds as required. At that time, there were still a large number of contracts with land tax unpaid, and it was not absolutely possible to seek the re-issuance of the deed from the government. In this case, people got the certificate of ‘property of land’ through the participation of relatives and neighbors. When the land boundary or title contained in the contract was unclear, or when the contract was lost, the guarantors and local neighbors could conduct the on-the-spot survey and put down all the information in black and white as written evidence for ‘property of land’. Such a certificate was generally recognized by the public. This custom still existed in Cangzhou City during the Republic of China, which showed its universality and long-term existence.
People rely on nonofficial mechanisms such as guarantors and local neighbors to obtain certificates of ‘property of land’, because disputes over land titles were left to folk society in the Ming and Qing dynasties. These certificates as replacements of land contracts were equally recognized in the local social environment where those people lived. Therefore, the land contract in the Ming and Qing dynasties were not just an agreement signed between the two sides as contemporary contracts, rather, they were signed in the presence of many other parties such as the middleman and guarantors and acknowledged by their fellow townsmen. Land transactions in the future would generally not take place in unfamiliar areas, and when land title disputes occur, they were also settled through reconciliation within villages. Even if the case was finally brought to the government, it would first be testified or mediated by the village guarantors, relatives and neighbors. Therefore, ‘relatives and neighbors were invited to measure the land acreage to rewrite the deed’, and its probative power was generally enough in the possible future transactions.
The relatively stable ‘property of land’ system in the Ming and Qing dynasties was a result of acquaintance society and culture of rule by etiquette as well as numerous sufficient yet not necessary evidence. Back then there was no clear land registration and publicity system as what we have in today’s society, there were inevitable vague areas of land title in the Ming and Qing dynasties, and the contest for and the disputes over land title were also inevitable. However, such disputes did not destroy the stability of land order in general. Once the social environment was broken, the order of ‘property of land’ would also be destroyed. Should there be warfare, the original social order would be destroyed, the land title would be lost, and people would be forced away from their hometown, and land disputes would also increase greatly. During the reign of Emperors Xianfeng and Tongzhi in the Qing dynasty, a large number of registers were lost in regions south of the Yangtze River due to the attack by the Taiping Army. Not only most of the official maps and household registers were lost, but also the people’s land deeds were in a mess, as a result, the social and economic order was in chaos. Some register keepers from the past took the opportunity to cheat, and used the so-called ‘secret registers’ as evidence, causing constant disputes over property rights. It can be imagined that the destruction of ‘property of land’ system was not only caused by the loss of title deeds and land registers, but also by the destruction of people’s stable life network. All these testify to the role of the specific regional network of people in stabilizing the ‘property of land’ system.
IV. CONCLUSION
A deep study of the ‘origin’ of the land title in the Ming and Qing dynasties tells us that in the contract, people deliberately explained the legitimacy of origin and the clarity of ownership of the traded goods, which means that Chinese people in the Ming and Qing dynasties already had a strong sense of ‘rights’, which focused on ‘factual state’ and was of a ‘practical nature’. Different from the Western concept of rights, such an awareness of rights was not recognized and protected by the government at that time, nor was it codified in an abstract and systematic expression in law. At the same time, due to the lack of state power’s participation in civil activities, civil society spontaneously formed a set of mechanisms to support land transactions and stabilize land management. The contract problem in the Ming and Qing dynasties was not just a legal problem like the contemporary contract, but a social problem based on the needs of daily social life, relying on the whole social mechanism to operate, and solved by civil society most of the time. From the concrete level, contract, official land map, land register, grain tax receipt, deed tax and neighbors, guarantors, middlemen and others jointly proved the legitimacy of ‘property of land’. At a deeper level, the social recognition behind contracts and other certificates and the ‘flexible order’ formed by the social interpersonal network, etiquette and morality at that time were the fundamental support for frequent land transactions. It is fundamentally different from the Western contract, which is the product of individualism, private rights and law. The contract in the Ming and Qing dynasties was deeply embedded in the social relations and the culture of rule by etiquette. At that time, culture and society were the fundamental elements of shaping the unique contract culture and ‘property of land’ of the traditional society.