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2 The Customary Land Law The Imperial Land Law was a well-rounded and comprehensive system, but, in practice, a Customary Land Law had grown up in the New Territories area which was at serious odds with this Imperial Land Law and, in many details, Áatly contrary to it. Furthermore, given the villagers’ unwillingness to go to law or to enter any formal litigation process, they were unable to make use of the provisions of the Imperial Land Law relating to land-related criminal acts involving two citizens . These also, therefore, had to be dealt with by customary legal proceedings in the villages. Villages accordingly had by-laws covering such actions as cutting Àrewood in village fung shui woods, stealing vegetables from the Àelds of others, allowing animals to stray into growing grain or vegetable Àelds, or the inappropriate use of fertiliser, among others. Villagers in breach of these by-laws would be brought before a mass meeting of their fellow villagers and punished by a Àne and public shaming.1 There was never any written treatise or code of the Customary Land Law. Within the New Territories area, it remained a purely oral system, understood by the villagers but not formalised in writing. Written texts trying to codify the Customary Land Law exist only from the period after the coming of the British to the New Territories, when Hong Kong ofÀcials wrote down what they understood of the system in an attempt to get to grips with it and to operate the Block Crown Lease Survey fairly. The only set of indigenous written records which give us insights into what the writers thought the Customary Land Law consisted of are land deeds. Every land deed is full of statements which cast light on the understanding of the writer of the Customary Land Law in accordance with which the deed was issued. By analysing the deeds, therefore, it is possible to gain a good deal of information about what the villagers of the New Territories area considered the Land Law to be. 40 The Imperial and Customary Land Laws Issue of a land deed was a relatively rare occurrence, but, nonetheless, they are sufÀciently numerous to allow analysis, and the following part of this book attempts to do this. The Tei Pei:Tei Kwat System and the Perpetual Lease At the heart of the local Customary Land Law was the belief that there were two separate rights to land and that each piece of arable land could thus be assumed to have two landholders, each holding one of these rights. The holder of the perpetual right to use the surface of the soil and to extract those minerals from near the surface which did not require a licence from the County Magistrate to extract was said to hold the “topsoil rights” (tei pei, “skin of the land”, 地皮). However, he had to pay a rent-charge to another landholder who held the “subsoil rights” (tei kwat, “bones of the land”, 地骨), which comprised essentially the right to receive this rent-charge. The tei pei landholder was assumed to hold a perpetual hereditable tenancy of the usufruct2 from the tei kwat landholder: if the family of the tei pei landholder failed or abandoned the land for any substantial period, then the land would revert to the tei kwat landholder. The rent-charge received by the tei kwat landholder could not, usually, be raised after the agreement with the Àrst tei pei landholder, the rent agreed being binding on both parties and their descendants for ever. Both the tei pei and tei kwat landholders could sell, mortgage, or divide their rights at their discretion. The tei pei landholder in general did not need to seek consent from the tei kwat landholder before parting with possession of his rights, but in any sale the purchaser substituted for the vendor in his obligation to pay the rent-charge to the tei kwat landholder. It was, of course, possible for the tei pei and tei kwat rights for any piece of land to be held by the same person, but this was rather uncommon. In such cases, the villagers considered that the two rights remained distinct, merely that both were (for the time being) held by the same man. The President of the New Territories Land Court, H.H.J. Gompertz, stated that he believed that, before the takeover of the New Territories by the Hong Kong Government, “four-Àfths” of the land tax paid...

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