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Introduction The Traditional New Territories, Land and Society Preamble: Words and Terms A problem which arose in preparing this book requires discussion right at the start. The problem is that the book is written in English. English has a rich legal vocabulary , but that vocabulary is a Common Law vocabulary. Furthermore, as time has passed and society has become more complex, that Common Law vocabulary has become ever more precise and exact. The Customary Land Law of the New Territories of Hong Kong was not in any way based on the Common Law, and the society in which it grew up and Áourished was a simple and unsophisticated one. The only words available in English for discussing the traditional Land Law, however, are words with precise Common Law meanings, which do not Àt the local Customary Law concepts exactly. The Customary Land Law of the New Territories grew up in a simple rural area of subsistence rice-farmers, a society without lawyers or legal textbooks, and almost entirely without formal litigation. Its concepts thus lack the subtlety of sophisticated modern legal systems, since they grew up in a far simpler society. The English words used to analyse this traditional Land Law have therefore to be read with broader meanings than in a modern Common Law situation. “Mortgage”, “foreclosure”, “sale” (and “absolute sale”), “landowner” (and “ownership”), “trust”, “deed”, “interest” (in land), “land tax”, “warranty”, “heir”, (and “next heir”), and many other terms are thus used here with meanings which differ, at least in detail, from the normal meanings as used in modern legal English. The differences are, to a large degree, immaterial in the context of discussions of broad principles, but difÀculties will arise if readers attempt to press the terms towards their exact modern Common Law meanings. Many of these differences are discussed below, to clarify the meaning the terms bear in this book, but the indulgence of readers is sought in advance for any terminological difÀculties which they may encounter. 2 Custom, Land and Livelihood in Rural South China The Importance of the Study of the Customary Land Law For the villagers of the traditional society of the New Territories of Hong Kong, there was nothing more important than the ownership and control of rice-land. Rice-land adequately supplied by water gave the family owning it access to rice, the staff of life. Villagers were overwhelmingly subsistence farmers. There were shops in the local market towns where rice could be bought, but these were designed essentially to serve the artisans of the market towns, the Àshermen, and others with no access to rice-land. They dealt in only relatively small quantities of rice: for most villagers, either rice was grown on the family rice-land, or the family went hungry. With rice-land and water, the family would survive; without it, survival was, at the least, problematic. The ownership and control of rice-land required there to be a system of Land Law. It was essential that everyone knew what rice-land was owned by each villager family, under what legal conditions, and who the owner of every tiny patch of rice-land was. Disputes about ownership, inheritance, partition, mortgage, sale, or rental; problems as to the payment of taxes due on the land, or about local levies; questions about rights to dispose of the land, or the rights of heirs – all these and much else required there to be a workable system of Land Law known to everyone by which the problems could be adjudicated and resolved. The Chinese state had had written codes of Land Law with, by the nineteenth century, a history of well over a thousand years. These codes of Land Law were, however, pre-modern, underpinned by concepts of law which differed signiÀcantly from modern ideas. In particular, they did not systematically articulate the land rights of individuals in any given circumstances, although they did lay down criminal penalties for certain infringements. Furthermore, over much of China, this Imperial Land Law was not, in practice, enforced, or enforced only partially, but instead systems of local traditional and Customary Land Law were in place, differing from district to district in China, although often with only slight variations. To understand the life of the traditional villagers, it is essential to understand the Land Law under which they owned and controlled land, the most vital of all resources. This requires studies to be undertaken area by area, region by region, of the local...

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