The Language of Property in Monastic Contracts Luo Weiwei International Society for Chinese Law and History Note: Chinese text displayed is based on original text. On the eve of the Cultural Revolution (1966-1976), Changxiu ( 常修 ), the last monk of the Dajue Monastery ( 大覺寺 ) of the Western Hills in Beijing, wrapped a bundle of old documents in newspapers and hid them in the rafters of the Mahavira Hall. A construction team found them in 1991. These documents include one hundred and twenty-eight contracts concerning the monastery, its monks, and its affiliated temples, mostly dating from the Qing dynasty (1644-1911). The earliest among them are from the Shunzhi period (1644-1661) and the latest date to the early Republic. Among these contracts are records of land sales, exchanges, donations, and tenancy agreements. A number of these contracts have been published by the monastery in two collected volumes, Dajue Chansi ( 大覺禪寺 ), and Dajuesi Wenji ( 大覺寺文集 ). 1 Chinese monasteries were characterized by their great estates and pioneering financial institutions in the Tang and Song period, and seem to have gradually faded from the socio-economic landscape afterwards. When examined together, these contracts from the Dajue Monastery offer a unique lens into the organization and everyday strategies of a Qing monastery, which have long eluded students of Chinese religious institutions. The Dajue Monastery records suggest that the Qing monasteries were economically robust and innovative corporate entities, and resembled the lay society structurally as it became embedded in them. Transactions with laymen were an important part of how the monastery became implicated in an intricate web of social relations, at the same time that the monastery itself was striving to consolidate its assets. This double agenda was achieved by acquiring pieces of land that would fill a gap in the monastery s holdings, or would enable the current holdings to expand in at least one direction. Sale contracts made between the monastery and laymen were particularly useful to illustrate this process of property consolidation, as the location of land was often clearly identified in them. But to fully appreciate such lay-monastic sales, we will read another transaction made by the same layman alongside the sale contract, which reveals certain nuances that would likely pass unnoticed were we to only focus on the sale contract. For readers who have not encountered monastic contracts before, the very ordinariness of the two transactions with the Dajue Monastery featured below might seem strange: the monastery appears to have been treated as a normal neighboring landholder. In two separate transactions, the monastery bought two parcels of land from a layman in the vicinity. The original image and transcriptions of the following contracts are published in Dajue Chansi (195-196.) 1 Sun Rongfen, Zhang Yunfen and Xuan Lipin, eds, Dajue Chansi, Beijing Chubanshe, 2006. DajuesiWenji, edited and published by Beijing Xishan Dajuesi Guanlichu. 2010. 1
#80 立典杂果园地文约人陈德 因为手乏无钱使用, 今将本身祖遗杂果园地一段, 坐落在塔院东边, 计贰沿半, 土木相连, 恳烦中人说合, 情愿典与大觉寺常住耕种摘收, 言定典价清钱叁拾贰吊正, 其钱当日交完并无欠少 言明摘收拾年, 钱到许赎, 地归本主 此系两家情愿并无反悔立字之后不许反悔, 恐口无凭, 立字为证 十年之内契主如若回赎, 按三分利息归还, 十年之外回赎照原典价钱数, 利息一概不要, 立字为凭 道光拾贰年新正月初十日立典字文约人陈德亲笔中见人 : 张国富, 张老 #80 The executor of this contract for dian (redeemable sale) of an orchard is Chen De. For lack of money, he willingly dian his own inherited orchard of two yan and a half, located on the east side of the Pagoda Courtyard, to the Dajue Monastery. The dian price, 32 diao, has been paid in full. Two parties stated clearly that the orchard will be harvested for ten years, and the executor will be allowed to redeem the orchard when the price is paid. Both parties entered the transaction voluntarily, and have made this contract as evidence. Within ten years from today, if the executor redeems the orchard, three percent interest will be returned; beyond ten years, he will pay the original price with no interest. Dian contract executor: Chen De Middleman: Zhang Guofu Daoguang, twelfth year, first month, tenth day [February 11, 1832] #82 立卖杂果园地文约人陈德 因为手乏无钱使用, 今将本身祖遗园地一段, 东至马姓, 西至常住, 南至南廊下陈姓, 北至常住 四至分明, 土木相连, 恳烦中人说合, 情愿将此园地出卖与大觉寺常住, 永远为业, 言定卖清钱伍拾吊整, 其钱当日交完不欠 立字之后, 不许反悔 如有先悔之人, 罚纹银伍拾两常住收用 恐口无凭, 立卖契文约存照为证, 每年五月交纳钱粮钱叁佰五十文 道光拾叁年六月初七日立卖契文约人陈德中见人 : 海然 #82 The executor Chen De draws a sale contract for his orchard. Due to financial difficulties, through the negotiating efforts of the middleman, he sells his own inherited orchard to the changzhu (literally permanent stay, i.e. collective property of the monastery) of the Dajue Monastery as permanent asset. To the east, this orchard reaches Ma's property, to the west it reaches changzhu, to the south it extends to Chen's property under the South Corridor (of the monastery), and to the north it extends to the changzhu. The boundaries in all four directions have been clearly demarcated. Both parties explicitly agreed to the selling price of 50 diao, which has been paid in full today. No party is allowed to breach the contract. The party that breaches first must pay 50 liang of silver to the changzhu as punishment. We make this sale contract as evidence. 2
Sale contract executioner: Chen De Middleman: Hairan Daoguang, thirteenth year, sixth month, seventh day [July, 23, 1833] Contracts are always constrained by standard forms. But once we explore their language of property, rather than dismissing them as either formulaic or disingenuous, it enables us to see each transaction as both a personalized act and part of a pattern that is unique to a time and place. Monastic contracts in particular tend to be scattered in archives, local document collections, and private collections, and like most local sources made by nonelite individuals, background and biographical information can be especially hard to come by. But caches of documents like the Dajue contracts offer insights into local legal history and the operation of complex institutions like monasteries. For example, although the terminologies in the above two contracts seem unremarkable and similar at a first glance, on a closer look they are unusual if not puzzling. Made (and apparently drafted) by the same layman, these two contracts above provide us with a rare opportunity to compare details that might otherwise be deemed as scribal idiosyncrasies. For readers familiar with the concepts of permanent sale and conditional sale in Chinese legal history, the distinction between the two contracts above seems intuitive. However, just as other land sale contracts of the Dajue Monastery, the sale contract above (#82) did not use the word "juemai" ( 绝卖 irrevocable sale), but used "yongyuanweiye" ( 永远为业 as permanent asset). Ye referred to a right to profit from a given piece of property, which might carry several different rights and hence a number of ye might exist simultaneously on a given plot of land. So the transfer of one ye, permanent or not, would not necessarily entail surrendering all claims to an entire piece of property. It would simply mean that the specific right in question was transferred. Several statutory revisions during the Yongzheng and Qianlong period attempted to regulate the myriad practices of land redemption after a sale. A key feature of these new laws was that only contracts bearing the term "juemai" ( 绝卖 ) could be recognized in court as representing a full sale that absolutely terminated all claims to the land in question by the seller. But in practice, the line between different kinds of conditional sales, and between supposedly permanent sales and conditional sales, was fuzzy at best, due to various common strategies for revising the original transactions in order to seek extra value ( 找价 zhaojia). Regardless of the revisions of Qing law in the early to mid eighteenth century, all land contracts dating from Kangxi to Daoguang periods found in the Dajue Monastery used roughly the same forms: the term juemai was completely absent, while redemption rights were indicated by a special clause. In both red and white contracts made by laymen in the same area, the Wanping County and Beijing, the same phrase "yongyuanweiye and sometimes a short form guanye ( 管业 manage asset), seems to have been sufficient for identifying legally recognized permanent sales, while redemption rights were present in redeemable sale contracts. Hence these transactions, ranging from donation to sales concerning the Dajue Monastery, can be roughly translated into legal terminology as 3
permanent and conditional sales. Contracts bearing the phrase "as permanent asset/incense-fire" may then be seen as de facto permanent sales. However, such a translation is what the state would have used to gain clarity in the labyrinth of transactions, and should not be taken as an actual flattening of local practices. Textual details, upon closer investigation, reveal how legal history and social history are mutually constitutive. These two contracts not only reveal the messiness of local practices compared to formal legal categories, but also the economic and social strategies behind transactions. All land sales between the Dajue Monastery and lay parties stated explicitly that they were sold to the collective property of the monastery ( 常住 changzhu) and not to individual monks. Land holdings of the monastery generally referred to as incense-fire land ( 香火地 xianghuodi) to distinguish them from other forms of property were extremely important to the survival of the monastery and its monks because of the basic income they provided. But not all land acquisitions serve the same purpose. By reading these two contracts side by side, we notice that land already belonging to the monastery bordered the land in the second sale in all directions, while land in the first contract was located somewhat close to the monastery but not directly bordering existing income-producing property. Thus to acquire the second parcel of land was to consolidate monastic assets, filling a gap in the current property holding, and enabling larger scale of production and stability of income, while acquiring the first parcel was a move to temporarily generate additional income for the monastery. Among the land sales to the Dajue Monastery, contracts containing the phrase "yongyuanweiye" seem to concern only asset consolidations. These transactions meant that the original owner transferred indefinite possession of the ye (subsoil rights) to the monastery without the option to later redeem the rights unless explicitly provided by revisions to the original contract. Such indefinite possession would suffice for the purpose of property consolidation. In addition to serving as a means of de facto consolidation without permanent sale, such an indefinite transfer of subsoil rights also maintained a connection between the laymen and the monastery that would have been otherwise severed if a sale was a dead one. Going back to these two contracts we can now use them to summarize the differences in the language of contracts intended to dictate the terms of property use (#80) versus the terms of contracts related to strategies of property consolidation (#82). First, the consolidation transaction does not grant redemption rights. Second, boundary information is much more detailed in the acquisition contract compared to the redeemable sale, as it helped to identify the land and show its connections. Third, a penalty clause or an assignment of responsibility tended only to be present in the acquisition contracts, as seen in document #82, where the party revoking the sale must pay an exorbitant fine to the monastery. The one-sided nature of this penalty suggests that the buyer (the monastery) was particularly concerned with the likelihood of losing property that directly bordered its own. In conclusion, without understanding the social meaning of the term yongyuanweiye, we would have simply defined these two contracts using the legal categories of the state, 4
namely, permanent and conditional sales, and overlooked the intentions of the acts underneath standard forms. The question of why certain phrases were imbued with such social meanings can only be answered by exploring the legal knowledge and transactional culture on both local and regional levels. Weiwei Luo is a Ph.D. candidate at Columbia University. Her dissertation examines the publication of accounting reports and their standardization in the eighteenth and nineteenth centuries, as well as the circulation of attendant ideas of accountability between local societies and the state. 5