Ancestor-worship and Japanese law

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ANCESTOR- WORSHIP

AND

JAPANESE LAW

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NOBUSHIGE HOZUMI.

PROFESSOR OF LAW IN THE IMPERIAL UNIVERSITY OF TOKIO
ALSO OF THE MIDDLE TEMPLE, BARISTER-AT-LAW.

TOKIO:

Z. P. MARUYA & CO., LTD.

14 TO 16 NiHONBASHI TORI SaNCHOME.

1901.

Digitized by the Internet Archive

in 2007 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/ancestorworshipjOOhozurich

ANCESTOR-WORSHIP

AND

JAPANESE LAW

BY

NOBUSHIGE HOZUMI.

PROFESSOR OF LAW IN THE IMPERIAL UNIVERSITY OF TOKIO
ALSO OF THE MIDDLE TEMPLE, BARISTER-AT-LAW.

TOKIO:

Z. P. MARUYA & CO., LTD.

14 TO 16 NiHONBASHI ToRI SANCHOME.

1901.

CjU^fkJUuSjJiA

CONTENTS.

» <» ■

INTRODUCTION
PART I.

Page.

ANCESTOR-WORSHIP IN GENERAL.

§ I. The Origin of Ancestor-Worship 4

§ 2. Ancestor- Worship as the Origin of Man's

Social Life 8

PART II.

ANCESTOR-WORSHIP IN JAPAN.

§ I . Three Kinds of Ancestor- Worship 12

§ 2. The Worship of Imperial Ancestors 15

§ 3. The Worship of Clan- Ancestors 21

§ 4. The Worship of Family- Ancestors 26

PART III.

ANCESTOR-WORSHIP AND LAW.

§ I. The Government 34

§ 2. The Constitution 36

§ 3. The People. 39

§ 4. The House 41

§ 5. Marriage 48

§ 6. Divorce 53

§ 7. Adoption 56

§ 8. The Dissolution of Adoption 66

§ 9. Succession 68

APPENDIX.

502979

ANCESTOR-WORSHIP AND
JAPANESE LAW.

INTRODUCTION.

In Europe and America, Ancestor- Worship has long
since ceased to exist, even if it was ever practised at
all on those continents. In Japan, where at the present
time, a constitutional government'is established, where
codes of laws modelled upon those of Western coun-
tries are in operation, where, in short, almost every art
of civilization has taken firm root, the worshipping of

deceased ancestors still obtains and still exercises a
powerful influence over the laws and customs of the
people. The practice dates back to the earliest days

of our history and has survived through hundreds of

generations, in spite of the many political and social

revolutions which have taken place since the foundation

of the Empire. The introduction of Chinese civilization

into the country was favourable to the growth of this

custom, by reason of the fact that the morality, laws

and institutions of China are also based upon the

doctrine of Ancestor-worship. Buddhism, which is

not based upon this doctrine, but Is, on the contrary,
antagonistic to it, was compelled to yield to the deep-
rooted belief of the people, and wisely adapted itself
to the national practice ; while the introduction of
Western civilization, which has wrought so many social
and political changes during the last thirty years, has
had no influence whatever in the direction of modify-
ing ithe custom. Thus, it will be seen that the three
foreign elements, Confusianism, Buddhism, and West-
ern Civilization, all of which have had immense in-
fluence upon our laws, manners and customs, and two
of which were diaipietrically opposed to Ancestor-
worship, could not make way against, nor put an end
to, the wide-spread and persistent faith of the people.

To Western eyes, the sight would appear strange of
a Japanese family inviting their relatives, through the
medium of telephone, to take part in a ceremony
of this nature ; while equally incongruous would seem
the spectacle of the members of the family, some of
them attired in European and others in native costume,
assembled in a room lighted by electricity, making
offerings and obeisances before the memorial tablet of
their ancestor. The curious blending of Past and
Present is one of the most striking phenomena of
Japan. The people, whether Shintoists or Buddhists,
are all ancestor- worshippers, and it is for that reason

that I venture to approach a subject which has already
been most ably dealt with by such distinguished
scholars and men of letters as M. Fustel de Coulanges,
Sir Henry Maine, Sir John Lubbock, R. v. Jhering,
and Dr. Hearn, whose profound investigations have
thrown so much light upon the subject. The manner
in which these authors have grasped the true inward-
ness of a custom which is totally foreign to them is
little short of marvellous, and their writings leave little
room for further investigations. They have, however,
observed the phenomena from without ; and it may,
perhaps, be of some interest to examine the subject
and to discuss it from the point of view of an
Ancestor- worshipper himself.

Before entering upon the main subject of this essay,
it will be advisable to say a few words relating to
Ancestor-worship in general, and to Japanese Ances-
tor-worship in particular.

PART I.

ANCESTOR-WORSHIP IN GENERAL.

§ I. THE ORIGIN OF ANCESTOR-
WORSHIP.

The origin of Ancestor-worship has been ascribed
by many eminent writers to the " dread of ghosts " / *
and the -sacrifices are said to have been made to the
souls of ancestors for the purpose q{ propitiatmg them.
With the greatest deference due to these writers, I
cannot persuade myself to accept this view. It
appears to me more correct to attribute the origin of
Ancestor- worship to a contrary cause. It was the
/^^ of ancestors, not the dread of them, which gave
rise to the custom of worshipping and making offer-
ings of food and drink to their spirits. I cannot under-
stand why a primitive people, who must have loved
their parents in their life-time, should have experienc-

* Sir John Lubbock's Origin of Civilization 4th ed. p. 318 ; Jher-
ing's Vorgeschichte der Indoeuropaer, s. 59 ; Fustel de Coulange's
La Cii6 Antique ch. 11.

^ 5 —

ed fear of them after their death. Respect for their
parents may, in some cases, have become akin to awe,
yet it was love, not dread, which caused this feeling
of awe. A Chinese philosopher, Shiu-ki, (:3c,#J accura-
tely summarises the origin of Ancestor- worship when
he says in his *' Book of House-Ceremonies " iMM)
that *• the object of worship is nothing else than
performing all that is dictated by a feeling of true love
and resteer (;L^±K'^ga5:;tMME), while the late
Professor isf/^r2V<3^ (MH^) begins his book on "The
Rituals of Worship " (^:ft^i.B^) with these words : -
•' Who, endowed with life in this world, has^ not a
mind to honour his parents? Who, honouring his
parents, does not reverence his ancestors ? Who,
honouring parents and reverencing ancestors, is not
prompted to follow the dictates of affectionate senti-
ment by offering sacrifices to their spirits ? This is
the outcome of the faculty of intelligence that is
implanted in human nature, and through it arose the
ceremonies of offering sacrifices to spirits from the Age
of the Gods." He further continues :- *' Those who
are left behind in this world by their parents feel pangs
of grief in their hearts as months and years pass away.
When the flowers begin to blossom in the Spring,
when trees and grasses put forth their luxuriance in
the Summer, when insects murmur and sing in the

— 6 —

Autumn evenings, and when the Winter brings its
dews and frosts, everything they see and hear, stirs up
a feeling of sorrow, and reminds them of bygone days
when their parents walked the eardi ; and to their
inability to forget their parents is due the practice
of offering them food and drink. Thus, the custom
of making sacrifices to spirits finds its origin in human
nature." In a like manner Mr. ynnjiro Hosokawa,
(IffljIIfH^SR) in his *• Lectures on National Festival
Days," (fK.^HfStS') explains the source of the festivals
set apart for sacrifice to the Imperial Ancestors.

The writers who attribute the oriirin of Ancestor-
worship to ''the dread of ghosts'' and to ''ghost-
propitiation " fail to descriminate between ghosts
which are to be dreaded and those which are to be
respected. Ghosts can be divided into two separate
classes, those that compel fear and those that inspire
love and respect. The ghosts of enemies or of those
that have met an unnatural death belong to the former;
and sacrifices are sometimes made to their spirits for
the purpose of propitiating them. But the ghosts of
ancestors belong to the latter class ; and sacrifices are
made to them, and their spirits are worshipped, as a
result of love and respect which their descendants
feel towards them. This practice arises out of the
natural impulse of kinsmen to provide their dead

relatives with food, drink and clothing as in the days
of their life (^$pS). Confucius says in the " Book of
Medium" (f^M) that " it is the highest filial piety to
serve the dead as they would serve the Hving, and to
serve the departed as they would serve the present."
.(^5E^D*4,*C:ftp¥#,#;tM'llL) We celebrate the
aniversary of our ancestors, pay visits to their graves,
offer flowers, food and drink, burn incense, and bow
before their tombs entirely from a feeling of love and
respect for their memory, and no question of " dread "
enters our minds in doing so. Moreover, in the re-
cords and traditions of our country, there is nothing
which suggests that ancestors were worshipped with
a view to propitiating their souls.

The theory of the *' dread of ghosts " and '* ghost-
propitiation " seems absolutely unnatural so far as the
worship of ancestors is concerned ; and, however
strange the expression may sound to Western ears, it
would be more accurate to assert that it was the ** Love
of GJiost " which gave rise to the custom of Ancestor-
worship.

— 8 —

§ 2. ANCESTOR-WORSHIP AS THE
ORIGIN OF MAN'S SOCIAL LIFE.

What was the bond which originally united men
into a homogeneous social life ? At the present time,
there is a decided tendency on the part of men to form
themselves into communities with the object of attain-
ing collectively some common eiid. Some establish
religious congregations in support of a common creed ;
some found scientific associations for the acquirement
of common knowledge ; others found commercial
corporations for their mutual benefit ; while others
again group themselves into political parties with the
object of winning recognition for their particular politi-
cal convictions. The number of social communities is
steadily increasing and their influence becomes more
and more widespread with the progress of civilization.
Every day, men are becoming more alive to the ad-
vantages of co-operation and the benefits arising from
union in every branch of life. The' sphere of these
social groups even shows signs of overstepping the
boundaries of states and the limits of races, and in
these brotherhoods of men occupying a position in the
higher stages of civilization, there is always to be found
certain conscious aifns which form the bond of their
union.

— 9 —

But primitive men were ignorant of the advantages
resulting from combination, and moreover, those
virtues which are essential to the maintenance of
society were not yet developed among them. The
initial bond of union among primitive men must, then,
be sought for in some uficonsctotts force, and there can
be little doubt that it had its origin in the ties of con-
sangidnily. But the sphere of love amongst kinsmen
is limited in extent, and there must have been, there-
fore, some other factor that acted as the centripetal
force which drew distant relatives toorether and bound
them into a community. That factor was Ancestor-
worship. The worship of common ancestors, and the
ceremonies connected therewith, maintained the semb-
lance of a common descent amongst large numbers of
widely scattered kinsmen who were so far removed
from one another that they would, without this link,
have fallen away from family intercourse. As the
sentiment of consanguinity, which has been shown to
have been the only bond of union amongst primitive
men, grew looser by the wider dispersal of the ever-
increasing members of a family, the necessity became
greater to weld together the various units of kindred
lineage by means of the worship of a common progeni-
tor, in order that the primitive group might grow up
into a homogeneous community. Now, if the primary

— lO —

bond of union was the tie of blood, and if the tie of
blood means the exlension of sympathy and love to
distant kinsmen, the explanation which has been given
of the origin of Ancestor- worship seems to accord
better with the effect of this practice, than does the
theory of the "dread of ghosts" or "ghost propitia-
tion."

The question whether Ancestor-worship is an
universal institution, that is to say, whether all races
of mankind have, at some time or another, passed, or
must pass, through the stage of this worship, is one
the solution of which cannot be lightly attempted.
Personally, I cannot conceive how the human race
could have arrived at its present state of social and
political life without at first experiencing the influence
of Ancestor- worship. M. Fustel de Coulanges in his
brilliant work *' La Cit6 Antique " asserts that the
custom existed, at one time, both in Greece and in
Rome, and the learned work of Dr. Hearn, entitled
" The Aryan Household " shows that Aryans were an
ancestor- worshipping race ; while most of the recent
investigations of historians and sociologists, as well as
traveller's accounts of the manners and customs of
primitive peoples prove that the worship of deceased
ancestors is practised by a very large proportion of
mankind. This seems to point to the conclusion that

— II —

all races practise it in the infancy of their development,
and that it was the first step towards the inauguration
of social life on a wide basis.

PART II.

ANCESTOR WORSHIP IN JAPAN.

I will now proceed to describe the present condition
of Ancestor-worship in Japan. It was the primeval
religion of the country from the earliest time of our
history which dates back more than two thousand five
hundred years ; and it is universally practised by the
people at the present moment. As has already been
pointed out at the commencement of this essay, neither
the introduction of Chinese civilization, the spread of
Buddhism nor the influence of European civilization
have done anything to shake the firm-rooted custom
of the people.

§ I. THREE KINDS OF ANCESTOR-
WORSHIP.

There are two sacred places in every Japanese
house; the Kamidana i^M] or *' god-shelf" and the
Butsiidan (f^M) or '• Buddhist altar." The first- named
is the Shinto altar which is a plain wooden shelf. In

— 13 —

the centre of this sacred slielf is placed a Tainia cr
O-nusa (great offering) (izM) which is a part of the
offerings made to the Daijingu of Is6 ('^#:fc#S^ or
the temple dedicated to Amaterasu Omi-Kami (^HKA
iz jp$) the I^zrs^ Imperial Ancestor, The Taima is
distributed from the Temple of Is^ to every house in
the Empire at the end of each year and is worshipped
by every loyal Japanese as the representation of the
First Imperial Ancestor. On this altar the offering of
rice, sak6 (liquor brewed from rice), and branches of
sakaki-tree (cleyera japonica) are usually placed, and
every morning the members of the household make
reverential obeisance before it by clapping hands and
bowing ; while in the evening, lights are also placed
on the shelf. On this shelf is placed, in addition, the
charm of Ujigami (R#) or the local tutelary god oi \\\^
family, and, in many houses, the charms of the other
Shinto deities also.

In a Shinto household there is a second god-shelf
or Kamidana, which is dedicated exclusively to the
worship of the ancestors of the house. On this second
shelf are placed cenotaphs bearing the names of the
ancestors, their ages, and the dates of their death.
These memorial tablets are called "Mitama-shiro" which
means •* representatives of souls," and they are usually
placed in small boxes shaped like Shinto shrines.

-- 14 —

Offerings of rice, sak6, fish, sakaki-tree and lamps are
made on this second shelf as on the first.

In the Buddhist household there is, in addition to
the Kamidana, a Butsudan on which are placed ceno-
taphs bearing on the front posthumous Buddhist-names,
and on the back the names used by the ancestors
during their life-time. The cenotaph is usually lacquer-
ed and is sometimes placed in a box called *' Zushi "
(SJ-f)» while family-crests are very often painted both
on the tablet and on the box. Offering of flowers,
branches of shikimi-tree (Illicium religiosum), tea, rice
and other vegetable foods are usually placed before
the cenotaphs, while incense is continually burnt and
in the evening small lamps are lighted. The Butsu-
dan take the place of the second god-shelf of the Shin-
to household, both being dedicated to the worship of
family ancestors.

From the foregoing brief description of the sacred
altars of a Japanese household, it will be seen that there
are three kinds of Ancestor-worship in vogue ; namely,
the worship of the First Imperial Ancestor by the
people, the worship of the patron god of the locality,
which, as I shall show anon, is the remains of the
worship of clan-ancestors by clansmen, and the worship
of the family-ancestors by the members of the
household.

— 15 —

§ 2. THE WORSHIP OF IMPERIAL
ANCESTORS.

The first of the tliree kinds of Ancestor-worship,
namely homngre to the Imperial Ancestors, and
especiilly to the first of them, Amaterasu O-Mikami,
or *' The Great Goddess of the Celestial Light," may
be styled the national worship. The places set apart
for relictions exercises in honour of the First Imperial
Ancestor are three in number, the Temple of Daijingu
at Is^, the Kashikodokoro (ff^Jf^ in the Sanctuary of
the Imperial Palace, and the Kamidana which is to be
found in every house. In the two first-named, the
Divine Mirror represents the Imperial Ancestor. This
is the mirror which, according to old histories, Ama-
terasu O-mikami gave to Ameno Oshiomino Mikoto
(^S>®3f^) accompanied by the injunction that her
descendants should look upon that mirror as represent-
ing her soul and should worship it as herself. The
Divine Mirror, called ** Yata-no-Kagami ( A^^), was
worshipped in the Imperial household down to the
sixth year of the reign of Sujin (##) ^B. C. 92) when
the Emperor, fearing lest familiarity with it might
engender disrespect, ordered Princess Toyokuwa-
irihime-no-Mikoto iWiMXM^) to set up a temple in
the village of Kasanui (^i^) in the province of Yamato

— i6 —

{::fcfp), and decreed that the mirror should be housed
and worshipped there. This temple was afterwards
removed to various localities, until finally Ise was
chosen as its permanent site. The Emperor further
caused a duplicate of the mirror to be made and placed
in the Sanctuary of the Palace in order that he and
his descendants might worship it as heretofore. Thus
the true mirror is now in the Temple of Daijingu at
Is^, and the duplicate in the Temple of Kashiko-Doko-
ro in the Imperial Sanctuary. At the present time
not only does every loyal Japanese worship Daijingu
in his own house, but many look upon it as a duty to
make a pilgrimage to Ise, or ''Ise-Mairi" (^#S^)
at least once during a life-time. Thousands of people,
high and low, rich and poor, yearly throng the temple
of Daijingu from all parts of the country, and offer the
holy music and dance called " Dai-dai-Kagura " (::^^#
M) in honour of the Imperial Ancestor. There is a
curious custom, which, however, has somewhat declin-
ed in recent years, known as *' Nuk^-Mairi," (S# V )
or the *' Stolen Pilgrimage," in accordance with which
shop-boys and village youths set out on a secret
pilgrimage to Ise without obtaining the permission of
their respective masters or parents. It may be
mentioned, in passing, that these disciplinary lapses
are not usually punished as such acts would be under

— 17 —

orcllnnry circumstances. These pil^rimnges are fre-
quently undertaken without any provision whatever
for the journey, but as the youthful pilgrims are easily
distinc^u'shable from ordinary begc^ars, there are plenty
of kind-hearted persons ready and willing to offer
them food, money and, sometimes, even shelter.

In the Sanctuary of the Imperial Palace there are
three temples, Kashiko-Dokoro (ffPJf), Kworei-Den
(^MS) and Shin-Den (#:iJ). Kashiko-Dokoro oc-
cupies the central position where the Divine Mirror
is placed, and is dedicated to the worship of the First
Imperial Ancestor. Kworei-Den stands to the west
of Kashiko-Dokoro and is dedicated to tlie worship
of all the Imperial Ancestors since Jimmu TennO (#5?
^S), the first Emperor and the founder of the Empire.
The third temple, Shinden, stands to the east of
Kashiko-Dokoro, and serves to honour all the other
deities.

At the present time, eleven " Great Festival Days"
(:fc^0) are observed as National Holidays. All these,
with the exception of two, one of which is the birthday
of the Emperor and the other the Banquet of the
New Year, relate to the worship of Imperial An-
cestors. The first holiday is New Year's Day on
which the Emperor performs the ceremony of " Shih5-
hai " (pg:J"^^) or " Worshipping in Four Directions."

— i8 —

This ceremony takes place in the Palace at four oVlock
in the morning of the first day of the year. He begins
by worshipping the First Imperial Ancestor in the
direction of the west, and afterwards in the direction of
the respective graves of the First Emperor Jimmu
Tenno, the Imperial father Komei Tenno (#K5^^)
and the other deities.

At the termination of this ceremony the Emperor
and the Empress receive New Year's congratulations
from the members of the Imperial family, foreign
ministers, officials, nobles and other dignitaries ; and
thus the first ceremony of the court may be said to
begin with the worship of Imperial Ancestors.

The Second Festival takes place on the 3rd. of
January, and is called ** Genshi Sai," (TCip^) meaning
" sacrifice to the origin." On this occasion the Emper-
or personally performs the sacra in the three temples
of the Sanctuary, attended by the members of the
Imperial Household, and all the high officials of
Shin-nin (llffi) and Chioku-nin (SJffi) rank. In the
afternoon, the nobility and all officials down to those
of the lowest rank attend the Sanctuary to worship
the three temples.

On the 5th. of January occurs the third National
Festival which is called Shinnen Yenkwai (fT^^#)
or " The Banquet of the New Year." This is one of

— 19 —

the two National Holidays which has no relation to
Ancestor- worship.

The fourth Festival Day is " Komei Tenno-Sai "
(#ffl^^^). This is the anniversary of the death of
the August Father of the Emperor and is observed on
the 30th. of January. The ceremonies on this and
other Festival Days being similar, it is unnecessary to
give any further description.

February nth, is the date of the fifth Festival called
" Kigen-Setsu " (^TCf^) or the anniversary of the
accession of the First Emperor and the foundation of
the Empire. After the ceremonies are performed at
the Sanctuary, a grand banquet is given in the Palace
to princes, foreign ministers, high officials and nobles.

The sixth Festival occurs on the 20th. of March, and
is called " Shiunki Kworei-Sai" (S$1:M^) or "The
Spring Sacrifice to the Spirits of Imperial Ancestors."
This ceremony of worship is also performed both in
Kworei-Den and Shin-Den by the Emperor in person
attended by all the high officials of state.

The seventh Festival Day *' Jimmu-Tenno-Sai "
(iftlEt^^^) is the 3rd. of April, which is devoted to
the worship of Jimmu-Tenno, for this day is the
anniversary of the death of the First Emperor.

The eighth Festival Day is " Shiuki Kworei Sai "
(l/C^liS^) or " The Autumnal Sacrifice to the Spirits

20

of Imperial Ancestors " which takes place on the 23rd.
of September. This corresponds to the " Spring
Sacrifice " and the ceremonies are nearly identical.

The 17th. of October is the date of the ninth
Festival. This is called ** Shin-sho-Sai " (##^) or
" Kan-name-MatSLiri " and the principal ceremoy
consists in offering the first crop of the year to tlie
First Imperial Ancestor. On this occasion also, -the
Emperor performs the cerem.onles at the Sanctuary,
besides the ceremony called " Yo-hai " or the " Distant
Worship " of the First Imperial Ancestor at ls6.
With the new crops "The Sacrifice of the First Tribute"
or " Nino-sakino-Nusa," {^^m^) the offering of silk, is
made. This is a relic of the ancient practice of select-
ing the best portion of the " First Cargo " of the taxes in
kind, and offering it on the graves of Imperial Ancestors.

The loth. Festival Day, '' Tencho-Setsu," (^-Sfi!)
is the birthday of H.M. the Emperor and is one of the
two holidays which are not founded on the worship
of Imperial Ancestors.

The nth. and last is *' Shin-sho-Sai " (fT#^) or
'• Nii-Name-no-Matsuri " which takes place on the
23rd. of November. The chief feature is the offering
of new crops to the Imperial Ancestors, but this festival
will be more fully dealt with when I come to speak of
the accession of the Emperor to the throne.

— 21

All the Festival Days are annually observed as
national biolidays. National flags representing the
Rising Sun are hung from every house ; women don
their best attire, and the streets are thronged with
holiday makers ; while children go to their schools and
assemble before the portraits of the Emperor and
the Empress, and His Majesty's famous Speech on
Education is read and explained to them by the
school masters.

From the foregoing, it will be seen that the worship
of the Imperial Ancestors is the national worship.

§ 3. THE WORSHIP OF CLAN-
ANCESTORS.

The population of Japan was originally considered to
have been divided into three classes, Shinbetsu (#^i])
the divine branch which consisted of the descendants
of gods ; Kwo-betsu (^S'j) or the Imperial branch
which included the descendants of the Imperial families,
and Ban-betsu (H^O), or the foreign branch, comprising
the descendants of naturalized foreigners. Each of
these three branches was divided again into many
clans, each section having a distinctive clan-name
♦* Uji " {pC) or " Kabane " (M). With regard to the

— 22 —

original signification of the words •* Uji " and
" Kabane " there is considerable divergence of opinions
among Japanese scholars. Some maintain that the
word came from ** iimi-chi " (^jfl) or " blood of
birth ;" others derive it from •* izu " (i±i) or " origin ; "
while the claims of " uchi " (pj) "house" also
receive support in certain quarters (i^^i'P). As to the
derivation of the word " Kabane," which was some-
times used to denote clan-names, almost equally
divergent views exist. Some suggest " agama^e "
(hfj^t'^) or "reverence" in view of the fact that
the word was more usually employed to convey the
meaning of a tide of honour ; others derive it from
" kami hone ' {#'W) or ** god's bone," the word
signifying that clan- name is like the bone of the
ancestor which remains after his death ; while not a
few are in favour of applying its ordinary meaning,
namely " corpse," because it is a corpse that descend-
ants succeed. The late Professor Kurita, in his
learned investigation into the subject of clans (Dc//X^),
derived it from " Kabune " {^^l\) "the root" or
" the stock ", the word being employed to designate
the root or stock from which descendants sprang. I
have no desire, however, to involve myself in an
etymological discussion as to the original signification
of these words ; nor is it within the scope of this paper

— 23 —

to do so. No matter which of these disputed deriva-
tions be the correct one, they one and all convey the
idea of a certain common ancesto7'y and consequently of
community of blood.

The word *' uji " denoted the clan -name, or the
common appellation of the descendants of the same
ancestor, and sometimes the clan itself. The word
" Kabane," which was more usually employed to
designate titles of honour, was also sometimes
employed in the sense of a clan -name. In the course
of time each " uji " or clan was subdivided into smaller
clans, and hence arose the division of "uji" into
•' O-uji " (:kJ^) the '* Great clan " and " Ko-uji " (/M3c)
the " Small clan." Each " O-uji " consisted of a
number of subordinate bodies, and usually certain
words were added to great-clan names, in order to
distinguish the sub-clans from the parent community ;
for example, " Nakatomi " (4*^) was a great-clan
name, born by the descendants of Ame-no Koyane-no
Mikoto (X^MIfip[J'). from which sprang the sub-
divisions " Nakatomi-no-Sakahito," (^'tSfiA) " Naka-
toml-no-Miyatoko," (4»ESjS), " Nakatomi-no-Oya"
(4*^:^^) etc.

Each clan has a clan -god or " Uji-gami " (Rf?) who
is the eponym of that particular community ; thus, Kasu-
ga (# P) is the famous •' Uji-gami " of the Fujiwara clan

— 24 —

(MW^J^) which was one of tlie largest and most in-
fluential clans in Japan. In early times, it seems to
have been customary to render homage every month
to the clan-crod at tlie house of each individual clans-
man (^#^) ; but afterwards this practice declined,
and festivals in honour of the clan-ancestor were
substituted, and these were held three times a year in
the temple. All clansmen took part in the ceremony ;
and records still exist which show that court-officials
were permitted to set out on a journey to attend the
sacra of the clan-god, which were performed in the
temples far away from the capital, without even first
obtaining leave of absence. Sometimes lands were
presented by the Emperors to the temples of clan-gods
of high officials, in order to mitigate the heavy expense
of festivals. The offerings submitted on the occasion
of festivals consisted usually of food, drink and clothing.
In order to give an idea of the nature of the oblations
on these occasions, I will translate literally a portion of
the prayers recited during the festival of the Fujiwara
clan-god : — '' and the offerings hereby most respectfully
presented are divine treasures in the form of a mirror,
a sword, a bow, a spear and a horse ; as vestments,
light cloth, shining cloth, soft cloth (silk), course cloth
(hemp) ; the first-fruits from the tributes of different
provinces ; from among the things of the blue sea, the

— 25 —

broad- fin (larc[e fish), narrow fin (small fish), weeds of
tlie de^'p and weeds of the shore ; from amon^f dilngs
of mountain and field, sweet herbs and puno^ent herbs ;
and tall jars filled with sake and others things all piled
np like a rani^e of mountains. These things are prof-
fered by A, the master of the sacra, as the grand
offering, the peaceful offering and the full offering, and
he reverently prays that the Divine Spirits may accept
them peacefully." Sometimes sacred music and dances
were also offered in addition to the various articles
eninvicrated above.

The word "uji-gami" or clan-god is now used in
another sense, namely in the sense of the local tutelary
god or the patron-god of a man's birthplace or domicile.
This change in the use of the word *' uji-gami *' from
clan-god to local tutelary god possibly arose from the
fact, that in early days clansmen usually lived together
in the same locality, and erected a tem;3!e for the
worship of their ancestral eponyms, with the result
that the clan-god and the local patron-god meant one
and the same deity. But subsequently, the means cf
communications gradually developed, and the members
of the various clans began to disperse and to live in
different parts of the country. Even now, it is no
uncommon thing to find in the country villages the
greater part of the inhabitants bearing the same family

26

name. Moreover, it will be shown presently that the
administrative departments of the Empire from being
tribal have gradually become local and territoriaL

In all parts of the Empire, persons living within
certain localities are designated '* uji-ko " (1^^) or the
children of the clan. They carry their children soon
after they are born to the temple of the local patron -
god for the first worship which is called " Miya-mairi "
(S^) and each " uji-ko " contributes towards the
maintenance of the temples and the expenses of the
festivals which are held in honour of *' uji-gami " at
least twice every year.

All these facts combine to show that the worship of
*' uji-gami," or local patron-gods, is a relic of the
worship of clan- ancestors.

§ 4 THE WORSHIP OF FAMILY-
ANCESTORS.

The next point to be discussed is the worship of the
Ancestors of a House. The occasions for the celebra-
tion of house- worship may be classed under three cate-
gorieSy namely, the Sacrifice- day Sy the Sacrifice-months ,
and the Sacrifice-years, The Sacrifice-day or " ki-ni-
chi" C&H) is the day in each month corresponding to
the day of an ancestor's death. For instance, if the

— 27 —

death occured on the fifth day of a month, the " kinichi"
would be celebrated on the fifth of every month. The
Sacrifice-month or " sho-tsuki " (MB) is the day of the
month corresponding to the day and month of an
ancestor's death. Thus, if the death occurred on the
fifth of September, the " sho-tsuki " would be observed
on every fifth of September. The Sacrifice-year or
" nen-ki " (^.&) is the day of the month in certain
years, corresponding to the day of the month of the
death of an ancestor, the ceremony of worship in

connection with it usually taking place among Shin-

•

toists on the ist, 5th, loth, 20th, 30th, 40th, 50th, and
1 00th anniversaries. After the looth year, the
anniversary is usually celebrated every 50th year.
Among Buddhists, these anniversary ceremonies are
usually observed on the ist, 3rd, 7th, 13th, 17th, 23rd,
27th, 33rd, 37th, 43rd, 47th, 50th, and 1 00th year,
after which period they are held every 50th year as in
the case of the Shintoists.

In accordance with an ancient custom, sacrifices are
made and ceremonies of worship performed by Bud-
dhists, after a man's death, every seventh-day until the
seventh seventh-day, that is the forty-ninth day from
the date of death ; these sacrifice days being respecti-
vely designated the "first seventh-day" (^-trB) *' second
seventh-day " (H-b H ) and so on. Amongst Shintoists,

— 28 —

these Sacrifice-daj-s are usually commemorated every
tenth day after the death, and end with the fiftieth or
hundredth.

As a rule, on "kinichi" or Sacrifice-days of each
month, after the seventh seventh-day among Buddhists,
and the fiftieth or hundredth day among Shintoists,
only members of the family and near relatives take
part in the proceedings ; but on the occasion of *' sho-
tsuki " and " nenki," feasts are provided, and relatives
and descendants of ancestors are invited to participate
in the worship. In both the Shinto and Buddhist
religions, priests officiate the ceremonies, but among
Shintoists the relii^ious services are held in their own
houses, while among Buddhists tliey sometimes take
place in the temples as well as in their own homes.

The respective rituals of worship differ somewhat in
the Shinto and Buddhist religions, and there are also
some variations observable in the rites of different
Buddhist sects. Shinto offerings consist of sake, rice,
fish, game, vegetables and fruits, for food and drii.k,
and pieces of silk and hemp for clothing, while bran-
ches of sakaki-tree and flowers are also frequently
offered. The priests who conduct the ceremony clap
their hands before the altar, and the chief priest pro-
nounces the prayer or " norlto " (ilfS) the words of
which vary on different occasions, although, at the

— 29 —

commencement of the recital the spirits of the ancestors
are almost invariably informed that the head of the
family, with other members and connections, are
assembled for the purpose of celebratincy the particular
anniversary, reverently offering to the sacred soul
" lucks of sea and mountain " (umi-no sachi (ii|;^#)
yama-no-sachi (ilj;^$), meaning thereby fish, game
etc), that the house is in a peaceful condition, and that
the descendants are presperous. The pra) er usually
ends with the supplication that the spirit may protect
and watch over the family, and accept the offerings
dutifully submitted. After this, each of the assembled
party, commencing with the head of the house, takes
a "Tamagushi" l3E$) or small branch of sakaki-tree,
to which is attached a piece of paper representing
" nigo-taye " (iD^ffi) or fine cloth, places it on the
altar and then claps hands and makes obeisances.
With regard to the significance of the hand- clapping,
three explanations have been given. Some consider
it as a sign oi joy^ others as an invocation, and others
asfain as a si^rn of adniiraiion. The last named is the
opinion of the late Professor Konakamura (/h4»#/nlJa)
and is the most widely accepted explanation. At the
termination >^ of this ceremony, all the relatives are
invited to a banquet, concerning which the late Profes-
sor Kurita in his treatise on the ** Rituals of Worship"

— 30 —

writes :- " The relatives assembled partake of the
sacred sake, which has been offered to the ancestor,
and talk about his meritorious deeds, while each person
present gives voice to a resolve not to degrade in any
way the good name of the ancestor."

We now pass to the ceremonies of the Buddhists.
Their offerings usually consist of tea, rice, fruits, cakes
and flowers, either artificial or natural, the most usual
being lotus. Fish and meat form no part of the
sacrifice because of the doctrine of abstinence from
flesh, embodied in Buddha's commandment not to kill
any animate being. Whether the ceremony takes
place in the temple or in the house, priests officiate
and recite sacred books. When it is performed in the
temple, sacred music generally accompanies the prayer-
recitals. The assembly in turn burn incense and
prostrate themselves before the altar, the order of
precedence being the same as in the case of Shinto
worship. The feast which is held in the house on the
preceding evening does not differ in its general features
from that of the Shintoists, except that the food
consists of vegetables only.

In addition to the ceremonies performed on the
three occasions referred to, there are three appointed
times in the course of a year, when people offer sacri-
fices to the spirits of ancestors both at home and at

— 31 —

the graves. These are the weeks respectively of the
Spring and Autumnal equinox which are called " Hi-
gan," m^) and the Festival of " Urabon-ye " (SBgat")
or" Bon" which continues from the 13th till the i6th of
July. In " Higan " the family graves are visited, and
'flowers and water offered upon the tombs. In " Ura-
bon-ye,'* the Festival for the " Invitation of Spirits " is
held in every Buddhist's house. On the day previous
to the Bon -festival,' markets called '* Kusaichi " (i^lfj)
or ** Bon-ichi " (S:rfj) are held in many places for the
sale of articles used in the decoration of altars. On
the 14th of July, visits to family graves and offerings
of flowers and lanterns are made, and shelves are
erected in the houses called " Shoryo-dana " ($nMffl)
or " the shelf for the spirits " which are decorated with
various kinds of vegetables, large lanterns called kiriko-
doro" (-6QSSJSM) are also offered. In the evening of
the 1 3th, the " mukai-bi " (ifll'/C) or *' Reception Fire "
is kindled before the door of the house or in the
garden; and in the evening of the i6th, "okuri-bi"
(S'/C) or the *' Farewell Fire" is lighted. During
these four days, the spirits are supposed to come and
stay in the house. Priests are invited to recite
prayers, and many offerings of rice, water, fruits, cakes
and vegetables are made on the Spirit-shelf, the most
curious among the offerings being oxen made of egg-

— 32 —

plants and horses fashioned from white melons, the
legs being represented by hemp-stalks. Elaborate
rules regul ite the nature of the offcrln^^s of this festival
but it is unnecessary to dwell upon them here.

The extent of the sacrifices made on tlie occasion of
the periodical services which I have described, and the
number of priests who conduct the ceremony, as well
as the size and decorations of tlie ancestral graves vary
in accordance with the rank and fortune of the people.
One of the most magnificent edifices in Japan is the
temple of Nlkko (U^) which is dL:dicated to the
worship of lyeyasu (^JK), first Shogun of the Toku-
gawa family. There Is a well-known popular saying
*' Never say kekko (splendiel) until you see Nikko."
In the early part of the Tokugawa Shogunate, one
thousand priests took part in the ceremonies of wor-
ship on the occasions of '* nenki " or the seventh yearly
anniversaries of the ancestors of Shogun, and recited
one thousand sacred books every day, until they had
completed the recitation of ten thousand volumes in
ten days. Of course these festivals, which sometimes
took place two or three times a year, entailed great
expense to the treasury of the state, and also to the
Feudal Nobles who were- compelled to make contribu-
tions of rice and money. At the beginning of the
iSth century, however, a new law was enacted, by

— 33 —

which the number of priests was limited to two or
three hundred, the number of the sacred books to be
recited to one thousand vohimes and the duration of
the festival to three or four days. This reform is said
to have reduced the expense to one-tenth of the origin-
al amount. This fact helps to demonstrate the impor-
tance attached to the worship of ancestors.

The worship of ancestors is not limited only to the
festival times mentioned. When a young student goes
to Europe to pursue his studies, when a soldier sets
out on a campaign, when an official is sent abroad on
some government service, or when a merchant under-
takes a long journey on business, he invariably visits
the graves of his ancestors in order to take leave of
them. When they live in places distant from their
ancestral graves, they very often make long journles
in order to visit the tombs and make sacrifices to them.
In many Shintoist houses, the offerings of sak6 and
sakaki-tree are continually made ; and in Budhist
houses flowers are offerred everyday and incense are
continually burnt in Butsudan. In fact, the worship of
the spirits of ancestors forms a part of everyday-life of
the people.

PART III.

ANCESTOR-WORSHIP AND LAW.

§. I. THE GOVERNMENT.

I have been at some pains to describe the present
state of Ancestor- Worship in Japan in order to show
that even now, the social life of the people is greatly
influenced by the practice. Now I come to the main
subject of this paper ; namely, the relation of Ancestor-
Worship to Japanese Law.

That the foundation of our government was the
worship of ancestors is shown by the word '* Matsuri-
goto " or '' government " which means '' affairs of
worship" ' The ceremony of " Seiji-hajime " (0:#io)
or the " Beginning of the Affairs of State," which
takes place on the 4th of January, consists of the
Emperor receiving from his ministers the report of the
affairs of the Temple of Dai-jingu, the First Ancestor
of the Emperor. Thus the business of our government
may be said to begin every year with matters relating
to worship. " Sai-sei Itchi " (^&— *it) or " the unity
of worship and government " is an expression which
was very commonly used by old writers on politics and
government. Upon this principle, even after the

— 35 —

introduction of Chinese civilization in ancient times,
and the great reform of the Taikwa {:kit) era (645 —
649 A.D.) the Department of Divine Worship (#M*§)
was given precedence over all other government
departments, even over '* Da Jo Gwan " or the Great
Council of State which was afterwards reorganized
and established as the Cabinet.

The most minute regulations with respect to rituals
of worship are to be found in old law-books such as
the Taiho Code (i^m^) and Yengi Shiki (SW-S) ;
and all great affairs of state such as the promulgation
of the Constitution, the declaration of war, the con-
clusion of peace, and the revision of treaties with
foreign powers are usually reported to the Temple of
the First Imperial Ancestor at Ise, and sometimes to
the tombs of other Imperial Ancestors. Although the
affairs of state- worship, which formerly belonged to the
Department of Divine Worship, are now administered
by bureaux of the Home Department and the Imperial
Household, motions are brought forward in almost
every session of the Diet to make representation to
the government to revive the Department of Divine
W^orship. Thus, in Japan, as it was in China " The
great affairs of State are Worship and War," {&^Sii
iz^^jit^^ Commentaries of Sa on the Spring and
Autumn History of Confucius.)

_ 36 -

§. 2. THE CONSTITUTION.

The present Constitution of the Empire of Japan
was promulgated by the Emperor on the nth of
February 1 889, that day being the National Festival
of Kigensetsii or the anniversary of the foundation of
the Empire by the First Emperor Jimmu Tenno (f^S!
^^). In the framing of this Constitution, Marquis
Ito {^WM'X), with many high officials, had been sent
to Europe with the Imperial Commission to examine
the constitutions of Western Countries, and most of
the principles which find a place in the component
elements of constitutional governments have been
adopted, so far as they are consistent with the fund-
amental principles of the form of Imperial Government
which existed from the beginning of the Empire.
That fundamental principle is clearly stated in the ist
Article of the Constitution : " The Empire of Japan
shall be reigned over and governed by a line of
Emperors unbroken for ages eternal^ Marquis Ito, in
his " Commentaries on the Constitution" (iSJi^^
translated into English by Baron Miyoji Ito #:^aR'S),
writes '* The Sacred Throne of Japan is inherited from
Lnperial Ancestors, and is to be bequeathed to
posterity ; in it resides the power to reign over and
govern the State ". From this it will be seen that

— 37 —

the foundation of the Constitution is the worship of
Imperial Ancestors, a fact which is definitely set
forth in the Preamble of the Constitution which
runs thus : —

" Having, by virtue of the glories of our Ancestors,
ascended the throne of a lineal succession unbroken
for ages eternal ; remembering that Our beloved
subjects are the very same that have been favoured
with the benevolent care and affectionate vigilance
of Our Ancestors, and desiring to promote their welfare
and give development to their moral and intellectual
faculties ; and hoping to maintain the prosperity and
progress of the State, in concert with Our people and

with their support We hereby promulgate a

fundamental law of State to exhibit the principles, by
which We are to be guided in Our conduct, and to
point out to what Our descendants. Our subjects and
their descendants are forever to conform. The rights
of sovereignty of the State y We have inherited fro7n Our
Ancestors and We shall bequeath them to Our descen-
dants. Neither We nor they shall in future fail to
wield them, in accordance with the provisions of the
Constitution hereby granted".

In the course of the Imperial Speech on the occasion
of the promulgation of the Constitution, His Majesty
said that " The Imperial Founder of Our House, and

- 38 -

Our other Imperial Ancestors, by the help and support
oi th^ forefathers oi Our subjects, laid the foundation
of Our Empire upon a basis, which is to last for ever.
That this brilliant achievement embellishes the annals
of Our country is due to the glorious virtues of Our
Sacred Imperial Ancestors, and to the loyalty and
bravery of Our subjects, their love of their country
and their public spirit". His Majesty further took an
oath to the Imperial Ancestors at the Sanctuary of
the Palace to observe the provisions of the fundamental
law, the terms of the oath including the statements
that the constitution was the '' exposition of grand
precepts for the conduct of the government, bequeathed
by the hnperial Founder of Oicr House and by
Our other Liiperial Ancestors', and that the New
Constitution was intended to " give clearness and dis-
tinctness to the instructions bequeathed by the Imperial
Founder of Our House and by Our other Imperial
Ancestors, in consideration of the progressive tendency
of the course of human affairs, and in order to keep
in line with the advance of civilization."

When Jimmu Tenno founded the Empire, and as-
cended the throne, the ceremony of coronation con-
sisted in the worship of the Imperial Ancestors on the
Hill of Torimi Yama (,^;l.|il). At the accession ot
every Emperor there is a ceremony called " Daijo-Sai "

— 39 —

(:fc#^) or " Oname-no-Matsuri," usually on the first
Festival Day of Shinsho-Sai already referred to, in
which the newly crowned Emperor offers the first
fruits of the year to his Ancestors. Article xi of the
Imperial House Law says *' The ceremonies of
Coronation shall be performed and Daijo-Sai shall be
held at Kyoto." Article x of the same Law provides
that *' upon the demise of the Emperor, the Imperial
heir shall ascend the Throne, and shall acq2tire the
Devine Treasures of the Imperial Aiuestors!' These
Devine Treasures of consist of the Mirror above
spoken of, a sword and a precious stone which have
been bequeathed by the First Imperial Ancestor,
Amaterasu O-mi Kami, to her descendant as symbols
of the Imperial power.

The foregoing statement of the facts relating to the
Constitution of the Empire will be sufficient to show
that the sovereignty of Japan is the heritage of Imperial
Ancestors and that the foundation of the Constitution
is Ancestor- worship.

§ 3 THE PEOPLE

I have already stated that the worship of Imperial
Ancestors is our national worship. They are worship-
ped, not only because they are the ancestors of our

— 40 —

August Sovereign, but because they are the Sovereigns
of our ancestors. Formerly, as I have said, the people
of Japan were divided into three branches or "Three
Bodies " (Hf|) and each branch was divided into many
clans. Each individual subject had an ** uji " or clan-
name, which was the mark of descent from a certain
ancestor. Each clan, whether great or small, had its
chief, called " Uji-no-kami" (^_h) who was usually the
eldest male descendant of the eponymous ancestor.
He was obeyed and honoured by the clansmen as the
representative of their common ancestor. He was the
head of their worship, their leader in the time of war,
and their governor in the time of peace. Small clans-
men were governed by the " uji-no-kami " of the small
clan, who was himself subject to the "uji-no-kami" of
the great clan. The Emperor was the supreme authori-
ty over them and all the laws and proclamations of the
Imperial Government were transmitted to the " uji-no-
kami" of great clans who, in turn, transmitted them to
the " uji-no-kami " of the small clans and thus each clan
which was a body founded on the community of blooa
and worship, formed an administrative division of the
country, corresponding to the present administrative
divisions such as provinces, cities, towns, districts and
villages. Since the great Reform of the Taika Era
(:KWl^ in spite of the fact that the clan system of

— 41 —

government continued for a long time afterward, the
basis of administrative division of the country gradually
changed from being personal to being territorial. As
Dr Hearn very truly remarks in his " Aryan House-
hold," the order of transition " was from kinship to
neighbourhood.'*

§ 4 THE HOUSE

In the middle ages, clans began to gradually disinte-
grate and households took their place. It was only
after the Restoration of 1868 that the house-system
began to lose its force and that the individual, not the
household, began to form the unit of state. This
transition may be illustrated by the history of our Law
of Registration, The development of this law can be
d\v\^^di mto three epochs ; ist, the epoch of the Clan-
registration (ttPc^^K), 2nd, the epoch of House'
registration (^^^R) and 3rd, the epoch of the Person-
al-registration ('^^^eE^SR). In those earh^ days
when the clan formed the unit of state, it was of the
utmost importance that each person's clan-name should
be kept sacred. As only those who belonged to
certain clans could fill high official positions or join the
Imperial body-guard, and as several other privileges

— 42 —

were enjoyed by particular clans, attempts were often
made to forsake original clans and surreptitiously adopt
the names of some influential clans. In order to put
a stop to these abuses an " ordeal of hot water " or
" Kuga dachi " (MM) was held in obedience to an
Imperial proclamation in the 4th year of the Emperor
Inkyo i±W^M) (415 A.D.) to test the truth or
falsehood of the clan- names born by the people.
This ordeal consisted in plunging the hand into hot
water before the temple of a god, and it was claimed
that those who had assumed false clan- names would
suffer injury, whilst the innocent would escape unhurt.
In the 5th year of the Era of Tempei Hoji, (^^W¥)
(761 A.D.) an office called -Sen Shizoku Jo" m^m
pJt) was founded for the compilation of a clan -registry,
and a commission was appointed which numbered
amongst its members the most distinguished scholars
of the time. The work of the commission was, how-
ever, not completed. Since this time. Imperial pro-
clamations were frequently issued ordering all clans in
the Empire to send their genealogical records (^.^iif^)
to the government, in order that they might be includ-
ed in the Imperial archives. It was ordered, that in
those records the name of the first ancestor and also
the name of the ancestor from whom the small clan
branched out should always be given and the records

— 43 —

of those claiming to belong to noble clans had to be
attested by the signature of the head of the whole
clan. In the reign of the Emperor Saga (lljMlilc^^) in
the 6th year of the Era of Konin (?i,t), ** the Register
of Clan-names" or '' Seishi Roku" (t&^M) was compil-
ed, a part of which is still in existence to-day. This
Register consisted of 30 volumes and contained 11 82
clan-names. In that year, " Kan Kei Jo " (iii.^^f) or
the Bureau of Genealogical Investigation was estab-
lished. The preservation of genealogical records and
their accuracy were considered to be matters of the
utmost importance in those times, and their loss or
forgery used to supply abundant material to the writers
of novels and dramas, just as the subject of the loss or
forgery of wills is frequently resorted to by Western
writers.

The introduction of " Ko-seki " (^©) House-Regis-
try dates back as far as the ist year of the Era of
Taika (645 A.D.), wdien the great reform was made in
the system of government. Although its introduction
was earlier in date than the final compilation of the
'* Register of Clan-names," its historical order must
come after that of the Clan- Registry, for the system
of House-Registry has continued from that remote
period down to the present time.

It was only in the 31st Year of Meiji (1898 A.D.)

— 44 —

that the history of our law of registration began to
enter upon the third stage of the development. The
present law, which was promulgated in 1898, and
which replaced the previous law of 1871, still retains
the name of " Koseki Ho " (^^?i) or " the Law of
House Registration," but the character of the law has
undergone a change necessitated by the progress of
the social condition of the country, for it provides for
the registration of individual status or "Mibun-toki"
(#:3^^t&) as well as of house registration.

It is often asserted by writers who concern them-
selves with the early phenomena of society, that a
family was the original unit of state and that the
aggregation of families formed a clan. But this view
seems to me to reverse the real order of development.
It was the clan which was first recognised by law and
which formed the unit of society. The family was
included in the clan but did not yet possess separate
existence in the eyes of the law. It was only by the
gradual disintegration of the clan, that the family or
house came to the fore, and began to form the unit
of society. Thus, constituent element of a society
becomes smaller and smaller, until it divides itself into
an atom or individual.

Froni what has been stated relative to the develop-
ment of the law of registration, it will be seen that

— 45 —

Japan Is now in a state of transition. Until recently, a
house was a corporation and a legal unit of the state.
But ever since the Restoration of 1868, the family
system has gradually decayed, until, at present, the
house has entirely lost its corporate character.
Formerly, it was the head of the family only who could
fill an official position, serve in the army, and hold
property. But with the reform in the system of
government, the members of a house were permitted
to fill public positions and with the reform of the law
of military conscription, both head and members are
liable to military duties ; while with the progress of
commerce and industry the younger members of the
house were entitled to hold public bonds, stocks and
shares, which the law now recognises as their separate
property. Although the house has thus lost its corpo-
rate existence in the eyes of the law, it still, never-
theless, maintains its character as the unit of society.
The new Civil Code which came into operation in
1898, allows members to secede from a household and
establish a new " branch-house " with the consent of
the head of the family (Art. 743 Civil Code) ; for the
law recognises the tendency of social progress towards
individualism, but, at the same time, it makes careful
provision for the continuity of the house. The house
is the seat of Ancestor-worship, and, therefore^ the

— 46 —

discontinuance of the house implies the discontinuance
of worship. It is for that reason that the Civil Code
contains many strict rules against the discontinuance of
the house. Article 762 provides that '' A person who
has established a new house may abolish it and enter
another house. A person who has become the head
of a house hy successio7t cannot abolish such house,
except where permission to do so has been obtained
from a Court of law for the purpose of succession to,
or the re- establishment of, the main branch of the
house, or for any other just cause." If we compare
the first with the second clause of the article above
cited, we at once see that this provision is made for
the purpose of the continuance of worship. Those
who establish new houses Jiave no hoiise- ancestor to zuor-
ship and therefore they are at liberty, if so disposed, to
abolish such houses, and to become members of other
houses by adoption, marriage or any other arrange-
ment. But with those who have succeeded to the
house-headship, the case is different. They are en-
trusted with the duty of worship which it is considered
the greatest act of impiety to discontinue. But if they
belong to bi^anch houses, they may abolish them in
order to continue or revive the worship of the ances-
tors of the maifi houses from which their own have
sprung.

— 47 —

For the same reason, it Is provided in Article 744
that " The leoral presumptive heir to the headship of a
house is not permitted to enter another house, or
estabh'sh a new one. except in cases where the neces-
sity arises for the succession to the main branch of the
house." A legal presumptive heir is heres necessarius,
and to him falls the duty of succeeding to the headship
of his house and of upholding the continuity of its wor-
ship. For that reason, he or she cannot become a
member of another house by marriage, adoption or
any other cause, nor found a house of his or her own,
except where the more important duty of preserving
the continuity of the worship of the main branch of the
house renders such a step necessary. Sometimes
hardships arise from the operation of this rule. For
instance, a male head of a household or a male legal
presumptive heir of a house cannot marry the only
daughter of the head of another house, owing to the
fact that she is the legal presumptive heiress to the
headship of the latter house. In such cases the only
alternative is to disinherit the heiress according to the
provision of the Code, which requires the judgment of
a Court of law (Art. 975), and thus enabling her to
enter another house by marriage.

48

§. 5. MARRIAGE.

Marriacre Is an institution based upon human nature ;
but the oricrlnal cause of its recognition by law must
be sought for in Ancestor-worship. The state
recognised wedlock, and began to make rules for
Its protection, because it was regarded as a means of
perpetuating the worship of ancestors. In the eyes of
the old law, it was essential that a family should
perpetuate itself for ever, and marriage represented
the union of man and woman for the purpose of
obtaining a successor to maintain the continuity of
Ancestor- worship. It was due to the dead that the
descendants should not become extinct. It was a
means to an end, and that end was the continuity of
the sacra. It was considered one of the greatest
misfortunes that could befall a man, that he should
die without leaving a son to perpetuate the worship of
his ancestors and himself. Mencius (:^^) says. "There
are three things which are unfillal, and to have no
posterity is the greatest of them." (:^#WH|ift;^::fc)
In passing, it may be noted that the other two unfilial
things are the encouragement of parents in unrighteous-
ness, and failure to succour parents in poverty and old
age. To be without posterity is the greater fault than
the other two, because it is an offence against the

— 49 —

zvhole line of ancestors, and terminates the sacrifice to
them. In the '' Book of Filial Piety" (#iK) Confucius
says " There are three thousand acts which are punish-
ed by the Five Punishments, but no crime is greater
than filial impiety." (S?fil;tMH^M*^::'cK^#) There-
fore, to die without male issue was regarded as the
greatest sin that a man could commit against the
doctrine of the Chinese philosophy, which has been
taught in our country for more than one thousand
years. The reason of this doctrine is obvious. The
posthumous happiness of the ancestors of a family
depended on the proper performance of the family
sacra. It was, therefore, the duty of every head of a
house to marry for the purpose of avoiding the calamity
of the family sacra becoming extinct. It was the es-
tablished principle of our customary law, which is main-
tained with some modifications in the new Civil Code
(Art. 750), that a member of a house must obtain the
consent of the head of the family for his or her marri-
age. The House-law " Ko-riyo " (P^) of the Taiho
Code also required the consent of grand parents,
parents and other relatives before the marriage could
be celebrated. According to Article 760 of the new
Civil Code, if a member of a house marries without the
consent of the head of the family, the latter may, within
one year from the day of the marriage, exclude him or

— so-
ber from the house-hold, or if he or she has entered
another house by the marriage, forbid his or her return
to it in case of dissolution of marriage. As to the
consent of parents, the first clause of Article 772
provides : - *' For contracting a marriage, a child must
obtain the consent of the parents who are 171 the same
house. But this rule does not apply if the man has
completed his thirtieth year or the woman her twenty-
fifth year." The consequences of a marriage without
the consent of the parents are stated in Articles 783
and 784. The parent may make application to a
Court of law for the annulment of the marriage within
the period of six months from the time when he or
she first became acquainted with the fact of the
marriage, or within two years from the date of its
registration.

The reason for requiring the consent of the head
of the family is, that by the marriage of a male memben
another member is added to the household ; or in case
of marriage of a female member, one member is lost
to it, for the wife enters the house of her husband,
unless a man marries a female head of a family, or
an adopted son marries the daughter of the persons
who have adopted him, in which cases the husband
enters the house of his wife according to the provision
of Article 788. In all cases, marriage brings about a

— 51 —

change in the household, and this is the reason assigned
at present for the existence of the rule relating to the
permission of the heads of families.

But formerly, there was another, and no doubt more
important, reason. As marriage was regarded as the
means of obtaining a successor to the sacra of the
house, the head of the house must guard against any
improper alliance,

The consent of the parents in the same house is
also required by the new Civil Code, chiefly because
the parents, who have the interest of their children at
heart, may be relied upon to proffer good advice
and to guard against any rash or unsuitable union ;
and because of the reverence which is due to
them from the children. But here, as in the case of
tlie consent of a house-head, the original cause of
the rule is different from the reason of its retention.
At first, the parents' consent was required, because
a son's marriage was the means of obtaining a suc-
cessor to continue his sacra ; and in the case of a
daughter, she passed out of the original household
and was initiated into the cult of her husband's house.
That it was the supreme duty of a man to marry for
the purpose of obtaining the continuator of sacra, may
be gathered from the Dialogue of Mencius (S-jF). A
famous Chinese Emperor Shun (#), who was noted

— 52 —

for his filial piety, married without obtain in o- the
consent of his parents, for he knew that they would
not countenance any union, and he could not marry
if he had asked for their consent. Mencius, in justify-
ing the act, said " Shun married without informing his
parents because of his anxiety lest he should have no
posterity. Superior men consider that his action under
the circumstances, should be regarded as if he had

informed them." {m^^mmnmm^¥^''^f-Bmm^)

Another rule which existed before the Restoration
of 1868 clearly shows in what light marriage was
regarded by our old law. Formely, aniong " Samurai "
or military class only the eldest son who was the
presumptive heir to the house-headship, or his eldest
son who would become the presumptive heir after him,
was allowed to contract marriage, and tlie younger
sons could not lawfully marry. It was the duty ot
every house-head, and his presumptive heir to marry ;
but there was no such necessity for the younger sons
who had no apparent hope of ever becoming the head
of a household. They were consequendy called
" Heyazumi " (pfSMffi) or " dwellers in apartments."

Although Chinese laws and philosophy were in-
troduced into Japan in ancient times, the famous
Chinese law prohibiting 77iar7^iage beiiucen person bear-
iiig the same clan-name (Fj^ltt^S) was not adopted in

— 53 —

those of our old Codes which were modelled upon the
Chinese digest. The reason of this remarkable devia-
tion from the ordinary course seems to be this ; that
an ancestor only receives the sacra of his blood descend-
ajits, (^tt^^) and the marriage between persons
belonging to the same clan, that is between persons
descended from the same ancestor, was, perhaps, rather
to be favoured than the alliance with a person of
another clan, for the issue of the marriage would be of
the unmixed blood of the ancestor. This exception to
the general adoption of the Chinese laws appears the
more remarkable, by reason of the fact that the pro-
hibition against the adoption of a child from a different
clan, which has existed and still exists in Chinese law
was included in our old Codes, almost without any
modification.

§ 6. DIVORCE.

In the House-Law (Ko-riyo) of the Taiho Code is
enumerated the famous Seven Grounds of Divorce
^'t:!±i::^7liv). The Code says '' For abandoning a wife,
there must be one of the following seven grounds of
divorce."

1. Sterility.

2. Adultery.

— 54 —

3- Disobedience to father-in-law or mother-in-law.

4. Loquacity.

5. Larceny.

6. Jealousy.

7. Bad disease.

If any of these grounds exist, the wife may be aban-
doned, the husband signing the necessary deed which
must be countersigned by the nearest ascendants. If
any of these persons cannot write, the mark of the
thumb may be made in place of signature. The
enumeration of the causes of divorce shows plainly
that the object of marriage zvas the perpetttation of
worship. The reason of sterility being made the first
ground of 'divorce scarcely needs explanation. The
commentators of the Taiho Code say that sterility here
does not mean actual barrenness, but the failure of
male issue. The marriage being contracted for a
special object, and that object failing, it was justifiable
to dissolve the union. A man was, in fact, under a
moral obligation to his ancestors to do so.

Adultery is recognised by most nations as a ground
of divorce ; but the reasons of its recognition differ
considerably in ancient and modern legislations. In
the eyes of the Taiho Code, it was not the immorality
of the act itself, but rather the apprehended danger
of the confusion of blood, whereby a person not in

— 55 —

reality related to the ancestor might succeed to the
worship.

The last of the grounds mentioned in the Taiho
Code may be attributed to a similar cause. The
hereditary nature of some diseases seems to have been
early known, and the fear of ancestor's blood becoming
polluted was the chief cause of incurable disease being
recognised as a ground of divorce.

According to the new Civil Code, two kinds of
divorce are recognised ; Consensual and Judicial, the
former being effected by the arrangement of parties,
while the latter is granted by law on various grounds
which are specified in Article 813 of the Code. The
majority of the grounds mentioned in the Taiho Code
do not find a place in the new Code, and bigamy,
adultery, desertion, cruelty or gross insult, condemna-
tion to punishments for certain offences such as forgery,
theft, embezzlement, sexual immorality, disappearance
from residence etc. are the principal grounds of divorce
specified. Besides the grounds already mentioned, a
judicial divorce is allowed in a case in which an adopted
son has married the daughter of the persons who have
adopted him, and they, for some reason, break off the
adoption. Under such circumstances, the man is
entitled to dissolve the marriage.

From the comparison of the grounds of divorce

- 56 -

mentioned in the Taiho Code and those enumerated In
the new Civil Code, it will be seen that the law of
divorce has undergone a great change, and the present
law has only a slight connection with Ancestor worship,
except the last ground, which, as will be explained
when I come to speak of adption, derives its origin
from Ancestor- worship.

§ 7. ADOPTION.

Perhaps in no department of jurisprudence is the
relation between Ancestor-worship and law more
clearly shown than in the law of adoption. Failing
male issue, adoption was the most general method of
providing for the continuity of Ancestor- worship. It
was, as Fustel de Coulanges says, *' a final resource to
escape the much dreaded misfortune of the extinction
of a worship." Death without an heir was, as I have
said above, considered to be the greatest filial impiety.
So, in case of the failure of male issue, it was con-
sidered the duty of a house-head to acquire a son by
adoption.

Many of the European legislations which allow
adoption limit the a(re of the adaptor, the majority of
them, such as French, Italian, Austrian and German

— .57 —

codes, fixing- the lowest limit of an adopter's age at
fifty. The House Law of our Taiho Code provides
that a person " having fw child " may adopt one from
among his relatives within the f mirth degree of kinshipy
whose age does not exceed that which might have
been attained by a son of the adopter's own body.
According to some commentators of the Code " having
no child " here means that the adoptive father should
have reached the age of sixty years or the adoptive
mother ^fty years, without having male issue. Now,
in regard to limiting the age of an adoptor, there is an
apparent agreement between modern European legisla-
tions and our ancient Code ; but if we look closely into
the object of that limitation, we shall find that the
resemblance is only superficial. European laws allow
adoption chiefly for the consolation of a childless
marriage, and as long as there is a hope of having
issue, there is no necessity for allowing adoption.
But our old Code looked at the matter from another
point of view. As long as any hope of having a male
issue of blood, that is the direct descendant of his
ancestor existed, the head of a house should not permit
a person of more distant relationship to become the
successor to the sacra. This rule took another form
during the Shogunate of the Tokugawa family. In
order to prevent the extinction of a house by the

- 58 -

sudden death of a house-head who had no son, any
man over the age of seventeen years was allowed to
adopt a son. A person between the ages of seventeen
and fifty years could even adopt a son on his death-
bed ; and this event was called " Kiu-yoshi " (S^^^)
or " quick adoption." But if he failed in his duty of
providing for the continuity of his house until after he
had attained the age of fifty, he was threatened with
the dreadful consequence of the extinction of his house
in the event of his dying without male issue, for
" quick adoption " was not permissible after the age
of fifty. If he did not provide for the succession to
the ancestor's sacra early in life, even if he still had
the hope of male issue, he incurred the risk of the
extinction of his house and the forfeiture of his feudal
property. The prohibition of death-bed adoption is
not in force to-day, and has not, therefore, been in-
corporated in the new Code. On the contrary, Article
848 allows a person to make an adoption even by
testament. The old and the new law seem on this
point to contradict each other, but the spirit of both is
the same. They both had the perpetuation of house
for their object and the difference between them con-
sists in this, that the one wished to make people
provide for the succession early in life by attaching
severe penalties to the neglect of that precaution, while

— 59 —

the other desires to avoid the chance of a house-
worship becoming extinct by freely countenancing
adoption.

With regard to the lower limit of the age of the adop-
tor, both the laws of the Tokugawa Shogunate and our
new Civil Code agree in giving the widest scope to
adoption. The Taiho Code fixed the limit at sixty,
as I have said, but the laws of the Tokugawa Shoguns
allowed and encouraged any childless person over the
age of seventeen, and even, by special permission, heads
of houses under that age, to adopt a successor ; and
Article 837 of the new Civil Code allows any person
who has attained his majority to adopt another person.
European laws allow adoption only in old age, because
it is intended for the consolation of childless marriages,
while Japanese law countenances adoption by young
people, in order that the possibility of a worship
becoming extinct may be obviated.

As to the differe7ice of ages which must exist between
the adoptor and the adopted, many European legisla-
tions, following the rule of the Roman law ** adoptio
naturam imitatur," requires that the adoptor should be
older than the adopted at least by the age of puberty.
For instance, German, Austrian and Italian laws require
that there shall be at least the difference of eighteen
years, and the French Civil Code requires the difference

— 6o —

oi fifteen years between them. But in this respect,
Japanese law does not strictly follow the principle of
the imitation of nature, in order to give wider freedom
to adoption and greater security for the continuance
of worship. The Taiho Code required that the adoptor
and the adopted should be *' fit to be father and son '*
(KHS^^^) ; and the commentators of the Code say,
that as a person over fifteen years of age was qualified
to marry in accordance with that Code, '* fit to be
father and son " means that there should exist at least
the difference oi fifteen years. But this rule was not
followed in later days. In the time of the Tokugawa
Shogunate, the adopter was only required to be older
than the adopted, but frequent deviations were made
to this rule by special permission, notably a decree
allowing a house-head under seventeen years of age
to arrange an adoption, and another by which even an
older person might be adopted as a son. Article 838
of the new Civil Code provides that a person cannot
adopt one older than himself, although he may adopt
any person who is younger than himself.

As to the age of the adopted, no limit has been fixed
in our law. Even a baby can be adopted, and
it even frequently happens that two families agree to
adopt an expected child as soon as it is born. Article
843 of the Civil Code runs as follows : — '' If the

— 6r —

person to be adopted is under fifteen years of age, the
parents in the same house may consent to the adoption
on his or her behalf" In this respect again, there is
a difference between our law and that of European
countries, for, according to the latter, adoption is an
act of parties, and as a general rule a person under the
age of consent cannot be adopted.

That the object of adoption was the perpetuation of
Ancestor-worship may also be inferred from the old
strict rule that only a kinsman could be adopted as a son
(Mtt^#). The Taiho Code limited it to within the
kindered of the fourth degree. From the remains of
the Taiho Criminal Code (Pi^#), which have come
down to us, we know that a penalty of one year's penal
servitude was inflicted upon one who adopted a son
from a different clan, and one of fifty floggings for any-
body who assisted him. This prohibition against the
adoption of a person not related in blood, seems to have
been observed till the time of the Tokugawa Shogunate.
It derives its origin from the belief that " the spirit does
not receive the offerings of strangers." There is a law
enacted in the ist year of Genua (xlO, 1615 A.D.)
that adoption must be made from persons of the same
clan-name, that is from the descendants of the ancestor
of the adoptor. This rule, as well as the prohibition
of" quick adoption " before mentioned, was so strictly

— 62 —

enforced that many feudal lords' houses became extinct
on account of the failure of heirs ; and in consequence
their estates were forfeited, and thousands of their
vassals or " samurai " lost their feudal salary. The
result was that those " Ronin " (MA) or members of
the military class who had lost their feudal salary, and
could not, and would not if they could, earn a living
by agriculture or commerce, became seditionaries.
They often incited insurrections and joined in civil com-
motions which were very frequent in the beginning of
the Tokugawa Shogunate. The government soon saw
that the relaxation of this strict law of adoption was
necessary in order to maintain peace in the country.
In the 4th year of Keian (KS) (165 1 A.D.) soon after
the famous plot of Yui-no Shosetsu (i#jES) to over-
throw the Tokugawa Shogunate, an important modi-
fication was introduced into the law of adoption. From
that time, adoption from different clans was not strictly
forbidden, but the amended law enjoined that a man
who had no son should adopt one from the same
clan, although in case of failure of a suitable person,
permission might be obtained to adopt a person of
different clan. Although the law of adoption was
revised and amended several times, this rule remained
substantially the same more than two hundred years,
till the end of the Tokugawa Shogunate. The rigorous

- 63 -

rule of limiting an adoption only to persons of the same
clan-name practically lost its force by the introduction
of the just-mentioned proviso, and it has not, therefore,
been adopted in the new Code.

Another requirement of adoption, which is to be
found in the laws of many countries, is the absolute
failure of male issue. The House-law of the Taiho
Code only allowed adoption provided that a man had
no son. This rule has been uniformly observed from
ancient times down to the present day, and the new
Civil Code also retains that rule with, however, certain
modifications. Article 839 provides that " A person
having a male child who is the legal presumptive heir
to the headship of a house is not allowed to adopt a
son. But this rule does not apply to the case of
adopting a son for the purpose of making him the
husband of a daughter of the adoptor." The object
of this rule is clear from what has been pointed out
before. There is no necessity for adopting a stranger,
when there is a son to succeed to the house-headship.

There is one form of adoption called " Muko-yoshi "
(i(i^^) or " adoption of son-in-law." As has been
already stated, the law considered a man childless,
even though he had a daughter. Males were the only
continuators of worship. A common form of expression
in offering congratulations upon the birth of another

- 64 -

person's child among us is " Kotoni go-nanshi de,"
'' I congratulate you the more, as the child is a son."
A mother who has given birth to a son is praised by
her relatives and friends for her '' meritorious deed,"
(#jpj tegara) in having brought forth a successor to the
house ; for formerly it was a strict rule that only males
could become house- heads, and perpetuators of the
cult. Those who had daughters only were, therefore,
obliged to adopt a son ; but it was necessary for the
blood of the ancestor to be, if possible, continued in
the house. In such cases, a house-head selects a
person as his adopted son who is fit to be his
daughter's husband. If adoption and marriage take
place at the same time, it is called " muko-yoshiy
This form of adoption is very common and is recogniz-
ed by the new Civil Code (Art. 839 C.C. and Art. 102
of the Law of Registration.) But the marriage of the
adopted son and the daughter of the adoptive father
may take place subsequently to the act of adoption,
for, although Article 769 of the Civil Code prohibits
marriage between collateral blood relations within the
third degree of kinship, collateral relationship of
brothers and sisters by adoption is no bar to their
marriage. A person who has a daughter frequently
adopts a son with tb.e expectation that the adopted son
should marry his daughter when they grow up, and

- 65 -

in most cases the parents' wishes are fulfilled. In cases
where the parties do not wish to marry, dissolution of
adoption very often takes place, either, because the
adopted son thinks it his duty to leave the house, so
that the daughter may remain in it and marry a second
adopted son, thus preserving the blood of the ancestor
in the house ; or, because the adoptive father desires
the dissolution from the same motive.

The rules as to the necessity of obtaining the con-
sents of house-head and parents, and the consequences
of the violations of those rules being nearly the same
as those in the case of marriage, I do not consider it
necessary to repeat them here. (Art. 750,845,857
Civil Code.)

The effect of adoption is that the adopted son
acquires the same position as a natural-born legitimate
child (Article 860, Civil Code). He relinquishes the
original house and worship and enters into the house
of the adoptor, taking the house-name and clan-name
of the latter (Article 860, 861, Civil Code). The
consequence of his acquiring the status of an actual
son and entering the house of the adoptive parent is,
that he becomes the legal presumptive heir to the
headship of the house.

From what I have stated, it may, I think, be laid
down as a general rule that adoption had its origin in

— 66 —

Ancestor -worship ; and the stronger the beh'ef in that
practice among the people, the wider is the scope
allowed for adoption by law.

§ 8 THE DISSOLUTION OF ADOPTION

The law relating to the dissolution of adoption also
shows a close connection between the institution of
adoption and Ancestor- worship. Two kinds of dissolu-
tion are recognized by the Civil Code ; the one,
Dissolution by Consent, and the other, Dissolution by
Judicial Decree.

Adoption may be dissolved for an)' cause, provided
that the parties mutually agree, but for its compulsory
dissolution an action must be brought by one of the
parties on the basis of one of the grounds specified in
Article 866 of the Civil Code. I will only mention
the two grounds for dissolution, which have a direct
bearing on Ancestor-worship. One of them is that
" if the adopted person commits a grave fault of a
nature to disgrace the fa^nily-name or ruin the house-
property " (^j^) oj^ the adoptive house y the adoptive
parent may bring an action for dissolution of the adop-
tive tie ; the reason for this rule being that the name of

— 67 —

the ancestor's house is sacred, and it is not only his
legal right but his moral and religious duty to dissolve
the tie. The adoptive house is not the house of the
adoptor alone, nor is it the house of the adopted, but it
is the house which the adoptor inherited from his
ancestor and will leave to his descendants. It is the
duty of ever\' house-head to preserve it, and leave it,
unblemished.

Another ground for dissolution mentioned in the
Code has reference to " muko-yoshi " or *' adoption of
son-in-law," and to the case of the marriage of an
adopted son with Kajo (^^) or the " house-daughter."
If the adopted son married the daughter of the adoptor,
and divorce or annulment of that marriage takes place,
an action for the dissolution of adoption may be
brought by one of the parties (Article 866, Civil Code).
The reason of this last rule is that if the adopted son,
who is in most cases the legal presumptive heir,
remains in the adoptive house and perhaps takes a
second wife from another family, the true blood of the
ancestor will not be continued in the house. The
•'adoption of son-in-law ", as I have said before, was a
custom based on the desire to retain the true blood of
the ancestor in the family, and if the marriage of the
" house- daughter " with the adopted son is dissolved,
the intention of the adoptor is thereby thwarted. This

— 68 —

rule corresponds to that relating^to dissolution of mar-
riage which allows judicial divorce, when, in the case
of " adoption of son-in-law," or in a case when the
adopted son is married to the '* house-daughter ", the
dissolution of adoption takes place.

§ 9. SUCCESSION.

The law of succession seems to have passed through
three stages of evolution ; firstly, the succession of sacra f
secondly the succession of status and thirdly the succes-
sion of property. Each stage of development, how-
ever, did not form a distinct period in itself, but the
later was gradually evolved out of the earlier by the
process of differentiation. In ancient times the duty
of performing and continuing the worship rested on
the head of a house, and the property of a house
exclusiv^ely belonged to him. He exercised authority
over the members of his house, because he was the
continuator of the ancestral sarca, and, in one sense,
the representative of the ancestor. He owned his
property because it was left by the ancestor, and the
atithority and property of a house-head rested on the
worship of ancestors. In those times, continuation of

- 69 -

house-worship formed the sole object of inheritance.
But in the course of time, the authority of the house-
head which at first comprehended both power over
the members of the house and rights over house-
property, came to be considered by itself in law.
Afterwards the two constituent elements of the authori-
ty of the house-liead gradually began to be separately
considered, until, at last, property came to be regarded
as a distinct object of inheritance.

Now, in the Succession Law " Keishi-riyo " (j^H^)
of the Taiho-Code (701 A.D.) there is a provision that
if a presumptive heir of a noble family is not fit to
succeed to " the important duty " (^fF;^"S) owing to
the committal of crime or to disease, he may be
disinherited and another presumptive heir may be
substituted. The official commentary to this Code
" Riyo-no-gige " (^tt®) says " to succeed to the impor-
ta7it duty " means " to succeed a father and inherit the
sacra, for the matter of worship is the most important."
It appears that, at this time, the continuation of Ances-
tor-worship was the principal object of succession.
Since the middle ages, the word *' Katoku Sozoku "
iMMk^^M.) or "the succession to house-authority" was
used for succession, and in the feudal period, especially
in the time of Tokugawa Shogunate, succession repre-
sented the continuity of the status of house- headship.

- 70 —

In later times '' Katokii'' which literally means '' hotise-
authority " was very frequently used for " house-
property " which formed the object of inheritance just
as the word '' familia " in Roman law was often used
to designate property. This transition of the use of
the word " Katoku " indicates that the law of succes-
sion was gradually passing from the second to the third
stage referred to.

Our present law represents the stage of transition
from the period of the succession of status to the
succession of property. The new Civil Code recogni-
zes two kinds of succession ; Succession to house-
headship or ** Katoku sozoku," and Succession to
property or " Isan sozoku " (it^ttlS). But there are
many rules still remaining, which show that the founda-
tion of the succession to the house-headship is the
necessity of continuing the worship of ancestors.
Article 987 contains the following provision : -

"The ownership of the records of the genealogy of
the house, the articles used for house-worship and the
family tombs constitutes the special right of succession
to the headship of a house."

This important provision means that those things
which are specified therein form the special objects of
inheritance. They cannot be bequeathed away, nor
can they be seized for debts.

— 71 —

Four kinds of heirs to the house-headship are
recognized by the new Civil Code, " the Legal Heir,'*
" the Appointed Heir',' '; the Chosen Heir',* and " the
Ascendant Heir'' The legal heir who comes first in
the order of succession, is the lineal descendant of a
house-head, who is at the same time a mejnber of his
house. Among lineal descendants, nearest kinsmen
are preferred to more remote, males to females, and
legitimate children to illegitimate, seniors in age being
always accorded priority when they are equal in other
respects (Art. 970, Civil Code). Modern writers on
law usually give as a reason for the preference of
nearer to remoter kinsmen that the order of succession
is determined by the degree of affection which the
deceased is presumed to have entertained towards his
relatives, and also by the presumed intention of the
person who dies intestate as to the disposition of his
property. For the preference of males over females
feudal reasons are often given. These reasons also
form the principal basis of our present law. But here
again, the reasons for the existence of the rule and its
origin are not the same. Originall)', the nearest in
blood to the ancestors worshipped, and their male des-
cendants were preferred, because they were considered
to be the fittest persons to offer sacrifices to the spirits
of ancestors.

— 72 -

** The legal heirs " are Jieres necessarius and are not
allowed to renounce the succession ; whilst other kinds
of heirs are at liberty to accept or renounce the inheri-
* tance, or to accept it with the reservation, that they
shall not be liable for the debts of their predecessors.
It is the bounden duty of descendants who are legal
heirs to accept the inheritance and continue the sacra
of the house. The house-heads cannot bequeath away
from them more than one half of the property (Art.
1 1 30, Civil Code), nor can they disinherit them, unless
there exists one of the grounds mentioned in Article
975 of the Civil Code. The causes especially mention-
ed there are : - (i) ill-treatment or gross insult to the
house-head, (2) unfitness for house-headship on account
of bodily or mental infirmities, (3) sentence to punish-
ment for an offence of a nature disgraceful to the name
of the house and (4) interdiction as a spendthrift.

For these causes, a house-head may bring an action
against his legal presumptive heir with a view to
depriving him of the rights of succession. All of the
grounds mentioned in the Code relate directly or indi-
rectly to Ancestor- worship and the necessity of main-
taining intact the reputation and property of the house.
In case there is no legal presumptive heir to a house-
head, he may appoint an heir, either in his lifetime or
by his will. But this appointment ceases to be valid

— 73 —

when he obtains a child in the course of nature or by
adoption, for the latter will become his legal presump-
tive heir (Art. 979 Civil Code).

If, at the time of the death of a house-head, there is
neither legal heir, nor an appointed heir, the father of
the deceased, or, if there is no father, or if he is unable
to express his intention, the mother, or, if there are no
parents or both are unable to express their intention,
the family council chooses an heir from among the
members of the house according to the following
order:- ist, the surviving wife, if she is a '' hoicse-
daiLghterl' 2nd brothers, 3rd sisters, 4th the surviving
wife, who is not a house- daughter, and finally 5th the
lineal descendants of brothers and sisters (Art. 982,
Civil Code).

Now, in this also, tlie desire for preserving the blood
of ancestors will be seen from the order in which the
heir is chosen. The surviving consort of the last house-
head comes first in the order of succession provided
that she is a " house- daughter I' but fourth if she is not
the descendant in blood of an ancestor of the house.

If there is neither a legal, nor appointed, nor chosen
heir, then the nearest lineal ascendant of the last house-
head succeeds, males being always preferred to
females between persons standing in the same degree
of relationship. (Art. 984, Civil Code).

— 74 —

If there are no other heirs above mentioned the
family council must choose one from amonor other
relatives of the last house-head or members of his
house, househeads of branch-house or members of
principal or branch houses. If none of the persons
above mentioned be existing or able to succeed, then
as a last resort, the family council may choose an heir
from among other persons (Art. 985, Civil Code).

From the foregoing enumeration of the various
kinds of heirs, it will be seen that the law takes every
precaution against the contingency of a house becom-
ing extinct ; for, with the extinction of the house, the
worship of its ancestors would come to an end.

APPENDIX.

I subjoin the translation of some articles of .the " Ordinance
relating to the Marriages in the Imperial Household" (^^Jij^^)
which was published on the 25 th of April 1900, as they will show
the close connection which exists between Ancestor-worship and
marriage.

Article III.

When the agieement of the Imperial Marrige is made, it shall
be reported to Kashiko Dokoro, Kworei Den and Shin Den;i and
the Imperial Messenger for ofFerring sacrifices shall be sent to
Jingu2, and to the Graves of Jimmu Tenno,^ the late Imperial
Father and the late Imperial Mother respectively.

Article VI.

The Imperial Marriage "shall be reported to Kashiko Dokoro,
Kworei Den and Shin Den on the day when the ceremony takes
place.

Article VIL

The ceremony of the Imperial ^Marriage shall be performed
before the Temple of Kashiko Dokoro, according to the forms
specially prescribed.

I. Kashiko Dokoro is the Temple of the First Imperial Ancestor, Amaterasu
O-mi-kami; Kworei Den is the Temple of all other Imperial Ancestors ; and
Shin Den is the Temple dedicated to the worship of other deities. 2. The
Temple of the First Imperial Ancestor at Js6. 3. The First Emperor.

Article IX.

The Emperor and the Empress shall present themselves to the
Temples ot Kworei Den and Shin Den when the ceremony of the
Imperial Marriage is finished.

Article XII,

The Emperor and the Empress shall present themselves to Jingu
and to the respective Graves of Jimmu Tenno, the late Imperial
Father and the late Imperial Mother after the ceremony of the
Imperial Marriage is performed.

Article XV.

The ceremony of marriage of Kwo Taishi,^ Kwo Taison,^
Shinno^ or Wo-* shall be performed before the Temple of Kashiko
Dokoro, according to the forms specially prescribed.

Article XVIII.

The provisions of Articles III, IV, V, VI, IX, XI and XII shall
have corresponding applications to tne marriages of Kwo Taishi and
Kwo Taison.

Article XIX.

The provisions of Articles V and IX shall have corresponding
applications to the marriages of Shinno, and the provision of Article
IX shall have corresponding application to the marriages of Wo.

I. The Imperial Son who is Heir-apparent. 2. The Imperial grandson who
is Heir-apparent. 3. Imperial male descendants, from Imperial sons to Imperial
great-great-grandsons. 4. Imperial male descendants from the fifth generation
dewnwards.

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