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CJorn^U ICam i'rljflol Hihtary
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3 1924 080 340 189
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female.
With the Compliments of
N. Hozumi.
AS MATERIAL FOR THE STUDY OF
COMPARATIVE JURISPRUDENCE.
A PAPER READ AT
THE INTERNATIONAL CONGRESS OF ARTS AND SCIENCE,
UNIVERSAL EXPOSITION, SAINT LOUIS 1904.
HY
NOBUSHIGE HOZUMI,
PROFESSOR OF LAW IN THE IMPERIAL UNIVERSITY OF TOKIO,
BARRISTER-AT-LAW, OF THE MIDDLE TEMPLE.
3230
THE
NEW JAPANESE CIVIL CODE,
AS MATERIAL FOR THE STUDY OF
COMPARATIVE JURISPRUDENCE.
A PAPER READ AT
THE INTERNATIONAL CONGRESS OF ARTS AND SCIENCE,
AT THE
UNIVERSAL EXPOSITION, SAINT LODIS 1904.
EV
NOBUSHIGE HOZUMI,
PROFESSOR OF LAW IN THE IMPERIAL UNIVERSITY OF TOKIO,
BARRISTER-AT-LAW, OF THE MIDDLE TEMPLE.
3230
Printed by tiik Tokyo Printing Co., Ltd., Tokyo, japan.
3394
H^7
The New Japanese Civil Code, as Material
for the Study of Comparative
Jurisprudence.
oil
In responding to the call of the Comittee of the Congress
to deliver a lecture on Comparative Jjslw, I have, for reasons
which will not be far to seek, taken the new Japanese Civil Code
as the subject of my discourse. If, at the outset, I may be
allowed to use a paradoxical expression in characterizing that
law-book, I should say that "the East and the West, the Past
and the Present meet in the new Japanese Civil Code." I mean
that the codification of private law in Japan was the result of the
great political and social revolution, which followed the opening
of the country and the introduction of Western ideas;
so that the Code embodies in itself both archaic and modern
elements on the one hand, and Oriental and Occidental
elements on the other. It is, so to speak, a connecting link
between the Past and the Present, between the East and the
West, and stands at the cross-roads of historical and comparative
jurisprudence. It is, on that account, peculiarly interesting to
scientific jurists, as supplying them with materials which few
other systems can furnish. It will be my endeavour, in this
lecture, to show the effect which the contact of the Western
civilization with that of the East has produced on the civil law of
the country, thereby illustrating some of the leading principles
of the evolution of law by reference to the rules of the Code.
The scope of my lecture being so wide, and the time for its
delivery being limited, I shall confine myself to those characteristic
features of the Code, which are not usually found in Occidental
jurisprudence.
I. Causes of the Codification.
In order to set forth the characteristics of the Japanese
Civil Code, it will be useful, first of all, briefly to explain the
causes which led to the codification, and give a short sketch of
the history of its compilation. The causes which led to the
reform and codification of the civil law are principally two.
The first is to be found in the great social and political
changes, which have taken place since the opening pf the country
to foreign intercourse, especially since the Restoration of the
Emperor to actual power in 1868. It was just half a century
ago, that Commondore Perry knocked at our doors to open the
country to foreign trade. Aroused from the deep slumber of
centuries, we rubbed our eyes, and saw Western civilization
confronting us, but it was some time before we were -wride awake,
and realized the advantage of introducing it into our country.
In a country which had remained entirely secluded for
centuries from the rest of the world, it was quite natural, that
distrust, which in many cases grew to be hatred, of foreigners
should, at first, have existed among the mass of the people ; and
that the cry of "jo-i" or "the Expulsion of foreigners" should
have been raised among them. Many far-sighted statesmen and
scholars, however, clearly saw the necessity of introducing
Western civilization and of adopting whatever seemed conducive
to the intellectual or material progress of the country, in order
that Japan might become a member of the family of nations.
There were others, who, while understanding very well the
necessity of introducing Western civilization, joined the anti-
foreign party, in order to hasten the overthrow of the Shogunate
Government, for the expressions "Sonno-joi " or "Loyalty to the
Emperor, and the expulsion of foreigners," although they had no
necessary connection with one another were, at that time, adopted
as watchwords by the party of political reform, in order to set the
mass of the people against the Shogun's government. But, as
soon as their object was attained, and the present Emperor was
restored to real power, they threw off the mask and kept only
the former half of their watch-word "Sonno" or "Loyalty to the
Emperor."
The first act of the Emperor, on ascending the throne, was
to enunciate the fundamental principles of his government in the
form of a solemn oath, which has since then been known as " the
Five Articles of the Imperial Oath." The Emperor declared in
this oath,
(i) That deliberative assemblies should be established and
all measures of government should be decided by public
opinion.
(2) That all classes, high and low, should unite in vigorously
carrying out the plan of the government.
(3) Officials, civil and military, and all common people should,
as far as possible, be allowed to fulfill their just desires, so
that there might not be any discontent among them.
(4) Uncivilized customs of former times should be broken
through, and everything should be based upon the just
and equitable principle of nature.
(5) That knowledge should be sought for tlirovgliout the
■tvorld, so that the welfare of the Empire might be
promoted.
This oath has been made the basis of our national policy.
How well the Emperor kept his oath, and how unswervingly his
government and his people have followed the wish expressed by
their soveregin, is shown by the subsequent events of our
history.
The Feudal System was abolished, and all the Daimios or
feudal lords voluntarily surrendered their fiefs to the Emperor,
together with their powers to make laws, issue paper- currency
and exercise both civil and criminal jurisdiction within their
dominions. The four hereditary classes of the people, namely
the Samurai or soldiers, farmers, artisans and merchants were
abolished, and all could freely choose their own profession or
calling. Officials were no longer appointed on account of birth,
as was formerly the case, but on account of personal merits, and
even the lowest born could aspire to become the highest official
of the State. The family system was, as I shall show presently,
gradually weakened, so that the individual began to take the
place of the family as the unit of society. Schools for both sexes,
have been established in all parts of the Empire, which are open
to all classes without the least distinction. Higher education is
no longer the monopoly of the Samurai and the clergy. Students
and officials, have been yearly sent to Europe and America, to
study different branches of art and science, or to investigate and
report upon the methods and resources of Western civilization.
Christianity which had been very strictly forbidden during the
Tokugawa Shogunate, was gradually tolerated under the new
government of the Emperor, until, at last, freedom of religions
belief and worship was secured by Art. 28 of the Constitution
promulgated in 1889. The introduction of steamships, railroads,
electric telegraphs etc. completely changed the means of com-
munication and travelling both on land and sea. The opening of
foreign trade and the changes in commerce and industry at home,
by the establishment of banking and other commercial firms and
factories in differents parts of the country, brought about great
economical revolutions among the people. The Imperial House-
hold abolished the old ceremonial costumes, and adopted
European dress for ceremonial occasions both for men and
women. The men cut off their top-knots and had their hair
dressed in Western fashion; they discarded their loose native
dress and began to wear tight practical European dress; they
now build their government offices, schools and other public
buildings in European style ; they began to eat beef, the partaking
of which had been regarded as something sacrilegious. It is
needless to say that these political, economical and social revolu-
tions, which extended to every department of life, occasioned the
necessity for corresponding reforms in the laws of the country,
which could not be met by fragmentary legislations. Sweeping
legislation by way of codification was the only way of keeping up
with the rapid strides, which Japan had taken during the past
three decades.
The second and more immediate cause of the codification of
the civil law was the earnest desire on the part of the Japanese
people to put an end to the existence of the extra-territorial
jurisdiction which had been granted by earlier treaties to the
sixteen Treaty Powers of Europe and America, and to resume
the civil and criminal jurisdiction over the subjects and citizens
of the Treaty Powers, residing or travelling in the countiy. At
the time, that we first entered into commercial treaties with
Western Powers, it was quite natural and reasonable, that they
should demand the reservation to themselves of jurisdiction over
their own respective subjects and citizens. This was indeed
necessitated by the great difference between their own laws and
institutions and those of Japan, while the habits and customs of
the people were also quite unlike. We saw the necessity and
justice of acceding to their demand, but, at the same time, felt
that the existence of such a legal anomaly was a disgrace to the
country, and wholly imcompatible with that scrupulous regard
for the integrity of territorial sovereignty, which ought to
characterize the intercourse of independent friendly nations. So,
from an early date in the present reign, attempts were repeatedly
made to revise the treaties and expunge from them the abomi-
nable extra-territorial clause. But, every time, we were met by
the objection that our laws were incomplete. Although as a
matter of principle, we did not admit the justice of the foreigners'
objection to obeying the laws of the country to which they chose
to resort, we were obliged, in fairness, to recognize the reason-
ableness of their objections.
After many years of difficult diplomatic negotiations, it
was at last agreed, that the treaties should be revised and the
extra- territoriality should be abolished; and, at the same time,
the Japanese government undertook to frame codes of laws and
put then) in operation before the new treaties should go into
effect.
The above-mentioned two causes, one internal and the
other external, combined to make the work of codification
one of the most urgent necessities of the time. As a preliminaiy
step to the work of codification, a Bureau for the Investigation of
Institutions was established in the third Year of Meiji (1870) and
one of the fruits of the labour of that Bureau was the translation
of the French Codes. This translation afforded the knowledge-
thirsty Japanese ideas of Western laws for the first time, and
had an immense influence upon subsequent legislation and
judicial dicisions in the courts of law. In 1875, a Committee for
the Compilation of the Civil Code was appointed for the first
time. In 1878, a draft was submitted by this Committee to the
Government. This draft was a close imitation of the French
Civil Code, both in its arrangements and in its content, and was not
adopted by the Government. In 1880, Prof Boissonade, an
eminent French jurist, who was then a legal adviser to the
Japanese Government, was asked to prepare a new draft, and in
the next year, a Bureau for the Codification of the Civil Law
was established, to which Prof Boissonade's draft was submitted
for deliberation. The Bureau was abolished in 1886, and a
Committee for the Investigation of Law was appointed, compos-
ed of the members of the Genroin or the Senate and of the
Bench, with Count Yamada, the Minister of Justice, at its head.
This committee made its report in 1 888, and the draft was sub-
mitted to the deliberation of the Senate and was adopted by that
Council. On the 27th of March, 1890, under Law No. 28,
those parts of the Code which were drafted by Prof Boissonade,
that is, Book II, relating to " Property in General," Book III,
relating to the " Means of Acquiring Property," Book IV,
" Security of Rights in personam " and Book V, relating to
" Evidence " were published. Those parts which were prepared
by Japanese jurists, namely. Book I, relating to " Persons " and
part of Book III, relating to " Succession " were published on
the 1 6th of October of the same year ; and the whole Code was
to go into operation from the 1st of January 1893.
Thus after the arduous toil of fifteen years, Japan possessed
a code of private law for the first time in her history. It was
quite natural that the Code should become a topic of earnest
consideration for all educated classes of the people. Especially
among lawyers and politicians, a violent controversy arose regard-
ing the merits of the new Code. Those jurists, who had studied
English law in the Tokio University or in England or America,
first raised their voices against the Code and demanded the post-
ponement of the date of its going into operation, with a view to
its complete revision. The French section of Japanese lawyers,
on the other hand, supported the Code and insisted upon the
necessity of its going into operation at the date originally appoint-
ed. The German section of jurists, whose number was at that time
comparatively small, was divided into two parties, some siding
with the one, others joining the other. Japanese lawyer were
thus divided into two hostile camps, and the lively discussion
which arose among them, is known as the " Postponement
Campaign." The arguments pro and con put forward for the
postponement and revision of the Code were many and were of
varying inportance. To outsiders, the campaign may have
seemed like a sectarian conflict between the English and French
groups of Japanese lawyers. But this struggle is eminently
interesting to scientific observers of the general history of law, for
it was, in reality, a contest of the Historical School with the
School of Natural Law, resembling in many respects the famous
controversy between Savigny and Thibaut in the beginning of the
same century. This question contained an important issue, as to
which theory should have a predominant influence over the
jurisprudence and legislation of the country.
In order to explain this interesting event in our legal history,
I must, for a moment, stop to give an account of the state of
legal education in Japan at that time. English law had been
taught in the Imperial University of Tokio since 1 874 by English,
American and Japanese teachers, and also in other law schools,
and a great number of the graduates had, by that time, already
filled important positions on the Bench and at the Bar as well as
in other places, both in and out of the Government. They were
all taught the doctrines ofBentham, Austin and Maine, and most
of them belonged to the school of positive law. On the other hand,
there was a law school attached to the Department of Justice, in
which French Law was taught by Prof. Boissonade and other
French and native teachers. There were also two or three private
law schools in which French law was taught. The graduates of
these schools, who also filled important positions, had been taught
the doctrines of Natural Law. It was quite natural that the
doctrines which lawyers had imbibed in their early days of
studenship should have strongly influenced their views as to
legislations in their maturer days. And thus arose two opposite
schools among the lawyers of Japan. In 1887, just three years
before the publication of the Civil Code, the Imperial University
made a reform in the program of the College of Law. The
French Law School of the Department of Justice was transferred
to the University, and at the same time, a German Law Section
was newly established, so that there came to be three sections in
the College of Law, besides a fourth which is devoted to
Political Science. This tripartite division in the University law
education could not fail to produce an enduring effect on the
subsequent legislation of the country. The Civil Code had be-
come law, before the Constitution came into force in 1890, and
,the question of the postponement of its operation had to be
decided in the Imperial Diet. Accordingly, a bill was introduced
at the session of 1892 in the House of Representatives to post-
pone the operation of the Code with a view to its revision.
After several warm debates, the bill was passed by both Houses
of the Imperial Diet and the operation of the Code was postpon-
ed by Law No 8. until the 31st of December 1896. Thus, the
so-called " Postponement Campaign " resulted in the victory of
the " Postponement Party ;" and in the following year, a
Codification Committee was established by an Imperial Edict.
The constitution of this Committee affords a very important clue
for understanding the character of the new Code. The com-
mittee, with Marquis Ito, then the prime minister, as its president,
consisted of members of both Houses of the Diet, professors of
the Imperial University, members of the Bench and the Bar,
with other eminent juribts and leading representatives of
commerce and industry. The number of the members varied
from time to time, but throughout, care had been taken in the
appointment of members to represent every interest in society
and also to represent English, French and German Schools of
Japanese lawyers. The " Postponement Campaign " was very
fierce while it lasted, but when the question was once settled,
both parties threw off their animosity and joined hands in the
work of giving the nation a code which would meet the exigencies
of the time. The appointment of the three special members to
prepare the draft also shows a conciliatory spirit on all sides.
Professors Tomii, Ume and myself were appointed to prepare
the orieinal draft which was to be submitted to the delibera-
tion of the Committee. Professor Tomii, although he had
lO
studied law in Paris and is docteur en droit, and thus belonged
to the French School, sided with the " Postponement Party," and
not only formed a remarkable exception among his comrades,
but was one of the staunch advocate of postponement and revision.
Professor Ume, who had studied law in Lyon and is also
doctetir en droit, was one of the champions of the "Anti-Postpone-
ment Party." I myself studied English law in the Inns of Court
in London and am a member of the English Bar ; and I belonged
to the Postponement Party. Both Prof Ume and I also studied
law in the University of Berlin, after we had finished our courses
in France and England respectively. Thus, it will be seen that
two out of the three framers of the Code represented the French
Section, but one of them belonged to the Postponement Party.
While two belonged to the French and one to the English
School, two of them had studied German law.
The constitution of the Committee, especially that of the
Drafting Committee made it clear, that they could not agree to
take the law of any one country as an exclusive model upon
which to frame the new Code. Prof Boissonade's Code was prin-
cipally based upon the French Civil Code, but the framers of the
revised Code agreed to collect the codes, statutes, and judicial re-
ports of all civilized countries which existed in the English,
French, Gentian or Italian Languages, besides international treaties
which have reference to the rules of private law. They accordingly
collected more than thirty civil codes, including many drafts, such
as the draft of the Civil Code of New York, the draft of the
Greman Code, the drafts of the Belgian Code, besides other codes,
statutes, reports and treaties ; and comparing the rules or principles
which exist in different countries, adopted whatever seemed to be
best suited to the requirements of the country. In the original
draft which was submitted to the deliberation of the Committee,
an explanation was attached to each article, stating the reasons
for the adoption of the rule. The corresponding articles or rules
II
which exist in other countries as well as rules, precedents and
customs in our own country were also cited for the consideration
of the Committee. This method of preparing the draft gave a
characteristic feature to the new Code. The Japanese Civil Code
may be said to be 2. frtiit of comparative jiu-ispriidcnce. At first
sight, it may appear that the new Code was very closely modeled
upon the new German Civil Code ; and I have very often read
statements to that effect. It is true that the first and second draft
of the German Code furnished very valuable material to the drafting
committee and had a great influence upon the deliberations of
the Committee. But, on close examination of the principles and
rules adopted in the Code, it will appear that they gathered mater-
ials from all parts of the civihzed world and freely adopted rules or
principles from the laws of any country, whenever they saw the
advantage of doing so. In some parts, rules were adopted from
the French Civil Code ; in others, the principles of English com-
mon law were followed ; in others again, such laws as the Swiss
Federal Code 'of Obligations of 1881, the new Spanish Civil Code
of 1889, the Property Code of Montenegro, Indian Succession
and Contract Acts or the Civil Codes of Louisiana, Lower
Canada or the South American Republics or the draft Civil Code
of New York, and the like have given materials for the framers
of the Code. In January 1 896, the report of the Committee on
Book I, " General Provisions," Book II, " Rights in rem " and
Book III, " Rights in personam " was submitted to the Imperial
Diet and was adopted with only a few unimportant modifications.
In April of the same year, these three Books were promulgated
as Law No. 89. The remaining two Books on " Family " and
" Succession " were submitted to the Imperial Diet in May iSg8
and adopted by both Houses with only slight modifications, and
were promulgated as Law No. 9 in June ; and the whole Codes
came into force on the i6th of July 1898.
The foregoing sketch, brief as it is, of the history of the
12
codification of the civil law will be sufficient to show that the
new Japanese Civil Code is the result of the comparative study of
laws, and offers in its turn, valuable materials for the study of
comparative' j urisprudence.
II. Objects of the Codification.
I think it may be laid down as a general rule regarding the
evolution of law, that a comprehensive legislation generally fol-
loius a great social revolution. If laws are social phenomena, it is
quite natural that social changes should always bring with them
corresponding changes in the laws of the country. The legal
history of all nations, either ancient or modern, shows that the
objects sought to be obtained by codification fall under one of the
following four heads ; namely. Pacification, Innovation, Unification
and Simplification.
(i) Sometimes, codification takes place after a great social
disturbance in order /<? restore pence and main! ain order by
means of comprehensive legislation. This was true of the
ancient codes of Draco and Solon in Greece, the Law of
Twelve Tables in Rome, and the codifications in China
since the Han Dynasty, where it was customary for the
founder of every dynasty to publish a new code of laws
after he had gained the imperial power by force of arms.
In Japan, the Codes of the Hojo and the Tokugawa
belong to this class.
(2) Laws are often codified either to bring about a social
reform, or to adjust the laiv to the requirements of the
nezu state of things, which has been brought about by
social reform. To this class belong most of the codes,
which have been promulgated in Japan since the Res-
toration of 1868.
(3) Very often codification takes place with a view to the
13
unification of different local latvs and customs, so that the
country may be governed by a uniform code of laws.
One of the objects of the Code Napoleon, the Italian Civil
Code of 1865, and the new German Imperial Codes was, in
each case, the unification of the laws of the country. It was
the principal object of the first Japanese Criminal Code of
1 870, which was published soon after the Restoration to
establish unity in criminal law throughout the Empire, by
abolishing the particular laws which existed within the
jurisdictions of the Daimios.
(4) Simplification of law by means of logical arrangement or
consolidation of legal rules constitutes the most usual
motive for codification in modern states.
Now, the majority of codifications, except sometimes those
coming under the fourth class just mentioned, take place after
great political or social revolutions, in consequence of which,
pacification, innovation, unification or simplification becomes ne-
cessary. The history of codification in Japan amply exempli-
fies the above statement. The promulgation of the Taiho Codes
of 702 A. D. was the result of the great political and social revolu-
tion, which followed the introduction of Chinese civilization into
the country. The next great codification, the framing of the
J5yei Shikimoku in 1232 A. D. under the Hojo Regency, was
necessitated by the great political and social changes, which had
taken place since the establishment of the Feudal System under
the military government of the Shoguns. The new Japanese
Civil Code is, as I have explained above, the result of the revolu-
tion which followed the opening of the country to foreign inter-
coure. Thus, each of the three great epochs in Japanese history,
the introduction of Chinese civilisation, the establishment of
Feudalism and the introduction of Western civilization, lias been
follozved by codification. The chief object of the Taiho Code, be-
longing to the first period, was Innovation ; that of the Joyei
14
Shikimoku, belonging to the second period, was Pacification ; while
the framing of the new Civil Code had for its objects Innovation
and Unification as well as Simplification.
III. Methods of Comparative Jurisprudence.
Looked at from another point of view, the new Japanese Civil
Code may be taken as an illustration of the effect which the con-
tact of Western with Eastern civilization has produced on the laws
and institutions of the country. In this respect, I must first say
a few words as to the methods, of Comparative Jurisprudence.
Hitherto, there have been three methods of comparison in
vogue. One of them takes the lazv of a particular state as the
unit of comparison, and comparing with it the laws of different
states, finds similarities and divergencies among them, and
deduces from them certain principles of law. This is the method
generally adopted by jurists. In France, for instance, where
comparative law is studied with greatest zeal, valuable materials
for this method of investigation are furnished by the publications
of the laws of different countries in the " Bulletin " and
" Annuaire " of the " Societe de legislation comparee " and by
the numerous translations of foreign codes by Foucher, Antoine
St. Joseph, Lehr, Dareste, Grasserie, Leve, Tu'rrel, Prudhomme,
Lepelletier and other eminent jurists.
There are others, who, perceiving that there are common
features in the laws of each race, take a wider basis for their in-
vestigation and make the laws of particular races the units of
comparison, and compare the one with the other.
There are others again, who take a still wider basis, and
compare legal phenomena of different peoples without regard to
nationality or race.
Of these three methods, the first may compare, for instance.
15
English law with French, the second Germanic laws with
Slavonic laws, while the third takes up, perhaps, the marriage
laws and customs of European nations, American Indians,
African negroes, Australians and Chinese.
All these three methods of comparison, which I have
mentioned above, are useful and legitimate methods of investiga-
ting the principles of law ; and none of them can be rejected
to the exclusive adoption of the other. But I think another
method can be added to the list,' which, though not hitherto
employed, may be very advantageously adopted in the investiga-
tions of general principles of law. I mean a method which takes
for the unit of comparison a certain group of laws having
a common lineage or descent. If we examine the laws of
different countries which have made a certain progress in
civilization, we shall find that the law of each country consists
of tzuo elements; namely, the indigenous element and the
foreign element; and except in uncivilized or barbarous com- 1
munities which have no intellectual intercourse with other!
countries, instances are very rare, in which the law of any country
is found consisting exclusively of indigenous elements. With
the progress of means of communication and the consequent
increase of intercourse among different peoples, the exchange, not
only of material, but also of intellectual products becomes greater;
and in regard to law, it may be laid down as a general rule that
the higher the community stands in the scale of civilization, the
greater is the proportion of the foreign to the indigenous element.
This comes from what is called the reception or adoption of
foreign laws.
Now, when the rules or principles of law of one country are
adopted in another, there arises a s6rt of kinship between the
laws of those two countries. One is descended from the other,
and the relationship, as it zvere, of ancestor and descendant is
created betzveen them. The old law which served as a model or
i6
source of the new law may be called the "Parental Law" or
"Mother-law" in relation to the new, which stands in a filial
relation to the parental law.
The law of one country may be adopted in other cofintries
directly, as Roman law was received in Germany, or indirectly,
that is, it may be first adopted in one country, and then through
that country, it may be received in the third, as European law,
which has first been received in Japan, is now being introduced
through her in China and Corea. Or again, the law of a mother
country may be extended to her colonies or dependencies, as in
the case with English law in British colonies.
In this way, the laws of all civilized countries may be divided
into several groups, each comprising laws of many countries, but
having common features and characteristics owing to their com'
mon origin. These different groups may be compared one with
another, in order to find out uniformities and divergencies among
them, and thus establish general principles of law. This method
of comparative study of law, which may be called the Genealogi-
cal MetJiod, to distinguish it from the other three, has the
advantage, among many others, of combining the historical with
the comparative method.
IV. Great Families of Law.
If, in order to take the Genealogical Method of comparison,
we classify the laws existing at present in different parts of the
world, we shall find that there are at least seven Great Families
of Laws ; namely, (i) the Family of Chinese Law, (2) the Family
of Hindu Law, (3) the Family of Mohamedan Law, (4) the Family
of Roman Law, (5) the Family of Germanic Law, (6) the Family
of Slavonic Law, and (7) the Family of English Law. I have called
these groups " the Great Families of Lazvs," because this
17
classification is not meant to be exhaustive or exclusive. There
are many smaller branches of law, not belonging to any of the
above mentioned Families, which are, none the less, very import-
ant for the Genealogical Method of comparative study, but for
the purpose of the present lecture, they need not be mentioned
here.
V. The Position of the Japanese Civil Code
among Legal Systems of the World.
I have been at some length in explaining this method of
comparative jurisprudence, in order to show the position of the
new Japanese Civil Code in the general legal history of the
world. Since the first introduction of Chinese civilization into our
country, and the consequent Reform of the Taika Era (646
A.D.), the work of which was completed by the publication of
the famous Taiho-Codes in 701 A. D., Japanese lazv has belong-
ed to the Family of Chinese Laiu for more than one thousand
six hundred years ; and notwithstanding many great changes in
the laws and institutions of the country, which have taken place,
since that time, the basis of Japanese laws and institutions has
always been Chinese moral philosophy, together with the custom
of Ancestor-worship and the Feudal system.
The Criminal Code (Shin-ritsu-koryd) which was published
in 1870, three years after the Restoration of 1868, was modeled
upon the Chinese Codes of Tang, Min, and Shin Dynasty with
certain modifications suggested by old Japanese laws. Only three
years later, that code was revised, and a new code was published
under the title of the Revised Criminal Code (Kaitei-Ritsurei).
In the framing of that new Code, some European codes,
especially the French, were consulted and adopted to a certain
extent. Now, these two codes mark the transition period in the
history of Japanese law. The former was the last in the Chinese,
and the latter the first in the European, system of legislation.
The Japanese law was at that time rapidly passing _/rt>;« the
Family of Chinese lazu to the Family of European lazus.
From the beginning of the present reign, the Imperial
government was very active in making laws to meet the exigen-
cies of the new state of things. But finding that such fragmen-
tary legislation could not keep pace with the rapid progress of
the nation and meet the requirements of the changing circum-
stances, the Daijokwan, or the Great Council of State, which was
then the supreme legislature, issued a Law (No. 103 in the
Eighth year of Meiji, 1875) which provided in art. 3, that judges
should decide civil cases according to the express provisions of
written law, and in cases where there was no such written law,
according to custom. In the absence of both written and cus-
tomary laws, they Were to decide according to the principles of
reason and justice. This law flung wide open the door for the
ingress of foreign law, and marks an epoch in Japanese legal
j history. Now, by this time, translations of the French Codes
I and other law books had appeared, and there were some judges
on the Bench, though comparatively few at that time, who had
studied English or French law. The rapidly changing circum-
stances of Japanese society brought many cases before the court,
for which there were no express rules, written or customary, and
the judges naturally sought to find out " the principles of reason
and justice" in Western jurisprudence. The older members of
the Bench, who had not been systematically taught in Western
jurisprudence, consulted the translations of the French and other
European Codes and text books, while the younger judges who
had received systematic legal education in the Universities,
either at home or abroad, and whose number increased from
year to year, consulted Western Codes, statute books, law re-
ports, and juridical treatises, and freely applied the principles of
19
Occidental jurisprudence, which in their opinion, were conform-
able to reason and justice. Blackstone, Kent, Pollock, Anson,
Langdel, Windscheid, Dernburg, Mourlon, Baudry-Lacantinerie
and other text books and the numerous commentaries on Europ-
ean Codes, statute books and law reports were looked upon as
repositories of just and reasonable principles and supplied neces-
sary data for their judgements. In this manner. Occidental
jurisprudence entered our country, not only indirectly through
the University and other law colleges, but also directly through
the Bench and the Bar.
The above law, bold as it was, was only meant to be a
temporary measure to supply the immediate wants of the chang-
ing society, until a complete and systematic code should have
been compiled. In the meantime, the work of codification had
been steadily proceeding, and resulted in the promulgation of the
Criminal Code and the Code of Criminal Procedure in 1880, the
Revised Code of Criminal Procedure, and the Code of Civil
Procedure in 1890, the new Civil Code in 1896 and 1898, and
Commercial Code in 1899.
What I have said above, will suffice to show that the new
Japanese Civil Code stands in a filial relation to the European
systems, and with the introduction of Western civilization,
the Japanese civil laiv passed from tJie Chinese Family to the
Roman Family of lazv.
VI. The Publication of the Code.
One of the most remarkable changes which the introduction
of Western jurisprudence produced in Japan was the change in
the conception of law. Previous to the Restoration of 1 868,
there was no idea that publication was essential to law. On
the contrary, during the time of the Tokugawa Shogunate, most
20
laws, especially the criminal code, were kept in strict secrecy.
They were all in manuscript and were neither allowed to be print-
ed nor published ; and none but the judges and officials who
were charged with the duty of carrying the rules into effect were
allowed the perusal of the codes and the records of judicial pre-
cedents.
The famous Criminal Code of the Tokugawa Shogunate,
commonly known as the " Hyakka-j6 " or " The Hundred
Articles " bears the following injunction at the end : —
" The above rules have been settled with His Highness'
gracious sanction, and nobody except the magistrates shall be
allowed to peruse them." The subsequent compilation, called
" Kwajo-rui-ten " contains the same injunction with' the following
addition : —
" Moreover, it is forever forbidden to make extracts from
this Code, even of one article thereof" In 1841, thirteen au-
thentic manuscript copies of the Code were made, and all the other
copies and extracts which the clerks had made for their own use
were ordered to be produced and burnt. One Ono Gonnojo and
his son were severely punished for publishing a book which con-
tained the " Hundred Articles " of the Code. An owner of a
certain circulating library who had a manuscript book, showing
the days on which the magistrates transacted business, or the "'dies
fasti'' and " nefasti" of the judicial court, was punished with
banishment from his place of abode. These and many other like
cases which occured during the Tokugawa Shogunate show in
what strict secrecy some parts of the laws were kept in those
times.
The Taiho Code of 702, Joyei-Shikimoku of 1232 and other
old laws before the time of the Tokugawa Shogunate were printed
and distributed among officials of the Imperial or the Shogunate
Government, the governours of provinces, chiefs of clans etc., but
they were not published in the sense in which laws are published
21
in the present day. The Joyei-Shikimoku, which was the funda-
mental Code during the time of the Hojo-Regency, concludes with
an oath by the councilors, to the effect, that they would render
justice with impartiality, and according to reason, and in case of
disobedience to the rules and principles set forth in the Code,
they would incur the wrath and the punishment of the gods.
These laws were all commands adressed to the officials, not to the
people. They were rules for the conduct of officials, not rules
of conduct for the citizen. It was upon officials only, that law
imposed the obligation to observe the rules of law in their relation
to the people, whether they acted in administrative or in judicial
capacity. The people were merely passive objects of the law, and
it was their part implicitly to obey the commands of officials.
Austin and others, who define law as a command of the lawgiver,
mean thereby a command addressed to, and imposing obligations
upon, the citizen. But in Japan, this conception tvas only reached
after the introduction of Occidental jurisprudence into the
country. Two legislative acts in the beginning of the present
reign very clearly show this transition in the nature of law. The
publication of the new Criminal Code " Shinritsu Koryo " in the
3rd year of Meiji marks the first step in the revolution of the legal
idea. The policy of the Tokugawa Government was based upon
the famous Chinese maxim " Let people abide by, but not be
apprised of, the law." (^pT'^^^- 'f»Pr'ffi^n;^)and went so
far as to keep the law in strict secrecy. Although the first
Criminal Code was modeled upon Chinese Codes, the ne^ Im-
perial Government took another and wiser Chinese maxim " To
kill without previous instruction is cruetly " (^t5:rfn?^)S-&)) ^nd
caused the new Code to be printed and published. I have
said that the first Criminal Code was based upon the Chinese
system and in the amended Code, the French Criminal Code was
consulted. The comparison of the Imperial Proclamations which
form the preambles to these two Codes is very interesting, as
22
showing a great change in the conception of law, that took place
during the three years which intervened between the first and
the second Code. In the Imperial Proclamation which is prefixed
to the first Code, His Majesty enjoins his officials to observe the
rules of the Code ; while in the Imperial Proclamation attached
to the second Code, it is his subjects as zvell as his officials that
are so commanded. In the same year with the publication of the
second Code, that is 1873, a law was enacted (Ordinance 68. of
6th year of Meiji) in which it was declared that " henceforth
every law shall, on its promulgation, be posted up in convenient
places during thirty days for the information of the people."
Since that time, several laws have been passed, in which the same
principle is carried farther, and now the publication which is made
in the Official Gazette has become an essential step in giving
them binding force.
We have now reached the third stage in the evolution of the
idea of law. At present, according to Art. 37 of the Constitution,
every law requires the consent of both Houses of the Imperial
Diet. Of the five Codes, which have been promulgated, the new
Civil Code was the first which became law under the new
constitutional government, and therefore, with the consent of the
Diet.
From what I have said above, it will be seen that there are
three stages observable in the development of the idea of law.
At first, publication was not essential to the binding force of the
law. Laws were commands addressed to the magistrates, not
to the people. The people were merely the passive object of the
operation of lazvs. Next comes an epoch, when the laws become
commands addressed to the people, and publication forms an
essential element of the law. People become the direct object
of the law, and a party, as it were, to its operation. In the third
and final stage, the people not only become 3. party to the opera-
tion of the law, but a party to the making of it through their
23
representatives.
VII. The Arrangement of the Code.
The Civil Code drafted by Prof. Boissonade, which became
law but never went into operation, was divided into the following
five books ; namely, Book I, " Persons "; Book II, " Property
in General" ; Book III, " Means of Acquiring Property" ; Book
IV, " Security of Rights in rem"; and Book V, " Evidence."
The objections which were raised against this arrangement were
many, some from scientific, others from practical, points of view;
but it is needless to mention them here. Some will appear when
I come to compare it with the arrangement of the new Code.
The framers of the latter did not follow the arrangement of the
first Code, nor did they adopt the classifications of the French
or other codes based upon the Institutes of Justinian.
The new Civil Code is divided into the following five Books,
according to the plan which German jurists call " Pandekten-
System"; namely. Book I, " General Provisions "; Book II,
" Rights in rem"; Book III, " Rights in personam"; Book IV,
" Family " and Book V, " Succession." One of the reasons for
rejecting the so-called " Institutionen- System," and adopting the
" Pandekten-System " was that the latter system of arrangement
was peculiarly suited to the present state of law in Japan.
The first Code, following the French Code, had no distinct
portion assigned to general rules applicable to all other parts.
This system rendered frequent repetition of the same rules neces-
sary in different parts of the Code, thereby making the whole
work a voluminous code, containing 1762 articles; while the
new Code, following the Saxon Civil Code and the then draft of the
German Civil Code, placed at the beginning all the general rules,
relating to persons as subjects of rights, to things as objects of
rights, and to facts and events by which rights are acquired, lost
or transferred This method of arrangement avoided unnecessary-
repetitions and made the body of the law succinct ; the new Code
containing only 1 146 articles.
The new Code, besides having a Book devoted to general
provisions common to all legal relations, has distinct places set
apart for the laws of Family and Succession. In the Code drafted
by Prof Boissonard the law of family was included in Book I
relating to " Persons," and the law of succession formed a part
of Book III relating to the " Means af Acquiring Property."
Now, this arrangement formed one of the strong reasons for
postponing the operation of the first Code and reconstructing it
on an entirely new basis.
Before the Restoration it was the family, and not the indi-
vidual, that formed the unit of society. The family was then a
corporation ; and as a general rule, only the house-head could
hold public office or private property, or transact business, all
other members of the family being dependent upon him.' But
since the Restoration, this state of things has changed, and the
disintegration of the family is rapidly going on. The family
has now ceased to be a corporation in the eyes of law, and the
dependent members of the family or the house-members can
hold office or property or transact business equally with its head.
Japanese society is now passing /ro7/i the stage of family-7init to
the stage of individual-unit. But still, the family occupies an
important place in the social life of the people, and there are
many rules which are peculiar to their family relations, and which
ought, on that account, to be grouped together and separated
from the rules relating to persons regarded simply as individuals.
The " Pandekten-System " is peculiarly suited to this transient
state of society, for it provides for the rules relating to persons in
their capacity as individuals or members of a society in the General
Part, and sets apart a distinct place for those rules which relate
25
to person in their capacity as members of a family. In civilized
societies, the rules which regard men as individuals belong to
. general law, while those which regard men in their family rela-
tions belong to particular law. But in less civilized communities,
the case is just the reverse ; the family laiv may be said to
form the general latv, the law relating to persons in their in-
dividual capacity falling under the category of particular laiv.
Japan is now in a transition stage ; so that the placing of the rules
relating to individuals in the general part, and the rules relating
to family relations in the particular part of the Code is, not only
logically correct, but is especially suited to the present state of
the Japan law.
As to the place of the Succession Law in the Code, strong
objection was raised against the arrangement of Prof Boissonade
which put it in Book III, under the head of " Means of Acquiring
Property. In Japan, as I shall show presently, succession can-
not, at least as regards the most usual kind of it, be regarded as a
mode of acquiring property.
Comparative study of succession laws of different peoples in
different degrees of civilization, shows that there are three stages
in the evolution of this branch of law. In the first and earliest
stage, succession is regarded as the mode of perpetuating the
zvorship of ancestors ; next comes the time when it is regarded
as a mode of succeedirtg to the status of deceased persons ; and
it is only in the last stage, that succession becomes a mode of
acquiring property.
Now in Japan, until recently, as the family was a corporation
the only person who could hold property was the head of a house.
Consequently the only kind of succession which was then
recognized by law was " Katoku Sozoku " or the succession to
the headship of a house, which was the succession to status, and
the house-property descended to the heir as an appendage to the
status of the house-headship. It is only after house-members
26
were allowed to have independent property, that succession
which can properly be said to be succession to property began
to be recognized. So, there are, at present, two kinds of
succession, status-succession and property-succession existing
side by side. The status-succession cannot be put under the
category of the law of property, nor can the property-succession
be put under the law of persons. The arrangement of the
" Pandekten-System," which devotes a particurar Book to succes-
sion law at the end of the Code is peculiarly suited to this state of
law, and recommended itself to the framers of the new Code in
preference to the classification adopted by Prof. Boissonade.
VIII. The Introduction of the Notion of Right.
It will be seen, from what I have stated above, that the
classification of rules in the new Civil Code is made upon the
basis oipriininary distinctions regarding rights. But the notion of
right did not originally exist in Japan, before the introduction of
Western jurisprudence. Many writers assume that right is coeval
with law, and law and right are only two terms expressing the
same notion from different points of view. Some even go so far
as to affirm, that right is anterior to law, and the latter only exists
for the assurance or pi-otection of the former. In Japan, however,
the idea of right did not exist so long as her laws belonged to the
Chinese Family. There was indeed the notion of duty or obliga-
tion, but neither the notion of right nor the word for it existed
either in Japanese or Chinese. The nearest approach to it in
Japanese was perhaps " <5z<« " which means "share" or "por-
tion." This word was frequently used to express the share or
part which a person had in society and which he expected that
society would recognize as his due. But this word was not quite
definite in its meaning, and was more often used in a contrary
sense, expressing a person's duty, or sometimes the part or limit
which he ought not to exceed. So, when the notion of right was
first introduced into Japan, there was no fit word to translate it,
and a new word had to be coined to express this novel idea.
The late Dr. Tsuda who had been sent to Holland by the Sho-
gunate Government to study law in the University of Leyden, on
his return to Japan published a book entitled " A Treatise on
Western Public Law " in i86S, the year of the Restoration. In
this book he used the new word " keit-7-i" for right, which he
coined by combining the words " ken " or " fozvcr " and " ri"
or " interest." This word has since been received to express
the notion of right. Sir John Lubbock in his book " On the
Origine of Civilization " (ch. VIII) says that lower races are
" deficient in the idea of right, though familiar with that of law,"
Sir Heniy Maine says that "jus " among Roman lawyers generally
meant not " a right " but " law;" and that Romans " constructed
their memorable system without the help of the conceptson of
legal right." I think it may be laid down as a general rule of the
evolution of law, that /azvs from beittg the rules of duty become the
ritles of right. Early lazus impose duty but do not confer right.
But in the course of time, men begin to realize, that the benefit
which results to any one on account of duty imposed upon an-
other, is of greater importance than the duty itself; so that right
which was at first only the secondary notion and nothing more
than the reflection of duty, began to be regarded as the primary
object of law. This change in the conception of law took place
in Japan within the last forty years, and resulted in the classifica-
tion of the rules of the Civil Code on the basis of right.
IX The Legal Position of Woman.
With reference to Book I of the Code, which relates to
" General Provisions," I will only touch upon the subjects of the
28
Legal Position of Woman and that of Foreigners ; for these are
the two points where the Code has made greatest changes in that
part of the law. I will first speak of woman.
Three periods may be distinguished in the history of Japan,
as to the legal position of woman ; the first, corresponding to
the period during which our national law consisted solely of
indigenous elements ; the second, when Japanese law belonged to
the Chinese Family of Law ; and the tliird dating from the time
when our law passed from the Chuiese to the European Family
of Law.
The first period extends from the beginning of our history
to the introduction of Chinese civilization. During this period,
women seem to have occupied a higher place than in later times,
filling positions of importance and honor in state, religion and
household. Perhaps, the higher position, which women occupied
during the early period of our history, was due partly to the
primitive simplicity and the absence of artificial doctrines, which
later on assigned a subordinate position to women. The first
Imperial Ancestor and the central figure in national worship is a
goddess " Amaterasu O-mi-Kami " or the " Great Goddess of
the Celestial Light." There was no law to prevent female mem-
bers of the Imperial Family from ascending the throne, and there
have been many Empresses who ruled the Empire. The Empress
Jingo invaded and conquered Corea at the head of a large
army.
With the conquest and subjugation of Corea by this
" Empress of God-like Exploit " begins the second period in
the history of the legal position of woman in Japan ; for from this
time, Chinese civilization began to enter Japan, first through
Corea, and afterward from China directly. It was chiefly the
doctrines of Chinese moral philosophy that changed the primitive
state of comparative freedom and independence of woman, and
placed her in an abnormally inferior position. The Chinese
29
doctri?ie of the perpetual obedience of tvoman to the other sex
is expressed in the precept of " the three obediences" (Ht3t)^
" obedience, while yet unmarried, to a father ; obedience, when
married, to a husband ; obedience, when widowed, to a son."
It is curious to note, by the way, that an exact counterpart
of this doctrine of three obediences is to be found in Hindoo
Law. In one place Manu says " Day and night women must
be kept in dependence by the males of their family" (Manu IX. 2.
Buehler's transl.); and in another place " In childhood, a female
must be subject to her father ; in youth, to her husband ; when
her Lord is dead, to her sons." (V. 148)
Buddhism and Feudalism contributed to the keeping of wo-
man in a state of dependence. Buddhism regards woman as an
unclean creature, a temptation or snare to virtue and an obstacle
to peace and holiness. Feudalism, which disdained anything
effeminate, also regarded woman in the light of a temptation to
courage and faithful performance of duty, and, although she was
treated with kindness and consideration far above that received in
other Asiatic countries, she did not command that romantic
homage which the gallant knights of Mediaeval Europe paid to
the other sex. Prof. Chamberlain, one of the best authorities on
Japan, writes: — "Japanese feudalism — despite its general similarity
to the feudalism of the West — knew nothing of gallantry. A
Japanese knight performed his valiant deeds for no such fanciful
re ward, as a lady's smile. He performed them out of loyalty to
his lord, or filial piety towards the memory of his papa."
Thus, these three factors, Chinese philosophy. Buddhism and
Feudalism, combined to place the Japanese woman in a state of
dependence during the second period. She could not become
the head of a house ; she could not hold property nor contract
in her own name ; she could not become a guardian of her own
child ; she could not adopt a child in her own name ; in short,
she had no independent status and was excluded from the
30
enjoyment or exercise of almost all rights.
But in the third period, during which European civilization
has been introduced, female education has spread throughout the
country. Western jurisprudence has superseded Chinese, and
Japanese law has become a member of the European Family of
Laws, a great revolution has come over the social and legal posi-
tion of woman. This reform was consummated by the publication
of the new Civil Code. This Code " created the new legal wo-
man " as an able writer on Japan has expressed it. (Clement's
Modern Japan, ch. XIII.) It proceeds upon the principle of
equality of the sexes, and makes no distinction between man
and woman in their enjoyment and exercise of private rights, so
long as the woman remains single. She may now become the
head of a house, in which case all house-members, whether male
or female, — even her husband when she is married — come under
her power and are legally dependent upon her. She may exer-
cise parental authority over her own child, if her husband be
dead. She may adopt children either alone, when she is single
or a widow, or in conjunction with her husband, when married.
She may make any contract or acquire or dispose of property in
her own name. In short, she may be a party to any legal trans-
actions, as long as she remains feme sole. When she is married,
her state of coverture obliges her to obtain the permission of her
husband in doing certain acts, which may involve grave conse-
quences upon their conjugal life; such as contracting debt, acquisi-
tion or loss of immovables or valuable moveables, instituting legal
proceedings, accepting or renouncing succession, entering into
contract of personal service etc. Even in regard to these acts, she
can not be considered as laboring under legal incapacity, for when
she does these acts without her husband's permission, they are
not void, but only voidable, that is, liable to be annulled by her
husband (Civil Code Art. 14.). With her husband's permission,
she may also engage in business, in which case, she is considered
31
in regard thereto as an independent person. (Civil Code Art.
1 5 .). That the Civil Code places husband and wife on an equal
footing, except when consideration for their common domestic
life requires some modifications, may be seen from the provision
of Art. 17, which allows a wife to do the acts above mentioned
without the permission of her husband " when the interests of the
husband and wife conflict," and also from the provision of Art.
790 in which it is stipulated that "a husband and wife are mutual-
ly bound to support and maintain each other."
The great revolution in the legal position of woman which
the new Civil Code brought about is nowhere so clearly seen as
in its regulations relating to \hs. property of married tvoinen.
The laws relating to married women's property are different
in different countries, and varies with the degree of civilization
attained ; but broadly, they may be grouped into the following
four systems : —
(i) System of Conjugal Unity. — In those systems of law
which regard man and wife as one person, or in which
the wife's personality is merged in that of the husband,
whatever the bride possesses at the time of marriage
becomes the property of the husband, as was the case in
the English Common Law, or under the doctrine of
Maims in the early Roman Law, or that of Miind in the
early Germanic Law.
(2) System of Dowry. — Another system sets aside a part, at
least, of the bride's fortune as a common conjugal fund,
the management of which belongs to the husband, as was
the case at one period under Roman Law, and under the
Code Civil, and as is now practiced in the South of
France.
(3) ' System of General Community of Conjugal Property. —
This system exists under the Code Civil side by side with
the dotal system, principally in the northern part of
32
France.
(4) System of Separate Property. — Under this system
marriage makes no change whatever in the property
rights . of the bride, as is the case in England since the
Married Woman's Property Act of 1882, and in many
States of the United States.
Broadly speaking, the usual process in the evolution of the
law of conjugal -property is in the order which I have stated
above, the system of unity corresponding to the lowest, and the
system of separate property to the highest, scale of civilization.
But in this respect, the compilers of the new Code have taken a
decided step, and leaped, at one bound, from the system of
complete merger of wife's property in that of the husband to
the system of separate property. According to the Code (Art.
793 — 807), persons who are about to marry- are allowed to make
any contract with regard to their connjugal property, which will be
binding upon them and can be set up against a third person, if
registered before the registration of the marriage. If such
contract be not made between them, their relations in regard to
property are governed by the general rules of conjugal property,
which, among others, lays down the fundamental rule, that the
property belonging to a wife at the time of marriage or acquired
after marriage in her own name, shall be her separate property/
(Civil Code Art. 807).
The reform in the Law of Divorce, which the new Civil
Code made, also marks a great advance as regards the legal
position of woman. During the second period, while the Japan-
ese law belonged to the Chinese Family, the law of divorce
was based upon the Chinese doctrine of " the Seven Grounds of
Divorce " (-t;^) which are (i) sterility, (2) lewdness, (3)
disobedience to father-in-law or mother-in-law, (4) loquacity,
(5) larceny, (6) jealousy, and (7) bad disease. These grounds
were adopted in the " House Law " (Koryo) of the Taiho Code.
33
But it must be observed that these grounds were not lemitative,
as in the case of modern legislation. They are only mentioned
^^ just grounds for abandoning a zvife, or in some cases such
as barrenness, adultery or hereditary disease, as a moral obliga-
tion which a husband owes to his ancestor to abandon the wife,
because the object of marriage was the perpetuation of ancestor-
worship, and barrenness may cause the failure of heir,
adultery the confusion, and hereditary disease the pullution,
of ancestral blood. (See my work on " Ancestorworship
and Japanese Law "). Practically, a wife could be divorced
at the pleasure of her husband, under any slight or flimsy
pretext, the most usual being that " She does not conform
to the usage of the family." It must be further observed that
divorce during this period meant only the abandonment of the
wife on the part of the husband. The wife had no legal right to
demand divorce from her husband on any ground. Divorce,
therefore, was not a bilateral, nor even a reciprocal, act. It was
an unilateral act of the husband. To bring an action against
the husband, or to give information of a crime against him was
itself considered a grave offence ; and so a wife could not demand
divorce in the court of law. Divorce was the privilege of the
husband only, as in the Mosaic and other primitive laws.
But this state of things has changed since the Japanese law
passed from the Chinese and entered the European Family of
Laws. In the 6th year of Meiji (1873) the following Law (No.
162) was enacted, which, for the first time, allowed the wife to
bring an action of divorce against the husband : — " Whereas
it has frequentry happened that a wife asked divorce from
her husband on account of unavoidable circumstances, to
which the latter unreasonably withheld his consent for many
years, thereby causing her to lose the opportunity of second
marriage, and whereas this is an injury to her right of freedom,
it shall be henceforth allowed to the wife to bring an action
34
ao-ainst her husband, with the assistance of her father, brother
or other relative." This law may be considered a revolution in
the legal position of woman. The new Civil Code went a step
farther and placed husband and wife on an equal footing in this
respect. According to the Code two kinds of divorce are re-
cognized, consensual zr\d judicial, the former being effected by-
arrangement of parties, while the latter is granted by a court of
law on several grounds specified in Art. 813 of the Code. The
grounds for judicial divorce include, inter alia, bigamy, adultery,
sentence for an offence of grave nature, such cruel treatment
or gross insult as make living together unbearable, desertion
with evil intent, cruel treatment or gross insult of or by lineal
ascendant, uncertainty, for a period of three years or more, whe-
ther the consort is alive or dead. Consensual divorce requiring
the consent of both parties is a bilateral act, whereas divorce
during the second period was an unilateral act, which took place
at the will of the husband who gave her a " letter of divorce "
formulated, as a custom, in three lines and a half " mikudari-han,"
stating that he gave her a dismissal, and nothing should hence-
forth stand in the way of her marrying again. As to the judicial
divorce, either party to marriage can claim divorce from the other,
if any of the grounds specified by law exists, so that husband and
wife are now placed on an equal footing in this respect.
It will appear from the foregoing rough sketch of the three
periods in the history of the law relating to the position of woman,
that during the first period, while Shintoism was the only form
of worship, woman held a higher place than in the second
period, when Confucianism, combined with Buddhism and Feu-
dalism held down woman in a state of subjection ; while in the
third era, a great revolution has been made in the position of
women, and equality with men as far as their private rights are
concerned, is vouchsafed to them under the new Civil Codes.
35
X. The Status of Foreigners.
The possible forms, which the law of any country relating to
the position of foreigners may assume, or the possible stages
through which it may pass, may be arranged, by the broad
generalization of comparative jurisprudence, under the four
following heads : —
(i) Laws based upon the Principle of Enmity.
The laws of almost all barbarous peoples are based upon the
principle that all foreigners are enemies, and consequently have
no right whatever. Even after they cease to regard foreigners
as enemies, they view their own laws as exclusively national,
that is to say, they are applicable only to their own countrymen.
Foreigners are, therefore, outlaws, and are placed outside the
protection of the law.
(2) Laws based upon the Principle of Inferiority.
With the advance of civilization, especially with the progress
of commerce, foreigners are no longer regarded as enemies, but
from disdain for foreigners, or from national egoism, they are
placed in inferior position as regards the enjoyment of their
private rights. Sometimes the enjoyment of many rights is
totally denied them, or sometimes capricious limitations are placed
upon their legal capacities. In this stage, foreigners enjoy
private rights, but in a limited degree only.
(3) Laws based upon the Principle of Reciprocity.
Some countries make the conditions of foreigners dependent
upon the treatment which their own people receive in other
countries ; and allow foreigners the enjoyment of their rights only
so far as the countries of those foreigners allow their own people
the same rights. This principle of reciprocity is adopted in
France (Code Civil. Art. 11,), Austria (Das allg. buergerl,
Gesetzbuch § 33.), Sweden, Norway, Servia and other countries.
(4) Laws based upon the Principle of Equality.
This is the most liberal and most advanced system of law-
relating to the legal condition of foreigners. Beginning in 1827
with the Dutch Civil Code, and followed by the Italian Civil Code
of 1865, it has now been adopted in the majority of European
and American States. They recognize the principle of equality as
far as the enjoyment and exercise of private rights are
concerned, some few exceptions only being usually made on
grounds of national policy, such as the prohibition or limitation
of the ownership of land or ships, the right of fishery, the right of
working mines, or egaging in the coasting trade, and a few others.
Now, in regard to the legal condition of foreigners in Japan,
we may distinguish three periods, which nearly correspond to the
first, second and fourth stages above mentioned. The first period
includes the time before the opening of the country to foreign in-
tercourse ; the second from that time until the new Civil Code
came into operation ; and the third from that time till the present
day.
During the first period, which may be called the Period of
National Seclusion, there was no intercourse with foreign coun-
tries. Foreigners were looked upon as barbarians or enemies.
They could not come and reside in the country, except in a very
few instances, and, therefore, they stood entirely outside the pale
of the law.
The second period, which may be call TJie period of the
Treaties begins from the date of the second visit of Commodore
Perry in 1854 and the conclusion of the treaty of peace and amity
by him, followed in 1858 by the first treaty of trade and
commerce with the United States. Some ports were opened for
foreign trade, and foreigners could come and reside within the
limits of the treaty ports and engage in trade, business or mission-
ary work. But their rights depended upon the treaties, not
upon the latv of the country. They enjoyed the privilege of extra-
37
territoriality, that is to say, they brought their own laws with
them, and remained under the jurisdiction of their respective
consuls.
In the third period, which may be, called the Period of
the Code, foreigners enjoy their rights under the lazv, and the
treaties only provide for the guarantees or limitations of rights.
The new Civil Code, at its commencement, proclaims the noble
principle of the equality of foreigners and native subjects before
the law. Art. 2 provides that " Foreigners enjoy private rights
except in those cases where such enjoyment is prohibited by law,
ordinance or treaty." And as to foreign juridical persons. Art.
36 provides, that " The existence of jurisdical persons other than
states, administrative districts and commercial companies, is not
admitted. But foreign juridical persons 'recognized as such by
law or treaty do not come under this rule.
Foreign juridical persons recognized as such under the
provision of the preceding paragraph have the same private rights
as the same classes of juridical persons existing in Japan; but
this does not apply to such rights as foreigners cannot enjoy, or
so far as special provisions are made by law or treaty."
From the above provisions, it will be seen that the nezu Civil
Code made the equal enjoyment of rights a general rule, and
limitations and prohibitions exceptions. These limitations upon
the foreigner's equal enjoyment of rights are not numerous, and
do not differ greatly from those existing under the laws of many
other modern states. Such restrictions are the ownership of land
or Japanese ships, the right to work mines, to own shares in the
Bank of Japan or the Yokohama Specie Bank, to become
members of the Stock Exchange, to engage in the emigration
business, to receive bounties for navigation or, ship-building and a
few others. Otherwise foreigners are as free as the Japanese to
engage in any commercial or industrial business, or to own shares
in any Japanese companies. Even the restrictions above
38
mentioned do not work so hard upon foreigners as it may at first
appear, for, although foreigners as individuals can not own land,
they may become members of any commercial company owning
land or working mines. As individuals, they may have the right
of superficies which is the right to use another person's land for
the purpose of enjoying the right of property in structures and
trees thereon. Moreover, the Law No. 39 of igoi, a right in
rem called " the right of perpetual lease " was created especially
for the benefit of foreigners or foreign juridical persons, who had
held land in the treaty ports under lease from the Japanese
government. These leases which had been no more than rights
in personam were turned into rights in rem, and the rules relating
to oiuncrship are applied to them. So, they are now practically
the same as ownership ; and as soon as they pass into the hands
of Japanese subjects they are turned into ownership. Moreover,
opinions in favour of allowing foreigners to own land are daily
gaining strength, so that this restriction is quite likely to be
removed ere long.
It will appear from the foregoing statement that the condi-
tion of foreigners has undergone a great revolution during the
half century which elapsed since the opening of the country. In
'Ca& first period, foreigners had no right whatever ; in the second
period, they enjoyed their private rights 7mder treaties; but in
the third period, that is, under the new Civil Code, they enjoy
their private rights nndcr the law, which recognizes the principle
of equality as far as private rights are concerned. Thus, in a
comparatively short space of time, Japanese lazu passed from the
stage of Enmity to that of Equality — a revolution, which, in
other countries, required many centuries to accomplish. The
difference between the second stage in which their enjoyment of
rights depended upon treaties, and the third stage in which their
rights depend upon law, very clearly appears in the present con-
dition of Russians in Japan. As the commercial treaties between
39
Japan and Russia have come to an end by the outbreak of the
war, if Russian subjects had enjoyed their rights only under the
treaties, they would not be entitled to claim any protection from
Japan, except as a matter of favour. But as their rights are now
guaranteed by the provisions of the Code, Russian residents still
remaining in Japan enjoy the protection of law, just as peacefully
as the citizens of any friendly states. The Code assures them
the equal enjoyment of private rights, whether the country to which
they belopg be in amicable relations with Japan or not. This
difference is further illustrated by Imperial Ordinance No. 352
of 1 899, which declared foreigners who are not citizens of any of
the Treaty Powers to have equal freedom of residence and pro-
fession with the subjects of the treaty Powers.
XI. The House and Kinship.
It will be at once remarked by any one reading the new Civil
Code that the Japanese family law, unlike that of Europe and
America, rests upon the double bases of House and Kinship.
The House of " iye," in the sense in which it is employed in the
Japanese law, does not mean a household, nor a dwelling place,
but a group of persons, bearing the same surname, and subject to
the authority of its chief who is called " Koshu " or House-head.
The other members who are subject to the authority of the
house-head are called " Kazoku " or House-members. It is not
necessary that a house should consist of a group of persons, for a
house may exist even when there is only one person in it, in
which case that person is still called " Koshu " or house-head.
The house-membership consists of those relatives of the house-
head or his predecessors, or sometimes also, of the relatives of
house- members who are not related to the present or preceding
house-heads by any tie of kinship, but who entered the house
40
with the house-head's consent ; such for instance, as the relatives
of the house-head's adopted son' or daughter-in-law. (Civil Code.
Art. 732 — 745) The persons who constitute the members of a
house are defined by law, and a registry is kept, in each district,
of persons who are in each house. The house-membership is
constituted in accordance with the following rules.
1 . A child enters the house of its father.
2. A child whose father is not known enters the house of its
mother.
3. A " Shoshi " or natural born child recognized by its father
who is a house-member, or a natural-born child of a
female member of a house enters the house of its father or
mother, only when the house-head's consent is obtained.
4. A wife enters the house of her husband, except when a
female house-head contracts a marriage, in which case the
husband enters the house of his wife.
5. A relative of a house-head who is in another house or a
relative of a house-member who has become such by
adoption or marriage, enters the house, if the consent of
the head, both of the house he is leaving, and of the house
he is entering, is obtained. A person who cannot enter
any house, such as a child whose parents can not be as-
certained, establishes a new house, and becomes himself a
house-head.
A house thus constituted is entered in the House-registry or
"Koseki" which is kept in every district throughout the Empire.
Kinship, according to the Civil Code arises from relation-
ship by blood, by adoption or by marriage, and exists
1. Between relatives by blood within six degrees inclusive.
2. Between husband and wife.
3. Between relatives by marriage within three degrees inclu-
sive. (Civil Code. Art. 725).
4. Between an adopted child and adoptive parent and the
41
latter's blood-relatives, the same relationship exists, from
the date of the adoption, as that between blood rela-
tives. (Civil Code. Art. 727).
5. Between step-parents and step-children, a wife and her
husband's recognized child, the same relationship exists
as that between parent and child.
Now, a house may include persons who are not the kindred
of the house-head, because it includes the kindred of the preced-
ing house-head, or the kindred of a house-member who is not
related to the present house-head ; and may exclude even the
nearest kindred, because, by adoption or marriage and other
causes above mentioned, a man may enter another house, or
return to the original house by the dissolution of the marriage or
adoptive tie, or establish a new house, leaving his own parents or
child in the original house. The Jiouse, therefore, is zvider than
kinship on the one side, zvhilst it is narrozvcr on the other.
Sir Henry Maine's description of the ancient family so well tallys
with the present state of the house in Japanese law — except in one
particular which shows the peculiarity of Japanese family law, —
that I cannot do better than quote his words in full.
"The family, then, is the type of an archaic society in all Ihe
modifications which it was capable of assuming ; but the family
here spoken of is not exactly the family as understood by a
modern. In order to reach the ancient conception, we must
give to our modern ideas an .important extension and an import-
ant limitation. We must look on the family as constantly
enlarged by the absorption of strangers within its circle, and we
must try to regard the fiction of adoption as so closely simulat-
ing the reality of kinship that neither law nor opinion makes the
slightest difference between a real and an adoptive connexion.
On the other hand, the persons theoretically amalgamated into a
family by their common descent are practically held together by
common obedience to their highest living ascendant, the father,
42
grandfather, or great-grandfather. The patriarchal authority of a
chieftain is as necessary an ingredient in the notion of the family
group as the fact (or assumed fact) of its having sprung from his
loins ; and hence we must understand that if there be any persons
who, however truly included in the brotherhood by virtue of
their blood-relationship, have nevertheless de facto withdrawn
themselves from the empire of its ruler, they are always, in the
beginnings of law, considered as lost to the family. It is this pat-
riarchal aggregate — the modern family thus cut down on one side
and extended on the other — which meets us on the threshold of
primitive jurisprudence." (Maine, Ancient Law, ch. V.)
Here I may conveniently compare the House in Japanese
law with the Family in Roman Law, in order to show the
characteristics of the former. It differs from the Roman family
chiefly in the following points : —
(i) The House is not a family-group held together by
" common obedience to the Iiighcst living ascendant " as
in the Roman family, but is a /cgai entity originally
founded an aucestor-ivorsJiip. Therefore, it would be
nearer the truth to say that it is the highest dead
ascendant, by the common obedience to whom a house
is held together. The house-head is not necessarily the
highest living ascendant, but is a person who succeeds
to the ajitliority of the highest ascendant. Sometimes,
therefore, a soji may be the house-head, and his father
may be a house-member under his authority, as- in the
case of abdication of the house-headship, which I will
explain presently. Or, sometimes, a nephew may be
the house-head, and the uncle may be a house-member
under him, as will happen, when a grandson succeeds to
the grandfather by representation. Or again, there may
be no relationship at all between the house-head and the
house-member as I have explained above.
43
(2) In consequence of the above difference, the Roman
family dissolved at the I'eath of each paterfamilias, and
each of the next highest ascendants became in his turn
sui juris and a paterfamilias, having all his descendants in
his power. Thus, if the deceased paterfamilias had three
sons, there would be three families instead of one. But
the Japanese house is never dissolved at the death or
abdication of a house-head and is succeeded by one
person, all other members remaining aliciii juris as
before.
(3) According to the present Japanese law, a woman may
become a house-head, and if she marries, she may continue
to be the house-head and have her husband as a house-
member under her power, provided such intention is
expressed at the time of the marriage. (Civil Code. Art.
736.) Under Roman Law, however, a woman could never
exercise authority even over her children.
(4) According to Roman Law, when a woman manied, she
always entered the husband's family and passed into the
power of another ; but according to Japanese law the
luisbani enters the house of his wife in case of the
marriage of a female house-head, and also in case of the
adoption of a son-in-law or " muko-yoshi," which I will
explain later on ; so that the famous maxim of Roman
Law " Mulicr est caput it finis familiae " — a woman is
the beginning and end of the family — does not apply to
Japanese.
(5) Patria potestas was among the Romans an institution of
private lazv; and it is so with us at the present time.
But before the Restoration, it was an institution of public
law as well as of private law, as I will explain when I
come to speak of the decay of the house-system.
44
XII. House-Headship and Parental
Power.
From the nature of the double bases of the Japanese Fami-
ly Law, it follows that a person may have Hw capacities, one as
a member of the legal house, and the other as a member of the
wider group of kindred. Thus, a person may be a house-head
or a house-member, and, at the same time, he may be a son.
In such cases, if he is the son of a house-head, he is placed un-
der the house-head's power and under the parental power of the
same person ; if he is a son of a house-member, who is himself
under the power of the house-head, he is under the power of
two persons, the house-head and the father. But if the house-
head is a minor, and his father or mother is a house-member,
the former is under the parental power of the latter, while the
latter is subject to the' authority of the former. In such cases,
conflict or inconvenience which may arise from mutual subjection
to one another, is avoided by the provision of Art. 895 of the
Civil Code, according to which the parent exercises the house-
head's power on behalf of the minor house-head.
Of the two bases of the Japanese Family Law, the House
and the Kindred, more iveiglit is always laid on the former than
on the latter, except in the two instances of the duties of support
and maintenance and the succession to the property of house-
members, both of which are new institutions introduced by the
Code and are not bound by the limit of the house. In most
other cases, the house takes precedence of the kindred, and a
man's rights and duties, capacities and incapacities are usually
determined by his position as a member of the house, and not by
his position as a member of the kindred. Parental potver which
is based on the conception of kinship is limited by the concep-
45
tion of ike house, and is recognized only so far as the parent and
child are in the same house. So, if a son is not in the same
house with his father or mother, he does not stand under the
paternal power of either. The consent of the house-head is al-
ways necessary for the marriage, adoption, divorce or the dissolu-
tion of adoption of the house-member, but the consent of parents
is only required ivhen the offspring is in the same house with
them.
Here again appears the difference between the Roman and
Japcinese family laws. The former recognizes only one authority
of the head of the family, in the patria potest as of the highest
male ascendant, and merged the parental power of the members
of the family in that of the paterfamilias, while the Japanese law
recognizes parental authority of the house-member side by side
with the authority of the house-head. The authority of the
house-head includes the right of consent above referred to, right
of determining the residence of house-members, right of expelling
them from the house or forbidding their return to it on certain
grounds specified by law, and the right of succeeding to the house-
member's property in default of other heirs. The parental power
includes the custody and education of children who are minors,
right of correction, right of determining their place of abode, busi-
ness or profession, of managing their property, or performing
several legal acts on their behalf, subject in some cases to the ap-
proval of a family council. Most of the right falling under the
parental power luere formerly included in the house-head' s pozver ,
but the new Civil Code recognized the authority of parent and
transferred them to the parental power, and greatly curtailed that
of the house-head, only leaving those rights to him, which are
.necessary to the pi-eservation and proper management of the house.
This recognition by the Civil Code of the parental power beside
the authority of the house-head shows the transient state of Japan-
ese society and is one of the points regarding which the framers
46
of the new Code took pains to adjust the laws to the progressive
tendencies of the society. Formerly, there was only one autho-
rity recognized by Japanese law, as in the case of Roman Law —
that of the house-head. But the new Civil Code took a decided
step and recognized the parental power, besides the house-head-
ship, due allowance being made to the long-existing custom
among the people, by not going so far as to extend that recogni-
tion to the parents who belong to a different house from that of
the child. The tendency of the laws of a progressive society
must be the gradual recognition of natural relationship in place
of artificial connections ; and the process of evolution in this
branch of law is from House to Kinship. The reform made by
the new Civil Code may be regarded as the first step in that
direction.
XIII. Relationships.
The method of determining the degrees of relationship accord-
ing to the new Civil Code is the same as that adopted in most
countries of Europe and America, belonging to the system of
Roman Law ; that is, by reckoning the number of generations
which intervene between two persons, either directly when they
are lineal relatives, or through a common ancestor, when they
are collaterals. This system of determining the degrees of rela-
tionship by the distance of consanguinity is the most natural
one and is, for that reason, adopted from Western jurisprudence
by the framsrs of the Code. But, previous to the adoption of
the Code, while Japanese law still belonged to the Family of Chinese
Law, relationship was determined in a different way. The basis of
the new system is the distance of blood-relationship between
relatives ; but the old law rested on the double bases of blood-
relationship and family rank, that is to say, the degree of
47
relationship was determined not only by the distance of blood-
relationship, real or fictitious, but also by the consideration of
superiority or inferiority of their relative positions in the family.
In " the Ceremony Law " of the Taiho Code (701 A. D.), kindred
are divided into the following Five Ranks or " Go-to-shin."
(i) The Relatives of First Rank are ; father and mother,
adoptive father and adoptive mother, husband, son and
daughter.
(2) The Relatives of the Second Rank are ; grandfather and
grandmother, " tekibo " (or wife of the father of a con-
cubine's child), step-mother, uncle and aunt, brothers
and sisters, husband's parents, wife and concubine, bro-
ther's child, grandson and granddaughter, and son's
wife.
(3) The Relatives of the Third Rank are ; great grandfather
and great grandmother, uncle's wife, husband's nephew,
cousin, brother and sister by half-blood on father's side,
husband's grandfather and grandmother, husband's uncle
and aunt, wife of nephew, step-father, and child of hus-
band by his former wife or concubine, provided the child
is living in the same house.
(4) The Relatives of the Fourth Rank are ; great great grand-
father and great great grandmother, grandfather's brother
and sister, father's cousin, husband's brother and sister,
brother's wife and concubine, second consin, grandfather
and grandmother on mother's side, uncle and aunt on
mother's side, brother's grandchild, cousin german's child,
sister's child, great grandchild, grandson's wife and con-
cubine and child of wife's or concubine's former consort.
(5) The Relatives of the Fifth Rank are ; parents of wife or
concubine, aunt's child, cousin on mother's side, great
great grandchild, grandchild by a daughter who entered
another house by marriage, and son-in-law.
48
The above table will show that the degree of relationship
was greatly modified by the consideration of rank in the family ;
so that those who stand in the same rank are not always related
in an equal degree, when measured only with reference to the
distance of consanguinity. It will be seen that precedence is
generally given to father's and husband's relatives, and to those
zuho are in tlie same house, in preference to motJier s and ivife's
relatives and to those zvho are in anotlier house. Thus, uncle and
aunt on the father's side stand in the Second Rank, while those
on the mother's side stand in the Fourth. Husband is the re-
lative of the First Rank to wife, but the wife is the relative of
the Second Rank to the husband. Husband's parents are in the
Second Rank, while wife's parents are in the Fifth. Nephew
and niece by brother are iji the Second Rank, while those by
sister are in the Fourth. Grandchild by son is in the Second,
while grandchild by daughter is in the Fifth Rank, because the
latter is in another house on account of marriage.
The law also made distinction between " sonzoku " or " su-
perior kin" and "hizoku" or "inferior kin." The former includes
all relatives, lineal and collateral, who stand above any person
in the same lateral line of the table of consanguinity ; such as
father, uncle, father's cousin, grandfather etc, while the latter in-
cludes those who stand in the lateral lines below him, such as
son, nephew, cousin's child, grandson etc.
This system of classifying relatives into Five Ranks was derived
from the Chinese Latv of Mourning. From ancient times down to
the present day, Chinese law has been very strict as to mourning,
because it was considered as the highest duty of a man to show
respect and love toward the departed soul of his relative by that
act ; and the moral as well as the legal code prescribed even the
" Mourning of Three Years " to the dutiful son. Chinese codes
abound in minute regulations as to the mourning dress, the dura-
tion of the time of mourninsf and the conduct of mourners. The
49
mourning dress is divided into five classes and the duration of
the period of mourning is fixed by the class of the mourning dress
which the mourner ought to wear. The mourning dress is coarser
in material and make, as the person mourned for stands nearer and
higher in the family position to the mourner ; the first class which
is worn for parents, husband, and husband's parents, being the
coarsest. The first class mourning dress is worn for three years,
the second for two years, the third, for nine months, the fourth
for five months and the fifth for three months. Relatives are
(X'&s^x'a&diaccording to the five classes of mourning dresses^'\\\c\i are
worn for them. Thus, for instance father and mother belong to
the relative of the first class mourning dress ; grandparents to the
second class ; cousins to the third ; great uncles and aunts to the
fourth ; and wife's parents to the fifth. This classification of rela-
tives according to the five classes of mourning dresses very
nearly corresponds to the Five Ranks mentioned in the Taiho
Code, except with respect to great grandparents who belong to
the Third and Fourth Rank respectively according to the Taiho
Code, but who are placed according to Chinese law in the second
class. Besides, this classification which is made in the Ceremoni-
al Law of the Chinese Codes, finds its place in the " Ceremony
Law" or "Gi-sei-ry5 " of the Taiho Code, instead of the "House
Law " where one would naturally expect to find it. So, there is
little room for doubt, that the above-mentioned Japanese clas-
sification of tJic relatives into the " Five Ranks " had its origin
in the Chinese laiv of mourning dress.
During the Tokugawa Shogunate, the study of the Chinese
classics was greatly encouraged, and in 1638 the famous
" Mourning Law " i^"^-,^) was made, which has since then
been amended several times and the classification of the "Five
Ranks " went practically into disuse, until it was revived by the
Criminal Code of 1870, which struck off concubines from the.
Third, Fourth and Fifth Ranks, and made a few other unimport-
so
ant alterations. But with the publication of the present Criminal
Code in 1882, it was abolished, and was replaced sixteen years
later, by the present system of reckoning relationship adopted in
the new Civil Code. In this respect too, Japanese law has
passed from the Chinese to the European Family of Law.
XIV. The Law of Personal Registration and
the Civil Code.
As the house in the Japanese Family Law is narrower, in one
respect, than kindred, and may exclude even the nearest relatives
by blood, and wider, in another respect, and may include strangers,
there is no logical test to determine the sphere of persons con-
stituting the house other than their common subjection to the
authority of one man, the house-head. Some other external
legal evidence is required, therefore, for determining the
constituent of a particular house. Such evidence is supplied by
the register which is kept in every district throughout the
Empire. As a person's birth, marriage, adoption, guardianship,
death, succession, entrance to, or separation from, a house,
acquisition or loss of nationality, and every other change of man's
status is recorded in the register, the law relating to registration
forms a supplementary law to the Civil Code and the present
law was promulgated and put into force on the same day as the
Code. As the register is the record of man's legal position in
society, the development of society is often reflected in the law of
registration. Three stages may be distinguished in the history
of the law of personal registration in Japan; ist, the Epoch of
Clan-registration, 2nd, the Epoch of House-registration, and
3rd, the Epoch of Status-registration. These epochs show the
changes in the units of state and correspond to the three stages
in the process of social disintegration.
SI
In the early days of Japanese history, it was not the in-
dividual nor the family that formed the unit of state. The state
only took cognizance of clans and the government of families and
individuals in each clan was left to the chief of the clan or "uji-no-
kami " who was usually the eldest male descendant of an
eponymous ancestor. He was honored and obeyed by clansmen
as the representative of their common ancestor. He was the
head of their worship, their leader in time of war, and their
governor in time of peace. There were Great Clans or " o-uji "
and Small Clans or " ko-uji," the latter being included in the
former. Clansmen of the Small Clan were governed by their
chief who was himself subject to the chief of the Great Clan.
Thd Emperor was the supreme authority over them, and all the
laws and proclamations of the Imperial Government were trans-
mitted to the " uji-no-kami " of the Great Clans, who, in turn,
transmitted them to the " uji-no-kami " of the Small Clans.
Thus each clan was a body founded on community of blood and
worship axiA for 71 ud an adininistrath'e division of the country,
corresponding to the present administrative divisions, such as
provinces, cities, towns, district and villages.
Since the introduction of Chinese civilization and the
Reform of the Taika Era (645 A. D.), in spite of the fact that
the clan-system of government continued for a long time after-
ward, the basis of the administrative division of the country
gradually changed from a personal to a territorial system and
provinces and districts took the place of clans.
In those early days of clan-government, it was of the utmost
importance that each man'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 were enjoyed by particular clans, attempts were
often made by clansmen to forsake their original clans and
surreptitiously adopt the names of other and more iufluential
52
clans. In order to put a stop to these abuses, the " ordeal of hot-
water " or " kugadachi " was resorted to, which consisted in
plunging the hand into hot water before the temple of a god. It
was claimed that those who assumed false clan-names would
suffer injury, while the innocent would escape unhurt. After-
ward, in the year 815 A. D., a " Register of Clan-names " or
" Seishi-roku " was compiled, a part of which is still in existence
to-day. This Register consisted of 30 volumes and contained
1 182 clan-names.
The introduction of the House-register or " ko-seki " dates
back as far as the 1st year of the Taika Era. But it owes its
origin to the adoption of Chinese institutions, and 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-Registr}' has
continued from that remote period down to the present
time.
It was only in the year of the publication of the new Civil
Code (1898), that our law of registration began to enter upon the
third stage of its development. The present law, which was
promulgated at the same time as the Civil Code, and which
replaced the previous law of 187 1 still retains the name of " Ko-
seki Ho " or the "Law of House-Registration;" but the character
of the laxv has widergone a change, necessitated by the progress
of the social condition of the country, for it provides for the
registration of individual status or " jnibuu-toki " as ivell as of
house registration.
It is sometimes asserted that the family was the original
unit of the state, and that an aggregation of families formed a
clan. But this view seems to reverse the real order of develop-
ment. The clan grew out of the expansion of a family, and
separate households grew np within the clan by the increase of
clansmen. It was their common worship and common clan-
53
name which united them to a group. So it was the chn which
was first recognized by the state and formed its unit. The
family or house was included in the clan and did not yet possess
separate existence in the eyes of the law. It zoas only by the
gradual disintegration of the clan and the growth of the
central pozver of the state that the family or house came to the
fore, and began to form the unit of the state. Thus, the
constituent elements of each society become smaller aud smaller,
until they divide themselves into atoms or individuals.
XV. Adoption.
The importance of the fiction of adoption to primitive society
has been illustrated by Sir Henry Maine in many places. In one
passage, he says, " Without the fiction of Adoption which permits
the family tie to be artificially created, it is difficult to understand
how society would ever have escaped from its swaddling-clothes,
and taken its first step towards civilization " (Ancient Law ch. II.)
Its importance in India and also at Rome and Athens is well
known among students of historical and comparative jurisprudence.
But in modern systems of law, adoption no longer occupies the
position of importance which it held in archaic societies. It still
survives in most of the countries which have received Roman
Law, but with several restrictions as to its effects, which make it
in no way resemble that assumption of real kinship which
characterized the ancient form of adoption. To the English
Family of Law, it is totally unknown as a legal institution.
But in Japan, adoption may be regarded as the corner-stone
of Family Law. Without it, the continuity of the House, upon
which rests the perpetuation of ancestor-worship, cannot be
maintained. The practice of adoption has been so common and
universal among the people, from ancient time down to the
54
present day, that Prof. Chamberlain writes " It is strange, but
true, that you may often go into a Japanese family and find half-
a-dozen persons calling each other parent and child, brother and
sister, uncle and nephew,' and yet being really either no blood-
relations at all, or else relations in quite different degrees from
those conventionally assumed."
Adoption in different systems of law may be classified zuith
regard to its object, under the following four heads : —
(i) Adoption for the purpose of pertetuating the family
sacra.
(2) Adoption for the purpose of obtaining a successor
to house-headship.
(3) Adoption for the purpose of obtaining a successor to
property.
(4) Adoption for charitable purposes, or for consolation in
case of childless marriage.
The historical order of the developement, or rather the
decay, of the law of adoption is usually as indicated above. I
will proceed to explain them in order,
(i) Adoption for the purpose of perpetuating Family sacra.
Death without an heir to perpetuate the worship of
ancestors was considered to be the greatest act of impiety which
a descendant could commit. So, in the case of the failure of
male issue, it was the bouudeii duty of a house-head to acquire a
son by means of adoption. Adoption was, as Fustel de
Coulanges says, " a final resource to escape the much dreaded
misfortune of the extinction of a worship."
Many provisions of our ancient Code show that the object
of adoption was the perpetuation of the sacra. The House Law
of the Taiho Code provides that " A person having no child may
adopt one from among his relatives within the Fourtli Rank of
Kinship, whose age does not exceed that which might have
been attained by a son of the adopter's own body." According
55
to some commentators on the Taiho Code, " having no child "
here means that the adoptive father should have reached the age
oisixiy years, or the adoptive motheryf//j/ years, without hav-
ing ;««/i- /ssuf. The reason for limiting the age of the adaptor
was, that as long as any hope of having a male issue of blood,
that is, the direct descendant of his ancestors, existed, the head
of a house should not permit a [lerson of more distant relation-
ship to become the successor to the sacra.
That the object of adoption was the perpetuation of ances-
tor-worship may also be inferred from the old strict rule that
only a kinsmnn could be adopted as a son. The Taiho Code did
not permit adoption of kindred beyond the Fourth Rank, as I
have said above. From the remains of the Taiho Criminal Code
which have come down to us, we know that a punishment of one
year's penal servitude was inflicted upon one who adopted a son
from a different clan. This prohibition against the adoption of
a person not related by blood derives its origin from the belief
which generally exists where the practice of ancestor-worship
prevails, that " the spirit does not receive the offerings of
strangers."
Another requirement of adoption, which is to be found in
the laws of many countries, is the absolute failure of male issue.
The House Taw of the Taiho Code allowed adoption only in case
a man had no son. The object of this rule is clear from what I
have .said above. A rempter relative should not be admitted
where there is a nearer descendant to make offerings.
There is one peculiar form of adoption called " muko-y5shi "
or " adoption of son-in-law," the origin of which must be attribut-
ed to the same cause, As I have said above, the law consider-
ed a man childless, even though he had a daughter. Males
were the only continuators of worship. Those who had daught-
ers only were, therefore, obliged to adopt a son ; but it was
necessary for the blood of the ancestor to be, if possible, contin-
56
lied ill the house. In such cases, a house-head selects a person
who is fit to be his daughter's husband and adopts him as a son.
If adoption and marriage take place at the same time, it is called
"muko-yoshi" or "adoption of son-in-law." The same object may
also be attained by the subsequent marriage of the adopted son
with the daughter of the adopter, for the collateral relationship
of brother and sister by adoption is no bar to their marriage.
(2) Adoption for the purpose of obtaining a successor to
House-headship.
As the house is the seat of ancestor- worship and the house-
head is the continuator of the sacra, this kind of adoption cannot
be regarded as differing from that above mentioned. But with
the development of the house-system, the authority of the head
of a house begins to be regai'ded as a distinct object of inherit-
ance by itself and the family sacra only as one of the duties in-
cumbent upon the house-head. Especially was this the case,
when hereditary office, profession or fief belonged to house-
headship. In Japan, this stage was reached when the Feudal
System was established, and Daimios and Samurais had their fiefs
belonging to their houses Under the Feudal regime, the nature
of military service required that males only should become
house-heads. Hence the failure of male issue was also the cause
of adoption. It was necessary to make provision against the
continzency of a house becoming extinct and the fief being
escheated by failure of heirs. As professions were at that time
usually hereditary and were considered as belonging to certain
houses, adoption was frequently resorted to, in order to keep the
profession in the house. Physicians, artists, masters of fencing,
riding, archery, professors of classics and the like often adopted,
by special permission, those qualified to succeed them in the
profession, even though they may have had sons of their own,
the latter, however, being unworthy of their fathers. This kind
of adoption was called " geido-yoshi " or " arts-adoption."
57
It has just been remarked that the Taiho Code fixed the
lower hmit of the adopter's age at sixty for the father and fifty
for the mother. But this rule took another form under the law
of the Tokugawa Government. The limit of the age was
fixed as low as seventeen. A house-head above that age, or
even by special permission under that age, who had no male
issue was allowed to adopt a son, in order to prevent the extinc-
tion of a house by his sudden death, causing the escheat of
his feudal property. A person between the ages of seventeen
and fifty years could even adopt a son on his death-bed, which
kind of adoption was called " kiu-yoshi " or " quick adoption."
But after the age of fifty, " quick adoption " was not allowed,
so that he was obliged to provide for the succession to the house-
headship early in life, even if he still had the hope of having
male issue. The Taiho Code allowed adoption only in old age,
because it, was desirable that ancestor-worship should be con-
tinued by the nearest blood descendants. The Tokugawa Law
allowed and encouraged adoption by young people, and attached
severe penalties to the neglect of the precaution to provide for
succession early in life, in order to avoid the chance of a house
becoming extinct.
(3) Adoption for the purpose of obtaining a successor to
Property.
Next comes the time when the notions of succession to
sacra and house-headship gradually recede into the background
and the notion of property succession comes to the fore. This
stage is first reached in the new Civil Code. With the Restora-
tion of the Imperial power and the abolition of Feudalism, house-
headship has lost more than half of its former importance. Fiefs
were abolished ; offices and professions ceased to be hereditary
privileges of house- heads ; and, so far as public law is concerned,
house-members now stand on an equal footing with house-heads.
What remains of the rights and privileges attaching to house-
58
heads is enjoyed within the sphere of private law. Of these the
right of enjoying house-property is the most important, at least,
so far as material interests are concerned. Besides, housemem-
bers are now allowed to have independent property of their own,
as I have already explained, and they may adopt just in the same
way as house-heads, provided the consent of the latter is obtain-
ed. (Civil Code. Art. 750). During the Feudal period, only
house-heads were allowed to adopt, because the object of adop-
tion was the continuation of house-headship ; but now adoption
is no longer the exclusive privilege of house-heads because its object
is not limited to obtaining a successor to house-headship. Wills,
although not quite unknown to the old Japanese law, were very
rare in practice and their place was taken by adoption. What is
done in Europe and America by zvill is done in Japan by adop-
tion. Instead of giving away property to another person by will,
which becomes effective after death, a Japanese takes another
person into his house by adoption during his lifetime and makes
the latter the expectant successor to his property.
(4) Adoption for Consolation in case of Childless Marriage.
This is the only kind of adoption which has no connection
with the house-system and marks the last stage in the history of
the law of adoption. In Occidental systems of jurisprudence,
will has taken the place of adoption, and the principal ground on
which this institution is still retained is for consolation in case of
childless marriage. Although the adopted child usually obtains
the right of succeeding to the adoptor's property, this is the
effect of adoption and cannot be regarded as the ground for
allowing adoption. Con.solation in the case of a childless mar-
riage constitutes the principal motive to this act, and therefore
most systems allow adoption only when the adoptor has no
children of his ov/n and is of such an age as to preclude reasona-
ble expectation of any being born to him. In Japan also adoption
often takes place from the same motive, but it cannot be regarded
59
as a legal ground, because the new Civil Code does not limit
adoption to the case of childless marriage. The Japanese law
of adoption is now in a transient, state, and is passim^ from the
second to the third stage of its d.evelopinent, but has not yet
entered the fourth.
XVI. Succession in General. — The Evolution
of the Law of Succession.
I think it may be laid down as an universal rule of the evolu-
tion of the law of succession that it passes throgh three stages of
evolution; \he fst stage is that of the succession to sacra, the
second that of the succession to status and the third that of the
succecssion to property. Each stage of development^ however,
did not form a distinct period in itself, but the later was gradually
evolved out of the earlier by the process of differentation. In
ancient times, the duty of performing and continuing the worship
rested on the head of a house, and the property of a house
belonged exclusively to him. He exercised autJiority over the
members of his house, because he was \he contiuuator of the
ancestral sacra, and, in one sense, the representative of the
ancestor. He owned his property, because it was left by the
ancestor, and the authority and property of a house-head rested
on the zuorship of ancestors. In those times, continuation of
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
rio-hts over house property, came to be considered by itself in
law. Afterwards the two constituent elements of the authority
of the house-head gradually began to be separately considered,
until, at last, property came to be regarded as a distinct object of
inheritance.
6o
There are perhaps few systems of law which can illustrate
the above proposition and indicate the process of gradual deve-
lopment so clearly as the Japanese law of succession to the head-
ship of a house. In the Succession Law " Keishi-ryo " of the
Taih5-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 " owing to the committal of crime or to disease, he may be
disinherited and another presumptive heir may be substituted.
The official commentary on this Code " Ryo-no-gige " says
" to succeed to the important duty " means " to succeed a father
and inherit the sacra, for the matter of worship is the most im-
portant." It appears that, at this time, the • continuation of
ancestor-worship was the principal object of succession. Since
the middle ages, the word " Katoku Sozoku " or "the succession
to house-authority " was used for succession, and in the Feudal
period, espesially during the Tokugawa Shogunate, succession
represented the continuity of the status of house-headship. In
later times " Katoku " which literally means " house-autliority "
was very frequently used for " liousc-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 " Katol-:u" indicates thatthe law of succession was
gradually passing from the second to the third stage referred to.
The present law of succession, contained in Book V of the
Civil Code, shows tha^t ya/^anese /ate is rapidly passing from the
second to the third stage above mentioned, zuithont losing its ori-
ginal trait of the succession to sacra. The new Civil Code
recognizes tzoo kinds of succession ; Succession to house-head-
ship or " katoku s5zoku " and Succession tj property or " isan
sozoku." But there are many rules still remaining, which show
that the foundation of the succession to the house-headship is the
necessity of continuing the worship of ancestors. Article 987
contains the following provision : —
6i
"The ownership of the records of the genealogy of the
house, the article 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.
Though the house is no longer a corporation, as was formerly
the case, it is still a legal entity whose continuance is assured
by law, and does not break up at the death of each house-head.
So, there can be only one heir to its headship, and the new Civil
Code recognizes many kinds of heirs to house-headship in order
to provide against the contingency of the failure of the heir.
They are ; ist, " the Legal Heir," 2nd, "the Appointed Heir,"
3rd, " the Chosen Heir " and 4th, " the Ascendant Heir." The
Leeal Heir who comes first in the order of succession, is tlie lineal
descendant of a house-head^ tvho is at the same time a member
of his house. Among lineal descendants, nearest kinsmen are
preferred to more remote, males to females, and legetimate child-
ren to illegitimate, seniors in age being always accorded priority
when they are equal in other respects (Civil Code. Art. 970).
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 decree of affection which the deceased is pre-
sumed to have entertained towards his relatives, and also by the
presumed intention of the person who dies intestate as to the dis-
position 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, the reasons for the
existence of the rule and its origin are not always the same.
Originally, the nearest in blood to the ancestors tvorsliipped, and
their male descendants were preferred, because they were con-
62
sidered to be the fittest persons to offer sacrifices to the spirits of
ancestors.
The Legal Heir is Jieres necessarian and is not allowed to
renounce the succession, whilst other kinds of heirs are at liberty
to accept or renounce the inheritance, 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 a descendant who is the
Legal Heir to accept the inheritance and continue the sacra of the
house.
The house-head cannot bequeath away from him more than
one half of the property (Civil Code. Art. 1130), nor can he
disinherit him, unless there exists one of the grounds mentioned
in Article 975 of the Civil Code. The causes especially men-
tioned there are : —
(ij ill-treatment or gross insult to the house-head, (2) unfit-
ness for house-headship on account of bodily or mental infirmit-
ies, (3) sentence to punishment for an offence of a nature disgrace-
ful to the name of the house and (4) interdiction as a spend-
thrift. These grounds relate directly to the house-head's authority
and indirectly to ancestor-worship and the necessity of maintain-
ing 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.
(Civil Code. Art. 979^'.
If, at the time of the death of a house-head, there is neither
a 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 "koiise-daughter," 2nd, brothers, 3rd,
sisters, 4th, the surviving wife who is not a Jiouse-daughter, and
63
finally 5th, the lineal descendants of brothers and sisters (Civil
Code. Art. 982).
Now, in this also, the 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 Jirsi 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 stand-
ing in the same degree of relationship (Civil Code. Art. 984).
If there are no other heirs above mentioned, the family
council must choose one from among other relatives of the last
house-head or members of his house, house-heads of branch-
house or members of principal or branch-house. If none of the
presons above mentioned be existing or able to succeed, then as
a last resort,. the family council may choose an heir from among
other persons (Civil Code. Art. 9S5).
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 becoming extinct; for with the
extinction of the house, the worship of its ancestors would come
to an end.
XVII. Property Succession. — The Recognition
of House -members Separate Property.
The second kind of succession, namely Property Succession
is a new institution introduced by the new Civil Code. Accord-
ing to the Code, Property Succession includes only the succession
to the property of a house-member on his death.
64
Before the Restoration, a house was in a strict sense a
corporation, and a house-member could not have separate proper-
ty of his own. All he gained he gained for the house-head or
rather the house ; all he possessed or enjoyed he possessed or
enjoyed by the license of the house-head, not as of right. No
question of succession to the property of house-members could
therefore arise at that time. But the Restoration completely
changed this state of things. It was one of the policies of the
new Imperial Government to appoint its officials not, as before,
on account of birth, but on account of personal merits, no distinc-
tion whatever being made as to whether they were house-heads
or house-members. Fomerly, it was only the house-head that
could hold public office. During the first years of the Imperial
Government, statesmen and soldiers who had served in the cause
of the Restoration were rewarded with life or perpetual annuities.
But many of them were not house-heads; some were " inkyo "
or house-members who had become such by abdicating house-
headship, others were younger members of houses. Now, tJiese
annuities and the salaries of civil and military officials being
given by the State for personal services or merits, could not be
treated as iLousc-property. Thus began the independent and
separate property of house-members, with the first great blow
which the old family system received at the hand of the Imperial
Government. It is interesting to note that this is exactly what
happened in the beginning of the Roman Empire, when castrense
pecliiim of filiusfamilias was recognized for military services,
and three centuries afterward giiasi-castrense pccliitm for civil
services.
The issue of a law in 1872, which abolished the prohibition
of the sale of land, and granted title-deeds to landowi:ers, the
issue, in the following year, of the government bonds for public
loans, and the establishment of Joint-stock companies and savings-
banks mark the next step in the development of the separate
6s
property of house-members. The courts of Law began to re-
cognize house-members' separate property hi the title-deeds,
bonds, stocks, debentures or savings which they held in their
own names, and thus individual property began to grozu up by
the side of house-property. But on the other hand, a Law (No.
275) was passed in 1872 to the effect, that the house-head
should not be liable for the debts contracted by house-members,
unless he became a surety to the contract.
Although the separate property of house-members was thus
established, the rule of succession was not settled until the pro-
mulgation of the new Civil Code. As a rule, the property left
by a deceased house-member went to the house-head. But here
again, the Code took a decided step and gave the right of suc-
cession to the nearest descendants equally, whetlier they 7uere
males or females, or ivhether they voere in the same house with
the deceased or not, the right of representation being always
given to the children of the pre-deceased descendant. After
descendants comes the consort ; next in order, the lineal ascen-
dant ; and as the last successor, the house-head. Other rules
relating to this kind of succession do not differ much from those
we find in Western countries.
By comparing the above mentioned two kinds of succession,
we shall notice that they present a remarkable contrast and' in-
dicate the transient stage in which the Japanese law of succession
finds itself. The rules relating to succession to house-headship
rest chiefly upon indigenous elements, while those relating to
succession to property are based principally upon Western ideas.
XVIII. Succession inter vivos.
Another characteristic of the Japanese succession law is the
existence of Succession inter vivos, side by side with Succession
&6
mortis causa. The succession which arises during the lifetime
of the person succeeded, takes place only with reference to stic-
ccssion to house- headship ; for house-headship may come to an
end either by a house-head's death or the loss of house-headship
during his life-time. Succession inter- vivos takes place in the
following cases : —
I. "Inkyo " or abdication of house-headship.
II. Loss of nationality by a house-head.
III. The marriage of a famale house-head.
IV. The divorce of a husband who has married a female
house-head.
V. When a house- head leaves the house in consequence of
the invalidation of his marriage or adoption.
I will explain each of the causes of succession inter vivos
in order.
i. " Inkyo" or abdication of house-headship.
Hou.sc-headship is not a lifelong authority. It may be lost
in several ways, the most usual of which is its abdication or
" inkyo " which literally means " living in retirement."
The origin of this custom has been sometimes ascribed to
Buddhism, but I have shown in a work especially devoted
to this subject (" Inkyo-ron " or " Treatise on Abdication "
1 891.) that this institution was originally derived from China,
and developed among us by the influence of Buddhism and
Feudalism. The abdication of house-headship may be
classified with reference to its causes under the following
four heads ; namely, i.st. Religious Abdication, 2nd, Political
Abdication, 3rd, Judicial Abdication and 4th, Physiological
Abdication.
(1) Rehgious Abdication.
After the introduction of Buddhism the practice, gradually
grew up, among higher classes, of withdrawing from active
life when any person attained " the age of retirement" which
67
was seventy according to the Chinese Ritual Code, and
closing his days in religious devotion as a hermit or priest.
Our history abounds in instances where ministers of state
tendered their resignations for the purpose of devoting the
rest of their lives to religious practice. As I have already
said, house-headship was rather an institution of public law
than of private law, and the resignation of office usually
brought with it the loss of house-headship. In later times,
the middle and lower classes, began to imitate the example
set by the heads of noble families, until it has become a
general custom among the people. Until recently, it was a
very common- practice for retired persons to shave their
heads, like Buddhist priests, in token of their having given
up secular business and of having embraced the religious life.
It was for this reason that the designation of " niudo-inkyo"
or "priestly retirement" was employed for this kind of
abdication.
This practice is very common among the Hindoo whose
life is distributed into three periods, namely the Student,
Householder and Ascetic periods. Minute regulations as
to the life of the ascetic arc contained in Hindoo lawbooks,
especially in the sixth chapter of the Code of Manu. Enter-
ing into a monastery seems to have had the same effect as
death in the early Germanic and English laws (Young's
Anglo-saxon Family Law, Co Litt. 133, Blaxland's Codex
leguni Anglicanarum p. 2r7.) and in the French law before
the Revolution (Zachariac, Franz. Civilrecht § i G2.), but
since the abolition of civil death in modern legal systems
succession inter vivos does not occur in European Families
of Law.
(2.) Political Abdication.
From an early period of our history, it was very common
for the upper and middle classes to resort to abdication for
68
various political reasons. Sometimes it was made use of by
unscrupulous minister of State or influential servants of Dai-
mios to deprive misters of their power, and put other
persons, perhaps puppets, in their places; sometimes, house-
heads retired in order to shift responsibilities to other
persons' shoulders, and wield real power themselves, or
pull strings from behind the curtain ; or sometimes they gave
up the worldly life and led the ascetic life out of political
discontent or disappointment.
(3) Legal Abdication.
I mean by legal abdication the compulsory loss of
house-headship by way of punishment or atonement for a
crime or other grave fault. Cases occurred very frequently
during the Feudil times, especially under the Tokugawa
Shogunate, in which a house-head was se;itenced or ordered
to abdicate as a punishment for his offence. Particular names
have been given to this kind of abdication, such as " Zaikwa-
inkyo " or " penal abdication "; or " Chikkyo-inkyo " or
" confinement abdication "; or " Tsutsushimi-inkyo " or
"reprimand-abdication." House-heads were also very
often forced to abdicate by the resolution of family councils
on account of their moral depravity, which made them
unfit for the duties of house-headship. Even in the
beginning of the present reign, this kind of abdication conti-
nued ; and Art. 14 of the Criminal Code of 1873 provided
that Kwazoku and Shizoku or nobles and samurais who were
guilty of crimes, involving grave moral depravity, should be
sentenced to the loss of house-headship, together with their
privileges.
(4.) Physiological Abdication.
The decay of physical or mental power either on account
of old age or ill health is the most common cause of
abdication. Manu says " When a householder sees his skin
69
wrinkled, and his hair white, and ihe sons of his sons, then
he may resort to the forest " (Manu. VI. 2.). As house-
headship was an institution o{ public Inw as well as of private
lazv, it involved not only power over the house-members, but
also many duties toward tlie stale, besides duties and
responsibilities toward the house-members, which were in-
cumbent upon that position. So, house-heads were
often obliged to retire from the active duties of family life,
when their age or state of health made them unfit for that
position. This was especially the case with the samurai
class dur'mgthe. Feudal period, when physical poiver was
e specially necessary for the discharge of in Hilary duties.
It is for this reason that .abdication came to be regarded as
an important and necessary institution, and lazus relating
to it made great progress under the military regime
of Feitdalism.
The rule with regard to the age at which a house-head
was allowed to abdicate was se-oenty before the establishment
of the Feudal System, which was the age of retirement
according to the Chinese Ceremonial Code (ISh|£). But
this age zvas loiuered under Feudalism and fifty was
fixed as the lowest limit of the age at which a hou.se-head
was allowed to abdicate without adducing any other reason.
But since the abolition of Feudalism and the establishment
of the conscription .sy.stem, which imposes military duty
irrespective of a man's position in the house, there is no
need to keep this low limit of age. Tlie new Code raised
it again and fixed it at sixty ; so that there have been
three changes as to the age of retirement, the ist being
seventy, the 2nd fifty and the 3rd sixty.
According to the new Code, a house-head may abdicate
when he has attained the age of sixty, but in case of a female
house-head , she may abdicate irrespective of her age (_Civil
70
Code. Art. 752 & 755.) In all other cases, the permission of a
court of law is necessary. Such permission is given, if a house-
head is unable to continue the management of the house
owing to one of the following cau.ses ; namely, sickness, the
necessity of succeeding as heir to the headship of the main
branch of the family, or of resuscitating it, the desire to entei
another house by marriage, or other unavoidable causes.
(Civil Code. Art. 753 & 784.) In both these cases, there
must always be an heir to succeed him in the headship of
the house ; for nobody but a person who has founded a new
house may abolish it, as the abolition of a house would bring
with it, in other cases, the extinction of the worship of the
ancestors. (Civil Code. Art. 762 & 763.)
ii. Loss of Nationality.
The house system is a national imtitution, and foreigners
not being considered as belonging to any house, the house-
headship necessarily comes to an end when a house-head
loses his nationality, by naturalization or other causes men-
tioned in the Law of Nationality (Law No. 66. 1899); just
as a 'Roma^n pa/ frfainilias lost \vv~, patria potcstas on account
of the loss of citizenship by undergoing media capitis diiii-
iniitio.
iii. The Marriage of a Female House-head.
According to Art. 736 of the Civil Code, if a female house-
head marries, the husband enters the house of his wife, in-
stead of the wife's entering the husband's house according to
the usual rule, and at once becomes the house-head, unless
the parties concerned expressed a contrary intention at the
time of marriage. Thus successsion inter I'ivos to the house-
headship occurs in case of the marriage of a female house-
head.
iv. The Divorce of a Husband who has married a Female House-
head.
71
As the husband entered the house and has become the
house-head in consequence of the marriagCj he leaves the
house by divorce, and at the same time loses the house-
headship. Thus divorce in this case becomes a cause of
succession inter vivos.
V. Invalidation of Marriage or Adoption.
If a man who married a female house-head, or an adopted
son or daughter has become a house-head, and the marriage
or the adoption is invalidated for one of the causes mentioned
in the Code, the husband or the adopted child leaves the house
and the house-headship is lost. In this case, as the invalida-
tion has no retrospective effect, the preceding house-head,
though alive, such as the wife or the abdicated adoptive
father, does not recover the house-headship as if there had
been no marriage or adoption, but the rules of succession
apply just as in the case of death.
The above enumeration of the causes will show that succes-
sion infer vivos, which is not usually found in modern laws, occurs
very frequently under the present Japanese law.
XIX. Conclusion.
I hope I have been able to show, to some extent at least,
that the new Japanese Civil Code furnishes valuable materials for
students of historical and comparative jurisprudence. The Codi-
fication was the result of the great political and social revolutions
which took place within a comparatively short period. The
Code embodies in itself archaic and modern elements on the
one hand, and Eastern and Western elements on the other.
Within the past thirty years, Japanese law has passed from the
Chinese Family of Law to the European Family ; the notion of
right was introduced ; woman's position was raised from a condi-
tion of total subjection to one of equality with man, as far as 'pri-
vate rights are concerned ; the status of foreigners advanced from
the stage of enmity to that of equality with citizens ; the family
system was greatly modified ; the separate property of house-
members began to be recognized ; and property succession has
come to exist side by side with the succession of house-head-
ship.
Comparing the new Japanese Civil Code with Western
Codes, we observe great similarity between them in the first
three Books relating to General Provisions, Real Rights and
Obligations respectively, but great difference in the last two,
which relate to Family and Succession. Of the first three
Books, the law of obligations may be said to be entirely Occident-
al. That part of law may indeed be said to be in a sense cos-
mopolitan, the laws of different countries exhibiting a relatively
small amount of variation in this regard. The law of obhgations,
therefore, has the greatest propagating capacity and is generally
first received in other countries. Next comes the law relating to
movables. But land is usually so bound up with the public policy
and local conditions of a country, that we usually find much di-
vergence in the laws relating to immovables in different countries.
The laws relating to Succession and Family, depending, as they
do, upon the national character, religion, history, traditions and
customs, show the least capacity for assimilation. So, the usnal
order of assimilation, or reception of foreign laws is, (l) Law of
Obligation (2) Law of Movables, (3) Law of Immovables, (4) Law
of Succession and Family.
I have not touched upon those parts of the Civil Code, which
relate to Obhgations and Rights in rem, because the rules relating
to these parts are mostly derived from Western jurisprudence and
will present little that is novel to a European or American audience.
I have confined my remarks, therefore, to thoss parts in which the
indigenous element is usually most persistent. I have shown
71
that even in these, we have made great reforms since the opening
of the country to foreign intercourse. During the last thirty
years we have been trying to adopt from Western civilization
whatever seemed to us best fitted for the progress of the country.
We now possess a Civil Code based upon the most advanced
principles of Western jurisprudence. But the Code is only a
framework or skeleton of law. What supplies flesh, blood and
sinews to it is the integrity and learning of the Bench and the
Bar, and the law-abiding habit of the people. But, above all, the
fountain-head of legal improvement is legal science. Law is na-
tional or territorial, but the science of law is universal, and is not
confined within the boimds of any state. We have profited in the
past by the work of scientific jurists of the West, and we must
look, in future, to the mutual assistance and co-operation of tlie
scientific brotherhood of the world.
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