NORTHWESTERN
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The Gift ot
'Irs. John H. Wigmore
NORTHWESTERN UNIVERSITY SCHOOL OF LAW
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TRANSACTIONS
OF
THE ASIATIC SOCIETY
OF JAPAN.
VOL. XIX. PART I.
CONTENTS:
Page
The Depth of the Pacific off the East Coast of Japan, with a Comparison of other
Oeeanic Depths. (With Map.) By George E. Belknap, Rear-Admiral, U.S.N.... i
Mental Chaiacterlsiics Of the Japanese. By Walter Dening 17
Notes on Land Tenure and Local Institutions in Old Japan. Edited from
Posthumous Papers of Dr. D. B. Simmons. By John H. Wigmore 37
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\
-ZZTnj^
NOTES ON LAND TENURE AND
LOCAL INSTITUTIONS IN
OLD JAPAN,
Edited from posthumous papers of Dr. D. B. Simmons.
by
John H. Wigmore.
[Read December loth, 1890.)
CONTENTS.
Paoe.
I. Preface by the Editor 37
II. Notes of Dr. Simmons 49
I, Introductory.
1. The spirit of local institutions 49
2. Local government from above 51
II. Land law.
1. Division of territory 64
2. Size of holdings 67
3. Classes of land 77
4. Classes of landholders 78
5. Mortgages 88
6. Succession 90
III. Local rural institutions.
1. The mura in general 92
2. The gonin-gumi system 95
3. Mura officers ...100
4. A/«m written laws 113
5. Mura taxes 115
Page.
6. Local justice and procedure
7. Temple administration ,..129
8. CLarity ^3°
9. The family ^3^
IV. Serfdom and the yeta
classes,
1. Early serfdom • 133
2. The yeia classes 141
III. Summary by tle Editor 149
IV. Appendix 177
I. Specimens of kuiiii-chd
II. Other laws for mura 211
III. House communities in Hida 217
IV. Complaint of farmers, 989 A.D 221
V. The military system of early Japan 224
VI. Rules in regard to the station in life {hnngen)
of farmers 228
VII. Early Japanese civilization 239
VIII. Map of a mura 247
I. PREFACE BY THE EDITOR.
The character and career of Dr. Duane B. Simmons, the
author of these Notes, are too well known to residents of
Japan to need any preliminary notice. For the benefit of
others, however, it will be necessary, before referring to the
Notes themselves, to speak briefly of the personality of
their author.
Dr. Simmons was a native of Glens Falls, New York,
and was born about 1834. He began his medical education
in 1852, studying in his native town with Dr. M. S.
Littlefield. He then spent two years attending medical
lectures in Albany, and in 1854 went to New York, where
he graduated, in 1855, at the College of Physicians and
Surgeons. The next year he served as Assistant Surgeon
at King's County Hospital, and the year 1856 was spent
in medical studies at Paris and in travel on the Continent.
On his return he settled in Williamsburgh, New York, to
follow his profession; but in 1859, feeling (as his diary
says) that his sphere was too limited for his temperament,
he accepted an offer to accompany as surgeon a missionary
body sent out by the Dutch Reformed Church of New York.
From November 2, 1859, when he landed in Kanagawa, he
made his home in Japan, practising his profession and
becoming undoubtedly the most eminent physician in
the country, and perhaps (among the Japanese, certainly)
of all foreigners the one whose name was best known.
During an absence of a year or so, in 1862-3, he took the
opportunity to continue his medical studies in Berlin,
under Virchow and von Graefe. In 1869 he was offered
the directorship of the Imperial Medical School and
Hospital, then newly established in Tokyo, but for some
reason it was declined. Not long afterwards he establish¬
ed the Juzen Hospital in Yokohama; and the instruction
38 SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS.
which he offered to voluntary classes of Japanese practi¬
tioners was of lasting benefit to the cause of medical
education here. In addition to the duties of this post, he
filled the positions of Sanitary Adviser to the Provincial
Government, Sanitary Inspector of the Port, Surgeon to
the Police Hospital, and Chairman of the Foreign Board
of Health. In 1877 cholera was under his direction
treated for the first time in Japan with the methods of
modern sanitary science. In 1881 his health broke down,
and he returned to America. But after a few years'
absence his love for Japan proved irresistible, and he
returned to its shores, with his mother, in 1887, his plan
then being to spend the best part of his time in the study
of Japanese social institutions during the feudal period.
With this object he began, with some system, to seek
information from the scores of educated Japanese whom he
counted among his friends, to have books translated, and
to make copious notes upon a wide range of subjects. At
the end of 1888, however, aggravated symptoms appeared
of Bright's disease, which had long threatened him. He
began with new vigor to arrange the materials he had been
collecting, but it was now too late, and in February, 1889,
he passed away.
Among the Japanese his friends could be numbered by
the hundred,—cabinet ministers, government ofhcials,
doctors, priests, scholars, local officials, farmers, mer¬
chants, rich and poor, old and young. His travels in the
interior made him known everywhere among the people,
and his medical services, usually gratuitous, caused him to
be remembered by them. It has been said that there was
hardly a village in Japan where he did not have a friend or
an acquaintance.
He was loved by the Japanese who knew him as no other
foreigner in Japan, with perhaps one or two exceptions,
ever has been. It was the earnest request of his Japanese
friends, after his death, that they alone might have the
privilege of following his body, as it was carried from his
house in Tokyo to the railway station; and the hundreds
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. 39
who joined the procession formed a gathering of eminent
men in ail departments of life such as probably never
occurred before in the capital.
During his twenty-five years' residence he was continu¬
ally making inquiries and absorbing information. His
sympathy had the widest range, and his queries embraced
innumerable subjects, from daimyo to beggars, from games
and festivals to crime and immorality. In later years
it would seem that his chief interest lay in the direction of
land tenure and local institutions, which form the principal
subjects of the Notes here collected. His reading on those
topics was, perhaps necessarily, not extensive, and his
eagerness to explore each new subject that opened before
him resulted continually in unfinished work which lacked
the scientific value that it might easily have had. He had
the enthusiasm for facts as facts which characterizes the
true scientist, and it seems to have been an excess of
the same quality which has deprived his study of the
stability and coherency that it should have had. He
himself recognized the direction of his failing. During
his last year or two, he often expressed a hope that some
younger man, some one with a fresher acquaintance with
modern science and with a capacity for systematization,
would come across his path and would share his labors,
moulding into form the material, written and unwritten,
which he had collected, and carrying out the unfinished
investigations which he had begun. Undoubtedly this
was exactly his need ; and undoubtedly, through his failure
to meet with such good fortune, science has lost irretriev¬
ably. The man was unique, and his opportunities were
unique, and the portion of knowledge which is contained in
these Notes and in his still unpublished manuscripts, is,
' like the unsubmerged peak of an iceberg, but a small
portion jof what might have been secured for science.
Of the special opportunities which he had for observing
and investigating, he himself writes as follows : " The
social and domestic condition of a people can only be
studied by a long life among them and by actual residence
4Q SIMMONS & WIOMORB: LAND TENURE & LOCAL INSTITUTIONS.
for a longer or shorter time in some of their representative
households. My long residence in Japan afforded me
frequent opportunities for doing this. My knowledge of
the language and my profession of physician brought me
on these occasions into the most confidential relations, dis¬
arming suspicion, relieving from restraint, and thus enabling
me to arrive at facts and conclusions which under less
favorable circumstances would have been sure to be marred
by exaggerations on the one hand and by concealment on
the other. One of the most remarkable features in the
rapid development of progress in Japan was the eagerness
with which all classes and more especially the higher and
educated sought the advice and aid of foreign physicians.
For many years in charge of one of the largest hospitals,
my opportunities for becoming familiar with all classes of
the people were exceptional. Certain families were in the
habit of coming long distances almost every summer to
my Hospital and of taking rooms and living in it as if at
a sanitarium. With many of them I formed lasting
relations of friendship, and was frequently inyited to come
to their homes and stay as long as my convenience and
inclinations dictated. Some of these invitations were
gladly accepted from time to time. Whenever journeying
in the country I constantly met old familiar faces of whose
whereabouts I had had no knowledge. My arrival in a
village, especially if I remained all night, was sure to be
the occasion of a general reception from old patients and
their friends, partly complimentary and partly to obtain my
medical advice. Among them most conspjfuous would
be the village doctors. Some of them had been my
students; others had on various occasions brought their
difficult cases to me for consultation. In this manner
I became acquainted with the domestic and social life of
the rural population and the large landed proprietors.
" Much in the same manner I was brought in contact
with the higher and ruling classes. As one of two or
three pioneers of western medical science, the gates of
feudal lords were thrown open to me,—gates which had
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
41
ever been closed against the foreigner, and within which
all was deep mystery to those who came here from the
western world during the centuries of Japanese national
hermitage. By frequent visits to these families, I was
enabled to see and study the social life of old Japan in
places where the customs and usages of centuries past
were preserved in all their purity. The opportunity was
well timed, for already there had begun to appear the signs
of a civil strife resulting ultimately in overthrow and
destruction so sudden and so thorough that at this date
only a trace remains of the pomp and circumstance of
feudal pride."
Of the passing away of the old customs and of the
necessity for a diligent and speedy use of fast disappearing
opportunities, he says; "Some of the most attractive
subjects to the student, the organization of society, the
institutions of the family, and especially the system of
rural government forming the whole superstructure on
which the nation was built, have in Japan up to this time
been comparatively little studied by foreigners. This is
chiefly due, first, to the difficulty of investigating without a
good knowledge of the language, and, secondly, to the
want of opportunities, by close relationship with the people,
to appreciate the spirit as well as the form of their institu¬
tions. But the subject of the laws and customs of old
Japan is fast becoming a matter of history only. Since the
abolition of feudalism in 1871 and the restoration of the
Mikado to power, great and marvellous changes have been
going on in the social and political condition of the country.
The historic oriental forms of social life and government
are being as fast as possible remodeled on western princi¬
ples, and if the present rate of change continues, the time
is not far distant when the main features will have disap¬
peared or will have become so modified by mixture with
western* ideas and methods that it will be difficult to
separate the old from the new. Already there is a
younger generation ignorant of most of the customs charac¬
teristic of the feudal and rural life of old Japan. Not even
42 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
the names of the books from which chiefly I have drawn
my information are known to the younger educated Japan¬
ese. Their contents are known to but few of even the
older Japanese. Many of the written laws especially, and
the records of the customs on which they were based, were
till the fall of feudalism preserved in manuscript form only,
and of these manuscripts numbers are now to be found
only after much search in old booths or junk shops where
they are held at a value little more than that of waste
paper. Even though these may be rescued and preserved
for the use of future students of Japanese history their
extreme brevity and simplicity will fail to convey the spirit
of the institutions and customs of the times to which
they refer. The present day therefore is one of great
importance in researches of the kind. Now the living
representatives of the past times may.be reached; now the
opportunity exists for personal inquiry from those who
were not only familiar with the laws and customs of those
times but who were, as officials, the only possessors of the
manuscripts containing the records, laws, and decisions.
Some of these persons I am fortunate enough to number
among my friends, but their gray hairs and tottering steps
warn me that no time is to be lost if this source of
information is to be utilized. In addition to this, the fact
that I am one of a dozen at most of living foreigners who
have been actual observers of the forms of society and
government in old Japan makes me feel still more the im¬
portance of pushing on with the work which I have under¬
taken. In what I write I shall not preten^ to have ex¬
hausted the subject, but shall aim only to give a brief
outline of it in a connected form as a basis for farther and
more extended observation by myself and other more able
students."^
I. The author of the Chiho Seido-tsu says : " All intelligent people
regret keenly the sweeping away of ancient customs that ensued after
the Meiji Restoration. Good or bad, they were all included, on the
score of being opposed to free institutions. There were numerous
customs, which performed an important service in preserving social
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.' 43
He felt a natural satisfaction in the fact that he was the
first to study these phenomena of local institutions and to
bring to light facts of such interest and importance to
science. "As showing the great importance and value to
the student of anthropology of the Village Communities
wherever they are still living institutions, Sir Henry Maine
remarks in his'Village Communities:' 'For many years
the discovery and recognition of the existence of the Village
Communities of India has ranked among the greatest
achievements of the Anglo-Indian Government.* I must
admit, therefore, that it was with no small degree of satis¬
faction that I discovered, now some years ago, the Village
Communities of Sir Henry Maine to exist in Japan. I say
'discovered,' because I am not aware that they had been
recognized by any previous observer. Be this as it may, it
matters little to me, as long as I have at last the leisure and
the opportunity for their stud}'." This was written shortly
before his death. While it is necessary to refuse assent
to. the exactness of the parallel here predicated between
the Japanese community and those sketched by Sir Henry
Maine, it is perhaps not an exaggeration to say that the
study of the Japanese Village Community approaches if
not equals in scientific importance that of any other such
communities outside of Western Europe.
It is unnecessary to speak here of the circumstances
under which his manuscript came into the hands of the
order, but these were carried away in the general inundation, side by
side with the really pernicious institutions. Among the former were
the observances in regard to the common meadow and forest land.
These, before the Restoration, were public property of mtira, han, etc.,
and were preserved from destruction by salutary regulations. But after
that great event the authority of the old rules was weakened, and evil
consequences followed. Now that the hand of control was loosed,
people began to act as their wish dictated. Before long the subdivision
of commons, even their sale, came to pass. It is much to be lamented
that at thi present time little or no trace of the old law on this subject
can be found. Here and there, in tnnra lying in mottntainous districts,
some traces remain, for the people of the mountains are conservative in
their nature, and are not ready to suffer sudden changes in their old
customs."
44 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
editor, except to say that it was by the kind permission
of those who had the authority to dispose of it. A few
words, however, must be said about the material for the
Notes. The manuscript left by Dr. Simmons included
nearly one hundred notebooks and packages of loose papers,
containing memoranda, jottings, extended notes, half-begun
articles, plans for books and essays, etc. etc., covering
scores of topics, and utterly without index or arrangement.
It was necessary to find out what portions of this material
were homogeneous, and then to extract and arrange
selected passages, and to attempt to put them in a form fit
for publication. One result of this condition of things was
that the material going to make up these Notes was found
scattered in perhaps a thousand separate passages, now
woven into continuous text, and that the editor has been
obliged to take the responsibility of arranging this material,
of correcting hastily written passages, of amplifying memo¬
randa, and of condensing the frequently occurring repeti¬
tions. The hasty and unfinished nature of the writing
made this in most cases a necessity. It was thought better
that the reader's attention should, if possible, not be dis¬
tracted by formal inadequacies which the author, had he
lived, would never have allowed to remain. For the sake
of presenting the individuality of the author as closely as
possible, much has been retained the form of which did not
commend itself to the editor personally. On the other
hand, perhaps one third of the whole material is in the
language of the editor ; though for the sake of the credit of
the author it is to be regretted that it was impossible clearly
to distinguish those passages for the wording of which the
editor alone is responsible. Another consequence of the
chaotic condition of the papers is that it is out of the ques¬
tion to make certain distinctions bearing on the scientific
value of the statements made, (i) It was impossible, in all
but a few minor instances, to assign dates to passages ; that
is, to ascertain whether they represented the earlier or the
later views of the author. (2) It was next to impossible to
determine whether a given passage was based on observa-
SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTtONS. 45
tion, on the translation of a book, or on statements by
Japanese friends, and, in the last case, to determine the
source of the statements. This drawback is of the less
consequence, however, for this reason. On the subject of
local institutions and land tenure. Dr. Simmons' customary
informant (other than his provincial friends, ex-officials,
etc.) was a Japanese scholar, Otomo Rokujiro by name,
occupying a high place, though not the highest, as a
student of those subjects. This scholar- (whom he calls
" my teacher " in some passages) gave him the full benefit
of his researches and attainments. The largest part of
these Notes may be taken as based on the authority of Mr.
Otomo, or of Japanese books translated by him for Dr.
Simmons and therefore stamped with his authority. Mr.
Otomo died a few months before the author of these Notes,
and we are unfortunately left without the light which he
could throw on the sources of information in detail. Mr.
Fukuzawa, who lent Dr. Simmons a number of Japanese
books and shared his interest in the subject, had no direct
companionship in his studies, and can give no help on this
point. (3) Many obscurities remain, which no collation
of passages and no effort at inference can dissipate. These
must be accepted as inevitable.
The Japanese works on which Dr. Simmons seems to
have drawn most largely were two; i) Jikata Hanrei-
roku (collection of provincial regulations), a work con¬
taining a great deal of miscellaneous information on the
subject of local rural institutions. Written at some
unascertained time by Oishi Ijuro, a scholar of some
standing and a local official of Takasaki Han, who died
about 1794, it was first brought to light about 1840, when
Mizuno Tadakuni, a feudal noble, made an effort to
collect rare and valuable books. A scholar named
Tojo KQ (using the ncm de plume of Kintai) formed the
intention of revising and completing ity, but political
imprisonment interfered with his purpose and it was not
carried out until 1871, when the completed work was
published in twenty small volumes. It is probably the
46 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
best known,book on the subject, and the amount of original
material which it contains makes it particularly valuable. 2)
yikata Ochibo-shu (collection of fallen rice-ears in the
provinces), an anonymous collection of notes on land
tenure and local institutions, written about 1799.
From one point of view these Notes have the highest
importance. They mark the first step in the study of
local institutions in old Japan, and they have opened the
way for more extended study. They are largely the results
of investigation made on the spot and under specially
favorable opportunities, and may be taken to represent, in
any given instance, the actual practice among the people,
rather than the theoretical rule. From another point of
view the value of a large portion of them is but temporary
and their authority only provisional; for later students will
be able to consult much better written authorities, to reach
wider conclusions, and to construct sounder theories. In
any case we must be deeply grateful for the enthusiastic
spirit and the sympathetic observation which has given
us this valuable nucleus and has made us aware of the
richness of the field of investigation.
The foot-notes are invariably those of the editor. The
Japanese authorities there cited are as follows: i. The
Chiho Seido-tsu, an account of the local government
system of old Japan, in two volumes, written about 1878.
The author is said to have been a Mr. Murata, of the
Genroin (Senate); the copy used for reference was in
manuscript, and is the only one known to the editor;
2. The Sendai Han Gun-shi-son-cho Seidq^ko, a manu¬
script account of local government in the fief of Sendai,
written within recent years by officers ot the new province
of Miyagi (which contains the town of Sendai), under the
direction of Mr. Yamada: 3. The Yamato Hansei, a
manuscript volume, copied from a manuscript now at the
Nara Giin-yakusho (office of Nara county), giving a short
account of the local institutions in the old province of
Yamato. The authors were certain officials of the Gun-
yak usho : 4. The Den-yen Jikata Kigen, an account of
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
the origin and history of various institutions connected
with land tenure; written by Mr. Asakawa Teigo, and
existing only in manuscript: 5. The Dai Nikon Fudosan,
a history of real property in Japan down to the time of the
Restoration ; written in 1888 by Mr. Yokoye Tokifuyu,
a Tokyo scholar of eminence: 6. The Minji Kwanrei-
ruishu, a collection of local customs relating to land
tenure, contracts, etc., made about 1878 by officials in the
various provinces under the supervision of the Shiho-sho
(Department of Justice): 7. The Shoyen-ko, a history of
shoyen or manors, by Mr. Kurita Kwan, of Mito.
The first four were kindly loaned for translation by
Mr. Matsuzaki Kuranosuke; the sixth by Mr. Ishii.
For the translation of the third and sixth of these the
editor is indebted to Mr. Ushiba Tetsuo, a student of the
School of English Law; of the first, fifth and seventh, to
Mr. Nagashima, a recent graduate of the Keiogijuku
College; of the second and fourth, to Mr. Kambe Torajiro,
a student of the Law Department of the Keiogijuku
University; and for the translation of the fourth Kumi-cho
in the Appendix to Mr. Ishii Kikujiro, a graduate of the
Law Department of the Imperial University. For explana¬
tions on many points of translation there is a special
indebtedness to Messrs. Ushiba and Ishii. Several Japan¬
ese scholars of high rank have also been consulted for
criticism of the conclusions reached by Dr. Simmons, and
where an opinion was of special consequence it has been
mentioned. Chief among these were Mr. Konakamura
Kiyonori, professor of Ancient Japanese Law in the Im¬
perial University, and one of the three or four leading
authorities upon the subject; Mr. Kurita Kwan, curator of
the Shoko-kwan Library at Mito, editor and reviser of the
national history Dai Nikon-ski, and author of numerous
works (^n old Japanese law and custom; Mr. Miyazaki
Michisaburo, professor of Roman Law in the Imperial Uni¬
versity, and a thorough student of early Japanese institu¬
tions; Mr. Matsuzaki Kuranosuke, assistant professor at
the Imperial University and one of the best of the younger
48
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
Japanese scholars; and Mr. Komeyama Yasusuke, professor
of Old Japanese Law in the Keiogijuku University. It is
a matter of extreme regret that there does not exist among
these and other scholars, foreign and native, greater
co-operation in the investigation of early and mediteval
institutions.
For the meanings of the various Japanese terms the
editor and his translators are responsible, though for con¬
venience sake the meanings are usually placed in the text
itself. Thanks are due for assistance in this matter and
in that of etymologies to Mr. J. H. Gubbins, the learned
Japanese Secretary of H. B. M.'s Legation.
A table of equivalents for Japanese measures is here
appended for reference.
I ri —
I cho =
I ken =
1 shaku =
I ri =
I cho =
I tan =
I tsubo =i
I kokn =
J to =
I sho —
I go =
2.4403 miles
357.92 feet
1.9884 yards
11.9305 inches
5.9552 square miles
2.4507 acres
0.2451 acre
3.9538 square 3'ards
4.9629 bushels
.496 bushel
.1985 peck
.0199 peck
- Linear measure.
>
- Square measure,
\
II. NOTES OF DR. SIMMONS.
/. INTRODUCTORY.
I. The spirit of local institutions.
We think of government as a kind of instrument or
machine for making laws, and, when they are made, as
charging itself with their enforcement. In fact not an
inconsiderable portion of society in the West regards, the
law as its enemy. In old Japan societj' was a law to
itself. Its civil rules went out and up from the people
instead of down and upon them. Customs matured by
centuries of growth and experience took the place of writ¬
ten codes of laws (except in the case of criminal laws)
and a system of arbitration took the place of courts,
judges and lawyers. The rural communities were highly
organized and within certain broad limits were indepen -
dent and democratic in the conduct and administration of
their municipal affairs. The government of these was
social rather than political, their head men advisers, not
rulers, arbitrators, not judges.
The governmental methods of rural Japan were a
product of the growth and development of tribal customs
and usages, modified by edicts and laws promulgated at
various epochs from the central sources of power, the
Mikados and the Shoguns or military chieftains. The
customs and laws of the village communities as they
existed before the restoration of the Mikado (1868) had
their origin in three sources; ist. The traditions and
customs of the early periods ; 2nd, The beliefs and practices
importe^and developed by the Buddhist missionaries ; 3rd,
The edicts promulgated from time to time by the Mikados,
Shoguns, and daimyo. It seems to have been the policy
of the Shoguns (the originators of military rule), commenc¬
ing with Yoritomo, to change as little as possible, when
50 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
coming into power, the laws and customs affecting the
agricultural population. Especially was this the case
with the Tokugawa Shoguns, the general principle being
carried out that any custom of the rural districts which
had existed for 50 years or more should be respected and
recognized as law. This points to a conclusion just
opposite to what has been often asserted, that the laws
governing the Japanese people were unknown to them,
their perusal being allowed only to the Go-roju or Council
of State. The fact is that the Go-roju was more a
high court of appeal from the decisions of the rural and
municipal chief magistrates than a source from which laws
were promulgated for the people at large. The laws for
the government of the feudal lords and their retainers
(with which, of course, the people had little or nothing
to do) must not be confounded with those affecting the
common people, especially the laws relating to titles to
land, to the collection of taxes, to irrigation, and to the
thousand and one questions involving the . rights and
privileges of an essentially agricultural community. Instead
of there being an ignorance of the laws and hence of indi¬
vidual rights, there was probably no country in the world
where the mass of the people, down to the smallest farmer
in the possession of a few square yards of land, were
more familiar with their rights and duties than in Japan.
In fact it will be seen that in a vast majority of cases
the people themselves, by means of a system of arbitration
which they were encouraged to employ instead of appeal¬
ing to the established courts, were the executors of their
own rights.
There was a 'Ky0X0 sa.y\ng " Tenka-hatto, mikka-hatto'"
—government-made laws are but three-day laws. All
laws, that is, and all officials are constantly changing, are
not fixed on solid ground. The government of the people
by themselves—mura-ho, village rule, cho-hd, town rule,
ka-ho, family rule—these are the true sources of order, of
the permanent and deep-seated modes of action which
constitute true government.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
51
2. Local Government from above.
The whole organization of the government^ was based on
a plan of national and social economics having no parallel
in any other country in the world. This we find especially
marked in the administration of the agricultural districts.
Having decided, especially since the commencement of the
Tokugawa regime, on a policy of seclusion and of non¬
communication with the rest of the world, the problem
gradually evolved as to how a constantly increasing popu¬
lation on a comparatively small space could be kept sup¬
plied with the necessities of life. It i-s doubtful whether
this problem was completely formulated by the founder of
the 270 years dynasty. But the plan having been adopted
of isolation, of permitting no emigration or immigration,
no commerce, no exchange of hand labor or machinery for
products of other countries, «the solution of the problem
developed by successive gradations and gave rise to certain
natural expedients for effecting the purpose. The pro¬
found peace eliminated the destruction of life in battle and
the various concomitants of war and want. The laws
enforcing storage of rice and other products, against the
accidents of failure of crops, etc., tended to counteract the
opposing tendency to over-population.
The result was a wonderful system of agriculture and an
economical use of the products of the soil and the necessities
of life. One of the fruits of this is seen in the simplicity of
the dwellings, mode of life, etc., which is still to be obser-
2. A fact to be kept in mind in studying the political institutions of
Old Japan is the separate and distinct character of the life of the com¬
mon people and that of the rulers. The distinction has until recently
been so much neglected that it can hardly be too much emphasized
now. It was clearly recognized by Dr. Simmons, and was always pre¬
sent in his mind. In order, therefore, to understand where the line of
separation (of course not by any means a sharp one) began to be drawn,
it was thofight best to place first those portions of the Notes giving an
account of the local officials of the feudal lords and the central Govern¬
ment, and of their functions; the reader then passes to the portions
bearing more directly on the land laws and the internal aspect of local
life.
52 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
ved. In most other countries simplicity of life has tended
towards carelessness and neglect of cleanliness, but here
the opposite is the case.
The chief local administrative official was known as
gundai (district-deputy) or daikwan (deputy-official). These
were appointed by the central government, whether Shogun
or daimyo. They were in reality different grades of the
same office. The district under them was of varying size.
For the daikwan it ranged from an assessed production of
50,000 koku of rice downwards. For the gundai it ranged
from 50,000 to 100,000 koku? In the daimiates the officer
was sometimes called kori-bugyo?
The office may be briefly described as that of revenue-
officer-in-chief of the executive authority, judge in criminal
cases, and court of appeal in civil cases. The house of the
daikwan with jail, office, and ^ourt room, was caWadjin-goya
{ov jin-ya) or camp (lit., army-little-house). The assistants
were taken from the merchant class, because of the experi¬
ence of such persons in money matters. The staff of a
daikwan, in a 50,000 koku district, averaged eighteen men,
with, say, seven more as staff-bearers, etc. The salary of
the position varied in different places from 136 to 556 koku
per annum. The assistants received no fixed salary, but
were allowed a compensation at the end of the year.®
3. In Koriyama Han (Matsudaira Kai no Kami) the three daikwan's
districts included 65, 62, and 65 mnra respectively (Yamafo Hansei).
In the district of the daimyo Yagyu Tajima no Kami, which was no
more than 10,000 koku in size, there were foax daikwan (Yamato Hansei).
It was not always, perhaps not usually, true that tjjese offices were
the same, varying in name only according to the size of the district.
In a number of instances the gundai was at the head of the administra¬
tion, with one or more daikwan under him. This was so in Koriyama,
in the territory of Tajima no Kami, in that of Izumi no Kami [Yamato
Hansei), and in Sendai Han (Sendai Han Seido-ko).
4. District-superintendent. Kuri and gun are the respective Japanese
and Sinico-Japanese terms, and are expressed by the same ideograph.
5. In the Chiho Seido-tsu the constitution of the daikwan's office is
described as follows: " In the office of the daikwan were the following
officers. I. Daikwan. He was appointed by the Bakufu, (a name for the
Shogunate) and had full control of the subordinates. His salary, 84
SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS. 53
The first daikwan under the Tokugawa rule were Ina
Bizen no Kami and Hikosaka. They were celebrated in
the history of the country as the organizers of the Toku¬
gawa system of taxation and agricultural adminstration.
This system, first applied in the territories of the Toku-
hoku yearly, was paid by the Bakufu. 2. Motojime-tedai (source-office
deputy). These were 2 in number, and had charge of hnancial matters,
under the direction of the daikwan. The salary was 52J hyd (bundles)
of rice (i hyd^ahont two fifths of a koku). 3. Hira-tedai (common
deputy). These were 8 in number and had charge, under the direction
of the daikwan, of miscellaneous matters. The salary was 20 ryo of
money and 18 hyd of rice (for one grade), 15 ryu of money and 13J hyu
of rice (forthe other). 4. Kaki-yaku (writing office). These were 3 in
number, and their occupation was the writing and copying of letters.
The salary was 7 ryd of money and 9 hyd of rice. 5. Yd-nin (chamberlain,
more literally, business-person). This officer attended to the house¬
hold affairs of the daikwan ; his salary was 7 ryd of money and 9 hyd of
rice. 6. Samurai. Three samurai attended the daikwan constantly, to
do his bidding. The salary was 4 ryd of money and 4J hyd of rice. 7.
Chiigen (servant). Seven of these servants waited on the daikwan.
The salary was the same as that of the samurai."
The statements of Dr. Simmons as to the supplies of the office are
apparently based on an imperfect reading of the yikata Hanrei-roku, and
may be corrected by comparison with the following quotation from
the Chihd Seido-tsu. " If we take a district of 50,000 koku, the total
amount of supplies from the Bakufu for that office would be yearly 550
ryd of money and 315 hyd of rice, the rate being no ryd and 63 hyd for
every 10,000 koku of assessed value. Districts of less than 30,000 koku
but more than 10,000 kokxi were to receive the supplies of districts of
30,000 koku. Districts of less than 10,000 koku but more than 5000
koku were to rank as of io,oco koku. For every 10,000 koku over
50,000 koku, an extra supply of 50 ryd and 81 hyd was granted. But
this schedule applied only in the region east of Harima; west of that
the rate was as follows : In the districts called Sanin-do, Sanyo-do, and
Nankai-do, for every 10,000 koku, 124 ryO and 63 hyd \ in the district
of Saikai-dO (Kyushu), for every 10,000 koku, 140 ryd and 63 hyd."
Apparently there must have been some conversion of money into rice,
for the sum total of the Bakufu allowance does not tally exactly with the
sum of tHI salaries above described. There was doubtless a large
margin in the allowance which went to pay for incidental expenses, and
perhaps in some cases to line the daikwan's pockets.
It must be added that in Dr. Simmons' statement the salary of the
daikwan is evidently confounded with the supplies of the office.
54 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITU.TIONS.
gawa family, was afterwards adopted throughout the domi¬
nion of the Shogunate, and was imitated in the domains of
daimyd and temples. Hikosaka afterwards became gover¬
nor of Yedo, and developed a general system of city govern¬
ment which was retained in all important features until the
Restoration of Meiji.
The office was generally hereditary, usually in an old
family of the locality. Still the length of any one incum¬
bency was about five years only. Usually a small hatamoto,
often a goshi, occupied it. The occupant was never called
on to do military service as a bearer of arms; he served, if
at all, only as commissariat officer. The directions given
in the Jikata Hanrei-roku are that these officials should
be men trained to the keeping of accounts, should have a
general knowledge of civil and criminal law, and should be
familiar not only with the customs of the locality over
which they presided, but also with those of adjacent regions.
Their education was especially in the line of finance, par¬
ticularly in early times. Other than themselves and the
bozu (priests) few had education enough to fill the position
of tax collector and accountant. Thus they really formed
a special class trained for this life.
The office was not subject to political jobbery, I am told,
though there is reason to believe that this was not always
the case. The position was in some degree patriarchal in
the respect which it received, and though its incumben ts
were subject to removal for corruption and bad manage¬
ment, such an occurrence was comparatively infrequent.
As has been said, the policy of the Tokug«wa Shoguns,
especially of lyeyasu, was to change as little as possible
the established customs of the different localities. The
advantage of the system was a thorough acquaintance by
the officials with the districts and the special requirements
of each. Again, in the little-changing population of those
times the daikwan came to be the nominal supreme
authority. The people heard that there were such persons
as a Mikado, a Shogun, a daiinyd, but to them the daikwan,
whose family had in many cases been the. governors of
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
55
their ancestors for generations, became, to their limited
view, the Government.
He took supervision of all minor cases of crime and of
disputes in regard to land. Important cases, however,
were sent to the nearest machi-bugyd (city-governor). The
decisions of the daikwan in all matters respecting individual
rights were open to appeal to the highest court of the coun¬
try, a privilege especially used where rights to land were in
question. The power of the daikwan and their exercise of
it may be said to represent the character of the government
of the country. They were the medium through which the
sole revenues of the Shogun or dainiyo must come. In
this respect they were the instruments of the lords whom
they represented. Yet great latitude was given to them in
all matters of a local nature outside of the established
revenue which they were expected to return to the Shogun
or dainiyo.
Still this was not left to the caprice or avarice of the lord
alone. Thus I found in' the Jikata Hanrei-roku the
following directions as to the spirit in which the daikwan
should exercise his function : His duties were to adjust
the boundaries of large divisions of land, such as miira
(which in mountain districts because of imperfect surveys
often became the subject of dispute), and of individual
holdings; to assist in the comf)licated and difficult
management of water supply for irrigation, of the repairs of
dikes and of embankments; to carefully inquire into and
equitably adjust the causes of failure, partial or entire, of
crops from overflow, winds, insects or insufficient supply of
water, and to make a just re-assessment of taxes on such
land ; to see to it that the local officials advised with the
farmers about the kinds of seed and their quality, about
improvements in methods of cultivating various kinds of
land, about ploughing and manuring, and about every¬
thing pertaining to the best method of agriculture.
Especial attention was recommended to the adjustment of
the regular assessment on land of all kinds according to its
productive power, to the quality of the soil, to its exposure.
56 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
favorable or unfavorable, to the prevalence of destructive
winds, to the quality of unfailing water supply, in fact to
every possible thing which could affect the quantity and
quality of the products of the soil,—the official thus
shielding the farmer from unjust assessments, and at the
same time securing to the lord the just return in taxes. In
prosperous times the farmers were to store up (against
failure of crops, epidemics, etc.), without removing the
husks, such grains as did not spoil. This the officials were
to encourage and urge the people to do, so as to prevent
alarm on the approach of dry weather or of epidemics.
They were to be encouraged also to plant wet land with
trees and shrubs, and also to plant trees to protect the
fields from the winds.
In the administration of affairs by the daikwan, their
instructions were based on high moral and philosophical
principles. In the books used as their guides Confucian
maxims are plentifully introduced. Equity and justice
seemed to be aimed at in all cases. Rarely should an old,
well-established custom be changed—such were the instruc¬
tions—but if found to be very bad the change should only
be made after careful consideration by the old local officials
and the farmers. For example, when Iye)'asu took the
province of Kai, no change was made in the old customs
and rules. Politico-economic questions were to be carefully
studied, to secure the prosperity of the farmers and to
equalize the interests of both the Government and the
people without detriment to either. Recently (says the
writer of the Jikata Hanrei-roku) the •farmers have
become extravagant. The gnndai and nanushi should
admonish the farmers in this matter not to wear fine
clothes, build fine houses, or be ambitious to become
officials or samurai, or merchants, but to fulfil diligently
their duties in the honorable cultivation cf the soil. But,
says the essayist, the daikwan and his officials should not
be severe or dictatorial, or the people will be irritated and
obstinate; nor should they be too familiar and indifferent,
or the people will lose respect for their superiors. A
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
dignified middle course should be aimed at by the daikwan
in all their dealings with the people. However skilful
officials may be in applying the technicalities of legal
administration, if they have not sufficient regard for justice,
if they neglect to take into careful consideration all
extenuating circumstances, if they are unnecessarily strict,
they will not have done their duty. Even if people seem
to be prosperous, technicalities should not be in all cases
insisted on as if it were praiseworthy to do so. The spirit
of all administration of land revenue is to give the farmer
the benefit of all doubts and not to insist on technicalities.
His prosperity should excite the satisfaction rather_ than
the cupidity of the lord.
No short-sighted policy governed the Tokugawa adminis¬
tration, nor any consideration of temporary gain by severe
taxation. The daikwan who by his sharp practices in
collecting revenue or in drawing the line against the farmer
to the utmost limit in order to gain special favor, was
^ almost sure to come to grief sooner or later. The
hyakusho-tsubure or "farmer-destroyer" was a role utterly
opposed to the economic policy of the founder of the
dynasty and of his successors. Taxation might be pushed
to the utmost ability to pay, but it was never permitted to
go beyond this and to force an industrious farmer into
bankruptcy or to borrowing on a mortgage. If he could
not pay his taxes and live in a fair degree of comfort, a
careful and impartial investigation was instituted into the
causes for this, and all reasonable extenuating circum¬
stances were considered. As by far the greater part of the
revenues were drawn from rice cultivation, every encour¬
agement was given to secure an abundant product. More
than this, the abandonment of rice cultivation by a farmer
was not permitted, or at least, he was never so oppressed
by taxes^as to make it necessary. Everywhere in the
dealings of the Shbguns with the farmers the importance
of the latter's function was recognized. They were allowed
more latitude than any other class of persons and were
ranked next to the samurai. A decided and firm appeal
58 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
against injustice was nearly always successful. The
individuality and independence of the farmer were cher¬
ished and carefully preserved by the Government.
On the other hand the farmers sometimes carried their
idea of their rights to a chivalrous degree. Uniting in
bands they at times assailed the tax office of the gtindai,
and even the small castk-less daintyo, regardless of
consequences. These were rare occasions, but when the
oppression had grown to such a magnitude as to arouse
them, they went to claim their rights as a soldier goes to
battle, taking their life in their hands. When a gathering
of from 50 to 100 after serious deliberation joined in this
forlorn hope and appealed for mercy from the tax col¬
lector, there was no resisting them; for if the petition
was refused and the matter came to the ears of the
authorities at Yedo, it became a scandal upon the adminis¬
tration of the daikwan or the daimyo which usually
brought retribution. A daimyo who used violence, if he
was not one of the eighteen great ones, was surely
punished by a removal to a less profitable domain. Exam¬
ples of this are well known. In order, however, to prevent
too frequent or unreasonable demands for reduction of
taxes, it was forbidden by law for the farmers to combine
to make such demands; but, whatever may have been the
punishment indicated for this offence, extenuating circum¬
stances were allowed to annul the punishment or secure a
pardon.'
The steady policy of the government was to preserve
and protect the tillers of the soil. The merchants were
below them in the respect and consideration awarded them
by the lords of the empire. Indeed a farmer was not
permitted to become a merchant without the consent of the
Government, the idea being that this was a lowering of
his position and that the dignity of the cultivators of the
soil should be preserved.
Taxation as understood or felt by people of most
6. On this point, see further the notes under " Local Justice and
Procedure," infra..
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
59
countries is a burden imposed, a kind of robbery of the
results of hard-earned means of the people; but it was
as a rule quite differently regarded by the people of
Japan. The payment of taxes did not seem to be regarded
by the peasantry as a burden, but as a loyal duty, in
which they took more or less pride. It was an offering,
as the word mitsugi-mono signifies.
The time of the annual payment of the rice at the
collectors' storehouses where each farmer's rice was submit¬
ted to inspection, instead of being an occasion of sorrow
and irritation, was more like a fair where each vied with
the other in presenting for official inspection the best
return of rice. It was always a source of mortification
for any one when his rice was rejected or declared
improperly cleaned for market. Prizes were awarded for
the best quality and yield of rice which stimulated the
farmers in its production. The tax rice was regarded
as a precious thing not to be defiled. A story illustrating
this is told of the third Shogun, who became for a time
the real ruler of Japan. Stopping one day at a farmer's
house he inadvertently sat down upon some bags of rice
which had been carefully prepared for transportation to
the collector's storehouse. The farmer immediately in
an angry tone ordered the Shogun (whom he did not know)
to get off, saying that was the lord's rice and was not
to be defiled or treated in a disrespectful manner. The
story goes on to state that the great chief, in admiration
of this spirit of the poor farmer in his loyalty to his lord,
rewarded him by calling him to a place in his service.
An old friend, the son of a former provincial governor,
has given me his recollections of the annual collection
of the tax rice, when he used to go with his father to
see the delivery at the government depot. The farmers
seemed tj vie with each other in the neatness of the
straw package and in the quality and cleanliness of the
grain. In each bag was a tag of wood on which were
written the names of the farmer and of his muni, so that
any attempt at fraud in weight or quality could be easily
60 SIMMONS & WICMORB : LAND TENURE & LOCAL INSTITUTIONS.
traced. Another tag or slip of bamboo was fastened to
the outside of the package, for convenience of identifica¬
tion. The bags were made of rice straw coarsely braided,
cylindrical in shape and nearl}' flat at both ends. They
were not tied as bags of cloth were, but were fastened by
interweaving straw cords. The whole was very firm and
quite durable and easy to handle.
This much may be said of the administration of the
Tokugawa territory and that of the immediate vassals
of that family. While the form of the administrative
system elsewhere was not essentially different, there was
nevertheless in many cases a great disparity between the
condition of the people within the dominions of the Sho-
gunate and those without, and this disparity flowed largely
from a difference in the spirit and manner of administration.
In several it.may be said that the more independent and
powerful the daimyo, the more severe his treatment of
the people, and the worse their condition. In the provinces
of Satsuma, Choshu, Higo, Tosa, Inaba, Akita, Nambu,
and Tsugaru this distinction was especially marked. In
all these provinces there was great severity. Perhaps it
would not be an exaggeration to compare the condition
of the farmers with that of the negroes in the United
States under slavery. The general principle in those
provinces was, "Tax up to such a point that just enough
for subsistence remains." The division of the product
in the Shcgunate domains was, to the government, five
parts, to the farmer, five parts: in the other daimiates,
to the daimyu, six or seven parts, to the fermer, four or
three parts. Humiliation and sumptuary restrictions were
systematically imposed. Even the use of umbrellas, socks,
and clogs was often forbidden.^ Practically every item
not included in the most restricted manner of life was
a privilege and had to be bought. These privileges were
usually given in return for a forced loan. Money loaned
would perhaps be -cancelled by such a privilege. This
7. See the " Rules relating to the station in life (bungen) of fanners,"
Appendix.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 6l
practice, however, never obtained in the Tokugawa do¬
minions. The Tokugawas, too, never taxed mulberry,
tea, paper and sundry other minor staples; in fact if they
had done so the farmers would have destroyed the planta¬
tions with salt, ashes, seaweed water, etc., and abandoned
the cultivation. But among the independent daimyd taxes
on these staples were laid and were collected. Such was
the favorable reputation of the Tokugawa administration,
in contrast with other regions, that the farmers always
objected to the handing over of their fief to a daimyd
(perhaps by exchange or in consequence of some bargain),
and their stout protest sometimes prevailed. In Echigo
was found perhaps the best condition of things outside
of the Shogunate territory. Here several causes combined
to produce prosperity. Much of the land was originally
swamp land and was very rich. The rivers often overflow¬
ed and renewed the fertility of the soil. The land had
never been exactly measured, and the farms were usually
of greater extent than was called for by the tax-register.
The daimyd of the region did not possess extensive
domains, and, being less powerful, were less arbitrary and
less oppressive than elsewhere. Finally, as the products
of the soil were plentiful, the daimyd were rich, and were
less inclined to levy exorbitant taxes. There were few
small independent land owners; yet the condition of
tenants and farm laborers, compared with many other
districts, was very good.^
8. The contrast between the condition of affairs in the large daimiates,
as here sketched by Dr. Simmons, and in the Tokugawa territory, as
set forth in such a favorable light a few pages previously, must suggest,
to any one acquainted with Japanese history, the unlikelihood of so
marked a difference. There can be little doubt that the impression
received from the description of the Tokugawa administration is an
over-favorable one. It is true that under the great daimyd the people
fared as is Here set forth. It is true also that a decided contrast must
be drawn, favorable to the Tokugawa administrators. But we may
safely say that in spirit they were far from possessing that anxiety
for the well-being of the farmer, that unselfish interest in his prosperity,
that sense of a moral duty on his behalf which the Confucian maxims
62 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
inculcated. It is the suggestion, if not the express assertion, by the
author of the Notes that such a spirit moved their actions; and this is
apt seriously to mislead. There is no reason to doubt that on the whole
the statements in the text with reference to the care lavished on the
farmer's success, the anxiety to maintain him in full vigor, the pains
taken to prevent his bankruptcy, his desertion, his discontent, are entire¬
ly true; but all this was done for the same reason that a race-horse
receives the most lavish care that money can procure,—for reasons
of policy, not of affection or of duty. Just as there were among the
slave-holders of the South many who found that good treatment of the
negroes was in the long run more profitable, merely as a matter of
self-interest, so the genius of lyeyasu lay in his far-sighted agricultural
policy,—a policy which believed that a dozen prosperous and contented
farmers were a better possession than twenty poor and oppressed ones.
It was a part of the singular force of character which marked lyeyasu
that he was able amid the remnants of anarchy and war to establish
a system of administration based on this policy, and to settle it so firmly
that for two centuries and a half it was carried out substantially on
the lines he had laid down. In the results achieved by him in this
respect we need not hesitate to compare lyeyasu's genius with that
of Frederick the Great. It is a noticeable fact that the crown lands
of Prussia before this century, like the Shogunate possessions in
Japan, were in a far better condition than the districts of the territorial
nobles.
But if it was a far-sighted policy, and if necessarily the creation
and maintenance of a prosperous and contented agricultural community
was a part of it, yet this policy was none the less a calculating and
a cold-blooded one. Licensed to live in contented humilitv, the farmer
was crushed without a scruple when he attempted to assert himself
or dared to be dissatisfied with the role of a well-fed, plodding beast of
burden. The law cited later, by which the punishment of death might
be inflicted on farmers taking part in an armed protest, is only one
instance of this. In many passages of these Notes will be found further
evidence of the sagacious but thoroughly selfish point of view from
which the administration was conducted. Attention m*y be here called
to one or two illustrations not contained in the Notes. In a form
of petition {translated in Dr. oimmons' papers) to be forwarded by
the daikwaii for Government assistance in case of drought, flood, etc.,
occurs this passage: "The river X has overflowed many times this
summer, its banks are broken through in maaiy places, and the whole
of the rice-land in the villages Y, Z, etc., over which I preside was
seriously injured, the houses being submerged and the rice-stores of
last year carried away. The people are now starving and are coming
to me for food loans. I have examined the condition of affairs, and
have ascertained the number of persons really in need of food, omitting
SIMMONS & WIGMORR : LAND TENURE & LOCAL INSTITUTIONS. 63
those who have means to provide for themselves. I have of course
explained to them that even though their present suffering be relieved
by a loan of food, they will find it difficult to repay the loan, and that
it will be better for them to obtain the means of subsistence in some
other way, if possible. But they have absolutely no means of providing
for themselves, and unless the Government supplies food, they will go
starving, and hence may become unable to cultivate their land. It will
not do, under the circumstances, to withhold the loan." Observe the
real cause for alarm on the part of the Government, that the land
will remain uncultivated, and hence the tax-rice unproduced and
unpaid.
Again, in the code known as Kujikata Osadamcgaki, Book I. Art. 35
(Mitthcil. d. D. Gcsclls. Ostas., Heft 41, p. 54) we find this provision:
" Farmers have always been strictly forbidden not only to indulge in
gaming and the like, but also to take part in any other time-wasting
occupation or to learn bad ways; for thus they come to neglect the
cultivation of their fields. These orders shall now be renewed." Here
the habit of gaming and sundry unmentioned vices are seen to be
reprehensible, from the Tokugawa point of view, because they lead
to a diminished agricultural production.
In both of these instances the books from which the passages are
taken were intended for the private use of officials, and considerations
of policy could be freely'^expressed.
II. LAND LAW.
1. Division of territory.
The common terms relating to the division of the country
were:
1. Kuni or kokii (province).
2. Kori (in compounds gori) or gun (district.)'
9. On the origin and early history of kiini and gun Mr. Kurida writes
as follows, in Shoyen-kn.
" The learned Mabuchi explains kuni as meaning ' circle,' and
derives it from kunc, a fence. We find in the early records that the
titles of kami or so-called 'gods' often contain the word kuni, as,
Kuni-tokodachi, Kuni-satsuchi, Toyo-kuni-nushi, etc. In some cases
we find the term wake occurring,—Awaji-no-ho no-sa-wake, Toki-yori-
wake, etc.—where the kami was the son of the original pair Izanagi
and Izanami. This word wake .signifies " divide," " apportion," and
seems to indicate that the kami were assigned to various regions, and
we may infer that a kami was assigned to each kuni, and that thus the
term kiini became a part of the title. Such an arrangement (the govern¬
ing of kuni by nobles whose title contained wake) was at any rate in
existence under Keiko Tenno (A. D. 71-131), and probably existed earlier.
There are moreover records which expressly mention that when
Jimmu Tenno defeated the savage aborigines and conquered their
country, he placed officers called niiyatsuko over kuni,—Utsuhiko as
miyatsuko of Yamato kuni, etc. This practice was followed until
the time of Kotoku Tenno (A.D. 645-655). A miyatsuko was appointed
for every kuni, and the office became hereditary. The kuni at that
time, however, was a very small district, perhaps not larger (in most
cases) than a gun of to-day. This accounts for the^arge number said
to have existed (144) in the reign of Keitai Tenno (A.D. 507-534).
But in the next century there came about a fixing of boundaries and
a making of surveys which altered the extent of the early kuni, and
we find in the reign of Mommu Tenno (A.D.697-708) that there were
apparently 58 kuni, which in extent and in names corresponded in
general to the kuni of to-day. Several changes were afterwards made,
but in the course of the next century or so the number of kuni came
to be 65, and no alteration afterwards occurred.
" The kuni were divided into agata, and the record of this subdivision
appears as early as the time of Jimmu Tenno. The learned Motoori
explains the etymology of agata as follows: ' Agata is formed from
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 65
3. Machi (town), ycka-mnchi was a town at the base
of a castle or feudal lord's residence. Shukit was a
post-town on one of the kaido, (great roads). Ryoshi
or ura was a fishing town.
4, Mura, zai-go, or ko (village, agricultural community).
Zai-machi was a trading village, the population being
half farmers, half merchants. De mura was a branch
village. Magomura or "grandchild-village" was a
similar term frequently used.
The early method of fixing the boundaries of the terri-
aga, higher, and ta, land; that is, it is high land where no irrigation
is needed.' To substantiate this he produces a good deal of evidence ;
but Kurokawa Harumura rejects his evidence, and offers the following
explanation. ' The agata is not land which does not need irrigation.
The term seems originally to have been nari-kata, fruitful region.
This became ari-kata, and then akata or agata. It is of course
land which pays tribute or tax, but not high land.' There can be
little doubt that agata included the various kinds of land,-—vegetable-
land, forest, etc. The agata in Yamato were called mi-agata (honor¬
able agata), for the vegetables used by the Tenno were there raised.
" The chief official of the agata was called agata-uushi. There were
two classes of agata, and the nnshi of the two classes were called
respectively o-{grea.tpagata-mishi and ko-(Rm3.l\)-agata-nushi. But in
the case of some of the largest agata the official was called agata-
miyatsuko. Under the agata-nushi came the inagi-nushi, and under
the inagi-nushi came the mura-nushi. The changes in the establish¬
ment of agata were endless; but the whole number seems to have been
about 590.
"In the reign of Kotoku Tenno A.D. (645-655) a change took place,
and officers called kunl-tsnkasa and giin-tsukasa were substituted for
kuni-miyatsuko and agata-nushi. The kuni-tsukasa were chosen from
the TennO's court on the basis of merit, while the gun-tsitkasa were
appointed from those who had been kuni-miyatsuko, and the members
of their families who were capable and efficient were appointed to
subordinate positions in the gun office. My friend Mr. Konakamura
Kiyonori has suggested to me that the kuni-tsukasa existed before
the time of Kotoku Tenno, and corresponded to the kokusai mentioned
in the Kojiki; that his authority was at first subordinate to that
of the kunf-miyatsuko, and that as he came by degrees to surpass
the latter in influence and to reside permanently in the kuni, it was
easy to effect the change made by Kotoku. For this suggestion I
am greatly indebted, and it is certainly an ingenious one. But
although it is perhaps not possible to fix a date for the establishment
66 SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS.
torial divisions was the natural one of taking the physical
conformation of the country. Thus, mountain ranges and
large rivers were taken for the great divisions; hills,
valleys, and small streams for the secondary divisions.
For practical purposes this was all-sufficient. Surveying
instruments, though possessed by the Japanese (who borrow¬
ed from China) were not used for the general survey of the
country'. They were brought into requisition only in the
case of boundar)' disputes between feudal lords or local
communities.
In the survey of farm land the method was the primitive
one of driving a number of stakes at the outer margin and
stretching a straw rope around it. Each piece or plot of
land, however small, had its name, and was indivisible
in ownership. The name, with that of the owner, was
written on a map of large scale, with different tints for
different portions, a copy of which was kept in the office
both of the nanushi and of the daikwan.
of the change, and. although it is doubtless true that there were kiini-
tsnkasa before the reign of Kotoku and as early as Nintoku (A.D. 313),
still it must be pointed out that this officer was at first known as
kuni-mikotomochi; and, notwithstanding the same ideograph is used
for that term and for kuni-tsukasa, there was a real difference of
some kind between the earlier and the later periods, for the former
term means merely 'one who executes the commands of the Tenno,'
while the latter means ' the ruler of a kuni.' "
Mr. Satow has a note upon kuni and agata in " Ancient Japanese
Rituals," (Trans. As. boc. Jap., VII, pt. 2, pp. 125—30, notes 32, 39).
In the Nosei Zayu (Reference Book for Laws relating to Agriculture)
of Mr. Komeyama Masahide it is noted that shu, ani yd wercSinico-
Japanese equivalents of kuni, and that ken was similarly used for agata,
before gun came into use. See also" Dr. Florenz's article quoted in
Appendix VII.
Between kuni and kuri the han has here been omitted. This word
may be rendered by fief. KOri or gun were subdivisions of the
han; for it would seem thaf as a rule han indicated a district held
by a territorial lord having some administrative independence, and
appointing his own executive officials. .The actual arrangement of
han, the feudal geography, so to speak, of the whole country, seems
hitherto not to have been explained by any foreign investigator, and
should receive a thorough study.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 67
The spirit of liberality shown in the treatment of the
agricultural class, which has from earliest times character¬
ized Japanese rule, has tended to prevent re-surveys of land
except on rare occasions. The tax collector was not called
upon to question the ancient measurements of the farms,
which often had been for two or three hundred years in the
same family. Had they done so, the farmers would have
been in the vast majority of cases greatly the losers, as the
approximate figures which had stood so long on the official
maps were sure to be found favorable to themselves; and
this they well knew.
The last attempt at anything like a correct estimate of
the size of individual holdings was made by Hideyoshi.
The work was begun in southern and western Japan, and
carried to the Hakone range of mountains, when Hide-
yoshi's death put an end to the work. Owing to lyeyasu's
policy of disturbing as little as possible all preexisting laws
and customs, especially those affecting the agricultural
classes, the re-survey of that portion of Japan north and
east of the Hakone range was never completed, and through
the whole period of supremacy of the Tokugawa Shoguns
the farmers of that region greatly profited thereby.
So far as the land survey was concerned, the farmers of
northern and eastern Japan would have resisted stoutly,
even with their, lives, any attempt to re-make it. Indeed,
there were several reasons why it was next to impossible to
change the title deed measurement: ist, the lack of easy
communication with distant places; 2nd, the opposition of
the farmers, who would have fought in a body; 3rd, the
probable bribery of the daikwan.
2. Size of holdings.
It seems from the laws of the ancient code Taiho-ryo
that in the*7th century the system of parcelling out the
land into small holdings of 2 Ian (half an acre) to each
male, and f of a tan of an acre) to each female, would
give to an average family of 5 persons between 2 and 3
68 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
acres of land. In the well known book from which I
am now largely quoting, substantially the same thing
is stated, though the authority is not given.The state¬
ment is that in early times the Mikado gave to all males
of 20 years of age one hyappo or from 2^ to 3 acres.
This was given to the head of a home, or to an eldest
son, regardless of the number of daughters or other sons.
After the age of 16, other sons received 25 ho (about an
acre), and when the younger sons married, which was
at the age of about 30, 75 ho was added to the share of
10. The author of the Notes here begins to erect a fabric of inference,
which, while it corroborates the views expressed in the preceding and
following text in regard to the agricultural policy of the rulers of
Japan, must be regarded as unsound. It will be necessary to call
attention to material errors underlying the assertion that there existed
in fact an agricultural unit of one cho or thereabouts. At this point,
however, it will be sufficient to notice the statement that the possession
of a family in the earlier times was a plot of 2J or 3 acres. It does
not appear what book is here referred to. It will be remembered that
10 tait = i chu, and that i c/((7 = 2.4507 acres.
In the first place the statement that § of a tati is J of an acre is
of course an error. Taking J of an acre as the true extent, we find
that the average family of five, even allowing three of its members
to be males, would possess only if acres. This result does not tally
with the 2J to 3 acres of the succeeding passage. Furthermore the
amounts prescribed for distribution by Taihd-ryu were several times,
changed by subsequent legislation. Last, and more important, the
family of the TaihO period was be)'ond all doubt not the family of
the present day, but a much larger body, a household containing
certainly more than two generations, together with collateral relations
and slaves. The constitution of the early Japanese family is a
subject of great interest upbn which we do not as yet know all (See
Weipert, " yapanisches Familien tind Erb-Recht," Mittheil. d. D. Gesclls^
Ost., Heft 43, passim) but we may be sure that it was of the patriarchal
type peculiar to certain primitive communities, and not of the type of
to-day. An illustration happens to be at hand. An extract (quoted in
Fudusan) from a register of the Taiho period shows the following
members in a certain family ; " Total number of members in the Ishitari
family, 13: The head, Ishitari, a soldier, age, 33; Kunitari, an elder
brother, age, 34; Yasunobu, a son, age, 6; Takashima, a younger
brother, a soldier, age, 27 ; Yasomaro, a younger son, age, 2; Kuromaro,
a younger brother, age, 25; Okuma, a younger brother, age, 20;
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. Cg
each one, making the loo ho allowed for a household
or family. This 2^ or 3 acres, the endowment of a
single family at that period, is nearly the average size of
the holdings at the present day. It seems, from these
statements and from those of the Tailw-ryo, that, from time
immemorial, about half an acre has been the amount of
land regarded as sufficient for the support of one person.^'
Again, in the ^ikata Hanrei-roku it is said that in
1721 the Shogun Yoshimune forbade a family possessing
only one did or less to divide it among the members of the
Hirokuni, a younger brother, age, 19; Tomoka, a younger brother,
age, 18; Nasimaro, a nephew, age, 10; Manama, the mother, age,
37 (?); Shiyata, the wife, age, 32; Anime, a child of Okuma, age, 2,"
In another extract, the family is seen to consist of seven men, eight
women, and a child. Of course in these cases any such reckoning
as that now under comment must fall to the ground. It is for many
reasons out of the question to believe that at any early period the
land was divided into holdings of equal or nearly equal size; but
the subject is one which cannot be settled in a few words, and what
has been said must suffice merely to warn against implicit reliance on
the statement of the Notes.
Some explanation of " hyappo " is necessary. The word is a contrac¬
tion of hyaku-ho (100 ho). The ho was 36 bu or tsuho, one-tenth of a tan.
According to the Fuddsan, ho was a measure in the Chinese system
on which the Japanese measurements were founded. But it does not
seem that the ho itself was adopted. Between bit and tan no other unit
corresponding to ho seems to have been used until se came into vogue
in the sixteenth century. Perhaps this might be considered as casting
suspicion on the value of the statement relied on by Dr. Simmons.
Moreover one hyappo would be 3600 bu. or one chd of that date; but as
the chd (since the time of Hideyoshi) contains now but 3000 bu or tsubo,
one hyappo would be f chd or 3 acres, not " 2j or 3 acres."
II, If some of the Japanese writers are to be relied upon, the amount
of land regarded as sufficient for the support of one person was about
one half of the area here stated. In the Tokushi TCron, an authority
quoted in the Den-yen yikata Kigen, it is said: " In ancient times one
tan consisted of 360 bu, because the rice produced from one bu fur¬
nishes suffi<4ent food for one person for one day." In the Tohu Ndka
Kivanko also quoted in the Den yen yikata Kigen, we read : " In ancient
times one tan consisted of 360 bu; and from one bu was produced
one shd of unhulled rice, or from one tan 360 shd, that is, 3 koku 6
fo, which would make i koku 8 to of hulled rice. According to the
•JO SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS,
family.In other words i did or acres was still fixed
as the land necessary to support a single family. One dio
of land, therefore, seems to have been the economic unit.
These facts serve to throw light on one of the interesting
problems of Japanese land tenure, the origin of the present
system of small holdings, and of the patchy appearance of
the cultivated land throughout the country. Though a
large body of land may be seen under cultivation at a given
place, not more than 2J or 3 acres of any part of it is cul¬
tivated by a single family;'® and the broad rice-fields of a
mile or more in extent are the property of hundreds of pea¬
sant proprietors. Where a large landowner possesses in a
compact body several acres of ricefields or other cultivated
■■■■■. I ■ ^
old calendar, in one year there are 360 days. So that i kokn 8 to
(the produce of one tan), that is, 1800 go, divided by 360, would
5 go for each day, and in our country 5 go per day is a proper amount
of food." The table of dry measure is; 10 go = i slid, 10 shd=i to,
10 to = i kokn. It seems from these authorities that one tan produced
sufficient for the support of a single person for a year; so that 5 tan
(or ij acres) would produce more than enough for an ordinary family
of two adults and three children. This would dispose of another of
the supports for Dr. Simmons' belief that the average holding was 2J
or 3 acres.
1 i. This law I do not find, but the statement in the text is corroborated
by the twenty first article of the anonymous kitmi-chd in the Appendix.
Yet the extent of this ultimate indivisible holding was variable ; in Kaga
it was fixed at 50 kokn (the Minji Kwanrei-ruishu), that is (as will be
shown shortly) a piece of land of at least 2J chd (or over 6 acres) in
area; in the Koriyama knmi-chd (see Appendix, art. 37), the minimum
amount is 10 kokn land; in the Chiba knmi-chd (see Appendix", art. 2),
the minimum amount is 20-koku land.
13. This is, perhaps, the" best place to notice the asffertion made in the
above sentence and in the preceding paragraph, that the ordinary hold¬
ing of later times, down to the present day, was from 2J to 3 acres in
area. It is at the present day not true that even the average of all hold¬
ings (if this was what Dr. Simmons meant) per family is 2^ or 3 acres.
The reports of the Naimu-shd (Home Department) show that the average
of per capita holdings in different provinces is J to 2J acres (giving per
family from 2J to X2j acres), with an average for the whole country of
from 5 to 10 acres. But even if the statement of the text were true, it
would be immaterial, if it referred merely to the average of all holdings ;
for the theory advanced by Dr. Simmons is that the unit of agricultural
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 7I
land, it is found to be worked by a number of tenant families,
the share of each being 2^ or 3 acres. The 2^ or 3 acres,
however, do not always lie in one compact body. They are
often in broken patches, quite distant from each other, an
arrangement which is apparently a source of inconvenience
and loss of time to the farmer.
Of the causes to which this small size of the holdings is
to be attributed, perhaps the chief one is the historical pre¬
valence of small holdings, as just explained. Another is
said to be the limited extent of land which can be cultivated
by a single family. In the yikata Hanrei-roku it is stated
that 8 ian of rice-field or 6 tan of dry land (upland) is all
division has been and is about 2^ acres, and if this is so, all the hold¬
ings, taken individually, must be shown to be units of this size or mul¬
tiples of it, just as in England the units of the acre and the virgate can
be traced today. Dr. Simmons' theory strictly requires something
more, for it is part of his contention that as the Government has judi¬
ciously managed to keep for each family enough to support it, and to
preserve the holdings at a level neither too high nor too low, the hold¬
ings with few exceptions are very nearly 2J acres in area, and are not
even multiples of that unit. This is not the place to attempt a complete
disproof of that contention, but the evidence of the Chibadera kumi-chd,
set out in the Appendix, may here be noticed. The richest citizen, the
nannshi, is credited with 39 koku, (omitting fractions); there is one
person with 25 kokti, two with 19, several with 10 or more, and a large
number with less than i koku, besides six having no land at all. What
extent of land corresponded to these assessments? From various au¬
thorities cited in the FudCsmi and in the Den-ycn yiknta Kigeti it appears
that the product of one tan of wet land of the first quality was expected to
be, in the time of Hideyoshi (Bunroku, 1592^—159®) ^tnd previously, from
1 koku 5 to to 2 koku. At the present day the average yield is placed
at I kokti 5 to (Kinch, " Agricultural Chemistry of Japan, Trans. Asiat.
Soc. Jap. VIII, 396) We may estimate the holding of the nanushi, then,
at 2f cho or nearly 7 acres; of the next richest, at chd, or 4 acres.
Only ten approach the 2J acre holding of the author of the Notes, the
rest being far below in the extent of their holdings. We do not know,
it is true, whether the land was wet or dry, was of first, second, third, or
fourth quality ;%ior do we know how correct the assessment was. But
the great range in the sizes of the various holdings has a significance
which does not depend on our knowledge of those circumstances ; and it
indicates the improbability of there having been, in the last two hundred
years, any uniformity in the size of individual holdings.
72 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
that one family of 5 persons can properly cultivate. An¬
other is the prohibition placed upon the transfer of land, to
be referred to later. A third cause must not be forgotten.
The perpetuity of the family being the basis of the social
fabric, the inheritance of the family received a peculiarly
sacred character. The integrity of the inheritance received
from the ancestors was to be preserved at all cost. No one
generation had a right to the exclusive use of it. It be¬
longed to the line, and no one should divert it by sale or by
devise. There was therefore a strong dislike on the part of
the great majority to dispose of their landed property.
A reason for the division into very small patches is the
advantage to be gained in irrigating and in the economic
use of water. Another is the fact that the possessor of
only 2 or 3 acres is obliged to plant a variety of products in
order to equalize the chances of the failure of any given
crop. Another reason is that the cultivation of land in
Japan is in its spirit and its methods horticulture, not agri¬
culture, gardening rather than farming; and with this exists
a tendency towards diversity of crops and cultivation in
small patches. Still another reason is the gifeat importance
attached to the exposure of land. The order of preference
is: South, East, North, West. Hence the possession of
small pieces of land of different exposures equalizes the
value of various holdings, and hence the advantage of not
having all of one's holding in one location.^''
14. It is to be regretted that here, too, one is compelled to dissent from
the author's views of the origin of this division into small patches. We
are as yet not in a position to form final opinions as to what is to be deem¬
ed the true origin. It may be said, however, that there seems to have
been originally a laying out of the land into units of small size (fifty or
sixty feet square, for instance), and an apportionment of these units
among the various freemen, tenants, or slaves, according to some system
of rotation. It may be supposed that a state of things still exists here,
which has left its traces in England and else where,—the ownership of
scattered tracts, containing an agricultural unit or a multiple of it, by
each of the various landholders of a mnra; and that this arrangement
may be traced back, as it has been by Mr. Seebohm in England, to
a method of measurement and distribution peculiar to early times.
But this is as yet hypothesis only. Still the considerations mentioned
SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS. 73
• To return to the influence of the prohibition against
the transfer of land. We gather from the laws promul¬
gated in the 7th century (the Taiho-ryo, already referred
to) that the principle of peasant proprietorship had in
eftect been established, though perhaps not with design.
The spirit of the legislation can be interpreted only as
aiming at a provision against extremes of wealth and
poverty. The same spirit finds expression in the laws
of the Tokugawa Shoguns, particularly that one prohi¬
biting the sale of farm lands, passed in 1643 (20th j'ear
of Kwansei). The purpose of the prohibition is thus
described in the Jikata Ocliibo-shii. " If farmers are
permitted to sell their land, a ronin, samurai, merchant,
rich farmer or other person might become the possessor
of a whole tntira or kori, and thus be able to defy the
government and sow the seeds of disturbance. Again,
poor and indolent men for trivial reasons might be tempt¬
ed to sell their land and thus lose their homes and
their positions as cultivators of the soil, and become
the dependants of rich men. This would be a great
misfortune." If the law was transgressed, the offender
was imprisoned or banished. If he had died, his son
suffered the same punishment. The buyer was fined
and his land confiscated, and, in case of death, his son
suffered instead. If there had been a witness to the
sale, he was fined, but - his son was not responsible.
by the author do not seem sufficient to explain the facts, although it
is not improbable either that they operated to influence the original
distribution, or that they assisted in preserving it when its origin had
been forgotten and reasons were needed for perpetuating it.
That the land is so divided into small patches is a fact which any one
can verify; and that the practice has serious drawbacks is indubitable.
One of the problems with which the Department of Agriculture and
Commerce (NdshrmH-sho) is now occupied is the question how these
patches may §e so exchanged and consolidated as to facilitate the em¬
ployment of modern agricultural methods.
To give to those who have not had an opportunity to observe a Japan¬
ese field some idea of its arrangement, a map has been prepared and
will be found in the Appendix.
74 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
The nantishi of the mura was ordered to resign his
office.
The land laws of Japan show an intention to make
the cultivation and ownership of large tracts by a single
proprietor, or even by tenants of such proprietors, cum¬
bersome and of little profit. This was especially the
case for non-resident proprietors. The executors of the
15. I do not find in the revised code the Kujikata Osadamcgaki any
note of this law of 20 Kwansei. In 2 Gembun (1737), however, the
prohibition was repeated, and a law forbidding the mortgaging of land
for more than ten years (for mortgages seem to have been resorted to as
a means of evading the prohibition upon sales) was promulgated at the
same time. (See the Kujikata Osadamegaki, II, Art. 30 Mittheil. d. D.
Gesclls. Ost., Heft 41, p. 73), " Punishment of those who sell their land
in perpetuity or without giving proper notice.")
The statement of the author of the Notes, that " the spirit of the leg¬
islation can be interpreted only as aiming at a provision against extremes
of wealth and poverty," so far as it applies to the Tokugawa legisla¬
tion, is refuted by the extract from the Ochibo shfc immediately follow¬
ing. It there appears clearly enough that what the Shogunate feared
was a disturbance of the feudal equilibrium which they had established
and with which they were well satisfied. The history of land tenure in
previous epochs had been a history of the passage of land from the poor
to the rich, from the small to the great, and it was seen that at any time
new concentrations of landed property might occur and new centres of
disturbance be created. To keep matters as they were was the proper
policy of the Tokugawa family, and the prohibition against the transfer
of land was one of the means they adopted to that end. Mr. Yokoye,
in the Fudosnn, touching on this subject, says : " The Tokugawas knew
well that when the rich acquired large territories, they would become
powerful and would be able to muster large bodies of retainers, with
which they could defy the Government."
But the question presents itself, if, as seems problble, this was the
first time that an order was addressed to the common people, forbidding
them to sell land, how was it that this had been reserved for the Toku¬
gawa Government to provide for, and that it had not been done before ?
Or, to question a little deeper, if the sale of land by the common people
had from the beginning been free, is it not impossible to suppose that
there had not been, before the Tokugawas, some similar prohibition
which helped to stem the tendency to consolidate land and turn small
owners and tenants into laborers ? The answer to these questions seems
to be that up to the sixteenth and seventeenth centuries the mass of the
cultivators had been serfs: that the bonds of this serfdom were tho-
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 75
laws were instructed directly or given to understand that
the principle on which their judgment was to be based
in any conflict of the rich and the poor was to give the
latter the full benefit of any doubt. Custom and public
opinion recognized the broad principle that the pos¬
session of property, especially in land, was the inherent
right of the many, not of the few. The products of labor
roughly loosened in the internecine conflicts of the fourteenth, fifteenth
and sixteenth centuries; that as the seventeenth century dawned, the
cultivators were beginning to feel an independence, to deal with the
land of their ancestors as if they were owners; that this tendency it was
which then, and then for the first time, it was found necessary to check;
and that it had not been the subject of legislation before lyeyasu's time
because it had not existed, because serfdom had until then been a hard
and fast system. On behalf of this view it may be said that no previous
prohibition regarding the common people seems to have existed. This
fact alone would perhaps be colorless. But it may be coupled with the
fact that during the five hundred years preceding the Tokugawa as¬
cendency the gentry and nobility from time to time suffered certain restric¬
tions in regard to the transfer of land, as shown by the codes Shimpen—,
Shingen—, and Kemmu Shikimoku. Moreover among numbers of early
deeds of the period, quoted in full by Mr. Yokoye, in the Fiidusan, and
selected quite at random (with reference to this point), we find one or two
only, in the earliest centuries, signed by members of the plebs, while in
the later centuries the number increases. These are but straws; yet they
serve to indicate that there is evidence of the existence of an adscriptio
glcba, the adscript!, as a matter of course, not having any voice whatever
in the transfer of the land, but being transferred with it. What is needed,
of course, is an examination of a representative collection of deeds of the
times. It is well known that the deeds of the monasteries of France,
Germany, and Switzerland have made clear the concentration of land in
the hands of the nobles after the ninth century, simply because there
appear few donations or none at all from the small proprietors. Possibly
the Temple Todaiji, with its deeds, may prove the S. Gall Abbey of Japan.
It is certain that the law prohibiting the sale of land had no force in
some districts, though it is impossible to mark out distinctly the bound¬
aries of its validity. It appears from the Minji Kwaiirei-ruishu that the
sale of land was permissible in Uzen and Izumo ; that in Tosa it was
permissible a»to shin-dcn only; that in Kubiki gun of Echigo it was
permissible to sell to fellow-villagers ; while in Uwonuma gun of Echigo
all sales of land were forbidden. There was therefore no common
custom and no generally enforced law upon the subject. Even within a
single kuni the practice varied.
76 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
of any kind were the heritage of the toiler to the extent
of leaving him a reasonable support, without regard to
the share of the employer. If any one was to be
sacrificed, it was more likely to be the landowner than
the cultivator. Any surplus which the former might have
accumulated in times of plenty was by custom to be
returned as a loan to the latter in time of distress, or
else a rebate in the fixed rental was allowed, sufficient to
enable the producer to support himself and his family.
Eviction was almost unknown. A few days ago the Prime
Minister told me that he had bought a place on which
were living a few poor people who were keeping small
tea-houses. He said he had been trying for some time
to get them to move, as they had no legal right to remain;
but he found it impossible. The general principle was
that no one could beggar another by the exercise of his
legal right to do so as owner or proprietor of land. There
was therefore little opportunity for men to possess them¬
selves of broad acres. The few large landed proprietors
seem generally to have acquired their possessions, not by
purchase from bankrupt farmers, by the foreclosure of
mortgages, or by allotment of government land, but by the
drainage and reclamation of lakes, swamps, and river-
bottoms.
On the other hand it may be said that there was little
inducement for the peasant farmers to advance or to ac¬
cumulate. The comparative security of their position, with
a reasonable amount of industry, would leave them in the
position of pensioners, with provision for Uieir support as
long as they might live. The difference between then and
now is radical. Now the land tax leaves little or no profit
for the farmer. So it was then also ; but in the old times
there were no bankruptcies ; the patriarchal principle govern¬
ed and society did not recognize evictions; the homes
were perpetual; and the landlord or the tax collector, when
necessary, returned what had been taken, in loans which
were paid when good times came again. Now the un¬
fortunate is evicted, and all paternal care is withdrawn ; the
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
money lender or the capitalist takes the homes, and the
poor farmer goes out to subsist as best he can. The rich
become richer and the poor poorer,"
3. Classes of land.
The classes of land were as follows :
1, Ta ; rice-producing low lands,
2, Hata, hatake ; arable uplands or dry land,'^
3, Hara, shiba-chi, makusa-ba ; grass land, meadow,
4, Taku-chi, yashiki-chi; building land,
5, Hayashi, mori; forest,
6, San-rin ; mountain land,
7, Shin-den; new land, reclaimed land.
Taku-chi, yashiki-chi. By a very old regulation the
amount to be used as a building site, to be covered by the
house and out-buildings, and to be used for threshing and
drying grain, was fixed at 150 tsubo for every holding of
3000 tsubo. The object of fixing the amount was to
prevent overreaching the tax-collector, for building land
was exempt from taxation. No proprietor could increase the
extent of this land or erect buildings outside of it, without
special permission from the daikwan. In southern and
western Japan this land was inseparable from the cultivated
land ; in the northern and eastern region it was regarded as
distinct,
Hayashi, mori. The latter name applied specially ta
forests owned by temples.
Shin-den.^^ This included hill land, swamps, land
16, The Japanese Government is now engaged, with the help of the
various provincial officials, in a thorough investigation embracing the
whole subject of the distribution of land ownership, the condition of
the agricultural class, and kindred topics, and when the information
collected is made public we shall be in a better position to judge of
the correctness of the statements here made.
17, There w<re also special kinds called y(ima-{mountzin)-hnta', no-
(waste or moor)-liata; and kawa-(nve.r-\znA)-ta (Dcn-yen Jikata Kigen).
18, Shin-den was known as kon-den, in the Taihu-ryu period. It was
regarded at first as private, untaxable property for three generations
only, but it gradually became a permanent holding.
yS SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
subject to periodic overflow, shallow inlets, sea marshes,
etc. There were various systematic methods of reclaiming
it. Swamps repaid a large profit, as their lands were
always rich, and required less manure. Sometimes a
daimyo had the work done, advancing money to farmers.
At other times the members of a mura joined in reclama¬
tion. In this case the land was worked by the mura and
the profit divided. Sometimes the reclaimers acted for
their individual benefit. Those engaging in this kind of
work had a rebate of taxes for a certain number of years,
the number varying with the expense attending the work.
Special encouragement was held out for the restoration
of rice lands, as they brought increased revenue to the
government.
The richest farmers of the country are found occupying
restored land. The vicinity of Tokyo contains a great
deal of rich shin-den, and the farmers are among the most
prosperous. In Echigo there are large aresis of shin-den ;
in one place an entire lake has been drained. To this day
the whole province is one of the most fertile and prosperous
in the country.
4. Classes of landholders.
Goshi or yuisho no hyakiisho, {country-samurai; origin-
farmers). The origin of this term dates back to the
times before Yoritomo and the beginning of the military
government (1192). Goshi were nanushi or mura chiefs
who were ambitious, and by taking up a family feud, or
otherwise, extended their influence over neighboring mura,
and finally emerged as territorial lords or daimyo. These
by degrees became independent of the Mikado's govern¬
ment and stood out against it, and the result was the
feudal system. I find it stated that they held land
originally without a title from the Mikado, but paid a
tax. Afterwards they bought a title from the Mikado,
and thenceforward paid no tax. Not only did almost
all goshi become daimyo; a daimyo often became goshi.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 79
That is, a military chief, with his adherents, ceased
fighting, withdrew to his land, and became a farmer,
keeping his rank as samurai, but paying a tax to a
daitnyo or the shogun like any farmer.
In the southern region the goshi had small holdings, as
a rule; but in the northern provinces—Echigo, Musashi,
Shimosa, Sagami, Dewa, etc.—there were very rich ones,
having in some instances estates of 100,000 koku. The
great goshi of Dewa was Homma, probably the largest in
Japan, who owned more land than his lord. During the
Ashikaga period he had been a daimyo.
The Jikata Hanrei-roku, vol. 4, gives the following
account of goshi. " In early times the division of hyakusho
and samurai was unknown; all were farmers (nofu).
During the wars the strong farmers went to fight, and the
weaker ones remained to till the land. Finally, between
1321 and 1334, the commencement of the Ashikaga period,
when the greatest internal confusion existed, the separation
between the farmer class and the samurai class occurred.
From this time goshi and samurai formed the sWord-
bearing class. Thus the goshi of to-day represent the
source from which farmers and samurai alike sprang. The
goshi, however, did not become warriors and receive an
income from a territorial lord. They owned and cultivated
their own lands. They were not subject to military service,
except for the defence of the province. They differed on
the other hand from ordinary farmers, and were quite above
them in rank. The goshi had the privilege which dis¬
tinguished the upper classes of being addressed in public
by his family name. The family of lyeyasu was of goshi
descent. He was the eighth in line of an adopted son of
Matsudaira Tarozayemon, a goshi of Mikawa. The family
of Satsuma and, in fact, those of most daimyo, were of goshi
origin."
Under the Tokugawa regime the goshi occupied the
the position of squires or even of petty nobles. They could
become feudal nobles by forming a feudal attachifient to
some central power,—a daimyo or the shogun.
8o SIMMONS & WIGMORE: land tenure & local INSTITUTIONS.
They had all the rights of nobility, but were subject to
none of its restraints. They could assume the state be¬
longing to their rank, or they could lay it aside and go
about as commoners. They had the right to wear swords,
to ride on horse back, and to carry spears before them. As
a class existing under the Tokugavva rule, they probably
represented those large land-owners and minor territorial
lords who did not take any part in the wars attending
the rise of Tokugawa and on submitting were left in
possession of their land.
A farmer well-off was sometimes rewarded by the
Tokugawa government, for services rendered, by the title
and rank of goshi. The record of this was always kept in
the office of the daikwan. This differed from the bestowal
of samurai rank for e.g. charitable action in time of
distress, repairing a dike, etc. Rich men, in hopes of
receiving this honor, often performed such work. The title
was for life only, not hereditary, as that of goshi was, and
the technical name was Ichidai taito-gonien (one-life-
wear-sword-permission).
In the province of Izumi, in the village of Kaizuka, there
was an old man named Bokwan, who hid lyeyasu after a
defeat which occurred during his struggle for supremacy.
The latter afterwards offered to make him a dainiyo. The
old man refused, for he preferred his quiet and humble
life. lyeyasu then offered him the land that could be
included in the waving of his stick, with the title of goshi
and this he accepted. The hard of Sasaki, in Omi, were
made gds/it by lyeyasu. It happened in tl^s way. When
Nobunaga wished to go to Kyoto, he asked Sasaki's
assistance, and on the latter's refusal, he turned to lyeyasu,
who sent several hundred of his best men, took eighteen
of Sasaki's castles in one day, and thus opened the road to
Kyoto. After the battle of Sekigahara, the hard of Sasaki
were conciliated by making them goshi. In Kai, when
Katsuyori, the fourth son of the famous Takeda Shingen
was overthrown by Nobunaga, the adherents returned to
their homes, and either settled down there as farmers or
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 8l
took up new land. In the wars of lyeyasu which followed,
they took no part against him, and as a return he made
them goshi, and allowed them to retain their land without
taxes. It was in Kai, in fact, that the largest number of
goshi existed. The goshi of Mino, Omi, Kai, and Goshi
gori in Yamato, received their land under the go-shuin or
great red seal of the ShOgun, and those who derived their
title in this way paid no taxes.^' Outside of those kuni
there were comparatively few. In 1333, when the Mikado
Go-daigo, attempting to take the reins of government into
his own hand, was defeated, he fled to a poor mountain
district in Yamato. There he lived, supported by the
landowners. When lyeyasu came to power, he made some
of the largest of these owners goshi, under the red seal,
in honor of their service to Go-daigo. In Ise there was a
goshi, Ito Kuranosuke, who owned an entire town, Kuna,
and paid no taxes to any one. . Nobunaga had for some
reason granted him an immunity from taxation, and
this grant had been confirmed by Hideyoshi and by
lyeyasu.
After the Restoration of 1867, the estates of the feudal
nobility were confiscated and the titles abolished. The
goshi, however, retained their land, though they lost their
titles.
Go-zamurai. The goshi must be distinguished from the
go-zamurai. Having probably the same origin, they came
to differ somewhat. The go-zamurai or no-ski (farmer-
samurai), or inaka-zamurai, were true samurai, rendering
military service, but owning land and cultivating it with
kerai (servants), and not living at the yashiki or joka of
their territorial lord. Their position was more independent
than that of the ordinary samurai, and sometimes ap¬
proached that of a goshi. They had the right, as true
samurai, to give to their retainers while in their service
the right to wear two swords, and this the goshi had
not.
ig. In the Fudosan this rule is corroborated, that land granted under
the red seal of the Shogun paid no taxes.
82 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Go-zamurai were plentiful in Satsuma, Higo, Chikugo, ■
Saga, Tosa, Yamato, Sendai, and some other provinces.
In Satsuma, in fact, all owners of land were samurai;
those in the country were inaka-zamurai, those in the
towns joka-zamurai. In Sendai these go-zamurai varied
greatly in possessions; some were very poor, others lived
in the style of nobles. In this region they did not confine
themselves exclusively to the cultivation of land; they
spent the time alternately in the country and in the
joka.
In Hachioji there were a thousand or more families of
them; they had as a charge the guarding of Nikko against
fire, each serving three years at a time.
The general term for farmer was hyakusho, (or, in
Sinico Japanese, nomin).
Taka-mochi^" were large land owners, renting farms to
others. They were not. necessarily of high position in
the community. Farmers who were originally inizunomi
or kosaku sometimes became rich, much more so than
the kusawake. Then perhaps would come a strife for
position by the use of money: a marriage, for example,
or an adoption into the kusawake was bought. In
such a case they were called deki-byakusho (come-out
farmers).
Kusawake (grass-divider, that is, pathfinder). These
formed a class higher than even the ne-oi, and were
the original reclaimers of the land, the pioneers. Some¬
times a whole village was made up of from two to six
families of them. Motomachi, in Yokohaqja, was such
a quarter, and contained only six families. Sometimes
these took up land which was out of the reach of the
tax-collector, and lived in patriarchal fashion for years.
They became the respected landholders of the community;
and when others joined the village, the descendants of
these pioneers were for generations the nanushi and
20. Taka means the amount of produce for which a farmer or a niura
was assessed, the full term being koku-daka. Taka-mochi (taka posses¬
sing) signifies " one who is assessed for a large amount."
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 83
toshiyori. In old times these kusawake became goshi,
then daintyo, etc.^*
Ne-oi (root-born) hyaknsho were farmers born in the
tnura, and owning and cultivating their own land. These
comprised the vast majority of the farming class. Many
of them had inherited their possessions for several
generations, and not a few were unable to give one
any idea of when or how their ancestors came into pos¬
session of their homes. Their title was perpetual as
long as they paid the government tax. Confiscation for
failure to pay the tax was rare. If sickness was the
cause of failure to pay, first the relations, next the
kumi, lent aid until the means of payment could be
obtained. The transfer of nobles from one province to
another did not affect "the farmer directly; he belonged to
the land. The ne-oi-hyalmsho, or owners of land, were
the only ones who had the right to participate in the local
government.
Koslii-sahi (cross-over cultivation). This was a term
applied to land-owners who lived in one mura, but owned
land in another also. This additional land was oftenest
obtained by the lapsing of mortgages. They had civil
rights only in the mura where they lived. They
were comparatively few. A mura disliked to have mem¬
bers of other vinra own land within its territory when
acquired .in that way. Rather than permit this, the
mura often paid the mortgage and became owner of the
land.
Kosaku or jikari-byakusho (small-cultivation ; land-
borrowing) was the general term for a renter of land.
Kosaku used by itself, and not as part of a compound,
signifies a renter born in the mura. Many of them chang¬
ed about from one landlord to another. Eviction of short-
term tenai^s for good cause was not infrequent; but
throughout the country generally a farmer who had rented
a piece of land for twenty years or more was difficult to
21. According to Professor Komeyama, the term kusawake was
restricted to the pioneers themselves; and this seems very probable.
84 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
eject for any cause.Yei-{\ong time)-^osaAi« was the term
applied to a kosakn who had occupied rented land for an
indefinite period or for generations. It should be added
that if the produce returned by the tenant was insufficient
to cover even the tax, eviction could take place at once.
yiki-{nQxi)-gosakii was a mortgagor who attorned as
•tenant to the mortgagee. Betsu-{d\iiQveni)-gosaku was
any renter of mortgaged land other than the mortgagor.
Iri-{&nte,v)-gosakn was a renter of land who lived in an¬
other mura}^
Mizunomi (water-drinking) were farmers who for various
reasons—poverty, family troubles, etc.—had emigrated
from their native mura, and going to some other mura had
hired out as workmen or as farm hands. After a time
their masters, pleased with their good conduct, would
conclude to take them into permanent service or would
allow them to rent a portion of the land. They would then
build a house on the yashiki-chi, or, by permission of the
daikwan, on a piece of unproductive hillside, surrender
their former nimbetsu-cho, send for a satisfactory certificate
from their former nanushi, and receive a nimbetsu-cho in
their new home. When thus established, they were called
22. On this point the Jikata Hanrei-rokn, quoted in the Fiidusan, says
further: " When such a tenant fails to pay his rent, he may report
the fact to the proper officer, and the latter should urge him to pay
his rent, if possible; but the tenant cannot be deprived of his land for
that cause." The author of the Hanrei-roku, however, attributes
this permanency of tenure to the. yei-gosaku, and states that those who
had been in possession for twenty years were assimilated to the position
otyci-gosaku. This seems to have been the correct statement of the
principle. In the case of Kimoto vs. Ando, in the Supreme Court of
Japan, in 1881 (?), it was held that one who had for twenty years held
land as kosaku obtained by prescription the rights oi yci-gosaku. {Minji
Hanketsu-roku, vol. II, p. 300). There is at present a general desire
on the part of the proprietors of land subject to these perpetuities
to rid themselves of such tenancies, and this has expressed itself in
litigation. It has created for the legislators a special difficulty in the
adjustment of proprietary rights. See M. Boissonade's remarks in
the Projet de Code Civil, livre II, ire partie, pp. 293-297.
23. Other terms are mentioned in yikata Hanrei-roku : " Mei-den-
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 85
tnizunomi-byakusho. Their descendants however, became
kosaku proper.
Though eviction for misconduct, etc., was, as has been
said, not infrequent, the tenant was so rarely dispossessed
for non-payment of rent that this may almost be said not
to have occurred. If the yield, from whatever cause, was
a bad one, the landlord accepted a rebate as the necessary
consequence of the bad luck. Though no law prevented
him from dispossessing the tenant (on the contrary, the
law sanctioned such a proceeding), so strong was the
popular sentiment against summary measures of this
kind that they were next to impossible. The landlord
occupied a position more like that of a patriarch; his
tenants were as his children, and he their guardian. Kind¬
ness, generosity, forbearance, and all the -parental virtues
were expected in the conduct of the landlord toward
his tenants. In cases of sickness or distress the latter
immediately sought their landlord and he never turned
a deaf ear. In the large cities it was the custom after
a fire to give the land rent free for loo days or such
other reasonable time as sufficed for building another
home.
gosaku was a tenant who farmed land that was too extensive to be
cultivated by its owner personally. De-saku (go-out farmer) was the
term applied to the iri-gosakn by members of the mura where he
lived. Iemori-(ho\ise-TCL3.nz.gcr)-gosokH was a lesse who acted as agent
for the collection of rent. A man who had a great deal of land, and
was also too much occupied with other matters to attend personally
to its leasing, would employ another to take charge of the matter, a
piece of land being let to him gratuitously by way of salary."
Small owners of land were sometimes called hira-byakiishu (lower
farmers) or ko-byaknsho (small farmers). Kosaku, meaning literally
"small cultivators," seems to have suffered a change of meaning.
Mizunomi was sometimes used contemptuously by the upper
classes of the village as including both kosaku and mizunomi
proper. Proffssor Komeyama says that in some cases the kosaku
class represented the descendants of the early serfs, who had gradually
risen in position; in other cases they were, as Dr.-Simmons observes,
merely mizunomi families who by long residence became able to look
down upon more recent arrivals.
85 SIMMONS & WIOMORE: LAND TENURE & LOCAL INSTITUTIONS.
If a tenant was notified to leave, no rent could be collect¬
ed from the day of the notice, no matter how long there¬
after the man remained on the land.^*
yisha-ryo (temple-fief) hyakusho were farmers who cul¬
tivated the temple lands [go-shnin-clii) given by the
Shogun under the great red seal to various sects. The
Nikko and the Shiba temples have the most extensive
holdings. These grants were greatly increased under the
Tokugawa rule. The taxes on them were exceedingly low.
The rate of the Nikko land was three in ten. A curious
fact which I observed at Nikko was that the people on
the temple lands were very poor, while those of the neigh¬
boring dainiyo's domain, where the tax was severe, were
thrifty and prosperous.
Communal ownership. Such common ownership of land
as characterized a mnra was in general of three kinds;
first, temple lands, endowments given by the parishioners;
second, reclaimed by the miira ; third, grass land
or meadow, for the most part perpetually fallow, and tracts
of forest and mountain land. The meadows {hara). were
often large, and frequently belonged to several mura in
common. They were not cultivated as meadows; the
grass was cut when needed. This land was often the
source of quarrels and sanguinary contests between villages
over the question of boundaries. Even a court decision
was sometimes disregarded, and the police or the military
were called in. Much of the waste land belonged to the
towns and villages. No one had a right to cut the timber
24. The subject of tenancy is here touched upon only enough to
stimulate our desire to examine further. It must be understood that
the statements of the text probably do not apply outside the districts
of the northeast under the direct influence of the Shogunate adminis¬
tration. The individuality of the more distant provinces doubtless
expressed itself in their customs with reference to landlord and tenant.
In Satsuma especially, as well as in Tosa, and other southern regions,
we must look for a special development. Fortunately the land tenure
of Tosa forms the subject of an extended manuscript work, recently
finished but as yet untranslated, b3' a local scholar; and it is reported
that a similar work is under way in Satsuma.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 87
or to use the lands without the consent of the villagers
as a body. When a piece of the land was to be sold, the
villagers were called together, the nanushi presiding, and
a price agreed upon. This procedure is still in use.
The ko-cho (head of the village) receives the price, and
puts it in the hands of the government bankers. The
villagers never receive it directly, and it is used to liqui¬
date the yearly taxes.
No stranger coming to a village could take up a piece
of new land for improvement without the written consent
of all the farmers. In former times such strangers must
have been farmers by occupation, but in recent times the
privilege had been extended to men of means of other
occupations; still in such a case permission was to be
obtained from the daikwan.
In some places land was given to the mnra for ferries
and bridges. Land coming to the mura by confiscation,
as described later,.must also be noted here.
The imira also owned sometimes a place for burying
dead animals. The cemeteries usually belonged to the
temples, but in some places there were burying-grounds
which belonged to the mura.
In some regions, especially where the land was shin-den,
(obtained by draining a lake or a swamp), there existed a
peculiar system of farming, still to be seen. The land
owner had an establishment which in size almost equalled
that of a daimyo, A large number of peasant families lived
in a village within the enclosure set apart for residence,
and were fed from a common kitchen. They worked the
land as serfs, and many generations had preceded them in
the same occupation. They paid some sort of a tax to
the landowner. It is said that the purpose of this arrange¬
ment originally was to have about the farmer, in disturbed
times, those who might protect him from robbers and
predatory nobles. The goshi maintained a similar body
of dependants, and these became the nucleus of the power
which ultimately made many of them daimyo. Today
this system of cultivation may be seen in Echigo, Dewa,
88 SIMMONS & WIGMORB : LAND TENURE & LOCAL INSTITUTIONS.
Satsuma, Tosa, and a few other places. Some of the
large merchants in western Japan also lived in the same
way. The serfs were variously known, according to the
locality, as fudai, monya, niwago, kaho.^'
5. Mortgages.
Mortgages of land were controlled by quite different
customs in different regions.The following were the
common rules.
All mortgages were to be recorded and sealed by the
nanushi and kumi-gashira. When a nanushi made a
mortgage, he had to procure the seal of another nanushi
25. The communities here noted would seem to be remnants of the
manorial system of mediaeval Japan, the cultivators never having been
able to free themselves to the extent reached in other parts of the
country. The localities where these communities are stated to have
existed (localities removed from the possibility of frequent interference
from the Tokugawa family or of indirect subjection to its influence) are
those where that system and its incidents are likely to have remained
longest. I have inserted here the notes on this subject simply for want
of a better place, as it does not clearly appear that there was any com¬
munity of ownership or even of cultivation among these serfs. At the
present day much might be learned from a visit to the districts where
the traces of the system remain.
For a brief account of some joint-family communities in Hida, see
the Appendix.
26. The mortgage law, which seems to have been largely customary,
is one of the most interesting topics for the student. It would be out
of place to give here any further account of its details. The notes of
Dr. Simmons, though they touch on a few points only, are substantially
correct. But it is almost impossible to make general statements upon
the subject of mortgage customs, for in no other department was there
a greater divergence between the practice in different localities. It is
worth noting that in some provinces there was evolved a double form
of mortgages, corresponding almost exactly to the English common law
mortgage, in which the ownership passed to the mortgagee, and the
English mortgage as administered in courts of equity (or the ordinary
mortgage in most of the United States to-day) in which the transaction
simply gave the mortgagee a lien on the land, the ownership remain¬
ing in the mortgagor. Either of these forms could be used, as the
parties wished.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 8g
or of a toshiyori. A portion of a name-land (each piece
of land had a name) could not be mortgaged; for the
name-land must not be subdivided. If payment was not
made at the appointed time, the title of the mortgagor
did not become absolute. Payment with interest at any
time in 20 years after the making of the mortgage was
sufficient. If the mortgage was for less than lo years,
only five years after the date of default were allowed for
payment. Money was sometimes loaned with a provision
for repayment whenever the borrower could raise it. In
such a case ten years was taken as the limit. After that
time foreclosure took place. Even if a clause provided
for foreclosure one day after default, sixty days' grace was
usually given. In the year 1721 a law of the Shogunate
fixed ten years as the maximum limit of a mortgage.A
second mortgage by the lender needed the consent and
seal of the first mortgagor. If the land named in the
deed did not correspond in description with the same
land in the village register, the seller and all whose seals
were on the deed were punished, if the matter came
into court. If payments were made on the debt during
the term but a final default occurred, foreclosure ensued
without regard to the payments made. In case of fore¬
closure, the mortgagor had the first right to work the
la.nd (^jiki-gosaku), if he was not an undesirable charac¬
ter. If temple land given by the government was mort¬
gaged, the land was confiscated and given to another
priest, and the offenders (borrower and lender) punished by
banishment from the great cities.
27. For provisions relating to mortgages, see the Kujikata Osadame-
gaki, I, Art. 57, II, Art. 31 etpassim [Mitthcil. d. D. Gesells. Ost., Heft
41).
It is likely that in many districts there was no limit to the time
within which redemption might occur, and that practically such a
mortgage ofto* became a perpetual or at least a life-long one.
go SIMMONS & WIGMORE: land tenure & local INSTITUTIONS.
6. Succession.''^
The eldest son was the heir apparent to the father's title
and to the homestead, and in certain professions—such
as doctor, artist, and various others—he was expected,
it is said, to follow that of his father. In the division
of the property females received no share. An exception
to this rule appeared, however, in the case of old families
or large landed estates, when there was no male issue.
The eldest [?] daughter was then betrothed to someone
of the parents' choice, and the homestead then went to
this couple. An instance of this happened in the
family of a friend of mine. In this case the woman
had the better business ability, and a large estate, includ¬
ing one of the best known hot springs, was managed
chiefly by her ; the husband found his pleasure in books
and paintings. In the disposition of property, the will
of the family members had no effect. A testament, if
made, had to be signed and sealed by the nanushi and
kuvii-gdshira; though, if land was not given by it, the
names and seals of the members of the family or of
relatives were sufficient.
If the land was less than one cho in area, it could not
be divided.^' If it was greater, the excess could be given
as the testator pleased.
The usual mode of dividing an estate by will was this:
The eldest son would receive the homestead and half the
entire possessions of the father ; the remainder would then
be divided equally among the other sons. As an offset
»
28. The subject of Succession has already been systematically treated
by Dr. H. Weipert, of the Imperial University, in hisJapanischcs
Familien- und Erbrcchf" {Mitthcil. d. D. Gcsclls. Ost., Heft 43,
1890). But, as Dr. Weipert remarks, "of the miseraplebs and tht'ix
legal relations the Japanese annals and laws make very little
mention ;" and it is because the information of Dr. Simmons was
beyond any doubt acquired by oral relation and represented the customs
in actual force among the commoners that it seemed best to preserve
his notes on this subject. To fullness and system they of course have
no claim.
29. See note 12, Chapter II, 2, ante.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. Qt
to this apparent inequality, it must be said that the eldest
takes virtually the place of father to the others. If at
any future time one of the younger sons meets with
misfortune, the elder brother's roof must always provide
shelter for the younger one and his family. This assist¬
ance may continue for a longer or shorter time, until
the unfortunate one can establish an independent home
again; but in doing this, too, the elder is bound to assist.
Sometimes the widow and children of a younger brother
come to claim shelter. I had a friend who in this manner
had eighteen of his relations to feed and shelter.
In case of a sudden calamity, such as fire, not infrequent¬
ly all the other members of a family join in reestablishing
the unfortunate one in a home and in replenishing his
stock of goods, if he carries on such a business as requires
one. The money thus given is sometimes called a loan ;
but it is a sort of perpetual loan; if the debtor can pay,
he does; if he cannot,—well, it is all in the family, and
no one complains. There is of course an end to for¬
bearance and generosity; and if any member of the family
is incorrigibly thriftless, he may be expelled from the
homestead.
III. LOCAL RURAL INSTITUTIONS.
I. The mtira"" in general.
The size of a village was fixed by the Taiho-ryo at
fifty houses or families. It would then have represented
fifty holdings of land. The size at present, however, is
variable. It ranges in size from a single street a quarter
or half a mile long to a town of several hundred houses.
The name of the mura is taken from the name of the
principal cluster of houses in it. Scattered dwellings are
the exception, even in the rural districts, the cultivators
usually living in the village on the principal highway and
going out thence to work in the fields.
The population is exceedingly stable, as a rule. The
30. This word is accounted for by Messrs. Satow and Chamberlain as
follows, in explaining the word " Imibe," the name of a clan or family
of priests often mentioned in early literature : " Imibe is compounded
of imi—, to dislike, and be, said to be identical with me, a
contraction of mure, flock or body of persons, with which are connected
mura, village, and muragaru, to flock together. "{Satow, in Trans.
Asiat Soc. Jap., VII, pt. 2, p. 132, note 44.) "Imibe is derived from
imu, to avoid, and mure, a flock or collection of persons, a clan,"
(Chamberlain, id., X supplement, p. no, note 32.) "Muraji" in the
Kojiki, with the meaning " chief of a tribe," often occurs.
Other terms were yu, sato, zai-zai and go. Go in later usage
signifies usually a cluster of mura. ' In some places a natural cluster
seems to have been meant; in other places an artifitj^al grouping formed
by arranging all the mura of a daimiate in several go. According to a
kumi-cho quoted in the Chiho Seido-lsu, there was in every go a public
storehouse for the tax-rice coming from the- mitra included in a go. In
the Yamato Hansei, go is used as a collective name for all the mura of a
ban; the go was said to be divided into kti and mura.
The following explanation of the ancient terms go, ri, and sato is
given in Mr. Kurida's Shoyen-ko. His account (which is satisfactory
as far as it goes, but does not for the purposes of research do greatly
more than make plain the accepted uses of the terms) is an intricate
one and has been paraphrased. " In the second year of Taikwa (A. D.
647) the gun were classified as follows: one of 30 to 40 ri was a great
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. ' 93
villagers are for the most part engaged wholly or partially
as cultivators of land, and in the vast majority of cases
many generations of cultivators have been born and have
died on the same spot. This I know from the almost
numberless replies that I have received in answer to
gun, one of 4 to 30 ri was a medium gun, one of 3 ri or less was a small
gun. Now this ri was not the measure of length used today, but was a
grouping of families, every 50 families forming a ri. But in the period
Wado (A. D. 708 715) the term ri was changed to go. The country
was thus divided into kuni, gun, and go instead of ri. We find
complete evidence of this in the comparison of the village names of the
period as they are written in different books. The term ri (or sato, its
equivalent) is replaced in the later books by go and refers to the same
districts. We find also from the same evidence that parts of the same
ri or sato (afterwards go) were called mura, as, Honi mura in the
northern part of Narihama sato. But another change of terms took
place; the go was regarded as subdivided into ri-, that is, ri and mura
became equivalent, the word mura finally surviving. So that the
subdivisions of ri and mura were afterwards called go and ri, and then
go and mura. In the Jori-Zu-Choko a book published in 1884 by Mr.
Motoori-Uchito, there is a very good explanation of the reasons for
these changes. He says; " In the survey and allotment of farm lands
in early times, the terms cho, ri, and jo were used, 36 cho making one
ri, and 36 ri one jo. When a piece of land was referred to, it was said to
be in the second ri of the first 70, for example. But the term ri was also
applied to the administrative subdivision of 50 houses. Ri therefore
might refer either to an area of land or to a political district; and to put
an end to the confusion which ensued, the word ri, meaning a district,
was replaced by go. In official documents thenceforth the terms go and
mura were used. But the people in private documents still continued to
use ri in speaking of the political district; that is, they said ' X ri in Y
gun,' But the term ' X ri in Y go' might still be used to refer to a
given plot of land, and the place of a person's residence was often
expressed in this way. So that the ri, instead of being denoted by
numbers, came to have special names, and there came to be a confusion
between the political districts (called mura by the officials but ri by the
people) and the plots of land. So that finally the use of the word tnura
exclusively was required in referring to the political district. We have
no account of the boundaries of the various go or their changes; but the
total number seems to have been a little over 4000."
If we accept this ex'planation, we may suppose that the imira was a
small settlement formed by the enlargement, in the course of years, of
single families or small groups of families. The original family or group
94 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
inquiries. The answer usually is: "We do not know
where our ancestors came from or when they came to live
on this spot. Our temple-register {tera-cho) may tell, but
we have never thought about the matter." If I ask when
they became one of the kttmi they answer that they do not
of kinsmen may have established a home corresponding in the course of
its development to the Germanic Einzelhof. Just as the Einzelhof (if
we adopt one of the theories as to Germanic institutions) grew into a
Gehoferschaft or cluster of farms, so the ke (single family) or be may
have grown into the miira. It is not possible, without further
information, even to speculate upon the question whether the inura, if
it thus arose, was the growth from a true Einzelhof or free proprietorship,
or was composed of or dependants. But it seems clear,
apart from possible analogies, that in the beginning the ri was simply
an arbitrary group of fifty families, perhaps widely scattered, and that,
as time went on and the settlements enlarged themselves, they needed
a new generic term; thus mura came to be the lowest political sub¬
division, and the expansion of the original settlement obliterated the
old boundaries and made the W, afterwards the go, of minor importance.
It is obvious, however, that the explanation quoted by Mr. Kurida
does not account for the choice of the particular term mura, in place of
ri, and more light is still to be sought on this point. Other circum¬
stances must have brought the word mura into use and must have made
it a term to which resort would naturally be had as a substitute for ri.
What were those circumstances ? I believe that the true significance
of mura is to be found in the etymology already given [mure, be, tribe,
clan, collection of persons) and in related facts, and not in any direct
connection with the administrative district ri of the Taiho period. If it
is true, as I have been told by a well-known Japanese scholar, Mr. Kato
Hiroyuki (now the President of the Imperial University) that it was
the name for the clans of the c«mmon people only, the dorei or slaves,
ke or ka being the term used for the families of tjje conquerors, who
become the gentry, then the use of mura, as a word of later times,
applicable presumably to newer groups or settlements, may furnish the
means for tracing the settlements and colonies of slaves as distinguished
from those of freemen. Dr. Ross, among others, has emphasized the
necessity of distinguishing between the two ;-and, as in Europe, so in
Japan, we must have clear notions on the course of development in this
respect before we can solve the problems relating to land tenure and
local institutions.
Since the above was written I have found that Dr. Florenz, in his
" Altjapanischc Culturzustdnde," confirms the foregoing signification of
the term be, and his statements are given in full in the Appendix.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 95
know; nor do they know when the gonin-gnmi system
began. "Our fathers and greatgrandfathers belonged to
our kumi, and for ail we know it has always existed. We
never heard any one say when it began, or that it was ever
very different from what it is now." The people of country
towns and rural hamlets of whom these inquiries were
made are no less wise on this point than the better-
informed people of the great cities.
2. The Gonin-gumi system.
The chief feature in the arrangement of the mtira was
this gonin-gumi system. Every five families were united
as a kumi or company." In various places the mode
of grouping differed, but the principle was always the
same,—contiguity of residence. Sometimes every five
consecutive houses on the same side of the street were
united; but if the houses were two or more deep, this
order would not be followed. Where the houses were
scattered the grouping was more irregular, but was still
done so as to unite adjacent homes in the same company.
Sometimes the houses of a kumi were scattered among
other houses, but this was rare and arose from the building
of new houses between scattered homes originally united
into a kumi at an earlier time. In such a case the old
grouping was always preserved, and the new houses were
arranged (by the nanushi and kumi-gashira) into new
groups. The kumi were all numbered, beginning usually
at the north or west end of the village.
In the formation of the groups no regard was paid to
the class or condition of the individuals except that the
yeta were always excluded. Thus it might happen that
31. Often the kumi consisted of six householders, as appears from the
Chiba kumi-cho, in the Appendix. In the territory of Todo Izumi no
Kami, in Yam'lto kuni, some kumi held more than ten householders.
Probably in some cases an effort was made to restrict the kumi to a
uniform size, while in others no care was taken and new homes were
indiscriminately registered in old kumi without regard to the number
already included.
96 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
a rich farmer with extensive possessions was grouped
with his poorest tenant. A wealthy merchant would
be found with a blacksmith or a cooper, the nanushi with
a pauper farmer or the most humble mechanicT or trades¬
man. Thus all classes, without regard to their possessions,
occupations, or social standing, were brought together in
a kiiini on an equal footing. There was no room for
choice. .Each heir to the homestead accepted without
question his associated neighbor in the humi. He had
received his place from his father, and he in turn from
his ancestor, who in the extension of the viura or in the
settlement of new land, centuries before, had been one
of the original units-allotted to this kiimi.
One of the number was selected by themselves as
headman {go-cho) or seal-bearer.'^ To this office would
naturally be chosen the most intelligent or the wealthiest
of the k imi. Other thing being equal, however, intelli¬
gence and antiquity of ancestry took precedence of mere
extent of possessions. He was also called kitini-oya,
(company-parent) or ban-gashira (watch-chief), and was
required to be a land-owner, and, in a farming district,
the owner of farm land. His seal was affixed to all
written agreements or other documents in which the kutni
was concerned. In certain cases this seal was necessary
in order to establish claims against individual members
of the kumi, e.g. in case of a mortgage of land. In fact
the courts were slow to recognize a loan of any kind unless
evidenced by the stamp of the kitmi to which the alleged
borrower belonged. Hence the private fcusiness of each
member of the kumi came under the supervision and con¬
trol of the kumi as a body. In this way the more shiftless
were prevented from involving themselves improperly in
liabilities detrimental to the kumi. For as a rule, the
kumi as a body was responsible for the defaults of its
32. In Sendai Han, however, the heads of the kumi were appointed
by the kimo-iri or chief of the mura. This illustrates the strictness
and lack of liberty which were typical of the administration of daimyH
in contrast with that of the ShOgunate.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 97
members, and even of their wives, children, and servants.
The carelessness or evil-doing of a single member meant
full responsibility on the part of the other four also.
If," however, any member persistently failed to conduct
himself properly, he could be reported by his fellow-
members to the miira officials.
The gonin-gumi system was not limited to any particu¬
lar region. It penetrated to the most remote parts, in¬
to every corner of the land. It was if anything, more
distinctive and less unchanged in the more distant regions.
In Tokyo it seems to have been less thoroughly kept up;
but in Kyoto its integrity was complete.
As to the origin of the system no very satisfactory
information exists. At the beginning of the Tokugawa
regime, the system was thoroughly investigated and a
search made to discover its origin, but no information
was obtained. The author of the yikata Hanrei-roktt fails
to give any authoritative explanation, but refers vaguely
to a Chinese system of military organization in 'which
five men seem to have been the unit of subdivision, and
surmises that this furnished the model for the Japanese
system. In the Taiho-ryo it is stated that the population
was to be organized into companies of five each. As far
as I am aware this is the earliest mention made of the
system.*^ Though the passage in the Taiho-ryo might
at first glance convey the impression that the custom
did not previously exist, I think it is not assuming too
33. According to the Chiho Seido-tsu and the authorities cited therein,
the ho, of the Taiho-ryo period, the original of the gonln-gumi of
later times, possessed even at that date very similar features. It was
conposed ordinarily of five families, but there might be more or fewer.
There was a hO-cho or chief of the ho, whose duty it was to oversee
the conduct of its members "so that they should fall into no vices."
When a stranger lodged at one of the homes of a ho, or when any
of its membeft set out on a journey, due notice was to be given ; and
the responsibility for the conduct of the members seems to have
rested on the ho-chd. When a member of the hd deserted his land,
the others were to cultivate it for three years, at the end of which
period it was confiscated.
g8 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
much to believe that it was already in existence. In
China there exists or existed the division of a town or
community into groups of five, each of which furnished
a soldier. A grouping for the same purpose now exists
in Corea. In that country the purpose seems to be a
military one only, while in Japan the military purpose,
if it existed, has been entirely lost sight of. In view of
the intercourse then existing between Corea and Japan
and of the constantly accumulating evidence that a large
number of the early customs of Japan, especially those
relating to the governmental and military organization,
were adopted from Corea, it is quite unnecessary to
attribute the existence of five-groups in Corea and Japan
to a mere coincidence. My own opinion is that the
gonin-giimi system had for its object the furnishing of
soldiers, and that it was copied from the similar system
in force on the continent. Certainly, if this were its
purpose, there need have been no objection on the part
of this or that family to associate with those of widely
different social conditions. Indeed the grouping of higher
and lower classes together indiscriminately for military
purposes would have a decided advantage, as it could easily
be arranged by the richer members of the ktmii to send
one of the poorer members to the army. An investigation
of the kumi system of Corea would throw some light on
the origin of the Japanese system. In view of the fact
that simple juxtaposition furnished the principle of group¬
ing, it is impossible to conceive of its having been a
voluntary organization as regards the method of grouping.
The elements were too incongruous. As an illustration
of this we may recall the impossibility now experienced
of reorganizing the kumi which have been disbanded.''*
34. The passage from the Taiho-ryo, given above, seems to show that
even at that early date the hu (the kumi of later times) were regarded
in the light of an administrative device for securing order and good
conduct. This would seem to negative the supposition that there was
a military purpose in the beginning. If it is true that the mass of
the people were serfs, there may have been an incidental military
SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS. 99
I have had no time to lose in the investigation of this
subject from original sources, as the system, except in
remote districts, has already gone into decay,—a result,
of course, of the wide-reaching changes which have
followed in the train of what is known as the " Restora¬
tion." What is most surprising is that thousands of
the rising generation have never even heard of the gonin-
gumi, and not one in a hundred of the educated classes
has any idea of its past scope and importance. Yet
it is beyond a doubt that the social importance of the
kumi system was immense." Characterized by a method
of grouping whose tendency was to level all distinctions
of rank, wealth, or person, the induence of the kumi in
moulding and determining the form of society, especially
significance to the ho, for each owner of serfs may have been required
to furnish a soldier from every ho or from some multiple of a ho.
But the military services of a not much later period seem to have been
calculated according to the production of the fief or holding, as in
Europe, each soldier, horse, etc. being represented by and perhaps
commutable into a quantity of rice. This would bear against the
probability of a different system having existed in the Taiho period.
In an Appendix is given a translation of an article by Mr. Kurida
upon the origin of the kumi system.
The continuance of the ho and kumi system throughout the middle
ages, if it is a fact (and it is mentioned from time to time in the chroni¬
cles), tends to corroborate the view that the peasants of later times
were the successors of the early serfs and that as late as the sixteenth
century serfdom was only beginning to wear away. For tbe preserva¬
tion, amid the changeful and stirring times of the fifteenth and six¬
teenth centuries, when daimyo families sprang up by the score and
any man might seize power and territory, of so rigid a system of local
administration as the gonin-gumi system, shows in what subjection
the cultivators of the soil must have been kept during the whole
period.
35. The author of the Yumato Hansel, commenting on the gunin-guml
system as carried out in the territory of Yagyu Tajima no Kami, speaks
as follows: ^ The gouln-guml system, as administered here, was
admirably perfect. A kumi was indeed like a family; its members
felt a similar interest in each other, and the pains and pleasures of each
were shared by the others in a wonderful degree. The welfare of each
kumi was felt to have an important influence on the political importance
of the fief."
100 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
in the rural districts, was marvellous and has no parallel
in the history of any country with which I am acquainted.
It was in fact one of the three foundation stones, so to
speak, of the whole social structure,—the other two
being the principle of ancestral worship and its derivative
practices, and the institution of the nimbetsu-cho or temple-
register.
The five-home grouping must not be confounded with
another grouping of six, which was what might be called
an informal one, for social purposes. It was not a fixed
grouping, but was simply the cluster of houses nearest
to each house. The idea was expressed by the popular
saying, " Mukd-sangen, ryd-donari,"—"Three houses
opposite, and one on each side." It was a conventional
arrangement which represented and kept alive the spirit
of neighborly friendship and assistance. When a family
arrived in a neighborhood, it was customary to send to
its three opposite and two adjacent neighbors from three
to five boxes of buckwheat cakes, with a request for friend¬
ship.*®
3. Mura officers.
Nanushi.^^ At the head of the mura was the nanushi.
For the same office the term used west and south of Hako-
ne was slwya. The nanushi of a mura subject to a small
36. This custom seems still to survive.
37. The origin of the terms nanushi and shoya is connected with some
of the most difficult problems of Japanese history, the solution of
which rests as yet on hypothesis only. A brief explanation must here
be sufficient. Towards the end of what may be called the Taihu-ryo
period {yoo-1150 circa) a larger and larger area of land came to consist
of the tax-exempted holdings called shdyen. A process of concentra¬
tion of land into the hands of the few seems to have been going on;
small free tenures disappeared; and the distribution of the land became
manorial in its character. Shdyen, indeed, so striking were the re¬
semblances, both in origin and in incidents, may well be rendered
manor. Professor Konakamura's statement is that those who were
placed in charge of the shoyen by the rydke (governing-family) or
lord of the manor, were known as shdji or shdya. If there was a
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. lOI
hatamoto was sometimes given the flattering title of dai-
kwan. The office of course varied somewhat in character
and influence in different places, and, as will be seen,
the chief differences occurred in the region where shoya
was the title. But the office had the same distinctive
character everywhere, and the term nanushi will here be
shoya for each mura, the connection in the use of terms would thus
be direct and clear. Whether the office of shrya under the Tokugawa
was in fact a direct development is not clear; but the term had the
above origin.
Shoyen consisted largely of shin-dcn or land newly cultivated. Such
land had special privileges of tax-exemption, and the reclaimer gave
his name to the plot reclaimed. Thus the term myo-dcn (name-land)
arose. The manor lord whose domain was large was called daimyd
(great-name [-land-owner]); one whose territory was small was called
shOmyo (lesser-name [-land-owner]). The person placed in charge
of any portion was a myu-shu (name [-land]-steward). Now the same
ideograph represents myo-shu and na-nushi, the latter being the Japan¬
ese reading, the former the Sinico-Japanese. A nanushi, therefore,
was not essentially different from a shrya. I may add that this ety¬
mology of these terms throws some light on the fact that nanushi
was a term confined, as a rule, to the northern and eastern provinces;
for these localities were settled at a later date, and would have been
for the most part shin-dcn, so that the terms myS-dcn, myo-shu, and
nanushi would naturally have been most prevalent in those regions.
Professor Miyazaki also holds to the above etymology. Na, further¬
more, he states, still means in Tosa " a piece of land," and the farmers
are called na-ko (children of the soil). In the Sht'ycn-ko Mr. Kurita cor¬
roborates the above opinions as to the origin of the term nanushi. The
complete term, he states, was nanushi-shoku, and old documents are
cited in evidence. The term shoya is not mentioned by Mr Kurita.
Professor Komeyama asserts that this term did not come into use
until the time of Hideyoshi (1590 circa), who in reforming the system
of taxation replaced the namishi, in many quarters, by shdya. This
■does not seem to me probable.
In the island of Kyushu, in the periods Keicho and Genua (1596-
1624), the title bctto was used (the Chiho Seido-tsu). In Sendai han
the title corresponding to nanushi was kimo-iri. This word means
literally " live^ (heart ?)-roasting," and evidently refers to the person
who presides at some ceremony. In the records (sent me by the
Governor of Miyagi ken, where Sendai is situated) of some curious
societies called variously kdjii, kumiai, kcitci, etc., I find that the pre¬
siding member was called kiinoiri.
I02 SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS.
used as the general term applicable, except where it is
explicitly contrasted with shoya.
In a large mura there were sometimes two nanushi ;
more often two small mura had a single nanushi.
From the point of view of the lord of the soil, the
MflnMs/ii was responsible for the conduct of the peasants,—
for their payment of taxes, for the commission of small
offenses, and for the general peace and order of the
community over which he presided. From the point of
view of the local community the nanushi was their repre¬
sentative in their relations with their lord, and their chief
in matters of local autonomy. He was the patriarch of
the village. He was the final judge in all matters in which
an appeal did not lie to the daimyd or the Shogun. He
entertained travellers, and gave money to poor ones. He
often made up from his own pocket the rent of poor
villagers. It was rare that he was corrupt. As a rule
he was always ready to use every means to deceive the
lord on behalf of the farmers. The occasion for this was
most frequently the kemmi {ken, measurement, mini, see)
or examination of fields for the purpose of determining
upon a rebate of taxes. This proceeding, which was
attended with considerable expense, took place only at
the request of the people. Some mura never required
it; others were always asking for it. The nanushi made
out beforehand maps and estimates and submitted them
to the daikwan, who often verified the estimates hy
personal inspection The time taken was noon, for in
the forenoon the crops look best, in the«afternoon worst.
If the nanushi was skilful and devoted to the interests
of the people, he led the inspectors over the worst parts.
Bad rice seen from a high place looks comparatively good;
hence the nanushi tried to take the lowest road. In fact
the farmers often made their roads with this object in
view. They even spent their skill in raising bad rice for
a year at two in order to get the tax abated.
In these ways and in all others the nanushi was the
people's representative and protector in all relations with
SIMMONS & WIGMORB : LAND TENURE & LOCAL INSTITUTIONS. I03
the lord of the soil. A wise nanushi kept on good terms
with the daikwan and was able to exercise great influence
with him. Quite a different kind of influence was some¬
times exercised, for the daikwan was not always proof
against bribes. The condition of the people of a given
tnura, therefore, depended somewhat on the character of
their nanushi. If he was able and discreet, he advanced
their welfare greatly; if he was weak or careless, the
people suffered from the encroachments of the lord's
officials and their condition deteriorated. In the south
and west, where the shoya were never the champions of
the people to the degree that the nanushi were in the
north-east, and in the domains of the daimyo generally,
where the people received less consideration than at the
hands of the Shogunate, the condition of the people was
a far inferior one.
The office of nanushi until the eighteenth century was
everywhere an hereditary one, belonging usually to the
oldest and most respected family of the mum. If the
incumbent died, leaving only a child to succeed him, the
kumi-gashira acted as regent until the young man's maturi¬
ty ; in the south and west, the toshiyori fulfilled the same
duty. If, too, the son proved not a very competent person
the advice of the kumi-gashira or the toshiyori became
the controlling influence, and the latter practically filled
the office.
The hereditary nature of the office had been infringed
upon in many cases. There were frequent instances in
history of the inheriting family being changed by the choice
of the people. But as this was always done through
the daikwan, the exercise of choice was of course ham¬
pered, and it can hardly be said that there was any
custom of election. The rule was inheritance, the excep¬
tion election. In the year 1716, however, when Kanno
Wakasa no Kami, a man of wide reputation, was Kanjo-
hugyo of the Shogunate, the rule which required that
the choice of a new nanushi be made at the office of the
daikwan was abolished. From this time on the election
104 SIMMONS & WIGMORE t LAND TENURE & LOCAL INSTITUTIONS.
took place at the house of the kuini-gashira (or toshiyori)
or of the hyakusho-dai. There was never any nomination
by the daikwan, but a free choice by the villagers. If,
however, the nominee was not a prominent and highly
respected man, if he had gained the place by wire-pulling
or perhaps even by bribery, the daikwan, giving his reasons,
would advise the farmers to reconsider their choice, and
if their selection had been a bad one the farmers seldom
failed to be convinced. The choice however, fell usually
on the most prominent and respected member of the
community. It was not always the richest man, who'
perhaps had too much other business to attend to; but
some one less rich who was of good family. The office
was a desirable one, and the large farmers who were am¬
bitious would train themselves for the position by study of
its duties. The sons of the better class of farmers in dis¬
tricts near Yedo would go to the Gundai Yashiki in Yedo
for the purpose of studying to become nanushi. After
1716, when the election of the nanushi became free, and
was no longer confined as a rule to a single family, the in¬
cumbent was changed frequently, in some places every
year or two. If, however, the office was left vacant by
death, a son who was capable and had been trained for
the place would probably step into his father's shoes.
But all this was true, as a rule, only of the dominions of
the Shogunate and the other daimiates where its influence
predominated. South and west of Hakone the old custom
prevailed; the office remained hereditary, and any choice
of the people, when made, was effected yirough the dai¬
kwan.
The change in the north and east was brought about
by a petition of the farmers, who preferred to choose
their own officers. Their proximity to Yedo was indirectly
the cause of their being able to petition so effectively;
for one result of the well-known custom by which it was
the privilege and the duty of the farmers of the Shogun's
dominion to send their daughters for a term of service
in the residences of the Shogun and the daimyo in Yedo
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. I05
was the creation of a powerful influence in their behalf
in the official circles of the Shogun's capital. There was,
however, in addition, a difference in character between
the farmers of the north and east and those of the south
and west. The latter were inclined to be more submissive,
both to officials and to samurai; the former were more
independent and less cringing.®' As a result of the change
38 " This difference between southerners and northerners" Df.
Simmons goes on to say (he is here repeating what Mr. Otomo has
told him) " was to be seen in other qualities also. The northern men
were frank and open; they spoke out at once and said all they had
to say. If there was a quarrel, it was fought out at once, and laid
out of the way. The southerner was secretive, cherished his animosi¬
ties, planned future revenge, and returned again and again to the same
grievance. The northern men made and spent money freely. Hotels
were prosperous, and commerce and industry generally were thriving.
In the south there was little money moving. Trade was on a small
scale. A southerner could commence business upon fifteen yen; a
northerner would require five hundred yen. For a southerner who
was a laboring man fifteen-yen was a small fortune, and not one in
a thousand ever accumulated that amount of money. In Mr. Otomo's
opinion one cause of the difference was a separate race origin."
As to the cause of the difference of character between nnnushi and
shoya, one or two other considerations may be noticed. The com¬
munities of the Kwanto and the north were formed by the settlement
of colonies at a later period than those of the centre and south-west.
The gentry as well as the peasants were likely to have a much more
enterprising and independent spirit. The adventurous nature of their
undertaking and their (for a time) semi-independence of the central
government must have had the same results in their case as in that
of all colonists. Moreover, the nature of their situation was to facilitate
slightly the passage of individuals from one class to another. As there
were probably free colonies as well as colonies of serfs, certain dis¬
tinctions must have lost their radical character. In the course of
the feudal development, from which the peasantry emerged distinct
from the military gentry, there must have been a fusion between the
freemen engaged in agriculture and the serfs of former times. The
result of this was a depression of the small freeholders but an elevation
of the genera? mass of cultivators, with an incipient loosening of their
bonds and the growth even of local autonomy. On the other hand,
in Satsuma, a type of the regions earliest settled, no such general
flux could occur. No separation of the military and agricultural classes
took place. The gentry (samurai) were land-holders, apparently as
106 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
of 1716, the farmer class were left almost entirely to them¬
selves in local matters. The power of the nanushi became
less and the farmers grew more and more independent.
The method of election was as follows. The voting
took place usually at the house of the kumi-gashira (or
the toshiyori) or of the hyakushd-dai, sometimes in "a
temple. The rules for the election were written out, and
were as follows:
" I. All votes must express the individual choice of
the voter. Any vote which is the result of agree¬
ment with other persons (sodan-fuda) is void.
2. A ballot without the voter's seal is void.
3. As the election of nanushi is an important matter,
the candidate should belong to a highly honorable
family, should be a man of independent means and
a land-owner; if he has no means, he cannot be
a capable man of business or have the confidence
of the people.
4. If the man who receives the highest number of
votes does not fulfill the above requirement, it is
in the power of the kumi-gashira and hyakushd-dai
to take the person receiving the second highest
number of votes, and so on, choosing the one who
in their judgment is best fitted for the place.
5. Any one not wishing to vote must give notice in
writing before the day of election to the kumi-gashira
and the hyakusho-dai.
When these rules had been subscribed by all the voters
and were returned to the kumi-gashira or h^akusho-dai, the
voting could begin. Only those who "held land in their
own name could vote. Renters could not. Although,
free tenants of the land, and under them were still the serfs, as they
had always been. No fusion could occur to any extent, because no
circumstances occurred to favor it. The result was the acquisition
of little or no autonomy by the communities of cultivators. The land
system of Satsuma, important as a knowledge of it will be, is still
unknown to us; but there is some reason to doubt whether the culti¬
vators so much as formed villages, and whether they did not continue
to be merely groups of servants attached to small estates.
$IMMONS & WIGMOKE : LAND TENURE & LOCAL INSTITUTIONS. IO7
as the first of the above rules shows, efforts were made
to restrain wire-pulling and bribery, there was still election¬
eering in many cases. Sometimes a tie vote was cast.
Even if the vote was close but not a tie, it was not
considered conclusive; a decided majority was necessary
In voting, each man made out his own ticket, folded it
or put it in a sealed envelope, stamped his seal upon it,
and put it in a box. After the voting was over, the
box was taken to the house of the daikwan and there
opened in the presence of the village officers."
The salary of the nanushi was fixed by the government.
It was paid by the niura and depended on the assessed
yield of rice. A village assessed at 100-150 koku paid
2 hyo (a little less than a koku); and the salary ascended
as follows; 200-300 koku, 4 hyo; 400-600 koku , 5 hyo;
700-800 koku, 8 hyo; rooo-1500 koku, 10 hyo. The
villagers moreover, generally presented him with first-
fruits. In addition to this he was excused from tnura
taxes to the amount of 20 koku. If he did not pay
that sum in taxes, the village must make up the amount.
The salary was arranged for in some places by setting a
side a piece of land, the revenue of which went always to
the nanushi.*"
39. Substantially the same account (though not in such detail) is given
in the Chiho Seido-tsu. Both accounts probably draw largely from a
common source, the fikaia Hanrei-rokn.
It does not appear whether these regulations were framed and
enforced by the Governmnnt or by the mura. It is probable that the
qualifications of the electors were settled by the mura custom.
40. The hyo, or bale, usually contained 2 to 4 sho; but in some places
it measured only 3 to 6 sho (the Den-yen yikata Kigen). In the Chiho
Seido-tsu the salary is stated as follows, " 100—200 koku, 2 hyo; 300—
400 koku, 4 hyo; ^00—600 koku, 5 hyo; 600—1000 koku, 8 hyo." Neither
this account nor that of Dr. Simmons is entirely right, as will be seen
at a glance. I venture to suggest the following as the actual arrange¬
ment : 100—Ibo koku, 2 hyo; 200—400 koktt, 4 hyo ; 400—600 koku, 8 hyo ;
1000 koku and upwards, 10 hyo. The salary, however, was not always
graded so systematically. Probably the above schedule held good for the
Shogunate dominions only. In KSriyama Han the salary of the shoya
varied from 5 to 10 koku; in the territory of Izumi no Kami, it was fixed
108 SIMMONS & WIGMORB : LAND TENURE & LOCAL INSTITUTIONS.
2. Kumi-gashira (company-head). This official was
rapctically a vice-namishi. He was chosen sometimes by
acclamation by the chiefs of kiimi, sometimes by the
fianushi, and in some places the office was hereditary.
But even where it was hereditary, if a change was desired
on account of the youth or inefficiency of a successor, a
new election could be called for by the people. Large
mura seldom contained over twenty kumi of five families
each, and in the farming districts, for convenience of
administration, five or six kumi only were grouped under
a kumi-gashira ; so that there might be two, three or four
in a mura. The salary was a rebate of taxes equal to
half that of the nanushi or lo koku; and in some places
he received also a salary calculated in the same ratio as
that of the nanushi.
at I hohu 2 to (in i koku there ar6 lo to) for every loo koku in the as¬
sessed product of the mura ; in both these cases the mura paid the salary.
In the territory of Izumi no Kami, the shoya received i koku from the
Government and about 3 koku from the mura (See the Yamato Hansei).
In Sendai the kimoiri received a varying salary from the mura, and was
also excused from taxes, Government (apparently) as well as local.
This immunity from taxation was called hiki-daka (subtract-amount).
According to the Chihd Seido-tsn, the amount (in the Shogunate domi¬
nions presumably) was, as Dr. Simmons says, 20 koku; and if his local
taxes did not amount to 20 koku, the amount was made up by a direct
contribution of rice from the mura.
41. The kumi-gashira was originally just such an officer as the name
indicates, the head of a gonin-gumi. In several districts this continued
to be the signification of kumi-gashira. In Koriyama Han, probably in
other parts of the kami-gata, and in Sendai Han this was the case. (See
the Yamato Hansei, the Sendai Han Seido-ko, and the Chiho Seido-tsu).
In Sendai Han there was an o-(giea.t)-kumi-gashira one being usually
appointed for every fifty houses; but his office was not as important as
that of kumi-gashira in the Shogunate territory. How the name began
to be used to designate the executive officer next in importance to the
nanushi is not explained. Probably the nanushi first chose one of the
most efficient of the heads of kumi as his assistant, and then as other
names (such as ban-gashira, go-cho) came into use to designate heads of
kumi, the term kumi-gashra was exclusively used for the executive
officer. Certainly the early significance of the name came afterwards
to be lost (in those districts where it was applied to the executive offices),
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. IO9
3. Toshiyori (old person ; elder). The toshiyori was an
advisory officer. His advice was of moral rather than of
legal effect, and his position was that of a revered patriarch.
In fact in the northwestern provinces he could hardly be
called an officer, for he received no salary or rebate of any
kind. In the south and west he received the same salary
as the kiimi-gashira. As a,rule he was better off than the
nnnushi. He was chosen by the people.*^
since the kumi-gashira were not invariably heads of kumi, as a glance at
the Chiba kunti-cJtd in the Appendix will show. If we may assume that
the heads of kumi were first named in the list of members, then only one
of the five kumi-gashira in that mura was the head of a kumi.
The kumi-gashira as an executive officer does not seem to have existed
in the south and west, or in Sendai Han,-in fact, in just those regions in
which the name continued to signify the head of a kumi. The assist¬
ance which the kumi-gashira of the ShOgunate territory rendered to the
nanushi seems to have been supplied elsewhere by the toshiyori, which
serves to account for the fact that in the ShSgunate territories the toshi¬
yori received no salary, while elsewhere he was a paid officer.
42. The number of toshiyori seems to have varied (at least in the
south and west, where the office was a salaried one) with the size of the
mura. In Koriyama Han, the number in each mura varied from i to 3 ;
in the territory of Izumi no Kami, from 1 to 3; in the territory of Tajima
no Kami, from i to 5; in the territory of Matsudaira JirO, from 1 to 3
(the Yamato Hansei). In Sendai the toshiyori were in some places also
called mura-sodai (jo-rffli=all-agent, i.e. deputy for a body of persons)
(Sendai Han Seido ko). In the Kamigata (a general name for the central
western districts, often used as complementary to " Kwanto ") the toshi¬
yori was often called naga-byaknsho ('the Chihu Scido-tsu).
It is possible that the toshiyori may be found to be the true patriarch
of the mura, the head of the oldest family, the source of authority in the
customary law of the mura; the natiushi being the direct successor of
the early bailiff of the manor lord, and having gradually absorbed more
or less of the authority in customary matters which formerly belonged
to the toshiyori. In fact the toshiyori may prove to be, in the history of
land tenure in Japan, the counterpart of the frcepositus of the .English
manor—one of the leading husbandmen who was elected by the tenants
in each village and was to some extent responsible to the lord of the
manor or his fcailifl' for their conduct,—while the nanushi originally an¬
swered to the English bailiff. In the Kamigata, and in the north, where
the liberal administration of the Shogunate had not interfered to any
extent to make changes, we find the s'hoya, usually appointed from
above, much more of a bailiff, even at a late date, than the nanushi of
110 SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS.
4. Hyaktisho-dai (farmer-representative). This officer
was elected by the farmers and was particularly their
representative in all matters. He was a sort of oya-
the KwantO. This distinctive character of the nanushi, as an officer
more intimately connected with the Government than with the people
seems to have presented itself to the mind of the author of the Chiho
Seido-tsi't, for he remarks : " We may conclude that of the three officers,
nanushi, kumi-gashira, and hyaknsho-dai, only the nanushi can properly
be called an official. For notice the salaries of these men; the nanushi
receives a salary, properly so-called, as well as a hiki-daka; the kumi-
gashira not only does not receive a salary, but his hiki-daka has no
fixed amount; while the hyakush'i dai has neither salary nor hiki-
daka. So in the election of officers, the choice of a nanushi may be
set aside by the Government, while there is perfect freedom in the
choice of hyakushn-dai and kumi-gashira." The same considerations
distinguish the toshiyori from the nanushi. Even where he received a
salary, it was paid by the mura, not by the Government (the Yamato
Hansei).
On the whole, notwithstanding Dr. Simmons' assumption to the con¬
trary, there is ground for believing that the toshiyori, as a person of
authority in a mura, was peculiar to the south-west, and was wanting in
the Shogunate territory. We have the evidence of the Chiba kumi-cho
(from the eastern coast) in the Appendix, which contains no mention of
the toshiyori; of the Chiho Seido-tsu, which names the officers of mura
in the Kamigata as shiiya, toshiyori, and hyakushu-dai, and of mura in
the KwantO as nanushi, kumi-gashira, and hyakusho dai; and of these
Notes themselves, in a later passage, where the term San-yaku (The
Three Offices) is stated to have heen applied to the nanushi, kumi-gashira,
and for if there had been another office of any consequ¬
ence, it would not have been thus passed over. It is true that these
items might all be explained on the ground that the mention of of¬
ficially recognized functionaries could alone be expected in any of these
instances; though this argument applies with least force to the failure of
the Chiho Seido-tsu, historian to mention the toshiyori. But what could
have been the need of a toshiyori ? The executive duties which he had
in the Kamigata were in the east given to the kumi-gashira ; while the
advisory and paternal character which was his also was in the more in¬
dependent communities of the east adopted by the nanushi, who was
thoroughly the representative of the people. It may be answered that
this argument, if valid, would only show that the toshiyori in the east
lost his importance and disappeared as a distinct figure in the life of the
mura. The more interesting question, however, how, if there was no
toshiyori in the east, this difference of institutions had occurred, can as
yet be a matter of speculation only.
SIMMONS & WIGMORE I LAND TENURE & LOCAL INSTITUTIONS. Ill
6/<m" for the farmers. If in the making of the assessment
of the land by the nanushi, the hyakusho-dai did not con¬
sider that the farmers were fairly treated, he refused his
assent, and urged the claims of the farmers. There was
usually one hyakusho-dai in a inura, but in a large mura
there might be two or more. There was no salary for this
office.
5. Osa-byakusho (head-farmer). This was a person who
assisted at the mura elections. He was the largest land¬
holder and the richest man of the mura. In the south¬
west he received the same salary as the kumi-gashira, but
in the north-east he received nothing.
Such were the mura offices. As a rule they were held
by the old families, generally well-to-do, and, it might be
s^id, the aristocracy of the local community, who by their
possessions and their social position were able to occupy
the chief posts often for generations. The nanushi,
kumi-gashira, and toshiyori, it should be added, had the
privilege of wearing two swords. The first two, with the
hyakusho-dai were called the San yaku (Three Offices).
There was another office, intervening between the na¬
nushi or shoya and the daikwan, about which information
is less easily available. This was the 6-nanushi or 6-j6-
Yoritomo seems to have created the office. Its
43. Oya-bnn (parent-place) is explained, in another part of Dr. Simmons
notes (not included here, because it relates to town life only), as a term
applied to those persons in cities who acted as friends and advisers to
the friendless and homeless, helping with money, advising in trouble,
reconciling disputants, and admonishing wrong-doers.
44. The u-joya (great shoya) seems not to have been an officer of any
distinctive character; he served merely as an intermediate supervisor of
affairs. In Koriyama Han there were ten O-joya, and their districts in¬
cluded from ten to twelve mttra each. They served usually for ten years
or more; and it was the custom for them to preside at the election ol
the shuya and the toshiyori. In that portion of Izumi no Kami's terri¬
tory which 1;^ within Yamato there were seven o-joya, each one ad¬
ministering a district (called kumi) of from fifteen to forty mura. In
the jito-sho (district of a jito or lesser lord) of Matsudaira JirO, a hata-
moto, near Kdriyama, there was a single d-jr.ya. In the Go-ryd-sho or
royal domain (of the Shogunate) in which the ancient city of Nara lay.
*11 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
incumbents had great power. It came to pass that the
daiinyd gave salaries to them, so that they took the side
of the daimyo against the people. In 1720, however, the
Shogun Yoshimune abolished the office, for it had become
hereditary, and security of power made its holders too
strong. This abolition, however, had direct force only
in the Shogunate dominions. In place of this office the
yoseba nctniishi^' was created. This person was elected
by the nanushi of several mum, and acted in some way
as superintendent. It seems to have been an office of great
responsibility, held in high estimation.*'
the place of the o-jiiya was taken by officers called knmiai-sodai, each
presiding; over a district of from three to ten miira, and-a rather notable
circumstance elected by the shrya of each district. This contrast to the
practice of the neighboring daimiates, where even the shrya were usually
appointed from above, serves to illustrate the fact noted by Dr. Simmons
that the "Shogunate territories were always allowed much more liberty
of action in self-government than the daimiates. (Yamato Hansel).
Where the kimoiri took the place of nanushi, as in Sendai Han, there
was an u-kimoiri, corresponding to the il-jrya.
. According to the yikata Hanrei-rokii.as quoted in the Chiho Scido-tsii
"there was in former times an office in-each village called (iai-sAoyn
(great sh'ya) or so-shrya (chief r'x'y-i) or kcnlan, who supervised several
j/ifCyn; but it disappeared in the Kynha period (1716—1736)." In this
shape the statement seems improbable. We may suppose, however,
that there was such a supervising officer over the various shrya of a
sh'yen, and that with the growth and expansion of the scattered settle¬
ments into mura, there came to be one shrya for each miira, while the
superior officer, who may have corresponded to the seneschal of the
English manor, remained as the O-jrya.
45. Yoseha (meeting-place) was used of the house where the meetings
of the nanushi were held; and the nanushi at whos? house they occurred
was.presumably the chief nanushi.
46. One of the regrettable lacunae in these Notes is the absence of any
account of the popular assemblies of the mura. The material from
other sources which has thus far come to my notice is so slender that it
is not worth setting forth at this time. A few names may be mentioned
however, for the sake of those who may have an opportunity to obtain
further information. The general term for the assembly of the villagers
was yoriai (assembly-meeting). The principal business of the yoriai was
the discussion of the local tax-levy. In Izumi this assembly was called
sOdan kivai (consultation-assembly). Za, in a district called Gakunin-
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. II3
4. Written laws of the mura.
There was no special book or record of the customs
peculiar to each mura. There was, however, a document
which purported to contain certain leading regulations.
It consisted of a series of rules relating to several general
subjects, written in a book, and followed by the seals and
signatures of the mura officers and all the heads of families,
arranged by kiiini. The list began usually on the north
or east side of the mura. The rules were expressed accord¬
ing to no set form, and varied a good deal in detail. I
am disposed to believe that the use of this written in-
sho (the fief of the Gakuiiin or chief musician of a temple in Nara), was
used to designate an assembly which met for religious purposes, to
decide, for example, on the mode of celebrating an approaching festival.
This za is the same word which now signifies " theatre," and there is
an evident connection, which doubtless will some day be traced.
Another subject on which much more light remains to be thrown is
that of the grades of rank among the villagers with reference to social
position, to political privilege, and to landed rights. The division into
kyu-ka (old families) and shin-ke (new families), which is mentioned in
the Biingen document, translated irvthe Appendix, is extremely important
in its bearings on the growth of the mura and its original forms.
Other terms having an historical and political significance were osa-
(chief)-6yni«s^o and kn-{sm3Ll\)-byakHsho. According to Professor
Komeyama there was a class of farmers in each mtira who enjoyed a
special social eminence and from whom and by whom alone the officers
of the village—nanushi, etc.—could be chosen. This class went by
various names in various regions, osa-byakusho being the only term
known to him. They represented the descendants of the original
settlers, who had reclaimed the land and transmitted in their families
the right of managing mura affairs. Lands were sold or rented to
newcomers from time to time hut the mura management was not shared
with them. In most places, however, these lines were more or less
broken in upon, and other villagers owning land were admitted to rights.
Certainly these shin-ke or new families were given places (though of
lower rank) in the yoriai or meetings of the mura; hut the right to
elect and be elected seems to have been always confined to the class
corresponding to osa-byakusho. It is evident, from this account of
Professor Komeyama, that classes denoted by ne-oi-byakushu (see above),
kyii-ka, osa byakusho, and chu-byakusho, shade into each other, and that
some of these terms are interchangeable. The term mura-yakunin,
meaning literally " Hu/rd-officers," must be added to the list, for it is
JI4 SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS.
strument (called knmi-cho) is comparatively modern, that
it was the outcome of the policy of lyeyasu in his efforts
to root out Christianity by the strictest police measures.
At the same time the rules relating to Christianity appear,
from the irrelevancy of the adjacent rules, to have been
later additions.^'
said by some to be synonymous with osa-byakusho. The usages of
different localities, however, were undoubtedly different; the osa-byaku¬
sho, for instance, were but few in some mura, and in others included
nearly the whole of the villagers. The whole subject, particularly in
its historical aspects, remains to be thoroughly investigated.
In the Hundred Laws of lyeyasu. Art. 19 (_Mittheil. d.D. Gcsells.. Ost
Heft 41, p. 7) occurs the following passage;
" Among the common people in the districts, villages and hamlets of
the different provinces there are always a few of old pedigree (ytiisho).
They are not to conform to the rules for common farmers, and are to be
considered in the choice of officials." It seems clear that reference is
here made to the osa-byakusho class. If this is so, then the teim yiiisho
seems to have been applied to ordinary farmers as well as to gbshi; for
we may suppose that Dr. Simmons' informant, in stating yiilsho no
hyakusho to have been another term for goshi, was not mistaken in
regard to a usage so common and so'easily ascertainable.
47. A general idea of the contents of these documents may be gathered
from the specimens translated in Appendix I. The name employed in the
Chiho Seido-tsu is kunii-chb; but I have found that this is by no means
a well-known term, and that no single expression is generally current.
In fact Japanese scholars seem generally not to be acquainted with these
documents, perhaps because they have not studied the subject from
that point of view. Shi-oki-cho (enactment-book) is the name given
by Professor Konakamura.
Not more than half a dozen copies have come to my notice; but there
may be others at the libraries of the Imperial University and of the
Historical Bureau, as well as at the ohokokwan Library in Mito. In the
hands of old nantishi, of course, many others would be found. The
oldest of these specimens does not antedate the eighteenth century; but
the probability of finding very much older copies is not very great, as
the documents seem usually to have been renewed every year, and the
preservation of the earliest copies is hardly to be expected.
The chief question of interest is as to the nature of the material con¬
tained in the kumi-chb. Is this document the record of purely local
customary law, or is it a memorandum of the regulations of feudal
superiors ? Leaving out all d priori argument, it seems quite clear that
the kumi-cho, in its form and in the greater part of its contents, was the
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. I
5. Local Taxes.
An estimate of the necessary local expenses was made
out in duplicate by the uannshi, kiiiiii-gashira, and toshi-
yori. This document was called bu-sen-iriyo-cho (wages-
expense-necessity list). It was limited to a certain number
result of commands issued from above. In many cases the nature of the
rules contained in it betray this character very clearly; they are such as
must have been imposed, not voluntarily adopted. In still otber cases
the connection may easily be traced between tbe regulation of a kinni-chu
and the law of the Shogunate on which it was evidently founded. As
many citations as possible of this sort have been made in notes to the
kumi-cho in the Appendix. Sometimes a case occurs (the Reigaki, Art.
34, Mittheil. d. D. Gesells. Ost., Heft 41, p. 116) in which a man is not
punished because the particular prohibition was not contained in the ktimi-
chii of his ntura. In another place (the Kujikata Osadamegaki, I, Art.
57, Mittheil. etc. supra, p. 57) we read at the end of an enactment, where
the order for promulgation is given, " This is to be promulgated in tbe
miira. As no gonin-gumi-cho is kept in some mura, the daikwan of the
nearest district is to attend to the matter." Some of the provisions
which seem most likely to be of local origin are thus found to be regula¬
tions of the Government,—for example, the provisions for the payment by
the mura of the expenses of the journey to Yedo by its representatives in
litigation (see the Kujikata Osadamegaki, II, Art. 24, Mittheil. etc., supra,
p. 71), and the custom in regard to the tags on the rice-bags, etc., (see
Appendix I) which Dr. Simmons seems to have thought a mark of the
farmers' o.vn care and zeal. The form of the document was by no means
that of a record of local customs, made as between the villagers them¬
selves. Usually the nanushi or the mura-yakunin speak, and promise
to carry out the regulations in their conduct of the office which they
have been permitted to fill. Sometimes the whole mura speaks for itself
in the kumi-ch l. But there is in almost every case the attitude of accep¬
tance of rules imposed from above and the promise of submission.
If any further evidence were needed, it appears in the shape of a docu¬
ment recently sent me by Mr. Kitagaki, Governor of KyOto, called
" Bakiifii RyajrmokusUo" (Collection of Articles of Law promulgated
by the ShOgunate). This collection of rules (which unfortunately has
no date) contains all those articles usually occurring in the kumi-cha,
and is evident^ the general form prescribed by the ohOgunate, or rather,
sent out as a model for the various daikiean to work upon. At the end
of the document are columns showing how the year, month, and day,
the kOri and mura, and the names of the farmers, are to be entered. It
is very clear that the kumi-chO were intended by the ohOgunate as the
Il6 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
of pages of a certain kind of paper. At its head the
following principles were rehearsed :
" I. Unreasonable things which the officers wish to do
without the consent of the farmers are not to be
done.
2. Nothing proposed by the nanushi for selfish purposes
can be done without the consent of the farmers.
3. There must be economy in the use of money for
village purposes.
4. This paper, if agreed to by all, is to be final, and the
money appropriated is to be paid."
vehicles for conveying to the people the regulations to be observed by
them, and the annual reading and sealing at the beginning of each
year was a part of the same plan. Some discretion seems to have been
left to the daikwan in each case, for there are many variations between
different kumi-cho. Whether these documents were in use outside of
the Shogunate dominions I do not know, but it may be doubted. It
seems probable that the use of the ktimi-chd was an invention of the
great administrator lyeyasu himself or of some one of his officers.
Some local customs must have crept into the ktimi-chu, but an extend¬
ed comparison can alone afford a basis for conclusion on this point. It
is also to be remembered that even where a Governmental regulation is
found to cover the subject of a ktimi-cho rule, the law may have intend¬
ed simply to recognize a custom, and the rule may be none the less of
popular origin. Take for example those clauses of the Buke shohatto
(Art. 12, Mitthcil. etc., supra, p. 27) and the Kujikata Osadamegaki (II,
Art. I, ib. p. 66) which provide for a system of private arbitration before
resort to the courts. It can hardly be doubted that chi'isai or arbitra¬
tion was a custom of longs tanding among the people, was in fact an
inheritance from earliest times; and the laws above-mentioned were
intended rather to stem a tendency, perhaps in cities, to break away
from it, than to impose a new regulation upon the^eople.
The kumi-chu served in part to facilitate the system of making the
popular officers responsible for the conduct of their townsmen and of
making neighbors responsible for each other. This system, as will be
seen by an examination of the kumi-chd, was carried out thoroughly.
The principle seems to have been one of long standing, for in the time of
Hideyoshi's expedition to Corea (1592) we find, in an order for the levy
of soldiers, the announcement that in case any one is detected in evad¬
ing the conscription " the nanushi and the kuini shall be punished " (the
Fudusan). Its efficient carrying out was one of the great causes of the
success of the Tokugawa administration.
SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS. II7
The farmers were then called together, the estimate
laid before them, and each item considered. There was a
proverb referring to the experience of the people in these
assemblies: "go-tahun ni-wa moremasen,"—the majority
is made up of non-thinking persons.^''
When all the farmers had signed and sealed, the esti¬
mate became valid. It was then taken to the daikwan
and sealed in approval by him. The daikwan had no
power to increase the estimate or forbid its being adopted.
He could only examine and advise. His duty was to see
that the nannshi did not " squeeze " or oppress the people.
If the farmers had doubts about the proper use of the
money, they could demand and have an ofEcial examina¬
tion.*'
48 The apparent meaning is " I will go with the majority," the verb
being morerii. Possibly this is not the meaning it bore in Dr. Simmons'
mind, and he may have transliterated his informant incorrectly. But
the turn of thought is probably this; Most people prefer not to decide
for themselves, but to wait and do what the rest decide on; they let
others do their thinking for them, and the thought in the mind of such a
person is "go-tabiin ni-wa moremasen.''^
49 A short passage from the Sendai Han Scido-ko will serve to throw a
little more light on the methods of local taxation ; " The objects of ex¬
penditure in each niura were as follows : the salaries of the kimoiri and
his assistants; the salaries of the keepers of darns and aqueducts; the
salaries of the keepers of mura storehouses and the incidental expenses
of the storehouses; the expenses relating to the transportation of public
goods from one mura to another; (in some mura) the salary of the ken-
dan (a kind of post-official) and the cost of paper, ink, and pens used by
him.
These expenses were divided into three classes and were levied as
follows: Expenses connected with the registration of inhabitants, upon
each inhabitant; expenses connected with land, on each piece of land ;
expenses incurred for salaries, for paper, ink, and pens, and for mis¬
cellaneous matters, upon houses and land."
From the Chiho Seido-tsu we obtain some additional information, and
a somewhat different classification of expenses is given : " The expenses
in ago or mura were divided into three classes; expenses in the office of
the nanushi, pens, ink, paper, etc. ; expenses of the three officers when
they travel to other mura on official business; miscellaneous and ex¬
traordinary expenses incurred by the mura. Expenditures of the first
class were to be recorded in two books, in duplicate. In the seventh and
Il8 SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS.
6. Local yustice and Procedure.
The general method of settling civil cases of every kind
was arbitration ; the only court, in the ordinary sense of
the word, was at the office of the daikwan. The practical
' result of the principle of arbitration (which was known as
chu-sai or nai-sai^") was that a civil case rarely, if ever,
came before the regular courts, but was settled before reach¬
ing it. The principle operated thus. In case of a disagree¬
ment between members of a kumi, the five heads of families
met and endeavored to settle, the matter. All minor dif¬
ficulties usually were ended in this way. • A time was
appointed for the meeting; food and wine were set out,
and there was moderate eating and drinking, just as at
a dinner party. This, they thought, tended to promote
good feeling and to make a settlement easier; for every¬
body knows, they said, that a friendly spirit is more likely
to exist under such circumstances. Even family difficul¬
ties were sometimes settled in this waj'. Thus if a man
abused his wife she might fly to one of the neighbors for
twelfth months of each year they were to be added up, and charged to
the people of the mura. The nanushi, the other officers, and the people
were then to affix their seals. At the end of the year the books were to
be delivered to the daikwan for his inspection and indorsement, and one
copy to be preserved in the office, the other in the office of
the nanushi. In the first month of each year, before the books were
used, they were to receive the indorsement of the daikwan.
" Minor incidental expenses were to be paid by the officers of the
mura themselves as the occasion arose, the tnura afterwards reimbursing
them. Large or extraordinary expenses were be provided for only
after consulting with the people and receiving special authority. The
consent of the people was necessary for all local taxes. The apportion¬
ment of the tax was to be based on the revenue of land. The apportion¬
ment was to be supervised by the hyakushn-dai. At the time it took
place, he was to attend, examine the levy as drawn up by the nanushi
and humi-gashira and, if he regarded it as equitable, give his consent."
The statements of the Chiho Seido-tsu are based on the authority of
the works yikata Hanrci-roku, Nosei Zayu, and yikata Taisci.
50 Chu-sai, between-decision (a judgment rendered by one who comes
between disputants and separates them); nai-sai, within-decision (a set¬
tlement arrived at among the parties themselves).
SIMMONS & WIQMORE: LAND TENURE & LOCAL INSTITUTIONS. II9
protection, and when the husband came to demand her,
the heads of families in the* kumi would meet and consult
over the case. If a settlement failed or a man repeated his
offence frequently, he might be complained of to the next in
authority, the kumi-gashira; or else the neighbors might
take matters into their own hands and break off intercourse
with him, refusing to recognize him socially. This usually
brought him to terms. An appeal to the higher authorities
was as a rule the practice in the larger towns and cities
only, where the family unity was somewhat weakened, and
not in the villages, where there was a great dislike to
seeking outside coercion, and where few private disagree¬
ments went beyond the family or the kumi.
A case which could not be settled in this way was
regarded as a disreputable one, or as indicating that the
person seeking the courts wished to get some advantage
by tricks or by dishonesty. In arranging for a marriage
partner for son or daughter, such families as were in
the habit of using this means of redress were studiously
avoided. It was a well-known fact that in those districts
where the people were fond of resorting to the courts
they were generally poor in consequence. The time spent
and the money lost reduced the community to poverty.
Examples of this were Tsuru gori and Kaino gori near
the Hakone mountains.
One of the abuses of chu-sai was that the small fine
which was often imposed by the arbitrators was generally
used up by them in a "spree," so that the real sufferer
received very little of it.
If even the kumi-gashira could not settle the matter,
it was laid before the higher officers, the toshiyori, and
the nanushi. In fact the four chief officers {nanushi,
toshiyori, kumi-gashira, and hyakushd-dai) might almost
be said to form a board of arbitration for the settlement
of appeals, for in deciding the case the nanushi received
the suggestions of the other officers. It was discreditable
for a nanushi not to be able to adjust a case satisfactorily,
and he made all possible efforts to do so. In specially
120 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITt>TIONS.
difficult matters, he might ask the assistance of a neigh¬
boring nanushi. If a decision \Vas reached by the jianusht,
three copies of the evidence and the arguments were made
out, and the seals and names of the parties and the na-
ntishi were affixed.
If the nanushi was unable to settle a case, it was laid
before the duikwan, who almost invariably sent it back,
with the injunction to settle it by arbitration, putting it
this time in the hands of some neighboring nanushi,
preferably one of high reputation for probity and capacity.
In case a nanushi other than the original one settled the
case, a special form of decision or rescript was made out.
There were also other forms for othey stages. When the
people of the nmra as a whole brought a complaint before
the nanushi and kiimi-gashira, the hyakusho-dai appeared
on their behalf. As a rule, in other cases, every man was
supposed to advocate his own cause. To obtain payment
of a claim on behalf of another, receiving a share in
payment, was an offence. Still many made a business
of acting thus for others. They claimed a relationship
with their client and represented that he was sick and
unable to attend. It was a business in which much
money was made. The receiving of a fee, however, was
clandestine ; ostensibly the service was rendered as a favor.
There were no court fees, either before the nanusin or in
the daikwan's court.
When a case came before the daikwan for decision, it
passed from the region of chil-sai, and became kuji or
deiri. From the daikiaan it might pSss to the higher
officials.^' But if litigation was discouraged by local
sentiment, none the less was it frowned upon by the
rulers. The daikivan were instructed to discourage all
51. For an account of the judicial system of the Tokugawa Shogunate,
see Mr. RudorfFs article, " Rcchtspjiegc untcr den Tokngawj," Mit-
theil. d. D. Gesclls. Ostns., Febi", i838, (Heft 38, Scitc 378). For
further information relating to the history of the Hyi'jri-sho, the hiuhest
judicial body, see the same writer's Tokngmva-Gcsetz-Sammluno-"
(ib., Heft 41, Seitc 36).
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. 121
litigation, and to co-operate with the local officers to this
end. They were to be especially careful in those localities
where there was a litigious tendency, as the people were
thereby impoverished and the government lost the benefit
of a plentiful production.The bad men who stirred up
the people to seek redress in the courts were to be carefully
watched, and if they were found especially active and
troublesome, they were to be suitably punished.
Criminal cases of importance were not to be compro¬
mised, but were to be laid before the daikwan. If this rule
was transgressed, the case was re-opened, and the nanushi
banished. In case of homicide, the matter would be
immediately reported to the daikwan. If on investigation
it appeared that the deceased was a wicked fellow, or that
the killing was done in the heat of passion, or during
intoxication, or under other circumstances suitable for the
exercise of clemency, the offender might escape death,
provided the family of the dead man came to the daikwan
and asked that mercy be shown.'' Perhaps it would not
52. The self-regarding point of view (already spoken of) of the Toku-
gawa Government, in its regulation of the welfare of the people, is
again illustrated in this statement of the reason for its discouragement
of litigation.
53. " When anyone commits murder at the instigation of another, and
escapes, he shall, at the request of the relatives of the deceased, be
condemned only to geshi-nin or karyd.^'
100 Laws of lyeyasu. Art. 46 (Mittheil. d. D. Gesells Ost., Heft 41,
p. 12, infra).
" Criminal case (1744.) Defendant, Yagoro, adopted son of Rizayemon,
of Aimari mura, of the province of Ushii.
"This Yagoro had become insane and killed two men, one named
Sansuke, the other Zembei. By Zembei's relatives the death penalty
was not demanded; but by oansuke's it was. Although the insanity
was clearly proved, the question was whether death should be inflicted.
' When a man becomes insane and soon after kills another, he shall
be punished with death.' This law rests on the idea that it is often
doubtful whetlTer a man has not feigned madness in order to escape the
death penalty. On the other hand, death would not be inflicted if the
insanity was clear and the dead man's relatives asked for a remission of
punishment. When this law was again explained to the relatives of
Sansuke, they considered the matter again carefully and declared
122 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
be difficult for them to see that under the circumstances
the sacrifice of two lives would be useless; and justice was
considered to be satisfied by the arrest of the offender. In
such a case the matter ended by the offender becoming a
priest, the head priest of the sect giving a guarantee for
his future good conduct.If the dead man's family were
left destitute, the family of the killer would often pay them
a sum of money or support them.
When an offence was charged, one of the bantard or
regular police of the mura (who will be afterwards described)
arrested the accused immediately and took him before the
nanushi. No farmer or other respectable person could be
arrested without an order from the nanushi, unless in
flagrante delicto. This rule did not apply in the case of
one who had been cast out by the community—a sort of
farmer ronin—for instance, one who had defied all law and
was incorrigible; such a person became almost an outlaw,
and could be beaten or arrested with impunity.
The villagers often administered justice in their own
way, without regard to legal forms. Suppose that in a
rural district a man had established a house of prostitution
or other nuisance. A placard would be posted, stating that
Mr. So-and-so was maintaining a great nuisance, and that
it was intended to burn him out. Then a night would be
chosen, preferably when a high wind was blowing, and his
neighbors warned to move away valuables and to have
water ready. Great consternation would follow, and the
man would be obliged to yield and remove. But the
punishment for the participators, if the}' were detected, was
the same as if fire had actually been set. One whose care¬
lessness originated a fire (it may here be said) was often
that, if the insanity was clear, they by no means insisted upon their
demand. It was therefore inquired whether this Yagoro should be
given into the custody of his relatives and confined by them : and this
course was approved."
Reigaki, Art. 35 (Mitthcil. cte., supra, p, ii6).
54. Cf. Kujikata Osadamegaki, II, Art. 97 (Mittheil. d. D. Gesells.
Ost., Heft 41, p. 98), " In regard to a request that a convict's son, who
has been placed in the custody of his relatives, may become a priest."
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I23
banished from the village. Another method of summary
punishment was this. When a man was detected in an
offence, the farmers pursued and caught him, tied him to a
post, smearing his face with oil and lampblack, and left
him to the scoffs and taunts of children and passers-by.
When he was released a jeering crowd followed. Nor did
the disgrace end speedily, for it was almost impossible to
remove the stains. Trespasses on land and petty thefts of
grain or vegetables were tacitly left to the farmers them¬
selves to punish. The posts which I saw standing at
intervals in the cultivated districts were those which had
been used for the summary punishment of sneak thieves.
If in an offender's struggles with the farmers as they strove
to bind him, he should sustain injury, perhaps meet his
death, the participators were usually released with a nomi¬
nal punishment, perhaps with none at all.
Often a farmer abandoned his land and ran away from
the village, perhaps because of a crime, or on account of
some quarrel, of inability to pay his taxes, or even of extreme
poverty. Such a person was kake-ochi (run-escape). The
matter must be reported to the daikwan, and the cause of
the man's desertion investigated. At first thirty days were
given for the investigation, the time being extended if ne¬
cessary, from month to month up to six months. Mean¬
while the family or the kumi worked the land." If at the
end of the above time the man did not return, the land was
taken by the nmra to work and the house sold by sealed
proposals. Usually it was rented to the deserter's family.
In some places the kumi worked the land and paid the
taxes, even for years; but this seems to have happened only
when a whole family had deserted. If at any time the
man or some member of his family returned, the land was
given back to him, if the mura so decided, unless some
crime had l^en the cause of the flight. Even in that case,
however, if the offence was not a heavy one, the land might
55. This rule that the kmni should work the land of a member who
abandoned it is found as far back as the period of the Taiho Ry!j (Chiho
Scido-tsil), as has been already mentioned.
124 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
be returned to him after a suitable punishment had been
imposed. Confiscated land was tori-age-denji (take-up-
land). Abandoned land was agari-denji. It was only under
extraordinary circumstances that land was utterly confis¬
cated, for this meant the complete breaking up of the
family.An interesting case involving this question is
the found in Ruirei Htrohu (Private Record of Decisions),
vol. 3, no. 55. In this case the land had been confiscated
by the government for crime. A piece of land thus taken
was usually handed over to the mura to work until a
purchaser could be found, the mura paying the government
tax and keeping the remaining profit. But there were
also mura taxes to be paid, and for these the government,
as the owner, ought to be liable. If it did not pay, a
greater share would fall on the other land, and the farmers
would cultivate the Government land so laxly that it would
not yield even its ordinary tax. The decision of the
finance officer was that the local tax was not to be paid
by the government, but that as an offset the dry-field
{Jiata') tax of that piece of land should be remitted.
One can thus see why it was regarded as desirable to sell
such land as soon as possible. This, however, was not an
easy matter, as the farmers did not care to buy the land
that had belonged to a disgraced neighbor.
Where a renter of land failed to pay, and the holding was
sold for the debt, the tools of his trade were exempt from
sale. In general, on execution for debt, the whole of the
debtor's property, with the above exception, was sold and
the proceeds divided proportionately amo»g the creditors."
If a servant ran away but returned within three days, he
did not become kake-ochi, and he was dealt with by his
master. If he did not return in that time, he became
56. See the Kujikata Osadmnegaki, II, Art. 27 [Mittheil. d.D. Gcsclls.
Osl., Heft 41, p. 72) " Confiscation of the property of convicted persons."
See also the Kujikata Osadamegaki, I, Art. 40 (ib. p. 54). " Punish¬
ment of sons and other relatives of a felon."
57. See the Kujikata Osadamegaki, II, Art. 29 (Mittheil, d.D. Gesells.
Ost., Heft 41, p. 73), " Of the procedure in shindai-kagiri (execution)."
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. I25
kake-oclu and the matter came within the province of the
officials. >
The desertion of a master by a servant, a fatlier by a son,
a teacher by a disciple, for a second time, was followed by
the loss of the nimbetsu-chd. Forfeiture of the nimhetsu
was called gizetsu. Disinheritance by a father or repu-.
diation by a teacher or master was kando cho-givai.
Breaking off of intercourse by an elder branch of the.
family or by relations generally was kyuH cho-gwai. But
the disinheritance of a son was a solemn matter.. If he ■
ran away, and did not return for six months, an investiga¬
tion was held by the kumi, after the family had reached a
decision. The matter then went before the four higher
officers, and was referred to the daikwan for a final decision.
Disinheritance, therefore, involved repudiation by the whole
community.'^ With the loss of the nimbetsn-cho went also
erasure from the shumon-cho, or register of the religious
sect to which the delinquent belonged. *
A question once arose whether forfeiture of the nimbetsu-
chd was proper where the father-in-law had come to live in
the son-in-law's house, the father-in-law having in that case
the status of a guest only, not of head of the family. It
was decided that with the consent of the head of the kumi,
the nannshi, and the daikwan, the nimbetsu-chd could be
forfeited. But this consent was necessary in every case.
One who harbored a runaway was punished by imprison¬
ment. Even in a temple a man had no right to take refuge,
if he was avoiding arrest for crime. A runaway, therefore,
never acknowledged having been harbored by any one, but
always claimed that he had travelled as a hi-yatoi-nin or
day-laborer, in other words, as a tramp.
58. This is not so clear, according to Dr. Weipert (" yapanisches
Familien-u, E^recht" (Miltheil. d. D. Gesells. Ost., Heft 43, p. 118).
But perhaps the statement of the latter represents the theoretical rule,
that of Dr. Simmons the common practice.
See the law requiring notice of disinheritance to be given to the
authorities in the Kujikata Osadamegaki, I, Art. 50 (Mittheil, etc., Hef t
41, p. 56).
I?5- SIMMONS & WIGMOREl: LAND TENURE & LOCAL INSTITO TIONS..
Even when one had forfeited his nimbetsii-cho, if he com¬
mitted a crime in a distant region, his family had still to pay
the expenses of imprisonment. This was the regular method
of meeting the cost of prison-maintenance, though in the
case of small offences the rule was usually not enforced.
If the subject of a daimyo was confined in a Shogunate jail,
the expense of his maintenance was charged against the
daimyo, who collected it from the mtira or the family.
; Where the whole community or any of its members wish¬
ed to appeal to the higher authorities—to a daimyo himself
or to the government at Yedo for redress against official
malfeasance, there were several methods of proceeding. If
a journey, to Yedo or elsewhere was necessary, the expenses
of the person or persons bearing the petition were paid by
the wwra." Kago-so (iago-complaint) consisted in press¬
ing a letter upon the official as he passed in his kago^
Hari-so (fasten-complaint) consisted in fastening a petition
to the gates of an official's residence. In hako-so (box-
complaint), the petitioner placed his document in a box
hanging outside the daimyo's castle-gate, or the gate of the
Hyojo-sho in Yedo.®® This box was opened three times a
59 See Kujikata Osadamegaki, II, Art. 24 {Mittheil. d.D. Gesclls.
Ost., Heft 41, p 71) " Of the expense of the journey to Yedo in case
of litigation between mura, and of the share of the villagers."
60, The rules established in the latter case were as follows:
" In the following cases direct complaint may be made to the HyujO-sho:
1. When a reform is to be suggested;
2. , In cases where an official has conducted himself improperly;
3. In law suits where the management or decision by the proper
authority is long delayed, in which case imnJediate investigation
must follow after information has been given to the official con¬
cerned.
In the following cases direct complaint cannot be made.
1. In cases where only the private interests of the complainant are
involved;
2. In matters where the complainant acts on information only, not
on personal knowledge;
3. In complaints which are not brought to the proper office or in
which no decision has been reached."
Kujikata Osadamegaki, I, Art. 8 [Mittheil. etc., supra, p. 45).
SIMMONS & WIGMORE : XAND TENURE & LOCAL INSTITUTIONS. I27
month. Usually its contents were referred to the local
officials. In these cases the daiinyo or the Yedo official
would often put up a notice, saying that he had received a
petition, but had burned it without reading it. In fact,
however, he would read it, and send out spies to investigate.
Local officials were often changed an account of complaints
made in this way. Mon-so (gate-complaint) was a desperate
remedy. The farmers of a district collected and went in a
body to the daimyd's house, either in the province or in
Yedo, and declared that they would not leave until their
petition was granted. If each stuck a sickle in his belt, or
carried a sharpened bamboo, it was a symbol of final
desperation.®' The daimyd seldom failed to take notice of
61 This mon-so was not looked upon with favor by the central govern¬
ment, and legislation against it is several times recorded:
" Punishment of farmers who make complaint to the lord with menaces
and then desert their village.
" For the ringleaders, death: for the nanushi, banishment from the
province for a long period; for the kumi-gashira, banishment from the
mura, with forfeiture of land; for the mura itself, a fine based on the
amount of its assessment.
" However, the punishment may, according to circumstances, be
mitigated one or two degrees if the lord has been guilty of unjust
conduct, and especially is severe punishment to be avoided if the
farmers are not in arrears for their taxes."
Kujikafa Osadamegaki, II. Art. 28 (1741).
(Mittheil. etc., supra, p. 73).
" Punisnment of those who assemble before the gate of a lord and
make complaint with menaces.
" For the ringleaders, banishment. But if it cannot be ascertained
who was the ringleader, let that one of the participants whose name, on
inspection of the temple-register (shiimon nimbetsu-chu) is found to
stand first be selected and punished with banishment. As to the other
farmers of the village, let those who were present before the g^te be
placed in irons for from 30 to 50 days; let the rest be severely reprimand¬
ed. A fine may or may not, according to the circumstances, be imposed
upon the whole village. However, any one acting with the ringleader
is to be banished from Yedo.
" If a village official was ringleader, he is to be banished. If while
an official he takes part in the gathering, let it he banishment for a
moderate period, but in the case of a nanushi, banishment forever from
the village. However, if the officials take no part in the mob but
128 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
such a demonstration, for it was regarded as an evidence of
mal-administration in his fief, a great disgrace. But if no
redress was promised, they went thence to the office of the
Go-roju (Council of State) in Yedo and made appeal. For
this further impertinence they were usually bound and im¬
prisoned, perhaps beaten, and this proceeding, therefore
was only resorted to in extremities. But it was an effective
one, for investigation always followed and the daimyo, if in
the wrong, was punished, perhaps by being transferred to a
smaller fief.®^
endeavor to quiet the farmers, they need not be punished, even though
their efforts were fruitless.
Those who carry sickles or such weapons on such an occasion shall
be punished as participators in a complaint tnade with violence."
; Reigaki, Arti 78 {1771) (Mittheil.'ctc., supra, p. 127).
, " Of conspiring to make complaint by menaces, of assembling in
crowds before the gate of a lord, of abandoning a village, and of forcible
revenge.
" If villagers conspire to make complaint by show of violence or to
abandon their village, those who have resorted to violence out of
revenge, or any other participants except the ringleaders, may receive a
mitigation of punishment appropriate to the degree of their guilt. Even
the ringleaders may be similarly favored, if the resort to violence has
been provoked by the'injustice of the lord.
" The same rule applies to the ringleaders of mobs assembling at a
lord's gate for the purpose of making complaint (mon-so)."
Sha-ritsu,'(1S62) Art. 10 (Mittheil. etc., supra, p. 137).
■ A gradual decrease in the severity of punishment may here be
noticed. »
62 The Jaw spoke emphatically upon this point:
" When koku-shu, ryu-shu or ju-shu, be they fj^dai or to-zama, vio¬
late the laws and oppress the people, they shall, without any exception,
whether they possess large' incomes or are related to us or not, be ex¬
pelled from their castles and land and be treated as enemies of the
country. It is the duty of the Shogun's family to carry out this
measure."
100 Laws of lyeyasu. Art. it (Mittheil. etc., supra p, 6).
Or according to another reading :
" If koku-shu or ryu-shu even though possessing large incomes, act
contrary to the people's welfare, they shall for punishment be deposed
from office and removed to a distant province."
■■ ! 100 Laws of lyeyasu. Art. 20 (ib. p. 7, infra)'
SIMMONS & WIGMORE: land tenure & LOCAL INSTITUTIONS. I2g
Sometimes a fine was imposed upon a whole tiitirn by
the territorial lord. A loo-kokn mura, for example, might
be fined fifteen yen.
7. Temple Administration.-
No tax for temple purposes was imposed by the mura.
The members of each sect provided for the expenses of
its temple. The parishioners of a temple were danna,
danhe, dampo,^^ and one's own temple was danna-dera.
The parishioners selected a chief, called danka-gashira,
who must come of an old and respected family. No
samurai could fill the post; nor was it to be obtained
merely by profuse gifts to the temple; still, he who was
chosen was expected to give generously towards its
support. There were a number of persons called seiva-
nin (committee) who acted as vestrymen, and one of them
served as treasurer. The temples were practically the
only school for the common people, and the priests the
only learned men or teachers. Each temple had a
register (shumon-cho) in which were recorded the names
of members of the sect. In travelling it was usual to
63. Mr. Gubbins writes; " The derivation of these words as a whole
I cannot trace. Dan, the first syllable, means sandal-wood, which
can have no possible connection with the terms in question. It is
probably one of the many instances in which the terms are of Buddhist
origin and the Chinese phonetic equivalents have been applied arbi¬
trarily. As to the final syllables, ke or ka is ' house,' which has
often the meaning of ' person pd is merely ho, ' side,' ' person. "
In the " Chrysanthemum " for 1881, under " Notes and Queries " (p.
456), I find the following; " The word danna is really an importation
from India, and owes its origin, philologically, along with the Latin
do, datum, to the Sanscrit dha, the first of the six paramitas, or fords
to the other shore of this sea of misery,—almsgiving. Buddhist mendi¬
cants from India would call those who filled their rice-bowls something
like danna, and so the giver of charity to the mendicant became
' parishioner' to the sect, and, as giver of all home blessings, the danna
(master) of the house. The Buddhist teachers themselves, as givers
of the doctrine, became danna, and the temple to which one belonged,
and from which religious benefits were received became the danna-
dera."
130 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
carry a letter of recommendation from the priest of one s
sect.
Nunhetsu-cho (person-difference-document). This was a
register of births, marriages, and deaths, arranged by
families, and in duplicate, one copy being kept at the
chief temple, the other at the office of the nanushi. In
travelling a certificate copied from this register was carried
about with one, serving as a means of identification, a
guarantee of respectibility, and a title to protection and
hospitality. On the occasion of marriage the bride's name
was erased from the nimbetsu-cho of her family and added
to that of her husband's family.®*
8. Charity.
When one of the villagers fall sick, the members of his
kumi gave him all possible assistances, and cultivated
his land for him, if necessary. But if this contiuned and
the burden become too great, the kuini-gashira or nanushi
was appealed to. He represented the matter to the
villagers, and they all contributed. Whenever a farmer
built or repaired his house, his fellow-villagers joined in
and helped him without pay, the beneficiary giving wages
to the carpenters only, but supplj'ing food for all. If he
was very poor, even the carpenters were paid for from
a village fund, used for such purposes and for emergencies
of all sorts—fires, plagues, etc. Poor people, when some
calamity destroyed their home, usually took refuge in
a temple for a month or so. When a \*hole village was
burned, the neighboring villages turned out and helped,
the lord and the large land-owners supplying wood gratis.
If a stranger was taken sick on the road he was cared
for and forwarded by the nanushi to his home, if it could
be ascertained. If a stranger was found dead, he was
64. The distinction between nimbetsu-cho, shumon-cho, and tera-chb
does not clearly appear in the notes left by Dr. Simmons. From other
evidence it is probable that they were different terms for the same
thing.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I3I
decently buried, and the nannshi of the mura was notified,
so that his friends might send for the body. If he did
not carry his nimbetsu-chd about him, and no friends could
be found, he was properly buried at the expense of the
wiiim.®'
9. The family as a social unit.
The complex customs of a Japanese village were binding
only upon the heads of families. The head of the
family had his seal, which represented at the same time
his power and his responsibility. As the seal-bearer he
was not only the moral head of the family, which constitu¬
ted a social unit; his responsibility extended to the acts
of all members of the household. The liability for debts
of the male members was subject to some restrictions
founded on justice; thus, he was not liable for debts
contracted by them at a wineshop or in a house of prostitu¬
tion. No document signed by any member of the family
was valid without the seal of its head. Nor could any one
not having a seal, properly registered, rent a house or a
piece of land.
The family often included the sons and daughters for
several generations, all living under the same roof. Wives
were brought from without for the sons, and sons-in-law
were adopted for the daughters. There was no joint
ownership or sharing in profits. The father, or after him,
the heir, received all, paid all, and was responsible for all.
All stood under his power like employees or servants,
whatever their particular occupations or duties.
A somewhat peculiar feature was that each family had
its own independent roof. Whether poor and humble, or
large and commodious, the dwelling was occupied by but
one family.
Many small mura were almost entirely composed of
families bearing the same name. In many others only
three or four names were to be found.
65 See Appendix I, kumi-cho.
132 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
In Awomori there seems still to be a system of house
communities of some sort, which no one, however, has as
yet investigated.
IV. SERFDOM AND THE YET A CLASSES.
I. Early serfdom.''^
Up to the present time the native historians of Japan
have never made any attempt to analyze closely the
origin of their own people. They have for various reasons
relied on the legendary stories of ancient times. There
has been a systematic attempt from earliest times in
Japan to conceal the true history of the nation for the
sake of upholding the theory of the divine origin of the
Mikado. This spirit of concealment has entered into the
whole political and educational system. Whence came
the original Japanese, no one inquires.
The materials for the following sketch have been taken
from authentic sources, which have always been accessible;
but the facts, though plainly recorded, have been construed
to suit the theory that Japan was made first, and all the
world, including China and Corea, after it. It is only
by reading between the lines that the truth is to be
discerned.
66. In these Notes on early serfdom, the author only touches on a
subject in which the whole history of tenure and local institutions is
locked up. The evidence of serfdom offered by him is only a small
part of that which exists and ought to be thoroughly investigated.
The real value of this part of the Notes lies in the emphasis laid upon
two historical truths, i) that the serfs of early times represented the
conquered peoples (whether aborigines, strictly speaking, or only earlier
immigrants); 2) that the mass of the common people of to-day re¬
present the descendants of the early serfs. I believe that Dr. Simmons,
for the first time among foreign students, puts the proper emphasis
upon the facts bearing on these truths. The whole subject of early
serfdom has be#n treated in a scholarly essay, recently published, by
Dr. C. A. Florenz, AUjapanische Cultiirznstdnde," (Mittheil. d. D.
Gesells. Ost., Heft 44). Here will be found the systematic survey and
the citation of authorities which are lacking in Dr. Simmons, Notes on
hat subject. In the Appendix the principal portions are translated.
134 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
The admission is made in the histories, that the Mikado,
when he came from heaven, was accompanied by a court
and a retinue of servants numbering some eighty thousand.
Among all these primitive men none are related to have
been born in Japan ; they all came from Heaven. It is
further admitted by this record that Japan was already
peopled. For on the arrival of this heavenly crowd there
were guides with them, among others a chief called Saruda-
hiko.®' To this day, wherever there is a Shinto festival,
the Saruta, with a kind of retinue of servants, acts as
guide to the procession. This band of guides is quite
distinguished from the hami or deity of the procession;
and its costume, my teacher says, is that of Cochin China
officials. Whether these guides were of Malay or of Aino
origin, or whence they came, it is difficult to conjecture.
It may be remembered, however, that at a later time (as
recorded in the Kojiki) Keiko Tenno heard of a countr}' of
Hikami, to the north of his dominions, said to be very
fertile, and peopled with Emishi, who tattooed themselves,
and allow their hair to grow uncared for, and from the
fact that the sight of these people then made such an im¬
pression upon those who told of them, we may infer that
the rulers of Yamato had not previously come into contact
with these aborigines (who were obviously connected with
the Ainos), but had confined their conquests to related
tribes, whose ancestors were immigrants like themselves.®^
Let us turn next to the story of Sosa no wono Mikoto.
Tensho-daijin, a heaven-born goddess, had a younger bro¬
ther, Sosa no wono Mikoto, who threw®one day into her
bedroom, as she was weaving, the carcass of a recently
skinned horse. She ran away in a fright, and hid herself in
a cave, closing the door with a stone. Upon this Japan
became dark: and her followers and high officers, desiring
67. See the Kojiki, translated by Professor Chamberlain (Trans. As.
Soc. Jap. vol. X, p. loS, note 16).
68. See a similar conclusion drawn by Rein, '-Japan," p. 217 ; Satow
"Ancient Japanese Rituals" (Trans. As. Soc. Jap., vol. IX, pt. 2,
p. 203), '
SIMMONS & WIGliORE : LAND TENURE & LOCAL INSTITUTIONS. I35
to call her but, came together with songs arid music, rind
Tensho, to see what the noise was about, opened the door
of the cave a little. Some one sprang forward, pulled away
the stone,, she came out, and daywas restored. It was
hereupon decided by all that Sosa no wono Mikoto should
be punished ; but not awaiting his sentence, he fled back to
Corea, with his family, to a place' called Soshimori-mitra^^
Now soshi ineans " place of an ancestral tomb," and »ion' is
a grove or wooded hill. My teacher thinks this is good evi¬
dence that his home had been in Shinra, one of the ancient
divisions of Corea. This account is taken from a history
written three hundred years ago, in one hundred and seventy
volumes, by Hayashi Doshun, a teacher of lyeyasu. The
book was called Honcho Tsugan and was soon after sup¬
pressed, and the blocks were destro3 ed, the object being to
protect from assault the theory of the Mikado's divine ori¬
gin; but some copies were extant at least until Meiji.'"
After a time not exactly determined, say eight or ten
years, Sosa built a ship or ships and returned to Sari-
in-do in Izumo. Here he established himself, and built
a city of beautiful houses. It is supposed that he did
not come alone, but brought with him a large number
of artisans and women. At this place now is the town
of Oyashiro, with a large Shinto temple, which before
Meiji had a large landed property and stood only second
in popular estimation to the temple at Ise, the ancestral
one of the Mikado. Within the last two or three hundred
years there was dug up in the neighborhood of Oyashiro
a large flat stone, on which was an inscription engraved
in an old hieroglyphic of Chinese origin. Within a
few years it has been examined, by Japanese linguists
and the inscription found to be in the style of Li Ki, the
second book of the Chinese classics.
9
6g. See the story, as told in Nihongi, in "Ancient Japanese Rituals,"
stipra, p. 200; as told in Kojiki, see the translation supra, p. 60.
70. See Satow, article "Japanese Literature," American Cyclopaedia,
vol, IX. p. 551, where the same work is referred to as follows:
"Hayashi Kazan (1383-1657), in conjunction with his son Gaho or
136 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Again, Inai Mikoto, also one of the heaven-born, became
afterwards king of Shinra, in Corea. The wife of Ame-
hiyari Mikoto, another heayen-born, declared that she
wished to return to her native country Shinra. whereon
her husband, incensed, sent her olf to San-in-do, in the
province of Tajima.
Chinese history, too, corroborates these traces of im¬
migration to Japan ; for there is abundant evidence that
about 230 B.C., during a great revolutionary period, a
large number of emigrants left the country. They went
with families and slaves, and with all the appurtenances
of Chinese civilization. They seem to have left, some by
way of Chefoo and Shanghai, some by Amoy, Formosa,
and Loo Choo, and some no doubt through Corea. Near
Tosa, in Kanagawa Ken, is a village called Corai-ji. Now
Corai is the Japanese name for Corea. My friend Sadajiro
thinks that the greater part of the people of Sagami are of
Chinese or Corean descent, especially the carpenters and
other artisans. The location of those of Corean descent
Shunsai, compiled a general history of Japan in 273 books, entitled
Honcho Tstigan,' beginning with Jimmu Tenno and ending with the
34th year of Go-yozei TennD. A supplement to this work was com¬
pleted in 1703 by the great-grandson of Kazan ; it is entitled Kokushi
yitsuroku, and forms 79 books. Both of these works exist only if
manuscript." The Hayashi family for several generations took the
leading part in the revival of education and literature which occur¬
red under lyeyasu and his successors. Doshun, not Kazan, seems
to have been the common name of the founder. The story of the ^
suppression of this history is thus told in the "Outline History on
Japanese Education," (Japanese Department of Bducation, 1876, Ap-
pleton & Co.): " Shunsai established an historiographer's office, and
here he worked at the completion of the above mentioned history.
This work was completed after seven years of labor, during which
time he was assisted by his two sons and by more than thirty as¬
sistants of his own training;, upon these daily wages and monthly
allowances were bestowed by the government. When this history was
about to be published, it was subjected to the revision of the Princes
of Owari, Kii, and Mito; and the last of these, Mitsukuni, Prince of
Mito, attacked it, and was strongly opposed to its being published,
because, he said, it contained singular opinions concerning the Emper¬
or Jimmu. Its publication was on this account stopped." (p. 87)
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I37
seems to be Sagami, Koshu, the Sanyo-do, and the Hoku-
roku-do; of those of Chinese descent, Shikoku, Kyushu,
Omi, and the Gokinai; of those of mixed Chinese descent,
Mino and Owari,
The later immigration from the continent may be divided
into two classes. First, there came many teachers, at the
invitation of Japanese rulers. Secondly, there came chiefs
exiled or flying from defeat at home. They brought with
them in many cases companies of workmen and artisans,—
farmers, silk and tea growers, etc ;—virtually serfs. These
chiefs afterwards figured prominently in Japanese political
life, while those they brought with them took their place
among the common people, already in serfdom.
We have many indications, then, that the heaven-born
were immigrants of a higher class, who subdued a much
lower class of beings then inhabiting Japan. The as¬
sumption of divine origin for themselves by the conquerors
seems to indicate their advanced stage of civilization as
compared with the conquered tribes. Bringing with them
many of the arts, they were necessarily looked up to by
the semi-savage people as deities or superior beings.
We come now, in the histories, to recognize the people
of Japan divided into two great classes, the nobility or
gentlemen,, under various names (shii-cho, kiin-chd, shu-
knn, aruji, danna, tono-sama),'''^ and the lower classes or
slaves (dorei, yakko). As a means of distinguishing the
ownership of slaves, each one was tattooed with his
owner's device. This system of tattooing existed until
lately in Satsuma, all the officials of the daimyo being
known by certain dots on the fingers.^^ In Uda-gori in
Yamato, in Shinano, Musashi, and Yamashiro, the lower
classes were and are marked in large numbers by a tattoo
on the face.
•
71. ShH, chief, cho, superior; hun, lord; arnji, the Japanese word
represented by the character pronounced shu, in Sinico-Japanese;
danna, master; tono, lord; saina, a title of respect.
72. For the practice of tattooing, see Aston," Early Japanese His¬
tory" (Trans. As. Soc. Jap. XVI, p. 57).
138 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.'
. All these slaves were bought and sold like any other
property. In 645 A.D. a law was enacted by Kotoku
Tenno, determining the status of children of mixed paren¬
tage. If the parents were both of the nobility, the child
belonged to the father's: but if the mother was a slave,
*
the child was the property of her master,. though even if
the master was the father, the child was still illegitimate.
Where the father was the slave and the mother noble, the
child was also considered illegitimate. In the succeeding
year is recorded a law by which the Mikado confiscated
all the slaves of the great families called Omi, Omuraji,'
and Kokusa, to the use of the State. No reasons were
given, but a check upon their power was probably intended.
About 676 A.D., Tenbu, the thirty-ninth Mikado, declared
all private slaves the property of the State. Among these
certain classes were set free,—such as the makers of paper,
the Kudara people (from a large province of Corea, called
Hakusai in Chinese),'® who had been employed especially
in the private finance department of the Mikado, the musi¬
cians, including drummers and fifers, the sailors and
captains of junks, the hawk-keepers, the dyers and the
weavers, the apothecaries, the doctors, the assistants in
hospitals for the poor, the milkmen supplying the sick
and the poor, the cutlery-makers, the blacksmiths and the
armorers, the gardeners, the well-diggers and the water-
carriers, the masons, the potters, the basket-makers, the
mat-makers,—in fact, probably all artisans. Restrictions
of freedom still existed, but the legitimacy of children by
marriage with free persons was conceded?
/In 668 A.D., Tenchi Tenno had instituted a general
register of all the people, and had required each person to
have his nimhetsu-chd. The reason of this seems to have
73. Shinra (in cinico-Japanese), or Shiragi (a corrupted form), was
one of the .three states into which Corea was anciently divided, the
other two being known as Kudara and Kama (in Sinico-Japanese
Hyakusai and Kurni). (Chamberlain, Kojiki, supra, p. 232.). See-,
on this point and on early Corean intercourse with Japan, Parker's
"Race Struggles in Corea" (Trans. As. Soc. Jap., vol. XVIII, pt. II, p.
157), and " Early Japan," (China Review, Feb. 1890).
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I39
been an effort on the part of the lower or native element
to assume foreign heaven-born or noble ancestry and
thus escape from the low-class distinction of slaves. Again
in 814 A.D. Saga Tenno issued an order to trace out and
record the genealogy of the nobility as distinct from the
slaves, declaring it not right that this should be neglected,
A bureau in the Imperial Court was established for this
purpose, his son Manta put at the head, and a book
compiled, A copy presented by Mr. E. M. Satow is now
in the British Museum. From this book it appears that
the Japanese people, as therein described, had descended
from three chief stocks, first, from the family of the heaven-
born Mikado; secondly, from the families of his heaven-
born servants or retainers; thirdly, from Corean and
Chinese immigrants.The aborigines are not taken into
account at all. It should be said that though Saga was
the first to record the genealogies in a volume, Inkyo
Tenno, in 415 A.D., had caused the family records of the
nobility to be searched and verified; slaves, that is, natives,
being omitted.
When the nimbetsu-cho was instituted, government
slaves and those in charge of burial places were specially
registered as such; but all other slaves were registered
in the nimbetsu-cho of their masters. Ih the Shoso-in
in Mitsugura, Nara, there may still be found any number
of slave nimbetsu-cho, with other documents relating
to the old form of slavery. But the registry of a slave
never contained his family name; this was the disting¬
uishing- mark of a slave. Up to the period Meiji only the
aristocracy co^d use the family name. Even priests
could not. Doctors and teachers could while they exercised
their profession. Many did not even know their family
name, I have often asked, "What is your name?"
" Njkichi."—" What is your family name?"—"I don't
know." My friend Sadajiro, a samurai, on coming to
74. Seishi-roku or Shoji-roku was the name of this work. See the
full account in the Appendix in the passages from Florenz's " Altjapa-
nische Culturzustande." ....
140 SIMMONS & WIGMORE : EAND TENURE & LOCAL INSTITUTIONS.
Kanagawa, was able to buy some land by taking'out, with
the connivance of the nanushi, the nimbetsu-cho of a farmer,
which was of a different style from his own.
Another bit of evidence relating to the old slavery system
is the manner of cutting men's hair. Up to the Meiji
period, the Mikado and all his court, Shinto priests, and
doctors wore their hair uncut, after the Corean style.
Buddhist priests and some few others shaved the head
completely. But all others shaved half the head, on top,
and made a queue. As boys they did not cut the hairi
but on arriving at manhood they cut it in this particular
style. Now up to the time of the Ashikaga Shoguns,
more definitely, up to the first Takauji (133+ A.D.) this
was the style of hair used by all classes except the kiige,
doctors, Shinto priests, and military men. It was called
yakko-atama or dorei-atntua "slave-head;" the other style
was called sd/m/sK, "all-hair."
Under the feudal regime, slavery as a system became
weaker and weaker, one of the principal causes being
the disorganization of society and the changes arising
from wars and conquests. At the same time the prohibi¬
tion against family unions between higher and lower
classes disappeared.
We must here speak briefly of the farm laborers. There
were two principal kinds ;
1. Hokonin (one who offers to a superior).
2. Fudai, niwago, monya, kahoJ^
I. Hokonin, properly so called, were unmarried servants,
serving for a certain period. If found ^or a number of
years, they were called nen-ki (year-term). T^he longest term
75. These terms seem to be somewhat obscure, and the inability of
many scholars to explain their etymology leads me to think that Dr.
Simmons may not have transliterated quite correctly. Niwa-go Mr.
Gubbins explains as compounded of niwa, " garden," and ho, " child,"
and applied to the children of cottier-tenants who were employed by
the great farmers whose estates their parents cultivated. Monya, the
same authority suggests, may be mo-ya, "main-building." Fudai
means " hereditary." See further the passages in the Appendix from
Dr. Florenz's " Altjapanische CuUurzustande,"
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. I4I
allowed by law was ten years. They were usually taken
at from fifteen to twenty-six years of age. They never
married until their time expired. This form of service was
considered the most desirable for both parties. If the
agreement was for a month, the name was f5J<^j-(month)-
yatoi. If from day to day, hi-{day)-yatoi. These were of
both sexes. They were taken on in busy times, and often
came from a distance at the required season yearly.
2. These names were used in different regions to denote
the same relations. They were serfs, and lived together
on the premises of a large farmer, with their families.
Something more has been said of them in another place.
But there were some who could not release themselves
from the extreme class distinctions imposed by the system
of slavery. Three classes existed as late as the Meiji
period—the yeta, the kawara-mono, aud the bantard or
yama-ban,—who showed very clear traces of the primitive
serfdom. Let us take these up in this order.
2. The Yeta classes.
1 Yeta. This class of persons is variously known as
yeta, chori, kwanhd. The first term was the one generally
used, but the second was the officially recognized term,
always employed in government communications.^' They
stood at the bottom of the social scale, and were regarded
by all above them with feelings of repulsion and contempt.
The Japanese are apt to claim that this class of people
were of a different race from themselves, but this is not
proven. Their origin is not certainly known. I have
expressed the opinion that they were the remnants of
the lowest class of the aborigines, who show the most
76. It is difficult to tell from the manuscript of the Notes which were
the large divisions of these people,—whether, for instance, yeta was a
general term for all, or whether it did not include bantaru and kawara-
mono ; whether it included hinin or not. Some inevitable obscurity on
this point, therefore, remains in the Notes.
77. Chori, according to Mr. Gubbins, was applied only to the chief of
the yeta.
142 SIMMONS & WIGMORC : LAND TENURE & LOCAL INSTITUTIONS.
recent traces of slaver}'. Another explanation, which was
given to me many years ago, is as .follows. At two or
three periods in the history of Japan, teachers have been
invited to inmigrate to this country. Taking advantage
of the intercourse springing up between Japan and the
continent, a class of immigrants far from desirable found
their way here. In consequence of wars and the interrup¬
tion of intercourse, it was not convenient to send these
people back, and they were provided for by being distributed
among the towns and villages, each house in turn furnish¬
ing them a day's rice. Having no trade, but being strong
and healthy, they were asked, as might be expected, by
those who gave them their daily rations, to do such
unpleasant jobs as needed to be done,—carrying away and
burying dead animals, etc. These errands were quite
common, as the flesh of cattle was never eaten, and all
died a natural death. This sort of work at length became
their sole occupation; and as time advanced, little com¬
munities sprang up in almost every town of any size.
Coming from a foreign stock and following an occupation
looked upon with especial disgust, they were kept apart
and were looked upon as little better than the beasts whose
skins they worked upon.
The residence of the yeta was usually on the outskirts
of the town or village. They were not allowed under any
circumstances to buy or occupy land in any other part of
the region. Intermarriage with any but members of their
own class rarely if ever took place. Their chief occupation
was the tanning of leather. Once the^eather was made,
no stigma attached to its manufacture into various articles,
■and such trades were followed by 'others as well. The
yeta, however, had the monopoly by custom of the
manufacture of leather shoes and of drum-heads. Any
other person who undertook these manufactures would at
once be beset and interfered with by a crowd of these
people, till he was glad to yield and to pay a good sum to
rid himself of them.
Other special families had special occupations. The
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I43
sweeping and cleaning of the Mikado's gardens was
in the hands of the yeta. Eight families went daily to
perform this service. They bore the name of Koboshi,
and lived in Renda mttra, near Kyoto. About one and a
half ri from there, in Sai mura, the chief held from the
Mikado land of 200 koku revenue; the cultivating farmers,
however, were not yeta. The yeta of Yamato ktini gave
the hat and the straw shoes worn by the Mikado, and
received in return a present of rice. These were called
Kasuga yeta, and lived in Hannyazaka mura. Their
chief was of very old famil}', and ranked with Danzayemon,-
the Yedo chief. The grounds of the Shogun's castle at
Kyoto were also swept by a yeta family, Shimo mura
Shosuke by name, living in Tanaka mura. Mr. Sadajird
thinks that, like the hospital yeta in Yedo, this was an
old samurai family, fallen into disgrace. This Tanaka
mura family had the monopoly of using indigo dye in all
the district south of Owari, and by exacting a tax from all
others using the material they became very rich. North
of Owari another yeto family had a similar monopoly.
There were several different classes. Chori or yeta was
the generic name, as was samurai for a large group of the
feudal nobility. The different classes were as follows.
I. Shinku. These were occupied with the soil, usually as
laborers, e.g. in well-digging and well-cleaning; of these
occupations, they had a monopoly. A few, however,
were cultivators and owners of land. 2. Shomun. These
were of a better class than the preceding, and not only
owned and cultivated land (in certain fixed localities) but
in some cases were very well-to-do, and even became rich
as land owners. They also took up commercial pursuits,
chiefly, however, relating to leather and leather goods,
bones of animals, and bone manure. These two classes
were hereditary. The next was not. 3. Hinin (not-men)
or beggars, also called kojiki, or kotsu-jiki. This class
was recruited from many sources, even from the samurai.
The opprobrium attached to it, not arising from any
hereditary occupation, was due chiefly to the shameless.
144 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
dishonored character of the men who entered it.^^ Thus
the recruits from the samurai would be men who had dis¬
graced the name of the family and who had not the courage
to commit harakiri; for if the offence had not been a
capital one, they could escape death by joining the
hinin. Stories are told, too, of a samurai falling in
love with a yeta maiden and relinquishing his rank and
title to join the yeta and marry her. So, too, bankrupts,
broken in spirit and discouraged, tramps and waifs of all
kinds, joined the hinin, thus making a public declaration
that th^y relinquished all rights as members of respectable
society and therewith all obligations to respectability and
the expenses it demanded. They were thus left free to
live as they pleased, and by the least amount of effort
to obtain the necessaries of life. For such men the hinin
brotherhood furnished a convenient asylum. They need
not descend so far as to become beggars. In fact some
even became rich, through the economy which here became
possible. As members of the brotherhood they , paid to
the chief a tax which went into a common fund, used
for their support in case of absolute inability to supply their
wants even by begging. One of the results was that
decent society was entirely freed from the need of caring
directly for those who were outcasts and vagabonds by
choice.
There were three chief of the yeto; in Yedo, Danzaye-
mon, in Osaka, Watanabe, in Kyoto, Amabe. The Yedo
78. This case indicates something of the position held by the hinm
in popular estimation : ^
" Criminal case, loth month, ist year of Enkyo (1744); Defendants,
Jirobei, Isoyemon, Kohachi, Shinyemon, Juzayemon, a gonin-gumi of
Awonashi mura, province of Joshu.
" These persons, when their townsmen Juzayemon had killed a hinin
of Kaneko mnra, felt sorry that he and his children should suffer for this
act, and secretly approaching the officers of Kaneko mura bribed them
to settle the matter privately. To the question, whether they should
not be fined three kwammon apiece for the crime of compounding a
murder, even though the victim was only a hinin, an affirmative
answer was given."
Rcigaki, Art. 12 [Mittheil. d. D. Gcsclls. Ost., Heft 41, p. 109.).
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 145
chief claimed, it is said, to be descended from an illegiti¬
mate child of Yoritomo by a farmer's daughter. She made
him promise that he would not claim the child, but the
latter on coming of age, asked for some position to be given
him, and received the appointment of chief of ihs yeta.
When lyeyasu first came to Yedo, the Danzayemon of the
time went to meet him, and informed him that Danzaye-
mon's family had been chief of the yeta from the time of
the Kamakura Shoguns. So lyeyasu confirmed him in
the office. A certain Tarozayemon laid claim to the office,
but was rejected. In 1692 a hostile claim was again made,
but the Danzayemon family were again confirmed. At this
time the chief submitted the following document in support
of his claim. " My family furnished the leathern straps
for the shoes of lyeyasu's horses. On the eleventh day of
the New Year we took a monkey into the Shogun's stables
to charm away disease from his horses. As chief I wear
two swords and an official dress, and the kumi-gashira of
theyeirt wears one sword. I now use the Kiihi-cho seal of
the battle of Sekigahara. Since 1622 we yeta have
supplied the wicks for the candles of the Shogun's castle.
We have also furnished the drums for the castle and the
horse-trappings for high officials. We have in addition,
performed the office of executioner. " In 1719, at the time
when the famous Oka Echizen no Kami was machi-bugyd
of Yedo, the Shogun Yoshimune ordered the bugyo to
inquire into the origin of the privileges of Danzayemon.
Danzayemon's answer was : " I have no written record of
my duties, but have only learned them by verbal instruc¬
tions from my predecessor. I have learned simply that
my ancestors came from Settsu kutii to Kamakura. I
know, too, that when we go to the Sam-bugyd, we wear, as
of old, two swords and an official dress. If we have been
mistaken in ^this, we humbly ask pardon. Heretofore I
have not attended personally to the duties of my office at
the Hospital, and have sent my chief officers instead. But
hereafter I will myself take charge. Please permit me
however, as heretofore to wear two swords and the official
146 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
dress." This request was granted; and Danzayemon
again sent word: " Now I will write down what I have
learned only verbally from my predecessor. My remote
ancestor came from Ikeda mura, in Settsu, to Kamakura.
There he was given the care of yeta and others of that
class. At that time he received a written authority for
his privileges from Yoritomo. But this document was
placed in Hachiman Temple. Those who question our
authority may go there and get a copy of this document."
To this day the yeta go to the matsuri which is held
each year at the Hachiman temples in Kamakura and
Kyoto."
The authority of the chief over the members was complete
and was summarily exercised." A story is told of a man
who sent a drum to one of the yeta to be repaired. The
workman, in want of money, pawned it for a time, and the
owner, not being able to get his drum, complained to the
chief. The latter called all his workmen, and the owner
picked out the offender. The man confessed, was seized
and taken around behind the horse, and in a few moments
his head was brought to the owner of the drum. Shocked
at such speedy justice, he said that it was his drum, not
the man's head, that he wanted; such retaliation for a
thing worth only a few tempo was cruel. But the chief
79. Where the offence did not concern or hinin alone, the ordinary
police anthorities seem to have retained some jurisdiction. " It is true
that soothsayers, hermits, blind persons, heggais, yeta, and vagrants,
have of old had their own chiefs. But should they engage in strife
or overstep their position and break the laws, is proper to punish
them." 100 Laws of lyeyasu. Art. 35 (Mittheil. d. D. Gcsells. Ost.,
Heft 41, p. 10).
"Punishment of hinin. The culprit is to be handed over to the yeta
Danzayemon whose duty it is to punish hinin. Addendum. If a hinin
outside of Yedo is to be punished, it is ordered that the head of the
place in question shall carry out the punishment." The Kujikata Osa-
damcgaki, (1732) II, Art. 102 (Mittheil. etc., supra, p. 103).
" Yeta and hinin who have been delivered to a head of the yeta to
undergo proper punishment may like ordinary persons receive the
benefit of a pardon." Sha-ritsu, (1862) Art. 20 (Mittheil. etc. supra,
p. 139).
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I47
said that the penalty which had been inflicted was the
regular one, and that no man of his should be found to
fail in the smallest point.
II. The second of these classes was the Kawaramono
(river-people). These were without fixed homes. Their
occupation was that of strolling players, and out of their
occupation grew the theatre.
III. The third class was the Bantaro (watchman) or
Yamaban (mountain-watch). These formed a sort of
volunteer police, who could be hired by villages and towns,
or by private persons for the protection of their property.
The large cities had their own police systems, but .the
daikwan, small daimyo, and hatamoto usually employed
bantaro. In a village the bantaro went every morning
to the nanushi to inquire if there was anything to be done.
They had no power to arrest without an order, unless
In flagrante delicto. When an order was desired, it had
to be obtained from an officer of the daikwan or the bugyo,
the nanushi having no authority in criminal matters. A
small prison called ori stood near the bantaro house, and
was used as a temporary place of confinement until the
proper official arrived. Arrested persons were bound with
cords differing according to the kind of offence, in case 'of
murder with a blue-black one, in case of theft with a light-
colored one. Samurai were always bound with iron
clamps or wristlets, never with cord. The bantaro were
very skilful in capturing criminals. When a criminal
escaped from Yedo, a letter was sent on to the first bantaro
in the direction taken by the fugitive. Search was begun,
and the letter sent on rapidly to the second, to the third
bantaro, and so on. Sometimes a distance of forty-five
ri was thus covered in twenty-four hours. The bantaro,
however, was always a guard or watchman, never a spy.
Detection duty was performed by the okappiki, under the
direction of officials. The bantaro themselves were never
known to commit a theft or other crime of any kind, and,
remarkably enough, they did not even "squeeze" or levy
blackmail. They had no house tax. They went about
148 SIMMONS,& WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
every morning with a small covered pail, and received
from each house the cold victuals left over; this they
often sold to beggars. Instead of food, they were
sometimes given a cash or two. They were most polite
and respectful in their behavior. Their occupation was
hereditary, and they could never rise to any higher rank.
III. SUMMARY BY THE EDITOR.
Of the growth of social institutions in Japan not very
much has been discovered by Western students. We
know something of the chronicles of the ruling class,
of its wars, of a few old customs, and of its general
political structure at one or two epochs; but of the rise
and the change of the various institutions, of the history
of landholding,^" of the development of the manorial and
the feudal systems, of the growth of towns, of the guilds
and the commercial customs*, of the agricultural system,
of the local political life, of the village communities, of
freeman and serf, tribe and family, country and town,
priest and parishioner,—of all these topics and many relat¬
ed ones, we know comparatively little, certainly nothing
that is thorough and satisfactory. Our attention has
hitherto been taken by the things that are dissimilar and
un-Occidental. We have still to turn our attention to
those subjects in which we may find a kindred course
of development, in which the history of Japan may throw
some light on the history of Europe, and may furnish
facts which may be grouped with the facts of European
development and used as a foundation for contrast and
generalization.
Before proceeding to review briefly the subjects of the
preceding Notes, something must be said in regard to
the collateral importance of the same general class of
facts in their bearing on one of the most interesting
ethnological problems relating to Japan,—the source of
the primitive Japanese people. That problem has now
been examined from many points of view,—from the
archaeological by von Siebold (to name one name only);
80 See the brief but valuable supplement to the " Report on Taxation
in Japan," by J. H. Gubbins, Esq., (British Consular Commercial
Reports, 1883).
150 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
from the zoological, by Blakiston; from the geological,
by Milne; from the mythical and traditional, by Cham¬
berlain ; from the philological, by Parker; from the anthro¬
pological, by Baelz. But from what may be called the
institutional standpoint, it still remains to be considered.
Yet this aspect must ever be an important one. Take
the single set of facts upon which Dr. Simmons is the
first to lay the proper emphasis,—the facts relating to
early serfdom. The existence of serfdom among primi¬
tive peoples points almost always to a greater or less
difference between the stock of conquerors and conquered.
Given, as in this case, the fact that there was a conquering
of Japan by certain primitive immigrants, and we know
that there must have been some difference of stock be¬
tween the invaders and the opposing inhabitants. Further
investigation of the nature of the serfdom which ensued
would help to decide whether the subjected classes were
strictly aborigines or were merely descendants of earlier
immigrants from the home of the invaders. A study of
the later development of the serfdom would make it clear
whether the common people of to-day are to be identified
with the primitive serfs. Furthermore the history of
early European tenure may be of assistance. In the
case of some of the early Germanic tribes, for instance,
we find them with families and slaves, settling in new
territory and out of their own numbers populating the
district and developing into communities. In the case
of the Saxon and the Norman conquests of England,
on the other hand, we find bodies of warriors descending
on an insular population, preserving the existing com¬
munities, but bringing them into subjection. It is
obvious that the relative number of the serfs and the
servile mode of life would differ in the two cases. These
instances and others furnish several different types of
early communities, in which the history of the conquest
and settlement are more or less intertwined with the
nature of the serfdom. Given the facts bearing on the
kind of serfdom and we may be able to reconstruct the
SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS. I5I
course of previous history. In the case of Japan, for
example, the number of serfs makes it necessary to sup¬
pose that the conquest of the country resembled that of
England by the Angles and the Saxons. At the same
time, vv'e may find, in the history of a given people, that
it has at various times partaken of various t3'pes. One
of the interesting features, in the present instance, is
that we find traces in Japan at one time of a develop¬
ment like that of England, at another of a practice of
colonization such as characterized the early Germanic
tribes, at another of a system resembling the Roman
provincial administration. The possibility of reasoning
from a tooth or a vertebra to an entire skeleton is not
peculiar to zoology alone; and the proper investigation
and comparison of the facts bearing on early serfdom
in this country would yield rich results to the ethnologist.
As an illustration of the way in which the facts of
primitive institutions must be used to verify inferences
resting on other grounds, let me call attention to some
conclusions reached by the learned Dr. Baelz of the Imperial
University. Kdrperlichen Eigenschaften der Japan-
ischer," Mittheil. der D. Ges. Ost., Eleft 28, s. 330). These
are, briefly, that three ethnical elements are represented
among the Japanese people: i. The Ainos, the original
inhabitants of Middle and Northern Japan, but very sparsely
represented in the people of to-day : 2. A Mongoloid tribe,
resembling the better classes of Chinese and Coreans,
immigrating from the continent across Corea, first settling
in the south-western* part of the main island, and thence
spreading over it; this class possesses a slender figure,
narrow face, dolichocephalic skull, a fine curved nose, and
a small mouth: 3. Another Mongoloid tribe, bearing a
distinct resemblance to Malays, first settling in the southern
island of Kyushu, then crossing to the main island and con¬
quering it; this class has a stout frame, short skull, broad
face, flat nose, and large mouth, and is preponderant among
the common people; it is most purely represented to-day in
Satsuma, and includes also the Imperial family.
152 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS'.
Now it is not too much to say that when the subject of
early serfdom is fully examined it may become necessary to
modify these opinions. For they involve the conclusion
that substantially the entire present people of Japan are
descended from the immigrant invaders. Yet, once it is
established that the common people of to-day represent the
serfs of the first five centuries of this era, and that the serfs
of that day must have been a conquered aboriginal people,
an hiatus occurs in the learned writer's analysis; for the
race of the common people is not accounted for. His iden¬
tification of the Satsuma type as that of the Imperial
family and of the conquerors of the Izumo dynasty is
doubtless sound ; but the reference to Satsuma only serves
to show the necessity of some modification; for it was
precisely in Satsuma that the emphasis of class-differences
was greatest, that serfdom continued longest and was most
pronounced, and the tracing of the type of the ruling
classes in Satsuma leaves the lower classes still unaccount¬
ed for. Moreover, the earl}' difference of status being so
great between the upper and the lower classes, is it likely
that the type of men who became the conquerors of the
main island and to-day are found in the Imperial family
would also occur most largely among the masses,—in other
words, would become at the same time conquerors and
serfs ? On the other hand, anthropological data, when
interpreted according* to the facts of early institutions,
may be found to tell a different story. Two immigrations
by two stocks of invaders are clearly indicated; the con¬
quering of the northern settlement bjfc the southern cer¬
tainly followed; but perhaps both had originally been
conquerors of a native people; and though the two
immigrant tribes probably made some kind of a compro¬
mise or division of authority, it seems likely that neither
was. subjected to the other, and that the mass of the
inhabitants remained below both. If this was so, the
apparent anthropological resemblance between the Satsuma
type and the type common among the people must be
again examined. Certainly the inferences from data of
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I53
that kind are by no means unmistakable; and it is,
I believe, the opinion of Dr. Baelz himself that final
conclusions in that department have not yet been reached.
My purpose in alluding to the subject is merely to suggest
that valuable assistance may be gained by examining it
anew from the institutional standpoint.
Turning from this ethnological problem, the light thrown
by these Notes upon the growth of land tenure and of
feudal, local, and family institutions, is not a bright one.
They only introduce us to the subject and suggest clues.
But even these clues lead us into topics of the deepest
interest and importance. We are tempted by what is
here given us to speculate on what is not given. The
number of analogies that may be traced between the
growth of institutions in Japan and in Europe as well
as in India and China, while it does not necessarily
indicate ethnological relationships (though that aspect is
not without some importance in view of the Accadian
kinship ascribed by Baelz, Garczynski, and others to the
Japanese), portrays a parallelism of development which
cannot fail to be of great consequence to the European
student of feudalism, land tenure, and local institutions.
A few words calling attention to the possibilities of
material here indicated will not be out of place.
It is of course not to be expected that we shall find
specific resemblance in the land system, early or late,
so far as that depends on methods of agriculture. Rice-
culture and wheat-culture are essentially different in
their requirements. Maine's remark, made in reference
to India, is here applicable. "The conditions of agricul¬
ture in a tropical country are so widely different from
those which at any period can be supposed to have
determined cultivation in Northern and Central Europe
as to forbid^ us to look for any resemblances, at once
widely-extended and exact, to the Teutonic three-field
system. Indeed, as the great agent of production in a
tropical country is water, very great dissimilarities in
modes of cultivation are produced within India itself by
154 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
relative proximity to running streams and relative exposure
to the periodical rain-fall." Though Japan is by no
means a tropical country, it is characterized by an abandant
precipitation of rain, and water is here, as in India, the
great agent in rice-cultivation. For any marks of early
customs which would have been a result of the three-
field system or of the use of the plough, we need not
look. The size, therefore, of the plots forming the early
units of distribution has no relation to the oblong agri
or acres; the terms "furlong," "headland," " anwende,"
etc., have no relevance.
In the early division of land the lowest units were
all square, as was the Roman provincial unit. We
do not find an oblong measure of land until we reach
the tan (.245 acre), the sides of which were in the
proportion of 30 to 12 (later, 30 to 10), and this was
composed of a number of these square units. The
latter apparently had their origin in the length of a
measuring rod used in the setting off of land, but I
have not yet learned to what circumstance the length
of this rod is to be ascribed. There can be no doubt,
however, that its length was determined, just as was
that of the European rod, by some peculiarity of the
early system of cultivation which made a certain implement
of nearly fixed dimension preeminently convenient as a
measure of length. The balk, however, was an exigency
under either system of cultivation, and this we find in
Japan, under the name of are. This, as in Europe
was often cultivated. It appears that* there were rules
determining the appropriation of the grass grown upon
it. Whether, as in England, the lord ever claimed
any right to its product, does not yet appear. But
no one who has seen a Japanese field of to-day can doubt,
that the balk, which varies as much in size and direction
as it did in England, must have played an almost
equally important part in the agricultural economy.
Each portion enclosed within certain of the larger balks
bore a name, and such a piece was called " name-land "
SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS. I55
[myo-den, mei-den, na)P- The name once was that of
the occupying family. A piece of land, for example,
was called " Takehisa-wa" or " Nagahira-«fl," after its
reclaimer. The name did not shift with the occupant,
and each owner, no matter how many pieces he possessed,
still distinguished by their titles the different "name-
lands." That such separate entity should continue for
a long space of time is a priori probable. Moreover
it will be remembered that Dr. Simmons was told that no
" name-land" could be mortgaged or subdivided by will.
In the Minji Kwanrei-rnishii there is mentioned the ge-
fnda, a certificate copied from the land-register (nayose-
cho), showing the total possessions of each individual.
" In the ge-fuda," it is said, " a person's property is
recorded as a whole. The different pieces of land do not
have each a separate ge-fuda. When therefore the owner
of several portions of land wishes to sell a single one, it
is impossible to do so at short notice, for as the transfer
of the ge-fuda is necessary, a new ge-fuda must be made
out, and this can only be done at the time of the revision
of the land-register, which ought to occur every March,
but in practice takes place only once in about three
years." This custom is related of the province of Suwo,
and indicates that to a very recent date the " name-land "
there preserved its integrity. Even the land-register was
called " nayose-cho," that is, collection of na, or "name-
lands." We are here reminded of the fact that the English
virgate was often known by a family name, and that it
was probably at one time indivisible by succession. In
an Essex manor the names of the several owners of a
single hide were bracketed; and in some cases the manorial
services continued to be assessed as though no subdi¬
vision had occurred, and the occupants united to pay
the single a|sessment.
We do not yet know the size of the Japanese "name-
81. MyO and mei are the Sinico-Japanese, jki the Japanese, pronun¬
ciation of the same character, meaning "name;" de7t means "wet
cultivated land."
156 SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS.
land," but it is likely that it was much smaller than
either the hide or the virgate, perhaps smaller .than
the acre. It is not possible to determine the size from
the assessments named in the kumi-clid (see Appendix),
for the assessments varied according to the quality of
the land. For example, we learn from a document of
the period Bunroku (1592-1596) that the four grades
j6-,chu-,ge-, and gege-den (best, medium, poor and poorest
rice-land) were assessed respectively, per tan, 1.5 koku,
1.3 hokii, and i.i kokn, the lowest grade being left to
the discretion of the officers. Under these circumstances
a determination of the area of the holdings from such
evidence is impossible. There were, however, mnra and
gun records which contained not only the quality of
each piece of land assessed, but also the area itself.
In a nayose-cho recently placed in my hands the area
of each holding is given ; but it is by no means as easy
as in the case of the English records to determine the
size of the original "name-land" unit, if indeed there was
a uniform size, and a thorough collation of various sorts
of evidence will be necessary for the purpose.
The "name-lands" in the possession of a single owner,
it should be added, were scattered about within certain
limits, and it is in this respect that the Japanese system
draws near again to that of Western Europe. It is true
that the three-field system is in the case of the latter partly
responsible; but even within the single fields this scattered
ownership appears, and its kinship with the similar pheno¬
mena occurring in Japan is not unlike^'. What is here
needed is the careful examination and collation of as many
field-maps as possible. Such documents formed a part of
the public records in some villages, and ought to be acces¬
sible now. It was the custom in the middle ages, with
many large landowners, to make a map of their possessions
and transmit it with the title-deeds, and many of these
should be available. The study of the arrangement of fields
at the present day in the more secluded parts of the interior
would afford complementary data of great value.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 157
This subject leads us necessarily to the question of
the early distribution of land among the immigrant tribes¬
men. Back of the manorial system of shoyen, which was
a later development of the ninth and tenth centuries,
we find an account of a method of allotment indicating
an earlier stage of tenure similar to the earlier stages
traceable in Europe. This was the allotment of kn-bnn-
den (mouth-share-land) described in the code Taiho-ryo,
published 702 A.D. A summary of its important pro¬
visions has already been given in these Transactions
(vol. VIII, part 2) by Mr. Tarring, but I will here quote
from the text as set out in Fiiddsan, "A piece of
land shall be given to each person in the district where he
lives. Even when the boundaries of a district are changed,
one does not lose title to land which thereby falls within
a different district. Every 6 years an examination will
take place, and the number of those who have died will
be ascertained. Their land will then be given to those
who have reached the proper age or have immigrated
since the last distribution. Each male of 5 years of age
or over is to receive 2 tan, and each female of that age
one-third of the amount; but according to the size of
the district the quantity may vary. Slaves under public
authority shall receive 2 tan, and those belonging to
individuals shall receive one-third of this amount.But
this system, as promulgated in the Taihd code, was
evidently not merely a new one, but the final stage of
a S3'stem already' passing away. At successive periods
in the next two hundred years proclamations commanding
an allotment were made, but they seem to have been
carried out for a short time and in scattered regions. For
one period of forty-eight j'ears no new allotment was
made, and in some of the proclamations the law, as if
aware of th» difficulty of reestablishing the practice, fixes
the time for re-distribution at 10 years instead of 6
years. We cannot help feeling that in the epoch before
the seventh century, where records are not plentiful, the
82. These amounts were somewhat changed by subsequent legislation.
158 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
system of allotment was in full force; and that the 7 aiho
legislation was merely a strong effort to preserve from
dissolution a system against which circumstances were
too powerful. Certainly at that time a process of change
was going on. The smaller freemen were falling into
the power of the local chiefs. Oppression by subordinate
officers and the necessity arising from scanty resources
was driving the body of the people into subjection to the
powerful landholders. "Many officers of provinces (kuni-
tsukasa) gave waste land to the people, while they kept
the good land. Officers and rich men forced others to
exchange good land for poor. Thus people became unable
to pay their taxes. The names of deceased persons were
not reported, and the ku-bun-den began to be held perma¬
nently. Names were fraudulently added to the register
to secure an extra share in the distribution." (Fudosan).
The central Government made decree after decree, de¬
nouncing these practices, but without success. After thei
period Engi (901-922), ku-bun-den distribution seems not
to have been heard of. Meantime a new impulse was
given to the tendency towards the acquisition of large
properties and the subversion of small ones. Settlements
in the north and east produced a class of powerful land¬
owners, who had brought rich shin-den (new land) into
cultivation, doubtless by colonies of slaves, and a new
military aristocracy began to spring up, out of which
came later the government of the Shogun Yoritomo, with
his capital at Kamakura on the eastern coast. Here a
process of absorption (to be referred to^gain), similar to
that known in Europe as " commendation," began to take
place. The temple lands, too, increased enormously by
gifts of land, the owners transforming themselves into
tenants. All these influences militated against the ku-
bun-den distribution, and it disappeared entirely. The
most probable view of its significance, as it appears in
the TrtiVio code, is that it was the early system adopted
for the division of lands among the members of the
vailous tribes, that the circumstances mentioned in the
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I59
Fudosan had before the eighth century begun to weaken
this early custom, and that we see it in the Taihd code
at a time when its dissolution was becoming apparent,
and when the vain attempt was made by legislation to
prop up a practice which when it was in full force lay
only in custom,—in other words, a time when the tendency,
seen in early communities, of such a re-distribution to
become theoretical only, was beginning to be clear.
It has been pointed out by Sir Henry Maine, if not
by others, that where a system of re-distribution exists
in a tribal community, the re-distribution at short year-
periods denotes an earlier stage of development than
the re-distribution at death. In the present case we find
the re-distribution occurring at death, and it may be
argued that this corroborates the view that the Taihd
code embodies this practice in its waning period, and
that there had been an earlier one when the practice was
a general one and consisted in that frequent re-distribution
characteristic of many tribal communities.^^
What is needed is a careful comparison of the distribu¬
tion systems already known to us in other early tribes
with that of early Japan. Considerable light will also thus
be thrown on the subject of early serfdom. One collateral
benefit of such a comparison will be the necessary abandon¬
ment of the ideas of pomp and regal sovereignty which are
associated with the early history of the Japanese conquerors.
Much harm has been done in this respect in the way of
obscuring the true paths of investigation ,and of concealing
important clues. It is not necessary to declare, with the
Philistine, that the so-called Emperor Jimmu was only a
Tartar pirate; but it is indispensable to recognize that early
Japanese history deals with the doings of tribes and clans
83 The learned conclusion of Dr. H. Weipert, proceeding on the
authority of the Densei-hen (a history of real property), is that the facts
are to be explaTned on another hypothesis, namely, that the distribu¬
tion system was introduced from China by Kotoku Tenno {645-655 A.D.),
with whose reign is associated the adoption of many Chinese practices,
but that it never obtained a firm hold, in spite of governmental efforts.
{Mittheils. d.D. Gesells. Ost., Heft 43, p. 124).
l6o SIMMONS & WIGMORE: land tenure & local INSTITUTIONS.
of primitive habits and institutions, that the leaders were
chiefs and not emperors, and that their annals have as much
human interest and are as capable of rational explanation
as are the records of the European tribes whose story is
better known to us. It is for this reason that (if I may
venture to call in question the conclusions of a learned
scholar) one may regret the use, in Professor Chamber¬
lain's translation of the Kojiki, of such terms as " Prince,"
"Suzerain," "Duchess," "Grandee," "Departmental Su¬
zerain," as representing certain elusive terms of the or¬
iginal. Difficult as the task of establishing a nomencla¬
ture must be in such a case, one result of the system
adopted is to add a glamor of grandeur to the history
which cannot but obscure the true simplicity of the
records and may perhaps mislead one who is not con¬
stantly on the watch to make the necessary mental
correction.
Whether or not the distribution of kii-biin-den was made
on a principle similar to that over which a controversy
has arisen among students of European history—the prin¬
ciple of distributing, not equally, but to each head of
a family according to the number of slaves, pro numero
cultornm—is another of the interesting questions. It
seems clear that the total holding of each family was
made up of the several amounts of land due to each man
and woman therein ; that is, if there were five men and
three women the total holding would be 12 tnn, and this
would be the property of the family as a unit. The same
principle was also followed with reference to the holdings
of the slaves of the family ; in fact, it is out of the question
that these can be supposed to have possessed a separate
interest in land. The statements of Dr. Weipert, in Ja-
panisches Familienrecht," and Dr. Florenz, in " Altjnpan-
isclie Culturzustdnde" (see Appendix) make this quite
clear. In this way, too, we understand why it is that we
meet at the threshold distinctions between the rich and the
poor; for in the distribution the preference, it was said, was
to be given to the poor,—that is, those already possessing
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. l6l
little or nothing—as against the rich,—those who through
the large number of dependants had already received large
allotments. The "public slaves" who received the full
share of a freeman would seem to have been communities
of the conquered native tribes, settled probably in villages j
of their own, who, submitting in large numbers at one
time and by treaties of peace, had not been appropriated
by individual invaders, as were those who resisted in
battle; and these, though they remained serfs, yet lived
in their own communities, and were naturally given a
larger share of land. Unless this is true it is impossible
to suppose the truth of the statement, already referred
to, that be was a term applied to tribes or communities ot
serfs, for there would otherwise be no communities to
which the term could refer. This supposition, too, would
help to explain the fact that the land of public slaves was
fii-zei-deii, i.e. could not be alienated. It was quite
unnecessary to say that slaves of individuals, living in
or about the master's homestead, and palpably adscripti
glebae, could not dispose of land; but it would be im¬
portant to declare that those who were left in their original
communities and were not attached to the household of
a freeman should not dispose of their land ; for with them
the natural tendency would be to treat their land as free
from restrictions. The distinguishing mark of such serfs
would be, not their mode of residence, but their inability
to deal with their land.
A portion of the system of distribution recorded in the
Tailid code is quite distinct in principle from the ku-bun-
den allotment, and seems to be the growth of a later time
(perhaps at the period Tailid it was comparatively new)
when the conquest of new regions placed a larger territory
at the disposal of the conquering race. Conditions some¬
what simila^ to those attending the Roman conquest of
Gaul seem to have resulted in a similar disposition of
conquered territory. Circumstances brought it about that
the Germanic tribes whose system of distribution, current
in purely tribal epochs, had some resemblances to the
I62 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
ku-bun-den, were not called upon, as were the Romans,
to manage the distribution of vast areas distant from
their centres of political life. But in Japan the indications
are that the same invaders, who in a simpler stage of
development employed the ku-bun-den system, were later
required to administer a large conquered territory, and
that certain measures were then adopted, perhaps from
China, which resembled the Roman provincial land system
and ended in similar results. Large shares of land were
given to the administrators of the provinces, and also large
discretion in management. To the soldiers were granted
amounts of land varying with the grades of service. This
land and that given to the officials was free from taxation.
The new settlements of the north and east made shin-den,
—a term which might almost be rendered latifundia. The
same growth of large estates, and the same oppression
by the provincial officials^' characterized each country.
Just as, in the ager publicus, the relative standing of the
occupants came to be veterani, coloni, Ineti, so there
was a tendency for the land-endowed soldier to rise in
irrqrortance as the free owner of a small plot degenerated.
The survey of the land, too, based on rectangular units,
here resembles the systematic, artificial arrangement of
the Romans.
The tendencies alike of the system thus applied to the
newly settled ager publicus of Japan and of the ku-bun-den
system in the old land were not different from those which
appeared under like influences in Europe. If we do not
find, in the condition of affairs which foUowed, a method of
♦ '
tenure corresponding exactly to the type known as the
manorial system, it is at least certain that similar causes
were at work and that the result as regards the distribu¬
tion of land and differentiation of the classes of population
was almost precisely the same.
84. In Appendix IV will be found a copy of an interesting protest
against official oppression, valuable not only upon that point, but for
the various features of the system of taxation and tenure which it
incidentally reveals.
SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS. 163
In the first place, the strife between local chieftains and
the fortunes of war led to the conversion in many regions
of free proprietorship into tenancy. The same result came
about in other and perhaps more numerous instances
through the stress of taxation, which forced the owners of
small holdings to better their position by the process of
surrendering and receiving back their lands well known
as " commendation." The familiar immunity of nobles and
large landholders from taxation was here as common as in
Western Europe; it was in fact foreshadowed in the Taihd
code; and beginning with the ninth century we find a
continual eftbrt, and a successful one, by the holders of
shoyen or untaxed land to increase their tax-free holdings by
every means in their power. The corresponding distress
on the part of the smaller proprietors is also clear. The
phrase in many of the deeds of the time is; "This land
has been owned by my ancestors for many generations,
but now, owing to pressing need, it is transferred to the
present purchaser for a price." Another of the parallel
traits is the frequency of gifts to temples and the extent of
the acquisitions made by ecclesiastical bodies. One deed
of the year 1323 shows the process in a nutshell: " This
land has been hitherto cultivated by the owners as ku-biin-
den, but henceforward it is to belong to the temple Tbdaiji,
and the cultivators are to render chishi (a rent in kind)."
One of the common motives for these transfers to temples
is apparent in this passage from a deed of the ninth centu¬
ry: "This land was transferred to me by Arata-kimi-ina,
when he was dying, with the injunction to transfer it to
the temple Todaiji; and I now do so, in obedience to his
behest. Now Arata will attain happiness in the other
world, and I and my descendants will also be blessed for¬
ever." One result of this is that here as in Europe some
of the richest»sources of material for the reconstruction of
mediaeval institutions are the collections of documents
carefully preserved in the temples.
On the whole, even in the present state of our informa¬
tion, we may without risk employ this passage of Dr. Ross's
164. SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
in describing the condition of things in mediaeval Japan^^'
"The effect of the immunity grants was very remarkable.
On the one hand there were certain great lords paying no
tax upon their lands. On the other hand there was the
mass of the people paying an annual and often a very
burdensome tax. The result was that the estates held
under immunity grants swallowed up all the rest. The
property of the people at large was gathered into the hands
of a few men. For the holders of the immunity grants
said to those who held them not, ' Give us your lands, and
we will give them back to you, and you shall pay for them
a fixed rent, which shall be less than the state tax, and
unchangeable.' The argument was unanswerable. By it
the mass of the people were led to convert their allodial
lands into tenures, themselves into tenants. In this way
the allodial landlordship, which through the early time had
been distributed among the people at large, was gathered
into the hands of a few great lords. There was an enormous
concentration of property during the Carolingian period.
In reading the monastic records, the student should observe
how through the eighth and ninth centuries the number of
acquisitions from private persons is very large, while after
the beginning of the tenth century the kings and great
nobles seem to be the only benefactors of the Church. The
explanation of this is that the class of small proprietors had
almost entirely disappeared. They had no longer any
lands to give away."^^
85. " Early History of Landholding among the Germans," p. gg.
85. Since the above was written, a translatioi^of Mr. Kurida's Shoyen-
ko, containing the following remarkable passage, has been put into my
hands : " SItuyen, so-called, arose in several ways. It originally meant
land apportioned to members of the Imperial family, or given to some
one as reward for meritorious deeds in war or peace, or offered to a
temple [for all such land paid no taxes]. But the largest part of the
shilyen consisted of waste land reclaimed and owned by persons of high
rank or great power. This land was cultivated by ordinary subjects.
The peasants were very anxious to become cultivators upon such land,
because the owners had no Government taxes to pay, and thus the ten¬
ants paid a rent much lower than the tax they would have paid to the
Government, if they had cultivated other land. The result was that the
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 165
What was the result upon the classes of the population ?
On the one hand the landed nobles came to draw practically
the whole revenue of the country. The taxes rendered by
people preferred to be tenants of these powerful families rather than
holders of ordinary land. People evaded the payment of taxes by con¬
veying their land to sh(>yen owners and taking refuge under the immunity
of the latter. These practices began about the reign of Nimmyo Tenno
(834—S51 A.D.) and became very common in the reigns of Uda Tenno
(88S—8g8) and Daigo Tenno (898—931). From the period Hoki (715—
717) the shuycn in the hands of priests began to increase in the same
way, for people contributed land to temple shoyen also. So that the
more shoyen increased, the less taxes were paid to the Government,
until at last both land and people came under slwyen ownership and
became independent of the central Government." The parallelism of
development indicated in this passage and that of Dr. Ross is remark¬
able, and the coincidence in the tenor of the two extracts is the more
striking when we remember that the one quoted in the note was written
by a scholar who never saw a book upon European land tenure and until
the past summer had never known of the existence of manors and fiefs.
That under these circumstances he should have, in his survey of Japan¬
ese history, seized the salient points of its development and recognized
the leading influences at work is a testimony to his clear perception and
critical faculties. We cannot but regret that it is not possible for him
to treat this historical material in the light of European history and
analogies, for we shall probably never see a Japanese scholar more fitted
for the task by natural capacity and by thorough acquaintance with the
original sources of information.
The passage above quoted shows anew how inviting a field there is
here for the student of European feudalism and tenure, and how much
interest would lie in the tracing of similar influences. The points at
which J apanese and European feudalism touch are numerous enough
to attract the student of the latter, and yet the points of difference
are enough to enable us to feel that we are examining a new species
of the same genus, not merely a new instance of the species, and are
thus enlarging our generalizations.
As to the etymology of the word shoyen, it is sometimes said that
it was synonymous with mci-den or new land ; the inference being that
the growth of shoyen was due in the beginning to the extension of
new settlements. Another opinion, and probably a better one, is that
shoyen, garden-fknd, signified the portion about the residence, takn-chi
or yashiki-chi, such residence-land being untaxed. Thus, under the
pretence of enlarging their gardens, the large land-owners and the
nobles assimilated new territory, until shoyen lost its former signifi¬
cance and acquired a new one.
l66 SIMMONS & WIGMORE.: LAND TENURE & LOCAL INSTITUTIONS.
the mass of the cultivators were now due to the territorial
lords, not to the central Government. This seems to have
been the immediate cause of the decline of the Mikado's
power. Whatever indirect causes may have been of prime
importance, the lack of revenue, a sort of political anaemia,
must have been the direct cause of the ultimate loss of
authority.^' Among the territorial aristocracy thus formed
no equilibrium was permanently attained until the genius
of lyeyasu established it; and this endured until the advent
of the foreigners in the present century supplied the shock
necessary to destroy it.
On the other hand the classes below the territorial nobles
and independent landed proprietors were constantly assimi¬
lated, to a greater or less degree. The small free proprie¬
tors became free tenants; the serfs became servile tenants.
The freemen degenerated in position; the serfs rose
somewhat. A general class of cultivators arose, single in
being separated widely from the landed nobles, but multiple
in that it contained well-m.arked subdivisions, resting more
or less distinct. It has been said that the cultivators of the
Gaul of the seventh century might be classed as follows,
(a) free tenants rendering services, (b) servile tenants
rendering baser services, each of these distributed under
manors which were either (i) ecclesiastical or (2) private,
the latter being divisible according as they had arisen by
private appropriation or by the usurpation of one having
public official authority. This description may with little
hesitation be applied to the condition of Japan a few
centuries later. «
87. One of the Imperial decrees, directed towards the prevention of a
further increase of shoyen, and dated 1127 A.D., recites the following
state of affairs: "Those who have become tenants in shoyen never
return to their former status; and the shoyen are all filled with farmers,
while the public land in the gun and go is left wild and uncultivated."'
It is worth noting that in the same decree it is stated that "the
shoji (officers put in charge of shoyen by the owners) are earnestly
inviting holders of public land to become tenants of the shoyen," an
exact parallel to the attitude of the European barons as delineated in
the above passage of Dr. Ross.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 167
One of the subjects which, if thoroughly known, would
contribute great light in the verification of this description,
is that of manorial services. Obviously the distinction
between free and servile tenancy must rest almost entirely
on the nature of the services rendered, and it is just here
that at present but little information can be offered.
In the Japanese literature of taxation, however, a large
amount of material is waiting, and the documentary
sources will also prove abundant. Even as it is, many
familiar traces may be detected. The services of mediae¬
val times in Japan were rendered with money, with the
products of the soil, and with labor. There were precariae
as well as fixed services. One cannot expect to find the
same products rendered or the same labors performed as
in Europe. Mutatis mutandis, however, the general
nature of the duties and the methods of performance were
entirely parallel. In an old temple document the following
list of services is given ; " The occupants of this piece
of land will render these things to the Atsuta temple :
" In the first month, ; in the second, turnip and dock ;
in the fifth, a shiba-dengaku (a kind of play) and the labor
of one man to clean the temple enclosure; in the sixth
the labor of one man to plant rice on the temple land ; in
the seventh, a stand for offerings ; in the eighth, a contribu¬
tion for the expenses of the temple; in the ninth, the
same; in the eleventh, turnip and dock." Each han or
daimiate seems to have developed, in later times, a system
of labor services by which land of a given area or assess¬
ment was to furnish the labor of one man for a given
number of days in each year. These services included,
besides the ordinary work of cultivation, the furnishing of
transportation, the repairing of roads and buildings, the
manufacture of cloths of different kinds, and other incidents
found also in^the European manors and fiefs. A com¬
mutation of personal services into the payment of money
or of cloths and other articles also took place in the later
periods. It is reasonable to suppose that further investiga¬
tion would reveal a development similar to that which
l68 SIMMONS & WIOMORE: LAND TENURE & LOCAL INSTITUTIONS.
occurred in the history of European services, a progress
from continuous and indefinite amounts and kinds to
periodical, limited, and definite amounts and kinds, from
incommutable personal labor to labor commutable into
monetary units and payable in money. At an earlier
period, too, we see traces of another interesting phenome¬
non in the history of services,—the change from voluntary
offerings to regular obligations.
We are here brought to consider briefly the constitution
of the han and the shoyen. Just as the English manor was
chiefly made up of a number of "hams" or "tuns," so a
number of tnnra went to make up a shoyen, and a han
represented simply several clusters of similar communities.
There were of course castles and castle-towns, forest land
and waste; yet the mnra was in its relations to the
territory of the feudal lord almost identical with the " ham."
Even in the names of places at the present day we find the
suffix -mum playing the same part as -ham,-tun,-do/-/.
Forest and waste land seems to have been, as in Europe,
partly in the hands of the lord, partly in those of the
villages. Of the number of mura under the various lord's
and of the relative arrangement it is as 3'et impossible to
speak with certainty. In one document we find a man
conveying seven mura. In a list of the assessed products
of the difterent parts of the fief called I-gard, made in 1587,
we find two castle towns and twenty-three villages
included. The terminations of the village names show the
varied character of the territory embraced,—forest, moun¬
tain-pass, upland, and lowland. Mu»h will be revealed
when something has been done in the way of collating and
examining the local maps of the time and of reconstructing
the various han and shoyen.
Something has already been said (in the foot-notes to
the Notes) on the analogy between seneschal and daikwan
or kori-bngyo. It should be said that the account of these
officers given in the Notes refers only to the smaller
districts. In each han of any size there was of course
a central administrative office controlling the various bugyd
1>
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. l6g
and other officers, and a study of this central system has yet
to be made. It was the chief counsellors and managers
of these central offices who took such a leading part in
the efforts which resulted in the overthrow of the Shogu-
nate, and the sterling capacity for government which
they have since exhibited may be ascribed in some degree
to their training and experience as administrators of the
fiefs.
The suggestion has been made (in the foot-notes to the
Notes) that the toshiyori, though not the shoya or the
nanushi, corresponded to the prcepositiis of the English
manor. In the north-east, however, we have still to face
the fact that the position of nanushi, at first hereditary,
was afterwards filled by choice among the members of a
given family, and finally by unrestricted election. There is
in this some indication of an office not superimposed by a
central Government, but local in its origin,—a chief or
village headman, at first holding by virtue of family rank,
but afterwards by general choice. The subject is still
necessarily obscure.
Of the faber, the carpentarius, and other village me¬
chanics, almost officers, certainly public servants, who
occur so generally in Indian and European village com¬
munities, neither the Notes nor other material at hand
afford any information. It is observable, however, that
the system of payment used in the case of these men
was applied to the compensation of some of the mnra
public servants; for it will be remembered that the nanushi
was paid in part, the kumi-gashira and the toshiyori in
many cases entirely, by hiki-daka or exemption from local
taxation ; while the nanushi was sometimes paid by the
setting apart of a piece of land whose revenue was devoted
to his salary.
The Notes of Dr. Simmons, so far as they relate to the
interior life of the mura are obviously concerned with the
facts of a comparatively recent period and of districts
where the greatest movement towards independence had
occurred. Whatever may have been the case in those
I'JO SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS.
regions where the incidents of feudalism remained longest,
in the Tokugawa dominions,—the principal field of obser¬
vation for both Mr. Otomo, Dr. Simmons' chief informant,
and the author himself,—where the Government had
become really only a great landlord and where there
had been a strong tendency towards uniformity of tenure
and services, we find that the old distinctions between
classes, so far as they had been clearly marked by different
relations with the territorial lord, had disappeared, and
the class differences had become essentially social. The
traditional position of certain families was now seen
in the predominant influence which they enjoyed in
directing tlie affairs of the miira. The order of prece¬
dence was distinctly marked and strictly preserved. In
the yoriai or assembly, it determined the seats of the
various members. It had weight in the decision of
debated points. We cannot now certainly distinguish
the descendants of freemen and those of serfs, nor the
villages of freemen and those of serfs; nor can we
estimate the relative numbers of each. In the class-
distinctions {osa-byakusho, ncoi, kyu-ka, etc.) already point¬
ed out, we are strongly reminded of the structure of the
village communities in the Punjab and elsewhere; and
it can hardly be doubted that we shall find these and
other terms to be more or less connected with historical
differences between freeman and serf, proprietor and tenant,
family or clan villages and colonies. In the practice
of admitting outsiders as miznnouii and of promoting
miziuLomi to become kosaktt, we have t^ry clear analogies
to the way in which Saxon servi became cottarii, and to
the practice in India and elsewhere of admitting out¬
siders, often "broken" men, to the lowest place in the
community. Mizniioini, "water-drinkers,"—that is, men
having nothing to sustain life but water—expresses in a
similar way the abject condition of these recruits from
other regions.
This material of recent times becomes important in
its bearings on the subject of communal property. In
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS. I7I
one sense the facts of Japanese village life have a
special importance; they show how many communal
customs, apparently purely local in origin, were the result
of superimposed laws. It is possible that the numerous
instances of this sort may be suggestive and helpful in
the examination of Western village communities. Take>
for example, the cultivation of the land of a deserting
farmer by his kiinii or by the village. Nothing could
at first sight point more clearly to a certain community
of property, a corporate holding of land by the village.
But on further examination this custom proves to have
been commanded by the Government, with the object
of preventing a diminution of revenue. Take, again,
the necessity of obtaining the seal of the nannshi for all
transfers of laud, in mortgage or absolutely. This, we
suspect at once, is analogous to the necessity of the
consent of the kinsmen or villagers to the alienation of
land, noticeable in early communities. Yet in Japan
a law of the Shogunate required it; and even though
we may yet discover that the Shogunate merely sanctioned
an existing custom (which is unlikely), we have neverthe¬
less seen the necessity for caution and for a thorough
examination of all the apparently local customs having
a communal character. In the foot-notes to the Notes
I have for this reason endeavoured to cite all accessible
laws bearing on the customs described by the author.
Some means of testing such customs may be afforded
by further work on the same lines. In certain volumes,
for instance, of the collection of decisions and statutes
called TokiTgawa Kinrei-ko, are to be found minute rules
governing the mode of cultivation of mortgaged land,
etc., etc.; and such sources must be examined before
final conclusions are reached.
We must, ^too, draw a distinction, here as else¬
where, between earlier communal customs arising from
family, house community, or tribal life, and later ones
arising from the existence of a superior authority, that is,
from the corporate responsibility imposed in many ways
172 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
by the manorial or feudal lord upon the communities of
cultivators. Phenomena of the latter sort are perhaps
not welcome to those who are interested in proving the
theory of a primitive tribal and village community of
property ; the tracing of many communal customs to an
origin no further back than the manorial system has
furnished the opponents of that theory with plentiful
material. These facts have in Japan also an interest
and importance. They differ from the examples given
above, for in those cases the practice has in no sense
become a custom, a habit of local life ; it is always a thing
commanded, the direct result of a law; while in these
instances the practice is only the indirect result of a
law of the superior, and its form is determined by local
choice. These include all those customs which flow from
the fact that the tnura was from the standpoint of the
lord the producing unit. The necessity of the viura's
consent for the use of forests and for the sale of any
part of the common forest, the Local settlement of local
taxes, the power of returning confiscated land to a
repentant deserter,—these were some of the more direct
results. Perhaps the only custom, mentioned in the
Notes, which might be claimed as a distinct mark of the
early tribal community is the necessity of the consent
of all the farmers to the settling of strangers on village
land. But even this case is not an unmistakable one
and at best throws no light on the question whether the
land was merely held in common in undivided shares or
was held by the village as a corporate body. It must be
left to future investigations to determine clearly what
practices, if any, would be characteristic of an early tribal
community of freemen and what practices point merely
to the community of interest characteristic of later ma¬
norial villages. There are as yet no data of this sort
sufficient to assist in the solution of the mooted question
whether the community of property of later mediceval vil¬
lages is a result of manorial or other later influences
or isa remnant of an earlier tribal communism. The
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I73
whole subject of the common property of the nmra is yet
to be examined; but, unfortunately, the material is not
easily available.
It remains to call attention to a few customs of a
miscellaneous character, which may serve to show that
the interest of the material we are considering is broader
than the subjects that have been touched upon.
The family was of course the unit of social life, and the
coherence of the family, with the practices and institutions
involved in it, was still a marked feature. Although there
existed a Government prohibition against the sale of land,
it will be remembered, as Dr. Simmons states, that there
was a strong dislike to alienate a family inheritance,—a
sentiment noticed particularly in India and elsewhere.
We find, too, that, in this respect a distinction was made,
as in India, between inherited property and property
reclaimed or acquired from others. It is stated, in the
Minji Kwanrei-ruishu, that in some districts shin-den (new
land) alone could be sold (and it is noticeable that Tosa, of
which this statement is made, is a region where the early
customs have been extremely well preserved); and a similar
rule is laid down in some of the mediaeval family codes
[Hausgesetze), such as Shin-ko Shikiinoku, providing that
inherited land should not be sold to any but nobles. A
similar characteristic sentiment, the unwillingness to
alienate to strangers, has already been noticed in the
practice of requiring unanimous consent for the admission
of new reclaimers of inura land : and in Echigo (as noticed
in one of the foot-notes) alienation of land to fellow-
villagers alone was allowed.
The distribution of a patrimony during the life of the
father was quite common in mediaeval and even later
times. The retirement {inhyo) of the father followed as
a matter of course, and in the account (in the Appendix)
of the Hida flouse Communities is noticed a peculiar
consequence of this, that the father thereafter eat hiye,
with the rest of the famil}', while the son alone eat
rice. In the land-registers of mura one notices num-
174 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
bers of plots designated inkyo-bun, the portion of one
who has become inkyo, and there seems to have been a
S3'stem of nonalienabie settlements somewhat resembling
our own.
Upon the question of primogeniture I have no informa¬
tion throwing any light. It may be noticed, however, that,
as has been observed in India and elsewhere, the eldest
son often takes not the whole, but onlj' the largest share
of the patrimony. The frequency of adoption suggests
interesting questions. It seems hardly possible to explain
it entirely on grounds of the desire for the perpetuity of
the family. More than one fact—for instance, the occur¬
rence of laws forbidding adoption just before death—points
to the desire to evade customary restrictions on alienation
as an important influence.
The strength of the ties of what has been called Literary
Fosterage, observable alike in Japan, in India, and in early
Ireland ; the existence here as in India of an hereditary
class of persons outside the social pale—the yela,—whose
touch was impure and who followed special occupations
and lived in separate quarters; the widespread employment
in later times of a system of suretj'ship not based on
family; the gonin-gumi system, which seems for the past
three hundred years to have been not much different in
principle from the Anglo-Saxon frith-guild; the system of
long-term mortgages, closely paralleled in India, and sug¬
gesting the beklemregt of Groningen ; the yei-gosaku, or
emphyteusis, a variety of a tenure well-known in Europe ;—
these and numerous other customs and«institutions, as yet
almost wholly unexamined, may be cited as evidences of
the opportunities that exist here for the student of com¬
parative institutions.
It must be understood, however, that the analogies that
have been noticed in calling attention to these oppor¬
tunities are put forth as suggestive and tentative only.
An effort has been made merely to point out the pos¬
sibilities of a comparative study of Japanese and European
institutions. The writer does not pretend to more than
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I75
an amateur knowledge of the European literature of the
subject; and even if it were not so, the Japanese evidence
is as yet too slender to admit of drawing final conclu¬
sions.
What is now needed is the utilization of the stores of
original material to be found in the temples, a few libraries,
and numberless family treasure-chests. It must be admit¬
ted—and without discredit to Japanese scholars—that the
volumes written upon the subject in Japanese are beyond
a certain point useless. Learned and accomplished as their
authors are, they have never looked at the subject from
the standpoint of the European scholar, for their training
has made it impossible. The result is that the facts which
the European student wishes are not to be found in their
books. The solution of the problems on modern scientific
lines can be attained only through the younger generation,
trained under modern methods, or through foreign students
having before them the material to be investigated. That
this result in no way casts disparagement upon the enormous
industry and the vast acquisitions of the older generation
of Japanese scholars need hardly be said. That it is in¬
evitable, they themselves are the first to admit. It is
to-day a subject of deep regret to more than one of the
most eminent that it is too late for them to attempt to
make acquaintance with European scientific literature.
Cooperation in work between the older and the younger
generation would seem to be the only method of utilizing
fully" their accumulated stores of learning. It is to such
of the younger scholars as Kaneko, Miyazaki, Matsuzaki,
Suzuki, and others that we must look for immediate and
strenuous efibrts to make accessible the material that exists
so abundantly. It is not unlikely that the Japanese Gov¬
ernment will come forward in a liberal spirit and give
official assistance in the rescue and preservation of the
documentary treasures. If, as in the case of the treasures
of art, a'commission could be appointed to visit the temples
to collect, examine and classify the records they contain,
and to publish translations of a part or of the whole, the
176 SIMMONS & WIGMORE I LAND TENURE & LOCAL INSTITUTIONS.
first and most important step will have been taken towards
the solution of the historical questions that are forcing
themselves upou our attention, and a lasting benefit will
have been conferred upon science.
APPENDIX.
/. SPECIMENS OF KUMI-CHO.
1. An anonymous kumi-cho.^
1. A liumi is formed by uniting the five families that
are nearest to each other, whether they are jikari,
kosakii, mizunomi, or of any other class.
2. Filial piety and faithful service to a master should
be a matter of course, but when there is any one
who is especially faithful and diligent in those
things, we promise to report him to the daihwan
for recommendation to the Government. [There
are cases where for especial merit of this kind taxes
have been remitted or a money reward given. The
name of the person thus distinguished is inscribed
on a large board hung at the entrance of the mura
and bearing the announcement Shoyaku Go-men.
"All Taxes Remitted."]
3. If any member of a kumi, whether farmer, merchant,
or artisan, is lazy and does not attend properly to
his business, the ban-gashira will advise him, warn
him, and lead him into better ways. If the person
does not listen to this advice, and becomes angry
and obstinate, he is to be reported to the toshiyori.
As fathers, sons, members of families, relatives,
and fellow-villagers, we will endeavor to live in
peaceful and kindly relations; as members of a
kumi,^e will cultivate friendly feeling even more
than with our relatives, and will promote each
I This translation was found among the papers of the author.
Neither the original of the translation, nor the name of the mnra or
kuini from which it came, nor any translation of the signatures, ap¬
peared among the papers. The clauses in brackets are by the author.
178 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Other's happiness as well as share each other's
griefs. If there is an unprincipled and lawless
person in a kumi, we will all share the responsibility
for him.
4. Every year, between the first and the third month,
we will renew our slmmon-cho, If we know of any
person who belongs to a prohibited sect, we will
immediately inform the daikwan and strictly observe
the rules on that subject placarded in different
places. Servants and laborers shall give to their
masters a certificate declaring ^that they are not
Christians.
5. In regard to persons who have been Christians but
have recanted,—if such a person comes to or leaves
the village, by reason of marriage, adoption, or
otherwise, we promise to report it to the daikwan.
6. If a namishi, shoya, kumi-gashira, or toshiyori is
objectionable, we will not secretly combine to remove
him, but will declare our wish to the daikwan and
ask his permission.^
7. We recognize the seals used in this kuini-cho and in
the shumon-cho as the binding seals in all matters
in which a seal is necessary. If the seal of a
nanushi, ktuni-gashira, or toshiyori is lost or burned,
the new one is to be registered at the office of the
daikwan; if that of any other person, at the office
of the nanushi or toshiyori.
8. We will obey the law of the Government against
%
selling our land, and if we mortgage our land, we
will not do so for a term longer than ten years,
and will always have the mortgage sealed by our
kumi and by the nanushi.
9. We will not buy any of the property of temples
nor take a mortgage on it.
2 Ktimi-gashira in this document apparently is the chief of a kumi.
The word shdya, occurring in this article after nanushi, is clearly an
error in translation, for there was never a shuya in the same village with
a nanushi.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I79
10. We will not buy or receive in pawn any article of
clothing, any metal ornament, or other thing what¬
ever that is stolen property.
11. As nanushi we will buy and wear silk and build fine
homes, but will not otherwise indulge in luxury and
extravagance.
12. On occasions of receiving a bride or performing the
ceremony of adoption, we will not, merely because
it occurs only once in a life-time, be foolishly ex¬
travagant.
13. At the time of a great wind-storm, rain-storm,
drought, or visitation of insects, the Government, as
is the custom, may give food to starving farmers, or
those who are well off may lend food or seed to
the Jimra; still, if the misfortune should continue
for years even the Government could not continue
to supply us. For this reason we will try—all who
can—to store away some of our surplus crops, if
any.
14. Whatever our business or occupation, we will not
neglect it,' nor waste time in amusements of any
kind, nor engage in unlawful practices, nor urge
people to engage in law suits. If there are any of
our number who are unkind to parents or neglectful
or disobedient, we will not conceal or condone it,
but report it [probably to the toshiyori, for this is
the spirit of his office.]
15. When men who are quarrelsome and who like to
indulge in late hours away from home will not
listen to admonition, we will report them. If any
other kumi neglects to do this, it will be a part of
our duty to do it for them.
16. In case of over-taxation or the need of food or seed
in tim^ of scarcity, where a demand for redress or
an appeal of any kind is made by combining and by
3 " Each class of the people shall apply itself to its own business,
and not attempt to rise above its station.'\ioo Laws of lyeyasu Art. 63
(Mittheil. d. D. Geselts. Ost., Heft 41, p. 15, infra)..
l80 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
using force against the Government officials,—such
means of redress we declare improper and dangerous
and not to be employed.
17. If a young man who has been temporarily in the
service of a daimyo or hatamoto and has thus ob¬
tained the privilege of wearing two swords returns
to his village, he is not to continue to wear them,
as this is contrary to ancient custom, and we, the
kitnii, nanushi, and toshiyori, will consider ourselves
responsible in the matter.
18. Gambling or any practices like gambling, it goes
without saying, are wrong; and we will not engage
in them, nor rent our houses or permit them to be
used for such purposes. Nor will we make any
contract for the labor or services of any person for
a longer term than ten years, nor will we make such
a contract for more than one year with any person
who does not furnish a proper person as guarantee.
19. If the servant or laborer is a relative, or the relative
of a person well known_to the employer, and the
namtshi and kumi are consulted, it will be sufficient.
If any trouble of a legal nature befalls the guarantor,
we, the kumi, will give our assistance to prevent
trouble and to smooth matters.
20. So far as possible we will choose for adoption those
who are relatives or members of the famil}'. But
if only a female remains, and there is among the
relatives and family members no male of proper
age, then we will select from without. Even if there
is a son, still if he is a bad fellow and the repeated
advice of nanushi, toshiyori, kumi, and relatives
is not listened to, he may be rejected as heir, if
the reasons are properly laid before the nanushi
by the father and his kumi, and a bloodless (i. e.
unconnected by blood) person m^y be adopted. [It
would seem that in this 7}iura the consent of the
relatives to disinheritance was not necessary.] If
there are three or four sons, and the eldest is sickly,-
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. l8l
or is incorrigibly bad, unkind to parents, and dis¬
obedient, and the father thinks he is not justified
in making him the heir, he can make the second
or other son the heir, upon consulting with the
. ktimi and reporting to the namishi.
21. No one who has less than ten tan of land can divide
it among his children ; all land beyond this amount
may be divided. A son other than the eldest may
be put to any business that will give him a living;
if he is not capable in such matters, he may be
bound out {Jtoko-nin.)
22. Every one in the tmtra must take care to prevent
fires. If one occurs, the whole }nura must assist
in extinguishing it and in preventing its spread.
In case of robbers, too, ever3'one must turn out.
Namishi and toshiyori will carefully inquire into
the cause of any delinquency in this respect.
23. If any one goes away to a neighboring niura to
remain over three days, kiimi, namishi, and toshi¬
yori will be informed ; the same notice will be given
on leaving for a distant place to take service, on
business, or for pleasure.
24. No person not having a nimhetsu-cho is to be allowed
to remain even one night in the mura.^ When a
stranger dies in the miira, notice must be given to
the namishi. When a stranger arrives wounded or
otherwise injured, a doctor is first to be called, and
then the case reported to the nanushi.
25. Any person coming from another part of the country
and asking permission to live in the mura will be
permitted to do so, on giving his nimbetsu-cho and
naming a responsible person as security.
26. Priests, yama-bushi (fortune-tellers), doshin, any
hinin who come to a mura must be carefully
watched, and if objectionable must be sent off.
4. See the Kujikata Osadnmegaki. II, Art. 25 (^Mittheil. etc., supra,
p. 72). " Punishment of those who harbor persons having no nimbetsn-
cho."
I82 SIMMONS & WIOMORE ; LAND TENURE & LOCAL INSTITUTIONS.
27. If any robbers or company of bad persons appear
in a mura, the officers must be immediately notified.
28. If a stranger passing through the mura is taken
ill a doctor must be called, and if the illness is
serious, means must be taken to send him to his
home as soon as possible. The nanushi and the
daikwan must also be notified.
29. Street-shows cannot exhibit without permission from
the daikivan.
30. yord (prostitutes), yard (low fellows), and kagema
(boys used for sodomy), are not to be permitted in
the mura, and if they arrive from other parts, houses
are not to be rented to them.'
31. Children are not to be abandoned, no matter how
poor the parent.® [Poor persons in distress often
sold their children, rarely into prostitution, some¬
times as geisha, and most often as laborers in the
silk districts. The common term in the last case
was from three to seven years. If the child was
between seven and ten years old, an advance of
one yen a year was given ; if older, sometimes from
three to five yen.—Intelligence offices for men
and for women and for all kinds of employment
existed in Yedo.]
32. Horses and cattle must not be driven off to other
villages. [This"was an easy method of avoiding
payment for the burial of an aminal who was at
the point of death and useless.] When a stray
animal is found, it must be returned to the owner,
if he is known ; otherwise, an officer must be notified.
5. " Prostitutes, female dancers, young boys used for improper
purposes, and people who wander about at night, must inevitably
exist in cities and flourishing towns in the country ; although men's
morals are often corrupted by them, yet greater evil would arise,
if they were strictly prohibited. On the other hand games at dice,
drunkenness, and debauchery, are strictly forbidden."
100 Laws of lyeyasu, Art. 86 (Mittheil. etc., supra p. ig. infra).
6. See the Kujikata Osadamcgaki, I, Art. 62 {Mittheil. etc., supra, p.
58), " Ordinance forbidding the abandonment of children."
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 183
Cattle and horses must not be bought unless the
sellers are known to be the owners.
33. The building of new tera (Buddhist temples) and
miya (Shinto temples) is forbidden. Shrines,
stones inscribed with Buddhist prayers, stone im¬
ages, and commemorative tablets, are not to be
erected. If there are old ones they may be preserved,
but new ones are not to be built.^
34. As little money as possible is to be spent on
matsiiri. If the priest of a temple is changed, the
daikwan must be notified.
35. The permission of the daikwan must be obtained
whenever a temple is opened to the public for
worship. No images are to be brought from other
mura.
36. None but licensed hunters {ryoshi) are permitted
to hunt birds and aminals. [This was a special
business and paid a tax]. Even these are not to
kill storks or hakucho (a kind of goose). [These
were the Shogun's game only: not even a daimyo
could kill them.] If these birds are seen of offered
for sale in any mura, the daikwan must be im- *
mediately notified.
37. Only ryoshi may carry guns. If others use them
secretly, they will be punished. A ryoshi may
lend his gun to a son or a relative; but if a ryoshi
dies, his son must obtain a new permit for the use
of the gun.
38. Trees and grass in the Shogun's forest and trees
along the great roads {kaido) must not be cut with¬
out permission from the daikwan. Even in private
forests large trees must not be cut without such
permission.
39. Where •trees or their branches in the Shogun's
forests or along the great roads have been broken
7 See the Knjikata Osadcimegaki. I, Art. 37 [Mittheil. etc., supra, p.
54), " Ordinance relating to the Shinto and Buddhist religions
Nothing new shall be undertaken."
184 SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS.
off or are decayed, the nanushi must report to the
daikwan. When a road is cut through the forest
for the purpose of removing trees cut by government
order, the expense of replanting the portion cut out
for a road must be reported by the naniishi to the
daikwan.
40. No new permits for sake manufacture, in addition
to those now existing, shall be given.
41. The farmers must attend to their business diligently.
The best seed must be selected and great care taken
as to the time of sowing and planting. That they
should look well after the fields and the water-supply
is to be expected. The nanushi and the toshiyori
must from time to time inspect their work. They
must inquire into it, if any fail to attend to their
work for any cause; and if sickness is the cause,
they must see that the kutni assist in the work of
cultivation.
42. Where land is left uncultivated for a long time be¬
cause of an overflow, etc., and some one afterwards
brings it under cultivation, this must be reported. If
not, the nanushi and the toshiyori will beheld re¬
sponsible.
43. Where mountain land, swamp land, or flowed land
is brought under cultivation, it must be done in
winter, so as to save time.
44. All drains must be looked after carefully.
45. During a freshet the nanushi and the toshiyori with
the farmers must turn out and*prevent the dikes
from breaking. Minor repairs of roads and bridges
must be immediately attended to. but matters ,of
great expense may be reported to the daikwan.
46. Large undertakings necessary for irrigation the
Government will assume. Estimates for food to be
supplied by the Government to the laborers coming
from each mura must be sent in advance. If on
the great roads despatch is required by the Govern¬
ment or by a daiinyo and extra horses are required
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 185
from the farmers, care must be taken to notify
the farmers in advance, so as not to cause delay.
Attention and care must be given not only in the
case of merchants paying high price for transporta¬
tion, but also in the above case, so that an
average will be reached [since they carried for
the government and daimyd at a relatively low
price].
47. Transportation facilities on the great roads must be
supplied so as to cause as little delay as possible to
those requiring them.
48. All the expenses of a mura office—pens, paper, ink,
etc,—and of the officers when engaged in public
business must be kept account of in duplicate, and
at the first of the year be submitted by the nannshi
to the daikwan. When the account has received
the stamp of the latter, it is to be returned to the
farmers for their approval; when all have approved,
it is to be paid.^ Where any important improve¬
ment for the mura is contemplated, the larger
farmers as well as the officers must meet and decide
as to the need of the work and the amount to be
assessed on each farmer. The estimate must be
made out in duplicate, one copy being deposited with
the daikwan, and no other estimate will be valid.
49. Neither at the time of assessing an abatement of
taxes on account of short crops {kemmi) nor at any
time may presents of any kind be made to the
daikwan, his wife, or his servants, nor are loans
8 " General taxes and other imposts, as well as mura taxes, are
annually to be recorded in books by the nanushi and kumi-gashira, and
after tbey have been exhibited to determine their correctness, the latter
are to affix their seals and the nanushi and kumi-gashira are to certify
with their seals ^ the close of the document.
"Although these rules are not new, there are places where they are
not observed, and litigation is often the result. Hereafter they are
to be observed without fail."
The Kujikata Osadamegaki, I, Art. 32 (1740) (Mitthcil. etc., supra, p.
St)-
l86 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
of rice or of money to be made under any circum¬
stances to the daikwan or to members of his family.
If such things occur, even other mura will be held
responsible for disclosing the name of the mura
where it has been done.
50. When the daikwan or his officers are travelling
through their district on business, and stop at a
house for the noon meal or at night, the food to be
set before them is fixed at one course of fish or
vegetables and one course of rice and plain relish.
Nothing more must be eaten or called for or set
before them. The host is responsible for any
violation of this rule. [There were no hotels in the
smaller villages, and it was the custom for the
daikwan, therefore, to lodge with the nanushi or
one of the large farmers. But if he took any other
food than the established allowance, he had to pay
for it at a fixed rate].
51. When an abatement of taxes is made on account
of short crops, it is announced to the nanushi by
a letter from the daikwan. [This was copied by
the nanushi and affixed in a conspicuous place at
the kosatsu-ba (place for public announcements)
for inspection by all the farmers from the largest
to the smallest, and all who were content affixed
their signatures. Whoever was not content could
appeal again to the daikwan; this appeal could
not be refused, but must be reported to the Govern¬
ment.] •
After the tax rice has been taken by the farmer to
the storehouse, a receipt is to be given for it by the
nanushi.
The tax estimate of the daikwan and the estimate
of mura expenses must not be made at the same
time. [This was probably in order to avoid making
both calls on the poor at the same period. In
general the tax was paid at the last of the year.
Daimyo required this, but in the Shogun's dominions
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 187
a later date was customary, so as to make it easier
to pay.]
If any one runs away because of his inability to
pay his tax, the kumi, nanushi, and toshiyori are
responsible for the tax.
52. Tax rice must he of good quality. Broken rice and
partly filled hags must not he handed in. [Inside
every hag of rice was a tag (ftaka-fuda) telling the
kuni, kori, and rniira where it was packed, and the
names of the nanushi, the inspector, and the
measurer. Outside was a soto-fuda, containing the
names of kuni, kori, and mura, and of the tax-payer,
with the date and the weight. In shipping the rice
by sea great care was taken, and with each cargo
went a man (the kumi-gashira ?), called uwanori
(outside-rider) to see that it was not stolen by sail¬
ors, or otherwise lost. On its arrival the uwanori
was to notify the daikwan, and on the same day to
take a note of the condition of each hag. If while
waiting in charge of the rice he went to places of
amusement or houses of prostitution, or if he bribed
any of the Government officials, severe penalties
were inflicted.]
53. While the rice is at the storehouse of the jnura
(go-gura) the people of the mura must watch it, to
prevent theft or fire. If the rice is lost or destroyed
before the Government official has given his receipt
for it, the loss falls on the mura; if afterwards, on
the Government.'
The foregoing rules must he carefully observed.
Every year they must he read to the people, and
each must affix his seal.
9 According to a kumi-cho quoted in Chihd Seido-tsu, the grain was
to be at the risk af the mura until it reached Yedo.
2. Kumi-cho from Kobayashi mura Minami-Kuwata gun,
Kameoka Han, (near Kyoto.
Regulations presented by us concerning our
gonin-gumi.
1. As it is considered necessary to reform our gonin-
gumi system, established in obedience to your order,
we hereby, in accordance with your wish, form all the
inhabitants inio gonin-gumi,—including tenants, ser¬
vants, wives, and children, as well as house owners.
But, in forming the kumi, we shall take care not to
form them exclusively of near relations or intimate
friends ; we shall put together all classes of people ;
and those who refuse to enter a kumi shall be pun¬
ished. Whoever abandons his kumi shall be report¬
ed by the nanushi, the toshiyori, and the hyakushd-
^dai, and upon investigation shall be punished.
2. We shall require children to respect their parents,
servants to obey their masters, husbands and wives,
brothers and sisters, to live in harmony, and the
young to revere and cherish their elders,—in short,
we will endeavor to lead the people to walk right¬
eously. Whoever fails to do so shall without fail
incur your punishment.
On the other hand, if any person is distinguished
by obedience to .parents, diligence in duties, or
praiseworthy conduct in any other matters, he
shall be reported by us and rewarded by you.^*
10. The original of this translation is a copy of the original document
kindly sent to me by Mr. Kitagaki Kunimichi, Governor of Kyoto.
Unfortunately the copy contained neither date nor signatures, and I
have not been able to secure them.
11. " Ingratitude to parents is to be punished."
Bnkc-shohatto of 1617, Art. 21 (Mittheil. d. D. Gcselh. Ost., Heft
41, p. 15).
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 189
3. All samurai living in our district shall be considered
as farmers. All tradesmen and farm.ers, when they
are met on the road by any person of samnrai rank
or by the retainer of such a person, shall, if on
horseback, dismount and wait until he has passed,
and shall also refrain from doing anything to trouble
or to inconvenience him. In case of a breach of
this rule, any punishment may be inflicted which
you may think is deserved.
4. All those who profess Christianity shall be punished
in accordance with your reformed regulations; sus¬
pected persons shall be reported without delay.
5. Each kuini shall carefully watch over the conduct
of its members so as to prevent wrong-doing.
Whenever any person is found to have misbehaved,
and his knmi have negligently failed to discover it,
the kumi shall be considered culpable as well as
the nannshl and the toshiyori.
6. All heretics, robbers and other evil-doers shall be
reported. We hear with pleasure of your order
that all informers against such person shall be
rewarded, and we shall therefore exert ourselves to
the best of our power to detect evil-doers and to
encourage the people to inform against them and
not to shield them. Whoever is guilty of conceal¬
ment shall merit your punishment. Accomplices
in any evil-doing shall also be punished.
7. Gaming and betting of every kind shall be forbidden.
If anyone disobeys this, he shall be reported to you.
Those who let their houses for such purposes, as
well as those who are present, shall without fail
be punished. Officers 'guilty of concealing such
offences shall be fined.
8. The pecjple shall be ordered not to indulge in
luxuries unsuitable to their condition, and to busy
themselves diligently in their occupations, so as
to be able to support themselves, and shall always
punctually pay all taxes that may be imposed.
igo SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Any person, without employment as farmer or
tradesman, given to exciting litigation or stirring
up trouble among the people on various pretences,
shall be reported by any one, even a near relation,
who knows of such conduct. If the nanushi, toshi-
yori or the humi had negligently failed to detect
and report such conduct they shall be punished
without fail.
9. All services due either to the lord {go-ko-yd) or to
the miira [kono-ho-yo) shall be punctually performed.
But such performance shall not be oppressive to the
people.
10. All annual taxes shall be paid in full on the
twentieth day of the twelfth month. Payment
of all other debts whether of money or of rice shall
be postponed until all taxes are fully paid.
11. Payment of taxes shall be recorded in a register and
attested by the seals of all the people, affixed at a
public meeting called for the purpose.
12. If a person who fails to pay his taxes designs to
desert the innra he shall be immediately report¬
ed. Whenever owing to the negligence of mnra
officers the taxes of any person are in arrear his
hnmi and the nanushi shall be responsible for the
amount.
13. If an officer whether nanushi or foshiyori plans a
refusal to pay taxes he shall be reported by the
people. In case of delay the people shall be fined
to the amount of the taxes. *
14. When tax-grain is brought to the mura storehouse
its amount must be verified before it is stored by the
nanushi, the tax-payer himself {home-moto) and the
measurer' (inasu-tori)-, and tags bearing the name
of the tax-payer shall be fastened one outside and
one inside of each bag. When all the tax-grain
has been stored a watch shall be placed at the
storehouse night and day, especially when there is
wind or rain.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. Igi
15. In measuring the grain the hiyo-niasu (masu =
measure)" shall be uniformly used and no other.
16. In case of a fire all shall run immediately to the
storehouse and try to save it. Those who wilfully
absent themselves shall on investigation be deemed
culpable. Special care shall be taken against fire.
When it occurs all shall go to the place and put
it out as soon as possible. If the tax-grain is
destroyed, the people shall repay the quantity
destroyed.
17. News of robberies and night-attacks shall be given
by the ringing of bells or otherwise, and all who
hear shall join in pursuit till the offender is taken.
Any one wilfully refraining shall on investigation be
punished.
18. Wills {yuigon) of real property shall be reduced to
writing by the relatives {shinrui) of the testator
during his life-time, in order to avoid subsequent
misunderstandings. They shall be attested by the
nanushi and the kumi, and a copy shall be kept by
each relative.
19. The right of primogeniture shall be respected,
whether the testator be a small land-owner or a
large one, and however numerous his children
there shall be no division of lands, forests, or
buildings of any kind among the children; the
whole estate shall go to the eldest son. But if
any circumstances prevent the sole succession of
the eldest son, they shall be reported to you for
your decision.
20. When a person dies without heirs it shall be un¬
lawful for the nanushi, the toshiyori, and the people
to distribute his estate. They shall always report
the ev^nt to you and receive your orders. If the
12. The history of Japanese measures is of course a necessary element
in the study of land tenure, and an extended account may be found in
the Den-yen yikata Kigen. The kiyo-masu was one of the standard
measures of capacity.
192 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
estate in such a case is divided among the people,
the nannshi, the toshiyori and the people shall be
deemed culpable.
21. If any person falls ill and his family also, so that
his land is not cultivated, his kumi and the people
of the mura shall work the land so as to produce
the amount of his taxes. If they fail to do so they
shall be responsible for the taxes. Orphans shall
be supported at the expense of the mura.
22. The rules prescribed by you for the sale of land
shall be observed. Mortgages {shichi-ire) of land
shall be attested by the nanuslii, the toshiyori, and
the kumi. If they are not so attested, and any
difficulty afterwards arises therefrom, the land shall
be confiscated, and mortgagor and mortgagee shall
be deemed culpable.
23. Sales of cattle, cloth, and other things shall be made
by bill of sale {uriage-slwmon). If the bu3'er offers
upon delivery a poor article, the case shall be re¬
ferred, even though the parties may arrive at an
adjustment, to the nannshi or to the kumi-gashira
for decision. If a difficult}' arises through neglect
of this rule the parties shall be deemed culpable.
24. No mortgage shall be given on land already mort¬
gaged or on land or buildings belonging to a temple
or on land endowed by the government under the
great red seal {go-shuin-chi). No nannshi or knini
shall attest such a mortgage.
25. Every transaction {shoji) shall b? evidenced b}' a
written instrument {slwinon), and if any difficulty
arises through the absence of an instrument the
parties shall be deemed culpable, and shall take
no advantage by the oral transaction.
27. Set off [sashitsugi-kanjo) is forbidden. Usury, of
course, will not be allowed.
27. Counterfeiters of coin shall be reported.
28. It has reached your ears that on the various oc¬
casions when the inhabitants assemble {yoriai) for
SIMMONS & WIQMORE : LAND TENURE & LOCAL INSTITUTIONS. I93
the purpose of public business {ko-yo shi-yo) there is
much unnecessary spending of money in eating
and drinking. Hereafter this shall be stopped, and
only simple food shall be supplied.
29. All those who are employed in the repairs of dikes,
trenches, water-gates, aqueducts, etc., shall work
diligently under pain of being deemed culpable.
Breaches in aqueducts, etc., shall be immediately
repaired.
30. Roads and bridges shall be kept in good repair.
In case of the passage of the Shogun's ambassador
[go-jdshi) the streets shall be specially cleaned and
repaired. If rains have injured a road, workmen
shall be sent and the road immediately mended so
as to allow his passage. No road shall be lessened
in width.
31. If uncultivated land is discovered, not belonging to
any one and not in another district, you shall be
informed, and your permission asked before it is
cultivated.'^ If the reclaimer is not able to bear
the expense he may ask your assistance. As this
permission is granted to any one and as such under¬
takings promote the public interest, all land capable
of cultivation but not yet cultivated shall be at¬
tended to.
32. Improvements made shall be reported without fail
and be examined by some officer of the government.
When liata is converted into ta, the owner, if he
has incurred special expense in so doing, shall for
the next two years be taxed on the value of hata
only.
33. Restoration of land which has become waste, and
cultivation of new land, however small the area,
shall b# reported. If no report is made, the na-
nushi and the knmi as well as the farmer him-
13. " If any one applies for permission to lay out new fields, he may
do so, if upon investigation there is no objection."
100 Laws of lyeyasu. Art. 32 {Mitthcil. etc., supra, p. 10, infra)
194 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
self shall on detection be punished as you think
fit.''
34. All orders given by you (go-kogi) or by us {koito ho
yoji furejd), shall be announced throughout the mura
as soon as possible. In case of delay any punish¬
ment you think fit shall be inflicted. Persons sum¬
moned by you shall appear without delay.
35. No persons shall enter into combination to demand
anything from the government. When a grievance
exists in the opinion of any one, he shall petition
by himself, not in concert with others.
36. When there is a dispute with another district over
boundaries, fights with swords, spears, clubs, etc.,
shall be avoided.
37. Quarrels among the people shall be forbidden. In
case of dispute, the matter shall be reported. If
this is not done all parties shall be indiscriminately
punished. Drunkards doing mischief shall be puni¬
shed. An officer taking a bribe for the decision of
a dispute shall be deemed culpable.
38. Every one shall render assistance in capturing an
evil-doer, whether the latter belongs to the mura or
not. When an evil-doer is caught, a guard shall
be placed over him.
39. Persons escaping from justice or banished shall not
be allowed to remain in the mura a moment. If
any one harbors such a person he as well as the
nanushi and the kumi-gasliira^^ shall be deemed
culpable. •
40. Every person leaving his home on business must
inform the nanushi and kumi-gashira before starting.
14. For a case involving the alleged transgression of this rule by a
number of persons in a ttitira, see Rcigaki Art. 28 (Mittheil. etc.
supra, p. 115.)
15. Kumi-gashira here signifies "head o{ a kuini," being written in
the ongin3.\ "gonin-gumi-gashira." See the Kujikata Osadamegaki, I,
Art. 53 [Mittheil. etc., supra p. 56) "Town ordinance in regard to
the concealment aud harboring of persons sentenced to banishment
or other punishment."
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. IQS
Those who go to Yedo to take service with a master
must first obtain permission from you. If any one
leaves the mtira without doing so, and afterwards
is guilty of any offence, he as well as the namishi
and kumi-gashira shall be deemed culpable.
41. No lodging shall be given to any passing ronin,
priest, yama-biishi, yeta, beggar, etc., whose name
and destination are not fully know. If lodging is
given, the naniishi and the kiimi must be informed.
If a traveller falls ill on the road he shall be taken
good care of and upon recovery shall be sent to
his destination^', notice being first given to the
nanushi and the toshiyori. If he dies, his clothes
and his family crest [vton) shall be examined by the
above officers and the kumi-gashira.
42. When a person comes from another region and
wishes to take service with a member of the mura,
his native province and his home shall be ascertain¬
ed and he shall be required to find a surety for
his conduct.^' When permitted by the namishi
and the kumi-gashira, he may be employed, and his
name must be entered in a register. Even parents,
brothers, sisters or other near relatives of a member
of the mura, if they have been absent for a long
time, shall not be allowed to remain, unless their
return is reported to the nanushi and the kumi, and
by them to you, and permission is given to remain.^^
16. For a case involving the transgression of this rule, see the
Reigaki, Art, 27 {Mittheil. etc., supra, p. 113). See also the Kujikata
Osadamcgaki, II, Art. 93 (ib, p. 98) " Punishment of those who send a
sick traveller on from one inn to another."
17. For provisions relating to the sureties of servants, see the Kujikata
Osadamegaki, II, Art. 4. (Mittheil. sw/ra, p.79); also, I, Arts.
73, 74. The law ^f .personal suretyship was a very important body
of rules.
18. The following is a good example of a transgression of this article.
"1752. Province of Kashu, An'ayamacho. Hachiyemon, defendant.
" This Hachiyemon had a barber concealed at his house and represent¬
ing falsely to the village official that this person was his servant and
lg6 simmons & WIGMGRE: land tenure & local institutions.
43. Horses required by persons 'of samurai rank shall
be supplied without delay, whether by day or by
night. The baggage of such persons shall be carried
with care. If these rules are not observed, any
punishment which you think fit shall be inflicted.
All travellers shall be respectfully treated, especially
the various daimyo and their retainers, even the
lowest.
44. Dancing, wrestling and other public shows shall
be forbidden. Singing and dancing girls and pros¬
titutes shall not be allowed to remain a single night
in the niura.
45. It shall be unlawful to cut even a branch of a tree
in a Government forest. Any one doing so shall
be punished. Private forests shall be preserved,
in order that there may always be an abundance
of wood, for the construction and repair of govern¬
ment buildings.^'
46. New buildings shall be erected with as little expense
as possible. At marriage feasts the food shall consist
of shiru (soup) and one other dish. In no such
occasion shall the gathering of a large crowd or the
drinking of wine be allowed.
47. No person, however well off, except the shoya,^^
shall be allowed to wear silk clothes. All clothes
shall be made of cotton or of hemp.
48. No katana (long sword) shall be carried by the
common people, whether at home or in public.^'
had a document of suretyship, in which principal and surety were
properly named, vouched for his position and character. It was asked
whether for this misdemeanor he should suffer banishment in the third
degree. Sentence, banishment in the second degree."
Rcigaki, Art. 65 [Mitthcil. etc., supra p. 124).
19. " Unless a special necessity arises, no one shall cut timber in the
forests for purposes of trade."
Knjikata Osadamegaki, I, Art. 21 (Mitthcil. etc., supra p. 51.)
20. The occurrence of this word can hardly be anything but a slip of
the copyists.
21. 'Seethe Kujikata Osadamegaki, II, Art. 94, (Mittheil. etc., supra p.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. I97
No wakizashi (short sword) shall be ornamented
with gold or silver. No person, not even the na-
nushi nor women, shall be allowed to ride in a
kago."
49. The practices of selling one's self to another for a
period (danjo-yeitai-un) and of hiring servants for
long terms {yeinenki-hoko) for purposes of prostitu¬
tion, etc., have been condemned and prohibited by
the Government. We, therefore, in obedience to
your high will shall endeavor to detect offences of
this kind.
50. Those who cause annoyance to the neighborhood
by quarrelling about their land, etc., shall be deemed
culpable and their land shall be confiscated.
51. A complainant when proceeding to court shall be
accompanied by the nanushi. If he appears in
any other way, he shall be punished, no matter how
good his claim.
52. When a person wishes to change his seal, the new
seal shall be sent to the nanushi. When a seal
is lost, the nanushi must be informed. No person
shall use more than one seal.
53. Messengers sent by us on public business shall not
be given money, grain, clothes, or other things as
presents by the farmers. No sum shall be lent to
them under any pretence. If they cause people to
sell by means of force or threats they shall be report¬
ed.
54. No service in the shape of manual labor or trans¬
portation by horses shall be performed for them
98), " Punishment of farmers and townspeople who carry swords
also. ib. I, Art. 35.
22. " Only the following persons may use kago without permission :
kokushu and jCshii with incomes of 10,000 koku or more; sons of
kuni-daimyu and the eldest sons of joshu, jiju, and higher officials;
people who are fifty years old or more, physicians, and sick people.
Kacku may sometimes make use of kago; kuge and priests may use
them when they please." Buke-shohatto of 1634, Art. II {Mittheil.
etc., supra p. 26.)
I»
198 SIMMONS & WIGMORE ; LAND TENURE & LOCAL INSTITUTIONS.
under any pretence. If such services are required
a written warrant must be shown by them.
The above rules, which have been approved by
you, shall be read aloud annually to the people as¬
sembled at the office of the nanushi, and shall be
observed by them without fail. Whoever is so bad
as to disobey these rules shall be immediately report¬
ed by his kiimi. If the latter knowingly fail to do
so, and you learn of the offence from other sources,
the nanushi, the toshiyori and the kumi-gashira
shall be deemed culpable.
3. Kiimi-cho from Koriyama Han, Yamato Kuni.^^
1. All laws hitherto made or hereafter to be made by
the Government shall be strictly observed.
2. Kutni shall be formed of every five adjacent house¬
holders.
3. The decree for the abolition of Christianity shall be
rigorously enforced, and suspected persons shall be
reported.
4. Children shall be obedient to their parents; hus¬
bands and wives, brothers and sisters, and relations
shall love each other. All those who quarrel with
23 This translation has for its original a copy of a kumi-cho as given
in Yamato Hansei, a manuscript volume lent to me by Mr. Matsuzaki.
The author states that this was the form of kumi-chu established " for
all the go and m«ra in the dominion of the daimyo of Koriyama han."
He therefore fails, as a matter of Course, to give d^es and signatures.
After setting out the kumi-cho as translated above, the author of
Yamato Hansei goes on to make the following curious statement.
" The above regulations had a nominal force only, and were seldom
enforced. Throughout the Tokugawa dynasty they continued to be
a dead letter and underwent no changes, although in the meantime no
little change had taken place in the constitution of the general govern¬
ment and in the manners and customs of the people. But, strange
to say, the kumi-cho still continued to be law, and at the end of every
two years was read aloud in the presence of the assembled people, and
■signed by the shoya, the toshiyori, and the chiefs of the different kumi.
What a curious condition of things! "
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. IQg
their relatives and refuse to listen to their good
advice, or disobey their parents, or are unkind to
their fellow-villagers, shall on investigation be re¬
ported by the shoya, the tosJiiyori and the kumi.
Our own occupations shall not be neglected.
5. It shall be unlawful, according to the law already
passed, to abandon children. When- any one finds
an abandoned child or old man, he shall take him
in and support him, and report to the Government.
6. No gun shall be kept by any one.
7. Sales of men (hito-baibai) are absolutely forbidden.
When a person hires a servant he shall make
enquiries about the servant's religion and shall
require a reliable surety. When any one wishes
to leave for service under a master in the dominion
of any other lord he must first report his intention
to the Government.
8. No horse shall be abandoned. Abandoned horses
when found shall be taken care of, and a report shall
be made to the Government by the shoya, and the
toshiyori.
9. When public officials pass through a miira on public
business horses and men shall be furnished, espe¬
cially at night, or in rainy or windy weather.
Rudeness towards travellers of any kind is forbiden.
10. No person shall be compelled by force to sell or buy
any thing. Merchants coming from other regions
shall not be rudely treated, even though of mean
rank.
11. The sale of lands in fee simple (ta-hata yeitai-icri)
is absolutely forbidden. Mortgages shall not be
given for a longer period than ten years. Mortgage
deeds shall be attested by the shoya, the toshiyori
and the»AMOTi, and a copy shall be kept by each
party. When land is mortgaged to a resident of
another daimiate, the Government shall be informed.
12. No public-house or wine-shop in addition to those
now existing shall be opened.
200 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
13. When any unusual event occurs, such as a fire or a
disturbance of the peace, report shall be made imme¬
diately.
14. When a fire occurs, the people shall immediately
hasten to the spot, each one bringing with him a
bucketful of water, and shall endeavor under the
direction of the officers to put out the fire. When
the fire is put out, some one shall hasten to the
office of the daikwan, and inform him. Those who
absent themselves shall be deemed culpable. Each
kumi shall take special precautions against fire
within its own limits. Meadows (no-hara) shall
not be set on fire. Children especially shall be
warned against doing so.
15. No traveller shall lodge for even one night in a
house other than a public inn, unless information
is first given to the shoya, the toshiyori and the
kumi. Even in the case of public inns travellers
intending to remain a long time must first be examin¬
ed by the above officers. No inn-keeper shall
receive any traveller of a suspicious character.
Articles found in the room of a traveller after his
departure shall be returned, if he can be overtaken.
16. If a traveller falls ill or becomes intoxicated at an
inn, the shoya and the toshiyori shall examine his
belongings, find out his name, and take his property
into their custody, until he recovers. If the illness
is serious, the Government shall be informed.
17. Wounded persons, coming from offier districts shall
be taken good care of by the shoya and the toshiyori,
and the proper inquiries shall be made by them.
18. In the case of persons found dead on the highway,
the shoya and the toshiyori shall go to the spot,
examine the body, seal up the belongings of the
deceased, and set a guard over the corpse.
ig. When a fugitive from another tmira passes through
this mura, and his pursuer follows and informs the
mura officers of the facts, the people of the mura
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 201
shall assemble and assist him in capturing the
fugitive. I
ao. All kinds of gaming shall be absolutely forbidden.
No house shall be used for such purposes. No one
should fail to inform against such offenders. Even
an accomplice shall be not merely acquitted, but
perhaps rewarded, if he testifies against his fellow-
offenders.
21. Quarrels and disputes shall be stopped as soon as
heard of. A murderer planning flight shall be
arrested and a report shall be made. If he escapes
from the inura, he shall be pursued and arrested.
This rule shall apply to all other fugitives from
justice.
22. Temples, forests, mountains, etc. shall occasionally
be searched to discover robbers and other evil¬
doers.
23. Watch shall be kept throughout the mura as
formerly. If the watchman notices any person
acting suspiciously, he shall shout and call the
people together. When a burglar is seen entering
a house, the watchman who sees him, as well as
the neighbors, shall hasten to the spot and arrest
him, care being taken, however, not to kill him.
Those who wilfully absent themselves shall be pun¬
ished. Every house shall be provided at all times
with a piece of wood suitable for use as a torch.
24. No new temple shall be erected. Every change of
the head-priest {kannushi) shall be reported.
25. Wrestling, dancing, and other public amusements
shall be forbidden. If in consequence of this rule
any hardship occurs, it shall be reported. There
shall be no singing girls, dancing girls, or prostitu¬
tes in th^miira.
26. Any combination of persons, for whatever purpose,
shall be unlawful. If any one thinks his rights are
injured, he shall go before the shoya, the toshiyori,
and the kumi, and have his grievance settled. From
202 SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS.
their decision a further appeal may be made [to the
daikwan].
27. The boundaries of private land shall be clearly defin¬
ed, so as to avoid disputes. Re-claiming of waste
land and cultivation of new land shall not be kept
secret. Land not j'et cultivated but suitable for
cultivation shall be reported.
28. Rights to use water shall be clearly defined so as
to avoid disputes,
29. In case of floods the shoya, the toshiyori, and all the
people shall exert themselves to their utmost to save
the fields from overflow. The repair of dikes, wells,
and trenches shall not be neglected.
30. All streets, lanes, and bridges shall be kept in
repair at all times. No increase of private land
shall be effected at the expense of existing highways
or trenches.
31. Charges on river-boats and ferry-boats shall be those
already prescribed. If a boat is accidentally injured,
the neighbors shall assist in repairing it.
32. Bamboo and other trees, whether in public or private
forests, shall not be wantonly cut down.
33. Circular letters (kaijo) shall be promptly transmitted
from miira to miira, and at every transfer a written
receipt shall be given by the receiving mura to the
delivering mura.
34. When a pledge is made the pledgor shall furnish
a reliable surety.
35. Money spent on houses shall be proportionate to the
means of the owner, and no conspicuous buildings
shall be erected. No person except the shoya, the
toshiyori, and their wives and children, shall wear
silk clothes. No person shall be allowed to ride in
a kago, or to wear the katana, or otherwise to live
luxuriously.
36. No land less than ten koku in value shall be alienat¬
ed, except under unavoidable circumstances, of which
information shall be sent to the daikwan.
SIMMONS & WIQMORE : LAND TENURE & LOCAL INSTITUTIONS. 203
37. The selection of a husband and the adoption of a
son are to be made only with the sanction of the
shoya, the toshiyori, and the kumi, and these persons
shall carefully investigate the matter so as to prevent
future dissatisfaction. The expense of a marriage
shall be made as small as possible.
38. When a stranger comes to reside here, inquiries
shall be made as to the mura whence he came, and a
surety shall be furnished by him ; the daikwan shall
then be informed. Even when a native of the 7nura
who has been absent a long time returns home, his
return shall be reported to the daikwan.
39. If a person wishes to remain for even a single
night in another rnnra, he shall report his intention,
if shoya to the toshiyori, if any one else to his
kumi.
40. The succession to property must be determined on
and reduced to writing before the death of the owner,
and the document must be attested by the shoya,
the toshiyori and the kumi so as to avoid disputes
after his death. Therefore if a man seems to be
at the point of death, his will must be made in the
presence of the shoya, the toshiyori and the kumi,
and must be signed by them and by the relatives,
so as to avoid subsequent disputes. If any one dies
suddenly without making a will his affairs shall be
examined and the amount of his property ascertained
by the shoya, the toshiyori, and the kumi, and an
inventory sent to the daikwan.
41. When any one wishes to begin a suit or to make a
petition he shall inform his kumi of his intention,
and the shoya and the toshiyori shall be requested
to undertake the suit or the petition on his behalf;
but in case they refuse, he may act for himself.
42. Neither shoya nor toshiyori shall oppress the people,
nor shall the people trouble or vex these officers.
43. No insult shall be offered to any person of satnurai
rank.
204 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
44. No present or loan whether of money, grain, clothes,
or wine, shall be made to any Government ofRcers
or to other samurai or their retainers, even the
lowest. When Government officers visit a mura no
choice food shall be set before them. If any such
officer or his retainers annoy the people of the mura,
they shall immediately be reported.
45. No grain shall be disposed of before the taxes are
paid.
46. If the shoya or the ioshiyori changes his seal, the
daikwan must be informed and the new seal s^t to
him. When any other person changes his seal, the
new seal must be sent to the shoya.
47. The expenses of the mura for each year shall be
recorded in a book, and the shoya and the toshiyori
shall certify to it by signing their names, so as to
avoid subsequent disputes. If through neglect of this
rule any dispute arises, the shoya and the toshiyori
shall be punished.
The above rules shall be strictly observed. In
case of their violation, the offender, his relatives, his
kumi, the shoya and the ioshiyori shall be deemed
culpable.
These being the rules which you have prescribed
for the government of our mura, we shall endeavor
constantly to have them observed by the people.
In case of their violation the offender, as you
have said, his relatives, his kumi, the shoya, and
the toshiyori shall be deemed culpaWe, and shall be
punished as 5'ou may think fit. In accordance with
your high will, we now offer you a copy of our
goningumi-cho.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 2O5
4. Kumi-cho from Chibadera Mura, Chiba Gori,
Shimosa Kunid*
1. We hereby sincerely swear to obey not only the
general law of the country (go-hatto) but also the
laws and orders of our daimyo.
2. We will not make absolute sales of land (yeitai-bai-
bai). If a sale for a term of j'ears (nenki-baibai)
is made, the nanushi, kiimi-gashira, and chief of
kumi shall attest the document. Second mortgages
shall not be given.
{Extra Clause). Sales of human beings shall not
be made.'
3. The succession (ato-shiki) of a farmer's estate shall
be settled in accordance with his will (i-zoku), attest¬
ed by the nanushi, kumi-gashira, and gonin-gumi.
In distributing the estate, the nanushi, kumi-gashira,
and gonin-gumi shall all meet and act in concert.
An unattested will shall have no effect. An estate
of less then twenty koku shall not be divided. If
a man dies intestate, leaving no children, the nearest
relative shall inherit, with the consent of the other
relatives, the nanushi, the kumi-gashira, and the
gonin-gumi. The performances of tax services by
an heir shall be guaranteed, and notice of a proposed
choice must first be given to the proper officer.
4. When there is a dispute or a suit at law in our mura
or in another, no one not concerned in the controversy
shall foster or take part in it. If any one officiously
intermeddles in such matters, or by swearing to the
gods {shimmon sum) or drinking the sacred water
{shinsui nomuf^ endeavors to encourage litigation or
to defraud others in any way, he shall be punished.
Extra clause. When a burglar is found in our
•
24. The original of this kumi-cho was lent to me by Mr. Sato,
Gtm-cho (County Superintendent) of Chiba gun, Chiba ken. The ex¬
istence of date and signatures makes it especially valuable. The trans¬
lator was Mr. Ishii.
25. See appendix II, 2. Art. 2
2o6 SIMMONS & WIGMORB : LAND TENURE & LOCAL INSTITUTIONS.
viura or when any loud noise is heard, the people
shall hasten to the spot.
5. We will not become surety {hito-uke) for any but
our fellow-villagers (son-chu). In case some xme
is obliged to become surety to a relative in another
vtura, he shall do so only with the consent of
his nannshi, kumi-gashira, and gonin-gumi. If a
suit (deiri) is brought against a servant, (Jwkdnin)
his surety must fulfil his obligation as such.
6. When any one comes to live in our mura, even
though he is only a relative of some inhabitant,
notice must be given to the daikwan.
{Extra clause). If any one wishes to travel to
another province, or to marry and reside in another
province, or to take service elsewhere, he shall ask
permission of the daikwan, through the nanushi and
the kumi-gashira.
7. When merchants from other provinces visit our
mura, even those who make a custom of doing
so, the nanushi aud the kumi-gashira must be im¬
mediately informed. If a ronin comes, the daikwan
shall be immediately informed of his name and other
facts concerning him, and he shall be treated as
the daikwan shall direct.
8. New temples shall not be erected.
9. All taxes shall be assessed according to the rate
recorded in the account-book {wari-moto) of the
nanushi and the kumi-gashira, and the rate shall
not be changed every year. If a poor farmer be¬
comes unable, from sickness or other unavoidable
cause, to cultivate his land, one of the gonin-gumi
shall inform the nanushi, and the villagers shall
give assistance by cultivating the land for him.
If the land is left uncultivated, all the inhabitants
shall be held responsible.
10. When a person is found dead on the highway, the
nanushi and the kumi-gashira shall examine the
articles found upon him, and take charge of them
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
SO that they may not be stolen, setting some one to
guard the corpse, and the proper officer shall be im¬
mediately notified. When a person is found ill on
the highway, he shall be taken care of; if his home
is known, he shall be sent to it; if it is distant, the
daikwan shall be informed, and shall make such
order as he thinks fit. Oxen, horses, dogs, hens, and
other domestic animals found on the highway shall
not be maltreated {somatstinaru-gi).^'^
{Extra clause). When any thing is found on the
highway, notice shall be given to the daikwan
through the nanushi and the kutni-gashira.
II. Gaming and lotteries of all kinds shall be forbidden.
{Extra clause). Great care shall be taken against
fire. Fire-places shall be constructed according to
the regulations therefor. When a fire breaks out,
all shall hasten to help put it out.
The above rules shall never be violated. We here¬
by present this document with our seals, which have
been carefully inspected and certified by the heads of
kumi. If any one loses or changes his seal, he shall
immediately give notice, and the new seal shall be
placed on this document instead of the old one.
When a seal is changed, of course both seals cannot
be used.
These articles shall be read every year, in the
presence of all the inhabitants of our tnura, so that
they may not be forgotten.
Shimosa Kuni, Chiba Gori, Chibadera Mura.
Seitoku, Sixth year, (1716) first month,
Nanushi.
Tokuyemon, Kichiyemon.
Kumi-gashira.
Heiyejnon, Sahei, Hambei, Hikobei, Zenjuro.
26. Mr. Ishii interprets this as follows. The boys of a village would
play pranks on a neighbor by driving off his cattle or fowls, or by beat-
them, if found on the road, and frightening them off in another direc¬
tion. These escapades would be most likely to be directed against
some one unpopular among his fellow-villagers.
208 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Hosoda Rihei
Watanabe Kichizayemon
17
Name
Age Assessed value of land.
KOKU
TO
SHO
GO
/Shiroyemon ...
... 69
. 15
I
.. 4 .
■ 4
|Yosoyemon ...
... 50
10
.. 9
.. 6 .
- Riyemon
... 61
I
.. 4 .
• 4
Kichibei
... 48
• 14
I
•• 3 •
• 7
Juzayemon ...
... 69
I
.. 2 .
Hambei
... 46
. 11
I
Kichiyemon ...
... 40
• 39
I
.. 4 .
^Jirozayemon ...
... 61
. 19
1
I
Hikobei
... 65
.. 2
.. 4 .
• 3
Jcbisuke
... 23
.. 6 .
. 6
'Hikoyemon ...
••• 53
• 7
.. 2
.. 7 .
. 8
Kichijuro
... 31
• 9
.. 4
•• 3 •
• 9
- Hanjuro
... 35
■ 7
•• 7
.. 8 .
. 8
Takisaburo ...
... 5-1-
• 3
.. 8
.. 4 .
• 9
^Shoyemon
... 44
■ 14
.. 6
.. 8 .
■ 7
K injure
... 44
11
.. 6
Moyemon
... 47
2
I
.. 0 .
. 2
H Zembei
... 41
■ 3
.. 9
I .
• 9
Gorobei
... 28
• 23
.. 9
.. 7 .
. I
.Kichibei
... 45
I
.. 4 .
• 3
Denzayemon
... 38
■ 13
.. 9
.. 4 .
• 9
Sojuro
39
.. 6 .
. 6
•< Matabei
... 36
• 25
3 •
•• 3 •
. 8
Magobei
53
• 19
.. 4
I .
. 8
.Shirobei
... 25
taka-na
shi (landless)
/Kachirobei ...
... 40
• 9
.. 4
.. 2 .
Hanshiro
... 40
.. 4
.. 2 .
Kayemon
... 38
.. 4
.. 2 .
jGohei
... 61
.. taka
nashi .
Shokurd
... 35
n
\Monjuro
... 40
.. 4
.. 8 .
27. Apparently the daikwan and perhaps his secretary.
SIMMONS & WIQMORE : LAND TENURE & LOCAL INSTITUTIONS. 20g
Name
/Kichirobei
Chojiro
^ Chuyemon
Zenzayemon ...
Gorobei
^Shichiyemon ...
/Ichiyemon
Masabei
Seibei
Seiyemon
Suteyemon
\Jinzo
fSeijuro ... ...
Shinyemon ...
Zenjiro
Sanzayemon ...
Zentaro
VZenzaburo
(Choyemon
Zenjuro
Sutesaburo
Niyemon
Chobei
VToyemon
/Chozaburo
Mohei
Sukejuro
•< by Uyemon (a
relative)
C ho shir 6
Zembei
I'Kojuro ... .•
I Shichirobei ...
JKanshichiro ...
Kihej
Hachibei
Age Assessed value of land.
KOKU TO SHO GO
36 .
I
.2 ... 7
66 .
... 3 .
. 4 ...
16 .
... 5 .
. 4 ... 8
41 .
... 5 .
. 4 ...
50 •
... 3 .
. 6 ...
50 •
... 4 .
. 8 ... 6
58 .
. 8
... 2 .
. 0 ... 2
29 .
11
... 9 .
00
39 .
2
... 7 .
, 9 ... 2
29 .
• 4
... 8 .
I ... 0
46 .
• 3
... 6 .
67 .
... 4 .
. 8 ... 6
51 •
... 2 .
63 •
... 4 .
. 9 ... 2
27 .
... 5 ,
. 6 ...
31 ■
... 6 .
. 0 ... 8
25 .
... 5 .
. 0 ... 2
34 •
... 4 .
. 2 ...
53 •
... 3 .
. 6 ...
41 .
• 7
... 5 .
. 4 ... 7
28
• 4
... 9 .
. 4 ... 5
76 .
... 3 .
. 3 ... 9
59 •
... 3 .
. 6 ...
55 •
... taka-nashi ...
51 •
... 3 .
. 6 ...
55 •
... taka-nashi ...
47 •
... 2 .
. 4 ...
58 .
[signing for Sukejiro.]
45 •
... 3 .
. 4 ...
32 •
. 5
I
59 •
... 3 .
. 4 ...
50 •
... 3 .
.. 4 ...
42 .
... taka-nashi ...
42 .
... 7 .
. 4 ...
50 •
... 3 ■
. 4 ...
2IO SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
Name
Age
Assessed value of land.
KOKU
TO
SHO G6
/Jubei
... 20
9
. 2 ... 6
Sahei
... 42
5
. 6 ... 5
.< Magobei
... 41
5
4 ... 8
Hansuke
... 58
5
I
.Hyozaburo ...
... 40
3
. 6 ...
/Kinyemon
••• 39
r
6
. 5 -
Rokuyemon ...
... 76
3
. 9 ...
1 Magobei
... 48
I ..
9
. 9 ... 2
Yohei
... 40
3
. 6 ...
Sanyemen
... 42
3
. 4 ...
VZensbiro
... 40
takanashi ...
Forests belonging to the mttra :
1. Washino yama — 70 ken X 30 ken.
2. [Name not mentioned] — 10 ,, X 13 „
28. In a long knmi-cho given in full in Chiho Seido-tsu the following
articles, which do not occur in any of the preceding kumi-chu, are found.
" When a nanushi orders the people to subscribe money or rice for a
bribe, they shall refuse it, and if the nanushi still insists, they shall
inform the daikwan. If it be discovered that a nanushi has bribed a
higher officer, both he and the people of the mura shall be punished.
" Even when a family becomes bankrupt or dies out, the kutni shall
not destroy the vacant house and cultivate the land left uncultivated ;
they shall seek for another family to occupy the house and cultivate
the land."
II. OTHER LAWS FOR MURA.
I. Proclamation issued by a new daikwan to the people'^^
1. All laws of the Government, and all the good meas¬
ures of the previous daikwan I promise to observe,
as also the various old customs relating to the privi¬
leges of the seaboard.
2. I will carefully search for all Christians, in the man¬
ner already customary.
3. All persons are forbidden to cut trees in the forests
without permission.
4. Farm lands long occupied cannot be sold. If a
mortgage is given, it must be registered and must
be sealed by nanushi and kumi-gashira.
5. No new comers wishing to rent land or become
servants who have not the certificate of the priest
of their sect, declaring that they are not Christians,
can be allowed to settle. Theatrical performers and
showmen and persons having no nimhetsu-cho are
forbidden to remain in the village.
6. In regard to the villages where the Shogun goes
hawking—,birds are not to be frightened, and
strange dogs are to be tied up.
7. All are warned to be prompt in the payment of the
tax. Whoever fails will be imprisoned [Usually it
was the shiftless only who could not pay].
8. If there is a fire in a neighboring mura, all must
turn out and assist. Those who do not are to be
reprimanded.
9. When an alarm of robbers is given, all must imme¬
diately go to render assistance. Whoever does not
will be reprimanded.
29. This translation was found in the author's papers without any
trace of the source of the original or of the places where it applied.
The clauses in brackets are the author's.
212 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
10. Gambling of all kinds, lotteries, and cock-fighting
are forbidden.
11. Quarrels an4 fights are bad and should be avoided.
But if a fight occurs and some one is injured, the
local officers should detain the parties and report
to the daikwan.
12. If a traveller, even a beggar, is taken sick so that
he cannot proceed, the local officers must call a
doctor to give the necessary care, and report to
the daikwan. [My teacher thinks that this regula¬
tion existed for the benefit of spies of the Govern¬
ment. A case occurred in Kanagawa, where a
certain man, a Government spy in disguise as a
beggar, was taken seriously ill; thinking that would
die, he sent his secret commission to the daikwan,
who took the greatest care of him].
13. Farmers should look to it that they are industrious
and should not spend time in amusements or in
dissipation. If they do, they are to be reported to
the daikwan.
14. Meetings of thoughtless, irresponsible persons, for
purposes of opposing the law or of appealing to the
Go-rojCi, should not take place. If the farmers have
real grievances, redress must be sought by petition
made under seal of those aggrieved, and presented
through the local officers.
15. On the occasion of Shinto or Buddhist viatsuri or
of a wedding, it is advised that much money be not
spent [Cases of excess of this sort scAietimes occur
in Tokyo, where under excitement large sums of
money are spent by poor people]. Only matsiiri
of old standing should be celebrated, not new ones
[For instance, in the case of an liayari-kami-san or
popular god, if a remarkable cure occurred, branch
shrines of this god would be established in various
places. This was the subject of the above prohibi¬
tion] . /
16. Farmers are hot to wear two swords.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 213
17. No new land is to be reclaimed without immediately
reporting it.
18. Villages given to law suits are always poor. If
trouble occurs, all efforts should be made to settle
it by arbitration. [The special reference here is to
disputes between neighboring villages about bound¬
aries or irrigation. Sometimes the difficulty arose
from an imperfect survey, e.g. in mountain districts
or thinly settled localities].
19. The tax levy, as adjusted by the daikwan, must
receive the assent of every farmer, even the smallest,
witnessed by his seal upon the document. [For this
purpose a list of all lands and their assessments
was posted at a conspicuous place by the nanushi's
office. It was examined by neighboring villages
and compared with other assessments, so that any
unfairness could be complained of. When any com¬
plaint was made, the local officers, including the
hyakusho-dai, examined it, 'and usually succeeded
in making the complainant listen to reason, if in
fact he had not been unjustly treated].
20. Estimates of mwm expenses must be made up with
the greatest economy, and must be assented to by
all the farmers. When tnura officers travel on
public business, their expenses are to be estimated
as a fixed scale, and no extras are to be allowed.
21. Tax-rice should be packed with the greatest care, so
that none may be lost in transportation.
22. The daikwan and his officers, on their tours of in¬
spection, are allowed a fixed number of attendants
and a fixed bill of fare. [One soup,[one dish of fish
or vegetables, a relish, and rice].
(On receipt of this notification by the farmers, they
sent the foilowing answer).
" We have examined each of the articles and we
subscribe to them. If we break any of the rules,
we will accept without protest the punishment, what¬
ever it may be, that your displeasure may inflict.
214 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
In witness whereof we each affix our seals"
2. Rules for mura [mura-gosatsu) issued in 1721 hy the
Shogun Yoshhnune.^"
1. In every inura the people, including both large and
small farmers, should organize into gonin-gumi,
in a permanent and thorough manner, and for the
sincere observance of the laws. In case any dispute
arises, it must be first taken into consideration by
the gonin-gumi. ,
2. All meetings of the people for conspiracy or sedition
and all drinking together of the cup of water is
forbidden. [It is a custom when going to war, to
a duel, or on any dangerous errand, to drink a cup
of pure water and repeat a prayer to the god or gods
of the mura for success in the undertaking.]
3. Farmers who have ten tan or less of land are for¬
bidden to divide it among their children. Any land
over this amount may be divided.
4. Wills of land are void without the seal of the na-
nushi.
5. No one is to alter the size of his house without
permission from the daikwan; but merchants are
excepted from this rule.
6. No one is to cultivate new lands without permission.
7. Holding new matsuri and getting up great excite¬
ment at a matsuri is forbidden.
8. Land must not be sold.
9. The secret sale of land in the name of another is
" forbidden.
10. Heretofore there has been no limit to the length of
time for which land could be mortgaged. Ten
years is now fixed upon as the limit.
11. If a nanushi wishes to mortgage his land, the seal
of the hnmi-gashira and the toshiyori is necessary.
30. This translation and the next were found among the author's
papers. Neither the original nor any reference to its source appeared.
The clauses in brackets are by the author.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 215
12. Secret sale by way of mortgage is forbidden.
13. On the death of a mortgagor, only a son or grand¬
son can redeem it. If such a one has been adopted
by another family, he too is excluded.
14. All must examine carefully the tax list of the mura
posted at the namishi's residence.
15. When one comes into possession of land by descent
he must immediately report it to the nanushi.
16. If when a new survey of land is made, a portion is
left over, it must not be divided by the mura but
must be reported.
17. Speaking disgraceful things of another man, or
publicly posting him as a bad man, even if he is
so, is forbidden.
18. When a forest is resorted to by the farmers for leaf-
manure, its enjoyment must be arranged in common ;
no one is to take more than his share.
ig. A kosaku who has held his land for twenty years
cannot be dispossessed.
3. Rules for sea-coast-villages (tira-gosatsii) issued in
1711 by the Slwguti lyenohic.'^^
1. Care should be taken during storms to look out for
distressed or wrecked ships, and assistance must
be given by the villagers.
2. In case of wreck, the salvage for flotsam shall be
one-twentieth, for jetsam, one-tenth. [In rivers, the
shares were respectively one thirtieth and one twen¬
tieth.]
3. When a junk arrives which has jettisoned its cargo,
the daikwan and local officers are to visit it im¬
mediately and investigate the condition of things.
If a fraud is discovered, the captain, the crew, and
—— ■ —
31. As has been said, no authority for this law is mentioned by the
author. But it is almost identical in its tenor with a law dated 1711
and appearing in the Kujikata Osadamegaki, II, art. 17 (Mittheil. d.
D. Gesells. Ost., Heft 41, p. 48); and may be taken to have been drawn
from that source.
3l6 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
the buyer are to be beheaded. [During storms the
people of the sea-coast villages were apt to refuse
assistance and even to wreck vessels intentionally.
This was especially the case with vessels carrying
tax-rice. The natnishi and daikwan not infrequently
connived at this in sending out the rice from the
villages, and were thus able to falsify successfully
the amount sent to the Government. All guild
chiefs engaged in such a matter were beheaded and
the daikwan or bugyd in charge was banished.]
4. If a vessel seems to remain in a harbor unnecessarily
long after discharging cargo, it should be visited by
the nanushi and the daikwan and the cause inquired
into. If the weather is good, and the vessel remains
without good reason, the local officers must notify
it to leave.
5. Tax-rice vessels or private freight vessels, if badly
equipped, insufficiently manned, or otherwise unsea-
worthy, should be prevented from going to sea.
6. Where wreckage is saved and no one claims it
within six months, it shall go to the village; no
claim thereafter made shall avail.
7. Gambling in port is forbidden. Any one who dis¬
closes fraud which has been committed on ship¬
board will be pardoned, if an accomplice, and
rewarded.
III. HOUSE-COMMUNITIES IN HID A.
The attention of scholars deserves to be called to the
apparent existence in some parts of Japan of what have
received the'name of House-Communities or Joint Undivi¬
ded Families. Whatever may be the true explanation
of the origin of the instances known to exist in Russia,
India, and elsewhere, it is certainly a matter of the highest
interest that we should be able to examine additional
instances of an institution so seldom found at the present
day and so valuable for the student. Perhaps it is not
too much to say, in advance of thorough investigation,
that the conservative and slowly changing character of
Japanese social institutions makes it likely that the
instances occurring in this country will be better preserved
than elsewhere. This is the more probable as the (hitherto)
best-known example lies in the most conservative corner
of this conservative country, in the old province of Hida,
a district surrounded by some of the highest mountain
ranges of Japan, almost inaccessible during some parts
of the year, and little known even to Japanese travellers.
Students of history appear for some time to have known
vaguely of a curious mode of living practiced in these
mountains, but only recently has an account appeared of
observations made on the spot. It is written, however,
from the point of view of the antiquarian, and is entirely
inadequate upon the facts pertaining to the social order
of the family and the community. The account is publi¬
shed in volume III of the Bulletin of the Tokyo Anthro¬
pological Society {Tokyo yinrui Gak-kwi Zasshi) for
July, 1888 (no« 29, p. 305), and is written by Mr. M.
Fujimori.
The relevant portions are as follows ; " In the province
of Hida is a place called Takayama. In all the miira
of Hida situated north-east of Takayama, there are the
2I8 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
same customs as in the rest of Japan, but in the mura
west of Takayama there are many curious differences.
In the western part of Ono gun lies a village called
Shirakawa mura, bounded on one side by mountains of
the provinces Kaga and Echizen, lying on both sides of
the river Shono-gawa, and extending from Ogami mura
to the river Koshira-kawa. The mura is divided into
twenty-three kumi; in old times the mura was called
Shirakawa go, and each' of the twenty-three kumi was
called a mura. Of these twenty-three, the seven kumi
Hokiwaki, Hirase, Kitani, Nagase, Miboro, and Fukushima
are united, and are called Naka-giri.
" The customs, architecture, and mode of living of all the
inhabitants of the mura are the same. There are however,
two types of people to be seen, one having a slender face,
high-bridged nose, and little hair, the other with broad
forehead, flat nose, thick black hair, and strong bony
frames.
" One of their most curious customs is that they live
together in the same house. They do not care to separate
from the family (Jianai) and go to housekeeping for
themselves as younger sons or daughters usually do.
There are therefore, in each family many adults. The
family of Mr. Yoheiji, in Kitani kumi, consists of thirty
persons; that of Mr. Otsuka, of thirty-seven; and so on.
Still, among so many persons, there are usually only two
or three married couples. For, except in the case of the
heir apparent {sozoku-nin), no lawful marriages are made
by the sons or the daughters; they have Illicit relations
with those of other families. One result is that the number
of members of the family increases in proportion to the
number of daughters it contains, for a child of such an
illicit relation is brought up by the mother in her family.
The head of the family supplies only the child's food;
the mother must supply everything else; though if she
cannot provide, the father assists. F"ormerly when a
birth occurred, and notice was sent, as required by law,
to the Kocho (head official of a mura under the Meiji
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 2ig
Government), the child was represented to be that of the
married son or daughter in whom the succession was
vested {sozokn-nin). But recently the Kocho, beginning
to think that the children of these couples were very
numerous, discovered the truth. He then advised them
to put an end to such customs and to contract lawful
marriages, and to give up the practice of living together
as one family and either establish "separate homes or emi¬
grate to other provinces. But these are their ancient
customs, and, in spite of the advice of the Kocho, they
have not changed them.
" Farming is their principal occupation. They cannot
produce rice, however, in this region, so they cultivate a
coarse grain called hiye. Besides this they cultivate pease,
beans, barley, wheat, and mulberry. Raising silk-worms
is an important occupation with them. They do not make
silk, however, but sell the cocoon to merchants in other
provinces; recently, however, silk-manufacture has been
started. The head of the family does not take part in
the work of the field, but stays at home and superintends
household affairs; an overseer to goes the fields and directs
the work. If one wishes to know the amount of the yearly
cocoon product or its price, one must ask the head of
the family; for the others are only laborers and do not
know anything about the subject.
"The head of the family once a year gives a suit of
summer clothes, made of hemp and colored with indigo,
to each member of the family. There are certain days,
. however, when the latter work for themselves, keeping
whatever they can earn. These are, in spring-time, one
day in every seven, and in summer-time, one in every five.
So that a thrifty person can earn enough to provide for
himself a great many things besides the clothes given by
the head of th« family. On the other hand, a thriftless
person will earn very little more, and the result is that,
among the members of the same family, some may be rich
and others poor.
" Their houses are sometimes of three or four stories.
220 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
t
There is of course a difference to be seen between the
houses of the rich and those of the poor, but the general
construction is the same.
" On account of the scarcity of rice, the head alone of all
the family uses it. When, therefore, a father bequeaths
his property to his son or daughter, and retires from the
headship (inkyo suru), he is obliged to give up rice and eat
hive, while the son puts aside hiye, and now eats rice.
" We are accustomed to add san or sama to a name as
a token of respect, and we omit it only with inferiors.
But these people say 'Taro' or ' Jiro,'not ' Taro saw'
or 'Jiro san,' to all persons alike, high or lovd, gentry
or common people, superior or inferior. Again, we usually
say ' danna' of the master of a house, and ' okami-san'
or ' oku-sama' or ' go-shinzo-sama' of the mistress of
a house. But these people say 'dsa' for the former,
and 'ofia' for the latter. Again, we say 'musiime' and
'tnusuko' for 'daughter' and 'son;' they say 'niero'
and 'bo.' Our word for 'mother' is 'haha\' theirs
is ' tnna-itma.' They have many other peculiar expres¬
sions.'
IV. COPY OF A COMPLAINT MADE BY THE
FARMERS OF THE PROVINCE OF OWARI
TO THE CENTRAL GOVERNMENT
AGAINST THE PROVINCIAL
GOVERNOR {KUNITSU-
KASA) FUyiWARA
MOTONORI.^''
Thirty-one articles of complaint against the
Kunitsukasa Fujiwara Motonori.
Fujiwara Motonori has extorted in excess of what was due
330,248 bundles of unhulled rice, and 120,174! bundles as
interest.
He does not observe the distinctions between different
taxes, but has collected as large a proportion in other taxes
as in the land tax.
He has imposed a tax 3 to 6 sho of rice per tan in excess
of the rightful amount.
He has extorted rice without any just cause.
He has imposed the payment of 13 bundles of rice per
tan in excess of the rightful amount.
Under the name of an exchange he has extorted from us
quantities of silk, hemp, and Shinano cloth, of lacquer, of
grease, and of cotton, but we have received no goods in
return from him.
He has extorted from the district officials (gun-tsukasa)
and farmers clothing and rice which the kuni-tsnkasa ought
himself to have given freely to the.people.
Under the name of a loan he has extorted from us 1212
bundles of silk.
He has failed*to dispense to the poor the 150 hoku of
unhulled rice which every kuni-tsukasa is accustomed to .
give.
32. Quoted in the Fuddsan; only the heads of the articles of com¬
plaint, however, are there given.
222 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
He has not supplied to post-stations or the postofficials
the legal compensation equivalent to the product of 156
cho of land.
He has not supplied the 6790 bundles of unhulled rice
which should be given to post-stations for miscellaneous
expenses.
He has not supplied the 13000 bundles of unhulled rice
which has become due in the last three years for expenses
connected with rivers and lakes.
He has extorted a quantity of wheat which he pretended
was due as the price of land.
He has not waited until the regular time for collecting
the silk cloth dues, but has sent officials every five or six
days to collect them.
He has placed cruel officers in every district, who have
extorted things from the people, sometimes by force.
He has compelled us to grind and give to him the rice
which was left at the end of the year.
On the pretence that it is for the use of the Government,
he is preparing unjustly to collect from us 170 koku of
rice.
Whenever he crossed a river, he would call on' us to ferry
his retinue across.
He does not pay the expenses of the kuni-tsukasa office.
He does not pay the salaries of the persons employed in
the office.
He has forced us to carry his rice and other merchandise
to his house at cheap prices.
He has forced people to carry merchandise®to Kyoto and
Asame, although it was "not a customary service. He has
not supplied the 18000 bundles of unhulled rice required for
the cost of repairing of Kokubun temple.
He has not supplied the 12000J bundles of unhulled rice
due for the support of the priests and nuns.
He is not familiar with the needs of the province, because
he has had no experience in such matters.
His vassals, brothers, and retainers have greedily extorted
many things from us.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 223
His son Yorikata especially has been guilty of numerous
acts of extortion.
His vassals, sons, brothers, and relatives have by a forged
map cheated us of the harvest of a large portion of ter¬
ritory.
He has brought many wicked fellows with him, on his
return from Kyoto.
He has not notified us of three of the nine proclamations
which the Government has issued since the third year of
Kwanwa (987 A. D.)
V. ON THE MILITARY SYSTEM OF THE
EARLIEST TIMES?^
By Kurita Kwnn.
It is generally believed that the military system of
incorporating five men into a go and fifty men into a tai
was borrowed from China; hut this system, as well as
that of placing a military divis'on in each knni, really
had its origin in our own country, at a remote period,
certainly earlier than Taikwa (645-650 A. D.). The system
of go was in use among both classes of people in the
earliest times. " When the Father of Heaven sent his
grandson to earth to rule the people, he sent with him
gods of five he or hn, ordering them to attend the youth."
From the words " five he " in this passage, it seems that
the socalled " gods of five he " were the heads of their
respective he or clans. These " gods of five he " are the
itsu-tomo-no-wo of the Kojiki, tomo-no-wo meaning hu-
cho, chief of a clan. Each of these clans was accus¬
tomed to attend its chieftain to the National Festival and
to the battlefield. This division into five be, therefore,
shows how in early times the system of go existed even
among those holding civil, not military, positions [since
the "gods of five he" were ordinarily^nly civil offi¬
cials.] This is a sample of the arrangement as it was
applied to civil officials :
33. The object of this article is to show that the military system of
the earliest time was based on a division into companies of five units;
that it was of Japanese invention, not borrowed from China: and
(impliedly) that the gonin-gumi system was an outgrowth of this
military arrangement, not a borrowed institution.
The article appeared in the magazine Kok-ko, in the number for
July, 1890.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 225
Name of chieftain Name be
Nakatomi no Muraji Nakatomi
Imibe no Obito Imibe
Kagami-tsukuri no Muraji... Kagamitsukuri
Tama-tsukuri no Muraji ... Tamatsukuri
Same no Kimi Sarume.
So much as to the civil orders; now as to the military
class. We read in the Kojiki that "when Amano-
oshiho-mimi no Mikoto gave soldiers to Nigihayahi no
Mikoto, he sent ' the men of five be' from heaven, and
ordered them to accompany Nigihayahi as tari (atten¬
dants)," and that he also " sent Miyatsuko of five be,
appointed them as Tomo-no-Miyatsuko, and ordered them
to accompany Nigihayahi, leading ' Amatsu-monobe.'" Now
these Miyatsuko were the chieftains of the five be of which
Amatsu-monobe was constituted, forming altogether five
divisions of troops in one. But each of these be was
again subdivided into five be; and in fact we read in the
Kojiki that " the men of twenty-five be," that is, of these
smaller be, accompanied Nigiha3'ahi. Each of the smaller
be contained fifty men. The arrangement would thus be
as follows :
Name of Miyatsuko
Futata...
Name of small be.
Futata no monobe
Tayema ,, . ,,
Serita ,, ,,
Torini „ ,,
^Yokota ,, ,,
Omiwa ,, ,,
Yuso ! „ „
Sakabe ,, ,,
Five monobe, therefore, under a single Miyatsuko, made
two hundred and fifty men, and the whole force consisted
of twelve hundred and fifty men. Besides the soldiers,
there were blacksmiths or armorers {amatsu-tsumara),
225 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
makers of hats and rain-coats (kasami-be), and carpenters
{ina-be). There were also sailors {funa-ko), steersmen
{kaji-tori), and captains {sen-cho) for the ships. These
troops were all under the command, it seems, of Nigihayahi,
who led them all to Kawachi, and thence to Yamato. We
may safely conclude, then, that the system of go was
already in use in the age of the divinities.
Let us now turn to the evidence relating to the posting
of soldiers in each kiini. That soldiers were thus posted
is indeed true; but they were not soldiers by trade ; they
cultivated the land in the ordinary time of peace, and only
in case of war did they lay aside the plough and the
spade and accompany their chiefs to battle. For example,
Nakatomi be accompanied Nakatomi no muraji, Imi-be,
Imibe no-Obito. We find too, in the Wamyo-sho, that
the names of places in various kuni correspond with the
above clan name. For example, we find Nakatomi go,
in Harima, Iho gori; another Nakatomi go in Buzen,
Nakatsu gori; Imibe go, Awa, Oye gori; another Imibe
go in Kii, Nagusa gori; another in Izumo, Ire gori;
Kagami-tsukuri go in Yamato, Shishimo gori; Kami go
(a corruption of Kagami); in Tosa; Kakumi go in Settsu
and in Mino; Tama-tsukuri go in Shimosa and in Mutsu.
These places seem to have been inhabited by the descen¬
dants of the people of the original five chiefs {itsu-tomo-no-
wo) above mentioned. We find additional instances in
the Wamyo-sho: a Mono-no-be go in Owari, Suruga,
Shimosa, Mino, Shimotsuke, Tamba, Tango, Echigo, Bizen,
and Iki, where descendants of the people ofc Mono-no-be
Muraji seem to have settled; a Tomo-be go in Hitachi,
Sagami, Awa, and Hizen; a Tama go in Etchu and
Higo; a Sayeki gori in Aki; a Sayeki gc in Echigo,
Tamba and Mino. This military system, then, by which
in each kuni there were men who when called upon left
their fields and went to war, was of very early date, and
when Kotoku Tenno (645-655 A. D.) introduced the more
systematic military system called gun-dan, very few object¬
ors were found.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 227
The order of things, at this time, then was neither
exclusively military nor exclusively. As the farmers were
by turns soldiers, the whole nation was military. Civil
government involved military matters, so that a governor
might be a general and a general might be a governor.
RULES RELATING TO THE STATION IN
LIFE (BUNGEN) OF THE FARMERS
OF MAIZURU HAN.
I. OF THE BUNGEN OF A FAKMER OF loo KOKU
ASSESSMENT OR OVER.
A farmer of 76 koku or over is treated as
belonging in this grade.
1. Such a farmer may build a house whose length, with
the privy, is 10 ken [i Aew=5.98 feet]. But there
must be no parlor (zashiki), and the roof must not be
tiled. If the householder wishes to tile the roof, to
protect it against fires, he must first get permission.
2. On the occasion of the marriage of a son or daughter,
the gifts of the householder must be limited to the
following;
Two nagamochi (a chest used for bed clothes)
One tansu (a chest of drawers)
One tsuziira (a vine used in basket-making)
One hasami-bako (a case for scissors)
A yuino obi (a present, usually the sash called obi,
exchanged at the time of the wedding)
One sensu (a fan)
One taru (a vessel containing wine)
Surume (a kind of fish)
Kobu (a kind of sea weed)
Tai (a kind of fish, used in occasions of ceremony).
3. The viands on the wedding-day must be as follows :
1) Zoni-ziiimono (a kind of soup);
2) The things placed on the Iionzen (a small table):
a) in the hira (one of the dishes), namasu (a kind
of fish), b) in the chokti (the other dish), some¬
thing roasted or broiled ;
3) Hikimono (viands taken home by each guest):
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 229
a) suimono (soup), two kinds, h) torimono (a
liquid), two kinds, c) hikigashi (a kind of cake).
These three kinds altogether must not make
more than a small amount.
4. The family must never wear silk clothes. If a son
or daughter is to marry a person whose station
allows the use of silk, the householder must request
him not to use it on the occasion of the wedding.
5. No guests should be invited other than relations of
the family, ko-bun (people who are under obligations
to the householder for kindness received and stand
in the place of children), and a few of the most
intimate friends. But this rule refers only to the
day of the wedding.
6. At a wedding or a New Year's call, the use ofju
(lacquer boxes, containing confectionery, given as
presents) is forbidden.
7. When a member of the family makes a visit to a rela¬
tion or elsewhere, he should not carry valuable pre¬
sents. When he is visiting a sick person, he may
take anything which happens to be at hand.
8. When there is death (fuko), and people come to the
house on visits of condolence, no wine should be
offered.
9. At a funeral {butsuji) wine should not be offered to
the persons who follow to the grave.
10. On such occasions the viands should be of five
kinds only; but there should be no wine. If wine is
offered, it should be given in soup cups, not in wine
cups, nor should tori-zakana (a dish served only
with wine) be prepared.
11. On the occasion of the birth of a first child (Ui-
zan) the presents from the grandparents should be
as follows only:
A cotton garment;
One set (four boxes) of ju;
One tarit;
Viands.
230 SIMMONS & WIGMORB : LAND TENURE & LOCAL INSTITUTIONS.
From the other relations only small money-presents,
if any, should be sent.
12. When the child is taken to the mura temple (the
occasion called miya-mairi) ju may be offered to the
grandparents, but not to others.
13. At the time of hatsii-bina (the first third-of-March
festival after the birth of a girl; presents are ex¬
changed and a feast given)'^ and hatsu-nobori (the
first fifth-of-May after the birth of a boy ; nobori, flag,
is the typical present, as hina, doll, is at the girls'
festival) grandparents and other relations should not
present hina and nobori; the whole family should
present a single kami-nobori (pajler flag) and two
yari (spears), and relatives may also make small
money-presents.
II. OF THE BUNGEN OF A FARMER OF 50 KOKU
ASSESSMENT OR OVER.
Those above 40 koku are treated as belonging
to this grade.
1. The house, with the privy, may be seven and a half
hen in length. Tiles should not be used, unless
special permission is given. •
2. The presents at a wedding may be :
One nagamochi;
One tansu ;
One tsuzura ;
One hasami-bako ;
A yuino worth not over 200 hiki (50 sen)
in all.
3. Silk clothes are forbidden. Even in private only
tsumugi (a poor silk) is to be used.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 23I
4. At a wedding the honzen and hikimono together
should not exceed five kinds, the soup, one kind, the
food with wine, one kind,
5. The rules for the number of guests at a wedding, for
the presents at the birth of a child, for miya-mairi,
hatsu-bina and hatsu-nobori, fuko, and butsuji, are
the same as in the previous grade. Presents on the
occasion of a wedding, a new year's call, a call on a
sick person, and other calls should consist only of
what happens to be at hand.
iii. of the BUNGEN of a farmer of 20 KOKU
assessment or over
Those having over i6 koku are to be treated as
belonging to this grade.
1. The house, with the privy, is not to be longer than
six ken. The woods called hinoki and keyaki and
other ornamental materials are not to be used. The
roof should be covered with straw or bamboo thatch.
2. Mats (tatami) are not to be used. Those who
already have them must inform the officials, and
must put away their mats, using them only on
occasions of ceremony,
3. If a storehouse (kura) is to be covered with tiles, as
a protection against fire, permission must first be
obtained.
4. On the occasion of a wedding, the presents must be
no more than the following :
One nagamochi;
Ong tsuzura ;
A. yuind of not more than 100 hiki;
One tarn ;
One sensu ;
Sakana.
232 SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
5. At the time of a wedding or great entertainment,
clothes of cotton and silk mixed may be worn; at
other times, in public, cotton clothes only. At such
entertainments the viands should be only one kind
of soup, three other dishes, wine, and a dish accom¬
panying it. Roast viands and fish are forbidden, as
ozara (a large, toothsome dish)
6. The rule about guests is the same as in the previous
grade.
7. As to liaki-tnono (foot-wear), women should use
clogs or sandals having cotton thongs only, and
should not use setta (a sandal having iron heels and
bound with leather) or vara-zori (a sandal made at
Nara), and men should use sandals made of take-
nokawa (bamboo).
8. Men should never wear tali (socks); but men over
sixty years old may wear them privately at home
and women on occasions of ceremony (tairei).
9. Hair-ornaments should not be of silk {takenaga).
Kuslii (combs), kogai, and kanzashi (kinds of hair¬
pins) should not be made of tortoise-shell. Kushi
of wood or of clidsen-zdge (a poor kind of ivory from
Corea) should be used.
10. Higasa (sun-shades) should not be used.
11. As to other things, the rules are the same as in the
previous grade.
IV. OF THE BUNGEN OF FARMER OF 10 KOKU
ASSESSMENT OR OVER.
Those under 10 kokn are also included.
I. The house may be five and a half ken in length,
including the privy, and the roof should be of straw
or bamboo thatch.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 233
2. If a kura is built to protect articles from fire, the
roof should not be tiled,
3. The presents at the time of a wedding may be :
One nagamochi.
Yutan (a cover for a chest of drawers) are not to be
given. As to viands, one kind of soup and two
kinds of sai (a dish eaten with rice) may be set
out; but roast things and large wine cups are for¬
bidden. Wine and one accompanying dish are
allowable.
4. Silk or mixed cotton and silk clothes are forbidden.
Combs and hair-pins of tortoise-shell are forbidden ;
combs of wood or Corean ivory must be used.
5. Hair-ornaments {kami-kazari) should consist of nori-
hiki and motoi, and nothing more.
6. Foot-wear should be narazori, not setta. Women
are to wear bamboo-thonged sandals ordinarily, but
at occasions of ceremony sandals with cotton
thongs; men should wear only bamboo-thonged
sandals on all occasions.
7. At the time of hatsuzan the clothes given to the child
should not be mixed cotton-and-silk; for other ar¬
ticles of clothing, the rules of the previous grade
apply.
8. At the time of hatsu-nohori the grand parents may
present &yari (spear), and at the time of hatsu-bina,
a kami-bina (paper-doll) or tsuchi-ningyd (earthen-
doll).
9. At the time of a funeral (butsuji) one kind of soup
and two of sai may be used, but the latter must be
vegetables (yasai). For other dishes the rules are
the same as for the previous grade.
SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS,
V. OF THE BVNGEN OF MIZVNOMI.
1. The house may be of the same size as in the pre¬
vious grade.
2. The presents at a wedding may be.
One tsuzura.
Nagamochi are forbidden.
3. At entertainments, one hira and one soup may be
offered, but not in cups.
4. The collar and the sleeve-epds of the clothes may
be ornamented with silk, and an obi of silk or silk
crepe may be worn, but not in public.
5. The rule for hair-ornaments is the same as in the
previous grade.
6. The same is true of foot-wear.
7. At the time of Ui-zan the grandparents may send
two ju and money for rice and fish; other relations
and friends should send only money for fish.
8. At the time of hatsu-nohori and hntsu-hina the rules
of the previous grade apply.
9. In all other matters the rules of the previous grade
apply.
VI. GENERAL MATTERS.
1. Mtira-yakiinin and the 6-byakusho (large farmers) as
well as chiefs of kuwi (gashira-byakusho) may use
karakasa (umbrellas) but ko-byakusho (small farmers)
and mizunomi must use only mine (straw or hemp
rain-coats) and kasa (broad straw hats); still, when
there is great need, they may use karakasa.
2. A family ranking less than 20 kokii must use the
Takeda-waii (a cup made in Takeda mura) and the
Nikkd-zen (a small eating-table, made at Nikko;
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 235
both of these articles were of the cheapest sort). If
they have more costly articles already, they must
get permission before using them. No articles of
luxury of any kind are to be used, even if now on
hand.
3. There are some families which are assessed at only
40 or 50 koku and yet enjoy net incomes of loo
koku or more and wish to live accordingly. In
such cases after consultation and decision by the
kumi or the villagers the family may be ranked in
the 100 koku grade.
4. There are some families which are not assessed at
all as farmers, but have from other sources incomes
of perhaps 50 koku. In such cases the kumi and
the villagers should treat the family as of 50 koku
rank; yet not quite the same, for such a family
belongs in the merchant class, which is a less
honorable one. Still if the family is of old standing
and has a good name, it should be treated exactly
the same as a family of 50 koku rank.
5. Servants {hokonin), whether men or women, should
in their hungen rank as mizunomi. If they violate
the rules, their masters are responsible.
6. Mura-yaknnin should be treated by every one with
greater consideration than others of equal income.
7. A family of more than 50 koku assessment may give
120 sen as a present (sakana-dai) literally, money
for fish; a family of over 20 koku, 75 sen ; and a
ko-byakusho or mizunomi, 50 sen.
Vn. KOKOROYE (RULES TO BE KEPT IN MIND).
I. In some villages there are continual disputes about
iyegara (family rank) and about whether a family
is kyitka (an old family, standing in high rank
SIMMONS & WIGMORE; LAND TENURE & LOCAL INSTITUTIONS
among the farmers) or shinhe (a new family, in low
estimation, even though well off). Now kyiika
should be treated by all persons as such, even
though at the time the family is poor; and shinke
should be regarded as such, even though at the
present time it happens to be rich. All families
should respect the kyiika. But if a kyiika continues
poor for three generations and is so reduced as to
have to ask assistance from others, then it should
be regarded as shinke. So if a shinke continues
rich for three generations, it should be regarded as
kyiika.
2. There are sometimes persons who treat with con¬
tempt a family that has immigrated from another
village. This is very wrong, and henceforward
immigrants shall not be so treated.
3. There are sometimes families who on account of
there being many children, or of sickness, or of
having to assist relations in need, have themselves
become poor and unable to support themselves.
These is the result of what may be called natural
causes, and is unavoidable. In such cases a miijin
(a combination or club for the purpose of contribut¬
ing to the support of poor persons) should be formed.
But there are also families who build dwellings so
large and costly that they can scarcely meet the
expense, or indulge in delicacies of the table that
are beyond their means and at last have to sell the
property they have inherited from flieir ancestors.
Where there is such a familj', the fellow-villagers
should in a friendly way look after them and keep
them from extravagance; all the villagers should
also be diligent themselves to keep within their
station and their means.
4. According to the rules here set forth, the bungen
of cho-hyaknsho (large farmers), ko-byakusho and
miziinomi are distinctly separated in rank. These
rules, however, are not made to force families of
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 237
one rank to be equally intimate with all others of
the same rank, or to prevent a family from occupy¬
ing a high rank merely because it is poor; but be¬
cause unless some such rules are laid down, families
are very likely to be unable to live upon their means
in the station they would like to occupy, and thus
would come to grief. So that these bungen have
been established and rules carefully laid down. Still,
the kami-{uppeT)-hyakush6 must not be arrogant
with the shimo-{]o\ver)-byakush6, and the shimo-
byakusho and mizunomi must not hate or dislike
the former. Shimo should respect kami, and kami
should treat shimo kindly. This is the natural law,
established by Heaven, and it should be obeyed,
not struggled against. The community will then
be orderly and peaceful.
Another reason for the making of these rules is
the habits of luxury and extravagance which have
grown up of late years among the people of this
Itan. The result has been that many families have
ruined themselves, and have been obliged to sell
their patrimony, so that the community is disordered,
and quarrels between this man and that man and
this village and that are constantly occurring, and
it is difficult to maintain order. The lord of the
han has come to the conclusion that if rules of this
sort about bungen are established, these bad ways
will cease and order will be restored; and so
the mura-yaktinin, by order of the lord of the han,
have held a meeting to discuss the subject of bun¬
gen and have made these rules. But, as they are
very complicated and minute, it is to be supposed
that people may sometimes find it necessary to
violate them, and in such a case one may, if one is
within one's own home, act according to his dis¬
cretion.
These rules are to be observed by all the people
for ten years, that is, from this year of the Dragon
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS.
to the year of the Ox. If any one violates them
without due excuse he is to be punished, and his
kumi will also be held responsible. So that every
• member of a kumi must carefully watch the conduct
of his fellow-members.
Each one will strive to increase his income and
rise to a higher bung en; but he must of course
commit no wrong in order to succeed and must
faithfully pursue his vocation.
These rules are established in order that people
may be frugal and economical.
VII. ''EARLY JAPANESE CIVILIZATION."
(The following extracts are from Dr. Florenz's
essay, already referred to.f^
The nation which resulted from these earlier and later
immigrations was far from being a political unit: it was
rather a number of units, holding together only loosely.
These units were the so-called uji or clans, that is, the
patriarchal families including a number of persons related
by blood. We must distinguish between the greater and
the lesser uji. The former are the chief families, the latter
the branches of these. The branches were subordinate to
the respective chief families. In case one of the latter died
out, the fittest of the branch uji was chosen to succeed.
The word uji is identified by Japanese scholars with uchi
(inside) and signifies a family inclusive of ancestors.
These uji had each at the head an hereditary chief or
patriarch, and were called sometimes after the place of
residence, sometimes after the calling they followed. They
had also, in their corporate capacity, their own landed poss¬
essions and their own serf population, called tami, then
shinabe, then tamihe, then hukyokii. It is further self-evi¬
dent, as the constitution of the early family requires, that
orders emanating from the head of a chief family were
always addressed to the other heads as representing their
uji, and never to the individual members, who as such had
generally no importance. The predecessors of the present
Japanese Emperor played at that time a special role, which
however was quite different from the later development of
imperialism. If\ye retain the term "Emperor" in the Japan¬
ese chronicles in speaking of this earliest ruler, we must
nevertheless, if we would avoid a very natural error, not
34. " Altjapanische Cultiirzutdnde'," by Dr. C.A. Florenz, of TokyS,
in Mittheil. d. D. Gesellss. Ostas., Heft 44.
240 SIMMONS & WIGMQRE : LAND TENURE & LOCAL INSTITUTIONS.
fail to remember that the Emperor was nothing but the
chief or patriarch of one of many nji. His nji was, to be sure
(reckoning all its branches), larger and more powerful than
the others, and it grew constantly in size and strength and
acquired a more and more influential position in the group
of clans- which had originally possessed equal privileges.
The Emperor's rights over territory and subjects had never
extended beyond his own iiji and its branches, and in this
respect he stood on the same plane with every other chief.
Over the remaining iiji of the group he possessed only three
privileges, which, though they formed the source of a
genuinely imperial sovereignty, show how little they were
in the beginning to be identified with real imperial authority.
In the progress of time the growth of the family-power of
the Emperor (that is, his rights over the blood-relations
subordinate to him) was accompanied by greater definite-
ness in these privileges, and the final result, especially
after the grafting of the Chinese conception of imperialism,
was the centralisation of the administration in the hands
of the leading family of the chief Uji. It is worth remark¬
ing, however, that Japanese scholars always deny that the
Emperor belonged to an uji. " Since the creation of the
world, the Tenno has had no kahans (see infra), no uji.
His lineage has been a direct one in all generations, for
he has stood in the highest place and has never lost his
authority " (Konakamura Yoshikata, Nikon Seido-tsu, vol.
II).
The three above-mentioned prerogatives of the Emperor
were; i. The representation of the diflerentf^/i before the
ancestral deity (at first of the chief family only, finally of
the whole people) Amaterasu, and thus the possession of
the functions of a high-priest; 2. The representation of
the different uji in foreign relations, for example, with Corea
and China, whose envoys were sent to him; with this
prerogative was involved the supreme command in war; 3.
The right to regulate the affairs of the uji,—including the
settlement of disputes between individual uji, the nomina¬
tion of a new patriarch when the direct line in any uji came
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 24I
to an end, the creation of new nji and the degradation or
even extinction of an existing uji which had been guilty of
conduct seriously affecting the common welfare.
Seishi-rokii, also called Shoji-roku, is a
catalogue of Japanese family names, compiled by Prince
Mata in the fifth year of Konin (814 A.D.), under the Em¬
peror Saga, for the purpose of making clear once more the
proper rank of the various families, for the social changes
that had occurred had resulted in a pernicious confusion of
caste-relations. This work divides families into two
classes, those living in Kyoto, and those living in the pro¬
vinces. Both are divided into kohetsu, shimbetsu, and
bambetsu, and in these divisions we find another classifica¬
tion into sei. These sei (or habane, in the early Japanese
equivalent) have absolutely nothing to do with the Chinese
sei (except that the characters are the same), as Japanese
scholars have thought; they are the "colors" or relative
rank of the different "castes," and correspond exactly to
the Indian word varna, "color" that is, "caste." The
kabane of the patriarchal time were the oini, mitraji, kuni-
no-miyatsuko, tomo-no-miyatsiiko, wake, kinii, atae, agata-
nushi, inagi, and sukuri. Every uji belonged by descent
to one of these kabane. The kabane, and with it the
occupation and calling, could not be changed. Kabane
and "calling" are identical. After the period Taikwa,
however, a distinction began between kabane and "call¬
ing." A given occupation was no longer hereditary and
unalterable in each uji, the necessary result of which was
a confusion in the former classification. The Emperor
Temmu was therefore obliged (684 A.D.) to make new
regulations in regard to these castes. He divided the uji
into eight sei or kabane, named after colors. It is this divi¬
sion which Seishi-roku sought to make clear.
But in»the above-mentioned division into kobetsu,
shimbetsu, and bambetsu, we recognize one of the oldest
classifications, based on the closeness or distance of rela¬
tionship between the individual uji-, i. Kohetsu were the
imperial families, who traced their descent from the greatest
242 SIMMONS & WIQMORE : LAND TENURE & LOCAL INSTITUTIONS.
national deity Amaterasu or Tensho-daijin ; they appear first
in Japanese histories as the relatives of Jimmu Tenno; 2.
Shimbetsu were of divine origin, divided into tenshin
(heaven-deities) and chiki (earth-deities). The former are
the descendants of those who came with Jimmu Tenno
from Heaven, that is, his co-immigrants, those who had
come to Tsukushi with the chief uji. The latter are the
descendants of those who were found by the Tsukushi
immigrants already settled in Yamato; their ancestors were
worshipped as local deities; 3. Banibetsu or banzoku were
those who at different later times had immigrated from
Corea and China and afterwards became tiji or slaves.
But this classification, though it gives the essential ele¬
ments forming the Japanese people, is nevertheless a
theoretical rather than an actual one VVe must
first distinguish between free and unfree persons; the
former must then be divided into five classes; I, the im¬
perial family; II, ovii, nobles of kobetsu descent; III,
Dntmji, nobles oi shimbetsu descent; IV, kuni-no-miya-
isuko; V, tomonotsiiko, including the fuhito. We will
consider first the slaves.
On this point Mr. Chamberlain, in his
introduction to the Kojiki (p. XLI) makes a strange remark
when he says: "The absence of slavery [in early Japan]
is another honourable feature." This erroneous conception
is founded doubtless on the absence of the word mthi, which
is even yet the customary term for slaves. The word occurs
first and as a regular designation in Taiho-ryo, the oldest
Japanese code, and is a Chinese word {nu meaning a male
and hi a female slave). But before the time of Taiho-ryo
we find instead a whole group of terms of purely Japanese
origin.
I. As the oldest designation for slaves we meet the word
tomobe. Tomo means "group," "band," and be (now
occurring only in proper names like Watanabe) means a
tribe or clan which is bound to a special place. We find,
also, other very old words. 2. Yakabe. Yaka is " house,"
"family;" ihns yakabe is "bound to a family." 3, Kakibe.
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS, 243
To kaki (house), an old and forgotten word, corresponds the
modern kaki, signifying " hedge," " enclosure," " bound¬
ary " and may be traced back by a special, earlier meaning
of "boundary of a house." The kakibe are thus "the
dependants of a house." Of later origin must be the follow¬
ing word, which occurs in the Nihongi. 4. Watakushi-no-
tami, meaning " private people." The conception of private
ownership, unknown in earlier times, must be set against
the equally unknown idea of " government."
...The tomohe always belonged to a special tiji. They were
regarded as property and were therefore bought and sold.
Originally their owners had unlimited power over their
lives. In numerous articles of Taiho-ryo and Ritsu the
slaves were placed in the same category with cattle and
lifeless things.
After the disappearance of the patriarchal system
and the establishment of a true administrative system there
came about many limitations on the rights of the masters
over their slaves. First a distinction arose between slaves
related by blood to the master and those not so related,
between kenin or kajin and nuhi. The word kenin appears
in the authorities in Nihongi at the same time that mihi
comes into use. In earlier times, so long as they employed
the vernacular expression kakibe, the conception of kenin
was unknown or at least not distinguished from kakibe.
Kenin signified slaves related by blood to the family, but
obliged by circumstances (e. g. poverty) to enter into re¬
lations of dependency with their own uji. They ranked
somewhat higher than the nuhi, as appears in several
instances. They could not be employed for all kinds of
work, but only in special matters, as is remarked in a com¬
mentary on the passage of Taiho-ryo which enacts that the
children of kenin shall also be kenin and shall belong to the
owner of the fiarents. According to the same passage,
kenin could not be bought and sold.
In the sixth century the State began to interfere
in the buying and selling of slaves, by establishing a special
office called shokatsu no kwanshi, where a slave-register
244 SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS.
was made out, the transaction communicated, and official
ratification given.
As regards the price paid for slaves, there were of
course variations depending on age and famil}'; there was,
however, an average price; looo soku (bundles) of rice, for
instance, were given in Tempyo-shoho 147-157 A. D. for a
slave in his prime.
There was for slaves in Japanese, as for slaves in
Rome, no such thing as coniiubiuin ;^their union in marriage
(which could exist only between two slaves) must be com¬
pared to the Roman contuberniuni....\n case of a union
between a free person and a slave, the children were in all
cases slaves.
The origin of slavery in Japan is a subject which
still needs critical examination. We can here offer only
a few positive assertions. If a man fell into debt and was
unable to pay, he became the slave of his creditor. A thief
who was unable to make restitution ^of the stolen propert)'
and pay the proper fine became the slave of the aggrieved
person. An offence against the Emperor was often punish¬
ed by degradation to slavery. It is probable that the
aborigines, the Aino, were made slaves, so far as they were
not exterminated by the conquering tribes or driven to the
north or into inaccessible mountain districts. Finally, the
immigrants from China and Corea were serfs; but where
they possessed some special useful accomplishment and
were on that account deemed worthy of a better position,
they were then established as free persons.
The second rank of Japanese socffety, counting
from beneath, and at the same time the first grade of free
persons, of the people properly so-called, was the tomo-no-
miyatsuko (usually abbreviated to tomonotsuko) or iomo-uo-
wo. Those uji were so-called who followed a trade, usually
an hereditary one. They generally had to labor for a
special need of the imperial uji. So the sasahito followed
the trade of sasa, that is, sake-brewing; the miyabe were
builders of the imperial mansions and temples;
We have already mentioned that those immigrants frorn
SIMMONS & WIGMORE : LAND TENURE & LOCAL INSTITUTIONS. 245
China and Corea who possessed some particular trade
became not serfs but tomonotsuko. The trades they follow¬
ed were almost all such as we do not find among the early
Japanese and had been introduced into Japan by the more
highly civilized immigrants. The extraordinary utility of
these people explains the position which they took in its
society. As foreigners they would necessarily occupy a
lower position than native Japanese ; but on the other hand
their services were so important that they received great
consideration, and so it came about that they occupied a
scarcely inferior position to the next higher grade. The
tomonotsuho following trades (for upon the others, such as
mononobe and otoino we will not risk any opinion) are all to
be regarded as foreigners, that is, as Chinese, Cpreans,
or their descendants following the hereditary trade; and
it is our opinion that the position of the tomonotsuko owed
its origin entirely to the immigrants.
Characteristic of the well-known centralization of the
government is the fact that the uji of tomonotsuko were
always attached to the chief uji, in order to help strengthen
the imperial power. The number of tomonotsuko-uji seems
to have been quite large, for the old texts speak of momo-
yaso no tomo (i8o clans). Within the tomo no tsuko we
find another class, the so-called fuhito, sometimes placed
as a separate grade next to the tomonotsuko. These fuhito
[fude, pen, hito, man) were those who could read and
write,—in Chinese, of course, for the Japanese had no
writing of their own. In all known instances the fuhito
were from China or of Chinese descent.
The third grade from below, ranking only a little above
the tomonotsuko, was the kuni no miyatsuko, or more
briefly kunitsuko. Over the signification of the term
miyatsuko various opinions have been expressed To
understand it properly, one must go back to the word
yatsuko, which was used in contrast with kimi, "prince,"
" Emperor," and is still in use in modern times with the
signification " knight." By yakko were afterwards meant
also the lowest retainers of a daimyd, who were not samurai
246 SIMMONS & WIOMORE : LAND TENURE & LOCAL INSTITUTIONS.
and couid carry only a short sword. The mi of miyatsuko
is the honorific prefix occurring in mikado; it indicates a
relation of yatsuko with the Emperor.
The kunitsuko were the agricultural landholders. The
large landowners were called okunitsuko, the smaller ones
agata-nushi, inagi, suguri or mura-nushi. The uji in this
grade are known by place-names, rather than true family-
names. In Seishi-roku, above referred to, forty-two uji
are given who bear place-names. The Nihongi arid
Kogo-shoi relate that the kuni no miyatsuko and the agata-
nushi were established by Jimmu Tenno. The number of
their uji under Yuryaku Tenno must have increased to 144.
If their land was in an island, the title of the owner was
shima no miyatsuko. After the time of Keikd Tenno (71—
130 A.D.) the Nihongi mentions several instances in which
descendants of the Emperor were owners of large amounts
of land.. These were for five or six generations known as
kimi or wake, but after the sixth or seventh they usually
became kunitsuko. It is proved by a whole series of in¬
stances that the kunitsuko were the absolute, independent
lords of their land and soil and not merely feudal lords
holding imperial land. If a kunitstiko had been guilty of
an offence against the Emperor for which he became liable
to punishrnent, he could make satisfaction and obtain
immunity from further punishment by giving up to the
Emperor a piece of land belonging to his uji.
VIII. IIAP OF A JIL'RA.
UiH ' j^i murj, Tama ^:ri,
Ilusaihi kuni.
Schedule cf prcprietors of land in the ji/ura,
with extent cf land and nnmber of
Lt5 OTned hj each.
Aixa Kira
Naue of Aza-na No. cf Lots ' cf
c -
TJ*
£ jb
Lixn
L U KM
I to 75
9
X
9
20
U
Sodth of F.oid
S
7
20
H
I
9
F
4
13
G
7
S
B
Total..
12
S
22
IL K.:\.'.JTa
-~6 to 155
n
16
22
L
W cst McOtitO'sr
i
3
7
- 25
U
9
4
4
H
3
9
7
20
F
s
I
17
B
T otal..
13
4
3
zS
III. H T
150 to 211
_2
3
S
i5
L
.Maai Vi_a.gc
s
8
3
5
U
I
6
7
13
H
5
13
F
I
2
5
20
B
Total..
i5
9
15
13
TV".
2S2 to 43:
4
2
S
s
L
Inside)
9
3
3
14
U
1
4
2
H
3
7
8
F
I
7
^4
M
•
5
i3
G
8
>3
T
12
F
1
3
2
iS
B
T otal.
23
3
6
27
248 simmons & wigmore; land tenure & local institutions.
1
Area
Kind
Name of Azana
No. of Lots
Bu
of
1 Cho
Tan
Sc
Land
V. Hiira
439 to 564
2
4
17
L
{M eadow)
10
8
3
3
U
i
i
I
3
H
10
6
i
16
F
4
8
27
M
8
IS
G
I
3
23
B
T otal..
24
9
2
13
Total for the mttm
7
5
8
3
L
45
5
7
7
U
6
12
H
22
7
9
F
6
6
21
M
i
8
16
G
3
3
3
T
5
5
5
23
B
Total..
88 •
6
15
•
simmons & wigmore : land tenure & local institutions. 249
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Aizawa Kihei
385
5
24
M
Arai Imagoro
150
6
20
F
151
3
4
8
U
4
23
B
153
6
21
U
i
16
B
154
2
7
F
157
7
12
H
274
8
29
L
425
2
19
15
B
Arai Sajurd
34
5
6
F
. 35
9
7
H
36
4
i
2
U
■
i
13
B
37
2
7
19
U
i
2
B
38
2
2
22
U
39
6
F
Asaga Shotaro
50
i
4
29
U
4
ii
B
161
5
29
H
i£2
6
6
F
165
3
2
U
3
16
B
166
i
5
2
U
Asaga Ogord
61
i
6
16
u
2
29
B
64
i
9
25
U
•
65
i
6
24
28
B
146
2
2
24
U
4
26
B
25° simmons & wigmore : land tenure & local institutions.
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Asaga Urakichi
63
2
2
U
2
14
B
72
i
2
F
73
z
7
29
U
i
29
B
74
i
20
F
75
5
21
H
8r
2
8
26
U
301
i
i
7
U
2
3
B
302
8
26
U
2
26
b
Asaga Yukichi
160
5
18
H
Asaga Kihachi
163
9
U
12
B
•
164
3
5
23
U
2
27
'b
177
2
25
F
178
6
27
H
Asaga HanzO
246
7
19
U
22
b
247
4
15
F
Asaga ItarO
404
i
2
25
U
2
9
B
405
2
15
L
406
9
17
L
413
i
i*
»»
414
4
3
,,
415
3
6
U
i
4
B
482
i
2
3
F
483
2
3
27
U
5
's
B
484
4
3
3
U
3
18
B
485
3
15
U
27
b
492
i
4
27
F
simmons & wiomore: land tenure & local institution^. 2^t
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
Asaga Itaro
493
1
4
25
H
494
1
7
U
2
4
B
562
3
8
22
F
563
2
6
4
t1
Asaga UshitarO
407
1
27
L
16
B
524
6
29
F
525
9
12
H
•
26
B
526
6
24
U
20
B
527
6
10
U
I
11
B
553
'4
5
25
U
5
2
B
Asaga Tokumatsu
495
1
5
U
3
24
B
554
I
4
2
F
555
9
24
H
556
5
18
F
Asaga Tatsugoro
528
2
4
27
F
533
I
7
8
F
Government
349
8
13
T
457
2
6
F
458
I
4
2
T
474
I
9
481
8
9
••
Hida Shigemasa
390
I
4
4
L
•
13
B
420
9
9
L
8
B
421
I
I
13
L
14
B
252 simmons & wigmore ; land tenure & local institutions.
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
Hida Shigemasa
433
i
3
10
L
6
B
434
9
9
L
3
B
435
i
9
4
L
21
B
Ichimura JenjirS
359
2
5
21
U
3
15
B
360
2
8
9
U
2
27
B
361
i
7
H
362
1
i
18
F
363
8
>»
502
3
i
6
Ichimura Tamizo
364
i
3
14
F
365
9
26
H
366
i
6
17
U
i
26
B
370
2
6
10
U
6
9
B
495
2
2
10
U.
3
10
B
501
9
F
506
3
5
13
*»
Ito Kichibei
488
i
9
12
U
I •
20
B
Its Kumajiro
549
3
i
3
U
2
i5
B
Its Takejiro
547
2
i
5
U
i
28
B
Kaneko SatarS
"3
i
2
10
F
114
i
8
14
H
"5
2
8
20
U
simmons & wiomore : land tenure & local institutions. 253
Lot
Area
Kind
Name of Owner
No.
of
Tan
Se
BK
Land
Kaneko Sataro
116 '
2
3
29
>»
3
10
B
117
2
22
U
3
8
B
118
7
29
U
I
8
B
367
I
19
U
23
B
399
i
7
4
L
19
B
402
9
27
U
I
26
B
403
J
9
U
I
15
B
500
3
21
F
504
2
5
25
)t
557
2
9
23
U
/
3
12
B
558
3
2
II
U
4
26
B
Kawara Tanizo
9
2
3
19
U
10
8
I
H
25
I
8
23
U
28
2
5
5
2
B
Kawara KumajirO
15
2
5
U
16
8
18
»»
15
B
26
I
9
10
U
27
2
3
15
»»
* .
29
I
&
F
172
2
6
12
U
4
12
B
173
I
5
13
U
26
B
175
2
4
13
U
254 simmons & wigmore : land tenure &
local
institutions,
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
Kawara KumajirO
i
24
B
176
3
25
F-
179
i
2
13
H
260
3
3
L
261
9
»»
•
262
6
7
II
447
4
2
21
F
Kawara TokujirO
76
6
27
H
77
6
23
F
78
8
28
U
18
B
79
8
10
F
80
2
17
U
2
18
B
139
7
29
U
16
B
418
i
i
11
L
3
B
Kawara lyemon
199
2
i
16
U
4
19
B
238
2
22
U
3
18
B
239
i
7
22
U
3
2
B
241
3
15
F
242
9
19
H
243
4
6
F
252
i
•
L
9
B
320
7
9
U
7
B
Kawara Bunshiro
298
8
9
F
299
1
2
16
U
2
3
B
300
9
22
U
304
3
5
F
305
6
28
H
simmons & wigmore : land tenure & local institutions. 255
Name op Owner
Lot
No.
Tan
Area
Se
Kind
of
Land
Kawara Bunshiro
18
B
306
5
15
F
307
9
18
U
2
8
B
308
i
24
U
2
28
B
Kawara Kumagoro
311
i
4
3
U
4
2
B
389
9
22
L
/
8
B
Kawashima Suyegoro
66
i
7
17
U
18
B
67
6
4
H
16
B
68
5
28
U
22
B
69
6
12
F
83
i
i
6
U
i
2
B
84
3
3
F
Otani Tokichi
387
8
23
L
ii
B
388
7
21
L
7
B
431
4
25
L
432
4
id
I.
10
B
436
i
6
17
U
i
25
B
437
i
3
28
U
i
8
B
438
i
4
3
U
2
15
B
«
446
3
4
6
F
448
2
7
8
449
2
4
20
»»
450
2
4
21
>»
453
i
15
F
454
i
8
H
256 simmons & wigmore; land tenure & local institutions.
lot
area
kind
name of owner
no.
Se
Bu
of
Tan
lanq
otani tokichi
519
1
5
21
f
520
i
7
24
tt
550
2
3
26
»»
551
2
8
15
u
3
7
b
553
3
4
15
u
2
25
b
seikenji (a temple)
21
8
25
f
22
i
5
6
h
29
b
23
3
13
u
i
i
22
u
sekiguchi kinjirs
487
i
8
21
u
2
10
b
490
3
5
6
u
2
i
b
sekiguchi kintaro
541
4
ii
f
542
6
12
»>
543
i
6
h
sekiguchi tsunagoro
267
8
l
3
b
268
9
29
l
24
b
291
i
9
15
f
293
i
2
m
sekiguchi seizo
303
i
21
u
9
15
b
312
i
3
f
313
i
2
u
314
i
i
e
h
357
2
3
2
u
x
8
b
358
2
3
6
u
3
2
b
391
i
6
17
l
514
I
15
f
515
i
2
21
it
simmons & wigmore : land tenure & local institutions. 257
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
Sekiguchi Sei20
516
i
3
24
F
Sekiguchi Heikichi
475
3
7
U
20
B
478
4
8
29
U
7
7
B
479
1
i
2
H
408
7
12
F
Sekiguchi Uhei
534
i
2
24
F
535
6
H
H
536
i
2
12
F
537
i
9
>>
538
9
9
1)
544
2
4
4
U
4
2
B
545
i
2
9
U
i
B
546
8
23
U
i
6
B
Sekiguchi Ukichi
548
2
4
i
U
2
19
B
Sekiguchi Amigoro
120
6
F
122
2
9
12
123
3
i
6
124
1
5
7
H
125
i
6
24
U
I2g
3
27
j*
i
22
B
130
i
5
F
131
I
24
U
21
B
132
i
29
F
133
7
9
U
i
22
B
•
U
134
2
i
i
2
24
B
135
7
21
L
136
7
14
>»
8
B
258 simmons & wigmore : land tenure & local institutions.
Lot
Area
Kind
Name of Owner
No.
Bh
of
Tan
Se
Land
Sekiguchi AmigorO
137
7
6
U
10
B
138
1
3
21
U
142
i
4
3
F
143
2
5
15
U
3
7
B
144
2
2
8
U
2
10
B
145
i
3
17
F
147
4
6
43
U
148
1
10
>»
i
7
B
149
z
i
17
L
21
B
Sekiguchi MasugorS
44
i
9
29
H
45
i
6
9
U
46
i
3
4
»»
2
3
B
47
2
8
22
U
48
3
4
25
119
3
4
7
F
128
2
i
U
159
4
»7
F
269
9
5
L
10
B
278
6
6
L
297
5
18
G
412
i
i
L
498
i
w
3
F
510
8
12
M
511
2
6
27
If
512
2
6
21
if
513
2
7
28
»»'
Sekiguchi KakuzO
315
i
9
i
U
2
7
B
316
i
9
10
U
i
i
B
317
2
2
29
u
simmons & wigmorb : land tenure & local institutions. 259
Name of Owner
Lot
No.
Tan
Area
Se
B«
Kind
of
Land
Sekiguchi Kakuzo
2
22
B
321
2
23
U
10
B
330
I
i
16
F
331
6
6
H
332
2
8
F
416
5
3
U
13
B
417
2
27
L
2
B
430
6
13
U
23
B
505
2
9
F
Sekiguchi YeijirO
126
I
4
26
U
127
3
10
H
Sekiguchi Kyuz5
198
2
6
J9
U
232
2
15
..
2
4
B
233
3
26
U
12
B
234
9
F
235
12
U
236
I
9
20
H
237
9
2
F
240
I
6
'5
U
322
I
9
I
f 1
I
3
B
323
2
10
U
i
9
B
•
324
i
2
'7
U
r
22
B
424
i
6
12
L
15
B
472
2
I
L
5
B
26O simmons & wigmore : land tenure &
local
institutions.
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
Sekiguchi Kyuzo
473
i
19
L
486
3
2
U
3
16
B
521
2
4
3
M
522
2
9
5
U
i
ii
B
523
2
F
Shimbori Kuwajiro
lor
i
6
8
U
22
B
102
i
1
10
F
174
i
2
8
U
180
n
/
8
H
184
i
i
25
U
12
B
185
5
8
U
24
B
394
1
i
8
L
9
B
395
i
29
U
3
B
Shimbori Tomojird
256
i
i
22
L
»7
B
258
6
17
L
3
B
294
6
18
F
296
2
5
24
U
2
5
B
345
i
*2
27
F
346
i
6
23
H
Shimbori Suyejiro
325
i
4
4
U
1
23
B
326
2
4
21
U
2
7
B
327
8
2
U
5
B
328
i
5
22
U
2
B
329
i
1
14
F
simmons & wigmore : land tenure & local institutions. 261
Lot
Area
Kind
[Name of Owner
Se
Bu
of
No.
Tan
Land
Kawashima Ginjiro
49
9
18
F
51
i
i
52
2
2
7
U
2
10
B
53
2
13
U
54
i
3
10
»»
24
B
55
6
10
F
56
6
16
H
12
B
57
8
10
F
Masuda Tatsunosuke
386
i
5
25
L
19
B
Ninomiya KamejirO
408
2
6
L
4
B
410
4
19
L
7
B
Okata Isuke
40
i
2
15
F
41
5
2
22
U
25
B
62
8
15
F
71
2
3
21
U
3
29
B
155
i
6
F
156
1
2
12
H
Okata Kunigord
42
2
20
U
25
B
43
i
5
U
58
i
8
n
i
2
B
59 ,
i
6
ii
F
60
i
9
21
U
*
24
B
152
9
6
U
13
B
158
7
8
H
262 simmons & wigmore : land tenure & local institutions.
Name of Owner
Lot
No.
Tan
Area
Se
Bu
Kind
of
Land
17
2
10
U
87
I
i
7
if
4
2
B
88
5
6
U
2
27
B
89
I
6
3
U
5
24
B
90
2
2
6
U
6
27
B
91
4
F
92
i
12
ft
93
2
4
3
U
6
13
B
94
2
6
F
95
2
2
21
U
2
24
B
96
i
7
3
U
97
x
9
5
l>
107
i
9
F
108
i
8
ft
109
i
4
17
ft
110
2
8
tt
iii
i
i
2
H
112
2
5
2
167
2
3
U
3
16
B
168
i
7
U
26
B
169
6
13
U
i
B
170
8
19
U
2
27
B
171
2
i
14
U
i
21
B
186
i
3
IS
U
4
9
B
187
5
10
U
188
i
5
2
tt
i
17
B
189
i
2
F
190
i
4
tt
Otani Sasuke
simmons & wigmore; land tenure & local institutions. 263
Name of Owner
Otani Sasuke
Lot
No.
Area
Kind
of
Land
Tan
Se
Bu
191
2
2
15
H
12
B
iga
5
18
F
193
4
20
194
i
4
J3
»»
195
i
6
6
»»
196
1
4
3
197
5
10
»»
200
i
8
19
U
4
i5
B
201
9
18
U
2
9
B
202
2
25
F
203
i
2
16
U
3
25
B
2og
9
19
H
244
i
4
20
F
248
2
9
It
263
9
22
L
12
B
264
7
29
L
265
8
7
»♦
14
B
266
8
24
L
6
B
271
8
25
L
20
B
272
2
14
L
273
i
3
10
» »
14
B
276
i
25
L
6
B
277
i
8
L
16
B
279
5
27
L
280
4
5
2
B
281
5
27
L
16
B
295
12
F
309
8
10
U
264 simmons & wigmore : land tenure & local institutions.
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Bh
Otani Sasuke
3
5
B
310
8
23
U
2
25
B
348.1
3
F
348.2
2
6
396
i
4
L
5
B
397
i
16
U
8
B
398
6
16
L
8
B
428
i
3
24
L
2
B
429
1 ■
5
12
L
7
B
443
2
2
14
U
5
23
B
Otani KijurO
282
3
27
L
10
B
283
i
7
4
U
11
B
284
i
7
29
U
2
9
B
285
1
2
F
286
i
i
22
H
287
i
i
U
22
B
288
4
15
F
289.1
n
289.2
7
19
u
26
B
Shimbori Suyejiro
333
i
12
F
334
5
19
335
7
9
u
i
i
B
340
i
5
21
F
341
1
4
H
H
342
2
i
F
simmons & wigmore : land tenure & local institutions. 265
Name of Owner
Lot
no.
Tan
Area
Se
Bh
Kind
of
Land
shitnbori chuyemon
409
3
' 10
U
411
7
16
L
7
B
336
9
18
U
i
20
B
337
5
8
U
i
10
B
338
8
10
H
24
B
339
4
24
F
343
2
5
U
6
23
B
344
i
7
F
347
2
i
18
»♦
shimbori juroyemon
2
2
3
u
16
F
18
2
i
ii
u
19
2
2
27
,,
isi
1
3
2
h
182
6
27
u
183
2
7
13
n
3
20
B
207
8
18
u
i
14
B
208
5
20
F
270
7
2
L
shimidzu hatsugoro
11
8
22
h
13
2
5
5
u
14
2
5
17
shiono kamejird
30
8
6
F
31
2
i
21
u
32
i
5
22
m
5
29
B
•
33
8
i
F
215
i
i
26
h
216
2
9
8
U
i
6
B
217
i
9
8
u
2
17
B
266 simmons & wigmore : land tenure & local institutions.
I.OT
Area
Kind
Name of Owner
No.
Bu
of
Tan
Se
Land
Shiono Sakichi
I
2
M
F
3
I
8
4
U
4
2
2
I
3
10
B
5
I
4
25
F
6
i
2
17
»»
213
2
1
x6
U
214
6
7
tt
118
7
27
It
2ig
7
II
if
220
X
7
28
H
221
4
15
F
222
3
3
II
U
4
27
B
223
3
8
13
U
5
12
B
224
I
8
7
F
227
2
5
18
U
8
6
B
229
4
I
U
I
20
B
250
9
7
L
10
B
251
I
3
I
L
19
B
253
I
4
13
L
7
B
254
r
3
9
L
21
B
255
9
22
L
•
10
B
419
I
8
II
L
25
B
Shiono MagojirO
7
8
4
H
8
2
8
16
U
I
18
B
206
I
5
U
423
8
11
L
14
B
simmons & wigmore; land tenure & local institutions. 267
Name of Owner
Lot
No.
Tan
Area
Se
Bu
Kind
of
Land
Shiono Toniojiro
204
2
15
U
2
24
B
228
2
3
4
U
2
2
B
229
i
i
20
F
230
i
7
29
H
231
2
6
15
U
3
10
B
245
i
5
10
U
2
23
B
422
6
20
L
15
B
Shiono ShingoiO
27s
9
13
L
10
B
Shiono Kametar5
392
"i
9
L
7
B
Shiono MagojirO
559
3
5
U
i
24
B
560
9
17
F
561
i
9
16
U
i
14
B
564
i
4
12
F
Shiono ShintarO
205
9
id
F
211
5
20
It
212
7
H
225
2
6
15
U
226
3
3
18
400
1
3
L
6
"b
Takahashi Yasohachi
82
i
3
ii
U
i
ii
b
•
85
6
20
u
86
5
5
H
98
2
i
23
U
99
i
5
7
18
. b
268 SIMMONS & WIGMORE: LAND TENURE & LOCAL INSTITUTIONS.
Lot
Area
Kind
Name of Owner
of
No.
Tan
Bu
Land
Takahashi Yasohachi
100
4
5
14
U
i
3
B
103
5
28
F
104
I
2
7
H
105
2
3
14
F
106
I
2
22
«»
257
9
13
L
7
B
259
7
17
L
II
B
Takahashi Shinyemon
121
I
6
28
U
24
B
290
I
8
5
U
I
17
B
368
I
5
17
U
I
25
B
369
2
6
25
U
371
2
8
12
13
B
372
2
5
U
8
B
373
I
8
6
H
374
I
2
9
F
8
B
507.
i
2
21
F
508
8
23
509
i
2
9
Takahashi Vuzo
292
i
i
12
U
s
21
B
.
350
i
4
4
U
i
2
B
351
i
8
25
U
i
17
B
356
2
7
24
U
4
19
B
382
2
27
F
383
i
2
7
H
i
3
B
384
3
23
F
465
4
17
It
SIMMONS & WIOMORE: LAND TENURE & LOCAL INSTITUTIONS. 269
Name of Owner
Lot
No.
Area
Kind
of
Land
Tan
Se
Takahashi Yuzo
470
2
8
U
12
U
471
2
2
12
U
4
27
13
497
2
6
U
4
26
B
503
2
5
3
F
Takahashi Tetsugord
352
1
7
14
U
27
B
353
i
7
18
U
23
B
354
i
6
22
U
2
25
B
355
i
4
20
F
376
i
6
) )
377
i
3
27
378
i
9
3
»1
379
i
3
24
H
24
B
380
4
13
F
381
4
29
»»
5'7
i
2
21
jt
518
9
25
Umehara IwagorO
401
i
2
14
L
3
B
Umehara Iwajiro
393
5
10
L
8
B
440
3
5
5
U
i
B
441
1
28
L
442
i
5
12
U
2
24
B
444
3
21
F
•
*445
8
25
G
455
3
18
F
456
2
6
8
U
459
2
2
8
"
* With 13 Others.
270 simmons & wigmore : land tenure & local institutions.
Lot
Area
Kind
Name of Owner
Bu
of
No.
Tan
Se
Land
Uniehara Iwajiro
25
B
460
i
8
25
H
461
9
4
U
i
21
B
491
2
9
U
i
20
B
539
4
i
F
540
7
9
U
i
21
B
Umehara Sagoyemon
451
3
5
U
5
4
B
452
3
i
4
U
4
16
B
466
9
5
F
467
6
24
H
468
i
4
5
U
469
5
24
»»
Umehara Kisuke
439
2
i
6
U
i
24
B
462
9
24
F
463
i
3
13
H
464
i
8
F
476
5
3
5
U
7
8
B
477
i
3
F
Yokugawa Buvtmon
375
9
3
F
Voneda
210
2
• 3
16
F
Voshida Tokuyemon
70
3
i
8
U
2
3
B
140
i
8
20
F
141
5
22
H
427
i
3
15
L
8
B
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"L
TEAN8ACTI0NS
OF
THE ASIATIC SOCIETY
OF JAPAN.
VOL. XX; SOPFLEMENT.
CONTENTS:
Materials for the Study of Private Law in Old Japan: Part I.
Edited by John Henry Wiojiore.
Yokoh.yma, Shanghai, Hongkong & Singapore : Kelly & Walsh, L'd.
Tokyo : Z. P. M.'.roya & Co., L'd.
London : Trubnbr & Co.—Paris : Ernest Lbrodx.
Leipzig & Berlin : K. F. Koehler's Antiquarium.
DECEMBER, 1892.
vTeiklejohn & Co., Printers, No 49, Yokohama.
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
EDITED, WITH NOTES AND AN INTEODUCTION,
t
BY
JOHN HENRY WIGMORE.
PUBLISHED BY
THE ASIATIC SOCIETY OF JAPAN^
TOKYO.
« DECEMBER, 1892.
MATERIALS FOR THE STUDY OF PRIVATE LAW
IN OLD JAPAN.
PART I.-INTRODUCTION.
PART II.-CONTRACT: CIVIL CUSTOMS.
PART III.-CONTRACT: LEGAL PRECEDENTS.
Section I: Money Loans ; Letting and Hibing.
Section II: Sade.
(In preparation.)
Section III: Deposit, Pledge.
(In preparation.)
PART IV.-CONTRACT: COMMERCIAL CUSTOMS.
(In preparation.)
PART V.-PROPERTY: CIVIL CUSTOMS.
PARTVI.-PROPERTY: LEGAL PRECEDENTS.
(In preparation.)
PARTVII.-PERSONS: CIVIL CUSTOMS.
(In preparation.)
PARTVIII.-PERSONS: LEGAL PRECEDENTS.
(In preparation^)
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
PART I.
INTKODUCTION.
CONTENTS.
page.
I.—Report by the Editor to the Council of the
Asiatic Society of Japan 1
II.—Introductory Survey of Administeati\t: and Com¬
mercial Institutions in Old Japan 24
1.—Feudal System 25
2.—Local Administration 41
3.—Religious Organization 62
4.—Administration of Justice 71
5.—Taxation 94
6.—Commercial Houses 126
7.—Guilds 148
8.—Transportation 158
9.—Money, Banks, and Commercial Paper 164
10.—Rice Trade 182
Appendix.
1.—Calendar i
2.—Weights and Measures v
3.—List of Magistrates xiii
ERRATA.
Page 26, line 2, for " first read " fifth".
" 26, " 6, " "8", read "9".
" 64, " 20, " " utentels ", read " utensils ".
" 72, " 2 from bottom, for " entirety, butread
"entirety. But".
" 115, line 5 from bottom, for "former", read "first".
" 117, " 15, for " 35 ", read " 850 ".
■" 119, lines 5-16, for " village ", in line 9, read " vil¬
lages ", and read the figures as foUows:
"a) One-tbird by the feudal lord 8110
h) One-tbird by the I'esidcnts of the castle-town
(Sendai) 8110
Of the remaining third :
e) One-tbird by the residents of the villages in
Kokubun 2708
Of the remainder (5407):
d) Public labor by the residents of demesne lands 2886
e) Public labor by the residents of stipendiary
lands 2170
/) Irrigation labor 901
24880"
■" 131, line 8 , for " master," read " master's."
■" 171, " 18, " " Kanda," read " Nibonbasbi."
" v, App., line 8, for " Its ", read " The ".
Comparative legal science teaches us how nations having a
common origin may develop independently their original inheritance
of legal ideas, * * and, on the other hand, how the legal systems of
nations having no association in history may advance along common
lines of development. * • • Investigations carried on in the
region of a single system serve to smooth the path for the advent of
comparative legal science. Each enlargement of our view, each
addition to our available material, is a gain of the greatest moment
for that science.
Beenhoft, in Zeittchr.f. vergleieh. RechtswUs., 1878,
I.
EEPORT
BY THE EDITOB
TO THE COUNCIL OF
THE ASIATIC SOCIETY OF JAPAN.
Tokyo, November, 1892.
To the Council of the Asiatic Society of Japan:
It is now nearly two years since you passed a vote
appropriating a sum of money to aid in the translation
of certain original materials bearing on the study of
private law under the Tokugawa Shogunate. As was
natural with a subsidized infant industry, the progress
of the work thus authorized was at first slow and tentative,
but in the present year it has been more rapid and
more fruitful, and the close of the summer sees four
volumes (including the present one) ready and issuing
from the printer's hands, with the prospect ol the remainder
being ready in the near future. It has become my duty
to render to the Asiatic Society, through yourselves,
some account of^the nature of the material thus made
public by means of your assistance and of the methods
employed in the translation and edition.
Vol. XX. Slip. Pt. I.—1.
2
PRIVATE LAW IN OLD JAPAN :
When I first came to Japan, three years ago, I was
anticipating with professional interest the opportunity
of making some acquaintance with the law of Japan,—
not the newly imported Codes, fresh from foreign
workshops, but the indigenous law, the law of the
people, representing the sum of the ideas of justice
which had grown up amid this unique civilization of
the East. If it is indeed a civilization in the fullest sense—
and who that has lived here can doubt it?—there must
have been produced, one argues, certain ideas of
legal right and obligation, certain notions of justice
between man and man, which could hardly fail,
in a nation where literature stood as high in favor,
to be preserved in writing. My expectations were almost
completely disappointed. There already existed in a
foreign tongue, it is true, more or less material of two
sorts,—ancient laws and criminal laws. Mr. Tarring's
translation of the land provisions of the old Taiho
(701-703) codei; Mr. Longford's translation of the old
penal codes revamped by the new Government in
1871-2 2; Dr. Michaelis'essay on Japanese criminal law
(dealing chiefly with the ancient law) an essay or two on
adoption and marriage; and three translations of the
document, half political, half legal, known as the Hundred
Laws of lyeyasu;—these, I believe, with a single
exception, summarize the whole of the purely legal material
then brought to light. That exception was the work of
Herr Otto Rudorff, who, in his " Legal Administration under
the Tokugawa"^ and " Collection ^f Tokugawa Laws,"®
1. Trans. Asiat. Soc. Jap., VIII, 2. 2. lb., V, 2. 3. Mittheil. d.
D. Gesells. Ostasiens, Heft 38. 4. lb., Heft 38. 5. Supplement-
Heft, following No. 40; published April, 1889. But since the time
above referred to has appeared Dr. H. Weipert's scholarly essay on
" Japanese Family and Succession Law," (Mittheil. d. D. Gesells.
Ostasiens, Heft 41). It is founded on the best sources and leaves
nothing l*® desired in its treatment of that subject.
INTKODUCTION.
3
published the first systematic essay and the first considerable
body of original material dealing with the civil law of
the Tokugawa epoch,—the epoch representing the best
fruits of Japanese national development. To the material
of that essay there is little to be added except in the way
ot detail. But the " Collection of Tokugawa Laws " is
for two reasons to be regarded as only a beginning. In
the first place, a large part of it deals with purely
■criminal law, and this is perhaps the least interesting of the
material to be sought. The criminal law represents largely
the notions of political expediency held by the ruling class,
not the notions of justice between man and man, of civil
rights and obligations, which form the bulk of a national
jurisprudence. It ofi'ers the least opportunity for systematic
and detailed development by judges and commentators.
The people struggle against it and endeavor to evade
it, instead, as in the civil law, of making it,—that is, of
furnishing in thei'- usages the material for it and of
embodying iii it the sum of all the practices sanctioned
■by the family life and commercial life of the nation.
For this reason, too, it persists less and is more liable
to change with a change of government. Finally, it is
least profitable in a comparison of the systems of juris¬
prudence of other countries and other ages. How many
individuals to-day care about the Eoman criminal law, for
the hundreds and thousands who study the Roman civil
law? In proportion as a higher degree of commercial
and social development is reached, the body of rules
representing the reciprocal rights and obligations of men
(whether penalties are attached or not, and whether they
are known as civil laws or not) increases vastly in propor¬
tion to the body of purely penal law. It is for this reason
that we cannot feel satisfied until we have attained a
knowledge of the iivil or private law of old Japan,—that is,
of the Japanese nation as it was before the surrender to
Occidental influences in the seventies. We shall then have
4
PEIVATK LAW IN OLD JAPAN ;
found tRe kernel of the legal system, whatever it may
have been.
The second reason why we must wish for more than
Herr EudorfTs " Collection " contains is that its material
is almost purely statutory. It is true that many of tha
laws there cited are preceded by a paragraph reciting the
" former custom." But this, it will easily be seen, means
usually, if not always, the former regulation or precedent-
obtaining in the statutes or in the Court practice, and
not the popular usage. It is hardly necessary to point,
out that in a country so conservative and law-abiding as
Japan (for it may easily be called one of the most law-abiding
countries in the civilized world) the force of custom must be
enormous, and that the sentiments of legaljustice obtaining-
in family and commercial life may be taken (if we consider
old Japan only) as in fact equivalent to the law on those
subjects. In other words, the domain of customary law
was extensive. Two somewhat peculiar facts, moreover,,
combine to render less fruitful the search for the records
of these customs in statutory law or even in judicial
decisions, much less in literature. On the one hand the
strong sentiment of the people toward compromise,
arbiration, private settlement—an entirely natural charac¬
teristic of the people themselves, but constantly fostered
by the Government,—tended to keep the great majority
of disputes out of court and diminished exceedingly the
need for statutory regulation of civil rights and obligations.
On the other hand, the contempt which the educated
classes felt for the lower classes—the twenty or thirty
millions of farmers, artisans, and merchants, who made
up fifteen-sixteenths of the nation—was such that any
literary record of the observances of those below them
was the last thing to be expected. We may judge of
the fixity of this characteristic by the fact that the
original volumes which formed Parts 11, IV, V, and VII
of the ensuing Materials were in 1890 (as repeated
INTKODUCTION.
5
inquiries proved) unknown to one of the greatest
scholars (of the old generation) of Japanese law, although
one collection had heen for ten years published in full
by the Government, aud an abstract of the other had heen
twelve years published and was known at the University
where this estimable gentleman taught. In the study
of Imperial ordinances and feudal codes he had taken a
foremost part; but the customary law of the people,
relating to marriage, adoption, inheritance, mortgages,
tenancy, deposits, brokerage, commercial paper, and
the like, was for him no part of legal science,
and he had very naturally never looked for any material
of the sort.
I have said that the " Collection of Tokugawa Laws "
supplies us with very little material of this sort.
Furthermore, it contains few judicial decisions on the
innumerable topics of private right and duty. In the
fifth book {Reigaki) alone, forming one-sixth of the volume,
are found a few. Yet the material of this sort in
existence is voluminous. Of the ensuing Parts dealing
with Legal Precedents, one-third or more is made up of
cases at the bar of the Court; and this portion is but
a selected fragment of the records still buried in the
archives of the Department of Justice.
In spite of all that Herr Kudorff had accomplished,
it was apparent that there still remained the large
mass of customary law, if it could be found anywhere
recorded, and the whole body of judicial decisions,
and that from these alone could we gather any connected
and thorough knowledge of the Japanese legal system,
whatever it was. But what Herr Rudorff could
not find was certainly not to be apparent to the
passer-by; and so it proved. My curiosity led me
to spend more or less time in the search; but
without result.* Two of the best of the older scholars,
who furnished plentiful references on the feudal codes and
6
PRIVATE LAW IN OLD JAPAN :
the ancient laws, were silent on the sources I wished.
Among the younger generation the search was still less
hopeful. Probably the last thing that the ordinary
Japanese law student thinks of is records of the legal
ideas indigenous to his country. He dismisses them all,,
as did a well-known law lecturer of the younger generation,,
in a remark made last spring, as " a laughing stock,"
and it is impossible to stimulate an interest in them. It is
to a very few scholars like Kaneko, Suzuki, Miyazaki, and
Matsuzaki, that Japan must look to rescue her inheritance
from the oblivion into which the mental revolution of the
last two decades has plunged it. At last was given me a
small black printed book of some 500 pages, as probably
containing the desired material. It bore the title " Collection
of Civil Customs " {Minji Kwanrei Ruisliu), and was an abridg¬
ment of the volume which forms the original of Parts II, V,,
and VII of these Materifils. It bore the date Meiji 10, 5th
month (May, 1877); the Department of Justice was given
as the publishing office, and Mr. Ikuta Sei, an official of
the Department, assisted by Mr. Nagamori, a subordinate
judge, as the compiler. The contents proved to be exactly
what was sought,—a collection of customary law made by
inquiries among the people themselves. But there were
indications in the volume that the whole of the material
was not there, and accordingly a visit was
made to the Department of Justice, and permission
requested to see the original. The compilers were no
longer in their old positions, and the new generation of
officials did not appear to be able to discover immediately
the desired volumes. In the <^urse of the search a
number of large manuscript volumes were brought out
which bore on the outer cover a title similar to that of
the printed book before mentioned, Tokuyatva Jidai Minji
Kwanrei Paiishu (" Collection of Civil Customs of the
Tokugawa Era "). But this title was misleading; for on
the title-page appeared the words Tokugawa Saiban Bei
INTRODUCTION.
7
(" Tokugawa Legal Precedents "), and the contents proved
to be nothing less than a collection of precedents (statutes,
legal decisions, memoranda, etc.), in some 10 volumes,
covering the whole field of private law. This is the
material which now forms Parts III, VI, and YIII of
the present collection. Subsequently the original of the
little printed book was found; and at the same time
the " Collection of Commercial Customs " [Shoji Kwanrei
Ruishu), from which Part IV is made.
I have reluctantly intruded these details of personal
experience, because your Society has some right to know
the circumstances bearing on the relation which these
materials have to our existing knowledge of Japanese
law; and also because the story indicates, better than
any general statements could, the state of knowledge
of the indigenous law by Japanese scholars, and fur¬
nishes the reason why foreigners may presume to enter
paths which native scholars do not choose to tread, and
may attempt the edition of a collection which merits for its
elucidation all the fullness of experience and insight that
only a native of the country can possess in the right degree.
It was by a pure accident that this collection of legal
precedents was stumbled upon—the most valuable of all
these materials, the original documents emanating from
the very chambers of justice of the old era, the direct
records furnished by the judges and litigants themselves.
So little attention "have they received that it may be
doubted whether, outside the officials of the Department
1. I had not gone to the Department before, because, though
none can exceed in courtesy the officials of the Department, red tape
makes access to the shelves impossible and it was necessary to know
beforehand exactly the material desired, and because the negative
replies of certain learned officials, and above aU the positive assur¬
ances of the leading authority on the law of Old Japan, whom I had
consulted especially for bibliographical information, had taken away
every inducement to seek in that quarter.
8
PRIVATE LAW IN OLD JAPAN :
Library, any Japanese scholar Las consulted this collection,
except Mr. Kaneko Kentaro, Chief Secretary of the
House of Peers,—who lately found and used it in
preparing his admirable monograph on " The Legal System
of Japan." 1 The abridged printed copy of the "Collection
of Civil Customs" was at one time used to some extent
in a course at the Imperial University; but it is no longer
employed and I have not been able to find a second copy.^
The rest of this tedious story is already known to
you. The materials were laid before the members of this
Council, and they were asked whether they could see their
way towards aiding in its translation. They responded
hy making an appropriation sufiicient to cover a sub¬
stantial part of the translation expenses, and they have
already (November, 1892) published Parts II, V, and
a portion of Part HI. It remains to describe more
particularly the original collections aud the method
followed in editing them.
The " Collection of Civil Customs " apparently existed
in three forms,—first, the mass of reports sent in by
the investigators appointed by the Department; second,
a connected arrangement of these reports, re-written
and sorted, in a single manuscript volume of about
1000 pages; third, the printed abridgment already
spoken of. The first I have not been able to see : the
second and third have been used in this edition. The
undertaking clearly owed its inception to Count Oki Takato,
the veteran Minister of Justice, under whose guidance were
made most of the efforts of the seventies to reorganize the
Japanese legal system. During •that decade the work
1. An address delivered in Berne at the meeting of the Institute
of International Law, September, 1892. I have been told that the
Kevising Committee for the Civil Code consulted the collection in
reviewing the work of M. Boissonade ; but I have little faith in the
statement. 2. Dr. Weipert has founded his essay (on Family and
Succession Law) in part on the abridged edition.
INTEODUCTION.
9
of renovation was concentrated on the organization of
Courts and the preparation of Codes of Crimes and
Criminal Procedure. These two Codes were ready by
the end of the decade, and as that time approached,
thought was taken of the Civil Code and the Commercial
Code to come, and measures were sagaciously begun
for bringing the new Codes into harmony with the institu¬
tions of the country. A number of Commissioners were
appointed (some twenty in all), forming a Bureau under
the direction of Mr. Ikuta, above-mentioned, assisted
by Mr. Nagamori. This was about 1875. These
commissioners were assigned to different districts, and
travelled about the country, consulting the various local
officials (most of whom were the headmen who had
held the same position under the Shogunate), and securing
such manuscript and printed records as bore on their
work. The latter sort of material was slender, for much
of it had been destroyed or lost in the unsettled times
of the Restoration. The headmen and other worthies
were usually ready to tell all they knew, though many
evaded or refused the requests for information. Some
three hundred are recorded as the chief purveyors of infor¬
mation, though doubtless many more were consulted. The
results were returned to the Department, and the chief
of the Bureau gave them literary form. Of the methods
followed, the preface says: "There was much difficulty
in collecting these customs. In many places the commis¬
sioners stayed not more than 10 days, no information
being available. It was not always possible to obtain
details, nor to learn whether a given custom was true
of a whole region. Inferences on this subject were
made in their discretion. They have attempted to
record the custom as it existed at the time; but
where it has been changed by a regulation of the present
Government, tffis has been noticed. On the whole
the reports represent the old customs of the Shogunate as
10
PRIVATE LAW IN OLD JAPAN I
they coutinued unchanged in the early part of the present
regime. The customs vary greatly. Wherever the same
custom prevails in neighboring places we have recorded
it only once, taking that region where it is preserved in
most detail. The whole country was not covered. Only
two districts of the Hokkaido were visited,' and the
Loo Choo Islands were not taken at all. In general
those localities were most sought where the
population was greatest and hence the customs were
more likely to be stable and definite." The task
(perhaps it is ungrateful to say it) might have
been better done, so far as concerns the localizing of
the customs. Each chapter, as will be seen, begins
with a general statement, and detailed variations follow.
It is to be presumed that where nothing is said under
the head of a given district, the customs are to be
taken as answering to the previous general statement.
But the latter is usually very summary and incomplete;
and the constant characteristic is that on a point which
is for one district fully explained there is in the other
paragraphs no record one way or another.
After the compression of these reports into the
single manuscript volume, there was evidently another
redaction when the printed abridgment was prepared.
First, the chapters were subdivided into a larger number
of sections, and topics were differentiated. Long
paragraphs were in the same way subdivided into shorter
ones and rearranged. Second, some new material was
inserted, but no considerable amount. Third, about
one-half of the material, perhaps more, was omitted,—on
what plan it is impossible to discover, for no rule appears
to have been followed. Fourth, the order of provinces and
districts was rearranged in a manner which the editor
1. Because the larger part was until recently occupied by Ainos
only.
INTKODUCTION.
11
and the translators at least cannot bring tbemselves-
to forgive; for in the manuscript volume the provinces are
arranged in the well-known and traditional order ^
which the student of Japanese institutions learns as the
sailor learns to box the compass, and this order was turned
into an arbitrary and labyrinthine sequence. Constant
comparison of the printed and manuscript copies was
necessary, and this subversion of the original order made
the identification of passages sometimes impossible, beside
doubling the labor of preparing for the press. Last, some
changes in the text were probably made by Mr. Ikuta's hand.
In such cases the text of the printed copy has here been
followed.
The general arrangement of the material has been
preserved. The book was divided according to the modified
French system, with which M. Boissonade has probably
familiarized the officials, into: I. Persons, II. Property, III.
Contract. The chapter-titles and subdivisions have been
left as they were, except in one instance. The sectional
subdivision of the printed edition has been followed, except
in the few cases where that of the manuscript edition is better.
In the chapter on " Sundry Eights Connected with Land "
the paragraphs, as subdivided in the printed edition, were
not always placed under the proper heading, and considerable
transposition was necessary. These, with a few minor
instances, were the only changes made in the form of the
material.
The " Collection of Legal Precedents " was apparently
a part of the same undertaking of Count Oki to collect
material to serve in the framing of a Civil and a Commercial
Code. The preface is without date, and little appears to
be known of the work in the Department of Justice.
The collection, as originally planned, was to be in four
parts; I. Persons, II. Personalty, III. Kealty, IV. Civil
1. See Eein, " Japan," vol. I, p. 8.
12 private law in old japan ;
Procedure, V. Criminal Law. The last part is without the
plan of this series. The fourth part was not in existence
when the work of translation was hegun and was only
recently completed. It is hoped that this part may subse¬
quently he included in this series.
The first four parts are divided into chapters and
sections as follows:
I. Persons.
Ch. I. Marriage.
Sect. 1. Marriage.
" 2. Divorce.!
" 3. Second Marriage.
" 4. Sundries.
Ch. III. Family Headship.
Sect. 1. Succession to the
Headship.
" 2. Partition of the
Estate.
" 8. Sundries.
Ch. II. Adoption.
Sect. 1. Sons.
" 2. Daughters.
" 3. Divorce.!
" 4. Second Adop¬
tion.
" 5. Sundries.
Ch. IV. Loss of Domicile.
Sect. 1. Absconding.
" 2. Sundries.
Ch. V. Abandonment of
Children.
Ch. VI. Hiring of Services.
Sect. 1. Hired persons.
" 2. Sureties for hired
persons.
Ch. Vn. Domicile.
Sect. 1. Entry in the Be-
gistry.
" 2. Removal from the
* Registry.
" 3. Outcasts.
" 4. Sundries.
1. Ri-yen; the same term being used for the severance of
marital and of filial relations.
introduction.
13
II. Personalty.
Ch. I. Letting and Hiring.
Sect. 1. Money.
" 2. Chattels.
" 8. Interest.
" 4. Contracts for Yearly
and Monthly Instalments.
" 5. Joint Borrowing.
" 6. Arrears of Judg¬
ment Instalments.
" 7. Private Settlement.
" 8. Sundries.
Ch. n. Sales.
Sect. 1. Sales on Credit.
" 2. Grain.
" 8. Arrears.
" 4. Undertakings.^
5. Animals.
6. Sundry chattels.
7. Sundries.
Ch. IV. Grant.
Sect. 1. Bequest.
" 2. Sundries.
Ch. III. Deposit.
Sect. 1. Money.
" 2. Eice.
" 3. Sundry articles.
" 4. Security-money.
" 5. Sundries.
Ch. V. Pledge and Hypothec. Ch. VI. Losing and Finding-
Sect. 1. Lost things.
" 2. Abandoned
things.
" 3. Flotsam.
" 4. Sundries.
Sect. 1. Houses.
" 2. Foreclosure,
" 3. Temple articles.
" 4. Sundries.
Ch. VII. Theft and Eobbery.
Sect. 1. Theft and robbery.
" 2. Sundries.
III. Eealty.
Ch. I. Letting and Hiring. Ch. II. Sale.
Sect. 1. Buildings. Sect. 1. Buildings.
" 2. Land. " 2. Cultivated land.
1. That is, in the same sense that the word " contractor " is used,
with reference to large enterprises.
PRIVATE LAW IN OLD JAPAN :
14
€h. III. Grant.
Sect. 1. Buildings.
" 2. Cultivated land.
Ch. V. Uncultivated Land.
Sect. 1. Hillsides.
" 2. Meadows.
Ch. IV. Pledge and Hy¬
pothec.
Sect. 1. Buildings.
" 2. Cultivated land.
" 3. Renting of Mort¬
gaged land.
Ch. VI. Drainage and Ir¬
rigation.
Sect. 1. Drainage and Ir¬
rigation.
" 2. Sundries.
Ch. Vm. Ways.
Sect. 1. Highways.
" 2. Sundries.
Ch. IX. Bridges.
Ch. VII. Dikes.
Sect. 1. Dikes.
" 2. Reservoirs.
" 2. Sundries.
Ch. X. Sea and River. Ch. XI. Boundaries.
Sect. 1. Fishing and hunting. Sect. 1. Counties.
" 2. Sea-weed gathering. " 2. Villages.
" 8. Ports open to foreign " B. Residence land.
trade. " 4. Cultivated land.
" 4. River-bauks. " 5. Forest laud.
" 5. Ferries. " 6. Avulsion.
'♦ 6. Water-mills.
Ch. XII. Temples.
Sect. 1. Buddhist.
" 2. Shinto.
Ch. XIV. Occupation.
Sect. 1. Reclamation of
waste land.
" 2. Erection of new
Buildings.
" 8. Sundries.
Ch. XIII. Post-towns and
markets.
Sect. 1. Post-towns.
" 2. Markets.
Ch. XV. Execution in Bank¬
ruptcy.
Ch. XVI. Confiscation and
Forfeiture.
intkoduction.
15
IV. Procedure.
Ch. I. Bringing a Suit.
Sect. 1. Indorsing the Complaint.
" 2. Parties in different jurisdictions.
■Ch. II. What Claims are not Actionable.
Sect. 1. In General.
" 2. Box actions.1
" 3. Actions brought a second time or brought to the
wrong Court.
" 4. Actions by members of a lottery-club for shares
due.
" 5. Actions on instruments of grant.
" 6. Actions by relatives.
" 7. Actions where no proofs are offered.
Ch. III. Inspection of land in dispute.
Ch. IV. Trial and Judgment.
Sect. 1. Distinction between Principal and Money Actions.
" 2. Proofs.
" 3. Judgment.
" 4. New trial.
" 5. Instrument of Settlement.2
" 6. Sundries.
Ch. V. Costs of Suit.
Ch. VI. Actions by Temples.
Cb. VII. Representatives.®
Cb. VIII. Sureties.
Cb. IX. Vouchers.^
But let no one suppose that this table of contents may
be freely used as a guide to the cases and statutes on the
different topics. In the second and third parts especially,
1. Where a complaint was dropped into the box hung for the
purpose outside the Court. 2. By the parties, stating the terms of
the judgment or compromise. 3. That is, those who appear for
others in Court. 4. The local officials who were required to accomp¬
any the parties to Court.
16
PRIVATE LAW IN OLD JAPAN;
cases are found grouped together which have a superficial
likeness only. Under the head of Money Loaus, for
instance, will be found a number of cases which belong
properly under the head of Succession. The above
grouping is (perhaps necessarily) a rough one only.
The order of the precedents, also, is a matter in which
perfection was not reached. The plan of the compilers
(as they state in their brief preface) was to place in
each section, first, the statutes and regulations, in order
of time; next, the decisions upon actions and Court
memoranda. But after these groups the documents
bearing no date are placed, and, as it has been
possible for the Editor to fix the dates in many cases,
these documents appear out of their natural order.
Sometimes, too, a further subdivision by topics was made
by the compilers without marking a new section. It has
seemed impossible to disturb the order of the manuscript,
however, except in one or two urgent cases. Where the
confusion is likely to mislead, as in the first chapter
of Part III in this series, a chronological list of the
cases has been appended. The " Collection of Legal
Precedents " and the " Collection of Civil Customs"
are not divided under similar titles; but the
groupings "Persons," "Contract," "Property," and
"Persons," ".Personalty," "Realty," correspond in the
rough; and the former has been chosen as the basis
of the arrangement in this series. Of the above parts of
the " Collection of Legal Precedents," the first corresponds
to Part VIII of this series, the second to Part III, and
the third to Part VI. The fourth pfrt may be added
as Part IX, if it should be translated.
The compilation of precedents was made from the
manuscript records stored away in the Department of
Justice. These number some thousands of volumes (of
Japanese size), and they include all possible kinds of legal
precedents,—statutes, town proclamations, general instruc¬
tions to judges from the Council of State, decisions
INTRODUCTION.
17
of the Supreme Tribunal, consultations between judges
of that Tribunal, replies to inquiries by provincial
magistrates and by the officials of feudal lords, regulations
of individual Courts, answers by merchants and others
to inquiries upon commercial customs, regulations of
guilds, etc. These represent the Japanese legal system,
it must be remembered, only so far as the Central
Government of the Sbogunate was actively concerned
with it; the records of the Courts of the great daimyo
still lie bidden in their provincial storehouses. The
manuscript collections now in the Department of Justice
are probably not the original papers, but records from the
original documents by clerks or other officials of the
old regime. These collections it is scarcely possible
that a foreigner will be permitted to work upon, and we
shall be obliged to defer further study of the sources
from which the present material has been collected
until something is done towards copying them in full.
The " Collection of Commercial Customs " is dated in
1883, and was a part of the same general undertaking to
prepare material for Codes. It was prepared, however,
under the auspices of the Cabinet; the Committee included
several well-known judges and bad for its President the
veteran statesman Count Terajima. But the work is a
much less satisfactory one than the other two. The
investigation seems to have been conducted by written
question and answer, and not by personal inquiry ; hence
a large number of the answers are mere negations or
professions of ignorance. But, more than this, the
questions were framed, not as in the case of the " Civil
Customs," by Japanese of the old school, who bad no
preconceptions or technical knowledge to binder them
and who went straight forward by the paths best known
to them and tbeir^ informants and asked questions in a
way which the latter clearly understood, but by some
of the younger officials trained in modern continental
Vol. XX. Sup. Pt. 1.—3.
18
PRIVATE LAW IN OLD JAPAN:
law, and full of scientific ideas and nomenclature utterly
unfamiliar to the persons interrogated. In consequence
the questions put were in great part incompre¬
hensible to those who were to answer them, and even
where they were understood, they could not be answered
on the lines required. Imagine the answers of the
average British or American man of business on being asked
what he knew of Usufruct, Accession, Urban Servitudes,
Opening a Succession, Solidary Obligation, Resolutory
Conditions, Mandate, Sequestration, etc., etc. Then
conceive the difiereut answers if one were to ask for
a description of the trade customs as to cash sales, sight
bills," overdrafts, commissions, etc. Now if we take away
the intellectual sprightliness of the Occidental mind, and
add the strongest instincts of conservatism and
tradition, we can understand how barren must
have been the results when questions of the
former class were propounded to the Japanese merchants.
The parallel is almost exact, for the modern French terms
are translated almost literally' into scientific Sinico-Japanese.
Thus, "usu-fruct," for example, becomes "yo-yeki;"
" super-ficies" becomes "c7« {land)-jo (above)-/>"cn (right)."
A good instance of the transformed legal terminology is
that of ten-sai (calamity of Heaven,—our familiar "act of
God") changed into fuka-ko-ryoku (unavoidable force).
Those acquainted with Japanese will realize the difference
between such words askari-nushi, tsuke-komi-cho, nakagai, yo-
tac/d-khi, shita-kawase-kin,—almost purely indigenous Japa¬
nese terms—which form the current mercantile expressions,
and tampo, kakaku-hosho, saimusha, kenrisha, kogo-keisen,—
artificial Sinico-Japanese expressions, coined by the code
oommittees, just as our electricians and biologists coin
"electro-dynamic," "protoplasmic," "ptomaine," and
just as meaningless to the multitude. And not merely
to the multitude, hut to the whole community. A student
of Roman law learns with surprise that the "deposit"
INTRODUCTION.
19
about which he has studied is the " hitaku" which
he has read of at the same time under his Code lecturer.
If the commissioners for the investigation of commercial
customs had gone about their work as did Mr. Ikuta
and his coadjutors, and, abstaining from trying to fit
the practices of the merchants into the frame of a
technical legal system, had allowed the merchants to
describe their customs in their own way and in their
own terminology, they would have succeeded as well as
Mr. Ikuta's commissioners did, and could afterwards have
giveu their results a scientific form. As it is, the greater
part of the answers are hardly worth publishing. There
are many portions in which the answers are invaluable,
hut they are precisely those in which the merchants, when
asked in intelligible language to tell all they knew upon
a given subject, have described their customs in their
own way. These portions have been selected for publica¬
tion, and form Part IV of this series.
In the work of translation two chief principles have
been followed; first, to place no Japanese term in the
text unless it was absolutely unavoidable; second, to
render every term as literally as possible. The former rests
on general experience in making first acquaintance with
Japanese books. The reader not familiar with the language is
disheartened when he finds confronting him a page dotted
with italics and obstructed with a dozen unpronounceable
words. His memory, too, is sorely burdened with the
unfamiliar terms, unless a foot-note is repeated in every
instance,—a price too great for the gain. Needless to say
that the original term is given, at its first occurrence,
in a foot-note, wherever it has a technical use and thus
needs recording for the sake of future investigators, or
where the literal English term is a combination of words
meaningless as a^ whole, or where some historical or
institutional significance requires to be noted. As to
literaluess of rendering, no excuse is necessary. Half
20
PRIVATE LAW IN OLD JAPAN:
the pleasure in the study of the Japanese language is the
comparison between the modes of expressing the same
thought in that tongue and in our own. There are many
difficulties, however, in the application of this principle,
especially where we have in other countries institutions
or transactions similar enough to tempt one to use the
familiar term at the expense of accuracy. The names
of offices, for instance, present particularly knotty problems.
When daikwan occurs, we at once think Of " reeve,"
"bailiff," "steward," etc., and consider which one fits
best. But none fit completely, and, with very few exceptions,
it has seemed best in all such cases to give the most literal
rendering. In the Introduction (Part I) are discussed a
few cases of more than passing interest, and this will
perhaps make up for the use of less suggestive terms,
such as "deputy" for daikwan. The word "headman"
has always been used for nanushi, shoija, and similar
terms, the original being noted where necessary. Kiini
and kori, the names for the old-time divisions of the
country, have been kept wherever they occur with the
title of a district; but iu the text kitni has sometimes
been rendered " province." The names of the kori are
protean, and in many cases the standard pronunciation
is difficult to learn. The Government map has been
followed in cases of dbubt, and the popular pronunciation
has been sought. The translators engaged upon the work
have been Mr. Hattori Masayasu, of the Department of
Justice; Mr. Kambe Torajiro; Mr. Ogimura Kinzaburo;
Mr. Tamura Iwao ; and Mr. Ushiba Tetsuo. The first was
introduced to me by the Librarian of the Department;
the third by Mr. Suzuki Kentaro, the well-known
ethnologist; and the other three gentlemen had already
become known to me through translation of other
materials. The work of Mr. Ushiba deserves special
mention. A keen interest in the subject, an assiduous
attention to detail, an excellent vocabulary, and a good
knowledge of the times of these records,—these qualities
INTRODUCTION.
21
characterized his work throughout. It was originally
intended that the work of translation shonld be solely his,
but greatly to my regret his time did not permit. The
hulk of Part II, Part III (Sectioii I), and Part V is Mr.
Ushiba's work.
The division of labor between translators and editor
has been as follows. Each translator was instructed to
make his rendering as baldly literal as possible, inserting
the Japanese words (transliterated into Roman letters) wher¬
ever the term was of the slightest possible technical
significance; for in order to secure uniformity of usage it
was indispensable that the original terms should be before
the editor. This first draft was then gone over between
editor and translator, and further reference made to the
the original, where necessary. The translators constantly
consulted various authorities in the course of their work,—
scholars like Professor Komiyama and Professor Naito, and
treatises of various sorts.^
Their first draft was then remoulded by the editor into
the form in which it now appears. The capacity of the
editor as a translator is slender enough ; for he is unacquain¬
ted with the ideographs, and his knowledge of the language
is limited to the technical legal vocabulary. But he has
endeavored personally to satisfy himself as to the equivalent
of every word or expression having any technical significance.
If it was presumptous to attempt the task under the circum-
1. The conditions of translation at present in this country are
peculiar. The only persons who can completely understand the text
of this material are a few of the older generation, (if indeed any one
of these could),—so great is the gulf fixed between the younger
generation and the feudal past of their country. On the other hand,
the younger men alone are acquainted with English. The only
method possible is to use for translation yonnger men who have
some taste for the study of the past (and these are not numerous),
and to have them consult currente calamo with the older scholars;
and this has here been done.
22
PRIVATE LAW IN OLD JAPAN :
stances, be can only plead, first, that there are not more than
five foreigners in Japan who could read these materials in the
original, and that many years must have elapsed before
any one, foreigner or Japanese, was likely to arise
who could attempt to do this work without assist¬
ance ; and, second, that he is at least only following;
iu the steps of competent workers in the same field.
Those who understand Japanese and Chinese will
know how useless it is to expect a purely literal rendering.
The nature of these languages, or rather, the modes of
thought and expression, do not permit it. They are ellipti¬
cal where we should be exact, and prolix where we should
be brief. If in some cases the thought appears unclear in
a translation, it is often because the writer himself has
not thought it worth while to be what we consider clear.
In the works here translated this feature is doubly em¬
phasized. EUipticisms and ambiguities abound in every
document. The judges and clerks took no pains to-
write understandingly ; for what they wrote was intended
usually for each other's eyes and not for the public-
Much of it all is made plain, after one has become
drenched with the ideas and expressions by familiarity
with the whole series of documents, and has learned
to know what they wish to say rather than what they
have said. But it is constantly a mere choice between
different suppositions, and even the profuse use of
brackets does not suffice to indicate all the passages
where something has been supplied. The case is not-
much better with the Parts embodying the "Collection
of Civil Customs" ; for the refactor, being of the
older generation, has allowed himself to be as elliptical
as any one could wish, and there constantly occur the
most unwarrantable ambiguities. On the whole, then, it
cannot be hoped that there are not errors of rendering.
We simply say that we have endeavored to minimize
these. Moreover, a recent lessening of facilities for
IKTEODUCTION.
23
access to the originals in the Department of Justice
has diminished the opportunities for collation of pas¬
sages.
At the present time three volumes (Part II, Part III
(Section I), and Part V) have been made ready for the
press; and though the first draft of the remaining
portions is partly ready, there will perhaps occur in
the later printed volumes some few changes of terms by
way of attempted improvement. These inconsistencies will
be unavoidable, but will be duly noted. Owing to the lack
of a sufiiciently large supply of type, not more than 100 or
120 pages have been set up at one time, and there are
hence a few inconsistencies in the use of terms which
would naturally occur where there is no opportunity to
collate several hundred pages at once. In the preparation
of the first portion of the Legal Precedents (Part III,
Section 1), where much experimentation was necessary
in the arrangement of the page, the Printer's patience
and intelligence have facilitated the work more than
can be told. If a few typographical errors occur, the
reader must remember what a feat it is, after all,
for Japanese workmen to set up a book of the sort
in a language of which they understand virtually
nothing.
For kind assistance in the explanation of difiicult
terms, especial acknowledgment is due to Mr. Saji Jitsunen,
the eminent Buddhist scholar, who has supplied information
on technical Buddhist terms ; and to Professor Komiyama
Yasusuke, the antiquarian, formerly editor of that fund
of information, the Yedo Society's Magazine. For special
courtesies in obtaining the use of books, thanks are
due to Mr. Kaneko Kentaro, Chief Secretary of the
House of Peers ; to Mr. Ideura Rikyo, formerly Private
Secretary to the Minister of Justice; and to Mr. H.
Kambara, Librartan in the Department of Justice.
II.
INTRODTJCTORY SURVEY
BY THE EDITOR
OP
ADMINISTRATIVE AND COMMERCIAL
INSTITUTIONS IN OLD JAPAN.
The purpose in this preliminary sketch is in no
sense to review or to summarize the material published in
the succeeding Parts; but merely to give a connected
account of the institutions to which constant references
occur. Space and time are economized by collecting all
these explanations in one place and by referring the
reader thereto from time to time; and a convenient
opportunity is furnished for adding certain details of the
Japanese administrative and commercial system which
are not directly referred to in the text, but are of value
as going to form the setting of tBe whole picture. If
there were any other connected account of these matters,
such a preface ;would be unnecessary; but there is not,
and it would be useless to refer the reader for his
information to volumes for the most part untranslated and
inaccessible to him. With the view, then, of introducing
him to the life of the community where these customs
INTRODUCTION.
25
prevailed and these precedents ruled, and of supplying
a handy source of reference in his perusal of the main
volumes, a brief survey of the subject has been prepared
under the following heads:
1. The Feudal System.
2. Local Administration.
3. Religious Organization.
4. Administration of Justice.
6. Taxation.
6. Commercial Houses.
7. Guilds.
8. Transportation.
9. Money, Banks, and Commercial Paper.
10. Rice Trade.1
1.—The Feudal System.
The traditional and fundamental division of the whole
country was into hum and kori,—to be rendered, perhaps, by
1. The following sketch is based chiefly on Japanese treatised
and on articles by Japanese writers in the transactions of learnes
societies and in antiquarian magazines. The latter are drawn in
almost every case from documents, records, and other original
sources, and written by the highest authorities on Japanese law and
antiquities. Special acknowldgment is made under the various
sections. In some cases, where the subject has been already
adequately treated in a Western language, such an authority has
been followed. For the feudal system have been used Dr. Yoshida's
" Staatsverfassung und Lehnwesen von Japan," Hague, 1890; for
the administration of justice (in part) Herr Eudorfl's "Eechtspflege
nnter den Tokugawa," Tokyo, 1888; and for rural administration.
Dr. Simmons' " Notes on Land Tenure and Local Government,"
edited by the preseiE editor and published by this Society in 1891.
Besides these authorities a number of original documents in the
editor's hands have been consulted.
26
PRIVATE LAW IN OLD JAPAN :
" province " and " county." This division dates back to at
least the first century A. D., and is still recognized in
popular language. These kuni in the tenth century
numbered 68, but a few later subdivisions have increased
the number. The kori numbered about 600. The kuni
were arranged in 8 groups, as follows :
1. Go-kinai (August 3 Home Provinces), including
Yamashiro, Yamato, Kawachi, Idzumi, Settsu :
2. Tokaido (East Sea Koad), including Iga, Ise, Shima,.
Owari, Mikawa, Totomi, Suruga, Kai, Idzu,
Sagami, Musashi, Awa, Kadzusa, Shimosa,
Hitachi:
3. Tosando (East Mountain Boad) including Omi, Mino,
Hida, Shinano, Kotsuke, Shimotsuke, Iwaki,
Iwashiro, Rikuzen, Rikuchu (these five known as
Oshu), Mutsu, Uzen, Ugo :
4. Holnirokudo (North Land Road), including Wakasa,
Echizen, Kaga, Noto, Echu, Echigo, Sado :
5. Sanindo (Mountain Shady Road), including Tamha,
Tango, Tajima, luaba, Hoki, Idzumo, Iwami:
6. Sanyodo (Mountain Sunny Road), including Harima,
Mimasaka, Bizen, Bichu, Bigo, Aki, Suwo, Nagato:
7. Nankaido (South Sea Road), including Kii, Awaji,
Awa, Sanuki, lyo, Tosa (these four making the
island of Shikoku, or Four Provinces):
8. Saikaido (West Sea-Road), including Chikuzen,
Chikugo, Buzen, Bugo, Hizen, Higo, Hyuga»
Osumi, Satsuma (these nine making the island of
Kyushu or Nine Provinces), Iki, Tsushima :
9. Hokkaido (North Sea Road)? being the island of
Yezo.
Other groupings were occasionally used. Kicanto (East
of the Gate) was the term applied to the eight pi-ovinces
east of the Hakone Pass situated on the road from
1. Because it had been the Imperial Domain.
INTRODUCTION : FEUDAL SYSTEM.
27
Yedo to Kyoto (Sagami, Musashi, Kotsuke, Shimotsuke
Hitacbi, Shimosa, Kadzusa, and Awa) which were the im¬
mediate possessions of the Tokugawa family. Kamigata
(Upper Parts) was applied to the central-western provinces
about Kyoto.
The Icon were made up of mura and viachi, villages
and towns. But mum is a very variable term. It
indicates a particular grouping of houses as well as a
unit of local government. Thus, within Yodoinura might
be found Kawamura, Yamamura, and Tamura. Tanimura
might or might not include Kotanimura (Little Tanimura)
in its administrative limits. Only a careful examination of
the village records can work out the correct details of the
subdivision. Again, several mura together were sometimes
termed go. This was probably an administrative grouping
for taxation purposes, aud doubtless obtained where the
above custom of uniting several mura into one was not
followed. Any one who has seen in Japau the clusters of
cottages secluded in little green valleys half a mile or
more apart will realize how these would have been
too small for administrative units. The term machi was-
applied both to separate towns and to individual wards
of large towns. Of course " town" is the original meaning.
The appearance of Yedo shows even to-day how numbers
of suburban machi, cut off by intervening hills, have
gradually climbed the barriers and grown together intO'
one large town; and in these cases each original group
of houses has preserved the term machi, until it has come-
in these cases to be in reality a ward. The process is
familiar enough in our own history.
But these kuni and kori were under the Shogunate
geographical divisions only. The political divisions were
the fiefs of the various territorial lords. Theoretically the
Emperor was the fountaiu of government, and the Shogun
was only his generalissimo, the preserver of peace aud the
leader in war. Practically the Shogun wielded all the power
28
PRIVATE LAW IN OLD JAPAN I
of the Central Government. This is not saying that he was
practical master of the country, for into a few of the fiefs
of the powerful lords on the west and north no central
administrative power ever entered. In fact, a Tokugawa
man might not venture into the districts of the
great Shimadzu family, the lords of Satsuma and its
neighborhood, without more or less peril. The Tokugawa
scholars, in writing about the administration, seldom
disclose any knowledge of Western customs. The
Shogun thus occupied a double position towards the
greater lords who owed allegiance directly to the Emperor.
He was as a feudatory only 'primus inter pares; at
the same time he was as generalissimo vested with
political authority over them. But the Tokugawa rulers
were too wise to exercise this right unless the occasion
made it unavoidable, and almost the only practical ways in
which it found recognition were the journeys of these
daimyo to Yedo in alternate years and the oath of fealty
at the accession of a new Shogun.
It follows, then, that the Government now to he
sketched possessed a sphere of influence of a maximum
intensity at the centre, gradually diminishing until at the
outer edge it became almost zero. The Tokugawa laws,
so far as they were statutes, were the laws obeyed in this
•central district. At the top of this Government was the
Go-roju (august Body of Elders) or Council of State,
which usually numbered 4 or 5 persons. Under them
was the whole body of oflBcial workers. After a
fashion common in the Tokugawa administration,
each Councillor took turns in presiding for a month
over the matters of State. It can hardly have been
that the others were quite idle during their vacant
months. They seem to have consulted constantly,
and the policy of the Council was certainly not subject
to the breaks and changes which would have happened
if the above arrangement had been strictly carried out.
INTRODUCTION ; FEUDAL SYSTEM.
29
The custom probably required merely that the ordinary
routine of executive details should be attended to by each
Councillor in turn. It is entirely contrary to the spirit
of Japanese institutions that be should have attempted in
any matter of consequence to act without being assured
of the support of his fellow-members. We talk of the
Shogun having had this or that policy, hut it is a phrase only.
The real rulers of Japan (that is, of the part which the
central power reached) were these Councillors. From
the time of lyemitsu, the third Tokugawa Shogun, there
was probably not a single occupant of that commanding
position (except Yoshimune, the eighth Shogun) who
did not register without hesitation whatever decree
the Councillors agreed upon. They practically elected
themselves ; but they seem to have had wonderful success
in attracting to their number the ablest men in the
ruling class, for no country in Europe had a more
tranquil history than Japan during the 250 years of
their government. Where the Shogun was a minor, one
of them was chosen to serve as Regent, and during his
incumbency possessed a controlling influence.
Under this Council were the Waka-doshitjori (Young
Elders) or Junior Council. These, too, were 4 or 5 in num¬
ber. Promotion from this to the Council of State was naturally
frequent. The Junior Council had a more limited sphere
than its superior. Its direct control was exercised over
offices below the chiefs of bureaus, when situated in Yedo.
There were no bureaus independent of these two Councils,
with three exceptions; these were the Adjutants of the
Shogun (Sohayonin), the Temple Magistrates (Jishahui/yo),
and the Envoys of the Shogun (Sojoshu), and it is hard
to believe that these were not more or less under the
control of the Council of State. The other bureaus of
Government, tten, were divided into two groups, "inner"
and " outer," that is, according as their headquarters
were situated in Yedo or out of it. The "inner" bureaus
30
PBIVATE LAW IN OLD JAPAN :
were as follows : Equerries, Chamberlains, Castle Guards,
Censors, Town Magistrates of Yedo, Finance Magistrates,
Auditors, Construction and Public Works, Military. Of
■course under these bureaus were a much larger number
of staffs of various sorts,—police, military, education,
finance, etc., and the direct control of these was in the
bands of the Junior Council. It will seem strange that the
chiefs of bureaus should be appointed by the Council
of State, while their subordinates were appointed, not
by themselves but by a collateral body. But this was
a special feature of the Tokugawa administrative system, and
was merely one of the many ways in which its founders
bad tried to provide checks against usurpation by rendering
each official incapable of securing excessive power. This
interlacing of authority was carried through the whole
system, and complicated vastly the Governmental machine.
The term "direct control," (jiki-shihai), sometimes used, in¬
dicated the relation between the appointing and the appointed
person, not between the latter and his chief of bureau or
section, who was said to be the kashira shihai.
The "outer" oflSces were those of Osaka—the Castle
Commandant, the Military, the Town Magistrate, and the
Town Censor; of Kyoto — the Commandant, with the
Town Magistrate and a few others; of Nagasaki, Niigata,
Hakodate, Sbimoda, Uraga, Sakai (the sea ports), and of
Fushimi,'Nara, Sumpu, Yamada,-Nikko, Sado,—in each
case a Magistracy; and of the rural regions rmder the
direct control of the Tokugawa family, in each district a
deputy or an esquire, as will be explained.
All these ofiScials were required^o be vassals of the
Tokugawa family. The Regent, moreover, must belong to
one of the four families li, Honda, Sakakibara, and Sakai
(popularly known as the " Four Kings," in allusion to a
Chinese tradition) or of the Three Families (Gosanke) from
which the Shogun was selected,—Kii, Owari, and Mito,
the three branches of the Tokugawa family. The two
i
introduction; feudal system.
81
Councils and the three collateral bureaus were made up
exclusively of the "loyal dainujo," hereafter described.
For other offices the possession of a fief of over a certain
assessment was required,—a 8,000 koku fief for a Town
Magistrate of Yedo, etc. There were four grades of office,—
Taifu, including the chiefs of bureaus above-mentioned,
Hoi, including subordinate chiefs of sections, Omemiye-jo, or
officers having the right of presentation at the Shoguu's
Court, and Omemiye-ka, officers not having this right. The
last included all foot-soldiers, police and the like.
We come now to the feudal arrangements in the strict
sense. The whole population were included in seven
classes ; first the kuye or Imperial aristocracy, who were of
no consequence in the Government, except that they
possessed the opportunity for intrigue which afterwards
enabled them to assist the western lords in the overthrow
of the Shogunate ; next, the samurai, or military nobility ;
then the three orders of the common people,—hyakusho, or
farmers, shokunin, or artisans, and shonin, or merchants ;
besides these were the priesthood, occupying a position apart,
and the outcasts {yeta and hinin), fortunetellers, etc. who
were, in the estimate of the time, hardly to be reckoned at all.
The term samurai, in its broadest sense, signified the
entire military nobility or buke.^ These fell of course, into
two groups, the daimyo or feudal lords, and the samurai
proper. There was no distinguishing mark between these
classes, save that the assessed production of a daimiate
must exceed 10,000 koku of rice. But at one extreme
we find that the highest daimyo were feudally subject only
to the Tenshi (Emperor) and possessed landed fiefs, while
the lowest samurai were always dependent on some
intermediate lord, and were paid by a stipend of rice from
the storehouse of their lord. One division of daimyo
was that of kokushi, lords of a whole province,
«
1. Dr. Yoshida states that samurai was a generic term Including the
kuge. But in ordinary usage this seems not to have been so.
82
PRIVATE LAW IN OLD JAPAN :
ryosliu, lords of a smaller district, and joshu, lords of a
castle. But the common one was the classification oigosan-
he, the three great families from one of which the Shogun
must come, Jcokushi, or great provincial lords, and the lesser
nobility, who were divided into Tokugawa vassals
(fudai, literally, " loyal families") and vassals of the provin¬
cial lords (tozavia), though the exact significance of these terms
has been a matter of some dispute.^ The sumitroi proper were
of two kinds, higher {seishi or joslii) and lower (kasJii).
The higher class were the knights, in the strict sense of the
term. They alone had the privilege of following the lord
to battle on horseback; in fact, those whose territory was
assessed for more thau 500 koku were obliged to provide
a horse and accoutrements. They had privileges in all
respects similar to those of the higher nobles, except the lords
of provinces. The distinction between them and the lower
samurai was well marked, for they had a power of punish¬
ment over the latter of the same nature as their power over
the peasants and other common people. These seisJd were
of two sorts, according as their allegiance was directly to
the Tokugawa chief [chokushin) or to some other feudal lord
(baishin). The former are usually known in history as
the hatamoto. They filled most of the Shogunate ofiices
and furnished the greater part of the Tokugawa armed forces.
The corresponding class of provincial vassals was known as
kerai,—a term having also, however, a broader siguification.
A daiimjo of 100,000 koku (such as Date of Seudai) would
have perhaps 1,000 samurai of this rank. The lowest
class of samurai, the kashi, formed the ordinary foot-soldiery.
Those belonging to the Tokugawa House were known as
rjokenin (men of the August House) and they were apt to
be conceited and overbearing in their relations with the
retainers of the provincial lords. This lowest rank had
1. See Gubbins, in Trans. As. Soc. Jap., XV, 135 ; Eudorff, in
Mitth. d. D. Ges. Ost., 38, 381.
introduction: feudal system.
3a
of course many subdivisions, and the terms yoriln, kachi,
doshin, ashiyani, which oue is often puzzled by in Tokugawa.
records, were merely names given to the various groups
according to their occupation in the civil or military
service.
The connection between public offices and vassalage in
the Tokugawa family led to still further subdivisions of
classes. The hatamoto were divided into taishin or yoriai,
with incomes of 8,000 koku and over, and omeiniije-jo, with
incomes between 800 and 8,000 koku. The higher class were
known as taishin or great vassals, when they were in
active service in an office, and as yoriai (either kotai-t/oriai,
alternate councillor, or hira-yoriai, ordinary councillor) when
their office was an honorary one only. The lower hatamoto
and the ijukenin, when not in active service, were known as
kohushin. The offices were not hereditary, except probably
where the office itself was the only foundation of the feudal
relation, as in the case of the police.
The titles of the higher nobles must be considered for a
moment. A quotation from Mr. Gubbins i will best
elucidate the subject.
" The titles borne by daimyos form a rather complicated
subject. They may be divided into two classes : territorial
titles,2 which were the earliest, and official titles,^ which
were of later creation. The territorial title of a daimyo
consisted of the word kami joined to the name of a province,
and originally this title was taken, as was the custom also in
many cases with family names, from the territories which
he held. Thus the daimyo of Shinshu was called Shinano-
no-kami, the daimyo of Omi, Omi-no-kami and so on. The
title of a daimyo, therefore, in early days had direct reference
to the province in which his territory was situated. In the
1. Trans. Asiat Soc. Jap., XV, 137. 1. Known as Kani-lcami.
2. Known as Rtjd-gman, and so called because the seat of Govern¬
ment was at Kyoto.
Vol. XX. Slip. Pt. i.—11.
34
PRIVATE LAW IN OLD JAPAN :
course of time, however, though this territorial title remained
in general use, it by no means necessarily followed that
there was any connection between the particular province
mentioned and the territory actually held by a daimyo.
This change in the significance of the title was due to several
causes :—to the partition amongst several daimyo of lands
originally held by a single individual, to the removal of a
■daimyo to another part of the country, and to the formation of
cadet houses. In the first case, instead of one daimyo of Musa-
shi, for instance, there came to be three or four; in the second
case the change of fief made no difference in the title ; and in
the last case, although the family name was invariably retained,
there was no fixed rule as to the retention of the title,
which often remained the same. This multiplication of
similar titles led to much confusion, and in late years, by
way of remedying this inconvenience, if when a daimyo was
appointed to the Goroju, or Upper Council of State, it was
found that an existing member bore the same title, the newly
appointed Coimcillor was obliged to adopt another in order
to distinguish him from his colleague.
" The history of the other, or official, titles is this.
When the administration of the country passed out of the
hands of the kiige into those of the military class, the official
posts formerly held by the Court nobles were filled by
daimyos, who accordingly assumed the official titles which
were attached to those posts. The davnyo'i who were thus
originally appointed held the official titles merely during
their tenure of office; ^ but as time went on and successive
changes occurred, the duties of these posts became merely
nominal, until at last the titles became hereditary, and had
no connection with the discharge of official duties.^ .
1. In the earlier days of the feudal system, some of the kuye
occasionally assumed the territorial titles belonging to the daimyos,
but such instances were rare. 2. It should be explained that each
title was not limited to one individual. Many daimyos had the same
title.
INrRODUCTION : FEUDAL SYSTEM.
35
" There were in leyasu's time in all about 60 of these
•official titles, which were held under the Tokugawa
administration by both Fudai and TozaniaA ....
"As instances of the hereditary assumption of these
titles, the cases of the Dainnjos of Satsuma, Choshu, and
Hikone in Omi may be cited. The title of Shuri-no-Daibu
was hereditary in the Shimazu family, that of Daizen-no-Daibu
in the family of Mori, while li, the Daimyo of Hikone, was
styled Kamon-no-Kami. In some cases too the official titla
was always borne by the Head of the clan, the territorial
title devolving on the eldest son and heir. Thus the eldest
son of the MOri family was known by the title of Nagato-no-
Kami. .........
" It must not, moreover be supposed that both territorial
and official titles were common to aU Daimyos. Some had
both, others again had one and not the other, while many of
the lesser Damyos bore no title at all."
It is with the mutual relations of these various classes
that feudalism proper is concerned, and we now turn to the
different aspects of the feudal relations, taking first the
subject of the feud.
On the one hand was the lord of the feud, the
person from whom it was held. In Japan the Emperor
stood as the lord of the whole land from whom all feuds
must be held. It would seem that subinfeudation placed
the lower vassal in feudal relations with his immediate
lord only, and not with the Emperor. Thus the first rank
of feudatories holding directly of the Emperor were the
large provincial daimyo, or kokmhi, the tozama daimyo,
not subordinate to the Tokugawa family, and the Tokugawa
1. Before leyasu became Shbgun, these titles were arranged
in order of seniority, and a Baimyu might be promoted for
meritorious services through each step up to the highest degree,
leyasn himself passed through five grades, beginning as the simple
Daimyo of Mikawa without any title at all.
86
PRIVATE LAW IN OLD JAPAN ;
lords. Under these came a host of vassals, who in turn
were lords of others still further below. What Japanese-
history still needs is an accurate feudal map of the country,
showing the distribution of fiefs and the inter-relations of
lord and vassal. On the side of the vassal certain qualifica¬
tions were required. He must be of an age —15—capable
of bearing arms. He must have been born a samurai.
He must be skilled in the accomplishments of a soldier,
riding and archery, spear and sword practice. He must,
in theory at least, possess the education of a gentleman.
He must not be a dishonorable or infamous person, or
weakly in mind or body. But naturally these require¬
ments were not always strictly carried out in practice.
The object of tbe feud, the thing which the vassal
received and for which he rendered service, might be one
of three things. First, it might be a territory, of larger
or smaller area. The larger fiefs were known as ryochi or
ryubun, the smaller ones as sbiro (castle). A joshu was
the lord of a castle, that is, of a castle and the territory
immediately around it. Secondly, the feud might be-
merely a right to receive an income {chirpjo) from a
certain area of land. This - land might include one
village or fifty, or perhaps only a dozen rice-fields, and
was called chiyyo-sho. Bat the vassal obtained no right
to govern the land, and no power to increase or diminish
the proportion of the produce assigned to him. The
cultivating peasant was, however, bound to join his train
as a servant in case of war. But the liatamoto who
possessed chiyyo-sho were able to break these rules with
impunity, and to increase their re#l income far beyond
its nominal figure. The lowest sort of feud was the
right to draw annually from the lord's store-house a certain
amount of rice. If its amount was reckone d by the number
of rice-bales, it was called hyo-mono (bale-estate), and was
regarded as of higher rank. If the reckoning was according
to the number of persons in a family, the name was
INTRODUCTION: FEUDAL SYSTEM.
37
fiichi. Tlie income from a hyo-inono might exceed that from
a chiijyo-sho, but it never ranked as high. Most samurai
began with the lowest grade; and if by bravery in battle
•or by skill and industry in civil office they showed
preeminent merit, their reward was the promotion to a
chigyo-sho. The commonest generic names for the stipends
from chiyyo down were roku and on-fuchi-mai. In al
feuds, there was included in addition a place of residence,
granted by the lord to the vassal, and always situated in
some castle-town. The size of this yashiki varied with
the feud; but an inferior vassal having, say, 100 koku a
year would have a plot of about 1 tan in area (J acre).
Among the obligations of the vassal first and foremost,
of course, came the duty of personal service in war.
This formed the chief reason for which the feud was given,
and involved several minor duties. The vassal must
naturally be prepared, in time of peace as well as in war, to
perform this highest duty, and he must keep his fief, if he
was a territorial lord, in such a state of prosperity and
productiveness as would best enable him to fulfil it.
He must arm and equip himself and his followers, and the
number of the latter must of course be in proportion to the
size of his feud. The rules varied at different epochs, but
there were included, in the train of a large daimyo, knights,
swordsmen, riflemen, artillery-men, archers, pikemeu,
standard-bearers, lancers, and numberless servants of all
kinds. A samurai of 500 koku was in 1640 expected
to bring 11 men; a daimyo of 50,000 koku was looked
to for 1,000 men. But by 1861 the former requirement
had dwindled to 1 man, the latter to 168 men. Another
of the personal duties was that of following the lord upon
his journeys. This meant usually the attendance of a
certain number of samurai upon each daimyo during the
year of his residence in Yedo. During the remaining time
each samurai took his turn at the castle-watch, either
as officer or as private. The duty of serving as civil
88
PBn'ATE LAW IN OLD JAPAN I
officials was also an important one, and in the latter days of
the Shogunate the number of these had greatly increased.
The civil officials of the dabnyo, who was usually & faineant,
were the real rulers of the fief, and from them came most
of the present administrators. Beside these personal
services, the lord was entitled to certain material benefits
from the property of the vassals. There were gifts—
voluntary only in name—to be presented from the fruits of
the fief, and almost every month called for a special
article. There were New Year's offerings, or chomoku,
which signified the presentation of an appropriate sum of
money. "The price of a horse and a sword was customarily
due at certain times. We find also what is known in
European law as " relief," the payment of a fee upon the
occasion of the investiture of au heir, and " wardship," the
payment of a sum of money during the time when a
youthful vassal was unable to render military service. In
contradistinction to these duties, there existed also
certain rights of the vassal. The chief mark of the feudal
vassal was of course his enjoyment of the territory or
income which formed the object of the feud. Next in
importance was the right to carry two swords, the great^
privilege of the samurai. Besides this he enjoyed exemption
from taxes aud other burdens, the privilege of using
a family name and a crest, the right of hunting,
of riding, and so forth. But it is difficult to say how far
some of these privileges may be regarded as pertaining to the
samurai as a fief-holding vassal, or merely as one of a
privileged social class. ^
Such was the feudal relation, in what may be called
its stationary aspect. But every feud had a beginning
and perhaps an ending, and it was often transferred from
one person to another. This brings us to the creation of
the feud.
Investiture (vieshidashi) of the vassal by the lord
was the sole method. The ceremony was a simple
INTEODUCTION: FEUDAL SYSTEM.
39
one, and consisted merely in handing to the samurai
the deed of enfeoffment in the presence of certain
ofiScials. The enfeoffing deed was the ultimate foundation
of the vassal's rights, and was necessarily a priceless
possession. There are many tales of faithful retainers
saving this heirloom of their masters at the risk of their own
life. The more honorable sort (kwan-jo) was written en¬
tirely by the hand of the enfeoffing lord, and usually came as
a reward for some act of special bravery in battle. The
ordinary kind {koku-in or black seal) was merely sealed by
the lord. The inheritance of the feud followed as a rule
the principle of primogeniture. If the first-born son had
died before tbe death of the fief-holder, then the eldest son
of the former inherited. But exceptions to this rule often
occurred, the requisites being the previous agreement of the
members of the family and the permission of the authorities.
Where no natural sons existed, adoption was often resorted
to. As a rule the incumbent retired at about the age of 50,
handing over the fief to the successor during his lifetime.
In all cases the permission of the superior was necessary ;
but if properly requested it could not be refused, for the
feud was not a mere life-possession, and the successor had
a right to demand its enjoyment.
The alienation of the feud was as a rule not
permissible. In Japan the personal element of the feudal
tie was a strong one, and any transaction which had the
effect of dissolving this tie was regarded as unlawful.
A sale of the feud, therefore, or any transfer which
replaced the vassal by a new one or gave over to another
the object of the feud, was forbidden. The influence of
this rule, however, did not reach to Kyushu, where the
feudal lords did much as they pleased. Nor had it any
application to the inferior feuds, the hyommo or rights
to a stipend of rice from the lord's storehouse. These
were alienable at pleasure, the only requirement being
that the transferee should take the family name and the
40
PRIVATE LAW IN OLD JAPAN :
rank of the transferor. But in all cases two sorts of
partial alienation were permissible, (1) sub-infeudation
and (2) mortgaging. The former was of course a necessary
feature of the feudal system. The operation of the latter
varied according as the feud was of the higher kind or
was merely a right to a rice stipend. In the latter
case the sale of the fend was usually possible;
but the creditor attained his object by receiving from the
debtor a ticket which entitled him to draw from the
storehouse, until paid, the stipend of the debtor.
In the former case the feud could of course
not be sold by the creditor for nonpayment, and
his right was therefore limited to taking the produce
•of the land for so long a time as was required to
repay himself. But all mortgages were limited to 10
years ; and it seems doubtful whether this right of enforcing
payment was often realized. A favorite method of evading
the necessity of a formal resort to this right, with its
doubtful issue, was the exacting of a mortgage from certain
of the lord's villages ou their tax-rice or entire produce.
The instruments were made out by the villagers themselves,
sometimes as for a debt of their own, sometimes expressly
as security for a debt of their lord. A number of in¬
stances will be found in the Legal Precedents.
The extinction of the feud might occur in a number
■oi ways. The death of the superior without heirs or the his
forfeiture of his feud, the death without heirs or the
renunciation of the vassal, might have this result. But the
fault of the vassal was the most usual source. In the first
place any intentional injury to the person, the property, or
the honor of the lord would be a ground of forfeiture.
Furthermore, neglect of duty might have the same con¬
sequence. The careless loss of the deed of investiture,
the loss of the sword, the failure to announce a successsiou,
and gross malfeasance in office were here included. The
perpetration of a crime or the serious infringement of the
introduction: feudal system.
41
rights of others might also, if it reflected on the honor
of the culprit, draw with it the forfeiture of his feud.
It would seem from some of the Legal Precedents that
mere inability to pay debts might be regarded as sufiicient
cause for dismisal. The inquirj' of the Lord of Ise, in No. 19
of Part III, Section I, is a naive expression of the current
sentiment upon the subject of a lord's rights.
Leaving the topic of the relations between lord and
vassal, we come to the administrative relations between the
ruling class and the people, that is, to the
2.—Local Administration.^
And first of the territory directly governed by the
Shogunate. It has been seen already tbat the officials
set over the business of local government were in two
general groups,—those in charge of rural districts, the
jito and dailaian, and those in charge of large towns,
the hufjyo. The government of Osaka and Kyoto differed
from that of the other large towns chiefly in that
certain military officials were over the civil Magistrates
{bufiyo), because of the castles in those places. In
Yedo the town government was more or less complicated
by the presence of the bureaus of Government, but the
Magistrate was, as elsewhere, at the head of all the civil
affairs in the town.
Taking up first the rural districts, we find it difficult at
the outset to be certain of the exact functions of the
jito. That he might be the possessor of an income-fief
{cliigyo-sho), and not merely a stipendiary, as the dai-
1. The material for the following section is taken chiefly from
two manuscript ofiScial histories of local government in Osaka and
in Sendai; from esiays by Professor Komiyama, the antiquarian,
founded on local records; and from Dr. Simmons' " Notes on Local
Government."
42
PRIVATE LAW IN OLD JAPAN I
kwan was; that he was an agent of the Shogunate; and
that he was sometimes coordinated with ryoshu (daimyo)^
sometimes with daihwan,—these seem clear. If one-
may infer from what little direct evidence there
is, the jito was a Tokugawa vassal placed in close
proximity to a daimyo not owing fealty to the
Tokugawas ; a number of them being placed in all parts of
the country. His fief was not large, for we hear in ono
instance of a large landlord being popularly termed jito^
He had judicial authority of his own, though probably no-
more than a daihwan; but he had the personal interest
of a territorial feudatory in his land, and not the
merely supervising functions of a daihwan.
The daihwan (deputy) was the typical local adminis¬
trator. He was appointed from Yedo. The district under
him might be of varying size, nominally of 50,000 hohu
assessment or less; perhaps it is safe to say that from 40'
to 100 villages were included. It was not at all
coincident with the boundaries of hori; in the description
of a plaintiff's domicile, he is usually described,
as belonging to a certain huni, hon, and mnra, in the
district of such-and-such a deputy. The office combined
the functions of judge and revenue-oflScer. The official
residence, with jail, office, and court, was called jinyoya
(camp). His salary was fixed at 110 ryo of money and
63 hyo (bales) of rice, for every 100,000 hohu in the
assessment of the district under him; but in the western
regions, where presumably the service was somewhat
dangerous and called for special ability, t!ie money
allowance (teate) was increased to 12^ryu, the office-holder
in that nest of disaffection, Kyushu, getting 140 7-yo. This
allowance presumably covered certain incidental expenses
1. The term " esquire " has been used tor jilo, because it seemed
to indicate, in its corruption into "squire",the similar confusion o£
senses attending the use of the word Jito (lit., land-chief).
introduction: local administration. 43
of the office. The staff of the deputy, some two score
in number, was as follows, according to Chiho Seido-tsu
(" Provincial Government")
" 1. Motdjime-teilai (source-office deputy). These were
2 in number, and had charge of financial matters, under the
direction of the daikwan. The salary was 52^ hyo (bales) of
rice. 2. Hira-tedai (common deputy). These were 8 in
number and had charge, under the direction of the daikwan,
of miscellaneous matter. The salary was 20 ryo of money
and 18 hyo of rice (for one grade), 15 ryo of money and 13^
Ayo of rice (for the other). 8. Eald-yaku (writing office).
These were 8 in number, and their occupation was the
writing and copying of letters. The salary was 7 ryo of
money and 9 hyo of rice. 4. Yo-nin (chamberlain). This
officer attended to the household affairs of the daikwan ;
his salary was 7 ryo of money and 9 hyo of rice. 5. Samurai.
Three samurai attended the daikwan constantly, to do his
bidding. The salary was 4 ryo of money and 4^ hyo of
rice. 6. Chuyen (servant). Seven of these servants waited
on the daikwan. The salary was the same as that of the
samurai."
Of the training and functions of the daikwan, Dr.
Simmons gives a good description :
" The office was generally hereditary, usually in an old
family of the locality. Still the length of any one incum¬
bency was about five years only. Usually a small hatamoto,
often a yoshi, occupied it. The occupant was never called
on to do military service as a bearer of arms; he served, if
at aU, only as commissariat officer. The directions given
in the Jikata Hanrei-roku are that these officials should
be men trained to the keeping of accoimts, should have a
general knowledge of civil and criminal law, and should be
familiar not only with the customs of the locality over
which they presided, but also with those of adjacent regions.
Their education ^as especially in the line of finance, par-
1. Cited in the notes to Simmons' " Notes, etc.," p. 53.
44
PRIVATE LAW IN OLD JAPAN :
ticularly in early times. Other than themselves and the
hozu (priest) few had education enough to fill the position
of tax collector and accountant. Thus they really formed
a special class trained for this life.
"The office was not subject to political jobbery, I am told,
though there is reason to believe that this was not always
the case. The position was in some degree patriarchal in the
respect which it received, and though its incumbents
were subject to removal for corruption and bad manage¬
ment, such an occurrence was comparatively infrequent.
As has been said, the policy of the Tolmgawa Shoguns,
especially of lyeyasu, was to change as little as possible
the established customs of the difierent localities. The
advantage of the system was a thorough acquaintance by
the officials with the districts and the special requirements
of each. Again, in the little-changing population of those
times the daikivan came to be the nominal supreme
authority. The people heard that there were such persons
as a Mikado, a Shogun, a ilaiinijo, but to them the daikimn,
whose family had in many cases been the governors of
their ancestors for generations, became, to their limited
view, the Government. .......
" I found in the Jikata Uanrei-roku the following
directions as to the spirit in which the daikwan should
exercise his function; His duties were to adjust the
boundaries of large divisions of lands, such as inura (which
in mountain districts because of imperfect surveys often
became the subject of dispute), and of individual holdings;
to assist in the complicated and difficult management
of water supply for irrigation, of tffe repairs of dikes
-and of embankments; to carefully inquire into and
equitably adjust the causes of failure, partial or entire, of
•crops from overflow, winds, insects or insufficient supply of
water, and to make a just re-assessement of taxes on such
land; to see to it that the local officials advised with the
farmers about the kinds of seed and their quality, about
INTRODUCTION ; LOCAD ADMINISTRATION.
45
improvements in methods of cnltivating various kinds of
land, about ploughing and manuring, and about every¬
thing pertaining to the best method of agriculture. Especial
attention was recommended to the adjustment of the
regular assessment on land of all kinds according to its
productive power, of the quality of the soil, to its exposure,
favorable or unfavorable, to the prevalence of destructive
winds, to the quality of unfailing water supply, in fact to
every possible thing which could effect the quantity and
quality of the products of the soil,—the official thus
shielding the farmer from unjust assessments and at the
same time securing to the lord the just return in taxes. In
prosperous times the farmers were to store up (against
failure of crops, epidemics, etc.), without removing the
husks, such grains as did not spoil. This the officials were
to encourage and urge the people to do, so as to prevent
alarm on the approach of dry weather or of epidemics.
They were to be encouraged also to plant wet went land with
trees and shrubs, and also to plant trees to protect the fields
from the winds. ........
" But, says the essayist, the daikwan and his officials
should not be severe or dictatorial, or the people will be
irritated and obstinate; nor should they be too familiar and
indifferent, or the people will lose respect for their superiors.
A dignified middle course should be aimed at by the daikwan
in aU their dealings with the people. However skillful
officials may be in applying the technicalities of legal
administration, if they have not sufficient regard for justice,
extenuating circumstances, if they are unnecessarily strict,
they wiU not have done their duty. Even if people seem
to be prosperous, technicalities should not be in aU cases
insisted on as if it were praiseworthy to do so. The spirit
of all administration of land revenue is to give the farmer
the benefit of aU doubts and not to insist on technicalities.
His prosperity sflould excite the satisfaction rather than
the cupidity of the lord.
46
PRIVATE LAW IN OLD JAPAN !
'■ No short-sighted policy governed the Tokugawa
.administration, nor any consideration of temporary gain
hy severe taxation. The daikwan who used sharp practice
in collecting revenue or in drawing the line against
the farmer to the utmost limit in order to gain special
favor was almost sure to come to grief sooner or
later. The hyakusho-tsubure or ' farmer-destroyer' was
a role utterly opposed to the economic policy of the founder
of the dynasty and of his successors. Taxation might he
pushed to the utmost ability to pay, but it was never
permitted to go beyond this and to force an industrious
farmer into bankruptcy or to borrowing on a mortgage."
Within the district of the deputy each village (of
whatever size it may have been) was treated as a unit*
The vast majority of the people in all the villages were
■engaged in agricultural industries ot one sort or another.
A great deal of manufacturing was carried on, hut only in
the intervals of agriculture. There was a great difference
between the social standing of the various members
■of the village, but every family was registered in
one or another of the groups (kiimi) known as "five-men
-companies" {jp-nin-yumi). The principle was always that
of contiguity of residence, and the purpose was the
preservation of order by means of the enforcement of
mutual responsibility. As a matter of fact the members of
the kumi were almost all landholders, in some small amount,
at any rate, though it is hardly probable that the owner¬
ship of land was requisite. But it may be asserted that
practically a very large portion of the villagers were the
tenants of the remaining few. We* constantly read o^
disputes between the small farmers (koiiiaye) and the
great farmers {cho-byaktiaho), and a village register some¬
times shows nearly all the land to be in the ownership
of a few. The solution is perhaps that the position of
kosaku-nin (tenant) was not that of a fixed status;
he might be the owner of land, and yet in addition hire
INTRODUCTION I LOCAL ADMINISTRATION.
47
land from another; and we may suppose that while each
one made it a point of social respectability to retain at
least a small plot of his own, besides his house, the chief
occupation of a greater or less proportion of the villagers
was the cultivation of the land of others as tenants.
In each kimi one person served as chief {(jo-cho, laimi-
oya, han-gasldra), usually the most important or intelligent
of the number. His seal was necessary in almost every
iransaction of any importance where one of the members
was concerned. Doubtless it is the seal of the chief
which is meant where the statement occurs, in the
ensuing Parts, that the seal of the Immi was necessary.
The first general oflScer of the people seems to Lave
been the kumi-gashim (company chief), who originally was
•doubtless only one of tlie chiefs of these companies. He
acted as assistant to the headman; and received as a
salary a rebate of local taxes or perhaps a direct stipend.
According to the number of kimi, there might be two
or more kumi-gashira in one village. Next above this
person was the toshiyoH, who iu the Shoguuate districts
was rather a patriarchal adviser than an officer. At
Ihe head stood the nanmld or shoga. These seem to
have been different terms for the same officer, nanushi
being peculiar to some regions, shoya to others. There is
some ground for thinking that nhoya was, in origin at
least, peculiar to the South and West; but certainly there
are instances of the term in the East; and in one of the
legal precedents we find (apparently) the theory-rending
occurrence of a slioya and a nanusM in the same village.^
But at any rate the normal situation was a single person
1. For details on this and related topics, reference must be
made to Dr. Simmons' "Notes, etc.," and the annotations. Care
has been taken in Parts 11 and V to note the occurrence of the terms
■slwya and nanushi, so that future workers may be able to make
inferences from the usage with reference to those terms.
48
PRIVATE LAW IN OLD JAPAN :
termed nanushi or shoya, exercising the functions of
headman. From the point of view of the daikwan and the
Government the headman was responsible for the
conduct of the peasants,—for the payment of taxes, for
their observance of all private and public obligations,
and for the preservation of peace and order by the
community. From the point of view of the villagers, he
was their representative in their relations with the daikwan
and the Government, their chief in matters of local
autonomy, and their arbiter in all disputes. His office was
at first hereditary; but in the last two centuries it cannot
be said that any fixed rule prevailed. Circumstances
determined whether the son should succeed his father, or a
new family be sought. No doubt a new election was very
common, and in some parts there were definite rules for the
purpose. Practically the choice was restricted to the
large landholders. But nowhere does the Government
appear to have directly nominated the incumbent.
The headman, with his assistants, attended to
all the details of village economy,—keeping the registers,
assessing taxes, paying expenses, etc. But there was
usually a hyakusho-dal (faimers' representative), who
appeared for the villagers where their pecuniary interests
were involved and represented them in the discussion
preceding settlement. It is likely that he was employed
chiefly in villages where there was a marked difference of
condition between the higher and lower farmers,—where
the latter were practically tenants of the former and
consequently had interests opposed to them; for the
great farmers would be in possession^of the offices and
would assess taxes and settle accounts with an eye to their
own benefit.
There was a village assembly (jjoriai), of course,—not
on stated occasions (other than the beginning of the year,
when accounts were the subject of discussion), but from
time to time as occasion needed. It is clear that none but
introduction: local administration.
49
land-owning heads of families could vote in these assemblies.
The only question is as to a further limitation of the right.
No doubt in many cases the voting privilege was
limited to a certain set of the large landholders, and
grades of social rank were associated with the privileges
of the assembly. In Part VIII will found a case on this
subject.
So much for the region administered by the Tokugawa
family. It is to a certain extent typical of the methods
employed in the independent fiefs. There were probably
greater differences in land tenure than in administrative
methods. Perhaps the simplest plan is to describe briefly
the rural organization of the Sendai fief, the best governed
and most important in the North.
The fief was divided into four counties, over each one
of which was a Magistrate (Jcori-bugyo). Each county was
again subdivided into districts (Icori), the numbers being
7, 8, 6, and 5 respectively. The Magistrate was appointed
by the lords of the fief, and must be a samurai of the
han-snmurai grade (corresponding to liatamoto under the
Tokugawa system). He had immediately under him a staff
of some 20 assistants,—registrars of land-transfers, tax-
collectors, clerks, superintendents of public works, attend¬
ants, etc. Of these the higher ones must be of the han-
samurai grade and were appointed by the Treasurer of
the fief, on the Magistrate's recommendation ; while the
lower ones were appointed directly by the Magistrate.
The whole fief was divided into 18 administrative districts
(/lu), over each of which was a daikivm (deputy),—the
numbers in each county being 4, 4, 5, and 5 respectively.
Where two or more of the kori (the old political
divisions, now become geographical only) fell into a
single ku, there were usually two offices established under
the single claikwan. Attached to his office was a staff of from
10 to 20 assistftints,—assessors, tax-collectors, supervisors
of public works (drains, roads, bridges, r vers, aqueducts
Vol. XX. Slip. JPt. i.—4.
50
PRIVATE LAW IN OLD JAPAN :
etc.), foresters, accountants, etc. The rfat/ricuw was appointed
by the Chief Seneschal {haro) or other chief minister of the
lord of the fief, on the recommendation of the kori
Magistrate, and must be of bati-samurai rank. The
assistants were appointed by the Magistrate, on tlie recom¬
mendation of the daikwan. In each ku also was a district-
inspector (jjiin-po-yokome), whose duty it was to keep a check
on the daikwan and his assistants, by observing and
reporting on their doings. The inspector was appointed by
the Treasurer of the fief.
The Magistrate was in full charge of the civil
affairs of the county, through which he usually made
(in spring and autumn) two journeys of inspection
every year. He could pass final judgment, on appeal
from the daikwan, in all cases except grave crimes;
and even in these he held a preliminary hearing,
and, when case was referred for final decision to the
Magistrate of Decisions, he sat at his side as adviser.
He superintended the conduct of affairs by the daikwan,
and made recommendations to his chief the Treasurer
as to their appointment or discharge. He had special
charge of the tax-levy, the construction of public works,
the transfer of land, and the lending of Government rice
to the people.
The daikwan, acting under the Magistrate, attended to
all the details of the matters in which the Magistrate
had the final sanction,—assessment and collection of taxes,
lending of rice, public works, etc., though a certain amount
of discretion was allowed. He was also iu constant
relations with the village ofScers in*the minor affairs of
the villages.
The popular ofiicers, that is, those who did not
belong to the ruling samurai class, were the chief
headman (o-kimoiri), the headman {kimoiri), the chief
of companies [o-knmiyashira), aud sometimes the elders
{toshiyori), or village-representatives (vmra-sodai). There
introduction: local administration. 51
were one or more chief headmen under each daiJavan;
they were appointed by the Magistrate, on recommenda¬
tion of the daihifan. They collected taxes, paid out
expenses, acted as subordinate judges, and supervised
the lower officers. Tlie headmen [Idinoiri] were usually
one to each village, and were appointed by the dai-
Jacan. Each one kept several books,—one containing
recommendations as to repairs of roads and bridges,
.another a general journal of official doings, and a third
exliibiting the tax list,—and acted as the representative
•of the people to the Government. The chief of companies
looked after the laborers on village public works, and
saw to other details of village administration. Needless
to say that below all these the population of every
village was divided into companies of live families each,
-one person being the company chief, and all the members
bearing mutual responsibility for each other's conduct.
These lower officials, with the exception of the chief head¬
man, received no salary, but an exemption of their land
from taxation served the same purpose, and the headman
received also certain fees. The chief headman was
given the income of land assessed at 50 kohc, and had
also the samurai privileges of using his family name
and wearing two swords.
In other fiefs there was some difference in the nomen¬
clature of the offices, and the organization was perhaps less
carefully systematized. The amount of independence
vouchsafed to the local communities was probably less than
in the Tokugawa dominions. The intervening office of the
o-ldmoiri (chiefheadman), not usual in the Tokugawa districts,
was sometimes paralleled by an o-shoya or o-naniishi, and
probably the toshiyori (elder) took the place of the kiimiya-
shira of the Tokugawa and the o-kumiyasJdra of the Sendai
fief.
We may now turn to the town-government,—that is,
in communities which were sufficiently large centres of
52
PRIVATE LAW IN OLD JAPAN :
commerce—not mere post-towns—to huve a Government
representative independent of the daikicaii. Here Osaka
will be taken as the type, and the variations in other
towns will be briefly noticed.
At the head of all, as has been said, was the Castle
Commandant of Osaka; but the actual heads of the civil
affairs of the city were the two Town Magistrates,
appointed by the Government from among samurai of high
rank. Under them was a numerous staff of officials of all
sorts,—samurai, of course. They were individually of one of
two ranks, ijurild and doshin. The latter were usually only
subordinate officials performing the details of work under
the supervision of yoriki and the bureaus in which both
are grouped bear substantially the same names. These
bureaus were as follows: Couucillors of the Magistracy,
Superintendeuts of doshin, Censors, Judicial officers for
cases between outsiders and Osaka citizens. Temples,
Hiver-cleaning. Registration of families, trade guilds, etc..
Castle supplies. Auditors of accounts, Fire-inspeclion,
Execution-sales, Accountants, Hyogo-port affairs, "Weights,
measures, and licenses for ships and vehicles. Explosive
weapons owned by individuals, Nagasaki silk trade.
Foreign trade. Banished criminals. Prison supplies, and
Ward inspection. In the lower or doshin rank were a
few additional bureaus : Clerks of court, juyes d'instruction,
examiners of civil suits, lower judges for thieves, thief-
catchers, bridge-superintendents, etc. From these lists one
may gather an idea of the part of the local administration
which was kept directly in the hajjds of the Government's
representative. Below all this and complicated with it went
on the semi-independent life of the citizens themselves.
Osaka was until the Meiji period divided into three
sections (san-kyo), formed by the gradual amalgamation
of neighboring centres of population. They came to be
known as North kumi (district), South kumi, and Temma
kumi; the first containing 250 cho (wards), the second
introduction: local administration.
53
261 cho, the last 109 cho. The whole city was presided
over by a number of men caUed so-toshiyori (general or
chief elders). When at the beginning of the Tokugawa
rule the city began to assume commercial importance,
the townspeople had been directed to choose, through
their old men, a number of persons to manage the trade
of the place. These persons, at first 21 in number, afterwards
14, then 10, managed to make their office hereditary in
their families, though the Magistrate of course retained
and sometimes exercised the power of dismissal. There
was a General Assembly Office (so-ktvai-sho) at which
they met from time to time.
They seem to have had little to do with the
administration of justice, except as the Tokugawa policy
required all the popular officials to bring about private
settlements before the cases got into the regular Courts.
But they supervised the affairs of the wards as a whole,
managed the assessment and payment of the Government
tax, and had a controlling voice in the appointment of the
ward elders.
There were attached to this Office some 17 persons,
known as so-dai (general representatives), together with a
number of clerks whose appointment and dismissal lay with
the Chief Elders. The sodai themselves were appoiuted from
the three districts by the Chief Elders with the approval of the
Magistrate,—7 from the North, 6 from the South, and 4
from the Temma ; but it appears that the selection was
usually in the line of family succession; and this was the
more easy, as there were always 24 sub-assistants taken
from the families of the sodai, and thus there was plenty
of trained material from which to select. Their duties
are somewhat obscure : but it seems that they were looked
upon as the representatives of their district at the Magist¬
racy and the General Assembly Office, and took charge
of those matters «vhich the local elders were prevented
from attending to by the press of their own occupations.
54
PRIVATE LAW IN OLD JAPAN I
These Chief Elders and Representatives doubtless
had no other occupations, as their oflSces were hereditary.
But the ward elders were chosen anew at every vacancy,,
and thus public office was with them only an avocation.
The city had 620 c/w, it has been said. But not
every c7io had an elder of its own. Sometimes 1 or 2
cho, sometimes 4 or 5 cho, had a single elder. The-
terms c/io and maclii are usually interchangeable, but here
machi is always associated with the term " elder " as denot¬
ing the district over which he presides, while cho is reserved
as a geographical designation,—which however was of
importance in the assessment of certain taxes. Now
the cho-nin (people of the cho), by which seem to
have been indicated the house-owners only, not the
renters, elected the elders. They assembled at the
ward-assembly office (inachi-hwai-sho) and cast their
votes; and the three or five names standing
highest were sent to the Chief Elders. The latter
ascertained the facts bearing on the character of each
candidate and laid them before the presiding Town
Magistrate, with a recommendation. In theory the Town
Magistrate should then have made an even more strict
scrutiny of the character and capacities of the men on
the list; but in fact he seems usually to have followed
the recommendation of the Chief Elders, and probably
the motives determining their selection were not always
grounded on impartiality and integrity. The ward-men
and the candidates were then summoned to the Geiieral-
Assembly-Office, and the announcement of the Magistrate's
sanction was made; and on that of* the next day the-
successful candidate appeared at the Ward-Assembly-
Office and received the congratulations of his fellow
wardsmen. The latter, it should be said, gave a formal
consent or submission to the Magistrate's selection by
signing their names to a document of that tenor (uke-sho)
at the time of the announcement. The duties of the ward
INTEODUCTION I LOCAL ADMINISTEATION, 55
elder were to manage the executive details of the ward's
affairs, and particularly to make known the Magistrate's
proclamations and to supervise the income and
expenditure for local purposes. Here the wardsmen's
directions, as expressed at an assembly, must be carried
out. The compensation of the elder consisted in an
exemption from one unit of the local taxes and, in some
wards, a fixed amount as a present at a stated time;
but there were always extra gifts of no regular amount
at the New Year and at other times.
Under the elder was a small staff of one or two
assistants, with some servants, appointed by the elder himself.
There were also in each ward two or three financial officers
{kanjo-knta) and directors {tsuki-yyoji), who were elected
by the wardsmen and were more or less subordinate to the
elder. Neither class received any salary ; and the tsuki-gyoji
took turns in serving monthly. Finally, below all, were the
five-men companies, each with its chief, whose seal was
necessary in all important transactions concluded by any
member of the company. There is little information at
hand concerning these companies in towns. Professor
Komiyama affirms that there were two separate series,—
companies of tenants and companies of house-owners and
their agents, the former being known as viise (shop,—hence,
tenant of a sho^Yyoninyumi. But this was almost
certainly not so in Osaka, and I have seen no evidence
of it in Yedo. In Nagasaki there was a single series,
but it included proprietors only.
In Yedo also we find the system of double Magis¬
trates ; that is, two persons occupying the ofiice of
Town Magistrate and serving alternately every month.
It is evident that this arrangement was made in
pursuance of the plan, so often exemplified, of checking
one ofiScial by another. It was especially necessary
to guard the Yeflo Town Magistracy in this way, for the
civil governor of the feudal capital was in a position to
66
PRIVATE LAW IN OLD JAPAN :
secure very dangerous power. But the exact workings of this
device it is not easy to learn. It seems hardly possible that
each Magistrate could have retired completely from
official activity for a month. Moreover there were two
permanent offices, the North and the South, and
it seems that there was a permanent staff at each, and that
the same office was always used Iy the same Magistrate.^
It is difficult to imagine how the judicial business was
conducted if suitors were obliged to keep in mind the
months set apart for the different Courts, and if suits
were required to be suspended in alternate months. Finally,
the communications between the staffs of the two Courts
show that there was independent action by each Magistrate
and an independent set of records. On the whole, it
seems probable that the ordinary administration of
local justice went on as usual, and that the alternation
affected only the general police supervision of the city
and the functions of the Magistrate as a member of
the Chamber of Decisions, the Ai>pellate Court; while in
all important matters there was in any case concert of
action.
Under the Magistrates was a staff of yoriki and
do-shin, organized into bureaus as at Osaka. Each of
the Magistrates had some 25 yoriki and 150 dushin.
The yoriVrt were in 6 classes or ranks,—managers, ^
sub-managers, 3 chief assistants,^ sub-assistants,® ap-
1. For a long time the number of Magistrates varied,—some¬
times one, sometimes two. In 1702 there were three, with an
Office for each,—the South, North, and MiJHle Offices. lu 1719,
when Oka and Nakayama took the position, the number was fixed
at two, and remained so until the unsettled times attending the fall
of the Shogunate, when two others were added. The Office was
known as hanslio (watch quarters), because in the early days a guard
of soldiers was kept there. The dual Offices dated from 1719, and
they were situated (since 1800), the North Office, inside the
Gofuku Gate, and South Office, inside the Sukiya Gate. 2. Shihai.
3. Shihai-mivii. 4. Hon-zutome (service). 5. Hon-zutonie-nami.
INTRODUCTION : LOCAL ADMINISTRATION.
57
prentices, ^ and unpaid apprentices. ^ The doshin were
of 11 ranks,—elders,^ extra-elders,^ sub-elders,® clerks,®
sub-clerks,'' extra-clerks,® extra-sub-clerks,® chief-
assistants, sub-assistants, apprentices, and unpaid
apprentices.'® The bureaus were: Yearly Supervision,'^
Trials,Town-Management,'® S/iflc/io,''' Iteikivai,^'^ Daily
Watch, '® Honjo-district Inspection,'® Yonei Inspection, "
Prison Inspection,®® Town-Assembly-Office Inspection,®'
Saruya Ward-Assembly-Office Inspection,®® Old-Copper-
smelting Inspection,®® Rice-storing Inspection,®' Hakodate
Assembly-Office Management,®® Saltpetre Assembly-Office
Management, and Fire-extinguisbing-service Inspection.®®
To these were added half a dozen minor ones,
consisting of dvuhin only. The office of doshin and yoriki
(called a "possession"®') was held for life only; but
usually the son stepped into bis father's place.
The principal town officers of the people themselves
were the Town-Elders®® (corresponding to the Osaka
Chief Elders) and the headmen®® (corresponding to the
Osaka ward-elders). The chief business of the former
was the promulgation of the Magistrate's regulations, the
supervision of the headmen, and the reception of petitions,
reports, etc., from the people for transmission to the
1. Mi (see)-tiarai (learn). 2. Fusoku minarai. 3. To-
shiyori. 4. Mushi-toshiijori. o. Toshiyori-nami. 6. Moiwkaki.
7. Miinokiiki-nami. 8. Soye-monokaki. 9. Soye-monokaki-nami.
10. Hon-zutome. 11. Hon-zutome-nami. 12. Minarai. 13. Fusoku-
minarai. 14. Neinbunkata; the "yearly" offieer was usually higher
than the monthly officer. 15. Gimmi-kata. 16. Shi-clm torishimari-
gakari. 17. Unknown. 18. To-ban. 19. Honjo mi(sen)-mawari
(going about). 20. Roya-mimatcari. 2\. MachiUtcai-slio mimawari ;
see infra, " Taxation." 22. Saruya machi kwaisbo mimawari ; see
Part III, p. 169. 2Z. Kado-fukisho-mimmcari. 24. Taka-tsumi ara-
tame. 25. Hakodate (a port in the northern islnni)-kwaisho-gakari;
any place where«a body of officials met might he termed a kwaisbo.
26. Machi-hikeshi-niusoku aratame. 27. Kakaye-ba. 28. Machi-
toshiyori. 29. Nanushi.
58
PRIVATE LAW IN OLD JAPAN :
Magistrate. Ever since the period Tensho (1573-1591)
their number had heen 8, and the office became hereditary
about that time. ^ The city was divided into 8 parts,—North,.
Middle, and South, and it is said that they managed
the city affairs monthly in turn; but what the arrangement
was does not appear. Their compensation consisted in the
income of several plots of residence-land (each gettiug some 500
or 600 ryo aunually, a large sum for the times), together with
a few other perquisites, and the rights to use the family
name and to appear at the Shogun's Court.
The headmen date their origin to an even more
remote period, that is, probably to the time when YedO'
was still a country village in the early part of the 16th
century, and the Tokiigawa family had not yet made
it their headquarters. They appear to have been known
sometimes (as late as Keian, about 1650) as kimoin, a.
term which meets us in later times (for such an office) only
in Sendai and a few other places. It seems that, as in
Osaka, many cho (or wards) had no headman, though
this was probably not as common in earlier times as
in later. A headman might have in charge from 1 to
25 cho. About 1725 the number was some 265 in aU,
The headmen had early grouped themselves into companies
[kumi) arranged by localities,—the Kanda company, the
Nihonbashi company, etc. But later (probably about 1725)
the Magistrate had them grouped by numbers into 21
regular companies,—1st, 2ud, 8d, etc., with two other special
ones. Three of these acted as distributors of the
proclamations transmitted through the Town Elders, and
took yearly turns in office [ko-guchi ittnhaji 7ia7iushi).
There was also another grouping which seems to have
included two or more in each of the local companies,,
a grouping according to the nature of the special work
assigned to each one. At first this grouping included
1. Tbey were known as the san-tosliiyori (three elders).
INTRODUCTION ; LOCAL ADMINISTRATION.
only a number of headmen deputed to supervise sundry
affairs (shoshiki-tjakari) demanding united action. Afterwards
the groups were increased and seem to have taken in
the entire body of headmen, each having some special
subject of concern in addition to the supervision of local-
affairs in his cho. This classification (as it obtained about
1840) was as follows; Town Management^ (48 men), Mis¬
cellaneous Affairs 2 (.50 men), Registration, ^ Rice, ^ Imported
Wine, 5 Books and Illustrated Periodicals, ® Tubmakers'
Taxes,Town-Assembly-OfBce, ® and a few others. The
headman might not carry on a trade, unless specially
permitted. His salary varied from a few ryo up to 300'
ryo, apparently according to the size of bis district.
He also took as a perquisite the fees for registering,
transfers of land, known as bu-ichi-kin (percentage-money).
These made in all no inconsiderable sum, and were in
fact the subject of much complaint by the people.® The
ofSce was hereditary, though if no heir was left
the householders of the district selected some one
and obtained the Magistrate's sanction. But it had
none of the prestige of the Town Elders, although
towards the end of the Shoguuate a number of headmen
were for meritorious services given the privilege of using
the family name and wearing two swords. There were,
however, certain social distinctions between the different
families of headmen. Highest in standing came the
pioneer headmen,who had been the original settlers
in the ward or had come there with the To . ugawa family
next, the " headmen of old wards,"^i who had lived in that
1. Shi-chu tori-shimari-gakari. 2. Shonhiki-tori-shimari-gakari.
3. Nimbetsu gakari. 4. Komekata-gakuri. 5. Sake-nyushin-gakari.
S.Yezoslii-oyobi shamotsu-gakari, 7. Okeduru-zakusen-gakari. 8. J/a-
chikwaisho-gakari. 9. See infra, under "Taxation." 10. Kusawake
(undergrowtli-di *ders, i.e. patlifinders)-jian!<s/(i. 11. Furumnchi-
naniish i.
60
PBIVATE LAW IN OLD JAPAN
ward time out of mind ; then the " common headmen,"i
whose wards were settled in recent times hy removals from
the adjacent country; and finally the " gateway
headmen," 2 whose wards were lands lying near temples
and owned chiefly by the priests. The position which
these last wardsmen occupied (for of course these ranks
were more or less applied to the individual wards as well
as to the headmen) may have been due to the fact that
they paid rent to the temples, whose lands were exempt
from taxes, and thus, not sharing in the burdens of their
fellow-townsmen, were less esteemed by the latter. The
■"pioneer" and "old-wards" headmen had the privilege
■of appearing at the Shogun's Court, like the Town Elders.
The wards without headmen were not unprovided for,
for a sub-headman, known as tsuki-yyoji (monthly director)
was appointed. This official ■was apparently selected
from the resident householders, and served in his turn
monthly. The total number varied, hut about the year 1800
it was 109. The same title -was applied to the monthly
directors of the guilds, and it is sometimes difficult to know
which is intended.
In Sendai also the double Magistracy was employed.
The Town Magistrates originally transacted in their own
mansions the business of the position, taking their turns
monthly; but afterwards two Offices were built, and they
then occupied these, each in turn presiding, and always at
the same Office. The preliminary examination of criminals,
however, was held at the Magistrate's residence. Each
Magistrate had a small staff of monokaki (clerks) and yokume
(inspectors), who corresponded probably tcfc the yuriki and
dosldn of the Tokugawa administration. The city was divided
into 24 wards, over each of which was a keiulan (bailiff)
and a kimoiri (headman). The kendan seems to have
1. Hira (common, in the derogatory Bease)-tianus/ti. 2. Monzen-
■itanutshi.
INTRODUCTION : LOCAL ADMINISTRATION.
61
been more closely connected •with the Magistracy than,
the kimoiri. His functions were the assessment and
collection of certain taxes, the management of family-
registration and land transfer, and the censorial supervision
of the ward-elders and the head company-chiefs. The
kimoiri assisted him in all these duties. In each ward
there were from 1 to 3 ward-elders (inachi-toshiijori),
who attended to local taxation and were the medium of
communication between the people and the higher officers.
In a large ward there was also a head company-chief
[jo-kumi-fiashira), who assisted in sundry matters of
local administration. There was one such person for every
80 houses. Under all were the five-men companies,
each with a chief. But here each member of the company
took turns, yearly or half-yearly, as its chief. All these
officers were appointed and discharged by the Magistrate,
except the company-chiefs, and even in that case
there was probably some interference from above. But
it would seem that the offices were held at least for
life. The salaries of the kendan and kimoiri consisted in
one-third of the income from certain houses given them by
the lord of the fief; though the amounts varied in different
districts. The ward-elders and head-company chiefs re¬
ceived no salary, but were exempted from all taxes.
In Nagasaki,! there were in fact only two Magistrates
exercising power; a third belonged to the office, but for
two years each one by turns retired to Yedo, leaving only
two in control at any one time. The tosJiiyori here were 4
in number, and their offices were hereditary. According
to Kaempfer they had before 1688 been chosen by the
people of the town and invested with rights of tax-
1. All references to Nagasaki in these pages are founded on
Kaempfer's |ccount. His minute description of local order in
Nagasaki is ■well worth reading for the vivid picture it gives of life in
a Japanese city two centuries ago.
•62
PRIVATE LAW IN OLD JAPAN :
collection; but about that time they suffered, in common
with the popular officers of other Shogunate towns, a great
diminution of privileges. Attached to the toshiyori were
two sets of officers, the josnji and the itenyyoji, who had
a partly representative character and were taken from
among the headmen of the wards. These wards, 87 in
number, each had a headman (here called otona), whose
duties were the same as elsewhere. There were also in each
ward 3 o-kiimiyashira (head company-chiefs), to assist
the headman; a hisha, or public secretary and notary
taking charge of proclamations, passports, certificates,
registers, etc.; and a takura-kaku or treasurer. The yonin-
yimi (five-men companies) existed here as elsewhere; hut
only proprietors were enrolled in them; renters were
excluded.
This outline, brief and lifeless as it is, must suffice
as an introduction to the topics of local administration
constantly alluded to in the ensuing Parts. With the
subject of local administrative methods are intimately
■connected three others, which may best he taken up in
this place, before going on to the description of commercial
methods,—the religious organization, the administration of
justice, and the tax system. We come, then, to the
8. Religious Organization.^
Every temple must belong to either the Shinto or
the Buddhist cult. Of the former little need he said here.
The Shinto belief is of great importanae in the study of
1. As yet we know but little of the real religious life of the
Japanese; but fortunately Mr. Lafcadio Hearn is now making a
special study of religion in connection with local life. It is a little
singular that the person who of all sojourners in Japan has expressed
himself in the most pronounced manner against the mission system
should be the person best informed on Japanese religion.
INTRODUCTION : RELIGIOUS ORGANIZATION. 63
local social life and of folk-lore, but it had few relations
with law and administration. This was due in large
part to the lack of administrative organization within
the cult itself. There seems to have been no hierarchy,
in the full sense of the word. There was a Government
director, and there were chief temples at Ise and at
Idzumo, the centres of religious patriotism. But the
local temples (not including the wayside shrines without
incumbents) were held as benefices by particular families,
and their inter-connection seems to have been slender. The
uji-yami or patron deity of a locality was probably in
the beginning the deified ancestor of some noble family
of early times, and the temples stiU continued to be in
the patronage of that family. In the Tokugawa
dominions the kannmhi (deity-master) or incumbent must
liave possessed a certificate from the family owning the
•advowson.
In the Buddhist cult we find a number of sects having
a complete (though by no means uniform) organization
embracing the lowest and highest temples in one adminis¬
trative system. A priest might rise from a humble parish
temple to be chief of a whole sect. The parish priest of
Buddhism, like the Roman Catholic priest, was an im¬
portant figure in village and family life. His presence
was sought on all the important occasions of life,—birth and
death, local and national festivals. As the keeper of the
sect-register (to be described later) he had a supervision over
the affairs of every family. Every villager must belong to
some sect, and no one could change from one to another
without good reason. If the conduct of the priest was
-oppressive or otherwise improper, the parishioner might
apply to the authorities for leave to change : and if a new
temple was established, the villages were free to join it if
they wished. But the establishment of new temples was
discouraged, aftd no gifts of land could be made to any
unauthorized temple. The support of the temple was
64
PRIVATE LAW IN OLD JAPAN :
derived paidly from the money gifts made by its parish¬
ioners (that is, on festival-days, and on the occasion of death,
etc., when the services of a priest were needed), but chiefly
from the land owned by the temple and hired out to the
villagers. These titles could often be traced back hundreds-
of years, and were usually pious offerings of parishioners
who had bestowed {kiju) them on the temple in payment for
prayers to be made on their behalf. If these possessions
were large, there were regular tenants,—known as monzeti-
hyakmho (gateway-farmers), because the land usually lay
near the temple. If the land was scanty, it was let to this
or that farmer to cultivate in addition to his own land.
It seems, too, that sometimes the whole village performed
annually a certain stint of work in the cultivation of the
temple lands.
The control of the temple property was by no means
entirely in the hands of the priest, as appears in Part V.
But just what relations existed between priest, parishioners,
and Government as to the disposition of temple-property is
a diflScult question. The Tokugawa Government had always
kept a watch over the temple treasures,—the portable
articles, which were owed chiefly to the benefactions of
Emperors, didmyo, sitmivai, and commoners. A rule
existed by which an annual inspection of certain important
temples and a registration of their possessions was to be made
by the Shogun's commissioners. In 1738 a proclamation
was issued, prohibiting his pawning or selling of images,
votive offerings, utentels, and other movables. The
understanding of the present time as the customary con¬
ception of the relations of the parishione* to the temple may
be gathered from the law of 1878, which divides temple
property into two classes, common and special; the former
may as a rule be sold only with the written consent of the
priest and all the parishioners; the latter—embracing the
homotsu, or valuables, such as censers, paintings, etc.—
may be sold under the same formalities, but only when
INTRODUCTION t RELIGIOUS ORGANIZATION. 65
it is absolutely necessary in order to preserve the existence
of the temple.1
But there was, in the Tokugawa dominions at least,
a distinction between ordinary parishioners and kaiki, or
founders, and their successors. The latter alone (and we
may suppose that they included also those who had made
donations of land to the temple) could have a voice in the
election of a parish-priest, when the office became vacant. In
some, if not in aU sects, this custom of choosing by the voices
of the people (nin-sen) prevailed. Their choice was, however,
much restricted by what we probably must call custom or
habit rather than law or regulation. Moreover only the small
temples had parishioners possessed of vested rights. The
larger ones were endowed so well by nobles that they were
independent of their congregation. The only eligible
persons, of course, were those who were already devoted to
religion, and among them, it seems, those only who
had a religious relationship {ho-rui) with the predecessor.
Just as every individual must belong to a family, just
as every artisan must either belong to some master-artisan
or be himself a master-artisan, so every priest must
be united in some religious relationship. Out of these
religious relatives (the predecessor's own disciples or,
it would seem, co-disciples of a common master) the
successor must come. The rules varied in the different
sects. In the Shin sect, for instance, where marriage was
allowed, the successor would probably be the natural or
adopted son; and in that sect promotion to the higher
offices was hence a slower and more uncertain matter.
Moreover the sanction of the district or chief temple was
always necessary.
Every sect had its chief temple (/ton.jaii)— most
of which were in Kyoto—and its vice-chief temples
1. For a few further notes on the present aspect of this
question, see an article by the writer in " The Nation," April, 1892.
Vol. XX. Snp. JPt. 1.—3.
€6
PRIVATE LAW IN OLD JAPAN :
(chu-honzan), controlling large districts of country. The
kumiai-dera (district-temple) seems to have been the leading
temple of a stiU smaller district. For these districts and
for the general affairs of the sect there were various
administrative officers. The most important in legal affairs
was the fiire-gashira (proclamation-chie^, who seems to
have had charge of legal disputes before they were brought
before the Temple Magistrate, and to have supervised the
publication and enforcement of the latter's proclamations.
The same term was applied to certain officers having a
supervision of the blind, the beggars, the outcasts, the
fortune-tellers, the strolling players, and other itinerant
persons not regarded as belonging to the class of ordinary
commoners. The fure-yashira was in effect a subordinate
of the Temple Magistracy; but he had very intimate
relations with the temples. There was one at ever}- temple
of any size, though he was not under the control of the
incumbent of the temple. He seems in part to have
had the function of the metsiike (censor or inspector), and
to have acted as a check on the priests of the temple.
At the honzan (chief temples) themselves there were
two systems of administration, doubtless sometimes found
mingled. By one the officers were all priests, taken
from the leading ones in the temples of secondary
importance. The ascent to this position was gained
largely by seniority of rank. Seniority depended chiefly,
though not entirely, on age,—that is, on one's religious
age or horo. If a man went into the priesthood at the age
of 18, then when he was 40 years ol<F his Jioro was 22.
Where two priests of the same sect met, their relative
rank was determined by their respective horo, unless
special merit, as shoivn by mastery of the doctrine or
otherwise, had gained for one a particular increase of
rank; but between priests of different sects the horo
alone governed. The organization of officers was some¬
what similar to that of the Government to-day,—a chief
introduction: religious organization. 67
priest, chiefs of departments, heads of bureaus, etc.
The chief priest was at the head, but his power was
by no means an absolute one, and was limited in various
ways by the powers of these other officers.
Such was the system of priestly officers. The other
system was in outline not greatly different, but
the officers themselves (at the honzan) were secular
persons—that is, samurai who held land of the honzan.
The temple officials were chosen from these retainers,
just as the daimyo chose their chief seneschals (karo),
etc., from their leading vassals. Such, for instance, was
the organization of the Hongwan Temple in Tsukiji,
Yedo,—where even to-day the broad moat on two sides
and the tall stout walls completing the square still convey
an impression of the military ways of the great temples in
the Tokugawa days. In the earlier times of the 16th
century, indeed, the temples had possessed vast feudal
estates and maintained large bodies of knights. In one
or two of the precedents in Part III we find the Hongwan.
Temples appearing by their kerai (retainers), and claiming
the privileges of daimyo in this respect.
The chief importance of the temple in its local relations
was its function as the registry-office for the families of
the ward or viUage. Every family was required to
be registered in fuU at some temple. This is sometimes
said to have originated in a measure of the third
Tokugawa Shogun, lyemitsu, about 1630, when he
brought about the final extirpation of Christianity. But
there was a registration system in Japan more than a
thousand years ago, and it is likely that the measures
of lyemitsu were merely a part of the general reorganization
effected under the first and third Tokugawa Shoguns,
by which many of the institutions which constant war
had weakened "were restored and strengthened. The
prevention of Christian propagandism was of course
greatly aided by this temple-registry system; but we
68
PRIVATE LAW IN OLD JAPAN :
must regard this as only one of its functions. There were
apparently three principal documents connected with this
registry. One was the certificate which each family
possessed; another was the general register; and a third
was the annual summary sent to the dailm-an. The names
were respectively ka-shu (family-sect) slwmon (instrument),!
sliumon-cho (religious-sect book) or nimbetsii (persons' difie-
rence)-c7(o, and nimhetm kakiage-cho. But there can be no
doubt that these terms were loosely and interchangeably
used, as Parts II and V show. There was also a certificate
which the headmen handed up every year (presumably at
the time of revising the temple-register), enumerating the
famihes and their members, and certifying that there were
no Christians among them. As these documents picture
accurately the religious afiihations of the people, I give the
first and last portions of one of them, the original of which
is now before me :
" Tenna, HI, 3 (1683).
We have been ordered to make an
investigation as to the existence of Christian believers, and
we have made it, including aU from householders and house-
renters (counting men, women, children, and servants)
to priests, yamahttshi,^ gyo-ja,^ komuso,^ bell-strikers,® out¬
casts, and beggars. But we have not found any behevers
of that faith, and we are positive that there are none.
* * * [The list of persons is as follows :]
The family of Yagoyemon :
Yagoyemon is 30 years old,»a parishioner of
Anraku Temple, of the Zen sect in this village;
was born in the village, and his family have
been farmers here for generations.
1. Or tera-ukejo (temple-certificate). 2. A kind of wandering
priest, who begged alms. 3. A sort of hermit. 4. One of a class
of samurai outcasts. 5. Probably disciples in the temples.
INTRODUCTION : RELIGIOUS ORGANIZATION.
69
His wife is 29 years old, a parishioner of Anraku
Temple, of the Zen sect, in this village, and a
daughter of Kanya, a parishioner of Yemman
Temple.
His daughter Tatsu is 8 years old, living at her
father's house, and is a parishioner of Anraku
Temple.
His boy Semmatsu is 4 years old, living in his
father's house, and is a parishioner of Anraku
Temple.
His maid-servant Man is 20 years old, a younger
sister of Sahuroyemon, in Nakadate village,
Naka Icori, and is bound to Yagoyemon for 3
years (year of the Dog to year of the Ox), and
is a parishioner of Joko Temple, in this village;
her surety-document states that her surety
has a temple-certificate, which we can produce
if desired.
Another maid-servant, Fuki, is 21 years old, a
daughter of Heij^emon, of Misawa village,
Kawachi kori, and is bound to Yagoyemon
for 3 years (year of the Dog to year of the Ox),
and is a parishioner of Joko Temple, Zen sect,
in this village; her surety document states
that her surety has a temple-certificate, which
we can produce if desired.
Another maid-servant, Kesn, is 15 years old, a
daughter of Kinyemon, of Ochi village, Kawachi
kori, and is hound to Yagoyemon for 5 years
(year of the Dog to year of the Hare), and
[her family] have been parishioners of Joko
Temple for generations; her surety-certificate
states that her surety has a temple-certificate,
which we can produce if desired.
His man-servant Shimazo is 19 years old, and is a
parishioner of Joko Temple.
70 PRIVATE LAW IN OLD JAPAN ;
Another man-servant, Icliirohei, is a son of Ichiye-
mon of Otsugoro village, Naka kori, and is
bound to Yagoyemon for 2 years (year of the
Dog to year of the Eat); he is a parishioner of
Joko Temple and his surety-document states
that his surety has a temple-certificate, which
we can produce if desired.
Another man-servant, Moyemon, is 47 years old,
a son of Shichiyemon, and is bound to Yagoyemon
for 3 years (year of the Cock to year of the Rat);
he is a parishioner of Joko Temple, and his surety-
document states that his sm-ety has a temple-
certificate, which we can produce if desired.
¥ 'I*
sis sic
The total number of the above persons is 176;
84 men, the rest women. There are 8 other
persons, not included in the above, who are
married to families in other villages, hut without
a formal ceremony. i
84 of the above persons are parishioners of this
Church ; if any take up the Christian faith, we
will investigate the case and persuade him to
give up his error.
We certify to this.
Joko Temple, Zen sect of Gokurakuji
village, Naka koii.
18 of the above persons, etc., etc.
We certify to this."
Hokyu Temple, Zm sect, Usari
village,® Naka kori.
1. The above is written by the headmen ; now follow the certifi¬
cates of the different temples. 2. This seems to be a case where
different groups of houses were known as mura by distinctive names,
though all included under one larger mura as an administrative
district.
INTRODUCTION : RELIGIOUS ORGANIZATION.
71
43 of the above persons, etc., etc.
We certify to this.
Anraku Temple, Zen sect, Jutenji
village, Naka Icon.
10 of the above persons, etc., etc.
We certify to this.
Kinsho Temple, Zen sect, Narushima
village, Naka kori.
14 of the above persons, etc., etc.
We certify to this.
Ryosen Temple, Hokke sect, Naru¬
shima village, Naka kori."
Intertwined with the ordinary local administration and
inseparable from it was the
4. Administration of Justice.^
In Puchta's "Outline of the Science of Right" occur
the folio ;ving passages :
" The relationships of Rights are the relations of one
man to another, and may be called legal relations. But the
various human relationships do not enter, iu their full
extent, into the sphere of Right, because the legal notion of
a person rests upon an abstraction and does not embrace
the whole being of man. Tbere must, therefore, occur
much modification and subtraction before we reach the
special relations which alone are involved in the idea of a
1. Some of the following passages are taken, by permission
of the editor of the " Green Bag," (Boston), from an article by
the writer in that magazine for September, 1892.
■72
PRIVATE LAW IN OLD JAPAN:
Eight. Thus, suppose a man has arisen from a protracted
illness, and in order to pay the bill of his physician, to
provide for the urgent wants of his family, due to his re¬
cent incapacity, and to procure the means of beginning
business again, he goes to a well-disposed neighbor, whom
he has helped in former times, and obtains a loan at the
usual rate. How much of all this must we not leave out
in order to ascertain the purely jural relation between the
parties ! Compare with this the case of the rich man who
raises capital merely to add to his possessions hy a new
speculation, and consider the effort of abstraction which is
required in order to assimilate the resulting legal relations.
And yet the legal relations in these two cases are identical."
For the Anglo-Saxon lawyer, accustomed as no other
is to do homage to strict legal principle as in and for
itself the sxmnnim bonum of law, and to regard legal justice
as manifesting itself only in a science of unbending rules,
this quotation will indicate better than anything else the
great gulf that is fixed between his own system and that
which was indigenous to Japan. By making generaliza¬
tions into hard-and-fast rules, by strictly eliminating in
individual cases a variety of important moral considerations
(much as certain English economists worked out their
science with respect only to the wealth-acquiring motive),
the Anglo-Saxons have succeeded in creating a special type
of justice. This tendency of theirs is so strong that English
Equity, the one great efibrt to counteract it, has tecome
in the end identical in these respects with the whole system.
Yet there are peoples to whom this type of justice is
utterly alien. Even on the Continent ^his impersonaliza-
tion (if we may so call it) of justice has never reached
such an extreme. For example, the French Civil Code
has a " delai de i/rdce," which the court may accord to a
debtor whose misfortunes render inequitable the immediate
enforcement of a claim in its entirety, but it is in Japan
that we may find the extreme antithesis to the Anglo-Saxon
INTRODUCTION I ADMINISTRATION OF JUSTICE. 73
couception of justice. Whether there is or not any
practical lesson for us in studying this opposite type, is
a question which cannot here be taken up. However this
may be, the chief characteristic of Japanese justice, as
distinguished from our own, may be said to be
this tendency to consider all the circumstances of in¬
dividual cases, to confide the relaxation of principles to
judicial discretion, to balance the benefits and disadvantages
of a given course, not for all time in a fixed rule, but anew
in each instance,—in short, to make justice personal, not
impersonal. It would not be fair to infer from this that the
courts of old Japau could have been no better than the tents
of an Arab Sheikh, where justice came roughly and speedily,
and the good sense of the tribunal was the only measure of
equity. On the contrary, there was in Japan, as the ensuing
volumes show, a legal system, a body of clear and consistent
rules, a collection of statutes and of binding precedents.
But whether it be or not a mere mark of primitive legal
development, there was always the disposition to take, as
Pucbta puts it, " the whole being of man " into considera¬
tion, to arrange a given dispute in the most expedient way,
to sacrifice legal principle to present expediency. This is
the first notable characteristic.
The second is that Japanese justice was essentially
feudal in its spirit. At every step this quality shows itself.
Chiefly affected by it, of course, was the criminal law. The
common people necessarily came in for a meagre amount of
respect in the feudal polity, except as wealth-producing
instruments, on whose effectiveness the subsistence of the
military class depended. They were restricted and punished
with a severity characteristic of feudalism everywhere. The
features of their status and the kinds of punishments were
not substantially different from those of European nations
at similar stages of social development. On the civil side
the result of fgudalism was that the dispensing of justice
between disputants appeared as a boon from the lord to his
74
PRIVATE LAW IN OLD JAPAN I
suppliant subjects. The first duty of the faithful commoner
was not to disturb his lord's peace and waste his own time
by becoming involved in a dispute. A litigious community
was the worst of evils. An obstinate plaintiff, even with a
just cause, might fare in the end not much better than the
defendant. A good example of this, in high life, was the-
dispute over the succession to the fief of Echigo.i The
incumbent daimyo, Mitsumaye, was childless, and one of
the two seneschals intrigued with the lord's brother,
Nogayashi, to have the sou of the latter adopted as heir to
the title and the fief; while the other seneschal used his-
efforts against this step, and to gain his purpose brought
the matter to the attention of the Shogun. The latter looked
upon the inability to come to an agreement as seditious and
dangerous in its tendencies, especially in a quarter where-
only the example of peace and smoothness should be set j
and the decision was that the daimyo and his brother should
be exiled, with the complaining seneschal, while the other
intriguer was to be put to death and the fief confiscated.
No doubt a jealousy of the power of this large fief was one
of the elements in this particular decision.
The spirit of feudalism entered largely also inta
procedure. There was a great deal of learning as to sum¬
mons, writs, and appearances; and in these matters the
military gentry (and the priesthood shared these privileges-
in part) were exempted from some of the ordinary require¬
ments. The commoners were to assume the most abject-
attitudes in the august presence of the judge. I have been
told that one of the reasons why the mercantile classes re¬
sorted little to the courts in their disputes was the necessity
of humiliating themselves so deeply in their quest for
justice,—of crawling, for instance, on hands and knees from
he door 'ff the court to the judgment-room. This is some¬
what oveiv.;awn, however, and was probably true only
1. Mentioned by Eudorff, in "KecLtspflege under den Toku-
gawa."
INTRODUCTION : ADMINISTRATION OF JUSTICE. 75
of the haughtier merchant-princes or money-lenders, who
could have bought out a daimyo, had their birth permitted
them, and could not bring themselves to cringe to men in
petty authority.
In the initial stage of a dispute we find that justice was-
attained not so much by the aid of the law as by mutual
consent. Customs there were, and definite ones ; but they
were always applied through arbitration and concession.
This feature of the jural life of the nation is not without its
parallel among other Oriental peoples ; but I fancy that it is
here peculiarly pronounced, and it is worth dwelling upon.
I have spoken of the marked disposition to make justice-
personal, to let many external considerations enter into the
settlement of a controversy. The exigencies of mercantile
life reduced this disposition in towns to a minimum ; and it
attained its greatest influence in the country. But, joined
with this, perhaps even more powerful and deeper rooted in
the character of the people, was the tendency to concilia¬
tion, to make everything smooth,—a tendency which is still,
it may be suggested, the best key to much of the Japanese
character. Not to attempt too much refinement of analysis, it
may perhaps be laid down that a chief quality of that character
is not so much a predominance of the emotional nature
as the comparative weakness of the will. A consequent
disinclination to act, a desire to avoid obstacles, to make
things as easy as possible, explain many traits. The
fierce determination to do, which Anglo-Saxons know so
well, is wanting. The leisurely way of carrying out an under¬
taking, the lack of a power, as some one said of Cecil, Lord
Burleigh, to "toil terribly," the shrinking from physical
violence,—these seem to point back to the quality I have
named. The perfection to which the art of politeness has-
been developed, the opprobrium which rests upon loud,
violent, rough, uncouth, agitated behavior, is equally sug¬
gestive, and flows from a worship of tranquillity and smooth¬
ness in social intercourse. The commonest coolie is more
76
PRIVATE LAW IN OLD JAPAN :
■courteous to the friend who passes him on the street than
is the prosperous American merchant. In numberless ways
a Japanese will put up with annoyance and even positive
abuse of his rights, without thinking it worth while to do
more than politely protest. If we can imagine the exact
contrary of the spirit inculcated by the late Prof, von
Ihering in his " Struggle for Rights," we shall understand
the Japanese spirit. Even the disregard of truth some-
iimes complained of by foreigners in Japan is perhaps at
bottom (so far as it may be more noticeable than in the
West) politeness and the dislike to offend carried to an
extreme. Many of us can testify to promises made with full
knowledge of inability to perform, to fibs told where the truth
would have done no real harm, and to other incidents equally
annoying and equally contrary to our ideas of good faith.
The simple explanation is that, rather than say to your face
what he knows will be unpleasant, your Japanese friend has
stated or promised what he thinks you would like to hear.
This thought is perhaps not consciously present; but
heredity and tradition have made such a course instinctive
with him. After one has discerned by experience, it is
easy to make allowance for this disposition, and between
persons to the manner born it perhaps causes no more
inconvenience than does our conventional "not at home."
I do not for a moment say that the incidents I have
referred to are of every-day occurence in Japan. I suggest
merely that the spirit of regard for the feelings of another
which prompts us to say " not at home " to an acquaint¬
ance, rather than announce that we are at home but
(impliedly) do not Ciire enough for him to see him, is
much more powerful in Japan than with us, and receives
a more frequent practical application. It is probable
that a Japanese would seldom be deceived in such cases, just
as in our own cities the conventional " not at home " de¬
ceives no one. Another characteristic, kindred to all these,
is the general peaceableness and happiness of society in
introduction: administration of justice. 77
Japan. One can see in New York in one night such exhibi¬
tions of violence, brawling, and abandoned lawlessness as
one would not see in an entire year in Tokyo. Poverty and
want are nowhere accompanied by such tranquillity and
sobriety as in Japan. These are all more or less direct
manifestations of a deep-seated opposition to whatever
implies clash, clatter, shock, roughness, strain, in any shape,
and an inclination to make everything quiet, smooth, easy,
harmonious. In short, the Japanese are confirmed quietists.
If I have seemed to digress in illustrating this, it is because
this quality in one of its manifestations had so great an
influence on the administration of justice.
The result, then, was a universal resort to arbitration
and compromise as a primary means of settling disputes.
It was, and to a great extent still is, an ingrained principle
of the Japanese social system that every dispute should,
if by any means possible, be smoothed out by resort
to private or public arbitration. The machinery ®f
local government, under the old regime, was employed
for this purpose, if friendly mediation failed; but no efforts
were to be spared to settle the matter in this way, and in
practice the vast majority of disputes were so disposed of.
It is true that the interests of the feudal aristocracy in
preventing turbulence and open quarrels among the common
people led them to foster the disposition to arbitrate, and
such a procedure was enjoined by law. But the legislation
was only cumulative in its effect, and was probably intended
to stem a tendency, perhaps in towns, to break away from the
old customs. The consequence was that even where a law¬
suit ultimately resulted, a long stage of negotiation had
invariably preceded, and it was (in the rural regions) only
an irreconcilable difference that ever reached the seat
of judgment in Yedo.
The principie of arbitration resulted thus "In case
of a disagreement between members of a Immi, the five heads
1. Quoted from Dr. Simmons.
78
PRIVATE LAW IN OLD JAPAN ;
of families met and endeavored to settle the matter. All
minor difficulties were usually ended in this way. A time
was appointed for the meeting; food and wine were set
out; and there was moderate eating and drinking, j ust as
at a dinner-party. This, they thought, tended to promote
good feeling and to make a settlement easier ; for everybody
knows, they said, that a friendly spirit is more likely to
exist under such circumstances. Even family difficulties
were sometimes settled in this way. Thus, if a man abused
his wife, she might fly to one of tlie neighbors for protec¬
tion, and, when the husband came to demand her, the
heads of families in the kumi would meet and consult over
the case. If a settlement failed, or a man repeated his
offence frequently, he might be complained of to the next
in authority, the chief of companies ; or else the neighbors
might take matters into their own hands and break off inter¬
course with him, refusing to recognize him socially. This
usually brought him to terms. An appeal to the higher
authorities was, as a rule, the practice in the larger towns
and cities only, where the family unity was somewhat
weakened, and not in the villages, where there was a great
■dislike to seeking outside coercion, and where few private
disagreements went beyond the family or the kumi.
" A case which could not be settled in this way was
regarded as a disreputable one, or as indicating that the
person seeking the courts wished to get some advantage by
tricks. In arranging for a marriage-partner for son or
daughter, such families as were in the habit of using this
means of redress were studiously avoided? It was a well-
known fact that in those districts where the people were
fond of resorting to the courts they were generally poor in
consequence. The time spent and the money lost reduced
the community to poverty.
If even the company-chief could not settle the matter,
it was laid before the higher officers, the elder and the
headman. In fact, the chief village officers might
introduction: administration of justice. 79
.almost be said to form a board of arbitratioa for the settle¬
ment of appeals; for in deciding the case the headman
received the suggestions of the other officers. It was
discreditable for a headman not to he able to adjust a case
satisfactorily, and he made all possible efforts to do so. In
specially difficult matters he might ask the assistance of a
neighboring headman. If the headman was unable to settle
R case, it was laid before the daikwan, who however almost
invariably first sent it back, with the injunction to settle it
by arbitration, putting it this time in the hands of some
neighboring headman, preferably one of high reputation for
probity and capacity."
There are in the volumes of Legal Precedents no
records of cases other than those reaching the Magistrates ;
and the following case may serve to illustrate the course of
justice under the daikwan. The documents come from akori
in Kai kuni and date back some forty years.
" Deed of Settlement.
A few years ago a dispute arose in regard to the posses-
-sion of a piece of land in Gokurakuji village, producing
■fifteen bales of unbailed rice, the complainant being Sakura-
bayashi Samayemon, patron of the Ubata (Shinto) Temple,
in Miyawara village, and the defendants being Gantei, chief
priest of Anraku (Buddhist) Temple, and Kinrei of Zoko
•(Buddhist) Temple, in Gokuraji village. This complaint
was first brought before Sasaki Michitaro, Esquhe, the late
daikwan, and the defendant filed his answer ; but the case was
afterwards transferred to Morita Okutaro, Esquire, the pre¬
sent daikwan, and the investigation has been going on. In the
mean time the persons mentioned below have mediated be¬
tween the parties, and have brought about the following settle¬
ment, which we hereby communicate to the court;—
" The statement of the complainant was that the
Ehimmei Shinto-temple of Gokurakuji village was from
time immemorial an appurtenance of Ubata Temple, in
Eiiwara village, and under the patronage of the com-
80
PRIVATE LAW IN OLD JAPAN :
plainant's family.^ Now, one of the plots, 120 feet by
192 feet, which belonged to this estate, was inundated in
Horeki Period (1751-1764), in the lifetime of the com¬
plainant's grandfather, and became waste. When the com¬
plainant succeeded to the office of patron, he thought the
land ought to be by that time reclaimable, and he inquired
about it of the officers of Gokurakuji village, in which it
lay. The latter evaded the inquiry, though it was often
repeated; and the complainant began to suspect that the
land had long ago been reclaimed by the villagers, and was
being cultivated by them. He discovered, on searching
further, that this was true; and that the plot had been
divided into three parts, one going to Anraku Temple, a
second to Zoko Temple,® and a third to the maintenance of
the Jizo shrine. The complainant, therefore, prayed for an
investigation by the court.
"The defendant's answer was as follows : It is true
that there is a plot of land cultivated as above, and not
included in the taxable land of Gokurakuji village. But
this plot was from Shotoku Period (1097-1099) to Kyobo-
Period (1716-1736) in the possession of Anraku Temple,
having been received from the village to support the temple.
The chief priest, Honko, eleven generations ago, on retir¬
ing from office, received one portion as a settlement upon
him forever; but he removed to join the Zoko Temple, and
gave his land to the latter, first apportioning a piece to
the Jizo shrine. The latter part was under the charge
of the village itself. We were on the point of asking to
have this land assessed, when the great jnundation came,
and it is only very recently that we have been able to
cultivate it at all; in fact, it is still mostly meadow.
1. The exact relation of a kannushi, or chief priest of a Shinto
temple, to the living, is not clear; but the estate of such a person
was a sort of advowson in a particular family, with right of presenta¬
tion to members of that family. 2. In many instances the
parishioners cultivated the land belonging to their temple as a
contribution towards its support.
INTRODUCTION 1 ADMINISTRiTION OF JUSTICE. 81
" Such was the controversy. Two of the daikwaii's
agents visited the spot, and examined the deeds offered
by both parties, and, after loug investigation, concluded
that the land in question must have been identical with
the plot belonging to the Shimmei Temple. But as it has so
long been cultivated by the defendants, it must be regarded
as in their permanent tenancy. The product of the plot
should be divided as follows : Landlord, 5 bales ; tenant, 5
bales; taxes, 5 bales. This arrangement has been agreed
to, and we beg to thank the court for its kindness. To
prevent future disputes, we have executed this deed of
settlement.
Kayei, 5th year (1853), 9th month, 12th day.
Complainant.
Saeurabayashi Samayemon, Chief priest of Ubata
Temple, Miyawara village.
Defendants.
Gantei, Chief priest of Anraku Temple, Gokurakuji
village.
Kinrei, Purveying priest of Zoko Temple (by his
agent, Gantei).
Yeisuke, Farmer, representing the parishioners of
Anraku Temple.
Yoshisaburo, Farmer, representing Zoko Temple.
Asayemon, Headman of Gokurakuji village.
Tadahichi, Tarobei, Chief farmers of the same village.
Sajibei, Isobei, representing the small farmers of the
same village.
Mediators.
Hachiyemon, Headman of Futsuka village.
Kanzayemon, Chief farmer of Otoguro village, (by an
agent, as he was sick).
• Addressed to
Morita Okutaro, Daikwan."
Vol. XX. Sup. Ft. i.—6.
82
PRIVATE LAW IN OLD JAPAN :
" Siipplementari/ Document.
The above settlement having been reached by negotia¬
tion of the parties, while the inquiry was in progress by the
•court, has been accepted by order of Honda, Lord of the
Province, and becomes valid. But censure has been passed
upon Gautei, one of the defendants, because, while the inquiry
was pending he violated the law by thrusting petitions into
the sedan-chair of one of the Council of State, as he passed,
and of other high officers. We acknowledge the unlawful¬
ness of his conduct, and accept the reprimand. (Signed as
before.)"
From the daikwan there was usually no appeal, in
our sense of the word. The litigants might refuse to
accept the decision of the headman and go to the daihcan,
hut with him the case must stop, so far as their own action
was concerned. This was, for several reasons, not as
unreasonable as might seem at first sight. In the first place
the daikwan was distinctly a legal official, trained as a
judge, not merely as an executive officer, and he was
competent to dispense justice according to the law.^ In
the next place, where a case was really difficult, either
in its facts or its law, the daikwan was accustomed to lay
it before his superior, the Finance Magistrate. This
method of laying the responsibility on another's shoulders
was quite congenial and was doubtless common. It took
the place which the appeal holds with us. Moreover, in
criminal cases where the severest penalties were proper,
the daikwan was required to obtain sanction for his
judgment. Finally, the litigant could indeed invoke the higher
authority whenever there was a distinct miscarriage of
justice. The recognized cases for this sort of appeal
1. I have in my possession a complete code of criminal and civil
law, of some 600 sections, used by a daikwan of the Tukugawa
region, and dating back nearly 200 years. It was the vade mccum of
the daikwan.
INTRODUCTION : ADMINISTRATION OF JUSTICE. 83
were two,—first, where an official was charged with corrup¬
tion ; second, where the lower judge had delayed un¬
conscionably the taking cognizance or the decision of a
claim; provided in all cases that the claim must be based
on personal knowledge, not mere rumor, and must not be
preferred for purposes of private profit or revenge. Such
an appeal came directly (jiki-su) before the Chamber of
Decisions, the highest Tribunal, not the Finance Magistrate,
and was to be placed in the Complaint-Box (meijasu-bako,
sojo-lako), hung at the gate of the Court.
In towns having a Magistrate, the suit might
be brought as far as his Court, and there it must
stop, unless it was referred by him to the Chamber of
Decisions, or appeal was made on the ground of denial of
justice. The latter, however, I have never heard of in case
of a Town Magistrate, and it was by no means a common
thing in suits before a daikiiaii, forthe appellant would need to
have a very good case and incontestible proofs in order to make
headway against so powerful a superior as the daikwan.
From the daikican's superior, the Finance Magistrate,
and from the Town Magistrate, a case might be laid before
the Chamber for final determination, if any circumstance
rendered it worth while,—a difiicult point of law, a lack of
precedents, a reform of policy, etc. It speaks well for the
spirit of conscientiousness (if we may apply that term)
with which justice was administered that voluntary re¬
ferences of this sort to the Chamber were so common.
Ordinarily the Chamber was the final repository of aU civil
litigation and all criminal charges ; though whenever public
interest was involved or any feudal lord of high degree
was affected, it was usual to obtain instructions from the
Council of State.
But we have so far traced only two of the
streams through which the Chamber might receive
litigation. Theie was still another,—the Temple Magistracy.
Under these Magistrates were aU the temples, Buddhist
84
PRIVATE LAW IN OLD JAPAN :
and Shinto, including the priesthood and the residents of
their fiefs. Suits between members of the priesthood
seem to have been disposed of in the first instance, by
certain law officers of the sect (the fure-gashira), if both
litigants were of the same sect; and an appeal lay thence to
the Temple Magistrate. If the litigants were of different
sects, it would seem that they could go directly to the
Temple Magistrate; and he, like the other Magistrates,
might seek the Chamber, if the case seemed to need it.
These Magistrates were the three channels by which
litigation from the Shogunate dominions might reach the
Chamber. But what of the so-called private fiefs,—the
fiefs of the "loyal dainigo" and of the lords owing no
allegiance to the Tokugawa family except as the repre¬
sentative of the Emperor ? I have already said that they
possessed more or less administrative and judicial in¬
dependence. The peace of 250 years was in reality a
truce, by which the Tokugawa family, in return for the
nominal sovereignty of Japan, gave over to the South¬
west and to parts of the North the privilege of exercising
almost complete actual control of their own fiefs. In
judicial matters there was almost no real interference by
the Shogunate in the affairs of these fiefs. Nominally the
death punishment could not be inflicted by a dahnyo without
reference to Yedo, and succession-disputes of any
consequence in noble families were from time to time
settled by the Shogun: but other than this little can
he found. Lawsuits between residents of the same fief
began and ended within the limits of the fief, and the
judicial methods did not differ essenti»Lly (however the
actual rules of law may have differed) from those of the
Shogunate. In the following Parts there are numbers of
cases in which the retainer of some feudal lord makes
inquiry of one of the Yedo Magistrates as to the disposition
of a case coming before the former as a judge;
hut these seem all to have come from fiefs owing feudal
INTRODUCTION : ADMINISTRATION OF JUSTICE. 85
allegiance ("loyal dahnyo") to the Tokugawas; and, more¬
over, even these inquiries are usually termed " private," that
is, un-official. It would seem that the Chamber was not
acknowledged even in these cases to have jurisdiction as the
next Court above the provincial Courts. Probably the latter
regarded themselves as subordinate only to the Council of
State, the representatives and advisers of the Shogun.
"We have now surveyed the different sources from
which litigation might take its rise, and the end to which it
might come. But we have considered solely the simple case
of litigation between persons under the same jurisdiction.
These jurisdictions, it will be seen, were roughly four in
number, including respectively the country people of the
Shogunate dominions (under the Finance Magistrate), the
townspeople of the Shogunate dominions (^under the Town
Magistrate), the temples (uuder the Temple Magistrate), and
the private fiefs (more or less under their own officers). But
provision was also necessary for litigation between parties
belonging to different jurisdictions; for this was of no
inconsiderable amount. Reduced to its simplest form the
principle was that the Chamber of Decisions should take
original jurisdiction in aU such cases. This principle was
sound enough, for of course no one of the Magistrates
had authority to summon persons who were out of his
jurisdiction. But though the rule may be stated in this
general form, there are several qualifications to be made.
In the first place, the claim must always have been laid
before the headman and arbitration attempted, before
the higher authorities were sought; that is, the local
judicial functions of the headman and those below him
were never suspended. In the next place, the suit
was always brought to the- Chamber through one of the
Magistrates. This institution of the suits "through"
the Magistrate always included the filing of the complaint
with him and* the preliminary hearing of the parties
by him or his Trial Bureau; but the summons to the
86
PRIVATE LAW IN OLD JAPAN :
defendant, first sealed by the Magistrate in question, was
again sealed, before sending, by the other members of
the Chamber. The Chamber itself delivered final judgment,
usually in accordance with the recommendation of the
trial Magistrate. Who the trial Magistrate should he was
determined by the plaintiflfs status; the trial Magistrate
was that one in whose jurisdiction the plaintiff was. Thus a
Yedo townsman entered his suit with the Town Magistrate,!
and a countryman in the Shogunate dominions with the
Finance Magistrate; while, for the purposes of these
suits, all residents of private fiefs were regarded as under
the jurisdiction of the Temple Magistrate. Ordinary
original jurisdiction in these cases the Temple Magistrate
certainly did not have, and he seems here merely to have
been given what was left over from the jurisdiction of the
other two Magistrates. But there is a third qualification
to make as to the original jurisdiction of the Chamber.
In the central-western regions its functions were delegated,
chiefly to the Osaka Town Magistrates, sometimes to
those of Kyoto and other places. A suit, for example,
by a resident of one of the private fiefs in the extreme
West against a resident of Osaka would come before the
Osaka Town Magistrates, and final judgment might be render¬
ed by them.2 The term " delegated " seems proper for these
functions of the Osaka Magistracy; for the latter certainly
referred to the Chamber for final judgment and instructions
from time to time, and several instances occur of the
regulation of Osaka practice by the Chamber of Decisions.
The Chamber, therefore, seems still to have been tbe
supreme tribunal, and though its powers of original
jurisdiction were in the above cases delegated to the
Osaka and other Town Magistrates, the controlling power
was never separated from the Chamber. ^
1. Besideuts of other towns having Magistrates were in this
respect regarded as under the jurisdiction of the Finance Magistrate-
2. This arrangement was not perfected until 1781; details will be
found in No. 48 of Part III, Section I. 3. This whole subject of the
INTRODUCTION I ADMINISTRATION OF JUSTICE. 87
Nothing has as yet been said about the constitution
of this Chamber of Decisions, the supreme tribunal of
justice under the Council of State. A few words, then,
first as to its origin, and, next, as to its organization.
The Hyojosho, or Chamber of Decisions, dates no
further back than the 17th century. It had its predecessors,
of course^ ; but the political system had been greatly
disorganized by the wars of the 15th and 16th centuries,
and when lyeyasu consolidated the Government at the
beginning of the 17th century, reconstruction was necessary
on all sides. His supreme tribunal (or rather, that of his grand¬
son lyemitsu, his worthy successor, who played Henry II
to his "WiUiam I) did not come until 1631, and it was in
effect an entirely new body. The first meetings, it would
seem, were held at the residence of Shimada, the Town
Magistrate, in 1631; and about 1657 a separate office was
assigned for the meetings of the members; but not for some
years did the title Hyojosho come into general use. At first
only the Town, Temple, and Finance Magistrates were called
together, under the direction of one or more of the Council
of State. Some years later one or more of the Censors
were required to attend. About the same time a system of
Court-days was established, which with some changes con¬
tinued throughout the Tokugawa Shogunate. The sittings
were to be six in a month,—three of them " formal " sittings
(shiki-jitsu), and three of them "attendance" sittings
{tachiai-bi). On the former occasions one of the Council was
supposed to be present to oversee the proceedings and to
assist in deciding cases of special difficulty; but in later
days he seems to have come only once a month. The
distribution of jurisdiction is a complicated one, and was markedl
by many changes of policy from time to time. It is here attempted
only to set forth in outline the arrangement prevailing in the present
century.
1. For soru^ account of these, see the paper of Mr. Kaneko
Kentaru,un " The Legal System of Japan," read before the Institute
of International Law, September, 1892.
€8 PRIVATE LAW IN OLD JAPAN :
latter sort were possibly so termed because only a Censor
was required to attend; but the Censor was present on
" formal" days also. The dates of the " formal" sittings
seem to have been at first the 4th, 12th, and 22nd, and of
the "attendance" sittings, the 6th, 14th, and 25th. But
it would seem that the first set of dates was afterwards
altered to the 4th, 11th, and 21st. Extra sessions might
be held when required, but they were not "formal."
The number of Magistrates was three in all. Each
■of the Magistracies was a dual office. The Town
Magistracy, as already explained, was filled by two
persons, acting in alternate months. The Finance
Magistrates were four in number, but the department
was in two divisions, the Treasury Division [Katt''-katd) and
the Lawsuit Division [Kiiji-kata), circumstances having
led to a partition of functions simUar to that which occurred
in the English Exchequer. The Temple Magistrates
were usually four in number: but it is not unlikely
that a similar division existed. StiU there is one case in
which all four took part in the decision. The presiding
Magistrate for the month in each Department was the
•one who attended the Chamber. Among the three, the
Temple Magistrate always took precedence, and at the
"attendance" sittings he presided. The order of promotion,
too, was always (it seems) from the Finance to the Town
Magistracy and thence to the Temple Magistracy.
Each Magistrate, of course, had his own staff
of assistants, some few of whom had a place at the
sittings of the Chamber. But the Ct^mber had also a
special staff of its own,—2 directors [kumi-ffanhira), 20
clerks (tomeyaku), and subordinate assistants. At a session
of the Chamber, therefore, there were a considerable
number of officials in attendance. The arrangement of the
Court room was as follows: ^ —
1. This plan and the following description are adapted from
Mr. Budorff's essay, " Eechtspjlege unter den Tokugawa."
INTRODUCTION ; ADMINISTRATION OF JUSTICE.
9
8
u
7 9 6"
9 8 5 5 5 6
10
7
7
7
,/•
44
3
2
8
a
a
2
8
8
2
8
Cs
90
PRIVATE LAW IN OLD JAPAN :
The Court-room was divided by sliding-doors (e) into
two parts, (A) the zashiki (chamber) or sexhi-no-ma (lineage-
room), and the ordinary portion, which was again divided into
(B) the shirahe-seld (trial-room) and(C) the shirasu (vestibule,
white-sanded place); though the latter term was sometimes
applied to the whole. The shirasu proper was about 24
feet wide, the walls being plastered with fine pebbles, after
the style of a vestibule ; and at the entrance {j) were (1) two
vestibule-guards {shirasu-han). The trial-room (B) began
at a level some foot and a half higher than the vestibule.
It was in three platforms, each feet wide, and each a
few inches higher than the one before it. The first was (c)
the shita-yen (lower platform), the next (b) the uwa-yen
(upper-platform), and the last (a), next to the nnine, or sUl
(f), separating it from the space where the judges sat,
the (2) nume-soto (outside the sill). Out in the vestiblue
sat the parties when of common birth,—farmers and towns¬
people. On the first and second platforms sat the yo-kenin
or lower samurai, according as their office was for life
only or was inheritable; on the third, the omemiye-jo or
lower hatamoto. This rule obtained also when these persons
appeared as witnesses or otherwise. Where higher nobles
were involved, the trial was conducted in the seshi-7io-ma.
On either side of the party (2) sat a Jiyojosho-han (3)
(Chamber-guard), holding the former's sleeve. ^ On the left
sat one or more yorild and dushin (4) from the Town Magis¬
trate's office. In the farthermost part of the chamber were
ranged (5) the Three Magistrates (Samb-.fipio), with a director
(6) and some clerks (7) at their left, and a Chief Censor (8)
(O-metsuke), with Lis subordinates {9l (10) (jnetsuke and
kachi-inetsuke), on their right. There were no counsel
for the parties; but there were sashizoye-nin (vouchers,
lit., accompanying-persons), usually officers of the village
or ward, who were required to accompany commoners to
I. Presumably in criminal cases only.
INTRODUCTION : ADMINISTRATION OF JUSTICE. 91
Court, and these, though their prime function was tO'
certify to the parties' character and to testify, no doubt
acted as advisers to the parties; for they were familiar
with litigation and would naturally uphold their companions.
Moreover the system of sending representatives {ilai), as
many indications show, came to be employed for the
purpose of having one's claim or plea presented in a forcible
and convenient shape by some capable person. On the
whole these two expedients seem to have protected the
parties' interests fairly well.
The seshi-no-ma was used by the Councillor of State
whose turn it was to attend the formal sessions of the
Chamber of Decisions. The paper sliding-doors between
that room and the trial-room made it possible for him
to enter, unheard and unobserved, at any time of the day,
and listen to the proceedings,—an expedient characteristic
of the Tokugawa administrative system. This room was
also used, as has been said, for trials involving higher
nobles, and in such a case screens (d) were so arranged as
to allow the Councillor, as before, to enter and listen
unobserved.
These distinctions of rank, it may be noted, had
their effect also on the methods of imprisonment for
crime and detention during trial. Commoners went'
usually in the former case, to the roya or common jail;
the lower samurai to the samurai prison (ayariya); while the
higher nobles were committed for safe-keeping to the house of
some other noble. This was done, for instance, to the famous
band of the Forty-seven Eonin, after they had avenged their
lord and while they awaited Itara-ldri. As a rule neither
parties nor witnesses were imprisoned pending a civil trial.
The expedient of committing to the house of another, and
making the latter responsible, was regularly employed, and
answered for all purposes to our bail system ; indeed for the
poorer classes, who formed the majority of the litigants and
could not have furnished money, greater justice undoubtedly
92
PRIVATE LAW IN OLD JAPAN ;
was attained under this system than under the English one
of the same period. The detained person was supposed to
remain always in the house of the yado or bail-man ; but the
latter might take the responsibility of letting him go about.
The 2/ndo was entitled to a charge for food ; ^ and this went
into the costs ot suit.
A final word as to the hours of Court and the judges
themselves. The "private sessions" {uchi-yoriai)^ of each
Magistracy (which seem to have been formal meetings
of the presiding magistrate and his chief clerks),
opened at 10 o'clock in the morning. In the Chamber
of Decisions the "formal" sessions opened at 6 o'clock.
The ofiicials, however, were required to come before
that hour,—the magistrates at 4, the Coimcillor at 5
(though there was much license here), and the others
at the same hour. On other days the session opened at
10; but the magistrates came at 7, and the others at 8.
Why these extraordinarily early hours came to be
•chosen does not appear. They may be partly accounted
for by the general indifference to time which one notices
in Japan. There seems to be no objection to any hour,
however early or however late, if circumstances render
it worth while to choose it. But it is not to he supposed
that these hours were strictly observed. Even to-day
the Supreme Court usually opens an hour or more after
the appointed time; and probably the hours of the
Tokugawa Chamber were so fixed in order to make due
allowance for a customary delay in opening.
The judges were required to be appointed from the
higher classes of samurai,—the Temple Magistrate from the
1. Not for lodging, it seems, for this, like our jury-service, was a
part of his political duty; but the food-charge was no doubt made ample
enough to cover all expenses. 2. These were held three times a
month; the most trustworthy dates are the 9th, 18th, and 27th.
Summary trials {te-kagiri, off-hand) of minor cases were apparently
-disposed of daily by his clerks or by himself.
INTRODUCTION : ADMINISTRATION OF JUSTICE, 9S
" loyal" daimyo (10,000 Itoku or more), the Town and
Finance Magistrates from the upper hatamoto (3,000 to
1,000 koku). But this did not prevent the easy elevation
of men of talent, for promotion to such an office could
be accompanied by investment with a fief of the grade
required to make the appointee eligible. Moreover, these
offices seem never to have become hereditary to any extent,
as so many offices became in the times of peace which
the Tokugawa family procured for Japan. Further than
this, the appointments were (at any rate to a great extent) made
by the promotion of those who had shown talent, rather than
by mere favor. From acting weU as daikwan, a man
might come to a Magistracy. From Osaka he might look
for promotion to Yedo; and the line of promotion from
Finance to Town Magistrate and from Town to Temple
Magistrate can often be traced. When a good judge was
found, he was kept in office as long as his ambition
would consent; for the next step to the Magistracies was
the Council of State. The famous Oka, Lord of Echizen,
was fifteen years Town Magistrate of Yedo and then
twenty years Temple Magistrate. This, to be sure, was
under Yoshimune, the only Tokugawa Shogun after
lyemitsu (3rd Shogun) who showed ability to direct the
Government personally. But other instances occur in
which magistrates held office for equally long periods.i
Towards the end of the Shogunate, when the very founda--
tions of government were trembling, public office became
a difficult and hazardous occupation ; for successful admini¬
stration was almost impossible and failures cost the
loss of office and perhaps, also, of honor and therefore of life.
Thus we find in those closing years a constant change in the
magistracies; and the incumbents are often upstarts of low
degree, brought into prominence only by the refusal or
failure of their superiors to accomplish impossibilities. The
■
1. A list of Magistrates is given in the Appendix.
94
PRIVATE LAW IN OLD JAPAN :
development of the Tokugawa legal system culminates with
the Kayei period (1848—1854), just before the arrival of
Commodore Perry. Thenceforward, for twenty years, the
whole system of government was in an unnatural ferment,
and at the end of that time came the final dissolution.
The other subject intimately connected in many res¬
pects with local administration is that of
5. Taxation,
Taking as a whole the system of taxation during
the last century, the taxes may be grouped into
three general classes,—taxes in kind, labor-services, and
money payments. Historically the grouping should include
the first two classes only; for the money payments all
appear in the beginning as commutations of the labor
services and the payments in kind. Moreover the proportion
collected in one form or another difiered greatly according
to the character of the community (rural or burghal),
according to the policy of the fief, and according to the
purpose of the expenses (local or feudal). Still the
above division is a convenient one, and may be taken for
purposes of description as the normal one.
Distinguishing the rm-al from the burghal system,
we find in the former a netuju, or tax in kind, reserved
usually for rice-land only; various yalai or labor services,
applicable for local purposes as well as for public
undertakings connected with agriculture and for private
needs of the feudal lord; and money payments (under
various names) made to the lord in tlie shape of taxes on
upland, forests, industries, markets, etc, and to local
communities in the shape of assessments for local expenses.
In towns the tax in kind almost entirely disappears and
is replaced by a direct land-tax payable in money. The
yakii dwindle to a few services due from artisans or
disappear altogether, and are replaced by the above land-
INTRODUCTION : TAXATION.
95
tax payable in money. The ordinary money-taxes on special
industries and privileges remain and are increased. Further¬
more, the taxes going to the feudal lord (including the Toku-
gawa Government, -which in its taxation prerogatives was no
more than a fief of extraordinary size) were in the large
towns (having Magistrates) comparatively small. The local
expenses of the town are the chief object of taxation, and
the feudal lord gets annually a "thank-money" payment
only (a gift which had become in eifect a tax), with a few
other prescriptive dues,—a fact which indicates very
strongly the existence of a certain burghal independence
approaching to that of mediaeval European towns.^ It will
be convenient to take first the burghal taxation.
The chief tax of Osaka was the money payment made
to cover the expenses of city administration. These expenses
were divided into two classes,—city expenses and ward
expenses. The former included wages of laborers on public
works, wages of regular firemen, travelling expenses of city
of&cers on public business, repairs of dikes, etc., together
with certain local expenses of the rural suburbs under
the control of the magistrate. The total amount of
these expenses for the year was reckoned by the Town
Magistrate and sent to the Chief Elders. The latter appor¬
tioned the assessment among the three districts and then
among the wards of each district. Each ward was then
responsible for the assessed amount and the Elder saw that
it was collected and forwarded to the magistrate. The
assessment of individual amounts differed according to the
nature of the land. In the wards or merchants' districts
the unit was a house having a frontage of 6 hen and a depth
1. No direct proofs of this appear outside of Osaka, and Japanese
■writers have never taken up the subject in this aspect. It is perhaps
significant that the document in Osaka corresponding to the Icumi-
cho (the book of fcgulations which villagers were required to give
obedience to) was termed jo-yakti (contract).
96
PRIVATE LAW IN OLD JAPAN I
of 10 ken (36x60). In the beginning a single house had
been the unit, and the subsequent inequality of size, as the
city grew, led to the more careful determination of the unit.
The owner of the house always paid the tax. It would be
seem that the house-owner and land-owner were usually
coincident; but, however that may have been, the house-
owner in Osaka was always the more important and
figured as the tax-payer. The total number of these units
of taxation {yulcii) about 1770 was some 21,000,—in the
North district 8,600, in the South district 9,000, in the
Temma district 8,700. Out of this amoimt 1,800 units were
exempted from taxation,—the ward-assembly office, the
chief elders' houses, firemen's watch-houses, a few
nobles' mansions, etc. The rural districts included
in the Osaka burghal limits were of course assessed, hke
all cultivated land, according to the number of koku of
rice produced; and the total amount apportioned to such a
district was paid by each owner according to his assessment.
The total cultivated land had an assessed valne of some
10,000 koku.^
Besides these general city expenses there were two
special classes of expenses which for historical reasons had
come to be paid in a different way. The cleaning of the
channels of the Yodo river, the smaller rivers, and the
innumerable canals—the life-blood of Osaka's immense
commerce—was done by the Magistrate's Office, and the
expense was met by " thank-money" (inyoga-kin) offered
annually by the people. The landed property of the three
districts was for this purpose assessed at its money value,
and the tax was about two ten-thousandths of this. The total
valuation was some 815,900 kican (thousand) of silver
momme or about 5,000,000 ryo; the tax produced about
1. How the tax was equalized where both kinds of land lay in
the same ward does not appear. 2. A valuation 90 years later is less
than half as high, but coinage changes account for the depreciation.
INTRODUCTION: TAXATION.
97
1,000 ryo. Of the 500 bridges which spanned the intricate
canals and the rivers, the eleven largest were maintained
from the proceeds of a tax on inns and tea-houses. 900 inns
and 3,000 tea-houses paid a monthly tax of 20,000 monime,
of which one-quarter went to pay the actual expenses of
maintenance and the rest was kept in the city treasury.
The regular expenses of each ward included the
repairs of roads, the maintenance of ordinary bridges,
certain perquisites of the elder, the salaries of other
ward-officials, the expenses of the assemblies of
wardsmen, and a few others. The budget was made
out monthly and approved at a meeting of householders
held on the 26th of the month at the assembly office,
and every householder was required to attend. A feast
was forbidden, except at the last meeting of the year. The
assessment of taxes was made by the ward officers. The
regular expenses above mentioned were apparently assessed
according to the units of taxation (yaku) already described.
But besides these regular expenses there were a number
of incidental burdens which were assessed in a peculiar
fashion. I give the arrangement provided for in the Osaka
Sanya-jo-go-hatto (the regulations agreed upon by the
Osaka townsmen):
a. Where a stranger falls sick or is detained on a
criminal charge and is bailed to the keeping of a wardsman,
the wages of the watch and other expenses are to be
divided thus:
From the house-owner. ^ in money;
From the other wardsmen j-%, in money
assessed per man.
If the person in question is a wardsman, not a stranger:
From the five-men-company^ in money,
assessed per man;
1. Presumably* of the house where he is bailed. 2. Presumably
the one to which the house belongs where he is bailed.
Vol. XX. Sup. Ft. i.—7.
98
PRIVATE LAW IN OLD JAPAN :
From the other wardsmen, 3^, in money,
assessed per man.i
h. Where an abandoned child is found, the finder
and his company are to have it put out in a family and
taken care of, and the expense is to be thus divided:
From his house-owner in money;
From his five-men company 2 in money
or labor;
From the other wardsmen in money
or labor.
c. Where a man accidentally causes a fire, he should
pay the loss (to others) himself; but if he is too poor, the
expense should be thus divided:
From his house-owner ys> money;
From the five-men company in money
or labor;
From the other wardsmen in money
or labor.
d. Where a stranger is found dead, the expense of
burial shall be thus divided:
From the house-owner (of the finder)^®^, in money;
From the five-men company in money
or labor;
From the other wardsmen in money
or labor.
e. Where a man is involved in litigation in another
jurisdiction, and the ward-official goes with him, as usual,
the man shall pay his own expenses; but if he is a
renter only and is too poor, they shall be thus divided:
From his house-owner * in money;
From the five-men company in money
or labor;
1. All the money expenses in the succeeding rules are apportioned
in the same way. In such a case account was always taken of
the bungen, or station in life, of the person assessed. 2. Excepting
the first payor, if he was in the company.
INTRODUCTION I TAXATION.
99
From the other wardsmen in money
or labor.
If he is a house-owner, and too poor to pay:
From the five-men company
From the other wardsmen
Thus it will be seen that the burden was thrown as far
as possible upon the house-owners. The term " wardsman "
(ckonin) is constantly used in antithesis to " house-renter "
{shakka-nin), and clearly meant a house-owner. Each
house-owner, moreover, who owned another house in another
ward was obliged to appoint an agent {iyemori, house-
guardian) to represent him there,—one iyemori for every two
houses in each ward. Thus there was in that ward a re¬
sponsible person to perform the duties incident to house-
ownership in that ward. The five-men companies were made
up of adjacent families without regard to the ownership of
the houses. Thus, in the above examples, the expense
usually fell in part on the house-owner whose tenant the
finder, etc., was (on the finder, etc., himself, if he was a
house-owner and thus had already paid), and in part upon
the other wardsmen, that is, house-owners, excluding the one
who was already liable; while in all cases an iyemori in that
ward was regarded as a house-owner for the purposes of
that ward's taxes, and his disbursements were charged to his
principal at the time of rendering accounts for rents
collected.
The settlement of these expenses and their assessment
were included in the monthly accounting made by the ward
officials, and the amount thus due from the wardsmen made
a part of the monthly sums collectible. The officers sent
around a ticket showing the amoimt due from each one, and
(it seems) payment was required to be made by the second
day of the ensuing month.
Under the Lead of local taxes must be mentioned two
other burden^—the fee for transfers of realty, and the
fire-service of the wardsmen. The latter was required of
100
PRIVATE LAW IN OLD JAPAN I
every resident of the ward. There were, of course, regular
firemen with fire-stations and watch-towers. But besides,
this each person was required to take his turn in rounding the
ward (or a portion of it) at night, clicking the cherry-blocks
[liyoshigi), so familiar a feature of Japanese life, and keeping
watch against the breaking out of fires. But it is not to he
doubted that the well-to-do wardsmen, when their turns
came, hired substitutes for this service. The fee for
registration of sales of realty was known ordinarily as cho-
Mri-kin (fee for change of entry), but as a source of revenue
the term huichi-khi (percentage-money) was more familiar.
It was at first afterwards ^ of the purchase-price.
The earliest plan seems to have been to put these fees iuto
the Magistrate's treasury; then they were distributed at
stated periods among the wardsmen ; and finally a fund was
formed and the iuterest was taken to pay the ward's taxes.
It remains to speak of what was apparently the only
tax paid to the Shogunate Government. This was the New
Year's offering regularly made in return for the exemption,
from the regular land-tax i which the city had received in
1634. Up to that time Osaka had been assessed for this tax
like any other district, the ChiefElders being responsible for its
payment. In 1683 the Chief Elders asked the Yedo Govern¬
ment for an exemption from the tax ; and in the ensuing year
the 3nd Shogun, lyemitsu, visited Osaka Castle, summoned
the elders and chief elders of Osaka and the neighboring
city of Sakai, and granted them au exemption from the
land-tax due the Government. Whether any promise was
given in exchange, or any condition required, does not
appear. But thenceforward, on every N^W Year's Day,
the Chief Elders presented to the Shogun at Yedo 10,000
momme in silver. This sum was assessed upon the
three districts of Osaka in 7 parts,—4 from the North,
1. Known there as ehi-shi-gin, an old term dating back to the
12th century or earlier.
INTRODUCTION : TAXATION.
101
2 from the Sonth, aud 1 from Temma. The chief elders
from the North went every year; those from the South
•and Temma went only in alternate years.
We turn now to Yedo, where the system differed
in important respects from that of Osaka. The Yedo
townsmen had never obtained such a measure of inde¬
pendence; for their payments to the central Government
included a number of yalm or labor services and several
money imposts. There were several reasons for this.
In the first place, Yedo had grown in comparatively
recent times from a country village to a political capital,
■and the traditions of the rural yuku had not been thrown
off. Second, the Sliogun's palace and the works undertaken
for beautifying and protecting the city kept up the need
for popular services in the achievement of these works.
Last and most important, the immediate presence of
the offices of government and the relative commercial
weakness of the city (compared to Osaka) kept the
townspeople in greater subjection to the political
authorities.
A survey of the land-tax budget for about the year
1795 wiU give a fair idea of the assessment of the local taxes.
In this year there was a revision of the tax-rates, and a con¬
siderable reduction was made. The process followed was
this. The total amount of rents received (as estimated from
the land-registers, etc.) was taken as 547,000 ryo, in round
numbers (the exact figures were 546,890, for they always
calculated in detailed figures, even in making rough esti¬
mates). Out of this some 16,000 ryo went for governmental
purposes,—sundry yaku, rice tax, etc. The city expenses
(cho-nuhi) altogether required 155,000 ryo. This left about
376,000 rijo. Out of this should be taken 70,000 ryo, the
estimated rent for the houses occupied by the owners and
their agents {shikiri-ukeoi-nin ; probably the same as iye-
mori in Ohaka). This left some 306,000 as the net
receipts of the landlords. The question was how this
102
PRIVATE LAW IN OLD JAPAN :
could be reduced. The gross rental of 547,000 was first
reduced by giving 508,000 njo as a low estimate based
on a 5-years average. Then the 16,000 ryo of government
taxes were taken out, being fixed and irreducible. Then
the former amounts of 155,000 (city expenses) and 70,000
(nominal rental) were subtracted, leaving some 268,000 ryo
as the net rental of the landlords. This was 38,000 ryo
less than before. But the above 155,000 njo (city expenses)
were to be reduced by 62,000 ryo or ^5, thus reaching
ultimately about 98,000 ryo. The whole amount of
155,000 ryo, however, was still to be collected ; but out of
it the landlords were to be paid back for a while the
38,000 ryo constituting the difference between their former
and their present net receipts ; because the requirement
of an immediate lowering of their rental to such an amount
would be unjust. The remaining 24,000 (62,000—38,000)
was to be laid aside as a fund, and this fund would increase
from time to time. The reason given for this was that
the individual reduction which this sum would produce
when apportioned would be very small; while Yedo was in
great need of a large provision against fire and famine, as
experience had taught. Ofthe total amount, 62,000, therefore,
ultimately would be added to this fuud, ^ returned to
the landlords, and jJjj applied to local expenses. Provision
was also made for the disposition of any excess over
estimated receipts.1
1. This fund afterwards became very large. It was distributed
from time to time according to regular rules among the poor, the sick,
the old, the sufferers by tempest, fire, earthquake, etc., and so was
constantly fluctuating. But about 1830 it reachedthe (in old Japan)
enormous sum of nearly 500,000 ryo; in a modern American city
this would perhaps be equivalent to $5,000,000. The capital was lent
out at interest, and the distribution of the income seems to have been
made with care and fidelity. To-day the municipality of Tokyo possess¬
es what remains of it, but it no longer does the good that it used to
do. The place where this fund was managed came to be called the
" town-assembly ofiBce" {machi-kivai-sho). This term was thus used
introduction: taxation.
103
lu the budget above given a sum of 16,000 ryo is set
apart as taxes for the central government. These must
now be described. It will be noticed that they were
estimated as coming out of the total rental of property-owners,
and doubtless they were collected at the same as the taxes for
local expenses. But while the city expenses fluctuated,
and on the whole the tax collected was only that amount
necessary to pay the expenses, the taxes included in the
16,000 ryo were regular imposts payable to the Government
at a fixed rate, like other central taxes. The chief of
them were the yaku,—a term corresponding to that used
in Osaka, but here applied to Government taxes. They
were payable iu money, but they were really the direct
successors of the original labor yaka rendered by all rural
districts and commuted early in the century into fixed
money payments. For the purposes of yaku the classes
of the population may be regarded as of four sorts ; first,
the people in the rural suburban districts (iiiachi-nami-chi),
who still paid the ordinary rice-tax (nenyii) which was
included in the above 16,000 ryo; second, the temple-
lands {jislia-ryo, jislia-monzen), which were exempt from
Government taxes ; third, the wards occupied by merchant
and samurai; and fourth, the wards occupied by artisans.
Now the first and second did not pay the yaku; the
third paid so-called ko (public)-yuAlt; and the fourth paid
the so-called koku (country, national)-yuAif. First, as to
the koyalcu. Of course in the beginning the tax was in
the form of the labor of one person for so many days
per year. The possession of a house of a certain size
came to be the unit of assessment. Finally in 1722 it
was ordered that aU payments should be made in silver
in a sense entirely different from that at Osaka. Of the Osaka
ward-assembly ofi^es I do not find any mention in Tedo; yet there
must have been some way in -which the property-owners expressed
their approval of the ward-headman's budget.
104
PRIVATE LAW IN OLD JAPAN :
coin; the unit of measurement (Jcoma, small space) was
made a house-space of 1 ^en frontage and 20 ken depth
(6 X120); the unit of assessment was a house of one of
three classes, according as the frontage was 5 ken (that
is, 5 of the koma units), 7 ken, or 10 ken.'^ The amount
paid in each class was the same,—30 movnne a year
(reckoning the traditonal service of 15 men's labor ^ at 2
momme per man); but the houses were so classified that the
<!entral and richer districts belonged to the higher classes
(thus paying a higher tax). For instance, merchants iu lida
ward, Hongo (the main street), Kanda, etc., were in the first
class ; while Asakusa, Matsumoto ward in Sliabi district,
and a few others were iu the second class. The total number
of wards thus assessed was 728; the number of single labor
services {koyaku-fu ; that is, reckoning the above paj^ment
of 80 vinmine as ausweriug to 15 labor-services) reached
nearly 100,000 ; and the total amount collected was from
3,000 to 4,000 ryo. With this money the number of laborers
hired® for one day was, in 1736, some 90,000. These
amounts do not include the sums collected from the samurai
residence-property [hai-ryn, kumi-yashiki) received by them
from the Shogun as retainers. The assessment-classes were
more favorable in their cases,—the frontages being fixed at
10, 15, and 20 ken for the three degrees.^ The total labor-
services collected from them appear to have been about
35,000.
The yaku levied on the artisans' wards were known as
koku-yaku. These also were imposed on the laud-owners
and house-owners among the craft, who presumably were
1. The majority of houses were of less than this frontage in the
commoners' wards; in such cases the yakit was divided into
fractions. 2. This is the phrase used; but it meant originally one man's
labor for 15 days in the year. 3. They were hired at the official
day-laborers' bureau or market [hiyatoi-za). 4. But the ordinary
-samurai's yashiki would he larger than that of the merchant.
INTRODUCTION : TAXATION.
105
the master-workmen. They were collected usually through
the chiefs (toryo) of the guild, but sometimes through the
•Government contractors and sometimes directly. I give the
names of the wards in full in the following list, because they
show how stable were the associations of occupation and
locality, and because those who know modern Tok}'o
may he interested in tracing the traditional character of
the various wards:
Trade. 'Number of Men.'^ Ward.
Indigo-dyers
Timber-workers 1,717
Iron-workers
Masons 366
Sawyers 285
Mat-workers 437
Moulders
Tub-makers 970
Wooden-ware makers
Boatmen
Pack-horse and post-
horse owners
Kanda district. Dyers'
ward; South, West and
North Dyers' wards.^
Old and South Carpenters'
wards Main and Cross
Carpenters' wards.3
Kanda district. Smiths'
ward South and Saku-
rada Smiths' wards.
White-Plaster ward.®
Chief Sawyers' ward.®
Kettle and Cross ward.^
Tub ward.®
Cypress-goods ward.®
Old and New Net ward,i®
Azabu district, New Net
ward. Surf ward.H
Great South, Yotsuya, and
Akasaka Kelay wards^®;
1. Minami, etc., Konya-cho. 2. Moto and 3Iinami Daiku-cho.
3. Tale and Yoke Daika-cho. 4. Kaji-cho. 5. Shira-kabe-cho. 6. O-
twkogiri-cho. 7. Nabe- and Yoko-eho. 8. Oke-clio. 9. Hi-mono cho.
10. Koami-cho, Shin-aini-eho. 11. Nami {wave)-s/jiro (whiteness)-c/iO.
12. Demma-cho.
106
PBIVATE LAW IN OLD JAPAN :
Trade, 'Number of Men. 'Ward.
Tide ward. i
Gun makers Gun ward. ^
Lacquerers 115 South Scabbard ward.^
In many of these cases the payment per man was about
2 momme. In most of them there was a counter-payment of
rice, etc., by the Government, corresponding to the food
which under the old system of labor-services was supplied to
the laborers. The above list is not exhaustive, hut the other
payments (such as that for dredging the canals), though
they were required from special wards, were not associated
with special trades. A number of yaku liugered in their
original form, either as labor-services or as supplies of
material. Such, for example, was the supply of timber for
the scaffolding when a criminal was executed. There were
also a few yaku which were collected, not from the property
owners, but from individual workers without regard to their
possession of property. The indigo-dyers, smiths, picture-
framers, tool-sharpeners, barbers, and a few others paid a tax
of this sort though the chiefs of the guilds. Finally, day-
laborers paid 30 mon (less than of a ryo) a month to
the day-laborers' bureau. ^
There was also a ship-tax,—kau-afune nengu and
yaku-sen. The number of fieight-bo.ats, large and small,
in and about Yedo was about 1,500, in the middle of the
18th century: the total number entering the port from
without, 21,000. From these some 4,000 ryo (as fixed in
later times) was coUecled. There were also money-taxes
on pawn-shops, oilmakers, drug-sellers, warehouses,
barbers, and a few others. But the term*here applied was
usually mynga-kin, " thauk-money." ®
1. Nami-shiwo-cho. 2. Teppo-cho. 3. Minami-saya-cho; because
sword-scabbards were lacquered. 4. Of course these taxes not
imposed on property-owners were not included in the budget
originally mentioned. 5. The buichi-kin, or fee for land-transfers,
was as in Osaka an asset for local purposes. The fee proper was 2
INTRODUCTION : TAXATION.
107
In the city of Sendai we find a system differing not
essentially from that of Yedo, though much simpler
in scope. The office expenses of the kendan and kimoin
and the fire-watch expenses were assessed by the kendan,.
kimoiri, ward-elder, aud head company-chief for the ward
to which they belonged; and tiie burden fell upon the
house-owners of the ward. Eepairs of roads, however,,
were paid for by the abutters ; repairs of bridges by the
feudal lord. Certain wards were regularly liable for
official post-horse service, and others for casual service.
The process of commuting this into money payment
had begun, and the business was in reality done
by contractors; these furnished the horses, and
the amount was then apportioned among the wards-
men. This process had not, however, gone as far as
it had in Yedo, where the wardsmen had purchased
certainty of taxation by promising fixed payments. But
Sendai had achieved considerable independence, for there
appear to have been no other payments due to the feudal
lord.
In Nagasaki the taxes fell as a rule upon proprietors-
only. The jis/M-f/iH or laud-tax was assessed according to
the size of the houses, the unit being an area of 1 ken
(6 feet) frontage and 15 ken depth. This tax, it seems,
went to the Emperor. There were also a hasshaku-gin,.
paid on the 1st of the 8th month,—in form a present to
the Magistrates, but in the reality a tax on the house-
proprietors. This, however, was supposed to be recouped
by the dividends which the householders received from the-
Jiana-gin (fiower-money), a percentage taken from the
selling-price of the goods sold in Nagasaki by the licensed
per cent on the purchase-money; but extra presents to all con¬
cerned (in old times a gift to every house-holder of the ward) eat
up a great deal n^re. For the registration of successions or
transfers between relatives the fee was reduced one-half or
one-third.
108
PRIVATE LAW IN OLD JAPAN I
foreigners. After ofScial fees were subtracted from this
hana-yin, it was sent to the different wards in shares ; and
when the ward's expenses for repair, watches, etc., had
been taken out, the remainder was divided among the tax¬
payers,—a dividend occurring perhaps four times in a year.
We turn now to the rural taxation. The differences
between the policies of different fiefs affect especially the
methods of rural taxation, because the largest towns, such
us Osaka, Nagasaki, Sakai, etc., were all under Tokugawa
Magistrates, and there was a greater approach to similarity.
It is difficult to infer from the conditions of one region to
those of another. But there were certain general features
noticeable everywhere, and we shall be able at least to
get some notion of the methods followed in the regions
with which the ensuing Parts are concerned. And first of
local taxes.
In the Tokugawa dominions the local expenses were
of three classes,—the maintenance of the headman's office
(fees, pens, ink, paper, etc.), the travelling expenses of
the officials when leaving the village on business, and the
sundry construction and repair expenses connected with the
village agriculture. The method of determining what items
of the latter sort of expense should fall upon the village and
what upon the feudal lords was different in different regions;
the general rule was that the minor works should fall to the
village's share; but in many cases specified classes of
aqueducts, roads, bridges, etc., were maintained by each
party. In Sendai there were two local districts and
two budgets. Tbe expenses chargeable to tbe district
governed by a cbief headman {o-kiinoirtf were the salaries
•of the o-lcimoiri and his assistants, the paper, pens, etc.
of the office, the repair of the district storehouses for
rice, and of the o-kimoiri's and ihukwan's offices, and the
wages of the store-house laborers. In tbe district of a
kimoiri the expenses were the salaries of the kimoiri and
his assistants, and of tbe kendan, if any, tbe expenses
introduction: taxation.
10&
of the offices, the wages of the aqueduct-keepers and
the rice-storehouse laborers, and the cost of the post-
houses.
In the I'okugawa dominions the whole account was
kept by the headman and company-chiefs in a regular
account-book, two copies being made, one to be deposited
ultimately with the dailncan, the other to be kept by the
headman. Small expenses were paid by the officials from
their own pockets ; larger sums were collected from time to
time by calling the people together and assessing them for
the required amount; and such sums, it would seem, did not
go into the account-book. Twice a year, in the 7th and
12th month, it is said, the accounts were made up and the
dues assessed; but this rule does not seem to have
been generally observed. The farmers' representatives
{liyakusho-dai) were always present when the accounts
were made up, and took care that the assessment was
properly made. The assessed production of each one's
land was the basis of the assessment. Then the people
were summoned and their approval asked. The seal of
every farmer in the village was required to be placed
on the document when approved. In Sendai the system
was not essentially different, except in the mode of
assessment. In the o-kimoiri's district, one half the whole
amount was levied on the agricultural land and oue-half
on the houses. In the kimoiri's district the expense of
the family-registration was assessed according to the
number of " persons ",—that is, presumably, of heads
of families; that relating to repairs of aqueducts, etc.,
according to the assessed value of agricultural land; and
that relating to salaries, etc., according to the total
assessed value of each one's realty, houses and land
included.
An abridgment of the account sheet of a village in Kai
kuni for the yea? 1847 will perhaps give a clearer idea of
the ordinary village tax-expenses :
110
PRIVATE LAW IN OLD JAPAN:
" Kayei, I (Ape), 1th month.
Book of Sundry Expenses of the Village and
Laborers' Hire for the year of the Goat, Koma-
kori, Gokurakuji village.
For stakes, straw bags, and labor on
repairs of Shibu river, paid by
Tarobei,
For labor, etc., in clearing channel
and repairing banks of the
Kamada river, paid by Tadahichi,
For a dam on the Kamada river
and cutting away reeds, paid by
Hikoshiro,
momme.
284
For
cutting away reeds at tbe
Myojin aud Nishida dam, paid
by Tarobei,
For lodging at the Hasegawa House,
in Ishiwa,^
For pens, ink, paper, candles and
straw shoes, used by the bead-
man in one year.
For salary of headman.
For the offering of first fruits of rice
at the Ise Temple,^ by the sup-
plicatiou Irhimondohara,
For salary of the regular servants
of the village.
For cost of post-transmission of
official decrees for the year.
For cost of mats at the assembly-
office.
For salary of farmers' represent¬
atives,
245
51
43
95
48
240
12
72
24
42
hu, rin.
9 1
2ud month
2 6
Brd month
4tb month
7 9
5th month
1. These succeeding expenses were apparently paid by the
headman himself. 2. The national temple in the province of Ise.
INTRODUCTION : TAXATION. Ill
momme, hu. rin.
For freight paid to vessels at Otsu, 12
at Otogura, 9
at Ishiwa, 3
at Futsukaichiba, 8
For bridge-tolls at Fuyefuki river, 6
Otsu,
For wages of fire-watchmen, 80
For lodging paid for priests and 30
other guests,
For cost of dam of Tojiya, 18
of Yojinbun, 6
of Mugyota, 4
For rent of watchman's cottage, 4
For cost of the festival of the deity 15
Doso, for driving away the rice-
plant insects.
For lodging at the Kawachi House, 9 8
in Kofu,
For cost of tax-rice sent to Yedo, 150 6 1
For the second assessment for the 20 7 9
cost of the lawsuit with
Otogura, Imagawa,
For cost of rebuilding dams and 74 8 9
bridges on the moor, seven in
all.
For straw bags, lanterns, and stakes, 77 8 6
and for labor required at the
time of the overflow of the
Shibu river.
For repair of roof of Government 68 4 5
rice-storehouse.
For wages of storehouse-watchman, 82
For expense of the supplication 18
Hyakumanben made by the
whole village.
112
PRIVATE LAW IN OLD JAPAN :
momme, hu. rin.
For wine to laborers, 6
For matting and ropes at the official 1
land-inspection,
For repair of water-pipes on the 148
moor, and for cost of straw
bags, stakes, lanterns, and
torches.
For payment of the official loan for 1,102
river-bank repairs.
Total, 3,111
Total assessed production of
village 530 Icoku, 4 to, 7 she, 8got
Less the ground occupied by
official storehouse 4 ,,, 4 ,, ,
Net assessed production 530 „ , 0 ,,, 3 „ , 8 „ .
Dividing the total expenses by this amount, we have
the rate:
For 1 kokii of assessed production,
5 momme, 8 hu, 7 rin.
The above account gives the expenses incurred
by the village during last (Goat) year. Its apportionment
has been made with complete impartiality among all the
villagers, in the presence of the great and the small farmers
as well as the stranger-farmers.^ If any of us requires of
the farmers any larger amounts, he shall suffer whatever
penalty you choose.^ In witness of its correctness we
hereby affix our counter seals.
Koma kori, Gokurakuji village.
Asayemon, Headman,
1. Iri-saku; outsiders owning land in this village. 2. This is
the language of the officers who drew up the account. The others
sign by way of expressing assent.
5
7 4
5 3
3 3
INTRODUCTION I TAXATION.
113
Fa rimr's representative,
Accountant,
Company-chief,
Koma kori, Gokurakuji village.
Hikoshiro, Chief fanner,
Tadahichi, "
Tarobei, "
Yeisuke,
Riyemon,
Isuke,
Sliozayemou,
Tozayemon,
Banzayemon,
Sajibei,
Ichizayemon,
Mohachi,
Denzayevnon,
Hyoshiro,
Kiyemon,
Shimbei,
Toyokichi,
Yonebei,
Kuyemon's widow,
Isobei,
Yeibei,
Shobei, represented by Mohachi,
Tsuki,
Magohaclii,
Magoyemon,
Arekichi,
Tasuke,
Rimbei,
Hama,
Shubei,
Hambei,
Take,
Namokighi,
Joyemon,
Eihei,
Vol. XX. Sup. Ft. i.—S.
114
PRIVATE LAW IN OLD JAPAN I
To the Ishiwa Office.
[Indorsed.]
The above has been inspected by the Government.
The Ishiwa Office."
The taxes rendered to the lord in rural regions may be
classed roughly into three general kinds, the labor-services, the
land-tax, and sundry imposts. Of the latter little need he said.
They differed greatly according to the policy and the produc¬
tions of the fief; they were numerous in this fief, and few in
the next. Some of them no doubt were the successors
of an original labor-service, now commuted into money.
Others were hardly to he distinguished from a land-
tax. Still others were imposts laid on profitable trans¬
actions or occupations which did not happen to hear
any of the other and older burdens. The list includes
taxes on forests, water-wheels, markets, fisheries, horses,
hunters, ponds, firearms, mines, salt, wine, tobacco, oil-
making, bean-sauce-making, indigo-making, and so on.
The lord also took his share of treasure trove, if this
may be regarded as a tax. The importance of these
taxes differed in different districts,—salt in one fief (the
salt was all obtained by evaporating sea-water), fisheries
in another, mines in another, beau-sauce in another,
being the important sources of revenue. But, except where
special occupations predominated, these taxes did not have
any importance for the mass of the people in comparison
with the labor-services or the tax on cultivated land, which
we may now consider. •
Under labor-services in the old days had also been
included the products of industry (other than grain) which
were to be handed to the lord by those who could best
render service in this way. But these were soon commuted
into money, and the labor-services as understood in the
last century included the customary work due from the
people for the needs, administrative or personal, of the
INTRODUCTION : TAXATION.
115
lord. The features of the Sendai S3'stem will here be
noted briefly, that fief being taken because its administrative
organization probably excelled all others, excepting that
of the Tokugawa, and because in the Tokugawa system
the commutation of services iuto money or rice payments
bad produced more or less irregularity. The general term
for these services was yalm, as already mentioned. The
more scientific term was yoyeki; while the popular word
was nimokii (labor). To begin with, the number of days'
labor (or laborers for one day) per year required of a
given family was assessed according to the official valuation
of its land. In Sendai, as we shall see, land was assessed
in money, not in rice-production, the unit beiug the
kwammon or thousand mon. Now the number of labor
services [ninsoku, meaning by this one man's labor for
one day) required had of course varied at different epochs.
On the whole it increased, and in the middle of the present
century the strain on the farmers became so great that radical
reforms became necessary. At the period we are taking the
number of labor-services regularly required was 20 per
year for land of 1 kwammon in assessed value, land of
1 kwanmon (good quality) being about 8 taji in area.
As the product of 8 tan was about 12 koku, we may
infer that this requisition was somewhat higher than in
the Tokugawa dominions, for in the latter the number
required was 100 labor-services for 100 koku assessment,
and for 50 of these a rice-wage of 7 yo, 5 shaku per d.ay
was paid. The services above-mentioned were known as
the sei-yaku or regular services. They were of three sorts:
first, o-yatoi-nmsokv, or common labor ; second, mizushita-
ninsoku, or irrigation labor; and last, koyaku-mnsoku or
public labor. The former class included sundry labor
for minor purposes. If it was on an undertaking within
the village, it wHs called nchi-yatoi (inside-labor) ; if
without, soto-yatoi (outside-labor). Of the 20 services,
4 were to be of this sort. The second class, as its nam
116
PKIVATK LAW IN OLD JAPAN :
iudicates, included tbe building and repair of dikes, bridges,,
dams, etc., the cleaning of aqueducts, and innumerable
other matters. To this 6 of the 20 services were appointed.
The third class included the larger enterprises affecting
the welfare of the fief and the works undertaken for
the immediate pleasures or necessities of the feudal
superior. This public labor might be owed either to the
head of the fief, the daimyo, or to one of his under-vassals.
The demesne land reserved by the lord himself was
known as o-kiira-iri (Treasury income); the land granted
out as a feud to under-vassals, as hjunin (stipendiary).
No person owed service to more than one feudal superior;
his 10 labor-services might go to either a vassal or the
daimyo, but not to each. Now the demesne land and the
stipendiary land of course lay intermixed throughout the fief:
and it constantly happened that an undertaking involved the
peasants of both kinds of land. Moreover, as the regular
number of labor-services might happen not to be needed
in a given year, there was frequently an unused remainder
out of the whole 20 rightly demandable. These, however,
the peasants did not escape; if they did not labor, they
must pay the equivalent in money at the rate of 50 man
for a day's labor. Hence arose the rule that the order of
requisition of services, where the district liable to be called
on included both demesne and stipendiary land, should be,
first, the residents of the stipendiary land, and next, those
of the demesne land ; for in this way the daimyo's treasury,
if the labor limit was uot reached, obtained what it much
preferred, a cash payment. «
The total number of labor-services exacted at the end
of the century was upwards of one million,—common labor,
210,000 ; irrigation-labor, 430,000 ; public-labor, 400,000
(demesne land, 240,000, stipendiary land, 160,000). But
these were the regular services only. There were also
precarious services, demandable as occasion required—tsxikai-
sute-ninsolm (intermittent labors). These seem originally
INTRODUCTION : TAXATION.
117
to have been substitutes for the regular services, but
afterwards were demandable additionally. About the
beginning of the last century the rule obtaining was that
these additional services were to bear the proportion of
one-third to the whole labor needed for the extra works.
Thus, assuming that a piece of land was assessed at 1
kwan 5 mon, and that 350 services were needed, the
apportionment would he as follows :
Irrigation and common labors 15
Public labors 15
Extra labor 820
Of which,
a) The land-owner sent 106f, and
h) The lord paid for 213f
Total 35
Only class a) was reckoned as services due from the
people; the labor paid for by the lord was apparently hired
outside by him.
It must he noted in passing that the apportionment was
not always based on the regular assessed value of the land.
For the purposes of the nimoku a portion only of this value
might he taken. Thus, suppose a dike was to he repaired,
and the maintenance of the dike was charged upon 10 villages,
a portion at least of each of them being served by the aque¬
duct in question. Supposing that each village was assessed
at ICQ kwan, and that only of each village was served by
the dike, the total valuation upon which the labor was to he
assessed was only 600 kwan, or 60 kwan for a given village.'
As in tact the total valuations of the villages were far from
being in any degree equal, and as a given undertaking might
affect one or another village in very different measure, such
a system of equalization was essential.
There, were, of course, numerous complications not
found in these simple principles, and perhaps in no one case
1. Nevertheless, when the tax-notice came to the village, the
amount was assessed among all the land-owners, that is, on the
basis of 100 kwan valuation.
118
PRIVATE LAW IN OLD JAPAN :
did they find application in the above form. One or two
examples will illustrate their practical working.
In 1786 an undertaking came up which afiected the
interest of a district assessed at 8 kioan 655 mo>i, of which
710 7iion was demesne land and 2 kwan 945 rnon was
stipendiary land, and of the latter a portion, 1 kwan 985
man, was laud reclaimed bythe vassals themselves and there¬
fore specially treated. The whole number of labor-services
needed was 117, and the apportionment was as follows :
a) Public-labor demandable at the
regular rate of 10 services
per 1 kwan 86
Of which were furnished,
b) By residents of demesne land ... T
0) By residents of stipendiary land
(according to the above re¬
lative amounts, 710 and
2,945 mon) 29.
d) Remainder 81
Of which were furnished
e) By the 1,985 mon of reclaimed land
its proportion (to 8,655 mon).^ 44
/) By the other 1,670 mon of land 87
g) Aud of these 37 were furnished,
according to the rule, one-
third at the expense of the
feudal lord 18
h) One-third by the people as
precarious service 12'
1) One third more:^ by demesne ^
land (710 mon), 5 ; by sti¬
pendiary land (960 mon), 7. 12,
n7
1. This reclaimed land had less rice-tax thau others and hence
received no assistance from the lord. 2. It is not clear why this
second third fell on the people.
introduction: taxation.
119
In 1731 there were repairs to be made on a dam
and river-banks in Aramaki village, Kokiibun kori. An
order was issued'calling for 24,330 labor-services, and tbo
apportionment was as follows :
o) One-tbird by the feudal lord 8,110
h) One-tbird by the residents of the castle-
town (Seudai) 8,110
Of the remaining third :
c) One-third by the residents of the village
in Kokubun 3,407
Of the remainder:
d) Public labor by the residents of demesne
lands 2,338
e) Public-labor by the residents of stipendiary
land 2,170
/) Irrigation-labor 901
Of the historical changes in methods and amounts it is
impossible here to speak. If we look at the other regions
we shall find the complications even greater; for the fief of
Sendai was administered with the greatest ability and
system, and that which is simple in this fief would be full
of confusion and irregularity in most others. One may at
at any rate gather from this brief description of the methods
of a single epoch and a single fief the general trend of
the whole.
The same apology must be made in turning to
the tax on cultivated land, or, as it was in substance,
the rice-tax. A bulky volume might be written on
the rice-tax of Japan, with its history in the differ¬
ent fiefs.1 It must suffice here to touch briefiy on
1. One cannot help wishing that some industrious German
scholar, searching for an unoccupied nook of learning in which to
prepare the book or thesis that is to win his professorate, could find-
his way to the tmsures of material bearing on the taxation,
agriculture, land tenure, and commerce of Old Japan.
120
PRIVATE LAW IN OLD JAPAN :
those features of it most essential to an understanding of
land tenure and the other topics of the ensuing parts.
The methods employed in the Tokugawa dominions will
be taken as the standard ones, and a few important
variations will be noticed.
The chief classes of land, for taxation purposes,
were two,—dry and wet, or upland and rice-land, as
they will be here termed. Not all rice, but substantially
all, was grown in wet land. The distinction between
the two was not merely a matter of cultivation or crops;
the upland was usually regarded as less valuable, in the
ratio of 6 to 10, or, in some places, 5 to 10. Neverthe¬
less these two, which were intermingled throughout the
country, were constantly grouped together in speech as
ta^-hata^ or dem-pata, for they stood by themselves as the
cultivated land of the country. In Part II the terms
tahata, dempata, are used interchangeably with kochi
(cultivated land). It was with these that the land-tax
chiefly dealt. There were of course other sorts upon
which the land-tax or an analogous substitute fell. Even
fishing-villages had their taka or assessed production from
the sea ; and residence-land often was assessed in koku.
But these were minor sources of revenue, and in most
of them the term taka had been extended to them by
analogy only.
The theory of the tax was simple. Find the total
production of each plot of land, fix on this basis an assess¬
ment for an indefinite time, and collect as a tax a certain
proportion of this assessed product. In all three of these
steps, however, came complications a«d variations of
practice. Moreover, in all three Japanese scholars
are found to disagree among themselves and to make
general statements which are not correct.
1. Bice-land. 2. Upland.
INTRODUCTION : TAXATION
121
The unit of area was 1 tan or about J of an acre.
Of these tan 10 made a cho, while subdivisions were made
into se (30 for 1 tan) and hu (10 for 1 se). The hi
was equivalent to the tsuho, ahout 6 feet square; thus
300 hu made 1 tan, the taji measuring 30 X10 hu. From
1 tan of first-quality rice-land {jo-den) it was estimated
that 3 koku of unhulled rice would be produced; or
putting it differently, from 1 hu the product would be 1
sho (y^5 of a koka). From this were to be subtracted 6
to for cost of production, seed, etc.; 1 to for seed (1 to
is of a koku), sho for wages to laborers, 4 to 2-| sho
for manure ; or, as another calculation (but less probable)
has it, 1^ to for seed, 1^ to for broken grain, and 3 to
for loss in harvesting. The remainder, 2 koku 4 to, was
halved to get the hulled rice, one-half being lost in thresh¬
ing. Thus the net product was 1 koku 2 to. This seems
to have been the calculation on which the tax was based;
for after the 1 koku 2 to was found, the Government
proceeded to take half as the tax {tori-mai, taken-rice),
and leave half to the land-owner. But it will be seen that
3 koka, the total product, would give 1 koku 5 to of hulled
rice, out of which the cost of production would take 3
to more of hulled rice. Now the figures taken as the assess¬
ment seem to have been this 1 koku 5 to ; for we always
find this amount given as the typical assessment of first
quality rice-land ; in fact in many places the assessment
reached 2 hiku, and it usually erred on the side of
leniency. But the same result as that attained in the
above calculation was reached by altering the proportion
of the tax; for the Government took of this 1 koku 5
to, or 6 to, the same as before. The common expression
among the people was shi-ko roku-min, " four [to the] Govern¬
ment, six [to the] people." Thus the difference
between tlie policies of various fiefs seems to have arisen
from the allowanee by some of this cost of production, etc.,
and the non-allowance hy others. The proportion of
122
PER'ATE LAW IN OLD JAPAN :
product taken by the feudal lord varied in different places ;
but it does not appear that there were any other general rules
than these two, i.e. by one, half to the lord, by the other,
four-tenths to the lord. If other proportions existed, they
probably arose from unjust assessments or arbitrary
application of one of these rules. In the Tokugawa dominions
the latter is always given as the rule. The term applied to
this 1 Ao/cii 5 to per tan was kokumori or rate of koku-
production; while the total assessed production of a given
piece of land was knows as kokwlaka, or amount of koku-
production. Simple as the use of these terms would seem
to he, the historical variations in the modes of taxation
before the Tokugawa times, with the differences of local
practice, have caused the most misleading errors. In
most of the works by foreign authors describing Japan
it will be found that the taka, or assessed amount, so
frequently used to indicate the size of a daimyo's or vassal's
estate, is taken as the amount of income received by him
as land-tax. That it should be so, however, is quite
impossible. In the first place, the assessed taka was
always substantially the same, the last great settlement
having taken place at the end of the 16th century;
while the tax-amount varied constantly through rebates
on account of crop-failures, and differed in different
fiefs according to the customary rate of taxation. The
tax-amount would never have served as the basis of rank-
gradations, for there would have been no fair standard of
comparison. Furthermore, the documents of the period
clearly prove that the taka of a plot of land or a village or a
fief was the total assessed production, ^ot the total tax-
amount. I reproduce the first lines of a property-schedule
handed in by a village in Kai k-uni, (the one already mentioned):
" Inspectors : the daikwan Kameda ■
Saburobei and Hida Gorobei.
Kai kuni, Koma kori,
Gokurakuji village.
INTKODUCTION ; TAXATION,
123-
Taka; 530 koku, 4 to, 7 slio, 8 go :
Area : 40 cho, 6 se, 3 hu:
Of this:
Rice-laud taka is 329 koku, 8 to, 4 sho,
" area " 23 cho, 4 tan, 5 se, 29 bu.
Upland taka " 200 koku, 6 to, 3 sho, 8 go,
*' area " 16 cho, 6 tau, 28 bu.
Of this the rice-land is :
Assessment
Area per tan.
First quality 5 cho, 3 tan, 0 se, 24 bu, 1 koku, 9 to..
Second " 5 " 5 " 2 " 13 " 1 " 8 "
Third " 4 " 6 " 2 " 13 " 1 " 4 "
Fourth " 6 " 1 " 4 " 22 " 9 "
Fifth " 1 " 8 " 3 " 29 " 5 "
and the upland is Assessment
Area per tan.
First quality 3 cho, 9 tan, 2 se, 19 bu, 1 kolni, 5 to..
Second " 4 " 6 " 8 " 9 " 1 " 3 "
Third " 3 " 0 " 1 " 4 " 1 " 1 "
Fourth " 2 " 2 " 4 <' 18 " 8
Fifth " 3 " 9 " 6 " 4 "
together with
Residence-land 2 " 3 " 5 " 6 " 1 " 2 "
Now the best average production of rice-land is not more
than 2 koku per to or 20 koku per cho; Mr. Kinch has stated the
ordinary average at the present day as 1 koku 5 to per tan or
15 koku per cho. ^ Hence it will be seen that the term taka as
here used must necessarily refer to the assessed production^
and not to the proportion taken as tax; and there are
certainly no two senses in which taka is generally used,.
1. Trans. Asiat. Soc., Jap., VIII, 396.
124
PRIVATE LAW IN OLD JAPAN ;
It would seem that the farmer never thought of his tax as
a fixed amount or as a basis of comparison. He kept in
mind his taka or assessed valuation, and from this a
mental calculation easily gave him the normal amount of
tax he might expect to pay.
As will be seen above, each plot of land was placed
in one of several classes, according to the sample of its
rice examined by the daikican. There were three regular
classes {jo, chu, and <je, higher, middle, and lower), but
other intermediate or additional grades were usually made.
It will also be seen that upland was assessed at less than
rice-land ; this was because the product of a given area
was less valuable than rice-land. The assessment, however,
was made in terms of rice-product, and the ratio obtaining
in the Tokugawa dominions was 6 j)arts in 10 {roku-bu-
chiyai).
Sometimes, instead, it is said that first-quality upland
was equivalent to second-quality rice-land. In the
above schedule neither of these rules is carried out; but
probably the region was an unusually fertile one.
The truth in regard to the regular rule seems to be
(though it is almost impossible to find the real clue amidst
the inconsequential and confusing statements of the
Japanese antiquarians) that the rule was a compound
of the two; that is, the kohimnri, or rate, of upland was
sometimes made equal to that of the same area of second-
quality rice-land, and in this case the rate of taxation was
the same as for rice-land; while sometimes the kokumori
(and hence the taka) was fixed at ^ that of second-
quality rice-land, but in this case tMte tax-proportion
was f, instead of The result was the same in either
case. Thus, the kokumori of a piece of first-quality
upland might he reckoned at 10 to, the kokumori of
second-quality rice-land, in which case the tax would be
or 4 to; or it might be reckoned at A of that amount,
or 6 to, in which case the tax would be f or 4 to.
introduction: taxation.
125
But the tax was sometimes collected in money, and
this necessitated a money-assessment. Money payments
seem to have ruled everywhere for upland; the ditference
between the staple rice and the variable minor upland products
(vegetables, barley, etc.) easily accounting for this. In
certain regions, moreover, even the rice-land tax was
paid in part or entirely with money. In Sendai the latter
was the case ; in Kai kuni and in the region around Kyoto
one-third was payable in money. The rate of exchange
in Sendai was 100 koku = 10 kivan (i.e., ku-ammon, 1000
mon). In Kai kuni the rate was 100 koku —20 kwan.
It is not clear how rice came to be so much cheaper in
Sendai, unless it was the distance of the fief from Yedo and
the necessity for a long sea voyage. In Kai kuni this equation
of 100 koku = 20 kwan gave rise to a formula by which the
farmer could find the equivalent tax in money. This was
"ni-koku go-to chigai;" which meant that for every 2 koku
5 to due as rice-tax he must pay 1 kwan in money.^
Thus, in the above example of an upland-tax of 4 to, the
money-payment would be found by the proportion 2 koku,
5 to : 1 kwan or 1000 mon : 4 to : ? mon, and the tax
would be 160 mon.
The rice was not delivered in the above measures,
but in bales {hyo). The normal amount in the bales
delivered at Yedo to the Tokugawa samurai was 3 to, 5
sho. This was known as the 3^ [mitsu-han, mitsu-gobu)
bale. But in Nagasaki, Osaka, Kofu, and other interior
and western districts the bale contained 4 to; while in
Owari a peculiar bale of 5 to was used. Thus we find
the lower samurai paid by a fixed number of bales of rice ;
while the production of a given fief was always estimated
in koku. But even the hyo was in a certain sense a
nominal, not an actual measure, for 2 sho were required
1. This was the kwan of the money known as yei or yeiraku,
and was worth 1 ryo; while the ordinary kwan was worth only J ryo.
126
PKIVATE LAW IN OLD JAPAN :
to be added by the fanner to make up for loss in
transport; this tare being known as o-tsuki-mai (added-
rice) or kuchi-mai (mouth-rice, because it was regarded
as put in at the mouth of the sack, above the regular
measure).
The story of the tax-rice, after it left the oflScial
storehouse in the interior and started on its journey
to the markets of Yedo or of Osaka, is the story of
Japanese commerce. The distrihutiou of the rice-product
was the central motive of commercial life. We ought
now to follow the path of the tax-rice and trace the
various classes of persons with whom it subsequently
had importance; hut in order to do this understaiidingly,
we must first look briefly at the conditions of commerce
in Old Japan,—commercial methods in general, guilds,
transportation, money, and exchange. And, first, of
6. Commercial Houses A
The predominance of the family idea is the key
to the methods of Old Japanese commerce. Long before
the idea of a guild and its shares (kabu) came the
notion of a family as an entity and of^its business as a
kahu belonging to that family. Since every individual
existed only as a member of a particular family, the
1. A portion of this section is founded on the results of a
Government investigation made by the Department of Agriculture
and Commerce, and published in abridged form, in the Kampo
-(Official Gazette), in various issues of February, March, and April,
1885, under the title " Shogyo Kivaiirei."
INTEODUCTION : COMMERCIAL HOUSES.
127
young man growing up and desiring to become inde¬
pendent could do one of two things only, in the
social order of the times; he could ask to be set up
by his father (or hy his elder brother, if the latter
had become head of the family) in a branch family,
or he could enter some other family, either by going
to it as a younger son or a son-in-law, or by receiving
the headship immediately, in a case where that family
was on the point of dying out. But as the notion of the
family-entity was inseparably associated with that of the
business carried on by it, the same modes applied to the
process of starting in business. The only courses which
a respectable young man could follow were to succeed
to the headship of the business of his own family,
or to have his father establish him in a branch
business as a branch-house, or to enter another house as
an apprentice or in some higher character. He was
compelled to this not only by respectable social opinion,
but by the prospect of the poor success which he was likely
to have in gaining custom without the help of some well
established name. It is easy to see how these ideas aided
in the restriction of the number of business houses.
Whether the occupation was that of a wholesaler, a penman-
ship-master, a priest, or even a street-watchman, it was
conceived of as a kabu, a family franchise granted by social
opinion; and the only ordinary mode of entering the
occupation was in some way to obtain a share in an existing
kahu. Thus in every shop, however humble, the family
was the shaping influence; the reverence for the honor of
its ancestral founders, the coherence of the family life, the
conservatism of the merchants as a class, all combined to
this end.
Outside of the family circle proper, the idea of a
business as an entity, the possession of a family, and the
constant perpetuation of the spirit of unity, affected
especially the apprentices and other employees of a com-
128
PRIVATE LAW IN OLD JAPAN :
mercial house. These were taken into the household and
formed a component element in its daily life. They lived
on the premises; for the residence was also the shop, and
back of the shop-rooms, whether spacious or contracted,
were seen (and may be still) rooms and vistas of rooms,
forming the family apartments, with greenery, fountains,
and stone lanterns, the miniature landscape of the exquisite
gardens which all the more pretentious houses possessed.
The youth usually entered on his apprenticeship at
about 10 years of age. The contract of apprenticeship was
set forth in a deed bearing the signatures of the hoy's
parents and relfitions ; the term was limited by law to 10
years. These apprentices came chiefly from the scions of
branch-houses related to the house in question ; but some¬
times from the families of friends, and, where special
exigencies arose, from outside families. The technical term,
however, was in all cases the same, deshi (apprentice).
The ordinary name by which the youth went was perhaps
" child " (hodomo) or " parson " [bozu),^ but usually koza
("little parson"). He generally received from the master
(shujin) his necessary clothes and food, and was besides
taught reading, writing, and arithmetic. While he was
occupied as apprentice he was obliged to demean himself as
became his position, and was not allowed to wear the
tobacco-pouch, the outer garment (haori), or fine shoes, the
customs dilfering more or less, of course, in each house.
In some these restrictions were enforced even after he had
reached a higher grade of service. Sometimes a special
dress was worn by the apprentices.^ In the house of
Tennqjiya Gobei, for instance, the traditional founder of the
Osaka banking business, they were required to wear the
long sleeves which children's garments have. In another
house their clothes had light-green linings ; the customs of
each house differing. As apprentices their occupation
1. Because a child's head is shaved, like a priest's.
INTRODUCTION : COMMERCIAL HOUSES.
129
consisted in fetching and carrying, running errands,,
sweeping and dusting, cleaning the garden, and
the like. Nor was any exception made in favor of those
youths who came from rich or influential families ; for
this experience in the unpleasant details of the business
was regarded as an indispensable part of the future mer¬
chant's experience.
At about 15 years of age the apprentice became what
was called han-nin-maije (half man), and took the
name which he was to bear as a clerk {tedai).
Not that he was yet a full clerk; for, as the name
of his class implies, he must still do more or less of the
same work that before fell to him; while he also began
to receive his introduction into the mysteries of ordering
and selling, paying out and taking in moneys. At 18 or 19
years of age, the hannin became a full clerk (tedai),
and on this occasion a new contract-instrument was made
out by the parties. Even yet, however, he was for a while
occupied in part with the duties of the lower grade.
As clerk he took part in the buying and selling generally,
and even had a measure of discretion in important trans¬
actions. The work of the clerks, however, was of course
dilferentiated. Some had as a special charge the book¬
keeping {clwho); others, the supervision of accounts
[clwho-kfinsa) ; others, the transacting of sales and
purchases; and still others, the affairs of external
management,—in each case according to the varying habits
of different houses.
Next to the tedai were the hanto or chief clerks.
Originally the banto seem to have been merely the
chiefs of different sections of clerks; and this practice
continued to obtain in banks, the different hanto being
designated as 1st, 2nd, and so on. In others, the banto
formed a separat^ class, different from and superior to
the clerks; while in some houses (presumably the smaller
ones) the term was applied only to the general manager
Vol. XX. Sup. Pt. i.—9.
180
PRIVATE LAW IN OLD JAPAN
{shihai-nin). The shihai-nin stood at the head of the
affairs of the house. On him rested the heaviest respon¬
sibility, and for him was all the prestige and privilege
which successful management might bring. He held the
most confidential relations with the head of the house, and
his advice and decision might be looked to even in the
intimate aflTairs of family life,—the disposition of the
younger sons' careers, the marriage of the heir or the
daughters, the settlement of a family dispute, or the like.
On the shihai-vin might fall, in fact, the entire control of
the family aud business affairs, that is, where the heir proved
of no special ability. Whether the eldest son (who was
always looked on as the heir prospective, unless special
■circumstances intervened) was required to go through an
apprenticeship in the family business does not appear.
Certain it is that he was seldom put out at apprenticeship
elsewhere, for the expressed reason that another house
would naturally be unwilling to train him for their business
and then to see him taken away from them by his own family
when the succession fell to him, and their labor of years
lost to them. Owing to this usual succession of the eldest
son as heir, it seems not unlikely that, just as the actual power
in the daimyo families fell in most cases to the seneschals
ilcavo), so in the mercantile houses the shihai-nin was not
infrequently the real head of the business.^ He might be
some clerk of pronounced ability whose talents had secured
this recognition, and in this case he might have been
honored by a marriage with one of the daughters of the
family or with some near relative. Or Jie might be the head
of one of the branch-houses who had gained the special
confidence of the family-master. Where his management
had brought special prosperity or honor upon the house,
he was treated as one of the family {shinrui-nami). The
1. There is a case in Part VIII which points very strongly to
such a state of afiairs.
INTRODUCTION : COMMERCIAL HOUSES.
131
respect due to a guest was accorded to him and his family,
and on festival occasions he had the privilege of sitting
among the members of the master's family.
The son of a faithful manager might reasonably expect
to succeed him, if he proved himself fairly capable during
hi^ years of preliminary service. Nevertheless the prize
was one which any employee of the house might
legitimately strive for. The whole system of employment,
as we have seen, was based on the promotion of those who
served faithfully and well. The young clerks were not
left to themselves to pick up knowledge and skill as
best they could ; there seems to have been a more or less
deliberate effort to train them in the business and to exercise
a paternal supervision. If, for instance, they made a failure
of something intrusted to them, they were not punished
or held strictly responsible for the loss ; but the manager or
the special hanto in charge would explain the matter more
explicitly to them and perhaps urge greater care. This,
it was thought, was much better than putting upon them
the entire responsibility and the blame, for success can
only come through trials and failures, and discouragement
iu the beginning would only destroy their self-reliance and
prevent the development of discretion and independence.
Nevertheless positive misconduct or neglect of business
was not overlooked. Each house bad its own ways of
treating such cases,—forbidding the offender to leave the
premises, reducing him to a lower grade, prolonging the
time of service in bis present grade, and even
dissolving the relation, if it came to extremes. Such
a last resort, however, was of course not come
to without great counselling and deliberation of
all parties, for it might mean the ruin of the young
man. When a clerk absconded or was dismissed, he had
no opportunily of securing new employment in the same
business. It was a strict rule of every guild that no
house should employ a man coming from another house
132
PRIVATE LAW IN OLD JAPAN ;
without permission of his former master; and where
his departure had come about through misconduct, the
master would of course notify the otlier members of the
guild and warn them against employing him. The rule was
after all not an unreasonable one, the conditions of
commerce being wbat they were; for such a person,
knowing as he did the secrets of the house—its capital,
customers, trade methods, and the like—could do the-
house great injury if he betrayed all its affairs to other
employers in the same trade. Each house in the guild
simply accorded to others the protection which it
would wish to have in its own turn. Moreover the
bonds of the commercial family were so strong that
their dissolution could take place only from a most
weighty cause, and the invariable resoii in Japan in
such cases to a preliminary deliberation by all parties
would almost alwa3's be a safeguard against injustice
on the part of the employer.
But these cases of course were the exceptions. The
normal destiny of the employee who showed himself
willing and faithful was his establishment as a branch-
house at the end of a suitable period of service. This
happened usually not less than 10 years and not more
than 20 years from the time of his entrance into the
establishment; and it was regarded as a matter of course
for him who had served well. Even the clerk who had
been dismissed and had afterward been taken back and
had reformed might demand this favor of his master..
The master bestowed on the new merchant a certain
amount of capital, a house and fittings, ^d the privilege
of using the name (yn-yu) of his house. A number
of the customers might perhaps be turned over
to him, and sometimes the relations between
the two were more closely cemented by the master
consenting to procure for the new merchant a wife.
He also made petition on the new merchant's behalf
INTRODUCTION I COMJIERCIAL HOUSES. 133
for bis admission to the guild, and after due investigation a
certificate of membership in the guild was granted. The
new house was known as a " branch-house" (hek-lce) or,
sometimes, merely as a " new house" (shin-j/a); the parent
establishment was called the " main house" (lion-ke,
hon-ya). The connection between the new house and
the main house was thenceforward more or less close.
At one extreme one finds a type of hekke connected with
the honke in little more than name. The house-name
(yayo) was the same, and the same jwren (the curtain
separating the shop from the dwelling-rooms; it bore the
trade-sign of the house) was kept; perhaps for a few
years there was more or less of a business conuection,
and certain ceremonial observances—stated visits, exchanging
of gifts, and the like—were kept up indefinitely. But
otherwise the new house was independent. Presumably
this was what happened where the employee had been
marked by no special ability, and Imd rendered no notable
service; he had received his hekke as a matter of custom,
the relation having never become a confidential or intimate
one. At the other extreme we see a hekke closely connected
by marriage or by blood with the main house, admitted
more or less into the confidence of the house (perhaps
even supplying it, as already mentioned, with a manager),
and cooperating more or less in its business enterprises.
Its position, to be sure, was that of a subordinate only, a
younger branch, and the main house had a certain right of
interference in its affairs on all important occasions,—
especially the negotiation of its alliances by marriage or by
adoption. The benefits and privileges were mutual. To
bear as hekke the name of some famous commercial house was
an ambition well worth striving for. To possess a cordon
of strong and flourishing hekke was to gain honor in
the commurity and influence in the guild. To excel in this
respect was to reach the pinnacle of commercial eminence
and to be guaranteed forever against the vicissitudes of
134
PRIVATE LAW IN OLD JAPAN ;
fortune. A group of houses, united in this manner
under a single main house, might exercise a commanding
commercial power. This system of inter-connection was
one of the most important features of Japanese commerce,
as well as a chief element in the extension of tr.ade, the
development of its methods, and the smoothness of its
workings. The main house, with its related branch
houses, was the t3'pe of all the great and successful
mercantile establishments. As an illustration of the system
and of some of the other features of the commercial life
of the times, we may notice briefly the history of one of
the greatest of the mercantile houses, that of the Mitsui
family.
The House of Mitsui was founded earty in the 17th
century in Kj-oto by a man of that name coming from
Echigo kiini in the West. Contradictory stories are told as
to which of the family's masters first brought it intO'
prominence bj' his energy and skill. Romance has colored
its early daj's; but at any rate no long time elapsed before
prosperity began to yisit the house, and after one or
two generations it found itself with branches extending
to all parts of the country, the chief stores being 6 iu
number, one for each branch of the family. The house had
taken the name of " Echigo House " [Ecliyjo-ya) ; and as
e.arly as the last decade of the 17th century its fame was
such that Kaempfer was attracted by the extent of its
commercial operations to make special mention of its
achievements.
The storj- of the success of the Echigo House seems to-
have been what is the story of commercial success everj'where,.
—keenness to seize the 0|)portunit3', large operations and
small profits, with thoroughness, honesty, and fair treatment
of subordinates. One of the worst features of old Japanese
trade was the excessive use of credit. No sales, except of
the smallest retail amounts, were made for cash, and
naturall3* the sellers recouped themselves for bad debts by
INTRODUCTION I COMMERCIAL HOUSES.
135
chnrging higb prices. The Ecliigo branch bouse in Suruga
ward, Yedo, was one of the first to adopt the policy of
cheap sales for cash {gen-gin yami-uri). The shop soon
became one of the most popular in the city, and was
thronged with customers. It was 60 feet long, and 250 feet
deep, and there were 40 clerks, each of whom bad his own
specialty, such as collar-silk, sleeve-silk, etc. An attractive
feature of the shop (which is maintained to this day, as
all foreigners can testify) was that the prices were fixed;
there was no coming down {Imke-ne) or bargaining; and
this was appreciated even in a community where the
bargaining habit prevailed.' Beginning witii the sale of
cloth, they gradually enlarged their business and included
other staples, and went outside the three emporiums of Osaka,
Yedo, and Kyoto, to the various provincial towns.
At a later period they had three shops in Yedo, employing
altogether 1,000 clerks. These were under 6 chief
clerks {banto), who met half a dozen times a month
to settle accounts and discuss the policy of the House,
On any day when the sales of any of the shops reached
200 rijo^ congratulations were exchanged and the clerka
were feasted. In the 10th month a general meeting was
held, to which every employee came ; and it is related
1. As a compensation for the rigid maintenance of prices-
they dispensed hospitality in the same way that certain of the old
foreign houses do in Yokohama to-day. Any customer who was
buying at the noon hour was invited to dine with the whole company.
The Yokohama custom of keeping open house in this way may
have had the Japanese custom for its model. Under the new regime
the Echigo house has given up its old custom ; but instead of it a
customer buying goods to the value of 100 yen is given a special
dinner. 2. This may perhaps be compared to $2000 at the present
day in America. It must be noted, in passing, that the conservative
Japanese merchant does a much smaller business than a Western
merchant would do on the same capital. The Japanese merchant
employs from one-t#nth to one-quarter of his capital, and locka
up the rest in the bank.
136
PRIVATE LAW IN OLD JAPAN :
that on these occasions 50 casks of wine were emptied,
and the ducks for the soup alone cost 100 ryn. Their
masters of the six branches of the family served an
apprenticeship in the shop like other clerks, and lived
without ostentation. There was but a single capital stock
for the whole of this extensive business, and the profit and loss
of the concern was made on a single account, not separately
for each branch; so that the House easily surmounted the
vicissitudes of trade in any particular quarter. The whole
business was of course under the joint control of all,
and a modest sum was apportioned to each branch for the
living expenses of the family. No one family-master
had the power to dispose of the family property; and if
any one of them forfeited confidence or attempted to take
matters in his own hand, he was forced to retire (inhjo)
from the headship of the family, and a successor was
appointed. Even in later generations the fiction was kept
«p that the six family-masters were brothers; and the
original names were religiously preserved ; for the eldest, the
head of the main family, Hachiroyemon, for the next,
Hachirohei, for the third, Sahurohei, and so on. When
Hachiroyemon died or retired, Hachirohei took his place
and his name, and each one below moved up a place and
took the name left by the predecessor. The result was a
business in which the extreme of experience and solidarity
was attained.
Late in the 17th centur}- the House began to attract
the attention of the Government. The Town Magistrate of
Yedo brought the family master before the Council of State;
and he was thenceforth enrolled amon^ the Government-
merchants {go-yo-taslii clionin). These were rich houses who
advanced money and furnished supplies to the Government,
and they naturally occupied the most influential position and
possessed special opportunities of increasing their wealth.
In the early days of foreign settlement in Japan, when the
Government was suspicious of the intentions of the
INTRODUCTION ; COMMERCIAL HOUSES.
137
foreigners, and wislied to put the trade into re¬
sponsible hands on the Japanese side, the Mitsui
House was told to go to Yokohama and take charge.
But the House did what every other conservative
house had decided to do ; it refused to go. Only after
peremptory commands did it establish a branch in Yokohama.
This reluctance of the respectable and solid business-houses
to take part in the trade with foreigners is at once a
characteristic of old Japanese commercial life and a key to
much of the unfortunate misunderstanding which has
since given rise to certain generalizations on Japanese
character peculiar to a class of foreign residents in Japan.
The story of this House, with what has been said
of the membership of a mercantile household and of the
system of branch-houses, will perhaps suffice to give a
general notion of the organization and methods of the
ordinary commercial house. Of the differentiation of trades
and industries, the inter-connection of the different
branches, the methods of distribution and exchange peculiar
to each, the monopolies and privileges enjoyed, one is
tempted to write more at length. But there is space here
for only a few words upon a single topic,—the commercial
guilds. Before proceeding to that, however, it will be
worth while to note the chief classes into wliich the
various commercial houses of each trade were divided.
In the commercial transactions of the time the
figures that appear most prominently and most ofteu are five,—
the producer, the carrier, the wholesaler, the broker, and
the retailer. Witli the first (usually called ni-nushi or freighter)
we are not here concerned. Of the second something will be
said later. The wholesaler {to'uja, usually pronounced ton-
ya) was perhaps the leading figure in the commercial world.
There was little or none of the manufacturing on a large
scale which has characterized European and American in¬
dustry since the dhd of the last century, and there was a
large class of wholesalers who acted at the same time as
138
PErV'ATE LAW IN OLD JAPAN :
capitalists or undertakers for the furiner and the artisan.
Custom required that the toiya should be the invariable
medium of distribution, and that next to him the broker
{nakayai, middleman) should intervene. The brokers usually
belonged to the same guild as the toiya though they
might form a separate division of it. The toiya, however,
seem usually to have acted as not much more than commis¬
sion merchants, and possibly this would be a more accurate
designation for their class.
A brief survey of the operation of distribution in one
or two of the trades will illustrate more clearly the func¬
tions of the different members of the commercial circle and
the operations of trade. The toiya of Osaka were of two
sorts, first those who exported to Yedo, the great consum¬
ing market, the merchandise that poured from all sides
into Osaka, the great distributing centre. These were known
as kaisen-donya (exporting houses) or Yedo-yumi (Yedo
guilds), and seem to have been fewer in numbers and more
clannish than the second class. Something will be said of their
operations in speaking of the guilds. The others, known as
shokoku-ywni (guilds of various provinces) were the receivers
of the merchandise from the various producing quarters.
These guilds were larger, and new houses could join without
difficulty. Each trade of course had its special regions
from which the bulk of the production came. The timber
dealers, for instance, looked principally to the provinces
of Owari and Kii, and after these, to the island of Shikoku,
where stood the forests of Tosa,—the forests whence,
bringing true a popular saying, liberty sprang forth in
the days of 1876 and later. Goods might be ordered by
an agent of the toiya, who went into the interior and
ordered what was wanted. Or the goods might be made
in pursuance to a written order received from the toiya,
specifying the goods according to quality, trade-mark, etc.
In these cases the term clmmon-ishina (merchandise to order)
was employed, and the wholesaler usually made an advance
INTRODUCTION : COMMERCIAL HOUSES,
139'
payment (zen-Idn) or payment on account (uchi-Jdn). This
advance might amount to two-fifths or even one-half, accord¬
ing to the custom of the trade. There miglit or might not
be a written contract, according to the custom of the
trade and the complexity of the stipulations. The time
allowed was a fairly long one, especially wliere the goods
were to be brought by sea,—it might even reach 6 months
or a year. Consignments were often made, however,,
without a previous order, and in some trades—the timber
trade, for instance—the bulk of the business was done in
this way. Such merchandise was known as " consigned
goods" {okuri-in), in distinctiou from "goods to order"
(fhuiiwn-shina).
The seller himself might come on with the goods,,
either as supercargo [mm-non, above-passenger), or as his
own skipper ; but more generally they were given into the
hands of an ordinary carrier. In the cotton goods trade, at least,
and very likely in others, the risk and expense of trans¬
portation were upon the seller. The mode of settlement
varied according to the trade. In the salt trade payment
was made by tiie toiija in the month succeeding delivery ;
in the timber trade, usually on delivery and sale; in the cotton-
goods trade the settlement was sometimes upon delivery ; but
here and in other trades it was not usual to settle until after
the sale of the goods by the toiija, because the toiya
was paid by a commission on the price jeieived.
Arrived at the wharf or river-bank, the consignee
examined the goods, compared them with the bill of lading,
and, if Ihey were satisfactory, set his seal by wa}'^ of receipt
in the pass-book (liantori-cho) of the captain, and took de¬
livery. The bill of lading [nkiiri-jo, letter of consignment), of
which one or two samples appear in Part III, appears usually
to have been sent along with the goods, but packed inside
the wrappings so as not to be taken out until it reached
the consignee. It wt(6 in form a letter from the consignor,
directing the captain to deliver to the person named as-
140
PRIVATE LAW IN OLD JAPAN :
■consignee the_goods specified. Where there was a land-
route aviiilable as well as the sea-route, it is probable
that a copy of the hill of lading or a receipt by the captain
was sent independently to the consignee, but this could
hardly have been usual.
The delivery was made, in the case of cotton goods
:and the like, within the premises of the toiya; for the
warehouses of toiya in the same trade usually stood close
"together, near the hank where it was customary to land
the merchandise they dealt in. But timber was
merely placed on the bank and sold from that
place; while salt was sold from the vessels,
in order to avoid the waste consequent upon an additional
loading and unloading. But the sale must in every case,
as has been said, pass through the hands of the appropriate
toiya. Where the goods had been specially ordered, the toiya,
being consignee, of course had a claim upon them ; but even
where the merchandise was okuri-ni (not ordered), the
.seller was subject to the monopoly of the toiya guild. This
was a not uncommou source of controversy—the right of
a particular house to act as toiya or the prescriptive
privilege of a particular consignor to sell directly to
the retailer, and a number of cases of the sort will be
found in Part III. The vegetable guild in Osaka, for
instance (which numbered 40 wholesale houses and 150
brokers' houses i) had the control of the 12 leading
vegetables, which could not be sold in any other market
than theirs; and any secret selling, if discovered, was
punished by the town authorities. Within the trades
there might he a division of monopolies,—salt fish and
fresh fish, for example, were sold at different markets.
When a dispute as to privilege arose over a sale of
perishable goods of this sort, a middleman {c/ntsai-nin)
1. The number of brokers' houses seems usually to have been
■the larger.
introduction; commercial houses.
141
was appointed, who sold oflf the fish and deposited the
proceeds with some reliable person until the controversy
was settled.
The sale took place, as has been indicated, in most
cases by auction,—sometimes by written bid, but usually
in an open air market witli oral bidding. The purpose of
selling by auction, of course, was to obtain the best
possible price for the goods, because the toiya, as has
been said, was usually paid by a commission. In
the timber trade the toiya, when a timber-cargo was
expected, announced it for some days before hand, by
hanging out a paper advertisement stating that on such
a day timber of such a sort from such a province and
to such an amount would be auctioned to tbe brokers. At
the appointed day the timber is unloaded along the bank,
tbe wholesaler and the brokers assemble, with a " recorder
of sales " {uri-kata-cho-tsnke), and the sale proceeds. As
each lot is bid off the recorder enters in bis book the kind,
number of pieces, broker's name, and price. From tbe
moment of this entrj' the stock is the broker's and at his
risk. Delivery is usually postponed till the succeeding day,
when a memorandum of amounts and prices is given to each
buyer ; but if desired, the timber may be left (by the well-
known transaction of kai-azuke, buying and leaving on
deposit) by the broker on the premises of the toiya.
After the close of the sale, the price having been thus
determined, the toiya settles with the consignor or his
representative (unless by the custom of the trade, as already
mentioned, the settlement is made at a later date). The
broker, as we shall see, has not yet settled with tbe toiya;
nevertheless the toiya guarantees the obligation of the
broker, or rather takes it upon himself, and pays over the
price bid at the auction, less the toiya's own commission.
This commission [kosen) was, in the timber trade, 10
per cent., the toiya paying the expenses of unloading. In
the salt trade the commission was 3^ per cent., but these
142
PRIVATE LAW IN OLD JAPAN I
were regarded as specially high rates. If the toiya had
already made advances [zenkiii, uchilcin) at the time of
■ordering the goods, this advance was of course deducted
from the price, and only the balance {shikiri-Itin, final sum)
paid ; while at the same time a balance-sheet (shikiri-yaki)
of the transaction was handed to the consignor and the
proper receipts taken and entries made.
There were apparently greater variations of custom in
the modes of settlement between brokers and toiya and
between retailers (ko-uri-nin) and brokers. In the vegetable
trade both settlements were to be made at the end of 60 days
(the retailer handing to thebroker and the latter to the toiya).
The broker was the guarantor of the retailer's credit;
for if payment failed at the time appointed and subsequent
demands were fruitless, the broker might be posted in the
market for non-payment (fu-harai-fuda, non-payment
placard), and so long as the claim remained unsettled he
could not buy in that market. In the fish trade the trans¬
actions between toiya and brokers were often for cash {yen-
kin uri, ready-money sales). When the sale was on credit
{nohe-uri, sale with postponement), the broker must obtain
the indorsement of a fellow-broker as guarantor, who was
responsible in case of the former's default. In the sale of
Satsnma sugar, the lots were bid off in the name of the
division of the brokers' guild (there were 7 divisions) to
which the buyer belonged ; and the division was responsible
for payment. But in sales of Tosa sugar each broker
bouglit on his individual responsibility. In the timber
trade the brokers settled at the enc^of 60 days. In the
salt trade the time was 30 days; while the retailers paid
cash to the brokers on the spot, or at the most, within 8
days.
We are now able to turn to the organizations
which controlled the monopolies already mentioned.
INTRODUCTION : GUILDS.
143
prescribed the methods of each trade, and enforced the
rules of fair dealing between merchants,—that is, to the
7. Guilds,
The earliest legal document relating to the Yedo guilds
is said to be a town-proclamation of 1651 (Keian, IV),
concerning transfers of shares in the bath-house (furo-ya)
guild. It runs : " The sale and purchase of bath-house
trade-signs^ is hereafter forbidden, except between relatives.
Even in those cases the transaction must be acknowledged
before the parties' five-men companies and the householders
of their wards and be sanctioned by the Three Elders."
The early history of the guilds, and indeed of commerce in
general, must always be difficult to revive completely, for
the records of various epochs have been seriously diminished
by the great confiagrations which visited Osaka and Yedo
from time to time. But it seems clear that the guilds
received little official sanction until the 18th century. Be¬
fore that time there had been guilds, and they had restricted
the number of houses possessing shares {liahu-nakama,
shares in the guild), that is, doing business of that sort;
but the restriction seems to have been accomplished chiefly
by the methods of moral compulsion to which a Japanese
community is so sensitive, and without the aid of a franchise
from the Government. It is easy to see that the persistent
notion of a family as a kahu, a commercial entity, must have
1. Kamban was the upright wooden sign in front of a shop,
bearing the name of the house or of a special article sold there.
The transfer of ttfis was the transfer of the right of doing business.
The noren, or split curtain between the shop and the living-rooms,
had a similar importance.
Hi PRIVATE LAW IN OLD JAPAN ;
led to certain restrictions on new enterprises, restrictions
resting on social opinion, not official intervention ; and
the final refusal of certain venturesome ones to submit to
these restrictions seems to have led the majority to resort
to the authorities for the sanction and the defence of their
customary privileges.
The term for guild was sometimes naf.ama (com¬
panions), but usually/ator kuniiai (company, association).
Among the earliest guilds having legal monopolies were
those of the retail rice-houses {komeya), the fish-stands, ^
the pongee-silk stands, the cypress-article stands, the sundry-
merchandise stands and the peddlers' stands. We hear
also in Yedo of the bath-houses, in 1651, as has been said.
In 1659 a town-proclamation of Yedo declared the limita¬
tions upon the peddling of goods: "From to-morrow the ped¬
dlers' business shall be subject to official inspection. The fol¬
lowing only shall be allowed to peddle: Disabled persons above
50 or below 15 years of age;^ sellers of silk pongee, of hemp
cloth, of cotton cloth, of paper articles, of musquito netting,
of tea, and of second-hand clothes; and hairdressers,3 —all
those who were lately recorded in the register." The money¬
changers [rijo-fjaye-ya) were given a legal monopoly about 1720
(at that time they numbered some 600); and it was only
towards the end of the last century that in Yedo official
sanction was given to the majority of the guilds. Those
of most importance, of course, were the wholesalers (toi-ya).
1. Za means " seat," but the Japanese iit where we stand.
Here za probably indicates the place where a man spreads out his
wares ; and it is especially appropriate for the peddlers, who do not
go about, as ours do, from door to door, but spread their wares,
generally by night, at the side of the street, and sit on a piece of
matting waiting for purchasers. 2. This must mean that such
persons could peddle any articles. 3. In those times the hair¬
dressers were itinerant and plied their trade in open spaces along
the street.
INTRODUCTION : GUILDS.
145
Next to these were the rice-hrokers (fiida-saxhi), the hath-
honses, and the hair-dressers. Then came the guilds of the
artisans, the guilds of the Government-merchants, and the
guilds of contractors {tilceoi-nin),—contractors for river-clean¬
ing, for garden-making,! for aqueduct-repairing, for road-
repairing, and for hridge-building; and besides these there
were to be reckoned guilds of merchandise-boats, passenger
boats, water-boats, and even mud-scows. Altogether there
were in Yedo in the early part of this century some 60
guilds of all sorts.
But it was in Osaka that the guild was to be seen at
its best. Commercially, as well' as geographically, Osaka
was the central point of Japan, and especially in manufactured
articles the control of the trade was in the hands of the Osaka
wholesale-houses. Those of Yedo were largely dependent
upon Osaka, were in fact, in perhaps a majority of cases,
either originally or actually mere branches of great Osaka
houses ; for Osaka had been a prosperous city while Yedo
was yet only a new castle-town, and when the capital
of the Tokugawas came to have dominant political
importance and to be thronged every year by the multitude
of visiting vassals, the thrifty Osaka merchants sent down
their agents, and, by establishing branch-houses of their
own, managed still to keep control of the trade of the
country. Thus the original source of distribution was
Osaka, with its o-toiya (chief wholesalers), and from there
the merchandise found its way to the intermediate and
smaller centres. The Yedo merchants never had either
the capital or the character of the Osaka merchants.
The constant sight of the luxury and prodigality which
long years of peace brought about in the Tokugawa samurai
1. The sight of the huge slabs of stone, quarried in the interior,
which form a feature in all large Japanese gardens, would suggest
how it was that furnishing of garden-supplies might easily
fall into the hands of contractors.
Vol. X*. Sup. Pt. 1.—lO.
146
PKIVATE LAW IN OLD JAPAN I
induced similar ambitions in the merchants; and the
dependence of the Yedo trade on the patronage of the
nobility led to a habit of flattery, fawning, and bribery,
which could not but have an evil effect on commercial
manners. To the system of unlimited credit and redupli¬
cated debt which began with the nobility, great and small,
and extended to the dealings with other classes, was due
the unnatural and inflated condition of trade which
characterized Yedo in the first half of the present century.
This led inevitably to the Nullification Order of 1843 (given in
Part III), which swept away the accumulation of debt and
enabled the merchants to start again upon a cash footing.
In Osaka the manners of the Court had never exerted such an
infiuence on commercial habits; for the Castle possessed
& comparatively small contingent of samurai, and the
necessity which constrained the great daimyo of the central
and western regions to sell their rice in Osaka placed them
in competition with each other for the favors of the
capitalists and made the merchants rather than the nohles
the masters of the situation. In wealth and standing the
Osaka houses far outranked those of Yedo. Their
names and their prosperity dated back two centuries
or more, and the heads of the houses carefully cherished
the traditions of their establishments. The managers,
clerks, and apprentice-boys were generally sent at au
early age from the provinces where the master was born, and
the employment descended from father to son. So extensive
was the business of some houses that many of the employees
were said never to have seen the master's face. In¬
tegrity and reliability were the characteristics of the typical
Osaka house. Credit was so solid that bills and notes
passed freely from hand to hand, and after a long circulation
come back to the drawer or maker without the intervention
of banks.
It was in such a community that the highest com¬
mercial development of the country was reached, and the
INTRODUCTION : GUILDS.
147
guilds must be studied chiefly in Osaka.i Here, as in Yedo,
they existed long before they received official sanction
and legal monopoly. Some of the privileges were
given (or sold) as a reward for particular services
performed. Thus in the middle of the last century
the drug-sellers were so honored for their services to
mediciual science. The oil-sellers were similarly treated as
a reward for supplying the Emperor's palace with oil. The
inns of Osaka were given a monopoly in return for the
large amount of money which they gave for the repair of
certain city bridges, and the builders for their services in
repairing the great temple of the Emperor. But it was not
until after the periods Meiwa and Anyei (1764-1780) that
the guilds were generally recognized. During those periods
the increase of trade was such that the old guilds found
themselves unable to control the new men, and they applied
to the Government to sanction the monopoly which the
guilds claimed. This was done, and thenceforward each
guild was accustomed to pay annually to the Government a
sum called " thank-money " [mijiKja-hin), in effect a fee, and
to make gifts {mu-dai-niono, things without a price) of the
articles in which it dealt. The guilds at that time
numbered about 100, and included the wholesalers and
brokers ^ for rice, vegetables, oil, fresh fish, drugs, dried
fish, timber, and so forth. Of these some had several
thousands of members, others less than a score. For
1. There is but one scholar who has given special study to
Japanese guilds, Mr. Matsuzaki Kuranosuke, lately lecturer at the
Imperial University, and now studying in Germany. He has made
a unique collection of the Osaka guild-constitutions. But among
the scholars of the older generation Professor Komiyama Yasusuke
has the widest acquaintance with the details of the old commercial
life. 2. The wholesfi^rs ('totye j and brokers (iiakagai, go-betweens)
for the same article were often in different guilds or divisions of the
same guild.
148
PRIVATE LAW IN OLD JAPAN :
nearly two centuries the guilds as a whole seem to
have been dominated by a combination of the most
powerful of them, including the trades concerned with
the great staples of commerce,—cotton, dry goods, iron¬
ware, paper, oil, drugs, earthenware, matting, lacquered
ware, and wine. This was known as the " ten kiimi " (ten
companies or guilds); aud late in the 17th century a similar
combination was made in Yedo. The two acted together
and seem to have cooperated with the shipping guild to
control the whole trade between Osaka and Yedo. As
time went on, manj' of the original 10 kumi divided into
two or more, each taking a special variety of merchandise,
and it is dififlcult to trace the original organiz.atiou.
Early in the 17th century the wine guild broke away
completely, and the term used thenceforth was often " nine
kiiiiii." But we find the enumeration and the names of
the trades changing at different times. In the present
century, however, the combination appears to have revived
the original name, though with constituent trades differ¬
ing somewhat; and the increase of its power helped to
bring about the popular dissatisfaction which culminated
in the severe measures of 1841-2.
One of the difficulties in examining the organization
of the guilds is to distinguish between the guild proper
and combinations such as the above. The term kiimiai,
sometimes kumi (company), is applied to the guild as a
whole; and thus the combination was known as the "ten
kumi." But each guild might be subdivided again into
administrative groups, aud these were also known as
kumi. Thus, the timber guild was divided (in later
times) into 7 kumi,—cypress, cedar, ship-timber, shingle
and a brokers' kumi being among them. The seven
kumi of the cotton guild were named from the wards
in which they had their places of business. There
was a large guild of wholesale houses in Osaka importing
from various quarters, and the three kumi were divided
INTEODUCXION : GUILDS.
149
according as their merchandise came from the north
coast, from Satsuma, or from Tosa. Thus there seems to
have been no fixed rule for the formation of Icumi. It would
seem that each group termed Icunti did have a certain
coherence and independence of its own, while in larger
questions of policy it was under the control of the highe.i
body. Another obscure point is the relations between the
brokers, wholesalers, and retailers of each trade. Still
another is the guild-relation, if any, between the houses
respectivel}' importing into Osaka from the interior,
retailing in Osaka, and exporting to Yedo the goods of any
particular line. The 10 kumi above spoken of were known
as the " Yedo-exporting houses," and they appear to have
had a different organization from the houses who dealt
directly with the producers by advancing capital and
securing their product.
Premising these difficulties and obscurities, we may
look briefiy at some of the general features of individual
guilds. The organization was that of a number of
shareholders {kahushiki) united into an association [kumi).
There were managers of various grades,—a so-yijoji
(general director], a toshi-yyoji (director for the year), and a
tmki-han (inspector for the month). The tosM-gijoji seems to
have been set over the lowest group known as kumi; the so-
yyoji probably officiated over the larger kumi; and there was
sometimes a still higher officer, the o-yyoji (chief director).
The number of shares was fixed by the Government, but
could apparently be increased on request of the kumi.
Each shareholder had a share-certificate (Icabufuda, kabu-
ehomen). The numbers of shares in the different kuvii
differed greatly, as has been said. A few of the numbers
are
Rice (wholesale) 1,351
Vegetables ( " ) 40
^
1. The periods of most of these are not known, but they
must have been before the end of the last century.
150
PRIVATE LAW IN OLD JAPAN :
Vegetables (brokers) 20
Wax ( " ) A 120
Oil (wholesale) 9
Oil-lees ( " ) 273
Drugs ( " ) 273
Books 60
Pawnbrokers 613
Bath-houses 2,004
Money-changers 52
Wine 707
The rules of the guild {woshi-aicase joniolni, naleama
joJio) were made by themselves, and were entered in a large
hook, iu which the members of the guild set their seals. A
glance at the rules of the company of salt fish aud dried
sardine wholesalers will give an idea of the general features
of the management.
" Instrument of Anyei, X, 4 (May 1781).
" The regulations recently agreed upon between the
five Intmi of salt-fish, dried-fish, and dried bonito will of
course he obeyed by this kuiiiiai (association). But we
have also agreed upon the following articles to he observed
hj' us ;
" 1. No member of this kitmiai may emplo}' one who
has come from employment under another member without
learning whether he was faithful to his former employer and
left him rightly or not; for this purpose inquiries should he
made of the former employer as to whether there is any
reason why the person should not h^ employed; and if
there is he must he rejected.
" 2. When a new branch-house is founded by one of
the wholesale houses belonging to this kumiui, or when a
clerk after serving a wholesale house several years and
becoming thoroughly acquainted with the business, has left
his employment without fault on his part, an application
from such an employer or branch-house for a share in the
INTRODUCTION : GUILDS.
151
guild may be made to the director for the year, and if a
recommendation is brought from the former employer or the
main-house, the share may after careful investigation be
granted. No recommendation of any other sort shall suffice.
" 3. The same rule shall apply to clerks engaged for
six mouths only, if they have served for several years. But
in no case shall a share be given to one coming from another
kumiai.
" 4. When any shareholder wishes to assign his
share he must report to the director for the year and
await the permission of the guild. This obtained, he must
file with the director for the j'ear an instrument reciting
that there is no one who has any right to oppose the
assignment.! Private assignments will not be valid as against
the kumiai.
"5. When an investigation has been made as to
the person who desires to receive the share, and the
assignment has been allowed and made, the assignee must
file an instrument engaging to pay without fail the
annual thank-money to the Government and to obey
the rules of the kumiai.
"6. If any member of any of the guilds defaults
in a debt owed to any member of this guild, and the
latter wishes to bring suit for its recovery, he must first
give notice to all the members of the guild, and those
houses who also have credits against the debtor must
consult and determine whether to bring suit at the same
time or to wait. In such cases consideration must always
be shown for the interests of others.
"7. No member may adopt a ronin (masterless person)
who has once been adopted by another member and after¬
wards divorced,®' if the first adopting family objects, nor may
1. That is, tbei j is no incumbrance on the share. 2. The same
word Cn-yen) is used for the divorce of a wife or husband and the
sending away of an adopted child.
152
PBIVATK LAW IN OLD JAPAN:
any recommend liim to another. The violation of this
rule would cause dissension among us.
"8. All regulations made hy the kumiai at a general
meeting shall be observed by each member, even though
lie was prevented by business from attending the meeting.
"9. All members must, on notice from the director
for the year, attend the meetings of the kumiai and the
joint-meetings with other kumiai. Absence from the
meeting is no excuse for not obeying its decisions.
" 10. The office of director for the year shall be filled
by each member in turn. But if the one whose turn has
arrived is ill or too young or too old, the director for the
expiring year shall name another person for the office, and,
this decision shall he final. The person acting as director
must conduct himself with honesty, carefulness, and
diligence.
We have all agreed as above; any one violating
these rules shall be treated as the guild shall upon
deliberation decide. In testimony whereof we
hereunder set our seals."
The entrance of a new member or the assignment of an
•old share was not a simple matter of paying the money
and getting the certificate. It was made a formal occasion,
And there were certain largesses to be paid (as in the
-case of land-transfer already noted) to the various parties
interested. The fees, in addition to the price, payable by
ihe receiver of a share of the cotton guild during the
Bunkwa period (1804-18) were :
1. Where a new share was created :
To the guild, as entrance-fee 50 ryo, gold,
" " chief clerki 3 ryo, " ,
1. It would seera that this transaction was looked on as a grant
or privilege from the old house or master; the original document
mentions merely tlie wife, clerk, etc., but we must suppose that it
was those of the head of the family or house just left.
INTRODUCTION : GUILDS.
153
To the wife 3 bit, " ,
" " son 2 " , " ,
" " parents 2 " , " ,
" " servants ad. lib.;
besides the cost of the new seal, of a
general feast, etc.
2. Where a share was assigned to another member :
To the guild, as entrance-fee 30 ri/o gold,
" " chief clerk ^ 3 " '
" " parents 2 bu '
" " wife 2 " '
" " son 2 " '
etc., etc.
3. Where the assignee was a relative of the assignor:
To the guild 5 ri/o gold,
" " chief clerk 2 bn " ,
" " wife 2 ri/o silver,
" " son 1 " " ,
Expense of the feast 5 " gold.
4. Where the assignee was a relative of another member:
To the guild 20 i-i/o gold,
" " chief clerk 2 " " ,
" " wife 2 bu " ,
" " son 1 " " ,
and the expense of a feast.
Where a sou succeeded to the family headship, a fee
of one or two ri/o was paid ; and a change of name or of
seal or of residence was also accompanied by the payment
of a fee.
About 1840, or just before the abolition of the guilds
(to which reference will be made), the prices of the shares
of some of the guilds 2 were as follows :
1. Here the reference seems tube to the clerk, etc., of the as¬
signor. 2. In Yedo.
154
PRIVATE LAW
IN OLD JAPAN
Trade
No of Shares
Price
Salt-importing (wholesalers)
4
2000-4000 ryo.
Salt
(brokers)
21
500 "
Wine-importing
(wholesalers)
88
it (<
Rape-seed oil
21
it it
Paper
/ << \
47
it ti
Dried sardines
/ (( \
15
800 »
Earthenware
( ^
86
it (C
Salt fish
/ \
84
200 "
Dyes
88
H ti
Matting
i ^
87
100 "
Iron and copper
ware
65
it it
Wax
/ <4 \
20
1000 "
Cotton cloth ^
( " )
22
it ti
Timber
( " )
275
20-100 "
Stone
( " )
200 "
Bath-houses
516
200-1100 "
Hairdressers
800
50-1000 "
Of the successive prices at different periods the only
table that has been obtainable is one for the fuda-sasJii
shares,—the rice-brokers who bought directly from the
samurai. These were;
In 1788 500 ryo,
" 1789 great depreciation on
account of reorgani¬
zation of the guild.
" 1791 100 ryo,
" 1800 150 " ,
" 1810 50^ " ,
" 1817 570 " ,
" 1840 1000 " .
Needless to say, the share-certificate, representing as
it did a combination of good-will and franchise, was
1. Down to here the trades were included in the " ten guilds."'
INTBODUCTION : GUILDS.
155-
frequently used by its owner for raising money temporarily
Here is a document of pledge, given by one who has borrow¬
ed money on his certificate :
" Instrument of Pledge of a Share
of the Salt-fish Wholesalers.
" I, the undersigned, have borrowed of you ryo in-
silver, and as security my wholesaler's share-certificate has-
been handed to you. I shall without fail repay yon within the
next months ; but if I am unable to do so in that time,
I shall transfer the share-certificate to you, after reporting
to the director for the year. For future testimony I
make out this instrument, on the day of the
month.
A. B.
of the 13-men company,,
salt-fish wholesalers.
To C. D.
I have examined the ahove and in token set my seal
below.
E. F.
director for the yOar of
the 13-men company,,
salt-fish wholesalers."
If the borrower found himself unable to pay, he gave to
the director for the year an instrument of the following
tenor:
"In this month falls due the loan from C. D. for
which my share has been pledged, but as I cannot pay, my
share is likely to pass to C. D. Will the laimi he kind enough
to pay for me and get hack the share, or will it transfer
the share to him ? Do as you think hest after hearing the
opinion of all the members. I have notified you because-
the time for payment is near. I shall have no objection
to interpose, no matter to whom you may transfer the
156
PRIVATE LAW IN OLD JAPAN :
share; and I certify that there is no other person who
has any claim to the share.
A. B.
of the 13-men company.
To
the Director for the year
of the 13-men company."
About the middle of this century the guilds met with
«, sudden disaster. They had been growing more and
more powerful for 50 years, and, as the above series of
prices indicates, their privileges had been bringing in
profits constantly greater. It was almost impossible
for new shops to be opened, and prices reached an
exorbitant level. The guilds had resorted to the world-old
expedient of cornering the market,^ by buying up the
whole of a product and selling it when the price had risen
to suit them. The people complained loudly and the
•Government (the moving spirit being Mizuno,lord of Echizen,
presiding Councillor of State) abolished the whole system of
guilds and shares, in a series of proclamations issued between
1841 and 1842, two of which lie before me. The prime
objects of the measure were to secure lower prices
and fi'eedom of industr}', and the most radical rules
were laid down. The terms kumiai, nakama, toii/a, fucia,
nakayai, etc., were to be given up ; the payment of yearly
thank-money" and of all other guild-burdens was
abolished; no merchant should be merely a wholesaler,
but all should also sell at retail; wholesale and retail prices
should be the same; there was to be no buying up of large
quantities and holding for a rise, and retail selling was
in no case to be stopped; and finally all prices were to be
lowered 20 per cent, and a schedule of the reduction
be posted in front of every merchant's shop for official
inspection. But these legislators soon found that the evil they
1. Shime (squeeze, sbut)-/(ai (buy), shime-uri (sell).
introduction: guilds.
15T
had created was greater than the evil they had abolished..
The guilds were gone and their rigid control of trade
was gone; but with this had disappeared also the very
foundation of trade,—commercial confidence. The guilds
had worked to build up their own interests, but they
had also, in so doing, served the interests of general
prosperity by establishing wholesome rules of commercial
honor, by creating central tribunals enforcing public
commercial opinion, and by placing each and every branch
of trade on the firm footing which concerted action could
not fail to give. "When this framework of guilds was
withdrawn, there was a melting away of the commercial,
structure. Mutual confidence disappeared ; the value of the
shares shrunk to nothing,—a result which crippled every
possessor and destroyed at once the merchant whose honesty
had been his chief capital. It was no longer possible to
borrow money on the shares, and there was a general
contraction of business on all sides, which naturally had a
disastrous effect on the producers and ultimately on prices.
The people (for the step seems to have been the result of
popular clamor) found that after all they had not been
so unfortunate when the guilds were flourishing; and
before ten years had passed the elders of Yedo were laying
before the Government a petition for the re-establishment
of the old order. It was conceded on nU hands that the
abolition-measure had been a failure ; and in April, 1851,
the guilds were re-established. Not, however, with all
their power to oppress the people; for while the yearly fees
were no longer required, the limitation of shares, and indeed
the share-certificates themselves, were no longer allowed.
The guild-members were registered at the town office, and.
their ancient regulations were restored ; but aU new-comers
were to be freely admitted as members, unless special
exigencies, approved by the Government, required restric¬
tions. Thus it was sought to retain all the influence for
good which the guilds were capable of exerting, and at the
158
PRIVATE LAW IN OLD JAPAN I
same time to take away from them the power to restrain
hy artificial modes the natural courses of trade. The
whole operation of abolition and restoration is one which
would well repay the further study of the economist.
Such, in outline, was the guild system.i We have
seen what interconnection there was between the
guilds of Osaka and Yedo and how those two great
centres were bound together in commercial relations.
Some explanation is now necessary of the methods by
which this connection was effected,—of transportation,
money, banks, and negotiable instruments. And first of
8.—T ransportation.
The physical conformation of the country, as has been
jj^ore than once pointed out, is decidedly unfavorable in natural
facilities for transportation i for the chain of mountains
which divides its narrow length from one end to the
other not only makes difficulties for the passage from
one coast to the other by roads, but also prevents the
formation of natural water-ways. But these hind¬
rances alone do not account for the backward condition
of land-transportation under the Tokugawas. Nor is
it enough to say, as many have said, that there were few
,^ood roads; there were enough to show that others
would have been forthcoming had tli^y been desired.
Nor yet is the lack of horses a suflBcient explanation;
for the condition was little better where horses were best
and plentiful. The reasons why there was nothing
1. It has been impossible to learn anything of the artisans,
guilds; but these are fortunately not so important for our present
purpose.
INTRODUCTION 1 TRANSPORTATION.
159
better as a usual means of land-transport than pack-horses,
bearers, and a few bullock-wagons, seem to be the same
that account for the antiquated junks and the tedious
voyages of sea-transportation,—first, a disregard for the
value of time, and, second, a lack of inventiveness. No
people that bad possessed in a strong degree the commer¬
cial energy which prizes time and seeks to conquer nature
for mercantile uses could have put up with either the
junks or the pack-horses as long as Japan did. There was
natural material in abundance, and there lacked only the
putting of the baud to the work. No doubt the repressive inter¬
ference of the Government contributed greatly both to
diminish the size of the mercantile marine, and to intimidate
the spirit of invention, by preventing that free and constant
intercourse with foreign nations which is more the source
of general progress than Europeans usually realize. There
are many reasons why the Tokugawa Government must
stand high among the dynasties of the world ; for while
Europe was engaged in persistent, if intermittent, mutual
slaughter, the Tokugawa Shogunate brought a nation of
20 millions out of a state of incessant bloody war and
maintained an effective peace for 250 years among scores
of petty principalities which had for several centuries
known nothing but dynastic discord. But one thing we can
never forgive the Tokugawa Shogunate,—the proclamations
by which it not only closed the country to foreigners, but
forbade the departure abroad of its own subjects. In 1636
the third Shogun, lyemitsu, ordered the destruction of all
ships of Western build and restricted the Japanese junks to
sizes suitable for coasting only, and by this measure the
nation was for two centuries shut out from one of the
greatest opportunities for commercial progress.
The sea-ways, however, always remained the chief
paths of internal commerce. The land-roads were used by the
couriers (who, on^iorse or on foot, were in general use) and
by the packhorses and bearers, whose business was chiefly
160
PRIVATE LAW IN OLD JAPAN :
the transportation to and from interior towns. The
greater popularity of sea-transport was of course due to
its cheapness. It is not eas}' tofind the figures for an accurate
estimate of the difference in the cost of the two modes,
and the rates changed from time to time ; but the trip between
Osaka and Yedo must have cost at least twice, and probably
five or ten times, as much by land as ^by sea, for bulky
staples like rice, cloth, etc. The consequence was that
the great rice traflSc, and the bulk of all the Osaka-Yedo
trade, sought the sea. There were three principal rice-
producing districts from which that staple was exported
to other parts of the country,—the provinces of Hyuga in
Kyushu, the northwestern provinces of Echizen, Echigo,
Kaga, and Noto, and the north-eastern provinces of Oshu
and Dewa (the old names for a number of provinces since
carved out of these). From the first two the export was
all to Osaka; from the last to Yedo. The port of the
first district was Kumamoto, and the journey to Osaka
(going around north of Kyushu and stopping at Shimono-
seki) in favorable weather took about 20 days,—a distance of
less than 400 miles.i Niigata was the main port of the
second district, and the voyage to Osaka was some 800
miles in length. The custom was to start from Niigata
in the late spring, and, sailing around by the south, to
reach Osaka in the summer or autumn, the time being
from 3 to 6 months. Then the vessels lay up in Osaka
during the winter and returned in the early spring, a full
year being the allowance for the entire trip. Both the
Kumamoto and the Niigata vessels called at Shimouoseki
on the way, and continued or not to ^saka according as
the latest rice quotations were favorable or not. The port
of the third district was Sendai, and the rice from this
1. These figures are based on the reports of H. B. M.'s Consuls
on internal transportation, in the Blue Book for Japan, 1878,
No. 2.
INTKODUCTION : TEANSPOHTATION.
161
quarter went to Tokyo. Tbe difficulty and expensiveness^
of this route of 200 miles may be seen from the difference
of rice-prices in Sendai aud Tokyo in the seventies of this
century: rice was selling at 5 yen per Icoku in Tokyo and
at only 3^ yen in the Sendai region.
But the route of greatest importance in shipping was
that between Osaka and Yedo, the two great commercial
centres,—a distance of something less than 400 miles. ^
This did not begin to be of any importance until the
middle of the 17th century; but by the end of that century
it had practically engrossed the whole of the through
freight traffic between those two ports, much to the
dismay of the Tokaido towns, which strove in vain to have-
sea-traffic restricted. The chief vessels were the
hishiyaki-bune, or red-railed ships, so called from the red
railing which surrounded the deck, and the taru-hune
or cask-ships, which were of lighter capacity and greater
speed, and were used chiefly for wine-transportation. The
larger vessels above 1000 kokii^ capacity were divided into
8 classes, according to speed, and were known as "numbered
ships" (bani-bime). In the 11th month of every year
there was a race from Osaka to Yedo, by which the
class of the vessel for the ensuing year was deter¬
mined. The total number is variously stated, but about
1810, when the neglect to make necessary repairs
had caused numerous wrecks and the freighters had lost
the (in Japan) vast sum of nearly 400,000 ryo, it is said
that the number of ships fell to 88. In the present century
the number seems to have reached 600. The management
was in the combined hands of the 10 exporting kiimi of
Osaka, the 10 importing kumi of Yedo, and the shipping
1. The following statements are founded chiefly on records of the
Town Magistrate's pffice and in particular on the relation of an old
merchant consulted by the Magistrate in 1829 as to the customs of
the trade. 2.1 koku=5 bushels=about one-sixth ton.
Vol, XX. Sup. Pt. i.—11.
162
PRIVATE LAW IN OLD JAPAN I
guilds. In fact the origin of these Yedo humi is ascribed to
the disputes which constantly arose between the Osaka
freighters and ship-owners on one hand and the Yedo
importers on the other; for the latter had always acted each
for himself, there being no central organization to lay
down rules of average, rebate, aud payment, and to remedy
this the Ten Companies of Yedo were formed. The organi¬
zation as thus completed seems to have consisted of four corps
of inspectors at each end, under the control of the general
directors and chief director of the Ten Companies. These in¬
spectors or " black-stamp holders" (koku-in moto) were so
■called from the branding-iron (i/aki-in) which was the
mark of their office. There was a central assembly-office
for freight-shipping {mawashi-bune-kwahha), where applica¬
tions were made for the registry of new ships and for the
transfer of existing ones. The settlement of all this was
in the hands of the inspectors, who gave a wooden ticket
hearing their brand and registered the speed, sails, capacity,
etc., of each ship. Every ship-owner had to pay his share
"towards the expenses of this assembly-office. Here also
was kept a record of the arrival and departure of each
vessel ; for notice had to be given to this office when the
ship left Osaka, when it arrived at Yedo, when it left
again, and when it reached Osaka. This assembly-office
was, in short, the Lloyd's of Japanese shipping. When
the lading of a ship was finished, an itemized bill of lading
(mokurokit, okuri-jo), describing separately the cargo and the
ship's stores, was made out and was countersealed by
an inspector, and notice (probably with a copy of the bill of
lading) was sent to the consignee. At flie port of Uraga
i(in early days, at Shimoda) aU ships must touch and obtain
from the Government official a ticket permitting them to go
on up to Yedo. On arrival at Yedo an inspector took charge,
examined the goods and estimated the injuries received,
if any ; and, this completed, the freight could be paid. On
the upward journey (it was " up " from Yedo, and "down"
INTRODUCTION : TRANSPORTATION.
163
from Osaka) a second ticket was taken from the shipping
office at Yedo and left with the Government officer at Uraga,
with the ticket originally received from him; and on the
next journey down the second ticket was received again at
Uraga and returned to the office at Yedo. The settle¬
ment of averages and of all other claims was made
at the assembly-office after investigation by the guild
officials.
A correspondent in the Japan Mail a number of years
ago declared that the Japanese in the old days knew.nothing
of marine insurance. On the contrary, they had the best
kind of insurance,—the mutual system. One of the chief
features of the shipping guild and its combination of related
humi was the provision for the general sharing of loss
among all the members of the association. When a ship is
lost, it was said, if the owner alone bears the loss, his whole
estate is gone and his family ruined. Hence, as such a
disaster may in the course of time fall to the lot of any family,
it is for the interest of each and all to unite and share the
risks. Thus, though each year there will be for every one
a small expense, yet no one will suffer irretrievable ruin.
For 200 years a system of this sort prevailed among the
ship-owners and freighters of Osaka and Yedo.
We may also rank among the modes of transportation
the floating of timber from the interior to Yedo by river
and sea. For Government timber there was a regular
system for this purpose. The logs were measured and
numbered when they reached the river nearest to the forest,
and there they were launched singly. At intervals along
the smaller streams were dams ; these were closed until
a sufficient head of water had accumulated, and then the
opening of the dam let loose a volume of water large enough
to carry the logs down to the next one. At the confluence
of the main river another inspection took place, and then
the logs were floatW down to a similar station on the coast.
A circular letter (Icai-jo) was sent to all villages along
164
PRIVATE LAW IN OLD JAPAN :
the river, directiug them to assist in passing the timber
along. At the mouth of the river the logs were made into-
rafts and taken around to Yedo.
We may now look at those other agencies for facilitat¬
ing commercial intercourse,
9. Money, Banks, and Commercial Paper.
The chief difficulties that arise in studying the money
of Old Japan are connected with the exchange values of
different coinages; but as these differed constantly and
cannot be completely understood until a chronological list
of values has been compiled, it will be impossible here to
do more than note the general approximate values.
First came the gold coinage, in which the ryo was the
chief unit. This was worth, as coined in Tempo and Ausei
(1835-1860), from to 4^- dollars Mexican. In
the last century it was worth twice as much. The ryo
was divided theoretically into 4 hu, and the bu into 4 shu ;
but the actual worth of these divisions did not always
correspond to this. In the Tempo period and later, for
instance, the hu was worth less than a quarter of a ryo. The
silver coinage was of two standards. * First, the lower
gold-units were used; that is, bu and shu were coined in
silver as well as in gold. Here again there was not an
exact correspondence, even between the relative values of
the two silver coins. For instance, the 2-s/iif piece of
1824-80 was only a little less valuable than the 1 bu piece
of 1837-54. Second, the ryo was divided into a number
INTRODUCTION : MONEY, BANKS, AND COMMERCIAL PAPER. 165
of momme (originally a weight-measure), and silver payments
were usually calculated in momme. The only coin, however,
actually issued in that denomination seems to have been a
5-viomme piece in 1765-72. The number of momme to a
ri/o was at first 50, hut after 1765 (about) it was made 60.
Thus 15 momme ought to equal 1 bu, and 3f momme, 1
Yet in one passage in Part III the above 2-shii
piece is said to be a little more than 12 momme. The
copper coinage was subject to changes even more frequent;
but except for the money-changers the effect of these
was seldom important, because of the comparatively small
value of each coin. The general term for the small money
of iron or copper was zeni. The ryo was divided into
several thousand mon of zeni. Yet it is hardly correct
to say that it was " dividedthe two coinages seem to have
Srown up independently, and from time to time a rate of
equivalence was determined on. The Javan or string of
1,000 mon had its origin far back in the beginning of
feudalism, when each land-owner was bound to send a
quota of armed men in proportion to the size of his pos¬
sessions ; the unit ktv(i7i grew out of these military services.
Japanese annalists still contradict each other as to the
true origin of the standard; but at any rate it
was very widely used, and in the rural districts, in the
Tokugawa times, where a gold coin was the mark of a
rich man, the kivan or kwammon was the chief standard of
reckoning. The rate of equivalence for the rijo was for
a long time nominally 4,000 mon; this was the figure at
which the Tokugawa Government constantly ordered it
to be taken. But there were various issues from time to
time, and according as one or another coin predominated
the actual value fluctuated. In one passage we find 1
momme declared to be equal to 100 mon, which would give
6,000 mon as the equivalent of 1 rijo. A special rate was
sanctioned for oein known as yeiraku sen, or, briefly, the
yei,—the origin of which again is the subject of much con-
166
PRIVATE LAW IN OLD JAPAN :
tradiction. It probably came from China; and it was much
preferred to the ordinary mon, which was known as akii-sen
or hita-sen (bad money). The ratio of this and the yei-sen
was fixed at 1 to 4, and thus 1,000 mon of yei were equal to
1 ryo. In certain districts this was the ordinary standard
used. Thus we have the normal scale ;
1 ryo — 60 momiiie=\,QOO yei-mon = 4,000 mon ;
1 bu =15 " = 250 " " =1,000 " .
In addition to these terms, there was a decimal series
of bu, rin, and mo ^ (lOths, lOOths, lOOOths), which could
be applied to any unit, and was ordinarily used with the
momme (silver) and the mon {zeni).
As a practical exercise in the use of these terms, let us
take an extract from the tax-account of a village in Kai
kuni. Each family's taxes are separately reckoned, with the
various additions, rebates, and payments. The following is
the account of a farmer named Tobei:
"Assessed production: 16 koku, 8 to, OsJto, 2 go, 4 shaku.^
Tax-rice: 5 " , 3 9 " , 3 ", 0 " .
Extra-rice 2 4 " , 3 ", 6 " .
Items : Yei Money.
a) Extra-rice 175 mon, 9 bu.
b) Short-rate,^ 1 koku, 7 to,
9 slw, 8 go 434 " , 3 " ,
c) Long-rate,5 1 koku, 1 to,
9 sho, 8 go, 3 shaku 1 kwan, 198 " , 3 " , 3 rin,
1. In Japanese the stigma of worthlessness is " not worth a
mo." 2. These measures are from a decimal series. 3. Kuchi-mai; the
extra-rice added to compensate for leakage. Hwe it was reckoned in
money. 4. Sho-giri. 5. Dai-giri. In this section of the country a
portion only of the tax was paid in money, the process of calculation
being an intricate one. The books say that one-third should be in
the long-rate and one-third in the short-rate ; but here the rice paid
in money is about five-ninths of the whole, and this is again
divided between the two methods in the proportion of three-fiftha
and two-fifths.
INTRODUCTION I MONEY, BANKS, AND COMMERCIAL PAPER. 167
Bemainder, 2 koku, 4 to, 8
sho, 3 (JO. Of this 7 balesi
are paid in all, with 7 sho
of extra-rice; ^ remain¬
der due, 3 sho, 3 go,
worth in silver, 1 mom-
we, 2 bu, 1 rin.
d) Advances 3 3 " , 9 " , 3 "
«) Cost of seed 4 " , 4 " , 3 "
/) Expense due for break¬
water 539 " ,3 " .
Total 2 hmn, 356 vion, 1 bu, 9 rin.
Of this amount has been paid :
Gold, 2 bu:
" 1 ryo, 3 bu: ^
Bemainder, in yet money, 106 1 bu, drin '
Equivalent, in silver, to 4 momme, i bu, 8 rin.
Also due :
g) For labor on public works, 56 ",2",5
h) For advances in the Dog year :
Bice, 6 «/w>, 2 */o; worth 2 " , 6 " .
Total,® in silver, 64 " , 5 " , 8 " »
Of this, a deduction for
wages paid to public
laborers 3 " , 5 " , 5 "
Total doe 61 " , 0 " , 3 " .
all of which has been paid."
1. Hyo; a bale was 3 to, 5 sho; thus, if 7 bales were paid,
there were 8 sho, 8 go left over, to be carried into the silver
account. 2.Kake-mai; an obscure term, but probably analogous to
kuchi-mai, supra. 3. Bu-jiki; made by the Government the year
before and now to be repaid. 4. This total of 2 ryo, 1 bu, made 2,250
vum of yei money, leaving the remaiiider stated. 5. To make this
total the previous ai^ount of 1 momme, 2 bu, 1 rin, due on the rice-
remainder in e, must be added in. The total, however, foots up 4
rin only, instead of 8.
168
PRIVATE LAW IN OLD JAPAN :
One learns from this that at the time of the above
document (1803) 1 momme was worth about 24 yei-mon, and
40 momme would nearly buy 1,000 matt or 1 ryo. This
tax-account will illustrate at once the fluctuations of the
•currency and the mode in which the people employed
the different coinages.
There was also more or less paper money in circulation.
Paper money appears to have been known previous to the
Tokugiiwa epoch, but was not used in any considerable
amounts. Tiie Tokugawa Government itself never once,
during its long regime, put into circulation a Govern¬
ment issue; it was only at the close of its power, in 1867
(Keiwo, III), that it sanctioned a paper money for the
newlyopened port of Hyogo, and this was withdrawn
almost as soon as it was authorized. Issues of paper
money by private persons were of course made in the
shape of bank-notes, and of these something will be said
later ; but they had a circulation mainly in the large centres
of trade. Throughout the interior the chief paper-money
was that put forth by the daimyo. The issue was kept
strictly under the control of the Tokugawa legislators, and
at one time they entirely forbade further issues. The issue
of these "clan-notes" (han-satsu) began about the period
Kambun (16G1-73), and by Genroku (1688-1704) had grown
to a large amount. In 1707 (Hoyei, IV) the Government
prohibited the further issue of all such money, in terms
which seem to include also even the subsequent circulation
of what had been already put forth. In 1730 (Kyoho, XV)
it was found necessary to repeal this prohibition, the
object being to bolster up the price of ri«e. The permission
applied to gold, silver and copper bills equally, and for the
daimyo of 200,000 koku or more was to continue for 25
years, but for those of smaller estates for 15 3'ears only.
In 1755 (Horeki, V) the license was restricted to silver bills
only. Subsequent legislation merely declared the policy of
refusing to grant it to daimiates other than those already
possessing the privilege.
introduction: money, banks, and commercial paper. 169
These silver notes were of many denominations.
In Echizen, for instance (where the earliest issue of " clan-
notes" is said to have been made), the denominations were
vwmme 100, 50, 10, 5, 3, 2, and 1. It would seem that
none of the issues were in name irredeemable ; though the
actual value of the notes was more or less affected by the
pecuniary circumstances of the fief. Some of the more
opulent daiiinjo established at Osaka banks for the re¬
demption (hiki-kai/e jo) of their issues, and in consequence
their notes had a large circnlatiou outside their own fiefs.
Various artifices were resorted to for inducing the accept¬
ance of the paper money. For instance, the fief of Bizen
ordered that fur 100 inomme of silver coin 101 momme of
notes would be given, while for 102 momme of notes there
would be given only 100 momme of silver. It will easily be
understood that, from the scarcity of coined money in Old
Japan, the daimijo in many cases felt themselves forced
to increase the circulating medium by issuing paper-money.
In other cases the necessity arose to defend their own
fiefs from the paper-money of adjacent fiefs by following
the example of their neighbors and thus preventing a drain
of their own coin. But there were many instances in which
papei -money was resorted to merely as a means of escape
from pecuniary embarrassments which both the taxes and
the official money-lenders were powerless to relieve.
At the close of the Tokugawa regime there were 28
daimyo and 8 hatamoto whose' issues of paper-money
were extant. The total number of notes was nearly
411 million. The value in the new coinage of the Meiji era
was 17^ millions of yen. For this entire amount the new
Government assumed the liability, and the fief-notes were
taken by it in exchange for the paper of the new era, which
has since (though at the cost of much suffering) been
placed on a complete equality with silver.
The term aijiplied to this paper-money was generally
satsu (note, piece) or kitte (ticket), these words being
170
PRIVATE LAW IN OLD JAPAN :
used in combination with the coin represented,—ffin-satsu
(silver), kin-satsu (gold), zeni-satsu (copper and iron),
gin-kitte, zeni-kitte, and so on. Less commonly the words
Iiagaki (written slip), and tegata (hill) were applied to
such documents. Kitte and tegata were also applied to
certificates representing deposits {azukari) of merchandise
or promises to pay in merchandise. The kome-kitte (rice-
ticket) was the most important, and something will be said of
it in connection with the rice-exchanges, under the head of
the Rice Trade. These certificates represented (among other
things) the hire of packhorses and carriers [jimha-dachin
azukari-tegata),t\\e deposit of manure {koyashi azukari-tegata),
the hire (apparently) of umbrellas (kasa-nihon tegata), and
so on. Where the kitte were issued by wholesalers in a
particular trade, they were known as kura (warehouse)-asM-
kari-kitte. The commonest of these was the sugar
deposit-certificate {sato aznkari-kitte). It recited that the
price had been received and promised an equivalent amount
of sugar, but, if the bill was not presented within a certain
period, it was to be of no effect and void. This period was
3 years and 8 months, and, as no storage need be
paid, the merchandise was sometimes not called for
until the end of the time. Destruction of the merchandise
by fire or fiood was no excuse for non-delivery, and
this naturally gave the certificates an element of
stability.
We come now to the subject of commercial paper
properly so called,—bills of exchange, bank notes, checks,
and other instruments resting on the credit of individuals
and convertible into money. But all*these commercial
expedients were intimately connected in their operation
and history with the banking system; and of the banks,
with their predecessors and associates, the money-changers,
a few words must first be said.
With a currency as complicated and changeable as
that of Old Japan the money-changers did a thriving
introduction; money, banks, and commercial paper. 171
bnsiness. In Osaka they appear to have heen organized
into a guild ahout 1660, and were at that time already
very numerous. There were in Yedo alone at the closo
of the last century 643 money-changers, associated in a
guild of some 20 or more companies. These were what
had heeu formerly known as " small-money-changers""
[zeni-ryo-gaye-ya); that is, they made it their husiness-
to furnish small coin to any who had minor gold or silver
coins to change. Each sat in a little shop behind the
railing peculiar to the trade, his balance stamped on the
bottom with the official brand, and his trade-sign in the
shape of a weight. lu the beginning the exchange-shops
had all heen situated either in Suruga ward, in the Kanda
district, or in Chief Exchange ward,i in the Nihonhashi
district. But in Japan, as in Venice, hanking was at
first associated with money-changing; and when smaller
exchange shops started in different quarters of the city, the
larger husiness of gold and silver exchange and of hanking
fell into the hands of the larger houses, of whom hereafter.
Subsequently the hanking business seems to have engrossed
these "chief houses", and the former "small-money
changers" took up also the husiness of gold and
silver exchange. The thoroughfare known to-day as
Qinza (silver-shops) was one of their chief districts.
In 1787 there was a separation, and the money¬
changers proper (ryo-gaye-ya) were placed in a separate
guild; while the hankers (though still known generally as-
Jion-ryo-gaye-ya, chief exchange-houses) also formed a
guild of their own.
The daily market-price was determined in two
Exchanges {soba, market),—onefor zeni, the other tor gold and
silver. The zeni-soha was at Old Yokkaichi ward (just
below the Yeitai Bridge). The meeting was attended
1. Hon-ryo-gaye-elu>.
172
PRIVATE LAW IN OLD JAPAN :
by some 20 representatives of the companies of the small
money-changers, and hy representatives of the hon-njo-
gaye-ya, or hankers. It was apparently held in the open
air near the highway, and was supposed to open at 8
o'clock in the evening. When the inspector [metsuhe)
stepped forth and placed his lantern in position, the
bidding began ; the amounts of the sales and the prices were
entered by a director in a book, hy the light of the lantern,
-and the ruling price was then reported to the two Town
Magistrates' Offices and the town elders for publication
the next morning.
The Exchange for gold and silver was in the Chief
Exchange ward, and was daily attended hy representatives
of the bankers' houses and the ordinary money-changers.
Here the buying and selling went on, and at the close of the
day's session tiie director reported the ruling prices and
the amounts bought and sold to the hankers, who in turn
notified the Finance Magistracy, the Palace, and a few other
important offices ; a note being made in the same report of
the zeni prices of the previous evening. One of the rules
of this Exchange was that sales of less than 1,000 ryo could
he in lots of 400 ryo or SCO ryo only ; no intermediate
amounts were sold.
We come now to the business of those houses which
have been termed " bankers." Another common name
for these houses (beside hon-ryo-gaye-ya, chief exchange-
houses)—was haivase-lciimi. Kawase, meaning literally
"make exchange," conveyed in this connection the idea in
our " bill of exchange ",—that is, not the mere exchange of
■one coinage for another, hut the trans^rt of money from
one place to another or a process equivalent to it. This
epithet will indicate at once the origin of these houses and
their chief business. There are various stories as to the
first house to enter the business; hut hy all accounts it
would seem that the first instances of sending Government
money from Osaka to Yedo hy hill occurred about the period
INTRODUCTION I MONEY, BANKS, AND COMMERCIAL PAPER. 173
Genroku (1688-1704), and that the business was under¬
taken about the same time by a company of money-changers-
known as the Ten Men Company and by the Mitsui House
already described. But there had been private transactions
of exchange by bill at a much earlier period. Wiien the guild
of money-changers was established about 1660 in Osaka, the
various sorts of commercial paper were already well known,
and 10 of the chief houses were authorized to issue what-
presumably were equivalent to bank-notes. But before the
Tokugawa period there had been a species of bill of exchange
known as kaye-sen (return or exchange of money), as
abundant records testify; and there is even an enactment
of the early part of the Kamakura dynasty (1297; Yeiniii, V)
forbidding interest to be allowed on sums due ou bills of
exchange. These, however, are records brought to light by
antiquarians, and the thread of succession was perhaps
broken by the wars of the 16th century, for in the Osaka
traditions the name associated with the foundation of the
banking business and the development of the system of
negotiable instruments is that of Tenuojiya Gohei, the head
of a famous exchange-house of (probably) the early 17th
century.
Moreover, even before the Government enterprise of
Genroku (1688-1708), it seems that private moneys
were being transferred by bills between Osaka and
Yedo as early as Genna (1615-1624). It is easy to see
how the money-changers had discovered the expedient.
Tbe Mitsui house accomplished the transaction by buying
cloth through its branch in Kyoto, sending it to Yedo, and
selling it through its branch in that city. As the sea-transport,
then coming in favor, was much cheaper than the old mode of
pack-horses and couriers, the Mitsui House could easily
serve the Government cheaply and yet make a profit. The
period required by the Mitsui house seems to have been
150 days, and liy the money-changers, 60 or 90 days-
Merchants so trusted by the Government were known as ka-
174
PRIVATE LAW IN OLD JAPAN :
wase-kata-yotashi (suppliers of exchange), and were required
to deposit money, title-deeds, or other good security with
the Government. As commerce increased, the same methods
came into general use among all classes of merchants, and
the whole trade between Osaka and Yedo was settled by
bills of exchange. Some of the features of the bill system
will now be noted. i
The " chief exchange-houses," or banks, were in Yedo
(some 25 years ago) 145 in number. Among these there was a
combination of the richest, known as the Ten Men Exchange-
Company, the successors of the Ten Men Company above
mentioned; the real number of bouses in it, however, was
13. These with a few others, were known as the "parent-
houses"; for each one was the headquarters of the
transactions of a number of the smaller bankers.
The latter drew drafts on their respective parent-houses, and
in other ways made use of them just as country banks in
the United States use special metropolitan banks. The
commercial paper was chiefly bills of exchange, checks,
and bank notes. Ordinary promissory notes were
used, but apparently not as freely as other forms.
The check system was in its elements much like our
own Western one. Where two merchants, A and B,
both dealt with the same bank X, and A owed B, A drew
a check on X, and paid it to B. Where A's bank was
X and B's was Y, A drew on X, as before, and paid it to B;
B deposited it with Y, and Y settled with X in the course
of business,—that is, if X aud Y had mutual arrangements
to honor each other's checks, as all the Yedo bankers bad.
But if X and Y did not have mutual*accounts, it seems
1. The following statements are founded chiefly on a report made
about 1881 to the Tinance Department at the instance of Mr. Kaneko,
when the draft of a law upon Commercial Paper was under considera¬
tion ; and in part also upon the report of the Department of Agricul¬
ture aud Commerce, " Shogyo Kwanrei," already mentioned on p. 126.
INTRODUCTION : MONEY, BANKS, AND COMMERCIAD PAPER. 175
that X would send the check to have it accepted by Y, and, on
receiving it again, would forward it to Z, his own banker,
and Z would probably have a mutual account with Y. The
form of the check was as follows:
^'Memorandum.
Silver, kivamme ^
to be paid to Mr.
year, month, day
House.
To Mr.
of the House."
This instrument was known as furi (dra,w)-dashi (send)-
tegata. The last transaction above would usually occur where
the banks Y and X were minor ones and the bank Z was a
"parent-house." Thus, when bank X received from a merchant
a check on bank Y in the same town> he would take the check
there for acceptance (and, in accepting, Y would renew the
" address," as it was called, to Z, much in the way that
we indorse), and then send it to the "parent-house " Z ; or,
making quicker work, X might send directly to Z, its "parent-
house," though Y had no dealings with it, and Z would see to
the further settlement. Where a bank X received a check on
bank Y and had no mutual accounts with it, X might, if Y was
in the same town, send the check over directly and have
it cashed. Y would do this, if the check was correct on
its face, without examining the state of its depositor's
account. But in case of an unauthorized over-draft
(which, it is said, happened rarely, as the standard of
commercial honor was high), or of any other defect in
the draft, Y might return the bill to X before 12 o'clock
noon of the same day, and X was bound to return the
money. At 12 o'clock the busiuess of the bankers closed
(ordinary money-changers were open till 4), and it is said
■ ft
1. A measure of weight.
176
PRIVATE LAW IN OLD JAPAN :
that once a day only were bills exchanged,—which probably
refers to a transaction similar to tbat performed at our
clearing-houses.! A bank offered a doubtful check or bill
might protect itself from barm by obtaining the certification
[hiki-aivase, guaranty) of the drawee bank. A book (called
the "guaranty-book," hiki-awase-cho) was taken, with
the check, to the drawee bank, and the latter signed in
the book. The draft was then said to be " guaranteed,"
and the signer was responsible for its payment. If
the signature was refused, the draft was returned tO'
the person offering it. The form of guaranty was as;
follows :
" Memorandum.
Silver, Icuamme
drawn by ^ ,
We guarantee the above,
month, day,
House."®
Payment by check seems to have been regarded as
absolute, not conditional, so far as the solvency of the bank
was concerned, and the holder bore the loss in case of the
bank's failure. But where the bank dishonored the check
for lack of funds or a like reason, the holder had recourse
against his transferor. It would seem also that where
the holder neglected for an unreasonable time to present the
check, the drawer was not responsible for subsequent lack
of funds.
1. This process of balancing up the accounts was managed by
the houses drawing on each other every day a peculiar check known
as furi-sashigami (draw-order), which appears to have answered the
purpose of our clearing-house checks. 2. In-moto (signer). 3. This
appears to correspond to our Western process of certifying checks.
It may perhaps have included the general process of an acceptance
of a hill; but this is doubtful.
INTRODUCTION : MONEY, BANKS, AND COMMERCIAL PAPER. 177
A peculiar form of check was known as o-tegata,
and was employed only to facilitate the settlement of accounts
at the half-yearly settling times (7thand 12th months). Where
A owed B but at the end of the season could not pay
cash, though various moneys were due him from X and
others, he drew a provisional check on his bank and
paid it over to B. This check was payable on the 2nd of the
next month. By the 31st or the 1st A would have collected
all that was due him, and by the 2nd he must have paid it in
to his bank. Meanwhile B placed the check with his
own bank, and on the Srd the two (or more) banks met
and wrote off the balances. If A had not provided funds,
his check was thrown out and returned to B
who must then recover from A in the best way he
could.
Of course where a bill was transmitted, in the course
of negotiation, by one house to another, each transferor must
indorse it. The indorsement consisted in an abbreviation
{ko-in, short name) of the house-name, similar to our
initials,^ and was absolutely essential to the negotiability of
the instrument. Unless a proper chain of indorsements
appeared, the drawee would not pay.
It does not appear that blank indorsements were used,
01 that ordinary promissory notes to bearer were in vogue.
But there was an instrument which was equivalent to our
regular bank-note, payable to bearer. This was the azuka-
ri-tegata (deposit-note). Where a man had no bank deposit
and received a bill on some bank, he went there and
presented it, and got in exchange a document or documents
in the following form ;
1. It should be added that the drafts of the "parent-houses"
on each other (furi-sashigami) were drawn by certain chief clerks
known as the " bill-signers " (tegata-namaye-nin), who used merely
the short-name of*the house and added their own to it; thus
" Ichisuke, of M."; " To Nisuke, of Ten."
Vol* XX. Snp. Pi. j.—l!i.
178
PRIVATE LAW IN OLD JAPAN :
" Memorandum.
Silver, [or gold] kwamme [or j-yo].
We promise to pay tlie above amount in silver
[or gold] in exchange for this document.
—year,—month,—day,
House."
This " deposit-note " was passed along from hand to
hand, apparently without indorsement, and the risk of the
hank's insolvency fell entirely on the holder of the note-
These notes were very popular, and are said to have
-circulated as freely as coin. They were found even
in the interior districts (issuing, of course, from a
Yedo or Osaka hank), and the traveler on the Tokai-
do stuffed his wallet with them as we do with our
modern bank-notes. The question of over-issue seems
4io have been left entirely in the hands of the guild,
and the members would not allow any house to continue
business after it had proved itself incapable of redeeming
its notes. It is diflScult to learn what the exact machinery was
by which the issue was regulated ; hut the amount seems
io have been fixed by mutual agreement. Where a run on the
hank made it necessary to furnish a large supply of coin, the
allied houses were appealed to, and finally even the
" parent-house" might have to lend assistance. What¬
ever the regulations were as to over-issue, it is certain
that the amount of so-called ku-ken (empty hills), or notes
not issued against cash, was large. Early in the Meiji
period there were large failures amolg the hanks, owing
to a lack of coin which came about through changes in the
currency, and the holders of these notes were unable to
obtain payment. It is said only those banks that had made
little or no over-issue were able to survive; though one
■hank is noted as remaining whose issue had been at the
rate of 6 ryo of notes to 1 ryo of cash.
INTRODUCTION : MONEY, BANKS, AND COMMERCIAL PAPER. 179
The deposits of customers were, of course, the basis of
the banks' transactions. The depositor took with him
the bill or the cash to be deposited, and the amount of the
deposit {nyu-Idn, money put in) was entered in his pass¬
book {kaijoi-cho). If the pass-book was not brought, a
temporary receipt of the following form was given him:
" Memorandum.
Silver, Im-amme,
Received the above amount, this receipt to be
void when entry is made in the pass-book.
House.
To Mr.
of House."
The deposits, however, were never placed to the
customers' credit until the next day after their receipt.
The banks paid no interest on these deposits on current
account, and they charged interest on over-drafts.
Ordinary promissory notes, as has been said, seem not
to have been as much in use as the other forms of
commercial paper. They were employed, however, and it
is a curious coincidence that the term applied to them was
one which is rendered exactly by " promissory note,"—
yakusuku-teyata. This instrument was used, as we use it,
to evidence a debt and at the same time postpone its
payment until a certain date. In Osaka the note usually
promised payment at the end of the current month ; and there
were two kinds,—one in form a promise by the debtor, like our
own instrument, the other in form an order upon the bank
to pay at the time named. These yakusoku-teyata appear
to have passed from hand to hand like other commercial
paper. In some of the centres of production in the interior
they were the ordinary instruments of credit. Thus the
silk-brokers in Ashikaga (in the present Tochigi ken) would
make out promissory notes and give them in payment to the
180
PRIVATE LAW IN OLD JAPAN :
cloth-seller. The latter passed them on to the spinners
and dyers, and thus the whole process of production, manu¬
facture, and distribution rested .firmly on a basis of
commercial paper. In recent times these notes have been
made payable at 5, 6, 20, or 30 days, and have included
interest for that period, but in former days they appear to
have been payable on demand. They were known as "silk-
purchase notes" [kmu-hai-fuda), and were made of a
special sort of paper peculiar to the region, folded eight
times, inscribed in large characters, and bearing the full
name of the maker and the short-name of the payee.
One of the notable conditions having great a
influence on the conduct of trade was the equilibrium
which the facts of national life brought about between the
mutual indebtedness of Osaka and Yedo, the chief centres
of commerce. On the one hand, as has been explained,
Osaka was the great stronghold of the wholesalers dealing
directly with the producers, and Yedo annually came
into debt to an enormous sum for the supplies of all sorts
sent down from Osaka for distribution. On the other
hand, the great ilaimyu of the Centre, West, South-West,
and Northwest sent all their tax-rice for sale to Osaka,
the centre of the rice-market as of almost every other;,
but these same daimyo every other year took up their
residence (as required by law) in Yedo, with a multitude of
atteudants, and even during their absence there were,
for many of them, three vast mansions and a large retinue
to be kept up in Yedo; so that the sums due to them for
the millions of kokii of rice which they had sold in Osaka
were iu large part to be paid to them in Yedo. Thus,
with the Yedo merchants owing Osaka, and with Osaka
owiug the Yedo daimyo, the accounts could be. settled
almost completely by bills of exchange. When an Osaka
merchant drew on his Yedo debtor, he got his bill discounted
for cash, as we should do; such a bill was known as shita-
kawase (immediate-payment), or uki (float lightly, change
INTRODUCTION : MONEY, BANKS, AND COMMERCIAL PAPER. 181
qinckly)-/^?!^?. The days ending in 2, 5, and 8 wer^
set apart 1 in the Exchange for the sale of what might he
called "foreign hills," that is, drawn hy either Osaka
or Yedo on the other. Gold to be sent from Osaka to
Yedo was called " down gold." Tlie form of this hill
given hy a bank was as follows:
"Bill for cash received.
Gold, ryo received.
We have received the above amount of down
gold; you will pay the equivalent amount at
Yedo to Mr. , on month, day,
without fail. In witness whereof we have
given this hill of exchange.
House.
year, month, day.
To House."
The employment of a system of commercial paper so
varied and so extensive as that which has been described,
indicates the extent to which credit entered into tlie
commercial operations of the times, and the degree of
mercantile confidence that must have prevailed. Probably
one of the reasons for the solidity of the mercantile credit
system was the special protection given by law to commerci.al
paper. A claim founded on such an instrument was given a
" summary action " (chu-batsn-saiban) ;2 in two respects this
action possessed special advantages,—it was tried at an early
date, without waiting for the regular Court-days, and
the judgment gave the creditor a right of priority (saki-dori-
t()l(u-km) in the distribution of the debtor's estate. Moreover,
the procedure for the enforcement of judgment was
somewhat stricter and more summary.
1. A very common method in Japan of fixing regular periods .;
thus, the above day%iii each month would be 2, 5, 8, 12, 15, 18, 22,
25, 28. 2. Or naka-nuki; picked out of the middle (of the list of
cases), i.e. summary.
182
PRIVATE LAW IN OLD JAPAN :
We may now, in the light of the foregoing explana¬
tions, look briefly at the processes involved in that chief
of all mercantile activities in Old Japan, the
10. Bice Trade. ^
If we hegin at the beginning, taking the rice when it
reached the local storehouses, and following it to the retail
shops, we may distinguish three stages in the distribution,
each having its peculiar methods and customs;—the
transport of the rice to the metropolis, its apportionment
(if tax-rice) among the retainers, and its purchase and
sale by brokers and wholesalers.
The hulk of the export rice was tax-rice. Where
private rice was shipped, the vessels were generally owned
by rich rice-merchants. The merchant usually loaded
the vessel to four-fifths of its capacity, and left the re¬
mainder for miscellaneous cargo procured by the captain.
The freight charges on the latter constituted the remu¬
neration for the captain, out of which the crew were paid.
The captain shared the risk with the owner to the extent of
his interest in the freight. The tax-rice in the Siiogunate
dominions was usually transported by contractors {ukeoi-
nin), who hid {raku-satsii) for the transportation of rice
from an entire province. The contractor deposited security
money (some 60 ryo for every 10,000 Jcoku), and hired
private vessels (which might be owned by a merchant or
by the captain), subject to the Goverument's regulations.
1. The customs differed in different regions. Attention will
here be given chiefly to those prevailing in the Shogunate
dominions.
introduction: rice trade.
18»
When the tax-rice in a certain quarter was almost ready
for delivery, notice was given hy the proper official
to the freighting-coutractor, who made a tender specifying
the vessel, owner (whether captain or another),
captain (oki-sendo or seiido), capacity, year of building,
equipment, and number of crew. If this tender was
satisfactory, it was accepted. If for some reason no vessel
could be got in this way, search was made in other quarters,
and sometimes the dai/civnn of the region where the rice was
made the selection. After selection the official " black-brand "
was nailed to the ship,—a small square block with an official
brand. The place of loading was then assigned, or perhaps
the vessel sailed to a given port to receive orders from an
official as to her destination.
Meanwhile the rice was being prepared for trans¬
portation under the daikwan^s supervision. The farmers
themselves packed the rice, each bale furnished with an
inside and outside tag bearing the payor's name and address,
and placed them in the village storehouse. When all was.
collected the farmers transported it again to the central
official warehouse, where official inspection was made. From
there to the shipping port the risk was the Government's,
while the farmers, as a labor service, effected the
transportation; but if the distance exceeded 5 ri they
received payment. This operation of getting the rice
from the field to the port furnished fully one-half of
the causes for petition and complaint by the people to
the daikwan, and was a subject of inexhaustible interest
and endless adjustment in the life of the rural com¬
munity.
The ship was not allowed to take on any other freight
than the tax-rice and the provisions ; and it was even
required that, if a gale arose and some of the cargo had
to be jettisoned, the provision-rice should go first. The
object was to pre^nt fraud by the pretended sacrifice of
the tax-rice to other goods. A bill of lading (ofcun'-jo)
184
PRIVATE LAW IN OLD JAPAN I
was given by the officer in charge of the loading, and ran
as follows :
" Bill of Lading for Official Tax-Rice to be sent to
Yedo.
—— kuni, port, ship,
Captain, .
hunt, kori, port.
Supercargo,^ farmer .
1. Tax-rice in bags marked year:
Total No. of bags : thousand, hundred^
containing kokii (or to].
Freight-charges gold.
Paid at port, gold (oiie-tliird).
To be paid at Yedo, " (two-thirds).
Also:
2. Provision-rice,® bags (con¬
taining—to).
3. Ship made of ^ timber, years ago.
4. Mast, [pine]; yards, [cypress]; rudder, [white
oak]; area of sail, tan * of cotton.
■5. Iron aucliors, —; weighing respectively kwanime,
etc.
6. Small boat, —;
besides other appliances.
7. Draught, inches.®
8. One copy of the Rules of Kwambun XIII.
9. One ship's log.®
10. One copy of Rules for coasting-viUages.
11. One red-ball flag.'' *
1. Uwa (above)-Jiort (riding, going). 2. Un-cldn. 3. Ryo-mai,
4. About 28 feet in length. 5. This was apparently measured from
the gunwale, after loading, so as to detect any fraudulent removal
of cargo. Sen-chu 7iikki. 7. Hi-iio-maru ; indicating the official
nature of the voyage.
introduction; rice trade.
185
The above ship, carrying the tax-rice of last-year paid
by — — htn, kimi, and starting from port,
kuni, was examined at departure and the draught
noted. The above details are correct. On receipt of this,
please pay the remainder of the freight charges. In testi¬
mony of the above, this bill is given.
year, month, day.
To
sub-manager,
under officer,
at destination,
from
, sub-manager under ,
at the Shipping-Office of
port,
kuni."
With the ship went a supercargo, usually one of the
headmen of the tax-paying district,^ who had a general
supervision of the cargo, and was bound to see it safely into
the storehouse at Yedo and bring back a receipt. He kept
a log of his own (te-cho), in which he was to record all unusual
happenings. The captain also kept a log, in which
were noted injuries to cargo, jettisons, and other casualties,
as well as the occasions, if any, when the vessel was required
to put in any where through stress of weather. In the cabin
were posted the regtilations on these points, all being
directed towards a safe landing of the rice undiminished in
quantity or quality. As was customary in Japan, all those
concerned signed documents of submission {ukesho, accept¬
ance) engaging faithfully to follow these regulations; one was
signed by the captain, the mate {kako-e/a-ihira, chief of sailors),
and the cook {makanaiy, the other by the supercargo. As
1. Sometimes called osume-nanvshi (payment headman), as he
had charge of paying the rice to the authorities at Yedo.
186
PRIVATE LAW IN OLD JAPAN:
soon as the ship left for Yedo, notice was sent to the Finance
Department in Yedo; and on the vessel's arrival the rice
was unloaded and stored in the Government storehouses at
Asakusa, Honjo, or Takebashi, Various regulations were
made for the payment by the ship of damage caused by
water, rats, etc. The freight was paid, as the bill of lading
shows, one-third at the port of lading, and two-thirds on
delivery at Yedo. If the vessel was wrecked on the way
from Yedo to the port of lading, one-sixth was paid. If
the loss occurred after loading, the one-third was retained
by the freighter. If the Osaka market was more favorable
and the ship was ordered, while at the port of lading,
to change and proceed to Osaka, the second third was paid
at Osaka and the last at Yedo. Where jettison occurred,
no freight was paid on the amount thrown over.
With the rice safe in the storehouse, and the super¬
cargo on his way home with a receipt to show to his fellow-
provincials, let us see what became of the rice sub¬
sequently.
The main Government storehouses were in the
districts of Asakusa and Honjo, and consisted of a
hundred or more separate buildings. The chief offices were
at Asakusa, where the distribution to the retainers took
place. Most of the large daimyo had storehouses of their
own, where they paid their retainers, but the central
point was the o-kura or Government Store-house. In pay¬
ing the retainers four sets of officials were involved. First
there was the Certiticate Bureau {shimon-gakuri) in the
office of the Council of State, which kept a tally of the
various higher retainers. Next there "^as the Finance
Department, the General Bureau, which must keep account
of all outgoes, and therefore must note the payment. Then
came the Eegistrars (kakigaye-bugyn), who were immediately
entrusted with the duty of certifying to the persons entitled
and the amounts due ; and, last, the Storehouse-keepers,
who paid out the salary-rice on the certificate of the Regis-
introduction: rice trade.
187
trars. Of the latter there wei-e two, one appointed from the-
Finance Department, the other from the Shogun's Castle
Guard. They did monthly service alternately at their
offices in Asakusa near the store-houses, and received 200
hyo salary. Their clerks (tedai) received 30 hyo and " two-
men's rations," i and were appointed hy the Finance Magis¬
trate. The Storehouse-keepers (ohira-buyyo) were seven,,
and had the same salary as the Registrars. They camo
some under the Finance Department, some under the
Cdstle-Guard. Two stayed at the Asakusa storehouse,
and five at the Honjo storehouses. They had under
them various clerks and guards.^ The process to be
observed when the salary was drawn was as follows. If
the retainer was occupying an office under the direct control
(jiki-shihui*) of either the Council of State or the Junior
Council, he made his application {guan-sho) to the
Certificate Bureau above-mentioned, stating his name,
office, and amount of stipend. The clerks examined the
records, got the counterseal of the Council of State, and
sent to the chief of the department to which the applicant
belonged {kashira-shihai) a document addressed to the
Registrar, directing him to pay the instalment due for such
and such an amount. This document was then given by
the chief of the department to the applicant, who sent it
to the Registrar. The latter signed it and forwarded it tO'
the Finance Magistrate, who indorsed it as satisfactory and
returned it to the Registrar. The latter indorsed an order
1. This was an extra payment often added to make an office
more honorable. "One man's rations" (ichi-nin-fuchi) were 2^
hyo or bales. 3. Oktira-ban, tedai, ktnniqashira, te-koage, koage-
tsuyetsuki, koage-kashira. 4. This meant, as already explained, tbat
the officer was appointed by either of those Councils. Thus, A
might be appointed by the Council of State; his assistant would
be appointed by the Junior Council, and B's subordinate C by A,
Here for B the Junior Council is jiki-sliihai and A is kashira-thihai t
for C, A \B jiki-thihai and B is kashira-shihai.
188
PRIVATE LAW IN OLD JAPAN I
addressed to the Stoiehonse Keeper directing him to pay
the within amount; and the Keeper, going solely by the
Registrar's indorsement, would deliver accordingly.
Usually the retainer, if a person of consequence, did not
himself go to draw the rice but either sent a broker [fmla-
iashi) instead or sold the rice to the broker and allowed him
to take it out. In this case another document was
necessary. The retainer drew up a receipt in this form:
" Receipt for Spring Stipend-Rice.
Total stipend 200 hyo.
Amount now due 50 ".
at 3 to 5 s/io for the hyo.
This is to certify that the above spring stipend-
rice has been received.
year, mouth.
of OflSce.
To the Registrars."
The chief of department indorsed this and the broker
then took it to the Registrar; the latter compared it with
the document already mentioned, aud made his indorsement
as before, which enabled the broker to get the rice from
the Storehouse-Keeper. The original application to the
Certificate Bureau, it should be said, was made by the chief
•of department himself if since tlie last payment there had
been a change in the applicant's office, that is, if a son
had succeeded a father who had retired or died, or if the
previous incumbent had been dismissed or removed to
another department. *
The certificates {teyata) given in the above manner were
known as jiki-han (direct sealed, or self-sealed). Whether
the jiki refers to the seal of the Conncil or to that of
the applicant is not clear. But the term was used
in contradistinction from ura-han teyata, or certificates
.sealed by the chief t)f department with his urahan
introduction: rice trade.
189
or inferior seal. The latter method was used for the
lower othcials. The chief of their bureau hauded in
an application stating the total number of persons (without
names) in each section (kumi), and asked for the salary at so-
much per man. The certificate given was called " string-
certificate," o-nairu (striiig)-i.vs/ii (one sheet)-teijat(i, because
all were asked for on one list.
The stipends were paid three times in the year. The
first payment was in the 2nd month, the second in the
5th mouth, and the last in the 10th month. The first two
were known as un-shahi-vud or on-kari-mai (official loaued-
rice)—probably because these were originally regarded as
advances on account—and were further distinguished by
the terms " spring " and " summer ." The last was known
as on-kiri-mai (official final-rice), because it ended the
year's payments. Where the stipend was expressed in
koku (as in the higher offices) or lnjo (the offices of middle
grade), the proportions were one-fCurth in spring and in
summer and one half in winter. Where it was measured
in rtjo (as with many of the lower offices), it was divided
into three equal instalments. ^ If a man was newly
appointed to office before the end of the 9th month, he
received the whole year's salary ; if after that time, one-half
only,—provided the salary was measured in rice. If in
money, an appointment before the end of the 4th month
gave the year's salary, before the end of the 9th month, two-
thirds ; after that time, one-third. The rice was divided
into four grades, the best being paid out to the higher
officers, and the poorest to the laborers on the public works
and the dancers (sartiijaku) supported at the public expense.
Even where the salary was measured in rice, a portion
might be paid in mouej', according to the state of the
markets or other considerations. The Registrar drew up
1. On-fuchi-mai was a common term for the former ; on-rjaku-ryo ■
for the latter.
190
PBIVATE LAW IN OLD JAPAN I
a schedule of the amounts due and submitted it to the
Finance Department, and the latter to the Council of State,
a,nd when the proportions of money and rice and the rate of
exchange had been fixed, a proclamation (liatigami) was
posted by the Palace Attendants at the entrance of the
Castle. It read something liVe this:
"The spi'ing payments shall be made at the rate
of one-third rice and two-thirds money. The
value of rice shall be reckoned at 40 ryo gold
per 100 hyo. ^ "
But this proportion varied, as the following record of a
single year's account will show :
Spring instalment: ^
Pace, 50,934 koku, 0 to, 7 eho, 5 go, 7 shaku, 5 sai.
Money, 10,880 ryo, 3 bu.
Summer instalment:
Rice, 76,353 kokii, 7 to, 4 sho, 4 go, 2 shaku, 2 sai.
Money, 84,653 ryo, 3 bn.
Winter final payment
Rice, 101,401 koku, 5 to, 5 sho, 7 go, 6 shaku.
Money, 229,783 ryo, 1 bu.
When the salary-application of a retainer had been
approved, he usually sent a broker, as has been said, to
"take delivei-y for him. The proclamation above mentioned
had announced the days on which delivery would he made.
The stipends were divided into several grades, according to
ihe rank of the oflBce and the amount of the stipend, and for
each grade was appointed from two to five days for delivering.
Then on small tickets (ko-gitte) the Storehouse-keepers
wrote the names of those within each grade (one on each
1. It is said that up to Kyoho (1716-1735) this official value was
greater than the market value of rice; but after that it steadily
■declined uutil it even reached 60 % of the market value. 2. On-
shaku-mai. 3. On-kiri-mai.
INTKODUCTION: EICE TRADE.
191
ticket), with the amounts due ; and just before the period
allotted to that grade the tickets were folded, and placed
in a basket, which was so shaken that a suitable proportion
for one day fell out.^ The brokers, who attended this
process, picked up and examined the tickets,^ and those
whose employers were included in this first day's appoint¬
ment sent word to them in something like this form:
" I beg to inform you that, if to-morrow's weather is
good, your rice will be delivered.
month, day.
of the House.
To
Esq., Official."
On the day appointed the broker took delivery. He
might then send the rice by cart or canal-boat to the samurai,
but the usual course was to sell it for the stipendiary. On
a later day the latter (if he was of high rank) sent a retainer to
the broker for the account; the broker's chief clerk (hanto),
however, might instead take it to the samurai. The
account would read as follows :
" Account rendered for spring instalment
received:
Rice received 50 lujo,
which, at 3 to, 5 sho per hyo,
equals 17 koku, 5 to, or, in money,^
20 ryo gold, 7 momme silver.
1. The days of delivery were known as tama-wo-farii-li (days
for which the tickets were shaken). 2. The name given to
this broker, fuda (ticket)-sas/« (touch, pick), seems to have
come from this picking up of the rice-tickets. The stipendiary
was called fada-danim (master of the ticket). 3. This account
shows the mode employed where no part of the stipend was
paid in money.
192
PRIVATE LAW IN OLD JAPAN I
Deduct:
For capital and interest of advances,
3 njo gold, 5 momme, 8 bti silver.
For commission i at 2 hii per 100 hyo,
15 momine^ silver.
Dalance^ 16 ryo, 2 bu gold, 2 momme silver;
the silver equals 216 mon in small money
The above is the account for the spring instalment
received by me. If tnere is any error, please
notify me before the posting of the proclamation
fixing the official price for the summer instalment,
and I will send you a corrected account.
year, month.
o f House,
To
Esq., Official."5
The/itdasrts/ti no doubt had their origin in the dislike
of the upper samurai to lower their dignity so far as to go
personally and take delivery of their stipend-rice. In the
older days, it is related, the simplicity of habits was such
that no one thought it beneath his dignity to go to the
1. Fudasashi (ticket-getting)-ii/o (compeusation). 2. 1 6it=
J ryo =zl5 momme. 3. Sashihiki-daka. 4. The rate ruling at the
time of this original was thus 6,480 mon to the ryo; for a lyo
contained 60 momme, and 1 momme is here made equivalent to 108
mon. 5. There is some difference of opinion as to the rates charged
by the fuda-sashi. One authority states that there were two charges,
the fuda-sashi-mjo or fee for getting deliveiy of the rice, and the
uri-kawa or commission on its sale, the former being reckoned at 1 bu
per 100 hyo of the stipend, and the latter at 2 bu per 100 hyo sold.
As both operations were not necessarily undertaken by the fuda-sashi,
it is probable that this distincthm prevailed in the beginning and
might be made at any time. But it seems likely that the term
fuda-sashi-ryo would be loosely applied to both charges, and that, where
both operations were given into the hands of the same person, there
would be some abatement of the rate. This would explain the rate
in the illustration above.
introduction: rice trade.
193
storehouse and sit about in the tea-houses waiting for his
turn; even the greatest vassals sent some chief retainer.
But gradually more luxurious ways came about. Those
whose mansions were in distant wards deputed the receiving
of the rice to the masters of these tea-houses where they
had been accustomed to wait and make out their receipts.
Then the well-to-do restaurateurs began to lend money to
their patrons on the rice due them, and finally were trusted
with the whole business of receiving and selling rice. In
®ome cases the ordinary creditor who had loaned to the
vassal was allowed to go and take delivery of the rice and
pay himself from the proceeds. In these ways the
fudasashi houses came into existence, and acted regularly as
the go-betweens and the capitalists of the vassals. Their
familiarity with the details of the delivery, and their position
as creditors, made them the masters of the situation, and
put the nobles, always running ahead of their income and
always in need of money, entirely in their power. There
were constant attempts by the Government to relieve the
samurai; for instance, at one time a law was passed allowing
them to repay their arrears without interest in instalments
covering 20 years. The number of fudasashi varied from
96 to 109 at different periods. Their guild seems to have
been formed in 1724, when the celebrated Oka was Town
Magistrate of Yedo. It was divided into 3 kumi,—those of
Tenno ward, of Upper ward, and of Morita ward; and each
kumi-wsLS divided into66aw(watches), of nearly 6 houses each.
There were monthly directors (tsuki gyoji), alternating in
their office, with sundry lower officers. The shares were
assignable as in other guilds. By the custom of the guild
no member could accept the business of a samurai who had
broken his connection with another member unless the
consent of the latter was obtained, and all arrears due him
from the samurai we^je repaid.^
1. The term fudasashi, it should be added, is sometimes used
interchangeably with kura-yado or kura-maye-yado (hosts or houses
Vol. XX. Sup. Pt.
194
PRIVATE LAW IN OLD JAPAN I
But the fudasashi were only on the outskirts of the
rice-trade proper. They seem to have been peculiar to
Yedo and a few smaller towns where numbers of samurai
were constantly to he found in attendance on their lords.
The rice delivered from the Tokugawa storehouses in Yedo
was by no means the largest part of the rice that reached
Yedo for sale. There were, besides, the large stores of rice
put upon the market by the great lords for whose dominions
Yedo was the natural market, as well as the importations of
surplus rice from the people of the interior by the wholesale
houses. The different amounts, for instance, sold in Yedo
about 1860 were as follows :
Kice from the West^ 99,000 hyo
Kice from the Kwanto^ and the
North 1,046,000 „
Rice sold by the daimyo of Sendai,
Nambu, and others^ 632,000 ,,
Rice sold from the Government store¬
house in Yedo 490,000 ,,
Total 2,167,000 „
in front of the storehouse). But kura-yado or kiira-yado-shi seems
properly to have applied, in later times at least, to a number of samu¬
rai, either inkyo (retired) or yakkai (dependents, that is, younger
brothers, uncles, etc.), who followed privately the same occupation
in the same place, and were sometimes sought instead of the/uda-
sashi commoners.
1. Known as kudari-mai, " down-rice," because it came from the
provinces of the Kwansei (west of the Hakone kwan or pass), not the
Kwanto, or Tokugawa dominions, east of the Hakone pass ; see ante,
p. 26. This was of course the smallest portion. 2. The eight
provinces east of the Hakone pass. Of course this rice came
from the farmers themselves. 3. In the northern districts which
looked to Yedo as the market.
introduction: rice trade.
195
The Goverument rice was thus at tlie above period
less than a quarter of the whole.^ The distribution of the rest
was effected by the ordinary brokers {nakuijai) who bought
from the wholesale importers and the dnimyo and sold
to the lesser dealers. Before describing the operations of
the rice-exchange it will be necessary to note these different
classes into which the rice-dealers were divided.
There were 3 chief guilds, which seem to have taken
definite and permanent shape in the same period (Kyoho,
1716-1736) that saw the general regulation of trades under
the great Shogun Yoshimune and his capable assistant
Oka, the Town Magistrate. These were the guilds of
the Western-rice^ wholesalers, the Kwanto^ rice
wholesalers, and the brokers. They all originally plied
their trade in the Ise ward, near the banks of the
river, where the rice-vessels were moored. The quarter is
still known as the koku-cho (grain wards) or kome-r/ashi
(rice-banks). The Western-rice wholesalers were com¬
paratively few,—some half dozen in all. The Kwanto
dealers were known as the " Three Companies of
Kwanto-grain Wholesalers." They numbered 20 or
more, and were divided into 3 kitmi, one for each
of 3 wards. The brokers (known as the " Rice-brokers
of the Eight Wards of the River-banks ") were found in 8
wards^ near the river. They bought from the storehouse-
keepers of the daimyo and from the wholesale importers,
and distributed to the large non-importing houses. Their
operations on the rice-exchange equalized the prices and
determined the market quotations for Yedo rice. After
these three classes, who enjoyed the greatest consideration
and were known as kome-gashi (men of the rice-banks),
came two classes intervening between the ordinary retailers
and the brokers and large wholesalers. The first was that of
•
1. In Osaka this item would not be worth considering. 2. For
these two terms, seet he preceding Notes.
196
PRIVATE LAW IN OLD JAPAN 1
the " Local Grain Wholesalers " {ji-mawaii^ beikoku toiija).
These indeed imported directly to some extent the rice of
the regions neighboring about Yedo, which came by river
boats ; but they sold at retail as well as at wholesale. The
number was upwards of 300 houses, divided into 11 kumi.
The original 60 odd kumi had heen in later times consoli¬
dated into these 11, but the original numbers of the kumi
absorbing the others were retained, so that the numbers
remaining were tbe 1st, 8rd, 18th, 22nd, 26th, 29th, 40th,
44th, 47th, 48th, and 56th, Tbe second class was that of
the " Eight Companies of the Lesser Kice-dealers " [iraki-
mise^ hakkasho komeya). Their number was 250 odd, and
in later times tbe companies were 11, not 8. They ob¬
tained some of their rice from tbe local grain wholesalers
and some from the brokers, and, with the former class,
they served as tbe immediate suppliers of tbe petty rice-
shops. One of tbe richest of their companies dealt directly,
it seems, with the daimyos' storehouse-keepers.
These greater branches of the trade were sometimes
known as the " Five Guilds," for the importing and whole¬
sale buying stopped with them, and the further distribution
was in the hands of the petty rice-shops. These were
of two sorts. The ordinary retailer (ko-nri-komeya) bought
their rice, still uucleaned, of one of the above houses,
and cleaned it by pounding in mortars. Hence their name
of "pounding-rice-dealers" (tsuki-komeya). These num¬
bered perhaps 2,000. There was also a " highway rice-
pounder " (daido-tsuki), who sent his men daily about to
large houses, to pound the rice for tha household. They
1. Mawari means " brought around," in allusion to the usual
voyage around the coast to Yedo; the tax-rice thus brought was
known as " on-mmoari-mai." Here the ji may mean that it was
brought by land, that is, on rivers, not on the sea. The idea involved
is expressed by our word " local." 2. Side or lesser shop, in distinc¬
tion from the komegashi.
INTRODUCTION I RICE TRADE.
197
placed their mortars on the streets aud prepared the rice
then aud there. They are reckoned among the dealers,
but seem rather to have been workmen.
To go back now to the brokers and the operations
of rice-speculation. Some years ago (1880-81) when the
inflation of prices caused by the issuing of paper currency
was culminating, the press and the townspeople found
fault with the Rice Exchange then recently established
by the Government, attributing to its pernicious influence
the extraordinary rise in the price of rice; and some were
found who extolled the old days when there was no Rice
Exchange to injure the people by keeping up prices. The
incident illustrates how little is known by the Japanese
of the present generation regarding the conditions of life
under the old regime, and how little credit the Tokugawa
age usually gets, even among the people of this country,
for the measure of national development which it witnessed.
The truth is that more than 150 years ago a rice exchange
was oflScially sanctioned in Osaka, and that for many
decades before, in all probability, the rice-dealers had
privately equalized prices by a system similar in principle.
There was never in Yedo for any long period a regular
exchange authorized by the Government, but various
substitutes existed, and from time to time regular exchanges
had had a brief existence. In 1725 the rice-exchange at
Bojima in Osaka was sanctioned. Four years later permission
was given to five kumi or sets of houses to establish an
exchange in Yedo, and soon the first Yedo rice-exchange
{hei.iho-kicmslto, rice-traffic assembly-office, kome-soba, rice-
market,) had 10 seats (cu), one for each kumi. The members
were authorized to buy and sell rice for future delivery.
Traffic in rice bills is mentioned, and it seems that a part
of the business consisted in buying and selling bills drawn
against rice-cargoes. But the exchange had a short life.
At this time the price of rice was falling far too low to
suit either the farmers or the feudal lords. Within 10
198
PRIVATE LAW IN OLD JAPAN :
years the price had fallen from 6 to per ryo to 2 koku per
ryo and the exchange at Yedo had been permitted only
with a view to raising the price. It failed to accomplish
this, and in 1731 was abolished. It is not quite clear
what reasons the Government had for not sanctioning a
general exchange in Yedo as they did in Osaka; possibly
they wished to Lave no influence which could rival
that of their storehouses. At any rate their fixed policy
was, for the remainder of the Tokugawa regime, to
allow no general rice-excliange. Under various names,
however, the buying and selling of rice for future delivery
was carried on in one way or another on a small scale.
The several establishments authorized by the Government
were:
(1). In 1785 a " selling-place for Osaka bills representing
actual rice^ this was nominally a brokerage house
for the Osaka exchange, but in reality it was an
exchange, or kome-soba (rice-market), as the name then
went. It lasted only one year.
(2). In 1818 the chief of the hishiyaki shipping guild
established a rice exchange [kome-tate-kwaisho), in the
Ise ward, where rice was sold to be delivered in 80
or 60 days. This came to an end in 1819 through
the chief's misconduct.
(8). In the meantime rice exchanges were being estab¬
lished by the Three Families, 3 the daimyo of Owari,
Kii, and Mito, in the compounds of their respective
rice-storehouses in Yedo. That^of Mito lasted from
1815 to 1880; that of Owari from 1828 to about
1842 ; that of Kii from 1827 to the same period.
1. The rice used to be quoted at so many koku or to per ryo,
„ Sho-mai. 3. Go-san-ke, the three families of the Tokugawa
line from whom the Shogun was chosen in case of failure of direct
heirs.
INTRODUCTION ; RICE TRADE,
199
The name used was "place for the disposition of
tax-rice to he sold",i but the business was that of
an exchange.
(4), In 1830 one Yamatoya established in the Shoami
ward a "place for selling and buying the
tax-rice of feudal lords." ^ This prospered
greatly, and the name of " three exchanges (san-
gwaiaho)" or " three places" (sambasho) was given
to the exchanges of Kii, Owari, and Yamato. The
rules of ail three were modelled after those of the
Osaka exchange at Dojima.
(5). In 1812 the daimyo of Sendai had established a system
of selling rice-hills (kome-kitte) at an oflBce in his
storehouse-compound, called the " selling place for
imported-rice bills," this plan being in imitation of
the bills issued by the daimyo of Higo, Chikuzen,
Aki, and Kaga at their storehouses in Osaka.
But all these came to an end with the abolition of
guilds in 1842, and no public authorization was again
given during the Tokugawa regime.
The methods of the Yedo exchange were, as has been
said, the same as those of Osaka. The unit ^ or lot for selling
and buying was 100 koku. For every lot of 100 koku tho
buyer must deposit 10 ryo with the exchange. Settlements
were made and balances adjusted every 3 months ; and on
these occasions a fee of 25 momme was paid to the accountant
{motojime). These shares were reckoned in standard
rice (tatemono-mai),—that is, the rice of the province
where the exchange was. Bice from other provinces was
appraised at a certain percentage (higher or lower) with
reference to this ; and if at a settlement the payment was
made by handing over actual rice, the equivalent amount
1. Harai-mai aabaki tokoro.
3. Hito-kiichi, one item.
2. Sho-ke slmnomai hikiuke tokoro.
200
PRIVATE LAW IN OLD JAPAN :
of outside rice might be given instead ef the standard rice.
The sessions were held daily, and opened at 10
o'clock a.m. There were four rooms,—the tomari, where
the brokers waited before the exchange opened; the choba
(registry-room), where the cho-tsuke (registrar) sat; the uchi-
keiki (private-transactions), where the seirakata (manager)
was; and the homba (main room), where the accountant
presided. At the hour appointed the cherry blocks
{hyoshi(ji) were clapped, on the order of the manager,
in the registry-room, and then the brokers came in on
the floor (duma, earthen floor) of the main room and
began their bidding.^ The description of this occasion by
a Japanese antiquarian (who has never stepped inside the
Tokyo Exchange of to-day, and has gained his knowledge
entirely from the records and documents of past genera¬
tions) brings before us a scene of clamorous activity
the very counterpart of what may he observed daily
at the sessions of modern exchanges. The transactions
were noted by the registrar in his book; and after
a short time this first selling ceased. The same
scene was repeated several times during the day until 4
in the afteruoou. At this hour the cherry-clappers were
again beaten, by order of the manager, and merchants
was set burning in the registry-room. The bidding might
be continued while the match lasted, and the prices
given during this interval were known as " rope-match
prices " (Jtinawa-soba). The match out, the clappers were
beaten, and the brokers withdrew to the waiting-room.
Those who wished might now make further private
bargains, recording them in the privafe-transaction room
with the manager ; but these were reckoned as a part of
the regular sales of the next day. There were, of course,
several variations in the form of the transactions. The koba.
1. This was known as yose-tsiike (assembling and deter,
mining).
INTRODUCTION : RICE TRADE.
201
for iustance, was a sale made in the ante-room, the transaction
to be registered and the balance settled within three days,
and no margin to be deposited. But these must be left
to the historian of Japanese commerce. What remains is to
notice one or two of the more common terms applied to the
operations of speculation, with their application in the rice-
trade.
One of these terms was totan-sho or " earth-and-charcoal
traffic". The forecast of the weather was obviously a
matter of the highest consequence to the brokers. In
Japan the farmer has perhaps gene as far as in any country
in 1 educing to rules the results of long observation of the
weather. The greater part of the rice crop, for instance,
reaches in September a stage which puts it beyond danger
from any but extraordinary tempests ; yet in the same month
rains and typhoons are to be expected. Accordingly
experience has settled on the 210th and 220th days
of the year (old calendar) as crucial stages in the
development of the crop, the 220th da)' being the outside
limit of danger. Thus at this season the forecast of even
a single day's weather is of consequence to the rice
speculator. The direction of the wind, too, was an
important factor in determining the time of the arrival of
the rice-cargoes. The speculators of the old days did not
fail to utilize such empiric knowledge as they possessed.
Every day, morning and evening, they made observatories
of their houses, and, mounting to the clothes-drying plat¬
form so common to town-houses, they surveyed the sky
for weather indications. The Exchange kept a " sky-book,"
in which nothing was written but the daily changes of
weather. One of the chief expedients consisted in hanging
balanced quantities of earth {to) and charcoal [tan] in small
nets from opposite ends of a bamboo pole working on a
fulcrum. They knew that on the approach of stormy weather
earth becomes damp and heavy, while on a dry and clear
day it yields its moisture abundantly. Accordingly about the
202
PRIVATE LAW IN OLD JAPAN I
winter solstice the pole was hung and the balance adjusted ;
and thereafter the advent of a weather-change in either
direction was announced by a disturbance of equilibrium
in the home-made barometer. Thus it was that the epithet
totan-sho came to be applied to the traflSc at the rice-
exchange.
Another term often applied was nohe-un, " sales with
delay,"—the idea being the same as that expressed in
our " futures." The rice was sold for delivery at the
and of 30 or 60 days or some longer period.
A term frequently met with and related to the more
complicated trausactions is ku (empty, wanting)-mai,
in opposition to s/io-(real, actual)-)«ai,—that is, rice sold in
name, without any intention to deliver. On the Exchange the
term cho-ai-sho (sales made to fit the register) was sometimes
employed, because the law forbad such sales, and they had to
be entered on the register as if they were bona fide sales of
rice to be actually delivered. The speculators of those days
appreciated as well as do our modern ones the pleasures
to be derived from wagers on future prices, and they
delivered or received the sum staked according as the
market turned. But the storehouse-keepers of the daimyo
were even more inveterate offenders, and were often found
issuing ku-wai kitte, or bills for rice which did not
exist. Of these and other transactions due explanation
will be attempted wherever they are alluded to in the
ensuing Parts.
Enough has how been said, it is hoped, to make
clear the chief features of the manners and customs
most frequently touched on in the following pages, and to
set the scene for the place and epoch in which were
displayed the events and institutions recorded in
this collection of legal precedents. The interest of these
INTBODUOTION.
20»
topics is such that it is eminently unsatisfactory to treat
them merely as appurtenant to a study of the legal ideas
of the time. They deserve independent attention from an
economic and historical standpoint. Even as a help to
the study of private law, what has here been set forth of
commercial methods and their history is no more than
sufiices to make clear the use of terms and phrases. The
larger aspects of legal development and methods can never
be thoroughly understood until the stages of commercial
progress and the history of social and political institutions
generally have been investigated for their own sake. In the
light of such knowledge we may some day expect to gaiu a
clearer comprehension of the legal principles worked out by
the people of Japan in that attractive period of insulated
development which we know as the Tokugawa era.
APPENDIX I.
CALENDAR. i
The years were reckoned chiefly by two systems, both
of which were sometimes used together to denote a given
year. The first was that of nengo or year-periods. The
fixing of the calendar from time to time, together with the
appointing of "year-names" has ever been looked on
in the Far-East as among the inviolable privileges and
signs of independent sovereignty, much as coining money
is in the West. China has its own year-names, which
it proudly imposes on such vassal estates as Korea and
Thibet. Japan has other year-names. The names are
chosen arbitrarily. In China each year-name coincides
with the reign of an emperor. This has not hitherto
been the case in Japan, though an official announcement
has now been made to the effect that reigus and year-names
shall so coincide in future. Either way, the confusion
introduced into the study of history may he easily imagined.
Hardly any Japanese knows all the year-names even of his
own country. The most salient ones are, it is true,
employed in conversation, much in the same way as we
speak of the sixteenth century or the Georgian era.
Such are Engi (A.D. 901-923), celebrated for the legisla-
1. The ensuing e^lanation is reproduced, with a few additions
and alterations, from Mr. Chamberlain's handy summary in
" Things Japanese," s. v. " Time." For further details, see Mr,
Bramsen's " Japanese Chronological Tables."
ii
PRIVATE LAW IN OLD JAPAN :
tion then undertaken; Genroku (1688-1704) a period
of great activity in various arts; Kyoho (1716-1736),
an era of administrative reform, stimulated by the
great Shogun Yoshimune and his Magistrate Oka,
Lord of Echizen; Tempo (1880-1844), the most bril¬
liant time of the present century. But no one could
say oflf-hand how many years it is from one of these
periods to another. The nengo from 1651 to 1868, with
the Western date for the first day of each year, are given
with the list of Magistrates in Appendix III.
The second method was that of the zodiac. Years
were accounted as belonging to one of the signs of the
zodiac (Jap. ju-ni-shi), whose order is as follows :—
1. Ne, the Eat. 7. Uina, the Horse.
2. Ushi, the Bull. 8. Hitsuji, the Goat.
3. Tora, the Tiger. 9. Saru, the Ape.
4. TJ, the Hare. 10. Tori, the Cock.
5. Tatsu, tbe Dragon. 11. Inu, the Dog.
6. Mi, the Serpent. 12, 1, the Boar.
The Japanese have also borrowed from Chinese
astrology what are termed the jik-kan, or " ten celestial
stems"—a series obtained by dividing each of the five
elements into two parts, termed respectively the elder and
the younger brother ( e and to). The following series is
thus obtained:—
1. Ki no E Wood—Elder Brother.
2. Ei 710 To Wood—Younger Brother.
8. Hi no E Fire—Elder Brother.
4. Hi no To, Fire—Younger brother.
5. Tsicchi no E Earth—Elder Brother.
6. Tsuchi no To Earth—Younger Brother.
7. Ka no E Metal—Elder Brother.
8. Ka no To Metal—Younger Brother.
9. Mizii no E Water—Elder Brother.
10. Mizu no To Water—Younger Brother.
APPENDIX I.
iii
The two series—celestial stems and signs of the
zodiac—heing allowed to run on together, their combina¬
tion produces the cycle of 60 years, as 60 is
the first number divisible both by ten and by twelve.
The first year of the cycle is M no e ne, " Wood Elder
Brother, Eatthe second is M no to tishi, " Wood Younger
Brother, Bulland so on, until the sixtieth, Mizu no To
I, " Water Younger Brother, Boar," is reached, and the
second cycle begins again. But in law cases the usual
reference is to " the last year of the Eat," etc., the
celestial stems not being employed. Thus ambiguity now
and then occurs. Ordinarily the nenf/o and zodiac designa¬
tions are combined; thus, Bunsei, XII, Ox.
The months were real moons, not artificial periods
of 80 or 81 days, and succeeded each olher in regular
alternation of 29 aud 30 days. They were numbered one,
two, three, four, and so on, and the days in each mouth
were numbered successively in the same way. Only in
poetry did they bear proper names, such as are January,
February, and others in European languages. The year
cousisted of twelve such months, with an intercalary one of
29 days whenever the New Year would otherwise have fallen
a whole moon too early. This was about ouce in 8 years.
The Japanese New Year took place late in our January
or in the first half of February ; and that, irrespective
of the state of the temperature, was universally regarded
as the beginning of spring. Old Japan had no minutes;
her hours were worth two Western hours, and they were
counted thus, crab-fashion;—
9 o'clock (kokonotstc-doki) our 12 o'clock,
8 o'clock iyatsu-doki) " 2 "
7 o'clock [nanatsu-doki) " 4 "
6 o'clock {jnutsu-doki) " 6 "
5 o'clock [itsutsu-doki) " 8 "
4 o'clock [yotsu-doki) " 10 "
ii
PRIVATE LAW IN OLD JAPAN :
tion then undertaken; Genroku (1688-1704) a period
of great activity in various arts; Kyoho (1716-1736),
an era of administrative reform, stimulated by the
great Shogun Yoshimune and his Magistrate Oka,
Lord of Echizen; Tempo (1880-1844), the most bril¬
liant time of the present century. But no one could
say off-hand how many years it is from one of these
periods to another. The nengo from 1651 to 1868, with
the Western date for the first day of each year, are given
with the list of Magistrates in Appendix III.
The second method was that of the zodiac. Years
were accounted as belonging to one of the signs of the
zodiac (Jap. ju-ni-shi), whose order is as follows :—
1. Ne, the Kat. 7. TJma, the Horse.
2. Ushi, the Bull. 8. Hitsvji, the Goat.
3. Tora, the Tiger. 9. Saru, the Ape.
4. L', the Hare. 10. Tori, the Cock.
5. I'atsu, tbe Dragon. 11. Inu, the Dog.
6. Mi, the Serpent. 12, 1, the Boar.
The Japanese have also borrowed from Chinese
astrology what are termed the jik-kan, or " ten celestial
stems"—a series obtained by dividing each of the five
elements into two parts, termed respectively the elder and
the younger brother ( e and to). The following series is
thus obtained:—
1. Ki no E Wood—Elder Brother.
2. Ki no To Wood—Younger Brother.
8. Hi no E Fire—Elder Brother.
4. Hi no To, Fire—Younger l^rother.
5. Tsuchi no E Earth—Elder Brother.
6. Tsuchi no To Earth—Younger Brother.
7. Ra no E Metal—Elder Brother.
8. Ka no To Metal—Younger Brother.
9. Mizu no E Water—Elder Brother.
10. Mizu no To Water—Younger Brother.
APPENDIX I.
iii
The two series—celestial stems and signs of the
zodiac—being allowed to run on together, their combina¬
tion produces the cycle of 60 years, as 60 is
the first number divisible both by ten and by twelve.
The first year of the cycle is Id no e ne, " Wood Elder
Brother, Rat;" the second is fd no to tishi, " Wood Younger
Brother, Bulland so on, until the sixtieth, Mizu no To
I, " Water Younger Brother, Boar," is reached, and the
second cycle begins again. But in law cases the usual
reference is to " the last year of the Rat," etc., the
celestial stems not being employed. Thus ambiguity now
and then occurs. Ordinarily the nenr/o and zodiac designa¬
tions are combined; thus, Bunsei, XII, Ox.
The months were real moons, not artificial periods
of 30 or 81 days, and succeeded each olher in regular
alternation of 29 aud 80 days. They were numbered one,
two, three, four, and so on, and the days in each mouth
were numbered successively in the same way. Only in
poetry did they bear proper names, such as are January,
February, and others in European languages. The year
cousisted of twelve such months, with an intercalary one of
29 days whenever the New Year would otherwise have fallen
a whole moon too early. This was about ouce in 8 years.
The Japanese New Year took place late in our January
or in the first half of February ; and that, irrespective
of the state of the temperature, was universally regarded
as the beginning of spring. Old Japan had no minutes;
her hours were worth two Western hours, and they were
counted thus, crab-fashion:—
9 o'clock [kolionotsu-doki) our 12 o'clock,
8 o'clock [yatsu-doki) " 2 "
7 o'clock [nanatsu-doki) " 4 "
6 o'clock (inutsu-doki) " 6 "
5 o'clock [itsutsu-doki) " 8 "
4 o'clock (yotsu-doki) " 10 "
iv
PRIVATE LAW IN OLD JAPAN :
Half-past-nine (kokonotsu han) was equivalent to our
one o'clock, and similarly in the case of all the other
intermediate hours, down to half-past-four, which was
equivalent to our eleven o'clock. But the hours were never
all of exactly the same length, except at the equinoxes.
In summer those of the night were shorter, in winter
those of the day. This was because no method of obtain¬
ing an average was used, sunrise and sunset being always
called six o'clock throughout the year. In the present work
the hours have all been rendered in their Western
equivalents.
APPENDIX II.
WEIGHTS AND MEASURES.i
1. Measures of length. Its unit is the foot, Shaku
or Kane-shaku—.30 meter. 1 Jo—10 Shaku=100 Sun
(mches)=l,000 Hu=10,000 2ifn=100,000 Mo. 6 Shaku
=1 Ken—1.62 meter=l fathom (ahout), (1 meter=3'3"
Jap.)
2. Measures of distance. The unit is the Japanese
mile or 1 Ri—3,927.27 meters, (1 geogr. mile=1.886 Rij
28.29 Ri—1 degree; 1 2.44 English miles). The
Chinese mile or Li contains only 447.19 meters=.06 geogr,
miles. Accordingly 1 Ri=8,762 Li.
1 Ri—30 c/to=2,160 7fcH=12,960 Shaku,
1 " z= 60 " = 360 " .
1 " = 6 " .
1 S/iaA:u=11.9 English inches.
3. Cloth measure. The units Shaku or Kvjira-shaku,
i.e., fish-bone foot=l J Kane-shaku=.379 meters; accord¬
ingly 1 meter=2.74 Kujira-shaku. The smaller denomina¬
tions are the same as in the common measure of length.
One Tan or piece is 26 or more Shaku long. One
Hiki=2 tan of silk stuff or 52-{-Shaku.
1. These tables are adapted from Dr. Bein's presentation (Japan,
vol. II, p. 607-8), witl^a few additions from Mr. Bramsen's " Japan¬
ese Weights." They give of course the standards in use in Old
Japan.
Tol. XX. Snp. Ft. i.—14.
vi
private law in old japan :
4. Field measure. The unit is called Tsuho and is
equal to 3.806 square meters.
1 Cho=10 Tan=lW Se=8,000 Tsu&o=110,800 sq. Shaku.
1 " = 10 "=== 800 " = 10,800 " •• .
1 »= 80 " 1,080 " " .
1 " = 86 " " .
1 CAo==9,917.855 sq. m.=l Hectare, nearly acres.
1 Tan—nearly J acre.
1 Tatami or Japanese foot-mat=8 X 6 ShakH=i Tsuho.
5. Measures of Capacity. For the unit is taken the
jSAo=1.804 liters.
1 Koku=10 To=100 S/io=l,000 ,Go=10,000 Shaku.
1 " = 10 " = 100 " = 1,000 " .
1 " = 10 " = 100 " .
1 " = 10 " .
Hence 5 Sho=9 liters.
The Kolcu (which is mostly used in measuring grain,
while She and Go are used for liquids),=180 bl.=5
bushels, reckoning the bushel at 86 liters. The Sho was
introduced in the year 1628. Its inner dimensions are
4"9"'X4"9"'X2"7"' Japanese measure.
6. Weight. The unit of weight is called Momme
{Monme), i.e. the Jfon-weight, so designated because the
smallest iron coin, Mon, used to be taken as the basis
of weight. One Monme (pronounced Momme)=S.156
grammes; hence 1 gr.=.265 momme. The Japanese system
of weights based hereon is as follows:—
i
Hyaktt-me
«D
g
4
Mon-me
B1
8
1
•
s
1=
10=
1=
II II
8 S
1,000=
100=
10,000=
1,000=
100,000=
10,000=
1,000,000.
100,000.
1= 10= 100= 1,000= 10,000.
1= 10= 100= 1,000.
1= 10= 100.
1= 10.
APPENDIX II.
vii
Kin—\ Kicamme = 3.757 kg.= 8J lbs. avdp.
nearly.
1 7u>i=160 Mo??ime=601.044 gr.—If lbs. avtlp.
nearly; so that 5 Japanese pounds are to be taken to equal
-6 German pounds.
APPENDIX III.
LIST OF MAGISTRATES, 1651-1868.
No complete list exists of the Tokugawa judges. It
remains to be made from the mass of records, year-books,
etc., on public affairs. Professor Komiyama bus published
partial lists of the Town Magistrates of Yedo and of others
and be has kindly made up for this work some deficiencies
in the lists published in the antiquarian magazines. But
the record for the last years of the Finance aud Temple
Magistracies is, unfortunately, still lacking. There are
moreover a few discrepancies here and there,—a Magistrate
resigning who is not recorded as appointed, or appointed
and never resigning. The abbreviation A2}p. stands for
the appointment, and Res. for the resignation. The latter
word has for convenience' sake been invariably used;
almost all vacating of ofSce would in form at least have
been a resignation, except death, and it was not deemed
worth while to note particularly the mode in which the
office was vacated. It would have been desirable to
indicate to the eye more clearly the length of time
each Magistrate was in office; but this could only be
accomplished at too great a sacrifice of space. The
titles, it should always be remembered, are purely
honorary; they are explained in the early part of this
volume.
The Western date given for each year is that of
the first day of the Japanese year.
appendix iii.
ix
Period.'
Year.
Temple
Magistratee.
Town
Magistrates.
Finance
Magistrates.
Ktowa.
IV.
1651,
Feb. 20.
Matsudaira,
Lord of Idzumi.
Ando,
Governor of
Kyoto.
Kamiwo,
Lord of Buzen.
Ishiya,
Under-Minister
of the Interior.
Sone Genyemon.
Murakoshi,
Lord of Nagato.
I.
1652,
Feb. 10.
Jowo.'
II.
1653,
Jan. 29.
III.
1654,
Feb. 17.
I.
1655,
Feb. 7.
t
s
f
II.
1656,
Jan. 27.
III.
1657,
Feb. 13.
«
M
X
I.
1658,
Feb. 3.
App. Inouye,
Lord of
Eawachi.
App. Itahura,
Lord of Awa.
Ees. Ando,
Governor of
Kyoto.
Res. Ishiya,
Under-Minister
of the Interior.
App. Murakoshi.
Lord of Nagato.
II.
1659,
Feb. 22.
Matsudaira,
Lord of Idzumi.
Res. Murakoshi,
Lord of Nagato.
X
APPENDIX ni.
^ Period^.
1
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
III.
1660,
Feb. 11.
App. Okada,
Lord of Buzen.
App. Itami,
Lord of
Harima.
I.
1661,
Jan. 31.
App. Kogatsume,
Lord of Kai.
Res. Itakura,
Lord of Awa.
Res. Katniwo,
Lord of Buzen.
App. Watanabe,
Lord of Osumi.
Res. Sone Gen-
yenion.
II.
1662,
Feb. 19.
Res. Itami,
Lord of
Harima.
m.
1663,
Feb. 8.
^5
&
«
IV.
1664,
Jan. 28.
w
V.
1665.
Feb. 15.
VI.
1666,
Feb. 4.
App. Ogasawara,
Lord of Yama-
shiro.
Res. MurakosLi,
Lord of Nagato.
App. Shimada,
Lord of Idzumo.
App. Matsunra
lyemon.
VII.
1667,
Jan. 24.
Res. Inouye,
Lord of Kawa-
chi.
•
VIII.
1668,
Feb. 12.
App. Sugiura,
Chief of Im¬
perial Atten¬
dants.
APPENDIX in. zi
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
IX.
1669,
Feb. 1.
X.
1670,
Feb. 20.
Res. Eogatsume,
Lord of Kai.
Res. Okada,
Lord of Buzen.
App. Tokuyama
Gobei.
p
a
H
<
XI.
1671,
Feb. 10.
App. Honda,
Lord of Yama-
shiro.
App. Toda,
Lord of Iga.
XII.
1672.
Jan. 30.
Res. Sugiura,
Chief of Im¬
perial Attend¬
ants.
1.
1673,
Feb. 17.
App. Miyazaki,
Lord of Wa-
kasa.
App. Kaikiye-
mon.
II.
1671,
Feb. 6.
Res. Matsuura
lyemon.
d
CK
H
III.
1675,
Jan. 26.
App. Okabe,
Lord of Suruga.
PH
IV.
1676,
Feb. 14.
Res. Toda,
Lord of Iga.
Res. Honda,
Lord of Yama-
shiro.
App. Oda,
Lord of Settsu.
V.
1677,
Feb. 2.
App. It^ura,
Steward of Im¬
perial Supplies.
xii
APPENDIX III.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
VI.
1678,
Feb. 21.
Res. Ogasawara,
Lurd of Yama-
shiro.
Res. Oda,
Lord of Settsu.
App. Matsudaira,
Lord of Yania-
shiro.
Yempo.
VII.
1679,
Feb. 11.
Res. Kaikiyemou.
VIII.
1680,
Feb. 1.
Res. Itakura,
Steward of
Imperial
Supplies.
App. Abe,
Lord of Bugo.
Res. Matsudaira,
Captain of the
Imperial Body-
Guard.
Res. Miyazaki,
Lordof Wakasa.
App. Kainocho,
Lord of Hida.
App. Oka,
Lord of Bizen.
App. Hikosaka.
Lord of Hokii
App. Takagi,
Lord of Ise.
-i
fs
en
I.
1681,
Feb. 19.
Res. Matsudaira,
Lord of Yama-
sbiro.
Res. Abe,
Lord of Bugo.
App. Mizuno,
Warden of the
Palace Gate.
Res. Inabe,
Lord of Tango.
App. Akimoto,
Lord of Tajima.
App. Sakai,
Lord of Ya-
mato.
Res. Shimada,
Lord of Idzu-
mo.
App. Hojo,
Lord of Awa.
Res. Tokuyama
Gohei-
II.
1682,
Feb. 8.
Res. Akimoto,
Lord of Tajima.
App. Sakamoto,
\Varden of the
Palace Gate.
Res. Takagi,
Lord of Ise.
App. Nakayama.
Lurd of Totomi.
m.
1683,
Jan. 28.
Res. Sakai,
Lord of Ya-
mato.
APPENDIX III.
xiii
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
<
X
B
H
H
III.
1683,
Jan. 28.
App. Itakara,
Lord of lyo.
App. Honda,
Lord of Awaji.
I.
1684,
Feb. 16.
Res. Itakura,
Lord of lyo.
Res. Okabe,
Lord of
Suruga.
-
II.
1685,
(Feb. 4.
Res. Midzuno,
Warden of the
Palace Gate.
App. Okubo,
Lord of Oki.
Res. Nakayama.
Lord of Totomi.
Res. Matsudaira.
Captain of Im¬
perial Body-
Guard.
App. Sengoku,
Lord of
Idzumi.
i
M
O
III.
1686,
Jan. 24.
-
IV.
1687,
Feb. 12.
Res. Sakamoto,
Warden of the
Palace Gate.
Res. Honda,
Lord of Awaji.
Res. Okubo,
Lord of Oki.
App. Sakai,
Lord of Kawa-
chi.
App. Yonezawa,
Lord of Dewa.
App. Toda,
Lord of Noto,
Res. Oka,
Lurd of Bizeii.
Res. Hikosaka,
Lord of Hoki.
Res. Sengoku,
Lurd of Idzumi.
App. Sano,
Lord of Nagato;
App. Koauga,
Lord of Totomi.
b
M
O
K
2
H
O
I.
1688,
Feb. 2.
App. Honda,
Lord of Kii.
•
Res. Sano,
Lord of Nagatp.
App. Matsudair%,
Lord of Miuo.
App. Toda,
Lord of
Minp.
xiv
APPENDIX ra.
Period.
Year.
Temple
Magistrates,
Town
Magistrates.
Finance
Magistrates,
p
ut
o
a
X
p
O
II.
1689,
Jan. 21.
Res.
Sakai,
Lord of Kawa-
chi.
App. Kato,
Lord of Echu.
Res. Toda,
Lord of Mino.
App. Inaba,
Lord of Sbimo*
dzuke.
III.
1690,
Feb. 9.
Res. Kato,
Lord of Echu.
App. Ogasawara,
Lord of Sado.
Res. Kainocho.
Lord of Hida.
App. Noze,
Lord of Idzu-
mo.
IV.
1691,
Jan. 29.
App. Matsuura.
Lord of Iki.
V.
1692,
Feb. 17.
Res. Yonezawa,
Lord of Dewa.
VI.
1693,
Feb. 5.
Res. Hojo,
Lord of Awa.
App. Kawagucbi,
Lord of
Settsu.
VII.
1694,
Jan. 25.
Res. Matsuura,
Lord of Iki.
App. Nagai.
Lord of Idzu.
App. Ido,
Lord of Tsu¬
shima.
VIII.
1695,
Feb. 18.
•
IX.
1696,
Feb. 3.
Res, Honda,
Lord of Kii.
App. Inouye,
Lord of Kawa-
chi.
App. Matsudaira,
Lord of
Shima.
App. Hagiwara, -
Lord of Omi.
APPENDIX III. XV
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
6
a
o
a
ss
»
O
X.
1697.
Jan. 23.
App. Matsumaye,
Lord of Idzu.
XI.
1698.
Feb. 11.
Res. Kawaguchi,
Lord of Settsu.
XII.
1699.
Jan. 31.
Res. Toda,
Lord of Note.
Res. Inouye,
Lord of Kawa-
chi.
App. Abe,
Lord of Hida.
App. Aoyama,
Lord of Hari-
ma.
Res. Inaba,
Lord of Shimo-
dzuke.
App. Eugai,
Lord of Inaba.
App. Togawa,
Lord of Bizen.
XIII.
1700,
Feb. 19.
XIV.
1701,
Feb. 8.
App. Aoyama,
Lord of Hari-
ma.
Res. Aoyama.
Lord of Hari-
ma.
XV.
1702,
Jan. 28.
Res. Aoyama,
Lord of Hari-
ma.
App. Honda,
Minister of
Justice.
App. Niwa,
Lord of Toto-
mi.
Res. Ido,
Lord of Tsu¬
shima.
App. Nakayama,
Lord of Idzu-
mo.
XVI.
1703,
Feb. 16.
Pes. Matsumaye,
Lord of Idzu.
App. Hayashi,
Lord of Tosa.
Hoyei. j
I.
1704,
Feb. 5.
Res. Nagai,
Lord of Idzu.
Res. Abe,
Lord of Hida.
App. Miyaki,
Lord of Bizen.
App. Kuz#,
Lord of Ya-
mato.
App. Matsndaira,
Lord of Iki.
xvi
APPENDIX m.
1
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates,
M
H
X
o
II.
1705,
Jan. 25.
Res. Kuze,
Lord of Ya-
mato.
App. Toni,
Lord of Iga.
App. Hori,
Lord of Tango.
Res. Hayashi,
Lord of Tosa.
App. Tsubouchi,
Lord of Noto.
Res. Kugai,
Lord of Inaba.
App. Ishiwo,
Lord of Awa.
m.
1706,
Feb. 3.
IV.
1707,
Feb. a.
V.
1708,
Jan. 23.
Res. Hori,
Lord of Tango.
Res. Togawa,
Lord of Bizen,
Res. Ishiwo,
Lord of Awa.
App. Hiraiwa,
Lord of Wakasa.
App. Okubo,
Lord of Osumi.
VI.
1709,
Feb. 10.
App. Ando,
Governor of
Kyoto.
VII.
1710,
Jan. 30.
Res. Miyaki,
Lord of Bizen.
App. Morikawa,
Lord of Idzu-
mo.
Shotokd. '
I.
1711,
Feb. 17.
Res. Torii,
Lord of Iga.
App. Matsudaira,'
Lord of Saga-
mi.
,
Res. Hagiwara,
Lord of Omi.
App. Midzuno,
Lord of Tsu¬
shima,
II.
1712,
Feb. 7.
APPENDIX III.
xvii
Period.
Year.
Temple
Magistratee.
Town
Magistrates.
Firuince
Magistrates.
III.
1713,
Jan. 26.
Bet. Honda,
Minister of
Justice.
Res. Ando,
Governor of
Kyoto.
App. Doi,
Lord of lyo.
Res. Hiraiwa,
Lord of Waka-
sa.
App. Midzuno,
Lord of Hoki.
Shotoku.
IV.
1714,
Feb. 15.
Res. Morikawa,
Lord of Idzu-
mo.
App. Tatebe,
Minister of
Public Works.
App. Ishikawa,
Lord of Omi.
Res. Niwa,
Lord of Totomi.
App. Nakayama,
Lord of Idzn-
mo.
Res. Nakayama,
Lord of Idzu-
mo.
App. Ise,
Lord of Ise.
V.
1715,
Feb. 4.
Res. Tatebe,
Minister of
Public Works.
App. Inouye,
Lord of
Totomi.
I.
1716,
Jan. 25.
Res. Inouye,
Lord of Totomi.
Res. Okubo,
Lord of Omi.
App. Okubo,
Lord of Shimo-
tsuke.
Kyoho.
II.
1717,
Feb. 11.
Res. Isbikawa,
Lord of Omi.
App. Ando,
Governor of
Kyoto.
Res. Matsudaira,
Lord of Iki.
App. Oka,
Lord of Echi-
zen.
III.
1718,
Jan. 31.
Res. Ando,
Governor of
Kyoto.
App. Makino,
Lord of Inaba.
App. Sakai,
Ministdt of Pa¬
lace Repairs.
xviii
APPENDIX in.
Period.
Year.
Temple
MagUtrates.
Town
Magistrates.
Finance
Magistrates.
IV.
1719,
Feb. 19.
Res. Tsubonchi.
Lord of Noto.
Res. Midzuno,
Lord of Tsu¬
shima.
App. Eomakine,
Lord of Higo.
V.
1720,
Feb. 8.
Res. Ise,
Lord of Ise.
App. Eakehi,
Lord of
Harima.
VI.
1721,
Jan. 28.
VII.
1722,
Feb. 16.
Jtes. Sakai,
Minister of Pa¬
lace Bepairs.
n
o
(-
vm.
1723,
Feb. 5.
Res. Matsudaira,
Lord of Sagami.
App. Kuroda,
Lord of Buzen.
Res. Nakayama,
Lord of Idzu-
mo.
App. Suwa,
Lord of Mino.
Res. Okubo,
- Lord of Sbimo-
tsnke.
App. Hisamatsu.
Lord of Yamato.
App. Inaba,
Lord of Shimo-
tsuke.
IX.
1724,
Jan. 26.
Res. Doi.
Lord of lyo.
Res. Makino,
Lord of Inaba.
App. Honda,
Lord of lyo.
•
X.
1725,
Feb. 13.
Res. Honda,
Lord of lyo.
App. Eoide,
Lord of Idzu-
mo.
App. Ota,
Lord of
Bicbu.
APPENDIX III.
xix
Period. |
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
6
m
1
XI.
1726,
Feb. 2.
XII.
1728,
Feb. 10.
XIII.
1728,
Feb. 10.
Res. Ota,
Lord of Bicbu.
App. Inouye,
Lord of Kawa-
cbi.
App. Toki,
Lord of Tango.
XIV.
1729,
Jan. 29.
Res. Hisamatsn,
Lord of Ya-
mato.
App. Matsunami,
Lord of Cbi-
kugo.
XV.
1730,
Feb. 17.
Res. Toki,
Lord of Tango.
1
XVI.
1781,
Feb. 7.
Res. Suwa,
Lord of Mino.
App. Inaba,
Lord of Shimo-
tsuke.
Res. Inaba,
Lord of Shimo-
tsuke.
App. Sugioka,
Lord of Sado.
App. Hosoda,
Lord of
Tamba.
XVII.
1732,
Jan. 27.
Res. Euroda,
Lord of Buzen.
Res. Koide,
Lord of Idzu-
♦ mo.
App. Nisbiwo,
Lord of Oki.
Res. Eomakine,
Lord of Higo.
App. Matsudaira,
Captain of tbe
Imperial Body-
Guard.,
XX
APPENDIX III.
Period,
Year.
Temple
Magi»trate».
Town
Magistrates,
Finance
Magistrates.
XVII.
1732,
Jan. 27.
App. Matsudaira,
Minister of
Foreign
Affairs.
xvin.
1733,
Feb. 14.
Kyoho.
XIX.
1734.
Feb. 4.
Res. Inouye,
Lord of Eawa-
chi.
Res. Nishiwo,
Lord of Oki.
Res. Matsudaira,
Minister of
Foreign Affarirs.
App. Sengoku,
Lord of Shina-
uo.
App. Hojo,
Lord of Totomi.
Res. Eakehi,
Lord of Hari-
ma.
Res. Matsudaira,
Captain of the
Imperial Body-
Guard.
App. Eanyo,
Lord of Shima.
App. Ishino,
Lord of Cbi-
kugo.
XX.
1735,
Jan. 24.
Res. Sengoku,
Lord of Shina-
no.
Res. Hojo,
Lord of Totomi.
App. Makino,
Lord of Echi-
zen.
App. Matsudaira,
Lord of Eii.
z
D
n
O
I.
1736,
Feb. 12.
App. Oka,
Lord of Echi-
zcn.
Res. Oka,
Lord of Echi-
^ zen.
App, Matsunami,
Lord of Chiku-
go-
Res. Matsunami,
Lord of Chiku-
go.
App. Eawano,
Lord of Buzen.
n.
1737,
Jan. 31.
Res. Hosoda,
Lord of Tamba,
App. Eamiwo,
Lord of Waka-
Sft*
APPENDIX in.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
III.
1738,
Feb. 19.
Res. Inaba,
Lord of Shimo-
tsuke.
App. Ishikawa,
Lord of Tosa.
Res. Sugioka,
Lord of Sado.
App. Midzuno.
Lord of Tsu¬
shima.
App. Sakurai,
Lord of Kawa-
cbi.
Gembcn.
IV.
1789,
Feb. 8.
Res. Matsudaira,
Lord of Kii.
App. Yamano,
Lord of Inaba.
App. Honda,
Lord of Hoki.
Res. Matsunami,
Lord of Cbi-
kugo.
App. Midzuno,
Lord of Bizen.
Res. Sakurai,
Lord of Kawa-
chi.
A.pp. Kinoshita,
Lord of Iga.
V.
1740,
Jan. 29.
Res. Midzuno,
Lord of Bizen.
App. Shima,
Lord of
Nagato.
I.
1741,
Feb. 16.
d
PX
S
-p
M
11.
1742,
Feb. 5.
Res. Maliino,
Lord of Eclii-
zen.
App. Hotta,
Lord of
Sagami.
Res. Kawano,
Lord of Buzen.
111.
1743,
Jan. 26.
App. Hagiwa,
Lord of Hoki.
d
IH
PP
z
>1
1.
1744,
Feb. 14.
Res. Hotta,
Lord of Sagami.
App. Matsudaira,
Under-Mini-
ster of Mie
Interior.
Res. Ishikawa,
Lord of Tosa.
App. Noze,
Lord of Higo.
Res. Midzuno,
Lord of Tsu¬
shima.
App. Hayami,
Lord of Dewa.
Vol. XX. Sup. Pt. i.- L
appendix iii.
1 Period.
Year.
Temple
Mauistrates.
Town
Magistrates.
Finance
Maijistrates.
II.
1745,
Feb. 1.
Res. Hagiwa,
Lord of Hoki.
Yenkto.
III.
1746,
Feb. 20.
Fe<. Honda,
Lord of Hoki.
App. AUimoto,
Lord of Settsu.
App. Koide,
Lord of Shi-
nano.
Res. Shima,
Lord of Nagato
App. Baba,
Lord of Sanuki.
Res. Kinoshita,
Lord of Iga.
App. Matsuura,
Lord of Kawa-
chi.
IV.
1747,
Feb. 10.
Pes. Yamano,
Lord of Inaba.
Res. Akimoto,
Lord of Settsu.
App. Matsudaira,
Steward of
Imperial Sup¬
plies.
App. Inaba,
Lord of Tango.
I.
1748,
Jan. 30.
Res. Koide,
Lord of Shi-
nano.
App. Aoyama,
Lord of Inaba.
■ipp. Sakai,
Lord of Yama-
shiro.
Res. Hayami,
Lord of Idzu-
mo.
App. Magari-
buchi.
Lord of Bungo.
S5
t-
!e
-<
■ta
II.
1749,
Feb. 17.
Res. Sakai,
Lord of Yama-
shiro.
App. Honda,
Chief of
Imperial
Magazines.
•
Res. Kamiwo,
Lord of Waka-
sa.
App. Yendo,
Lord of Ise.
App. Mitsui,
Lord of Kudzu-
sa.
III.
1750,
Feb. 7.
Res. Inaba,
Lord of Tango.
Res. Baba,
Lord of Sanuki.
.ipp. Y'aniada,
Lord of Idzu.
APPENDIX III.
xxiii
Period.
Yeiir.
Temple
Magistrates.
Toien
Magistrates.
Finance
Magistrates.
M
fi
o
a
I.
1751,
Jan. 27.
Res. Oka,
Lord of
Echizen.
App. Matsudaira,
Governor of
Kyoto.
Res. Yendo,
Lord of Ise.
Res. Mitsui,
Lord of
Kadzusa.
II.
1752,
Feb. 15.
Res. Matsudaira,
Governor of
Kyoto.
App. Torii,
Lord of Iga.
App. Nagai,
Lord of Tamba.
App. Isshiki,
Lord of Suwo.
III.
1753,
Feb. 3.
Res. Yamada,
Lord of Idzu.
App. Toda,
Lord of Biizen.
App. Tsucbiya,
Lord of
Echizen.
Res. Matsuura,
Lord of
Kawachi.
Res. Nagai,
Lord of Tamba.
App. Matsudaira,
Minister of
Foreign Affairs.
App. Oi,
Lord of Ise.
VI.
1754,
Jan. 23.
Res. Matsudaira,
Minister of
Foreign Affairs.
App. Ohiishi,
Lord of Omi.
V.
1755,
Feb. 11.
App. Nakayama,
Lord of Totomi.
VI.
1756,
Jan. 31.
Aj'p. Abe,
Lord of lyo.
App. Oi,
Lord of Ise.
-ipp. Hosoda,
Lord of
Tamba.
VII.
1757.
Feb. 18.
lies. Nakayama,
Lord of Totomi.
App. Sugiinuma,
Lord of Sliimo-
tsuke.
xxiv
appendix iii.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
Hobeei.
VIII.
1758,
Feb. 8.
Res. Aoyama,
Lord of Inaba.
Res. Honda,
Chief of Im¬
perial Maga¬
zines.
App. Tocbigi,
Lord of Tosa.
Res. Ghashi,
Lord of Omi.
Res. Suganuma,
Lord of Shimo-
tsuke.
App. Inaba,
Lord of Shimo-
tsuke.
App. Obata,
Lord of Yama-
shiro.
IX.
1759,
Jan. 29.
App. Matsudaira,
Lord of Suwo.
App. Mori,
Lord of Sanukl.
Res. Hosoda,
Lord of Tamba.
App. Ishiya,
Lord of Bigo.
X.
1760,
Feb. 17.
Res. Torii,
Lord of Iga.
Res. Abe,
Lord of lyo.
Res .Matsudaira,
Lord of Suwo.
App. Matsudaira,
Lord of Idzumi.
App. Kobori,
Lord of Tosa.
App. Oda,
Lord of Settsu.
Res. Inaba,
Lord of Shimo-
tsuRe.
App. Tsubouchi,
Lord of Suruga.
XI.
1761,
Feb. 5.
Res. Kobori,
Lord of Tosa.
App. Sakai,
Lord of Hida.
Res. Obata.
Lord of Yama-
shiro.
Res. Tsubouchi,
Lord of Suruga.
App. Ando,
Imperial Official.
App. MaUino,
Lord of Osumi.
XII.
1762,
Jan. 25.
Res. Oda,
Lord of Settsu.
App. Ono,
Lord of Hyuga.
XIII.
1763,
Feb. 13.
App. Doi,
Keeper of
Imperial
Bice-store¬
houses.
APPENDIX III.
XXV
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
M
s
I.
1764,
Feb. 2.
Res. Mori,
Lord of Sanuki.
Res. Matsudaira,
Lord of Idzumi.
App. Matsu¬
daira,
Lord of Iga.
App. Toki,
Lord of Mino.
•
II.
1765,
Feb. 20.
Res. Sakai,
Lord of Hida.
App. Kuze,
Lord of
Idzumo.
Res. Isshiki,
Lord of Suwo.
App. Ina,
Lord of Bizen.
III.
1766,
Feb. 9.
IV.
1767,
Jan. 30.
V.
1768,
Feb. 18.
Res. Tsuchiya,
Lord of
Echizen.
App. Makino,
Lord of Osumi.
Res. Makino,
Lord of Osumi.
App. Matsudaira,
Lord of
Tsushima.
VI.
1769,
Feb. 7.
Res, Doi.
Keeper of
Imperial Eice-
storehouses.
Res. Kuze,
Lord of Idzumo.
App. Makino,
Lord of Echu.
App. Tsuchiya,
Lord of Noto.
Res. Toda,
Lord of Buzen.
App. Magari-
buchi.
Lord of Kai.
Res. Ina,
Lord of Bizen.
VII.
1770,
Jan. 27.
•
xxvi
APPENDIX III.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
M
S
VIII.
1771,
Feb. 15.
Res. Ono.
Lord of Hyuga.
App. Kawai,
Lord of Echi-
zen.
Anyei.
I.
1772,
Feb. 4.
II.
1773,
Jan. 28.
Res. Matsu¬
daira.
Lord of Tsu¬
shima.
App. Oda,
Lord of Harima.
III.
1774,
Feb. 11.
IV.
1775,
Jan. 31.
Res. Matsudaira.
Lord of Iga.
App. Oda.
Lord of Bigo.
Res. Kawai,
Lord of Echi-
zen.
App. Arami,
Lord of Kaga.
V.
1776,
Feb. 19.
Res. Tsuohiya,
Lord of Noto.
App. Toda,
Lord of Inaba.
Res. Arami,
Lord of
App. Kuwabara,
Lord of Noto.
VI.
1777,
Feb. 8.
Res. Maltino,
Lord of Echu.
App. Makino,
Lord of Buzen.
App. Abe,
Lord of Bichu.
•
VII.
1778,
Jan. 28.
Res. Oda.
Lord of Hari¬
ma.
App. Yamamura,
Lord of Shi-
nano.
APPENDIX III.
xxvii
Period.
Year.
Temple
Magistrateg.
Town
Magistrates.
Finanee
Magitsra tes.
Anyei.
VIII.
1779,
Feb. 16.
Res. Ishiya,
Lord of Bugo,
App. Matsu-
moto,
Lord of Idzu.
IX.
1780,
Feb. 5.
Temmei.
I.
1781,
Jan. 24.
Res. Toki,
Lord of Mino.
Res. Oda,
Lord of Bigo.
App. Inouye,
Lord of Ivawa-
chi,
App. Ando,
Lord of Tsu¬
shima.
II.
1782,
Feb. 12.
Res. Toda,
Lord of Inaba.
Res. Ando,
Imperial Offi¬
cial.
App. Akai,
Lord of Ecbi-
zen.
III.
1753,
Feb. 2.
Res. IMakino,
Lord of Buzen.
App. Hotta,
Lord of Sagami.
IV.
1784,
Jan, 22.
Res. Ando,
Lord of Tsu¬
shima.
App. Matsudaira,
Ciovernor of
Kyoto.
App. Matsudaira,
Lord of Hoki.
Res. Jfakino,
Lord of Osumi.
App. Yaraamura,
Lord of Shiiia-
no.
Res. Tamamura,
Lord of Shima-
no.
App. Kuze,
Lord of Tango.
V.
1785,
Feb, 9.
•
xxviii
APPENDIX III.
' Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
VI.
1786,
Jan. 30.
Res. Inouye,
Lord of Kawa-
chi,
App. Inaba,
Lord of Tango.
Res. Akai.
Lord of Echi-
zen.
Res. Matsumoto,
Lord of Idzu.
App. Aoyama,
Lord of Tajima.
App. Tsuge,
Lord of Nagato.
Temmei.
VII.
1787,
Feb. 18.
Res. Matsndaira,
Lord of Hold.
Res. Hotta,
Lord of Sagami.
Res. Abe,
Lord of Biehu.
App. Makino,
Lord of Bizen.
Res. Magari-
buchi.
Lord of Eai.
App. & Res.
Ishikawa,
Lord of Tosa.
App. Yagyn,
Under-Steward
of Imperial
Supplies.
Res. Aoyama,
Lord of Tajima.
App. Negi-shi,
Lord of Hizen.
VIII.
1788,
Feb. 7.
Res. Inaba,
Lord of Tango.
App. Matsndaira,
Lord of Kii.
App. Itakura,
Under-Miuister
of the Interior.
Res. Yagyn,
Under-Steward
of Imperial
Supplies.
App. Hatsnkano,
Lord of Eawa-
chi.
Res. Knwabara,
Lord of Noto,
Res. Tsuge,
Lord of Nagato,
A]>p. Kubota,
Lord of Sado.
App. Magari-
buchi.
Lord of Kai.
App. Yagyn,
Under-steward
of Imperial
Supplies.
Kwansei. '
I.
1789,
Jan. 26,
App. Toda,
Snperintendent
of Palace
Maidservants.
Res. Yamamura,
Lord of
Shinan9.
App. Ikeda,
Lord of
Chikngo.
n.
1790,
Feb. 14.
Res. Toda,
Superintendent
of Palace
Maidservants.
APPENDIX III.
xxix
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
III.
1791,
Feb. 3.
Res. Matsudaira,
Lord of Kii,
App. Wakizaki,
Minister of the
Imperial
Household.i
Res. Hatsukawa,
Lord of
Kawachi.
App. Odagiri,
Lord of Tosa.
IV.
1792,
Jau. 24.
Res. Makino,
Lord of Bizen.
App. Tachibaiia,
Lord of Idzumo.
Res. Kubota,
Lord of Sado.
App. Sabashi,
Lord of Nagato.
M
CQ
S
V.
1793,
Feb. 11.
Res. Tachibana,
Lord of
Idzumo.
App. Aoyama,
Lord of
Shimotsuke.
VI.
1794,
Jan. 31.
Res. Sabashi,
Lord of Nagato.
App. Mamiya,
Lord of
Chikuzen.
VII.
1793,
Feb. 19.
Res. Ikeda,
Lord of
Chikugo.
App. Sakabe,
Lord of Noto.
VIII.
1796,
Feb. 9.
Res. Aoyama,
Lord of
Shimotsuke.
App. Doi,
Keeper of
Imperial Rice-
storehouses.2
Res. Sakabe,
Lord of Noto.
App. Murakami,
Lord of Higo.
1. This Magistrate «was also and originally Lord of Awaji (see
No. 8, Part III, Section I); but the territorial title is the less honora¬
ble, and the other is here used. 2. Different from the one resigning
in 1769.
XXX
APPENDIX III.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
IX.
17'J7,
Jan. 28.
Res. Magari-
buohi.
Lord of Kai.
Res. Kuze,
Lord of Tango.
Res. Mamiya,
Lord of Chiku-
zen.
App. Nakagawa,
Lord of Hid a,
App. Ishikawa,
Under-Minister
of the
Interior.
.4pp. Suganuma,
Lord of Shimo-
tsuke.
w
a
E:
X.
1798.
Feb. 16.
Res. Matsudaira,
Governor of
Kyoto.
Res. Itakiira,
Uuder-Minister
of the
Interior.
App. Matsudaira,
Lord of Suwo.
Res. Murakami,
Lord of Higo.
.4pp. Negishi,
Lord of Hizen.
Res. Negishi,
Lord of Hizen.
App. Matsudaira,
Lord of Iwami.
XI.
1799.
Feb. 5.
App. Uyemura,
Lord of
Suruga.
Res. Matsudaira,
Lord of Hida.
XII.
1800.
Jan. 25.
Res. Uyemura,
Lord of Suruga.
App. Hotta,
Lord of Buzen.
•
App. Ogasawara,
Lord of Idzumo.
o
W
I.
1801.
Feb. 13.
Res. Doi,
Keeper of
Imperial Eice-
storehouses.
App. Abe,
Lord of Hari-
nia.
APPENDIX III.
xxxi
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
Ktowa.
II.
1802,
Feb. 3.
App. Aoyama,
Steward of Im¬
perial Supplies.
App. Matsudaira,
Governor of
Kyoto. 1
Res. Suganuma,
Lord of Shimo-
tsuke.
App. Matsudaira,
Chief of Im¬
perial Maga¬
zines.
III.
180.3,
Jan. 23.
Re.s. Matsudaira,
Lord of Suwo.
App. Mizuno,
Lord of Dewa.
I.
1804,
Feb. 11.
Pes. Abe,
Lord of Hari-
ma.
App. Okubo,
Lord of Aki.
II.
1805,
Jan. 31.
<
&
n
III.
1806,
Feb. 18.
Res. Hotta.
Lord of Buzen.
Res. Mizuno,
Lord of Dewa.
App. Abe,
Minister of
Imperial
Eevenues.
Res. Nakagawa,
Lord of Hida.
Res. Ishikawa,
Under-Miui-
ster of the
Interior.
App. Mizuno,
Lord of Waka-
sa.
IV.
1807,
Feb. 7.
V.
1808,
Jan. 28.
Res. Abe,
Minister of
Imperial
Revenues.
•
1. Different from the one resigning in 1798.
xxxii
APPENDIX III.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
X
o
W
VI.
1809,
Feb. 14.
App. Matsudaira,
Lord of
Idzumo.
Res. Mizuno,
Lord of Waka-
sa.
VII.
1810,
Feb. 4.
Res. Okubo,
Lord of Aki.
.42>p. Arima,
Commander of
the Guard.
App Hida,
Lord of Bugo,
App. Nagate,
Lord of Bigo.
VIII.
1811,
Jau. 25.
Res. Odagiri,
Lord of Tosa.
App. Nagate,
Lord of Bigo.
Res. Nagate,
Lord of Bigo.
App. Arita,
Lord of Hari-
ma.
IX.
1812,
Feb. 13.
Res. Arima,
Commander of
the Guard.
App. Abe,
Lord of Bichu.
Res. Ogasawara.
Lord of Idzumo.
Res. Arita,
Lord of Hari-
ma.
App. Magari-
buchi.
Lord of Kai.
A]}p. Obase,
Lord of
Nagato.
X.
1813,
Feb. 1.
Res. Wakizaki,
Minister of
the Imperial
Household.
Res. Matsudaira.
Lord of Idzumo.
App. Naito,
Lord of Buzen.
App. Matsudaira,
Under-Minis-
ter of the
Interior.
. •
XI.
1814,
Feb. 20.
Res. Obase,
Lord of
Nagato.
App. Iwase,
Lord of Kaga.
APPENDIX III.
xxxiii
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
XII.
1815,
Feb. 9.
Res. Matsudaira,
Governor of
Kyoto.
Res. Aoyama,
Steward of
Imperial
Supplies.
Res. Negishi,
Lord of Hizen.
App. Iwase,
Lord of Eaga.
Res. Hida,
Lord of Bugo.
Res. Iwase,
Lord of Kaga.
App. Sakakibara,
Minister of
Imperial
Revenues,
BtJNKWA.
XIII.
1816,
Jan. 29.
Res. Magari-
buchi,
Lord of Kui.
App. Hattori,
Lord of Iga.
App. Tsuchiya,
Lord of Kii.
App. Furukawa,
Lord of Yama-
shiro.
XIV.
1817,
Feb. 16.
Res Abe,
Lord of Bichu.
Res. Naito,
Lord of Buzen.
App. Matsudaira,
Lord of Suwo.
•ipp. Mizuno,
Under-Minister
of the Interior.
Res. Yagyu,
Under-Steward
of Imperial
Supplies.
I.
1818,
Feb. 5.
App. Matsudaira,
Lord of Hoki.
App. Muragaki,
Lord of Awaji.
Bunsei.
II.
1819,
Jan. 26.
•
Res. Nagate,
Lord of Bigo.
App. Sakakibara,
Minister of
Imperial
Revenues.
Res. Sakakibara,
Minister of
of Imperial
Revenues.
Res. Hattori,
Lord of Iga.
Res. Tsuchiya,
Lord of Kii.
App. Ishikawa,
Steward of
Imperial
Waters.
App. Toyama,
Warden of the
Ralace Gate.
xxxiv
APPENDIX in.
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
IH
B
III.
1820,
Feb. 14.
Res. Iwase,
Lord of Kaga.
App. Arawo,
Lord of Tajima.
Res. Furukawa,
Lord of
Yamashiro.
App. Matsuura,
Lord of Ise.
IV.
1821.
Feb. 3.
Res. Arawo,
Lord of
Tajima.
App. Tsutsui,
Lord of Kii.
V.
1822,
Jan. 23.
Pes. Matsudaira,
Under-Minister
of thelutenor.
Res. Matsudaira,
Lord of Suwo.
App. Honda,
Lord of Buzen.
VI.
1823,
Feb. 11.
App. Oda,
Lord of Settsa.
Res. Matsuura,
Lord of Ise.
App. Soga,
Lord of Bugo.
VII.
1824,
Jan. 31.
VIII.
1825,
Feb. 18.
Res. Mizimo,
Under-Minister
of the Interioi'.
Res. Honda,
Lord of Buzen.
App. Matsu¬
daira,
Lord of Idzumo.
App. Doi,
Keeper of
Imperial Bice-
storehouses.
•
APPENDIX III.
XXXV
Period.
Year.
Temple
Magistrates.
Toicn
Magistrates.
Finance
Magistrates.
IX.
1826,
Feb, 7.
Pes. Matsudaira,
Lord of Hoki.
App. Hori,
Lord of Yama-
to.
X.
1827,
Jan. 27,
[Beyond here no
list is in exist¬
ence.]
IH
1^
10
■d
.pq
XI.
1828,
Feb. 15.
Pes. Oda,
Lord of Settsu.
Pis. Hori,
Lord of Y'ama-
to.
App. Tsuchiya.
Lordof Sagami.
App. Matsudaira,
Lord of Tango.
XII.
1820,
Feb. 4.
Pis. Loi,
Keeper of
Imperial Bice-
storehouses.
App. Wakizaki,
Minister of
the Imperial
Household.!
I.
1830,
Jan. 25.
App. Mabe,
Lord of Shi-
mosa.
d
SI
S
H
II.
1831,
Feb. 13,
Pes. Matsudaira,
Lord of Idzu-
1110.
Pes. Matsudaira,
Lord of Taugo.
III.
1832,
Feb, 2.
1. The same one who resigned iu 1813.
xxxvi
APPENDIX ni.
1
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Fitmnce
Magistrates.
Tempo.
IV.
1833,
Feb. 20.
V.
1834,
Feb. 9.
Res. Tsucbiya,
Lord of
Sagami.
A pp. Inouye,
Lord of Kawa-
chi.
App. Hotta,
Lord of Bicbu.
VI.
1835,
Jan. 29.
VII.
1836,
Feb. 17.
Res. Sakakibara,
Minister of
Imperial
Eevenues.
App. Okusa,
Lord of Awa.
VIII.
1837,
Feb. 5.
Res. Hotta,
Lord of Bicbu.
App. Aoyama,
Lord of Inaba.
IX.
1838.
Jan. 26.
[Beyond here no
list is in exist¬
ence.]
X.
1839,
Feb. 14.
•
XI.
1840,
Feb. 3.
Res. Okusa,
Lord of Awa.
App. Toyama,
Warden of the
Palace Gate.
APPENDIX in.
xxxvii
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
Tempo.
XII.
1841,
Jan. 28.
Res. Tsutsui,
Lord of Kii.
App. & Res.
Yabe,
Lord of Suruga.
App. Torii,
Lord of Kai.
XIII.
1842,
Feb. 10.
XIV.
1848,
Jan. 30.
Res. Toyama,
Warden of the
Palace Gate.
App. & Res. Abe,
Lord of
Totorai.
App. Nabeshima.
Minister of
Public Works.
.<
&
m
o
Ui
I.
1844,
Feb. 18.
Pes. Torii,
Lord of Kai.
App. Atobe,
Lord of Noto.
II.
1845,
Feb. 7,
Res. Atobe,
Lord of Noto.
App. Toyama,
Warden of the
Palace Gate.l
III.
1846,
Jan. 27.
IV.
1847,
Feb. 15.
1. The same who resigned in 1843.
Vol. XX, 9iip. Pt.
zxxviii
APPENDIX nr.
Period, j
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
H
r-
-0
■W
I.
1848,
Feb. 5.
Pes. Nabesbima,
Minister of
Public Works.
App. Makino,
Lord of Su-
ruga.
II.
1849,
Jau. 24.
Pes. Makino,
Lord of Suruga.
App. Ido,
Lord of Tsu¬
shima.
III.
1850,
Feb. 12.
IV.
1851,
Feb. 1.
V.
1852,
Jan. 21.
Res. Toyama,
Warden of the
Palace Gate.
App. Ikeda,
Lord of Hari-
ma.
VI.
1853,
Feb. 8.
CO
X
■<
I.
1854.
Jan. 29.
•
II.
1855,
Feb. 17.
III.
1856,
Feb. 6.
Pes. Ido,
Lord of Tsu¬
shima.
APPENDIX III.
xxxix
Period.
Year.
Temple
SI ay is frates.
Town
Slagistrates.
Finance
Slagistrates.
Manten. Ansei.
III.
1856,
Feb. 6.
App. Atobe,
Lord of Kai.
IV.
1857,
Jan. 26.
Re^. Ikeda,
Lord of
Harima.
App. Izawa,
Lord of Mima-
saka.
V.
1858,
Feb. 14.
Res. Atobe,
Lord of Kai.
Res. Izawa,
Lord of Mima-
saka.
App. Ishiya,
Lord of Inaba.
App. Ikeda,
Lord of Hari¬
ma.
VI.
1859,
Feb. 3.
I.
1860,
Jan. 23.
Bunkin.
I.
1861.
Feb. 10.
Res. Ikeda,
Lord of Hari¬
ma.
App. Kurokawa,
Lord of Bichu.
II.
1862,
Jan. 30.
•
Res. Ishiya,
Lord of Inaba.
Res. Kurokawa,
Lord of Bichu.
App. and Bes.
Ogasawara,
Lord of Nagato.
App. and Bes.
Oguri,
Lord of Bingo.
zl
APPENDIX III.
Bunkin. Period.
Year.
Temple
Mayistrutes.
7'own
Magistrates.
Finance
Magistrates.
II.
1862,
Jan. 30.
App. and lies.
Inouye,
Lord of Sbi-
nano.
App. Asano,
Lord of Bizeu.
App. Sakaki,
Lord of Hida.
III.
1863,
Feb. 18.
Res. Asano,
Lord of Bizen.
Res. Sasaki,
Lord of Hida.
App. Abe,
Lord of ISchizen.
Keiwo. Genji.
I.
1864,
Feb. 8.
Res. Abe,
Lord of Eclii-
zen.
App. and Res.
Suzuki,
Luidof Suruga.
Ajip. and Res.
Jlatsudaira,
Lord of Awa.
App. and Res.
Ariuia,
Lord of Idzu-
nio.
App. Ikeda,
Lord of Harima.
App. Negishi,
Lord of Hizen.
I.
1865,
Jan. 27.
Res. Negishi,
Lord of Hizen.
App. Yainagucbi,
LordofSuritga.
II.
1866,
Feb. 15.
Res. Ikeda,
Lord of Hari¬
ma.
Res. YAmagucbi,
Lord of Suruga.
A2ip. and Res.
Inouye,
Lord of Shina-
no.
APPENDIX III.
xli
Period.
Year.
Temple
Magistrates.
Town
Magistrates.
Finance
Magistrates.
II.
1866,
Feb. 15.
App. and Pes.
Arima,
Lord of Awa.
App Zomai,
Lord of Saga-
mi.
III.
1867,
Feb. 5.
App. Koide,
Lord of Yama-
to.
App. Asahina,
Lord of Kai.
App. Sugiura
Busaburo.
Keiwc
IV.
1868,
Jan. 25.
Res. Eomai,
Lord of Sagami.
Res. Koide,
Lord of Yama-
to.
Res. Asabina,
Lord of Kai.
App. and Res.
Kuiokawa,
Lord of Omi.
Res. Sugiura
Busaburo,
App. and Res.
Sugiura,
Lord of Echu.
App. and Res.
Sakuma
Bangoro,
App. and Res.
Ishikawa,
Lord of Kawa-
cbi.
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TRANSACTIONS
OF
THE ASIATIC SOCIETY
OF JAPAN.
VOL. XX: SUPPLEMENT.
CONTENTS:
Materials for the Study of Private Law in Old Japan: Part II.
Edited by Joun Henry Wiqmoee.
Yokohama, Shanohai, Hongkong & Singapore : Kelly & Walsh, L'd.
Tokyo : Z. P. Maruya & Co., L'n.
Lonhon : Tbubner & Co.—Paris : Ernest Leroux.
Leipzig & Berlin ; K. F. Kohlee's Aniiqhariuu.
JUNS, 1892.
R. Meiklejohn & Co., Priiit jrs, No. 26 Water Street, Yokobaina.
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
EDITED, WITH NOTES AND AN INTRODUCTION,
BY
JOHN HENKY WIGMOEE.
JUNE, 1892.
MATERIALS FOR THE STUDY OF PRIVATE LAW
IN OLD JAPAN.
PART I.-INTRODUCTION.
PART II.-CONTRACT: CIVIL CUSTOMS.
PART III.-CONTRACT: LEGAL PRECEDENTS.
Skction I: Monet Loans ; Letting and Hieing.
Section II: Sale.
(In preparation.)
Section III: Deposit, Pledge.
(In preparation.)
PARTIV.-CONTRACT: COMMERCIAL CUSTOMS.
(In preparation.)
PART V.-PROPERTY: CIVIL CUSTOMS.
PARTVI.-PROPERTy: LEGAL PRECEDENTS.
(In preparation.)
PARTVII.-PERSONS: CIVIL CUSTOMS.
(hi preparation.)
PARTVIII.-PERSONS: LEGAL PRECEDENTS.
(In preparation.)
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
PAET II.
CONTRACT : CIVIL CUSTOMS.
CONTENTS.
PAGE.
I.—Coutract-Iustiumeiits 3
II.—Wituess aud Surety 8
III.—Sale 13
IV.—Letting aud Hiring 53
V.—Deposit 85
VI.—Hypothec and Pledge 91
VII.—Prescription 115
VIII.—Bankruptcy 118
Appendix 134
CHAPTER I.
CONTRACT-INSTEUMENTS.
In general, in the case of instruments embodying a
contract of pledge,^ sale,^ or conveyance® of lands^ or
houses,® the relations and companies ® of the parties affix
their counter-seals,'' and the local officials add a public
attestation by a seal.® If a dispute arises over an instru¬
ment not bearing the official attestation, no suit thereon
will be entertained. But ordinary instrumeuts of contract
other than the above are not subject to any official regulation,
and the practice varies widely in different regions. Special
variations are as follows.
Kinai. In Yamashiro Icuni, Otagi and Kadono kori,
the attestation of an official seal is required for an in¬
strument of pledge of realty. In towns the borrower usually
creates a lien ® by placing the title-deeds in the hands of
the creditor, so that the official seal is not called for. In
Kuse kori, the official seal is not used for pledges of realty ;
but the attesting-seal of the companies serves as public
attestation.
Tokaido. In Mikawa kiini, Atgumi kori, the seal of
the ward or village headman or the company-chief is
required for an instrument of sale or hypothec of houses
1. Shichi-ire. 2. Baibai. 3. Yuzuri-watashi (grant-transfer).
i.Tochi. 5. Kaoku. 6. iCifmi-at (the same as/rami). These were the
5-men-companies, into ♦hich every ward and village was divided.
See Introduction. 7. Ben-in. 8. Oku-in. 9. Teito. j 10. Koken.
11. Sho-in. 12. Shoya. 13. Kumi-gaslura. 14. Kakiire-shichi.
4
private law in old japan.
or of residence-land. If the headman chooses to affix his
seal to a second hypothec ^ of the same piece of land, and
the second creditor suffers a loss, there is an obligation to
make good the loss, and this obligation the whole village or
ward shares.2
Tosando. In Omi kuni, Shiga kori, in case of a
pledge of cultivated land, the village officers make a public
attestation by affixing a seal to the instrument and attaching
a paper slip ^ at the proper place in the land-register.^ In
the case of town lands, it is the custom to pledge® the title
deeds, so that the official seal is not required. In Inugami
kori, the method of public attestation is the same for villages.
In towns it is the custom to keep a register of house-
pledges,® and a pasted slip is placed over the name of the
owner, so as to prevent a second mortgage.®
In Iwashiro kuni, Aidzu kori, in a mortgage of house-
land in a town, the officials examine the document, and affix
a slip ® at the proper place in the house-register to prevent a
second mortgage.i® In a pledge of cultivated land, the public
attestation is accomplished by an indorsement by the
officials.
In Eikuchu kuni, Iwate kori, in a mortgage of realty,
the counter-seaP® of the companies is affixed, and not the
seal of the officials. To prevent a second mortgage
the creditor goes to the officials and requests a mortgage-
certificate.^®
In Uzen kuni, Tagawa kori, in case of a pledge or sale
of realty, the parties' companies, the head man,i^ and the
ward or village officers affix a counter-seal i® and the chief
1. Hiju-kakiire. For terms relating to mortgages, etc., seethe
chapter thereon. 2. Itchd-nai somocM. 3. Kake-gami. 4. Mizucho.
5. Shichiire. 3. lye-shichi-cho, 7. Hari-fuda. 8. Ten 9.Tsuke-
fuda. 10. lye-clid. 11. Uragaki (back-writing). 12. Ka-in.
13. Shichi-ire no sagefuda. 14. Osa or Chunin. 15. Re-nin.
part ii.—contract: cml customs.
5
headman ^ then affixes his seal ^ permitting the transaction.
In case of a hypothec, the only formality is the affixing of
seals ® by the relatives and by the village officials.
Hokkaido. In Toshima kuni, Kameda kori, no official
attestation is made. The people are honest and frugal, and
no such practice as twice mortgaging is known. In Tsugaru
kori, a public attestation^ is made, for a hypothec of land,®
by the nakushi, an officer next in rank under the ward-elder,®
and for a mortgage of a house, by the ward-representative,''
an officer next in rank under the headman.®
Hokurokudo. In Echizen kuni, Tsuruga kori, in
villages, in case of a hypothec of cultivated land,
only the parties' relatives affix a counter-seal, because
in this district insolvency is unknown [and no other
safeguard is needed]. In a " sale voidable on return of
price (this is the term applied [in villages] to what is
virtually a pledge of land for an indefinite time, the land
being redeemable even by the debtor's descendants upon
payment of the principal), the headman i® and the elder
affix seals, and in a sale or mortgage of house-land in a
town, the headman.^®
In Ecbigo kuni, Koshi kori, in a sale, pledge,
or hypothec of village cultivated land, the seals of
the bailiff,!® company-chief, and inspector are affixed,
this act being termed " thrice-sealing." In a town
public attestation is made, in a sale of house-land,
by affixing the seals of the headmanand the elder, and in
a hypothec or a pledge, by an indorsement of the ward-
representative. In Kariha kori, in a hypothec or a pledge
of cultivated land, the so-called " three officers,"!®—the
1. 0-joya. 2. Oku-in. 3. Clio-iu. 4. Oku-sho. 5. Jislio. 6. Machi-
toshiyori. 7. Machi-dai. S. Nanushi. 9. Honmono (original) sum)
kayeshi (return) uriyim (sale ended). 10. Slioya. 11. Toshiyori
12. Kimoiri. 18. Kendan. For these names of local officials, see
Introduction. 14. Yokome. 15. Shoya. 16. Sanyaku.
6
private law in old japan.
headman,! the company-chief, and the farmers'-representa-
tive 2—afEx an official counter-seal. In a sale or a hypothec
of house-land in a town, the relatives and the companies
counter-seal, and a public attestation is made by the
•ward-elder and the chief-headman. The record of hypothecs
is kept at the office of the ward-assembly,^ and a commis¬
sion ! of varying amount is paid at the time of a transfer.
Sometimes -when the record is neglected, for the sake of
evading the commission, a second mortgage 5 is effected.
Nankaido. In Kii kuni, Nakusa and Abe kori, when
a sale of realty is effected, the seals of the parties,® their
companies, and the ward-officials are required. The indors¬
ing sealof tlie feudal official follows, and the document is
called a " perpetuity-instrument." ® In a hypothec, the
parties and their sureties® affix seals, the ward-officials
make an official attestation, and the feudal official!® adds an
indorsing seal; the purpose being to prevent double
mortgages.
In lyo kuni, TJwa kori, in a pledge of cultivated land, the
company-chief affixes an official seal; if the pledgee is from
another village, the headman !! seals. In a pledge of house-
land in a town, the ward-officer !® seals.
Saikaido. In BnzenA-!0!(,Kiku kori, in a sale or pledge
of rice-field, upland, or forest-land, the headman, makes a
public attestation by sealing. In mortgages of house-lands
in towns the ward-elder does not affix his seal, but as the
companies of the parties do, no trouble is experienced
through double mortgaging. In Shimotsuke kori, when
rice-field or upland is pledged, the sure^' counter-seals, the
headman and company-chief then add their official seals, and
1. Shay a. 2. HyakiisJto-dai. 3. j\lachi-gaisho. 4. Tesiiryd.
5. Tenbai. 6. Honnin. 7. Vra-in. 8. Yeitai-shomon, (yeitai-haihai
—perpetual sale—being the general term for a transfer in fee
simple). 9. Uke-nin. 10. Kwan. 11. Shoya. 12. Machi-yoagrika.
PART II.—CONTRACT : CIVIL CUSTOMS.
7
the debtor, going to the village office, affixes a divided-seal ^
at the proper place in the record-book 2 of pledges. Then
the parties respectively deliver® and receive * the price. When
house-land in towns is sold or pledged, the company-chief
counter-seals, and the ward-elder affixes an indorsing-seal
on the instrument and a divided-seal in the land-register.®
In Hizen kmii, Takaki Icori, in a pledge or convey¬
ance® of cultivated land, the headman affixes his official seal.
When house-land in towns is sold or pledged, the ward-elder
does not seal, but in a sale the parties transfer and receive
the price before the eyes of the ward-elder, and in case o^
a pledge, a note'' is made in the land-register.®
In Osumi kinii. So kori, in sales of newly-reclaimed
land or town-land,® the relatives and companies of the parties
counter-seal, and the sureties'® and witnesses" add a war¬
ranty-seal •,'® even in case of a pledge, only the above seals
are used, so that double mortgaging sometimes occurs.
In Tsushima kuni, Shimoagata koii, the sureties
and witnesses counter-seal, in case of sales or pledges of
land,'® and no official seal is affixed; if a second mortgage
occurs, a suitable punishment is inflicted by the feudal
official.
1. Wari-han (by stamping two documents at once, so that each
receives half of the impression,—in this case presumably by stamping
the mortgage instrument and the book). 2. Hikaye-cho. d. Watasu.
4. Uketori. 5. Mizu-cho. 6. Yudziiri-watashi. 7. Katagaki. 8. Ken-
chi-cho. 9. Slachi Jimeii, 10. Shoko-nin. 11. XJkeoi-nin. 12. Uke-
in. IS.Jisho. 14. Ten-bai.
( 8 )
CHAPTEE II.
WITNESS AND SURETY.
As a rule the persons who act as witnesses and sureties
merely are present at the transaction and do not assume
any obligation to stand in the debtor's place and pay the
creditor in case of a default. Special variations are as
follows.
Kinai. In Yamashiro Inini, Otagi and Kadono lion,
the term " witness" is used lor personal suretyship,
and " surety " for property suretyship.
In Settsu kuni, Yabe kori, it is an old custom that
the witness shall only hear witness ^ to the transaction, and
the surety shall make good 2 any deficiency ® of payment on
the part of the principal.^
Tokaido. ^In Kai laini, Yamanashi kori, it rarely
happens that an agent ® is selected outside of the circle of
one's relatives and company. In important transactions,
the parties exchange the instruments of contract and report
the matter to the headman.® Less important matters are
usually transacted orally and are not wported. The func¬
tion of surety is usually undertaken by some one among the
neighbors, company, or relatives.
T ^*5^
In Sagami kuni, Asbigara koH, a witness or a surety
must be selected from among one's company. The duty of
1. Sliomei suru. 2. Bensho. 3. Fusoku no hun. 4. Honnin.
5. Myo (name)-t?at {substitute)-nin (person). 6. Nanushi.
part ii. contract : civil customs.
9
making good a default of the principal falls primarily on his
relatives, and, if they fail to do so, then sometimes it extends
to witnesses or sureties.
In Shimotsuke hint, Yuki hori, those who are de¬
scribed ^ as sureties must make good a default of the princi¬
pal.
Tosando. In Omi kuni, Shiga kori, whether a duty
to make good on default exists or not depends on the
terms ^ of the instrument. In Inugami koH, the witness mere¬
ly bears testimony to the transaction, while the surety has
the duty of making good the principal's default.
In Shinano hnii, Takai kori, no one can be held
responsible unless he has himself affixed his seal; ^ so that it
is forbidden to deposit^ the seal with the headman® or
company-chief, even for purposes of public business.
■ In Saku kori, one must keep possession of his seal,®
without ever allowing it to go out of his hands. In spite of
inconvenience to himself, he must not deliver it to any
person [as agent] except parents, son, or brother. If he
changeshis seal, he must immediately record the new one
in the book of seals ® at the local office.
In Iwashiro kuni, Aidzu kori, the witness or surety is
called " sealer",® and not only bears witness to the transact¬
ion, but also makes good i® a default of th#^rincipal.
In Eikuzen kuni, Miyagi kori, there has from early
times been no distinction between witness and suretj', and
such persons, where the transaction was a money loan,
make good a default, and, where they were sureties for
personal service,^® are responsible for its performance. In
1. Katagaki (shoulder-note); the capacities which a per¬
son holds—offices, degrees of hoiM», etc.,—are written a little
above and to the right of the name. It may be said of a person
filling many honorable positions that he has a good katagaki. But
the meaning " head-not#' is also current. 2. Mei-biin. 3. Cho-in.
4. Watashi-oku. 5. Nanuslii. 6. In-gyo. 7. Kai-in. 8. In-kan-cho.
9. Ka-han-nin. 10. Daishii. 11. Hen-ben. 12. Ben-sai. 13. Hito-uke.
10
PRIVATE LAW IN OLD JAPAN.
Toda kori, persons under 15 or above 60 years of age are
customarily not made agents.^ An agency is created by
word of mouth ^ and is not reported to the headman 3 or the
feudal official. In Ojika kuri, persons under 15 or above 60
and persons who have incurred a punishment greater than
banishment ^ are not appointed sureties.
In Uzen kuni, Okitama kori, the surety for a money
loan, ever since early times, is not regarded as liable to
indemnify the creditor, even though the debtor's death or
flight hinders the creditor from getting satisfaction. In
Tagawa kori, the term " witness " ® in the instrument
implies merely that the person is to hear testimony, and,
even if the debtor delays payment, the witness does not
particularly concern himself. But a description as " sealer "
or " surety " implies a duty to make good a default. In
TJgo kuni, Akita kori, the surety for a money loan, when-the
principal defaults in payment,® has a duty to undertake'' to
make it good, even though no express promise to make
good has been made. When a suret}' has guaranteed
a money loan® and at maturity the principal cannot pay
and the creditor agrees to prolong the term of payment, the
surety is not regarded as hound to make good a default,
inasmuch as the prolongation of the period was a private
ai-rangement ® of debtor and creditor alone, and was in
excess of the period originally guaranteed.^®
Hokurokudo. In Echu kuni, Nei kori, the duty of the
witness is to testify to the transaction, while the surety, in
case the principal dies or absconds, has the duty of under¬
taking the performance of the agreement and making good
the default.
In Echigo kuni, Kamhara kori, the duties of an agent.
1. Myo-dainin. 2. Kryu. 3. Kimoiri. 4. Tsuihu. 5. Shvnin.
6. Hemai. 7. Hiki-ukeru. 8. Kinsu-taishaku. 9. Shidan. 10. JJke-
ai nenki.
part ii.—contract : civil customs.
11
surety, or witness end with the term of the original agree¬
ment. If such a one dies before its expiration, his obligation
extends to his successor.
In Sado kiini, Sawada kori, the term used is " rela¬
tion-surety,and, although there is usually a provision ^ in
the instrument that the surety shall make good a default, in
fact no one ever fulfills this obligation, the proverb running
" the surety does not give money." ^
Sanindo. In Tamba kuni, Kuwata kori, the surety is
bound to make good a default.
In Tango kuni, Kasa kori, the term " surety " alone,
and not "witness," is used. But the so-called surety
merely is present at ^ the transaction and does not make
good a default. In Yosa koii, there is no term " witness
but, although the instruments declare the surety to be
responsible, no one ever fulfills the obligation.
In Inaba kuni, Omi kori, the witness testifies ® to the
transaction, and the surety is bound to make good a
default ® of the principal.
In Idzumo kuni, Shimane kori, the surety in a loan of
money or rice'' or any other contract is bound, in case the
principal defaults, to undertake performance and to repay ®
principal 3 and interest.®
Sanyodo. In Harima kuni, Sayo kori, a witness
merely testifies to the contract. A surety is liable for the
principal's default, whether or not it is specially so agreed
in the instruments.
Nankaido. In Sanuki kuni, Kagawa kori, the rule is
as in the previous paragraph.
Saieaido. In Buzen kuni, Kiku kori, the term
" surety " is used, but no instance exists of a surety's making
good a default, the proverb running " a surety does not
repay money, "i®
1. Shini'ui-uke. 2. Mcihun. 3. TJkenin zeni dasazu. 4. Shusen.
5. Shomei. 6. Furachi. 7. Kinkoku tainhaku. 8. Shukyaku.
9. Gwan-ri. 10. Vkenin kane ico tsugunawadzu.
12
PRIVATE LAW IN OLD JAPAN.
In Hyuga laini, Miyazaki and Koyu Iwri, the term
" witness " is not used. The surety is by custom liable to
pay in case of default, but no one ever does so.
In Osumi kuni, So kori, the witness testifies to the
transaction and the surety makes good a default.
In Satsuma kiini, Kagosbima koH, the witness and the
surety invariably fulfill the duties of suretyship,! even
though they have not sealed the instrument.
1. Hoshu.
( 13 )
CHAPTEK III.
SALE.i
There is in villages a prohibition against the perpetual-
sale 2 of cultivated-land,3 so that the practice is for the
transaction to take the form of a pledge irredeemable after
10 years ^ or of a pedigree-transfer,5 the seller receiving the
price and transferring® the property-right.7 The instrument
is counter-sealed by the seller's relatives and company, and
the local officials affix an official seal and change the names
1. Baibai. In this chapter the terms dempata (rice field and up¬
land) and hocM (cultivated land) are used as equivalents. As they are
practically so in most cases (den or ta applying to wet-land, and liata,
to all kinds of cultivation carried on in dry or up-land, and the two
together comprehending all the cultivated land of a village), the term
"cultivated land" will here be used throughout, to represent the
above terms, unless for some reason the literal rendering is prefer¬
able. It is also to be noted that the customs recorded of villages are
usually concerned with cultivated land, while those recorded of
towns concern houses or residence-land. This is because in the
towns the inhabitants were practically all merchants, in villages
practically all farmers. Transfers of house-land in villages appear,
but not frequently. On the whole, what is said of cultivated land
may usually be understood as a rural custom; what is said of house-
land, as a burgensic custom.
2. Yeitai-baibai (that is, transfer in fee simple). S.Kochi.
i.Jimen-ki shichi-chi naqare. 5. Yuisho (origin, root, stock; hence
pedigree, family-ancestry)-2/M2uri-rcatas/i! (transfer). 6. Utsnsu.
7. Shoyiiketi.
14
private law in old japan :
in the land-register. In sales of town-lands the parties,
after a consultation,^ draw up the instrument, have it counter-
sealed by the seller's relatives and company, and report the
transaction at the ward office; the price is then given and
received at the office, an official seal affixed to the instrument,
and the names changed in the land-register. Special vari¬
ations are as follows.
Kinai. In Yamashiro kuni, Otagi and Kadono kori,
in sales of town-land, the parties agree upon their sureties,
draw up the instrument, obtain the counter-seal of the ward-
representative,^ repair to the ward office, procure the official
seal of inspection,3 and transfer the property right. A fee
of one-twentieth of the price is paid [by the buyer], and is
applied to the ward expenses.
In Yamato Icuni, Soyegami kori, in sales of residence
land in towns, the parties, after settling the price,^ report
their intention to the officials of their respective wards.
Then the elder of the buyer's ward communicates with the
elder of the seller's ward, stating that an agreement 5 has
been entered into between A and B in regard to the purchase
and sale of certain residence-land, and asking that infor¬
mation be returned as to whether any opposition to the
transaction exists among the residents of the seller's
ward. The elder of the latter ward then summons all
the householders,'' that is, heads of families,® states to
them the contemplated transfer, and asks if there is any
opposition. If none is offered, an answer to that effect
is returned. By correspondence between the elders of the
buyer's and the seller's wards the date of the transcription ®
is fixed, and on that day it is effected anil the parties report
1. Kyogi. 2. Macliidai. 3. Ken-in, 4. Nedan. 5. Shidan.
6. Saslii-Uukaye. 7. lye-mochi. 8. Kosliu. 9. Clio (book,
record)-ft»'i (cut, erase). It is possible that kiri has here the
sense of " divide," " apportion," pointing to the idea that the
land was once apportioned among the inhabitants. See Kaga
kuni, Ishikawa kori, infra.
PABT II. CONTRACT : CIVIL CUSTOMS.
15
the transaction to the feudal official.^ When no descriptive
title-deeds ^ exist of the plot to be sold, the parties report
the fact to the chief elder 3 and the ward-representative; all
parties then go to the plot in question, and in the presence^
of the neighbors on each side® or of the people of the nearest
ward not separated by water,® the officials and the proprietor''
rope off® the plot, and ascertain its dimensions in ken,^ as
well as its boundary-linesand its " water-escape (a term
signifying " drain ").i® Finally, if the area thus ascertained
does not differ from that stated in the instrument, both
parties counter-seal the instrument, and writing with it a
certificate of guaranty,'® send it to the chief elder at the time
appointed for the transcription of names. The elder,
accepting the certificate (which guarantees that no objections
exist), indorses" and seals'® the petition'® asking the pre¬
paration of a new title-deed, as well as the title-deed
itself, and forwards the documents to the magistrate's
office.''' The clerks'® on the same day order the
new title-deed to be sealed, and it is then handed'®
to the elder. The latter carries it back immediately, has
the buyer deliver®® to him the price at the ward-assembly
office, ®' hands the price to the seller, and, after both
parties express a final assent, gives the title-deed to the
buyer.
1. This term is used for the indefinite expressions (kioan, etc.)
of the original, indicating the official directly representing the
feudal lord. 2. Ken-mon. 3. So-toshiyori. 4. Tachiai. 5. Eyo-
tonari (one family on either side). 6. Jichidzuki tonari viachi.
7. Shoyu-nushi. 8. Nmva biki. The measuring was done with a
rope-line. 9. A linear measure of about 6 feet. 10. Sakai-me.
11 Mizu-hiki (water-draw-off). 12. Akusui-oclii (filthy-water-escape).
13. Ukeai-issatsu (a certificate that the result of the survey
is not objected to by either). 14. TJragaki. 15. Cho-in. 16. Gioan-
sho. 17. Bugyosho. 18. Yoriki. 19. Sage watashi (lit., handed
down, a mode of speech appropriate to the dignity of the
feudal officials). 20. 5as7ii-dasu (hand up). 21. Kwai-sJio.
16
PEIVATE LAW IN OLD JAPAN :
In Kawachi huni, Kawachi Imri, when a house is sold
in a village of the Shogunate dominions (but not of a
daimiate), the sale must take place through the medium of a
dealer in furniture.^ Even on the instrument of transfer
appear the name and seal of the dealer. Where the price
is 100 ryo or less, the dealer customarily receives 5 ryo.
In Wakaye kori, sales of cultivated land along a river or
near a spring are held usually by auction .2 The people of
the region call this " peddling,and the seller delivers
what they call a " record of seto,"^ stating the nameS of the
plot, the assessed production,® the amount of tax,'' the
quality of the soil, and the rent.® This seto record (-b >
#), which we have written in the syllabic writing, ought
perhaps to be written with the characters se g and to.'®
In Idzumi kuni, Otori kori, in towns, when a house is to
be sold, and a person living in another block " offers a fair
price, the seller must first give notice to all the members
of his own block ; and if one of them is willing to buy at
the price offered, the sale must be made to him.
In Settsu kuni, Nishinari kori, when land or houses i®
are sold, notice is given to all members of the block,'^ the
date of the sale publicly announced, aud earnest-money'®
bespoken, usually amounting to of the price. When the
bargain is struck, notice must be given to the ward-officers,
and all regulations i® and town-customs " must he conformed
to. A time for delivery is fixed upon and earnest-money
given. But before this and as soon as a buyer is found, the
1. Doguya. 2. Seri-uri. 3. Fiiri-uri. 4. Seto-gaki. 5. Azana.
This was a name given to a plot of land ai old times by the re¬
claimer. See Simmons, "Notes, etc," p. 155. 6. Tdka. 7. Koso.
8. Toku-mai. 9. One-tenth of a tan, or .025 acre. 10. One-tenth of a
koku, or about 2 pecks. The document would thus be a "record of
area and production." 11. Cho. 12. Jisho. 13. Tate-ya. 14. Cho.
15. Tetsuke (hand-touch)-kire (money). The idea is probably that
of the preliminary touch at the beginning of an undertaking.
16. Bloshiawase-kisokic. 17. Machi-hd.
PAKT n. CONTRACT : CIVIL CUSTOMS.
17
seller must ask whether the ward-members have any objection
to the buyer, and if not, the transaction proceeds. If before it
is concluded some one of the ward-members appears who
offers a higher price than the first person, he obtains the
property. Where sales are made by wholesale ^ or commis-
sion^ houses, the price paid is the ruling price at time of
delivery, whether or not an interval occurs between the date
of the bargain and the date of the delivery. The risk of the
thing's not coming to hand to the seller is on the buyer ; so
that, if it is lost by shipwreck, the seller is not responsible.
But if, for example, a thing is sold by a merchant in Yedo
to a merchant in Osaka, and it is lost in transit, the loss is
divided according to the distance the ship has gone. If, for
example, it was wrecked off Toba Bay in Shima province,
the Osaka merchant is responsible ; if off Shimoda in Idzu
province, the Yedo merchant.^ Similar rules are fixed for
other voyages. If, for example, it is a merchant of Kyushu
or Matsumaye that ships the goods to Osaka and they are
lost, the shipper bears the loss, not the Osaka merchant; and
it results from this that the Osaka merchants often have
credits against the other merchants based on transactions
of this sort. Where purchases are frequent and a running
account exists, an accounting is made every 60 days; and
an agreement to account every 65 or every 100 days,
for example, would be void. This rule applies to the neces¬
saries ot life. Payment may be refused where the realty
or personalty is of a different nature from that contracted
for or where the quantity is different. In such a case, how¬
ever, the earnest-money is always forfeited by the vendee.
1. Toiya. 2. Nakagai. 3. The differs nee between the two
cases is apparently this. In the former, A or ders of B in the same
town some merchandise not in stock; B has some on the way, but
it is lost before coming to hand ; B is exonerated and, probably,
A must pay. In the latter, B in one town sells to A in another,
engaging to deliver ; if on the way the goods are lost, the loss falls
according to the rule given.
18
private law in old japan :
In Yabe kon, in villages, the sale of cultivated and ot
residence land is not permitted, and a transfer i of such
property is made under the name of a giant,^ the receipt of
a sum of money in token of gratitude ® being noted by the
seller on the instrument. But as this sum corresponds to
the full value ot the land, the transaction is really a sale.^
In towns the transfer of houses® and lands® is accomplished
b}' means of an ordinary sale.
Tokaido. In Ise kuni, Ano koii, the law permits the
sale of house-land but not of cultivated laud or forest-land.^
A sale is made under the name of a " sale with return of
purchase-price after ten years,"® and the name of the
proprietor ® is changed in the land-register so that the
seller cannot for ten years buy back u the property, but at
the end of that time he may, upou paying the original price
received,—no matter how many years pass by before he
does so. The term of years in sales of forest land differs
from that in case of cultivated land, the usual term being 30
or 50 years, because in the latter case there is a yearly
profit,13 while the cutting of forest-timber is prohibited
until after a certain period of growth. The sale of houses
or lands in towns is without restrictions. lu Wataraye
kon", in sales of cultivated or forest land, the only pro¬
ceeding is to report!® the transaction to the village or
ward office; for sales of houses no report is necessary.
The form of the instrument of sale is determined by the
arrangement of the parties and the officials do not concern
themselves about it.
1. Utsusu. 2. YuzuH {give)-watashi (transfer). Yuzuri involves
the idea of transfer or relinquishment for reasons other than mere
pecuniary gain, e. g. family affection, or retirement from business.
3. Rei-kin. 4. Uri-icatashi. 5. Kaoku. 6. Jishu. 1. San (mountain)-
rin (forest),—as distinguished from the bamboo groves. 8. Jikka.
nen moto-kin kaeslii uri-icatashi. 9. Mochi-nushi. 10. Na-yosei-cho-
11. Kai-modoslii. 12. Nenki. 13. Saku-toku. 14. Rinhoku,
15. Todokem.
PART II. CONTRACT \ CIVIL CUSTOMS.
19
In Shima kuni, Toshi kori, every piece of rice-field,
upland, and forest-laud has its title-deed,! which they call
" deed-of-hand," 2 and if one is lost hy flood, fire, or
theft, the owner reports to the local officials, and procures
a copy of the entry in the land-register,3 aud this becomes
his title-deed, which it is the invariable custom to hand over
at the time of a sale. As to [these] lands, ^ the law
nominally forbids a perpetual sale, hut if in an instrument
entitled " sale of land " there is no express stipulation 5 for
buying back, the transaction becomes in fact a perpetual sale,
and upon the oral ® request of buyer and seller the headman
changes the name ol the proprietor in the land-register 3
and the transfer is complete. The relations and company
customarily sign the instrument of sale. In sales of
residence-land the proceedings are as above, except that
there are no title-deeds. It is an old custom, when the head¬
man® makes the annual inspection of tax-accounts 9 in
the 10th month, to send a servant around through the
whole ward or village, crying, "Are there any changes!"
of proprietors of rice-field or upland ? If so, report them."
In Owari kuni, Aichi kori, in transfers of cultivated or
residence land in villages, the only formal requirement
is the official seal of the headman, and no report
to the feudal official is necessary. But in the case of
newly reclaimed land!! the inspection-seal !3 of the feudal
official is required. lu the transfer of houses or lands
in towns, it is the custom for the officers of the place
to affix an official seal and for the parties to report to the
1. Kd-shdmon. 2. Tegata. 3. Mizu-cho. 4. Jisho. 5. Meibun.
6. Kojd. 7. lye (house)-yashiki (\ot)-chi (land). 8. Shoya.
9. Koso. 10. De-iri (going out and coming in). There are some
difficulties in the foregoing passage, but the above seems the most
probable rendering. It is to be supposed that the transfer of the
land first named required toth delivery of title-deed and alteration
of the register. Furthermore, no prohibition existed as to sales of
residence-land. 11. Shinden. 12. Ken-in.
20
PRIVATE LAW IN OLD JAPAN I
feudal official and request an alteration in the house-regis-
ter.i When the instrument of sale stipulates that the buyer
shall redeliver the property if within a certain number of years
the seller repays the original price, it is called a "return-in¬
strument," 2 In such a case the seller has the right to buy
back; otherwise the sale is in no event voidable3 by him.
In Mikawa Jiuni, Nukata kori, in sales of houses or lands
in towns, the seals of the seller's relations and company
and the official seal of the headman ^ are required for the in¬
strument of sale, and when the headman's seal has been
affixed, the name-entry ® in the register ® are changed. In
villages, as perpetual sales of cultivated and residence land
are forbidden, a sale is effected by a transfer acompanied by
a stipulation to return on demand at any time within a fixed
period of years; this is called "sale with return if I have
money within the term." ^ The seals of the seller's relations
and company are required, as well as the official seal of the
headman, and the name of the proprietor is changed in the
laud-register. There is no regular period of years in use,
this being a matter of mutual arrangement. If at the expira¬
tion of the period the seller is unable to buy back, the in¬
strument is properly altered and an agreement for indefinite
renewal® is made. When no limit of time for buying back
is fixed, and the repurchase is stipulated for whenever the
seller obtains enough money, the seller does not lose his
right even though many tens of years elapse before he claims
it. But the lapse of time is not entirely without limits, as
by custom the land becomes forfeited 9 in 61 years. There
is also a kind of sale called " sale of j)atrimony," usually
made by a seller who wishes to procure a further advance
within the period of redemption mentioned above. It is
in reality a perpetual sale, the seller transfering an inheritance
1. lye-nami-cho. 2. Modori-shomon. 3. Hai-ki sum. 4. Shuya.
5. Na-yosei. 6. Chobo. 7. Kane-ari nenki uriwa. 8. Toshi-tsugu,
9. Byu (adrift, gone)-c/ji (land). 10. Mei (name, family)-sefct (residue).
PART n. CONTRACT I CIVIL CUSTOMS.
21
received from many generations.^ This transaction cannot
be made public, so that the document bears the seal 2 of the
[seller's] relations and company only and no official seal of
the headman; still the headman is usually privy to it.
In Suruga kuni, Abe and Udo koH, if the buyer repu¬
diates 3 a contract of sale, be loses the earnest money; this
they call " losing the earnest." If the seller repudiates, be
must pay back double the amount of the earnest money; this
they call "returning double the earnest."^ When a"secret-
ticket sale "3 is to occur, and after a number of persons
have assembled the seller refuses to transfer because the
bids,6 are lower than be expected, it is customary for bim to
give a compensatory feeof varying size; [or to avoid this]
be may put beforehand in the receptacle for bids a card
called "limit card,"® containing bis own appraisal of the
property. In Sbida and Masbidzu kori, the buyer pays down
a sum of money as evidence of the contract of sale; this
sum is called " clinch-money." ® If the buyer repudiates, be
loses this ; if the seller, be pays back double its amount.
In Kai kuni, Yamanasbi kori, when cultivated, moun¬
tain or residence land, is sold, the buyer, seller, and
surety meet and agree, making out a document of sale
bearing their seals. This they band to the village officers,
who inspect the property and compare the entry in the land-
register if they find that the vendor has title to that which
be attempts to convey, the headman officially indorses
1. Buisei denrai. 2. Ka-in. 3. Haiki. 4. Tetsiike-bai kayeshi.
5. Nyu-saisu-barai, an auction -with sealed bids. 6. Baku (drop)-
latsu (ticket^. 7. Nitto-kin (lit., laborer's wages). 8. Tome-fuda.
9. Sashi-kin. Sashi is used idiomatically in numberless phrases ; the
root-meaning is "pierce" or "thrust," but the ideas of catching a
bird, joining the parts of a box, bolting a door and others are also
expressed by the aid of this word, and in the present connection the
word " clinch " seems neyly to correspond to it. But see infra,
Shinano kuni, where sashi-hoaye-kin is used, of which this may be an
abbreviation. 10. Taka-cho, 11. Nanushi.
22
PRIVATE LAW IN OLD JAPAN :
the document and hands it to the vendee. Delivery
of goods sold is made to the buyer at his house. If on the
way they are lost or destroyed, the price cannot be claimed,
because the loss is the fault of the seller. If the goods are
lost or destroyed after delivery, the buyer can in no case
cause the seller to restore the price. If the buyer refuses
to accept, he forfeits the earnest-money ; if the seller fails
to deliver, he must restore double the earnest-money. But
a compromise i is often made. In Yatsushiro kori, when
personalty is sold, the seller must deliver it at the time
agreed on; and if for some reason he fails to do so, he must
restore to the buyer double the earnest-money. Where a
[casual] sale is to be made, and the article is one whose
price is fluctuating, or one which it is impossible to sub¬
divide, a secret-ticket auction is resorted to, and thus the
thing is sold for its real value. In Koma kori, when an
article is sold and paid for and is lost before delivery, the
seller must pay the buyer an amount called " negligeiice-
money." This is invariably the case, even when the thing
is destroyed by calamity of Heaven.2
In Idzu kiini, Takata kori, in case of an auction by secret
ticket, the seller previously puts in the receptacle for bids
a " lowest-bid " ticket; ^ and if no such card is employed,
the highest bid must be accepted, no matter how low.
In Sagami kuni, Ashigaru kori, in sales of land, the
indorsement of the village olficers is necessary, as well as
the seals of the [seller's] company. There are two kinds of
transactions, a perpetual sale and a " happen-to-have
sale. In the former the owner entirely parts with 5 his right
of property, and the name is immediatelj^hanged in the land-
register.® In the latter, the intention is for the seller to buy
back the property whenever he happens to obtain enough
1. Jidan. 2. Ten-sai. 3. Shiki (spread, hence, place below or
at the bottom)(ticket). 4. Ariai-uri. 5. Hanasu. 6. Aa-
yosei-cho.
PAKT II. CONTRACT : CIVIL CUSTOMS.
23
money ; and he may do so at any time, there being usually
no fixed period; ^ hut the name in the land-register is
changed. "When the estate^ of a family is subjected to bank¬
ruptcy, or forest-timber which is the common property of a
village is to be sold, the sale is held by auction, 3 since the
sellers wish to see the selling-price enhanced, if only a little.
In case of a bankruptcy auction, it is customary for the
creditors to be present.
In Musashi laini, Saitama hon, as perpetual sales of
cultivated land are prohibited, it is customary to transfer the
right of property in them by pedigree-grant; ^ and at the
end is appended a clause acknowledging the receipt of the
price,® which is termed "compliment-money."® In sales Of
town-land, both parties file instruments bearing the counter-
seals of their companies, and when the local official has
affixed his seal, the right of property is transferred. In
Iruma kori, the perpetual sale of cultivated land being
forbidden, the right of property is transferred by means
of a mortgage with forfeiture after fixed term.'' In sales
of town-land, petitions are first filed by both parties,
the purchase-money is then handed over at the local office,
the boundaries® are examined in the presence of feudal offi¬
cials, the ward-elder puts his official seal on the instrument,
and the transfer is complete. The buyer customarily pays a
sum equal to about 6 per cent, of the price® as "headman's
feast-money."'®
In Awa kuni, Awa and Higuri kori, sales of land being
prohibited, the seller, iu such transactions, receives a grati¬
tude-fee" and the property right is transferred under the
name of a grant.'® The instrument is counter-sealed by rela-
1. Nengen, 2. Shindai. 3. Teki (coinpetitiori)-6ai (sale) or
seriuri. The Chinese characters are the same for both. 4. Yuisho-
yuzuri. 5. Dai-kin. 6. Iwai-kin (or celebration-money). 7. Nenki
shichi-chi nagare. 8. Kefkai. 9. Kai-daka. 10. Namishi furumai-
Tyo. 11. Dei-kin. 12. Yuzuri-watashi.
24
PRIVATE LAW IN OLD JAPAN :
tions and company and officially sealed by the local officials.
It is customary for the buyer to give an entertainment to all
concerned, and to borrow for the purpose a room in the
headman's ^ house, for which he pays no fee.
In Shimosa kuni, Imba kori, perpetual sales of cultivated
land being prohibited, the property-right is transferred by
a " happen-to-have " sale. This is a contract with or with¬
out limits of time, by which the property is sold and the
buyer stipulates to restore it whenever the seller is able to
pay the original price, the name being meanwhile changed
in the land-register.2 In sales of town-land, the relatives
counterseal and the local officials seal the instrument, the
permission of the feudal official having been obtained. The
buyer pays customarily one-twentieth of the price to be
applied towards the salary ^ of the headman ^ and the
company-chief.
In Hitachi kuni, Ibaraki kori, sales for a term of
years,^ as well as perpetual sales, are absolutely prohibited,
unless official consent is obtained. The would-be seller
petitions the local officials to allow a sale, alleging a need of
money to pay his arrears of taxes. The officials conduct
the tranfer, at first allowing a grant for a limited term only;
and at its expiration, if necessary, they allow the transfer to
be made perpetual. Since the reforms of the Tempo period
(1830-1844), the free sale of one-fifth of one's entire pro¬
perty 5 is allowed, but a transfer by any person owning land
assessed for less than 8 koku is forbidden. In sales of town-
land, the transaction is left to mutual arrangement, but it is
customary for' the parties and witnesses to appear at the
feudal office and have the parties' names transcribed in the
house-register.®
1. Nanushi. 2. Mizu-cho. 3. Kyu-ryo. 4. Nenkiuri. 5. Mochi-
taka. 6. Maguchi (lit., the frontage of a house)-c7to (book);
one of the town taxes was levied according to the frontage
of houses.
part ii. contract ; civil customs.
25
Tosando. In Omi ktmi, Shiga kori, perpetual sales of
cultivated land are prohibited. The transaction of a grant ^
is employed, when property is to be transferred, the local
officials sealing the document. In sales of town-land, both
parties appear at the local office, the elder and the ward-
representative counter-seal their petition,® the chief elder
gives permission,® and the property is transferred. The
buyer contributes ^ towards the ward expenses 5 a sum equal
to from one-tenth to one-twentieth of the purchase-money. ®
This sum is called " transfer-fee." ^ In Inugami kori also
perpetual sales of cultivated land are prohibited; they are
therefore effected by means of a grant or of a pledge with
forfeiture clause.® In sales of town-lands, both parties ap¬
pear at the local office, and the property-right is transferred,
after official permission has been obtained. It is the custom
for the buyer to contribute [to the ward-expenses] a sum
equal to one-tenth of the selling price.® This sum they call
"tenth-fee." In Sakata the transfer of real property
[in towns] is effected when the official seal is affixed to the
document. To show the change of owners, a paper slip is
pasted on the land-register.^i The buyer contributes a sum
equal to one-tenth of the selling-price, of which one-half is
applied to ward expenses ® and one-half belongs to the
officials. No such fees are paid in sales of village cultivated
lands.
In Mino kuni, Atsumi, Kagami, and Katagata kori,
perpetual sales of cultivated land are nominally not permit¬
ted, but they are effected by a transfer under the name of
"sale"i® merely. Sales of town-lands are effected upon
permission of the feudal official, and the buyer contributes a
sum equal to one-twentieth of the purchase-money towards
the ward-expenses.
1. I'uzuri-ioatashi. 2. GwansJio. 3. Kyoka. 4. Osamerii (lit.,
almost exactly 'put up')• 5. Cho-hi, 6. Kaidaka. 7. Cltokiri-kin,
8. Shichi-ire-nagare. 9. Baibai-daka. 10. Btiichi-kin. See Intro¬
duction. 11. Mizu-clto. 12. Uri-watashi.
26
PRIVATE LAW IN OLD JAPAN I
In Shinano kuni, Saku kori, all land, except residence-
land [in townsj, was before the period Kwansei (1789-1801)
sold by perpetual sale. But since that time ^ this has been
forbidden, and sales may be made only by making and
foreclosing a " mortgage. In sales of personalty, earnest
money (called additional money " ^ ) is paid down, a date of
delivery is fixed, and a bill of sale given to the buyer.
The seller, when the date arrives, may claim a delay of a
few days. If the price agreed upon is a fair one compared
with current rates, but the current price rises considerably
before delivery, the seller must nevertheless deliver at the
agreed price. If the buyer has received the article, and it is
destroyed before the price is paid, he must nevertheless pay.
If the article is bought in the morning at an agreed price, and
the current prices decline considerably before evening, be
must stiU accept and pay, losing the difference between the
morning and evening prices. When the buyer of realty or
personalty fails to take the property, he loses the bargain-
money ; when the seller fails to perform, he forfeits double
the amount. Where the seller wishes to have the privilege
of buying backs after several years, the document of sale
contains a stipulation to that effect. In Sakai kori, cultivated
land cannot be sold unless a petition is first made to the
headman^ of the village and his official indorsement is
obtained. But residence-land may be sold merely after
consultation with [the seller's] relatives and company. In
case of residence-land, the seller pays one-tenth or one-
twentieth of the price to the ward-assembly-office. This
forms a " coUected-fund" s which is used to relieve the
distress of any ward-member and hi? family who may fall
1. A law of the Shoguuate had already forbidden such perpetual
sales iu 1737 (II Gembun); but probably it had no force in this
region. 2. Sashi-kicaye-kin. Apparently this was over and above
the agreed price, and thus differed from the ordinary bargain-
money. 3. Kai-modoshi. 4. Nanushi. 5. Tsumi-tate-kin.
PART II.—CONTRACT : CIVIL CUSTOMS.
27
into distressed circumstances. In Mizuuchi kori, where
there is to be a sale of something which belongs to several
persons in common, secret-ticket auction is employed.
In Kodzuke kuni, Gumma kori, in sales of cultivated
land, the document is sealed by the [seller's] relatives and by
the headman,^ and the names in the land-register^ are
changed, the feudal official not being concerned at all. There
is a prohibition against sales of town-land, and it is the
custom to make transfers (the permission of the feudal offi¬
cial being first obtained) under the name of " good-wil^
grant. "3
In Shimotsuke kuni, Kawachi kori, public sales ^ of
cultivated land are not permitted, and transfers are effected
under the name of "pledges forfeitable after a term ".® Some¬
times a contract is made by the buyer that the seller may
take back® the land upon payment of the original price
whenever he obtains enough money, no matter after how
many years. In sales of town-lauds, the ward-officers affix
an indorsing seal to the document. The custom is that the
buyer shall contribute to the local office a sum equal to
one-tenth of the selling-price, as a tee ;so that usually
the document recites a smaller sum than the real
price paid.
In Iwaki kuni, Shirakawa koii, the perpetual sale of
cultivated land is not allowed; and, although the law has been
evaded by means of the forfeitable-pledge, until recent times
the relation of the seller usually contrived, by redeeming
before forfeiture, or otherwise, to preserve the land in the
family. In the case of town-lands, there is a title-deed® for
each piece of land, and the seller, at the time of a sale,
merely adds the necessary words and delivers it to the
1. Nanushi. 2. Nayosei-cho. 3. Yoshimi-yuzuri. 4. Kozen.
5. Nenki shichi-nagare. 6. Tori-modosu. 7. Tesuryo (trouble-
money). 8. Vriwatashi-shomon (lit., sale-deed).
28
PRIVATE LAW IN OLD JAPAN :
buyer. [The buyer] contributes an amount equal to one-
tenth of the selling-price! by way of fee.®
In Iwashiro kuni, Shinobu kori, perpetual sales of rice-
field and upland are forbidden. The owner who wishes to
sell transfers the land by " pledge with 10 years' forfeiture,"
and after 2 years transfers his entire right in the land. In
sales of town-lands, a rule obtains which permits the buying
back within 2 years on payment of double the seUing-
price; ^ when that time has expired without payment, the
entire right is transferred. The feudal official must be
informed in case of town-land sales. In Aidzu kori, in
sales of town-lands (which are called "perpetual sales"), a
single document is filed, bearing the counter-seals of both
parties and their companies. The officials then change the
names in the house-register ^ and transfer the right of
property. In the case of cultivated land, the law nominally
forbids either sale or gift; but sales are effected by means
of perpetual pledge ; ® tbere is no such term as " forfeiture
pledge." The object of the prohibition is to prevent the
accumulation of large properties in single hands.
In Kikuzen kuni, Miyagi kori, when a house or resi¬
dence-land is to be sold, the instrument of sale is sealed by
the seller, his company, two of his relations, and the head¬
man,® and the instrument is given to the buyer. Cultivated
land cannot be sold independently of the residence-land to
which it is attached. Horses may not be sold without a
tag,'! a mark of ownership which the seller must have
received from the town-magistrate. When personalty is to be
sold, there are two methods in regard to its delivery, depend¬
ing on the nature of the article, one called " sale with
1. Uri-daka-kingaku. 2. Tesuryo. 3. Baikin kai-modoshi.
4. lye-cho. 5. Yeitai-shichi-chi. 6. Nanushi. 7. Han (seaXj-kwan
(impress); this was done upon a wooden tag, and one tag went with
each horse. The han-shi (paper was a similar pasteboard tag.
PART II. CONTRACT : CIVIL CUSTOMS,
29
delivery",! the other "sale without deliveryBy the
former, if the article is destroyed before it reaches the
seller's hands, the huyer is responsible ; and if the time of
delivery and payment is agreed on and the buyer fails to
accept and pay as agreed, he loses the earnest-money.
So if A contracts to sell to B 200 bales of rice and the day
of delivery and payment is fixed, the seller must deliver it
on that day. If he fails to, he must restore double the
earnest-money. In Toda koH, perpetual sale of cultivated
or residence-land is prohibited. Cattle may not he sold
without a tag,3 which is the evidence of ownership ; if this
is not observed, the transaction is null, and both parties are
punished as evil-doers.^ This tivg is known as " horse-
number tag, "5 and for each one a tax of 100 mon is col¬
lected. If A sells a horse to B, he has the official in his
village substitute B's name on the tag. B then goes to the
headman of his own village, and has the contents of the tag
copied into a book called the " register of stables ".® Other
personalty may be sold without restriction.
In Rikuchu kuvi, Isawa kori, in sales of real property,
the parties first procure the assent of the local officials and
wait until an order for land-partitioncomes from the
feudal official. A petition® is then filed,® the right of
property transferred, and the names changed in the register.
Before the partition-order can be made, the local officials
must make an entry of the transaction and charge the
buyer with taxes in kind and labor-services.!!
1. Todoke {send)-watashi (transfer) 2.1 (stand stilVj-icatashi
(transfer). Nothing is said as to the latter sort of sale. Presumably
the buyer took delivery at the seller's house. 3. Hanshi. 4. Do.
But the exact meaning of the word is hard to trace. 5. Koma-kiichi
hanshi. 6. Vmaya-mototfio. 7. Taka-wake—that is, a setting-off of
the parcel sold. 8. Todoke-sho. 9. Sashidasic. 10. Nengu.
11. Shoyaku.
30
PRIVATE LAW IN OLD JAPAN :
In Uzen huni, Tagawa kori, sales of house-land in
towns are made after obtaining permission ^ of the feudal
official. Perpetual sales of rice-field, upland and forest land
are not permitted, and a sale is effected by means of an
instrument purporting to be a pledge for a fixed term, a secret
agreement 2 of sale being made in a subsidiary instrument.3
The parties wait for the last year of the term and allow the
land to become forfeited.^ But when a piece of land owned
and cultivated by a farmer from another village® is sold to
the village in which it is situated, there is invariably an
express stipulation for a perpetual privilege of re-purchase.
In Okitama kori, when a perpetual sale of residence-land®
is contemplated, the buyer and seller consult, and the
former makes out a document reciting: "I buy this land from
so-and-so, the price being so much, and I request that official
indorsement be given." The seller then takes this document,
and sends it, together with the deed of sale'' which he is to
give the buyer, to the bailiff.® The latter indorses them,
and makes the following entry in the land-register:® "This
land was sold by B to A on such a day of such a month in
such a year," and cancels the name of the seller in the
register, substituting that of the buyer. If this procedure
is not employed, the buyer cannot subsequently bring suit to
enforce his right, in case a third party claims the land. But
the mere sale of one's residence-land does not involve the
transfer of the seller's family-name,i® unless special report
is made to the headman and sanction received. Unless this
sanction is given the seller is still bound to pay taxes on
the house,even though he thinks that his family-name has
1. Ninka. 2. Nai-yaku. 3. Soye-sho. 4. Byu-chi. 5. Ntju-
saku or iri-saku (enter-cultivation), because the former village is
entered by the owner from without its precincts. 6. Yashiki-chi.
7. Vri-ieatashi-$hosho. 8. Kendan. 9. Mizii-cho. 10. Ko-mei,
11. Ka-zei.
PART 11. CONTRACT : CIVIL CUSTOMS. 31
been transferred and that he is no longer subject to taxes as
a householder. But the perpetual-sale of residence-land is
allowable only when the buyer is a member of the same
village. Cultivated land may be sold for a period not longer
than 10 years, and forest-laud for 20 years. Where the
seller is the one who made the olfer,^ and he breaks the
contract, he restores double the earnest-money; where the
buyer made the olfer and breaks the contract, he loses the
earnest-money. Where the seller of personalty wishes,
some years afterwards, to buy it back, and the buyer agrees,
the former must restore besides the price received, a sum
equal to the earnest-money and any incidental loss. When
residence-land is to be sold with the privilege of buying back,
the buyer makes a document evidencing this and deposits it
with the headman. The rules as to sales of residence-land
by feudal retainers are peculiar. Such property is a gift
from the lord, and so cannot be sold. But the same object
is accomplished by a restoration of the land to the lord by its
possessors, while the intending buyer petitions for it to be
assigned to him, alleging that he possesses no residence-land.
But this can be done only where the buyer is a retainer of
the same lord, not where he is a commoner or a retainer
of another lord. The sale of houses, however, by retainers
is permitted, as they are supposed to have erected them.
In Ugo huni, Akita kori, in sales of [town] land, the seller
gives to the buyer an instrument of sale sealed by the seller
and a middleman,^ and when the transaction is completed,
notice must be given to the ward-representative,^ that the
name of the owner may be changed in the land-register ; ^
the ward-representative notifies the headman,® who enters
on the register by pasted slip the date and the name of the
buyer. In the sale of a house only, a similar instrument is
given to the buyer, but notice to the ward-representative
_
1. Sloshi-ide. 2. Naliadachi. 3. Machi-dai. 4. Mizu-cho.
5. Shoya.
32
PRIVATE LAW IN OLD JAPAN.
and the headman is not required. But when the buyer
moves into the house, he observes the usual procedure [as
to notifying a change of residence]. When [in villages] a
perpetual sale is to be made of cultivated or forest land, the
instrument must contain the seals of the seller and his
surety 1 and the official indorsement of the headman,^
except that in sales of forest laud, the instrument need not
specify the area ^ nor contain the headman's indorsement.
Gold, silver, copper, and such valuable metals are not to be
sold privately; ^ a petition to the local official 5 must be
made. But such sales are without restriction where the
metal is in the shape of a manufactured article. Sales of
weapons, however, to men in other provinces® are pro¬
hibited. Horses may not be transferred by private sale.''
Hence it is only through horse-dealers that sales of horses
may be made, since they alone get for their horses the
necessary tags ; ® these they receive from the feudal ® office
in return for the trade-tax i® which they pay. Earnest-
money is usually one-tenth of the price agreed on. The
parties agree on a day. for delivery and paymeut, and the
seller usually takes the goods to the place of delivery. If
before delivery they are destroyed, the seller bears the loss.
When land is sold, the parties meet with their companies,
their neighbors, and the ward-representative, at the site;
the ward-representative compares the laud to be sold with
the eutry in the land-registernew stakes are driven in
at the four boundaries, and tbe land is handed over.'® The
expenses of the examination are paid by the seller, unless
they specially agree to the contrary. In sales of land or
houses, it is sometimes agreed that ^he seller, may buy
back the property after a certain number of years, ou pay-
1. Vkeai-nin. 2. Kimoiri. 3. Tantbetsu. 4. Watakushi ni.
5. Kakari-yakusho. 6. Kokii. 7. Sotai-baibai. 8. Kwansatsu.
9. Ilan. 10. rci-(carry on)-jyo (business)-zef (tax). 11. Mizu-eho.
12. Sakai (boundary)-fcai stake). 13. ITke {receive) watashi (deliver).
past ii. contract : civil customs,
38
ment of the original price with interest. This is usually
evidenced by a document.
Hokurokudo. In Wakasa kuni, Onifu kori, although
open perpetual sales i of cultivated land are forbidden, the
parties arrange such sales between themselves, and have the
names changed in the land-register,2 leaving the original
entry therein untouched in other respects. In sales of re¬
sidence-land in towns, the buyer receives the instrument from
the seller, reports the transaction to the feudal official, and
has the proper correction made in the land-register 3 at the
local office.
In Echizen kuni, Asuha kori, sales of rice-field, upland,
and forest-land are nominally forbidden, and the transaction
takes the shape of a pledge for a fixed tei m. The instrument
evidencing the transfer is called " principal deed," and is
delivered to the lender with a " hand-ticket."^ At the ex¬
piration of the term the seller receives an additional sum,®
delivers a deed of quittance,® transfers the right of property
and has the names changed in the land-register'^ at the local
office. In sales of town-lands, both parties appear at the
office of the town-magistrate,® contribute the one-hundredth
part of the selling-price® as " thank-money ",i® and have
the names changed in the land-register.® In Tsuruga kori,
although perpetual sales of cultivated land are not permitted,
it sometimes has happened in villages, since the period Horeki
(1751-1768), that persons effect complete sales between
themselves, by means of a deed of perpetual-grant, the
transaction being superintended by the local official alone,
and not reported to the feudal official, and the names not
being changed in the land-register.In the tax-book of
1. Kozen-yeitai-baihai. 2. Nayosei-cho. 3. Mizu-cho. 4. Tefuda,
5. Mashi-kin. 6. Uri-kiri (sell-finish, i. e. final release).
7. Taka-cho. 8. Machi-bflyyo. 9. Vri-daikin. 10. Myoga-kin
11. Nayosei-cho.
3
34
PRIVATE LAW IN OLD JAPAN.
farmers^ annually presented to the feudal official, the
entry is made that land of A's, (the original proprietor)
assessed at so much, is under the control^ of B, the new
proprietor ; and the feudal official does not make objection.
Ill Koshi Aon", sales of cultivated land being prohibited,
a transfer is effected as follows : The seller ® seals aud the
headman,* company-chief, and inspectors counter seal a
document reciting, in substance, that he is unable himself to
manage this part of his possessions,® that he offers it to the
feudal lord, that the latter has graciously bestowed on
him so many ryo'^ as benevolence®-money, which he has
assuredly received, and that he will make no opposition if
afterwards the control ® be given to another person. On
the back of the instrument is a memorandum-slip, contain¬
ing the buyer's name ; this the feudal official takes, and an
indorsement of consent to the request of the gi'antor is
made, with an order that the person named in the slip shall
be given the control of the land. The instrument is sent
1. A'oB!ar/e-(small farmers)(tax in ]iind)-c7iO. Komaye in
local documents is often used in contrast to cho-byakusho (chief
farmers or landlords), and would in that case perhaps indicate the
tenant class. But there seems to have been a flexibility in the use
of these and similar terms, and in the present case it may designate
the entire body of farmers. The komaye possessed their own
houses, and gained a livelihood by cultivating patches of land hired
here and there. Probably in some cases they fonned the whole
population of a village, and hence, as in the present case, the
land-register would come to be called komaye-cho. Such a case would
naturally happen where the land-owner lived at a distance, owning
a large territory; hence nengu, strictly tSe feudal rice-tax, some¬
times is applied (and perhaps here) to ordinary rent, the landlord
occupying such a superior position as to bring the word nengu into
use by analogy. 2. Shihai. ' 3. Hon-nin (principal party). 4. Shoya.
5. Yokome. 6. Mochi-hun. 7. The unit of coinage corresponding to
the dollar. 8. Te (hand)-afe (touch), signifying derivatively, among
other things, any kindness belowed by a superior on an inferior.
9. Shin-tai (lit. advancing and retreating).
PART II.—CONTRACT : CIVIL CUSTOMS.
35
back and the sale is completed. Land thus transferred is
called " olfered-up land." ^ In sales of houses and resi¬
dence-land in towns, no petition to the feudal official is
necessary; there is merely a change of the parties' names
in the land-register 2 by the local officials. There is in
this district no such thing as an auction, by either secret or
oral bids, of land in connection with private transactions.
The ordinary auction is used only at bankruptcy sales, and
the secret-ticket auction only in case of confiscation ^ by
the feudal lord of land ^ given to the headman ® as salary.
In Kaga kiini, Ishikawa kori, the permission of the
ward-assembly must be obtained for sales of houses and
residence-land in towns. Cultivated land in villages may
be sold, but only in the following mode. The seller makes
out a document sealed by bimself, a surety, and a witness,
and gives it to the headman.® The latter sends it to the
" new-lands superintendent,"® who indorses and returns it^
the headman keeping it in his possession. The head of a
family may not transfer his land until he reaches the age of
20. No man may sell all his realty; so, even though he
becomes bankrupt, the creditors must leave him a piece o^
land assessed for 2 s/id. This plot is called " nominal
property."'' In towns the house may be sold, though not
directly to a non-merchant.® Such a one, if he wishes to
buy directly, must pay an extra commission of 20 per cent
of the price to the merchant [who would have been the
middleman].® Horses and cattle may not be sold unless
through the medium of horse-dealers.'^® New rice may not
1. Sashi-age denji. 2. Miziicho. 3. Kwan-hotsu. 4. Kyu-chi.
5. Ri (village)-sei (arbiter). 6. iTat-fnewly open)-saiu (cultivation)-
bugyo (magistrate). 7. Na (name)-ta/ca (assessed amount of pro¬
perty). 8. Shirotu (white-person). This term was applied by those
within a guild or class ly those without, and means in general
" outsider." 9. Compare supra, Kawachi kuni, Kawachi kori.
10. Uma sho, hakxiru.
86
PKIVATE LAW IN OLD JAPAN :
be sold until the tax-rice has been paid, unless by permis¬
sion of the headman.1 These are regulations of the feudal
office.2 When vessels are sold, the parties exchange
receipts ,3 and when au inspection is made by the official,
to collect the ship-taxes, these documents are recorded.
Wheu anything like rice or wheat is sold, the price of which
is constantly fluctuating, and a date is fixed for delivery,
the following rule exists : if, for example, the whole price
amounts to 100 ryo, and 20 ryo of earnest-money is
paid, the remaining 80 ryo to he paid on delivery, the
buyer may withdraw from the contract, if the current
price for the whole amount falls below 50 ryo at time
of delivery, though he forfeits the earnest-money. But if
the total price at current rates rises to 150 ryo, the
seller may withdraw, restoring 40 ryo to the buyer as
penalty. There is a transaction called " sale by sample," *
in which the seller engages to sell au article of a certaiu
class. He gives a sample to the buyer, and the latter pays
earnest-money. If ou delivery the quality of the goods
given is not equal to that of the sample, the buyer may
refuse to accept or may demand a reduction of the price.
This is apparently not a very satisfactory transaction [as it
offers opportunities to dishonest buyers], hut in this region it
is very frequent, though, to he sure, a failure to equal the
sample is rare. Cultivated land is usually sold on condition
that the seller may buy it hack after 5 or 10 years ; when
the time arrives, the original price only, without interest, is
paid, for the buyer has had the benefit of using the property.
In Kawakita kori, cultivated land and residence-land may
not he sold by area, hut only by ass^sed production. This
production-amount is called the " portion-production ",5 the
owner is called " portion-person ",® the buyer, " taking-
1. m (village)-set (arbiter). 2. Han. 3. Kenjo (evidence-paper).
4. Mihon-akinai. 5. Kiri-daka. The exact sense of kiri here is,
however, not entirely clear. See Yamato kuni, supra. 6. Kiri-te.
PABT II.—CONTRACT : CIVIL CUSTOMS.
37
person," ^ and the price, " gratitude-money." 2 When land
is to be sold, the owner prepares a document sealed by
himself, his surety, the buyer, the village oflScers, and
those of the five nearest villages; this is presented to
the headman of the district,^ who compares the land with
the register, and if all is correct, seals the instrument, and
delivers it to the " new-land magistrate," ^ who also seals
it. In Nomi kori, when it is desired to sell residence-land
[in towns], the owners notifies his company, and if no one
of them desires to buy, then it may be sold to others.
The seller prepares an instrument bearing the seals of
himself, the buyer, the witness to each, and the company of
each, and this is sent to the ward-elder, who returns it to
the buyer, after indorsing it. Where a house, or an article
made with money contributed by a number of persons, is to
be sold, ordinary auction or secret-ticket sale is employed.
Notice of the sale is given to the merchants interested, and
they assemble for the purpose. In an ordinary auction
each article is sold separately, but in the secret-ticket sale
one bid is made for the entire property to be sold. In
Yenuma kori, if the buyer refuses to receive property
contracted for or asks for delay, he must pay interest on the
price. Earnest-money is paid when the bargain is struck ;
and if the seller fails to deliver as agreed, he must restore
twice the earnest-money. Where a stipulation for re-pur¬
chase at a given time has been made, this may be done on
repayment merely of the original price received, provided
it is done within three days of the time fixed ; if later than
that, interest must be added.
In Noto kuni, Hoshi kori, horses under 2 or 8 years of
age may not be sold without special permission. In Suzu
1. Tori-te. 2. Eei (gratitude)-)nai {rice)-dai (price)-fcin (money).
3. To (ten)-mura (villages^. Apparently there had once been an
officer over every 10 villages ; hut here the number is 5 only.
i. Kaisaku-bugyo.
88
PRIVATE LAW IN OLD JAPAN.
Itori, wheu a contract of sale is made, the agreement may be
made that the goods may be sold to any one else who may
offer a higher price before the time fixed for delivery. If
by agreement the seller may within a certain number of
days repurchase it from the buyer, and at the time appointep
ho fails to do so, the buyer is no longer bound to restore it.
But such transactions give a one-sided advantage, and are
not usual.
In Ecliu Iciini, Imizu kori, sales of shares ^ in the wine-
dealers, or otlier trade-guilds, or of cultivated or residence
land are permitted only after petition to the feudal oflSce.
In Nei kori, sales of realty may not be made without indorse¬
ment of the local ofiicials. In Tonami kori, when the title
has passed to the buyer, the former owner cannot buy back
the property, unless there has been an express agi'eement to
that effect. In auction-sales, a regularly-licensed dealer in
furniture is the manager. ^ Notice of the sale is given before¬
hand by him to other merchants. The person offering the
highest price becomes the owner, and the manager of the sale
receives a double commission ^ of 8 or 4 per cent of the price
from both seller and buyer.
In Echigo kuni, Kambara kori, where residence-land
[in towns] is to be sold, the seller comes to an agreement
with the buyer, and tbe latter then gives a temporary instru¬
ment^ to tbe former, also paying earnest-money. The
seller then sends the petition of sale, with the title-deed,
to the ward-representative. The latter changes the regis¬
ter in the ward-assembly-of&ce, officially indorses the title-
deed, and sends it to the elder and the headman.® These in¬
dorse it and return it to the seller,* who hands it to the
buyer. Where temple-land is to be sold, the procedure is as
above, but the consent of all the parishioners^ must be
1. Kabu. 2. Seri-oya. 3. Ko (mouth)-sen (fee). 4. Kari-shosho.
5. Ko-ken-jo. 6. Kendan. 7. Ujiko. For the etymology of this
word, of. Satow, in Trans. Asiat. Soc. Jap., vol. III., App., pp. 80-82.
PART II. CONTRACT : CIVIL CUSTOMS.
39
obtained. In Kubiki kori, if residence-land is to be sold,
the owner must first notify his company and the neighbors
on each side,^ and if no one of them desires to buy, it may
be sold to some other person of the same or perhaps another
block. Perpetual sales of houses or residence-laud are
allowed in towns only. The proceedings begin by the
seller and the buyer (the latter, if he is under some other
headman, must bring a certificate from him) going to the
headman 2 and asking for permission. This granted, the
seller makes out a petition bearing his own seal and his
company's, and takes it to the headman. The latter
prepares a sale-title-deed,^ has the vendor and his company
seal it, seals it himself, and sends it to the elder. This one
ofScially indorses it, and sends it on to the town-magistrate,
who adds his seal,* and returns it to the elder, and the elder to
the headman, who calls hoth parties before him, when pay¬
ment is made and the property handed over. The parties may
agree that after a number of years the seller may buy it
back, or that the buyer is not to re-sell it to any one but
the seller, the stipulation being expressed in an instrument.
But the officials have nothing to do with this instrument,
and it bears no official indorsement.
In Sado kuni, Sota kori, sales of cultivated land are
nominally prohibited. For the purpose of a sale the instru¬
ment is drawn up for a 10-year pledge,® and on failure of
the debtor to redeem® at the expiration of the term, the
land is forfeited, and the sale is thus complete. There is
however, another method of sale, called " good-will grant," 7
in which the seller delivers an instrument purporting to
grant without consideration,® and agrees in a subsidiary
document that after receipt of a reasonable price (the literal
term being " money to buy wine " ®), he will perpetually
1. Ryo rin. 2. Nanii^hi. 3. Bai-ken-shosho. i. Hyo (exterior)-
iho (seal). 5. Jiklianen-mai-nenhi-shichi-chi. 6. Uke-modosu.
7. Yoshimi-yuzuri, 8. Mu-dai-ka. 9. Shu-dai-kin.
40
private law in old japan :
refrain from disputing the title. In sales of town-lands a
direct transfer of the ordinary sort is made.
Sanindo. In Tango kuni, Kasa kori, perpetual sales of
cultivated land being forbidden, a sale is effected under the
name of " grant for a term of years," and if at the end of the
term, the seller does not buy back, he surrenders all his
right to the property. In some villages a memorandum-slip
is attached to the land-register ^ entry during the term, and
at its expiration a new entry is made in the register. In
sales of residence-land in towns there is no special proceed¬
ing other than the change of names in the land-register.®
In Inaba kuni, Omi kori, there is no prohibition of sales
of cultivated land ; the local officials change the names in the
land-register 1 and the propert3'-right is transferred. In
sales of town-lands, the permission of the feudal official
must be obtained, and when the annual revision of the land-
register® takes place, [the buyer] contributes a sum equal
to one-tenth of the [assessed] value of the land (not of the
actual selling price).
In Idzumo kuni, Shimane kori, when residence-land is
to be sold, the seller petitions the authorities, making out
3 copies of the ins trument, which contains the seals of the
seller himself and his company, and the official indorsement
of the ward-elder. One of these is given to the buyer, and
the other 2 to the feudal office and the chief-official-of-
sales.® The seller then appears in full dress* before the
town-magistrate, who gives him a document called " sale-
title-deed." 5 By a law of the fief [perpetual] sales of
cultivated laud and forest land [in villages] are not officially
recognized. The transfer is therefore accomplished by
making a sale for 10 years, the price mentioned being so
high that redemption in that time is impossible. The
1. Nayosei-cho. 2. Ytzu (map)-cfco, probably a book showing the
boundaries, etc., of each piece of land. 3. Baiken-jokwan. 4. Rei-fu
(that is, with haori and hakama). 5. Baken-jo.
PAAT II. CONTRACT : CIVIL CUSTOMS. 41
headman 1 assumes that redemption will be impossible,
and as soon as tbe transaction is finished, changes the
name of the owner in the register of sales.^ The
sale is made by means of an instrument bearing the
seals of the seller, his company, and the headman, and
handed to tbe elder. In the 8th month of every year a
revision is made of the land-register (kept by the ward-
elder, and containing the extent and location of each plot of
land), and the transactions of the year are noted therein.
Forest-laud and houses may be sold in perpetuity without
the above procedure. Where goods are lost or destroyed
while being transported to the buyer, the seller is respon¬
sible, aud so caunot claim the price. The buyer pays at
the time of the bargain so-called " contract-money^ if
he breaks the contract, he forfeits this ; if the seller breaks
it, he must restore double the amount. In auctions a
"lowest-ticket"^ is made out, containing the lowest price
at which the owner will sell. If, when the bids are opened,
the highest price ofiered is lower than the one so fixed, the
owner may decline to sell. If another person [afterward,
but before delivery] wishes to buy tbe article, he must
give to the buyer an amount equal to one-tenth of the price
which he pays the seller. In Uwonuma koti, when up¬
land or residence land [in towns] is to be sold, the seller
makes out and seals an instrument, which recites that the
property is sold in perpetuity and that the descendants of
the seller shall never object to the transfer. This is given
to the elder and the chief-elder, and after their official
indorsement, the feudal-official ® (of the Chishima and
Kitajima fiefs) indorses. Sales for terms of years of such
property are forbidden. In sales of houses the indorsement
of the feudal-office is not necessary. The instrument
always contains the following clause: "If [before delivery]
■ ^ - _
1. Sh^a. 2. Bai-ken-hikaye-cho. 3. Yakitjd-kin. 4. Shiki-
fuda. 5. Jo-kwan.
42
PRIVATE LAW IN OLD JAPAN,
the property is destroyed by calamity of Heaven or is taken
for public purposes,1 the seller is not responsible." In
sales of personalty, a private document 2 alone is necessary,
and sometimes an oral agreement 2 only is made.
In Nomi kori, when an article sold turns out to be not
as contracted for,^ the buyer may refuse to take it, without
forfeiting bis earnest-money. Where realty is sold, and
the seller has some reason for wishing to buy it back at
some time, the sale is made for a term of years; this is
stated in the instrument of sale, and the transaction called
an " agreement for the return of the original." ® If at the
time fixed the seller cannot redeem, the buyer's ownership
becomes perpetual. While the condition remains in force,
the seller pays all the taxes.
In Iwami kuni, Sbima kori, cultivated, forest, and
residence laud are forbidden to be sold, and hence only
pledges of such may be made. When it is desired to sell
such property, the owner makes out an instrument sealed
by himself and his company, naming the sum (which is in
fact too high for a pledge) and fixing the term as one year.
When the year elapses and be does not redeem, the land is
called " forfeited-land,"® and the buyer becomes the owner
There is no prohibition of the sale of bouses or personalty,
nor is the indorsement of the village or ward ofiicers needed.
When personalty is bought and received, and it is destroyed
by the buyer or lost or stolen before be has examined it to
see whether it is of the agreed sort, the buyer must pay the
fair value. If the article proves to be not as contracted
for, the buyer cannot demand the rg^storation of the price
paid, if the seller was not the maker and did not know of
1. Kd-butsu. 2. Aitai (face to face alone, without others' inter-
vention)-»/!Os/io, i. e. no report and official indorsement are required.
3. Kuchi yakusoku. 4. Gan (spurious, counterfeit)-zo (make).
5. HonmoUu (original or principal thing)-iayesfii (return) no yaku-
toku. 6. Nagare-chi. 1. Gan-zo.
part ii. contract : civil customs.
43
tbe defect. In Naka kori, when sales of cultivated or
residence land are made, the sale is in perpetuity. The
instrument is sealed by the seller and by some relative as
witness, and contains the following clause : "I hereby sell
the above property, and neither I nor my descendants may
hereafter raise objection to this transfer." In towns the
inspector 1 aud in villages the headman, ^ must indorse.
This indorsement is called "evidential-seal ;"3 and a " divided
seal" * is also added to the register and the vendor's instru¬
ment of sale. In sales of cultivated land, the seller may
always take when ripe the crop that he has planted, even
though the buyer has already paid the price.
Sanyodo. In Harima kimi, Shikito kori, in the case
of houses aud residence land in towns, private sales® are not
permitted. The custom is for the ward-elder, on petition,
to announce through the ward that the land is for sale and
to dispose of it by secret-ticket auction.
In Mimasaka kiini, Nishihojo kori, in towns, when one
desires to sell residence-land, he must first consult his
company. If no one object, he petitions the elder and chief
elder, who officially indorse the instrument, and then asks
the permission of the town-magistrate. This given, the
buyer receives the land, pays the price to the seller, and
gives to the town-magistrate one-twentieth of the price as
a fee.® In Katsunami ko7-i, when cultivated land is sold, the
seller makes out an instrument sealed by tbe headman,'' the
company-chief, and the farmers' representative; these are
called the " three seals of the village ofiicers."® But rice-
land or upland may not be transferred in perpetuity; a
"third-month sale"® or "term of years sale"'® is usually
1. Moku-dai. 2. Shoya. 3. Ken-in. 4. Wari-in,-a. seal so im¬
pressed that part remains on one document, part on another, thus
oSording a test of genuineness. The expedient is similar to that
implied in our term " iirienture." 5. Aitai-uri. 6. Tesu-ryo.
7. Shoya. 8. Murayakunin no sampan. 9. Sangatsu-uri. 10. Nen-
gen-uri.
44
PRIVATE LAW IN OLD JAPAN.
made. In the former, the transaction takes place in the
third month of the year, and in the third month of the
succeeding year the seller restores the price with the interest
and receives back his land. In the latter, a term of years,
usually 5 or 10, is fixed on, and at its expiration the seller
buys back the land. Forest-land may be sold in perpetuity,
hut the "three seals of the village oflScers must be
obtained.
In Bizen huni, Kamimichi koH, in sales of cattle and
horses (hut not of other personalty), there must be an
instrument sealed by the headman.
In Bigo kuni, Fukatsu kori, in sales of cultivated land
in villages, the seal-chief ^ counter-seals and the headman 3
and the company-chief ofiicially seal the instrument, entries
of all sales being made in the land-register ^ at the time of
the annual revision in the fifth or sixth month. In sales of
houses and residence-lands in towns, the headman ® draws
up the instrument, the parties appear with the company-
chief® as witness, and seal the instrument. The names are then
changed in the land-register ^ in the presence of the parties.
In Mitsuki kori, there is no prohibition against perpetual
sales of cultivated land in villages. The headman ® affixes
an indorsing-seal to the deed of sale, and at the regular
revision of the land-register^ changes the names of the
parties. In sales of houses and residence-land in towns,
the seller files a petition, as well as the deed of sale, at the
local office, and the elder then affixes an indorsing seal. At
the time of the annual revision 8 of the register the parties
and the witnesses appear at the town-magistrate's office and
1. Miirayakunin no sampan. 2. Hangashira (the chief of the
5-men company). 3. Shoya. 4. Nayosei-cho. 5. Shuku (a post-
town)-ro (elder). Here the word has some special local significance.
6. Tsuri (hooking, &shwg)-gashira (chief). Tsuri here leaves us
without a clue ; but the word seems equivalent to kumi gashira.
7. Ken-cho. 8. Cho (book)-/(iri {er&se)-aratame (revise).
PART II. CONTRACT : CIVIL CUSTOMS.
45
seal [the register] in the presence of the officials, and the
names are changed in the house-register.^
In Aki kuni, Numata and Aki kori, in sales of cultivated
land in villages, the seller delivers his " tmbo ^ memorandum "
to the local officials, and the latter, making out a new one,
deliver it to the buyer and change the names in the land-
register.3 In sales of houses and residence-land in towns,
both parties file petitions, and the local officials, adding an
attestation seal, forward them to the feudal oflncial; then
both parties seal in the presence of the feudal ofiicials, and
the proper change in the register is made. It is the
custom not to permit the wearing of full dress by others
than owners of houses or residence-land, and the buyer, at the
time of the sale, puts on a new full dress suit, and some¬
times the seller strips off his own.
In Suwo kuni, Tsuno kori, the perpetual sale of cultivated
and residence-land is forbidden by a law of the fief. A
transfer is therefore made for a term of years (usually 10 or
15), and during the term the buyer takes the profits. The
instrument recites that if the seller repays to the buyer the
price, with interest, at the end of the term, the property
will be restored; but if the seller cannot repay it, the
property will be transferred into the buyer's name. The
transaction is reported to the elder or the balks-headman,^
and the instrument bears the seals of the seller and his
company. In the sale of forest-land, the same procedure is
followed. In Kyuka kori, where an article sold is destroyed
before delivery, the seller is obliged to deliver another
article in its place or to make up the loss, whether the
article was destroyed by calamity of Heaven or otherwise.®
Where the article is bought and delivery taken and cash
paid down at the time, the buyer cannot complain that the
1. lye-cho. 2. Tsubo, a superficial measure about 6 feet square.
This paper certified apparently to the area of the piece of land.
3. Mizu-cho. 4. Han (balk)-to (chief)-s/ioya. 3. That is, perhaps,
if the price has been paid by the buyer.
46
PRIVATE LAW IN OLD JAPAN.
article is not as contracted for,i because it is bis own
short-sigbtedness.2 But where the defect 3 is discovered
before delivery, the buyer may refuse to accept. In
Yoshihiki leori, earnest money is always paid ; if the buyer
refuses to accept, he forfeits this; if the seller does not
deliver, he restores double the amount. Where a share
in the wine-makers' guild is sold, a term of 10 or 20 years
is usually fixed; and at its expiration the original owner
may buy it back by paying the price received. Two
copies of the instrument of sale are made, one being given to
the manager ^ of the guild, the other to the buyer. The same
practice as to buying back exists in sales of cultivated land.
An instrument is made out, bearing the seals of the parties
and the official indorsement of the balks-headman.® The
seller gives one of these to the buyer, and the buyer gives
one to the seller. The seller is not obliged to pay interest on
the price when he buys back, because the buyer has had the
opportunity of using the thing sold, even though he may not
in fact have earned a profit from it. All otlier sales are
made by written instrument, as above, except sales of
personalty of minor importance. When secret-ticket auction
is held of houses, cultivated land, or other realty, notice is
posted, 15 or 30 days beforehand, at the cross-roads,® or
other place where people gather. Before the day appointed,
the seller usually makes out a ticket naming a price, so that
he need not sell below that price.'' This is called " lowest-
ticket." When the tickets are opened, if none of them
reach the price named, he may refuse to sell. But unless
he makes out this ticket beforehand, he must sell to
the highest bidder, no matter how low the figure. The
proceedings in an auction of personalty are the same as
1. Gi-brttsit. 2. Me (eyes) no yuki-todokamr {not far-reaching).
3. Ganzo. 4. Todori. 5. Hantd-shdya. 6. Yotsu (four)-tsiy£ (forks
of a road). 7. The idea seems to be that the owner puts in a bid
for his own property, the effect being to fix a minimum bid.
part ii.—contract ; civil customs.
47
for realty, except that the seller offers wine to the assembled
bidders. This is an established custom, and the object is
to induce them to ofier higher prices.^
In Nagato kuiii, Toyoda kori, cultivated or forest land
may be sold with a stipulation as to buying back. A term
is fixed, usually 10 or 20 years, and at its expiration the
seller is to return the price received, or the price with
interest, or some other amount, according to agreement of
the parties. The stipulation is contained in a separate
instrument which the buyer makes out, bearing his seal
and the official indorsement of the headman.^
Nankaido. In Kii kuiii, Nakusa and Abe kori, in sales
of real property in towns, both parties report their wishes
to the ward officials in a deed-of-hand.^ The latter then
make this known at every door in the ward and inquire
whether there is any one who will buy at the price named
in the deed-of-hand, and if no acceptor is found, they report
at the ward-assembly office. The ward-assembly officials,
after examining the land-register,^ report to the feudal
official that there is no irregularity, and the latter summons
the ward officials and order them to permit the sale. They
change the names in the register and the property-right
thus passes. In villages, the sale of re.il property is
forbidden, and a transfer is effected only by means of the
conditional sale known as " return of the original price." ®
In Awaji kuni, Tsuna kori, cultivated land may not be
transferred to any but relatives or company-members. The
price is required to be paid in rice ; and even if in fact
money is paid, the instrument which the seller makes out
must recite that the price was so many bales or so many
koku of rice. The term of sale is usually 5 years, and at
1. But the same motive would apply to sales of realty. Perhaps
personalty was sold in the owner's house or some other building,
where it would be easier to set out wine and to act with ceremony.
2. Shoya. 3. Tegata. 4. Mizu-cho. 5. Honsen-kayeshi.
48
PKIVATE LAW IN OLD JAPAN.
its expiration the seller may buy it back. But even if be
fails to do so then, be [or bis descendants] have a right to
buy it back after 20 or 30 or even 100 years. This trans¬
action is usually entered into because the owner is unable to
pay bis taxes and is oppressed by the arrears. Hence such
sales are forbidden, unless it is stipulated in the contract
that the buyer shall pay the taxes.
In sales of personalty, the seller must deliver the
article, and must also guarantee its genuineness; the
buyer must pay at the time and place agreed on. If either
fails to perform, the other may refuse to perform on bis
part. But such strict rules are practiced for the most part
by merchants only, not by outsiders.^ In Mibara kon, there
is no prohibition upon the sale of forest land, aud the price
may be paid in either money or rice. Houses may be sold
in perpetuity.
In Awa huni, Nabigasbi kori, cultivated, residence, and
forest land may not be sold without official indorsement of
the headman ^ and the elder. When personalty is sold, and
the buyer refuses to accept, the current price having fallen
before the time of delivery, be loses the earnest money; if
none bad been given, be must compensate the seller. If
the seller refuses to deliver, be must restore double the
earnest-money, by way of penalt)'. But usually some
compromise® is made. In Miyosbi kori, when the buyer
fails to keep bis contract, be loses the earnest-money. If
the seller fails to perform, the contract is at an end, as if
there bad been none, and if is sufficient if the seller returns
merely the earnest-money.
In Sanuki kuni, Kagawa kori, it ia the ,custom to obtain
permission of the feudal official for sales of bouses and resi¬
dence-land in towns, and a fee is paid of 5 bu^ in silver for
each ken^ of frontage. In Naka kori, sales of cultivated
1. Shiroto. 2. Shoya. 3. Jidan. 4. One-fourth of a ryo, the
old coin corresponding to the dollar. 6. A linear measure of about
6 feet.
PART II. CONTRACT : CIVIL CUSTOMS.
49
land in villages are nominally forbidden. A transfer is
effected by giving a document which recites that the seller is
already indebted to the buyer i n an amount which he cannot
repay and therefore transfers the property by way of satis¬
faction ; in fact, however, he is not indebted, but receives
money as the price of the land. For sales of houses and
residence-land in towns, it is the custom to procure permis¬
sion from the feudal official by the filing of a petition on the
part of both parties.
In lyo kuni, Uma kori, there is no prohibition against
perpetual sales of cultivated land. At the time of the sale
the buyer receives the price and delivers the title-deed, and
then reports the sale to the local oflScials, who change the
names in the register, without concerning themselves about
the documents which the parties may have exchanged. In
sales of houses and residence-land in towns the ward-
oflScials, on presentation of a letter of permission from the
magistrate, change the name of the proprietor in the register.
In Onsen kori, sales of cultivated land in villages are
nominally prohibited. But a sale is effected under the
name of a transfer of the "labor of cultivation." i Both
parties go to the headman's ^ house and affix their seals
in the land-register; ^ but no special instrument is
employed and no price is stated; a price passes, how¬
ever, under the name of "wine and fish money.But
sales and pledges of newly-reclaimed land® are not forbid¬
den, and sometimes the headman counterseals the instru¬
ment. In sales of houses and residence-land in towns, the
parties go together to the house of the chief elder, where
the house-register is kept, and the buyer affixes his seal.
1. Kosaku no ro. 2. Shoya. 3. Ji-yosei-cho. 4. I. e., money to
pay for a feast in honor ^ the transaction. This epithet and
similar ones are frequently used, even at the present day, merely as
■a euphemism for a regular fee or price. 5. Kai-kon shinden.
4
50
private law in old japan :
In Tosa huni, Tosa kori, ^ the law does not permit the sale
of original lands,^ but new land® may be bought and sold at
will. By " original " land is meant, in Tosa, all pieces of
land recorded as under cultivation in the survey book as re¬
vised in the time of the Cbosokabe family ; "new" laud are
those brought under cultivation since the time when the fiei
came into the bands of the Yamaucbi family.® In Hata Anrf
sales of cultivated land must be officially indorsed by the
headman. ^ Houses may be transferred without restriction.
In Kocbi kori, secret-ticket auction is advertised by posting
a notice on the public notice-board. Usually the vendor
prepares beforehand a "lowest-ticket,"® and if none of
the bids exceed this amount, the vendor may decline
to sell.' Until recently, if either party failed to per¬
form bis part in a contract of sale, be was excused on
showing that bis failure was due to calamity of Heaven.
But nowadays be is not excused, whatever the cause; be
must make some sort of compensation.
Saikaido. In Cbikuzen, Sagara and Naka kori, in
sales of cultivated land, the parties execute an instrument of
perpetual sale, the surety counterseals, the headman^
ofiicially seals, and when the names have been changed in
the land register,® the property passes. In sales of residence
land in towns, the elder seals the instrument, the parties
obtain permission from the feudal official, and the names are
changed in the land-register.®
1. The record of customs here giver^ior Tosa is especially
unsatisfactory, because the tenures and their features were in that
district peculiarly interesting and complicated. A more extended
account will be found in Mr. Grinnan's " Feudal Land Tenure in
Tosa," Trans. As. Soc. Jap., 1892. 2. Honden. 3. Shinden. When
lyeyasu obtained the ascendancy in 1600, he made many change
in the various lordships. One of these changes was the substitution
in Tosa of the Yamaucbi family for the Cbosokabe family. 4. Shoya.
5. Shikifiula. 6. Nayosei-cho.
PART II. CONTRACT ; CIVIL CUSTOMS.
51
In ChikugoMitsumaton", the seals of the inspector ^
and the headman ^ must be obtained for sales of realty.
In Buzen kt<ni, Kiku kori, there is no prohibition as to
perpetual sales of cultivated and forest-land. Both parties
file a petition and the local officials change the names in
the land-register.In sales of residence-land in towns, the
ward elder merely gives his consent, and the register is not
always changed.
In Hizen kuui, Sonoki kori, in sales of town-lands, the
parties report at the local office, and the elder changes the
names in the land-register.^ In villages the parties report
and the headman^ changes tlie names in the register.® In
Saga kori, the property is delivered, in ordinary auctions, to
the highest bidder, and in secret-ticket auctions, to the per¬
son whose ticket reads highest. If after the highest bidder
is announced, the owner declines to sell, he is obliged to give
some compensation proportionate to the amount hid. In
Amakusa kori, an ancient law forbids the perpetual sale of
land, except for building purposes.
In Hyuga kiini, Miyazaki and Koya kori, the complete
right of property does not exist. When a sale is desired)
the parties, as in the case of a grant of cultivation referred
to in the next chapter, report to the local officials that they
wish a transfer because the seller is unable to pay his taxes.
The officials then change the names in the land-register® and
charge the taxes and minor expenses to the buyer. In town-
land sales, the names are changed in the register, after
obtaining permission of the district-chief.''
In Osumi kuni. So kori, in villages, in sales of newly-
reclaimed land,® the permission of the head man ^ alone suf¬
fices. In towns, the parties prepare a separate paper, in
1. Metsuke. 2. Shoya. 3. Chobo. 4. Mizu-cho. 5. Na-yosei-
cho. 6. Taka (production)-j^uJe (&x)-cho. 7. Bu-gashira. What
sort of a district this was is not clear. The name was local..
8. Kaitaku-chi.
52
PRIVATE LAW IN OLD JAPAN I
adclitioD to the instrument of sale, and petition the feudal
ofiEicial, who alters the title-deedi and re-delivers it to the
buyer. There are no sales of ordinary cultivated land.
In Iki huni, Ishido kori, all rice-field and upland, but
not forest-land and new land formed by subsidence of the
sea, is the common property^ of the whole village, and its
sale is forbidden.
In Tsushima kiini, Shimoagata kon, public lands is
received in trusts from the feudal lord by the cultivators and
no sale is allowed. In sales of private cultivated land,s the
parties file a petition, and, after permission is obtained,
transfer the property. In sales of town-land, a report to the
feudal official is all that is required.
1. Kenjo. 2. Kyo-yu. 3. Koden. 4. Adzu-kari. 5. Shi-den.
( 53 )
CHAPTER IV.
LETTING AND HIRING.^
REAL PROPERTY.
The usual name for a person who hires ^ the land of
another and cultivates it, paying to the latter a portion of
the produce of cultivation ^ of rice, is "cropper."^ One
who hires another's ground and builds a house on it is
called " ground-renter ; " ® while one who merely hires and
lives in another's house is called "house-renter."® In
regard to cropping, the law is that there should be a written
1. Tai (leni)-shaku (borrow). 2. Kariru. 3. Saku-toku-viai.
4. Ko (small, petty)-saia (produce, crop)-n!re (person). This term
(which must be distinguished from kd-saku, producing a crop, i. e.
cultivation in general) seems best rendered by " cropper," a word
unusual, but etymologically exceedingly apt, and, in meaning, corre¬
sponding to a similar institution in Europe. Some considerations
call for the use of the term " cultivator," and the analogy of the
Latin term " colo-nus " bears on this side. But after some hesitation
it has seemed that, taking into the reckoning the various passages,
the best rendering is " cropper," for kosakii-nin, and " cropping," for
kosaku. Where the reference is clear, the word " tenant" has
sometimes been used, to avoid cumbering the page with repetitions of
an unusual term; but wherev^ the literal rendering and the identifi¬
cation of the term is of any consequence whatever, " cropper " is
employed. 5. Shaku-chi-nin. 6. Shaku-ka-nin.
u
private law in old japan :
iustrument; but usually there is only a private agreement,!
made by word of mouth;! and as there is no fixing of the
term, the landlord ^ has the right to take back ^ the estate
at any time, even though the tenant may have been cultivat¬
ing it for many tens of years. As to ground-reuters and
house-renters, there is usually a surety required, so that
the parties interchange instruments, fixing in them the
amount of rent.* The variations from these general
principles are as follows.
Kinai. In Settsu kuni, Nishinari kori, when a person
desires to rent a house, he gives his name and occupation,
and this is reported [by the house-owner] to his company
and to the elder. The consent of all members of the village
(or, in towns, of the block) ^ must be obtained, and if the
person becomes tenant, he must observe all the customs of
the village or block, engaging to this effect by a written
instrument, and also giving a written instrument to the
house-owner. If he fails to pay rent, the owner may
retake possession of the house. The owner is bound to do
all repairs on the house. In Yabe kori, [in villages] no
written instrument is employed [as a rnle]. The term ® is
one year. But where the rent is a fixed amount without
regard to the goodness or badness of the season, the land¬
lord usually lets ® for a long period and a written instrument
is given. This is called "long cropping."® The same
term is used also where waste-land!® has been reclaimed
and brought under cultivation ;!! and the cropper in this
case may transfer his interest ^ to another person, without
asking the consent of the landlord. As for the house-renter,
•
1. Altai (face to tace)-kuchi (■mouth)-yakusokii (agreement).
2. Ji {\a,nd)-nushi (owner, master), 3. Tori-nwdosit. 4. Chin-kin.
5. Cho. 6. Kigen. 7. Nengu. 8. Seshimuru. 9. Naga-kosaku.
10. Are-chi. 11. Kai-kon. 12. Kabu. This term is employed of
shares in a corporation or of the membership in a guild. Here it
seems to signify such an interest in the land as the transferor
may have.
part ii. contract : civil customs.
55
his rights among his townspeople are of an inferior sort,
and he is never chosen to be a ward-officer ; moreover it is
an old rule that no one is to rent him a house unless he
furnishes a surety for his conduct.^
Tokaido. In Iga Imni, Abe kori, no deed is employed
for cropping. It is the custom for the local officials to
collect the landlord's share of the produce, and the landlord
does not trouble himself about it. In " long cropping " a
written instrument passes, and the tenant may sub-let the
land to another person as cropper, without obtaining the
consent of the landlord. But if the rent is not paid, the
landlord demands it, not of the actual cultivator, hut of the
original renter. In regard to house-renters, it is the
custom for the house-owner 2 who desires to have such a
tenant to obtain permission from the ward-elder through
the ward-officials. As a rule the rights of a house-renter,
as compared with those of a householder, ^ are inferior, and
it is an old rule that at the time of the feudal lord's return
to his castle the heads of families who are house owners
may go out to the next village to meet him, hut not mere
house-renters.
In Ise Icuni, Ano kori, the term of a cropper is one
year; no instrument is made out. If the landlord cannot
collect the rent, the headman^ sometimes collects it directly
from the cropper and hands it over to the landlord. House-
renters [in towns] give a bond,® which is kept at the ward-
office. They cannot he chosen as officers of the ward, nor
can they he sureties for loans. In Wataraye kori, the
landlord is called "esquire,"® and the cropper "farmer."
There is no general rules as to the length of the term, and
in very few instances is an instrument drawn up. There
is no namiug of the total area or production of the land;
1. Mimoto (charaoter)-7iiJ:iuA:e-nin. 2. lye-mishi. 3. lye-vioclii,
the meaning being here th# same as iye-nmhi. 4. Shoya. 5. Vke-jo.
Jito. See Introduction.
56
PRIVATE LAW IN OLD JAPAN :
the tenant merely pays a rent fixed at so many to of grain
per tatt of land, and the relation thus resembles that exist¬
ing elsewhere between lord and farmer. If after many
years the family of the esquire becomes extinct or removes to
other parts, the land sometimes become the possessions of
the croppers themselves. In the Sacred Domain^ there is
no house-renting. Although the thing itself exists, the name
"living under the same roof"® is preferred, because of a
fear that persons from other domains temporarily residing
there would not be careful about fire-defilement.3
In Owari /cuni, Aichi /fori, their is usually no instru¬
ment made in case of croppers. But where the taxes ^ and
incidental burdens® are charged upon the tenant, there is
a written instrument, and the term is usually fixed at one
year. But in a village which practices land partition® the
term for croppers corresponds to the term of re-partition.
The system of partition is this : about every 10 years the
village holds a consultation, makes a survey^ and an inspec¬
tion of the land, and distributes the proprietorship by lot.
One result of this is that, where an irrigation-channel®
exists, selfishness does not lead one to draw water for his
own land only; ® moreover, repairs of the irrigation works
are made dutifully and generously ; so that the system is
an advantageous one. The cropper is called a " landless "i®
person, and so has no right to an equal position with a
" land-holding farmer. House-renters in towns cannot
1. A portion of this province belonged to one of the two great
national Shinto shrines. 2. Dd-kyo. This term generally signifies
a dependent, a poor relation or other pefton subsisting at the
expense of a family-master and forming a member of the household.
3. Ili-kegareru. This refers apparently to the kindling of fires in
some place or manner forbidden by the temple-management. 4. Koso.
5. Sho-hi. 6. Chi-wari. 7. Soku-ryo. 8. Yosui mizo. 9. A similar
phrase is still current as a proverb applied to persons seeking
their own interests. 10. Mu-taka (without assessed production).
11. Taka-mochi.
PART II. CONTRACT : CIVIL CUSTOMS.
67
be sureties or witnesses. There is in general no fixing of a
term, and the house-owner may evict ^ when he pleases.
In Mikawa kuni, Atsumi kori, there is no rule as to the
rent. A cropper who reclaims and cultivates waste land
is called " long-cropper;" and the sale of his right of
cultivation 2 is in his own disposal, the landlord having no
right to control it. In house-renting the usual term is one
year, and it is the custom to pay one year's house-rent^ in
advance.^ As to the repairs,® those of outside erections, of
roof, and of walls are at the charge of the house-owner ; the
others, of the tenant. In Nukata kori, no written instrument
is made hy a cropper and no term fixed. Croppers who
rent new land are called " long-croppers," and these may at
pleasure sell their cultivation-right without permission of
the landlord.
In Totomi kuni, Sano kori, no term is fixed in cropping
contracts, and the tenant must furnish a surety. The land¬
lord customarily advances a supply of rice to the tenant,
which he subtracts from the tenant's share at the time of
the next autumnal harvest. Croppers sometimes hire waste¬
land, reclaim and cultivate it, and make it into tax-paying
land. These, as well as those who have cultivated a piece
of land continually for more than 20 years, are called "long-
croppers," and the landlord cannot re-possess himself of
the land at his pleasure. Croppers, in general, rank a
degree below other farmers in the village, and are never
chosen as heads of companies. In Suchi kori, an instru¬
ment is drawn up in cropping contracts ; sometimes the
tenant is charged with payment of taxes and village burdens.
There is no fixed custom as to length of term ; hut after 10
years elapse the expression " long-cropping " is used, and
the landlord cannot re-possess himself of the land, except
1. Tana (shopj-dafe (pu? out). 2. Kosaku kalni. 3. Tana-chin.
4. Zen (before)-fttn. 5. Shit-fuku.
58
PRIVATE LAW IN OLD JAPAN :
for non-payment of rent. i For this reason the instrument
is always renewed about 8 years. A house-renter must
bring some neighbor as surety, whose bond the landlord
takes. The landlord generally repairs roof, walls, and
outside erections ; while the tenant brings with him [and
repairs] interior fixtures and mats.
In Suruga kuni, Abe and TJdo kori, a landlord keeps a
register of croppers, and the parties stipulate as to the
amount of rent, 2 fixing the term at one year. The tenant
seals 2 the register on the 11th day of the 1st month, the
custom being to do so every year, no matter how many tens of
years he has cultivated the land. In case of non-payment
the landlord may possess himself of the land. House-
renters must furnish a " house surety," ^ who gives a bond;
this the ward-chief® receives and keeps. There is no
special rule as to length of term. The house-owner has
the duty of repairing the whole house ; but it is the custom
for the tenant to bring with him [and repair] interior
fixtures and mats. The excremental manure of the house is
regarded as the perquisite of the house-owner, and farmers
from the neighboring districts come and take it, giving in
payment to the house-owner "rice for cakes," and at the
end of year, at the time of cake-making, he reserves six-
tenths of his cake for himself and sends four-tenths to the
house-renter. By reason of this custom even the poorest
day-laborer® feels sure of his New Year's cake. In Shida
and Mashizu kori no instrument of lease is used. The
parties renew the covenant on the 11th day of the 1st
month of every year, executing a contract for one year.
When cultivation has gone on continu(*sly for more than 20
years, it is called " long-cropping," and the landlord cannot
easily re-possess himself.
1. Fu, (not)-no (pay)-»tat (rice, rent). 2. Kosaku-mai. 3. 0-in.
4. Tana-uke-nin. 5. Machi-gashira. 6. Hi-kasegi.
part ii. contract : civil customs.
59
In Kai kuni, Yamanashi kori, when cultivated land is
hired, the lessor during the term has no right to take the
land away and lease it to another, if rent is paid at the fixed
time.
In Idzu kuni, Takata kori, no instrument of lease is
used. Sometimes cultivation is continued by the same
family for more than 100 years, and though the owner may
change, the cultivator remains. Sometimes, on the other
hand, the landlord resumes possession after a year or two ;
so that there is no general practice as to length of term.
In Sagami kuni, Ashigara kori, the cropping contract is
made in the second month of the year, and the term is one
year. No instrument is employed; and the landlord on
non-payment of rent ^ may resume possession immediately.
The house-owner repairs ^ the roof, walls, and outside
erections, while the tenant repairs interior fixtures and
mats. If a house is furnished,^ the rent^ is of course
higher.
In Kadzusa kuni, Moda kori, an instrument of lease is
employed, but no general practice exists as to length of term.
" Long croppers " include as a rule men who were the
former proprietors of the land, and this kind of tenancy does
not depend on any special period of cultivation. House-
renters must furnish a surety, who must be a land-owner.
Tosando. In Omi ktmi, Shiga kori, no instrument of
lease is employed, but if the cropper is a person of small
means, some relative becomes surety. A term of years is
always fixed. " Long-cropping," properly so called, does
not exist; but the term is used where the common land of
the village is rented to another village for cultivation.
In Mino kuni, Awachi kori, no instrument of lease is
employed, but the " hand-book " ® of the landlord is used
1. Kosaku-kin. 2. Sliuzen, 3. Dogu-tsuki-nite. 4. Ya-cliin.
5. Te-cho.
60
PRIVATE LAW IN OLD JAPAN,
as evidence of the contract. When rent ^ is in arrears 2
[and bankruptcy takes place], the landlord has a first
claim 3 on the tenant's property, similar to that given to the
village and to the feudal-lord for non-payment of taxes.
Even though a tenant has cultivated land for many tens of
years, the landlord has the right to resume possession at
his pleasure. But it is not so in case of cultivators
of newly reclaimed land.^
In Shinano kuni, Ogata kori, there are two kinds of
tenancy. One is called "different-cropping,"® the other
" direct-cropping." ® Where a tenancy continues for more
than 20 years, the landlord cannot retake his land without
reasonable cause, of whichever sort the tenancy may be;
and if he attempts to do so while the tenant is paying rent
as agreed, the latter may bring a suit. In Takai kori, the
term of lease of cultivated land is usually 3 years, and for
mulberry-upland or vegetable-plots, 10 years. In all leases
of laud [in villages] and houses [in towns], a written
instrument, according to the " History of Takai," is re¬
quired, as well as a surety, and if the landlord has neglected
to obtain such a document, he is punished, in case the
tenant violates the laws. By the present custom, an
instrument is employed in all letting of cultivated land,
houses, ships, or vehicles. In Saku kori, in leases of forest
land or of buildings used for wine-making, a term is usually
fixed, during which the landlord may not retake the pro¬
perty, unless the tenant refuses or is unable to pay the rent.
In leases of housesa written instrument is required.
Since the period Kyoho (1716-17361 an instrument has
been required by law in leases of culti^ted land also ; but
1. Kosaku-mai. 2. Todokoru. 3. Saki-dori-ken. 4. Kaikon-chi.
5. Betsu-kosaku. " Betsu-kosaku was any renter of mortgaged land
other than the mortgagee " (Simmons, Notes on Lund Tenure, etc.,
p. 34). 6. Jiki-kosaku. " Jiki-kosakii was a mortgagee who
attorned as tenant to the mortgagee."—lb. 7. Kaoku.
PART II. CONTRACT : CIVIL CUSTOMS.
61
very few in these villages take such instruments from their
tenants. If the landlord lends seed-rice to the cropper,
interest is taken. Waste land is often leased for one, two,
or more years without rent; this is called " instalment." i
In leases of cultivated land the term is usually 10 years >
though this is not so of " direct-cropping." 2 Where
cultivated land is leased as security for a debt, the term is
usually one year and the lessor gives a surety for his debt.
If at the end of that time he cannot pay, the surety under¬
takes to cultivate the land and pays off principal and
interest by degrees. The surety is termed " manager." 3
In Hanu hori, a written instrument is employed in letting
personalty, but not in letting realty. But the rule as to
personalty is not always observed.
In Shimotsuke kuni, Tsuruga ko7-i, the land-renter and
the house-renter do not directly pay taxes, ^ so that their
position is regarded as an inferior one, and at the time of
the Nikko festival they may not wear full dress. In
Kawachi koi'i, an instrument of lease is employed, one year
being usually the term, and the covenant being made before
the Spring Equinox in the 2nd month of each year. When
the tenant is to be charged with taxes and [incidental
burdens, it is reported to the local officials. The name "long
croppers" is applied to those who at their own expense
have restored waste-land, or have brought new laud into cul¬
tivation, and in such cases the landlord may not under any
circumstances dispose of the land.
In Iwaki kuni, Shirakawa koii, no instrument of lease
is used, and one year is the ordinary term. It is the
custom to contract for the succeeding year when, at the
1. Nempu (yearly or periodical payments). The application
in this case is not apparent. 2. Jiki-kosaku,—because in this case
the mortgagor might redeeK at an indefinite time in the future, as
•will be seen by consulting the chapter on " Hypothec and Pledge."
3. Sahai-nin. 4. Sozei.
62
PRIVATE LAW IN OLD JAPAN :
close of a year, the tenant brings in the landlord's share of the-
crop. There is no such thing as " long-cropping." In this
province land is plentiful and the population smaU; so that
few persons care to make cropping contracts, even though
landlords offer to furnish manure.
In Iwashiro kuni, Shinobu kori, an instrument of
lease is always employed. According to the nature of the
term, leases are divided into " single-term bargains " ^ and
"indefinite-term bargains."2 In the former one year is the
limit. The latter name is given when the owner makes
what is called an " exempt savilen puts a cropper upon
it, charging him with the taxes and incidental burdens, but
asking in return only a share of the produce.^ The phrase
" long-cropping " is not used.
In Eikuzen ktini, Toda kori, there is no general term
for the lease of land. But in that sort called " advance
samlen"^ (where a debtor by way of security entrusts his
land to the creditor), the term is usually 1 year ; the rent,
in such cases, is paid in rice or other products, and the
tenant pays the taxes. There are two general kinds of
tenancy, the one just mentioned, and the ordinary kind,
1. Iklii (single-termj-cfafe (put, invest, set up). But date is also
used to signify " put out," " evict", e. g. tana-date, (eviction from a
shop); and it may be that the idea conveyed in ikhi-date is " eviction
after one term But it does not seem probable that the parties
would have the notion of eviction so strongly in their minds at the
time of making the bargain as to make it a part of the ordinary
phrase for tenancy. 2. Nenki-date. 3. Jilaru (entirely)-men (exempt-
san (scattered)-den (land). The exemption seems to consist in the
owner being relieved from taxes. Sandei*seems to have been the
ordinary term corresponding to kosaku. Probably sanden lay in scat¬
tered patches here and there; the cultivator owned his home and hired
patches from different owners in different places. Perhaps the ko
(small) of kosaku (lit., small-cultivation) refers to the smallness of
these patches, while the san (scattered) of sanden lays the emphasis
on their scattered position. 4. Riyeki-mai, presumably much smaller
than a regular rental. 5. Maye (before)-sanden.
PART II. CONTRACT : CIVIL CUSTOMS. 63^
called here "permanent sand en.In both kinds the
obligation of the tenant is only to pay rice-rent^ to the
landlord ; while the lessor is under the obligation of clearing
out the water-channels, repairing roads and bridges, and
otherwise doing what is required for the tenant's welfare.
But the parties m.ay agree not to abide by this custom. If
the tenant fails to pay, the lessor may terminate the
contract; and he may demand the rent of the surety or the
headman, or perhaps he brings suit. In Miyagi kori, in
lease of houses ® or land, ^ the lessee and his company give
notice to the headman,® (as in the case of a change of
residence) and the latter occupies the position of a surety.
But such leases may not be made between members of
different fiefs or between a resident of a town and a
resident of a village. The amount of rent is usually
reckoned at so much a year. If the lessee fails to pay as
agreed, the lessor may retake possession. The lessee of a
house usually repairs the mats® and wooden fixtures,^ and
the lessor repairs the roof and the like. The term for a
lease of land is usually 10 years, and for a house, 3
or 5 years.
In Rikuchu kuni, Isawa kori, an instrument of lease is
used and a term is fixed; but " long-cropping," so-called, is
not known. However, one who has reclaimed waste land
becomes in fact a " long-cropper," for he cannot be evicted
at the landlord's pleasure. In Iwate kori, an instrument of
lease is used, hut there is no rule as to the term. If the
rent® is paid, things are allowed to go on as they are
for tens of years indefinitely ; but it is not genuine " long-
cropping," and the landlord has the right to resume
possession whenever it suits his convenience.
1. Sanden-tetsuke (fix). • But in both of these term the turn
of thought is not entirely clear. 2. Tokumai. 3. Kaoku. 4. Jisko^
5. Namtshi. 6. Tatavii. 7. Tategii. 8. Saku-toku-mai.
64
PRIVATE LAW IN OLD JAPAN :
In Uzen kuni, Okitainiv kori, when rice-land or upland
is leased as security for debt, a written instrument is
required, bearing the indorsement of the headman; i without
this, the instrument is not a valid proof of the transaction.
If the headman by mistake indorses a second lease of the
same land, and a lawsuit results,® the headman must pay
compensation to the injured party. There is a so-called
" perpetual sanden " ® [sanden is like an ordinary lease, the
lessor paying taxes, and the lessee paying rent in rice or
perhaps in money), in which no term is fixed and the
landlord cannot retake or seU the land without reasonable
cause; nor can the tenant give it back without good cause,
for such land is generally the common property of the
village,^ and the right to give back at pleasure would
incommode the village. There is another sort of tenancy,
by which the tenant pays the taxes and also a fixed rent of
money or rice; but the landlord may sell or retake the land
at any time. This is called tokumai.^ In general, the
removal of obstructions (earth or snow) on the roads or
paths is done by the tenant. lu leases of houses also, the
lessee has the obligation of clearing the ways. The lessor
of the house, when he wishes to retake possession, must
give a notice of 20 days or (in some places) 2 months.
Where the lessor has land on one side of a river and the
lessee on the other, the bridge-repairs are made jointly, the
lessor furnishing the materials and the lessee the labor.
Where a water-channel is used by them jointly, the same rule
holds.
1. Kendan. 2. That is, if injury is caused to the second lessee
so that he needs some redress. The lawsuit referred to is not
against the headman. 3. Yei-sanden (see Bikuzen huiii, supra).
4. Kyu-yu-chi. 5. This means, literally, " produce-rice." It has
been translated usually " rice-rent." The exact application here is
not clear; but it will be noted that kaclio, meaning substantially the
same as tokumai, is used, in Nagato kuni, Toyoda kori, infra, for
a tenancy having similar incidents.
PART II. CONTRACT ; CIVIL CUSTOMS.
65
In Murayama koi i, an instrument of lease is employed and
a term is fixed. Those who continue to cultivate for more
than 10 years are called " long-croppers and, unless the
rent be not paid, cannot be evicted at the landlord's pleasure.
The same name is also applied to those who reclaim waste
land or open new land, and in such a case it can never be
taken from the tenant by the owner.
In Ugo kuni, Akita kori, in leases of land or houses, the
tenant gives a written instrument, sealed by himself and a
surety, to the lessor. If the tenant fails to pay rent,t the
lessor may retake possession. The tenant, in leases of land,
usually repairs wells and dikes ; but by agreement the
parties sometimes divide the expense equally. If the term
is more than 10 years, the lessor is bound to repair the
property before the lessee takes possession; otherwise not.
In leases of houses, the lessor furnishes mats and wooden
fixtures, and puts the house in good repair; the tenant there¬
after keeps them in good condition. But the lessor always
has to repair roofs, ceilings, and the like. If the lessee wishes
to make a new window or door or roof-projection,® the con¬
sent of the lessor is required, and the lessee usually pays
the expenses. In cases of cultivated land, the lessor may
retake possession if the lessee injures the land or fails to
keep it manured. But a notice of six months or a year
must be given. The lessor repairs water-channels and the
like. •
Hokkaido. In Oshima kuni, Kamedo kori, in order to
become a tenant of land, it is the custom to deliver to the
landlord an instrument bearing the seal of a witness. As
the cultivation of land is not the staple occupation of the peo¬
ple of this province, the term " cropper " is not used.
Hokurokudo. In Wakasa kuni, Onifu kori, the term
is usually not less than 5 years, and an instrument is required
to be used. " Long-cropping " does not exist. In house-
— ^
1. Kahe-mai. 2. Hisoshi.
5
66
PRIVATE LAW IN OLD JAPAN,
renting one month is the usual term, and there must be an
instrument sealed by a surety. A house-renter, even though
he be worth 1000 ryo, cannot be elected to any office involv¬
ing headship over other men.
In Echizen huni, Asuha kori, no instrument of lease is
used, oral contract bping usual, and the agreement being
renewed every year. In " long-cropping " the landlord has
no right to resume possession when he pleases, provided
rent be not in arrear ; but the tenant cannot transfer his
right of cultivation without the consent of the landlord. The
rights of both house-renters in towns and croppers in villages
are inferior ; and only house-owners and land-owners ^ sit in
the ward and village assemblies respectively, while the crop¬
pers and the house-renters are given the task of serving the
wiue. In Tsuruga kori, every landlord, between the 5th
aud 11th days of the 1st month, prepares a book® of leases
in which the production, area, and cultivator's name of
every leased plot of land are entered, and each cultivator
affixes his seal. This occasion is called " land-inspection." ®
Where a person has occupied the waste land of another aud
turned it iuto either residence-land or cultivated land, he
delivers to the landlord an instrument called a " deed of in¬
definite-inspection." ^ Such a cultivator has no term fixed,
but pays a rice-rent 5 and cannot be deprived of the land by
the ow ner at pleasure.
In* Kaga kiini, Ishikawa kori, the term in leases of
cultivated land is generally one year. But it is longer in
the case of newly-reclaimed land® because here the labor
of reclamation is bestowed by the tenant; so that usually a
small rent ® is paid and the term is Bot fixed. In leases of
peach-tree upland ^ the term is generally 15 years, and in
1. Taka-mochi. 2. Chubo. 3. Ta (rice-iield)-o»os/(i (taking
down, i. 6. as from a shelf, to inspect). 4. Naga (long, indefinitej-
oroshi. The above is the apparent significance of the phrase.
6. Toku-mai. 6. Shinhai-clii, 7. Nashi-hata.
PART n, CONTRACT : CIVIL CUSTOMS. 6T
lotus lowliind,! 10 or 15 years. In the case of newly-
reclaimed land a term is usually agreed on after some years;
but the title of course is in the lessor, and the tenant must
still pay rent.^ In leases of peach or lotus land, the tenant
may transfer his interest to another person, or may even
restore the land to the lessor before the term has ended.
The tenant is always under the obligation not to injure
the land. In no case is a surety or witness to the contract
required. In leases of houses, a term is sometimes hxed,
sometimes not. In the former case a deposit® is required.
If the lessor is not to pay interest on this, an abatement is
made in the rent agreed on. If the lessor at the expiration
of the term fails to return the deposit, the lessee may have
the house sold and get payment out of the proceeds. In
towns, the term for the lease of a house ^ is usually one
month, the rent being paid monthly. In Kawakita kon, the
lessee of cultivated or fores land may use the land as he
pleases, while his term . sts. However, he may not
transfer his interest; or if circumstances oblige him to do
so, he is still responsible for the rent. Where the crop is
destroyed by calamity of Heaven, the tenant is usually
excused from rent. In Nomi kori, notice must he given to
the owner's company before he can lease his house.
In Noto kuni, HOshi kori, where the tenant of land
fails to pay the rice-rent, ® the lessor complains to the
district-chief® through the headman,'' and the tenant's
property is sold to pay the rent. The lessor may then
retake possession, even though the term is not at an end.
lu Kashima kori, the lessee of a house may not transfer his
interest without consent of the lessor. Where the property
leased is destroyed by calamity of Heaven, the loss falls on
the lessor ; but if by fault® of the tenant, he must pay
compensation. But if the tenancy is a perpetual one,® then
1. Hasu-da. 2. Toku-mai. 3. Shiki-kin. 4. Tana. 5. Toku-
niai. 6. To-mnra. 7. Kimoi$i. 8. Aya-machi, 9. Yei (perpetual)-
uke (undertake) or yei-oroshi (to take down, to inspect. See Echizen
kuni, ante).
68
PBIVATE LAW IN OLD JAPAN :
the loss in the former case falls on the tenant. In Hagui kori,
the term for a lease of cultivated land is 4 or 6 years,
according to the nature of the land or the custom of the
village. When the term expires, the lessor, if the lessee has
paid his rent regularly, is bound to renew the lease. In
Suzu kori, in leases of residence or forest land or of salt-
making beaches, ^ the lessor cannot terminate the lease, if
the lessee pays rent regularly, even though no term has
been fixed. The tenant may transfer his interest, but he is
none the less looked to by the lessor for the payment
of the rent.
In Echu kuni, Imizu kori, in leases of land, the tenant
has a right to sub-let or to sell his interest. In order to
change the use of the land or to cut down forests, he must
obtain the lessor's consent. If he injures ^ the land, he
must compensate the lessor at the expiration of the term.
In Tonami kori, in leases of land, the term is usually for
one harvest only ; but tbe parties may agree to make it 10
or 15 years. A term of more than 20 years, however, is
not allowed, as an inspection ^ of lands takes place in this
region once in 20 years. In Nikawa kon, in leases of
cultivated land, a written instrument is required, sealed by
both parties and by a surety for the lessee. The term may
be perpetual or for 3 years or only from harvest to harvest.
In leases of houses, the term is commonly one year, begin¬
ning with the 3d month; but this may be varied by agreement,
and there is no fixed custom. A written instrument, with a
surety or witness, is required. The lessor may retake
possession, if the lessee fails to pay the rice-rent^ or the
land-tax,5 even though the term fl not ended. Yet if the
tenant soon afterwards pays what is due, the lessor must
allow him to continue the lease. The tenant may not
transfer his interest.
1. Seiyen-hamachi cf. Eein, " Industries of Japan," s. v.
"Salt." 2. .drasjt (almost equivalent to our "waste"). S. Biinkeii.
4. TokumaL 5. Chi-sd.
PART II. CONTRACT : CIVIL CUSTOMS.
69
In Echigo kumi, Koshi kori, there is neither instrument
of lease nor fixed term. It is the custom to let the tenant
continue to cultivate indefinitely, so long as he pays rent.
If the cultivation continues for more than 60 years, it is
called " long-cropping," and the landlord cannot resume
possession at his pleasure. Sometimes a person contracts
to grant his possessions to another at a low price, and in
exchange to cultivate perpetually ^ the land transferred.
Sometimes a person buys land in a place distant from his
home, and places his agent 2 upon it, to cultivate it. In
both these cases the rights of " long-cropping " exist. In
Kariha kori, cropping is called " single-cropping." 3 The
term is one year, aud the tenant gives an " irrigation-
deed," ^ " irrigation " being the common term for cropping.
" Long-ci'opping " goes under the name of " cropping with
[tax] -covenant the tenant giving an instrument and under¬
taking to pay taxes and incidental burdens ; the landlord
cannot resume possession at will. As there are rich
persons among the croppers and house-renters, there is no
inferiority of their rights in ordinary intercourse. In
Kambara kori, in leases of cultivated land, the term is
usually one year, and the tenancy is called " single-term
cropping."® If the parties wish to renew the tenancy, this
is doue by making a note upon the instrument in the 11th
or the 1st month. This may go on for 10 or 20 years.
But a "perpetual-cropping"! jg made only by express
agreement at the inception of the tenancy; in this case the
lessor can never retake possession, unless for non-payment
of rent.'! jf the owner of the land sells it, the tenancy
continues, and the tenant holds the land as against the new
owner. When a " single-term cropping" is made, the
1. Yeitai-kosaku. 2. Dairi-nin. 3. Ichi-saku, because the term
is for one year and only a single crop is raised. 4. Mizu-ire shomon.
5. /©-(without fall)-ufcc (pvormse)-kosaku. 6. Ikki-kosaku. 7. Saku-
tokumai.
70
PRIVATE LAW IN OLD JAPAN I
owner pays the taxes. He may retake possession, if the
tenant fails to pay rent,i or injures the land, or sells his
interest to another without consent of the owner; but notice
must be given before the last day of the twelfth month.^
The cropper may cut the grass on the balks and may plant
peas or beaus thereon. The owner pays the expense of
repairing water-channels, bridges, and roads. A sale of the
land by the owner terminates the lease. In a " perpetual-
cropping " the cropper pays all local taxes and the rice-
tax ^ directly to the headman^ and receives the receipt; he
also pays the expense of repairing bridges, roads, and
water-channels ; but expenses due to an unexpected cause,
such as war or rebellion, are paid by the owner. There
is a sort of cropping called " sub-letting cropping." ® For
example. A, the owner, leases to B, at a rent ^ of 5 to, and
B leases it to C, taking a written instrument and a deposit,®
and fixing the rent at 6 to. The term may be 1, 3, or 5
years. If for some default of B's, A retakes possession, C
loses his rights in the land; nor can C have any claim against
A, though morally B is bound to compensate C. In
the same way as above, C may sub-let to D, and D
to E. Where land is leased for the erection of a water-mill
or a factory, t a term is fixed, and a written instrument, with
surety, is given. The rent is paid annually, the amount
varying with the circumstances of each case. When residence-
land is leased, the term is usually one year, the rent being
paid annually. If the tenancy continues for 2 years, it
becomes a perpetual tenancy; so that if the owner sells the
property, the tenant has the right to continue in possession.
In leases of houses, the lease is of*the structure® only;
1. Saku-tokumai. 2. But this rule, apparently, would apply
only where, as above stated, the tenancy was renewable during the
first month of the year. The investigator has not recorded the
custom for tenancies renewable in the eleventh month. 3. She-
gakari, nengu. 4. Na-niishi. 5. Ten (change, hand over)-taishaku
(lease)-ftosa^u. 6. Shiki-kin. 7. Suisha, seizoba. 8. Tate-nwno.
part ii. contract : civil customs.
71
outside doors 1 and sliding paper-doors ^ are regarded as a
part of the structure, but not other fixtures, ^ nor fioor-
coverings.^
In Uwonuma kori, one year is the usual time for
" irrigation," and the instrument is altered on renewal of
the lease. Where " irrigation " has gone on continuously
for ten years, it is regarded as a " perpetual irrigation," even
though no instrument of that sort has been given, and the
landlord, unless rent is in arrear, cannot easily resume
possession; but if the landlord sells the land to another
person, the new owner may at his pleasure permit or forbid
the tenancy to continue. In leases of residence-land, it is
the custom, when land is to be let lor an indefinite time
' 9
to agree that the lessee shall quit® the premises whenever
the owner requires, paying so much rent® per year and so
much for laborers' services ; ^ and that the landlord, when he
desires to resume possession, must give half a year's notice
and must pay the expense of removal.
In Sado kuni, Sawata kori, in ordinarj' cropping con¬
tracts, a term is fixed, and no perpetual tenancies exist.
The name " long-cropper " is used where a person, as in
the case of the so-called "gate-way farmer,"® has a perpetual
right of cultivation in temple-lands; but even in this case
the land is sometimes resumed by the owner at pleasure.
Both croppers and house-renters are regarded as having in¬
ferior rights, and they are not chosen to any office which
involves the headship of men.
Sanindo. In Tamba iMui, Kuwata kori, no instrument
of lease is used and no term is fixed. "Long-cropping"
1. To. 2. Shoji. 3. Tategu. 4. Shikimono. 5. Tachinoku.
6. Ji (land)-dai (price). 7. Ninsoku,—doubtless the laboring services
required from each householder on local public works ; presumably
the renter was regarded as the true obligor, as between the parties,
though the owner alone was legally liable. 8. Man (gate)-ze»i
(heioie)-hyakusho. He rented the land belonging to a temple and
lying just in front of or around it.
72
PRIVATE LAW IN OLD JAPAN :
is unknown, and the landloid may resume possession at
any time, even though the cultivator has been in possession
far many tens of years. When the tenant changes moor¬
land ^ into wet-land, 2 instruments of perpetual lease ^ are
exchanged. In Taki Icori, there is a law that instruments of
lease must be exchanged ; but in fact no one does so. No
term is fixed, nor is the name " long-cropping " used; hut
by custom a landlord cannot resume possession where the
tenant has cultivated for more than 10 years, provided there
are no arrears of rent.
In Tajima kuni, Izushi Zcort, no instrument of lease is
used and no term is fixed. If rent is not in arrear, the
landlord, as a matter of fact, never evicts the tenant; but
the name "long-cropping " is not used and the right exists
to evict at any time. Great watchfulness is exercised over
changes of residence by house-renters, and an instrument is
always employed.
In Inaba Auni, Homi neither an instrument of
lease nor a fixed term is customary in case of croppers' ^
contracts. If rent is not in arrear, cultivation may be
continued for many tens of years. There is in name no
"long-cropping," hut a tenant sometimes hands over the cul¬
tivation to another person without the landlord's consent;
though in such a case the latter always looks to the original
tenant for payment, in case rent falls into arrears, and has
the right to resume possession at any moment. House-
renters of the lower class are not permitted in the towns
to assume a firm name, ® or to be elected officers of
the war d.
In Hoki kuni) Aimi /eori, no instrument of lease is used
and no term fixed. If rent ® is paid, the tenant may continue
to cultivate for many tens of years. It is customary for
1. No-chi. 2. Ike-chi. 3. Yeitai-gari. 4. Saku-nin. 5. Ya-go.
6. Abe {^ut)-kuchi (moutb)-roat (rice), i.e. rice to eat, another
euphemistic expression for a payment due.
PABT II. CONTRACT : CIVIL CUSTOMS.
73
successive sub-leases ^ to be made, without needing per¬
mission from the landlord, the latter looking to the original
tenant in case of non-payment. The landlord has ordinarily
the right to resume possession at any time; but he cannot
easily do so where the tenant has changed sandy land® into
good land® (which they caU "grass-starting,") and his
family has continued to cultivate it for three generations ;
in such cases the cropper has the privilege of buying the
land at a price four-tenths lower than that at which it is
offered to others.
In Idznmo kuni, Shimane kori, in leases of houses, a
" house-contract-deed " ^ is usually required by the owner,
Aiith a surety or a witness. The contents of the instrument
are not always the same, but it usually contains provisions
about the deposit, the amount of rent ® and the time of
payment, with covenants to obey local regulations and to
restore possession whenever the lessor desires, as well as
an engagement by the surety. In Nogi kori, the term in
leases of cultivated land is usually one year, the tenant
engaging to pay rent.® The amount of the rent is not
exactly determinable, as the lessor reduces it wherever
there is a failure of crops or an unusually poor yield. Rent
is paid twice a year, in the 7th and the 12th months ; but
the parties may agree otherwise. Sometimes a lease is
made for a term of years ; and in that case the cropper may
transfer his interest, though he is still responsible for the
rent. The lessor may resume possession on non-payment,
even though the term is not ended.
In Iwami kuni, Shima kori, the lessee, in leases of
cultivated land, is termed " land-owner or "esquire,"® and
the lessor, " petty-cropper" ® or " low-cropper." i® The
amount of rent depends on the quality of the land, th®
1. Ten-tai. See ante,^ehigo kuni, Kambara kori. 2. Sima-chi-
3. Ryo-den. 4. lye-uke-jo. 5. Ya-chin. 6. Kake-mai. 7. Ji-nushi,
8. Ji-to. 9. Ko-saku-nin. 10. Ge-saku-nin.
74
private law in old japan :
expense of cultivation, and the injuries arising from storm,
floods, and drought. Written instruments, as well as
sureties, are never employed. In Naka kori, the term in
leases of cultivated land is usually one year, no written
instrument being required. In leases of houses, the rent is
paid, in towns, monthly; in villages, annually. Waste-land
is sometimes leased to make bamboo forest, and the term is
10, 20, or even 30 years, written instruments being always
required,
Sanyodo, In Harima kuni, Shikito kori, no instrument
of lease is used, and the term is one year. But an instru¬
ment is used when the resident of one village lets out the
cultivation of land beionging to him in another village.
This is called " long-cropping; " the cropper pays both
taxes and incidental burdens, and may transfer his cropping
right to another; In Mimasaka kimi, Nishihojo kori, the
lessor may not retake possession during the term, unless the
tenant fails to pay rent.^
In Buzen kuni, Mino kori, the tenant, in leases of land,
pay the local taxes, ^ and the lessor the rice-tax.®
In Bicliu kuni, Kubaya kori, the right of a cropper may
be sold, but the village-officers have nothing to do with such
a sale. The reason is that it transfers merely the interest of
the tenant, not the land itself, and hence it is a private
affair between the buyer and seller. If the new cropper
does not pay the rent^ or injures the land, the owner may
take away his interest.
In Bigo kuni, Fukatsu kori, an instrument of lease is
used. One year is the term, beginning in the case of rice-
field at the 5th month, and in the case o*f upland at the 10th
month. When the landlord wishes to resume possession,
he must give notice in the former case in the 1st month;
in the latter case no notice is necessary. One who has
1. Ya-chin (house-rent), tokumai (rice-rent of land). 2.
3. Nengu. 4. Saku-chin.
PART II. CONTRACT I CIVIL CUSTOMS.
75
cultivated for more than 15 years is called a "long-
cropper," and he cannot easily be evicted. In Mitsuki
kori, no instrument of lease is used and no term fixed, the
landlord resuming possession at any time. After more than
10 years' cultivation the tenant becomes a " long-cropper "
and the landlord cannot easily resume possession. Where
■waste land has been reclaimed and cultivated, the tenant
may dispose of his cropping-right as he pleases, ■without
giving notice to the landlord. Those who are croppers only
and do not also possess some land ot their own are called
"floaters,"! and are placed in the lowest seats at the
village assembly.
In Aki lami, Numata and Aki kori, no instrument is
used and no term is fixed ; the contract is always a private
oral one. When waste laud has been reclaimed and
cultivated, the term " long-cropping" is used, and the
landlord cannot easily resume possession. The rights of
house-renters are somewhat inferior to house-owners, as
they may not wear full dress.
In Suwo kuui, Kyuka kori, the tenant is bound not to
injure the land he cultivates ; but if injury is caused by
calamity of Heaven, the lessor must pay the expense of
repairing the injury. In some cases cultivated land is leased
in the ordinary way; this is called "low-cropping."^ In
others the cultivator works under the direction of the land¬
owner. There are two sorts of cultivated land, one
producing two crops, barley and rice, the other a rice-crop
only. The former is termed " land of two-seasons' plant-
ing,"3 the latter "land of one season's planting."^ The
former is first quality® land, and is assessed to yield 4
bales [of rice] per tan; the latter is middle® or low ^
1. Vice (float)-SMji (pass over). 2. Qe-sahu. Probably iu the
former case the rent was fixed quantity of rice ; in the latter the
cultivator was given a share of the roduct. 3. Niki-maki. 4. Ikki.
tnaki. 5. JO-tO. 6. Chu-td. 7. Ge-tu.
76
PRIVATE LAW IN OLD JAPAN :
quality land, and yields 2^ or 3 bales per tan; these amounts
the tenant must give to the landlord every year, the taxes
being paid by the latter. Written instruments are never
employed. The lessor may retake the land, even before the
end of the term, if the proper amount of rice is not paid.
In Nagato kuni, Toyoda kori, there is both the ordinary
tenancy and a kind called " extra-payment."^ In the latter
the tenant pays the Government rice-tax, as well as the
rent, ^ the amount of the latter being fixed according to the
nature of the land. Sometimes a surety is required (and in
that case the term of lease is a fixed one), hut no official
sanction is needed and hence no written instrument is used.
In leases of houses, the lessee makes an " advance-
payment "3 or deposit,^ and on non-payment of rent,
this sum is resorted to by the lessor, who usually retakes
possession of the house. When the tenant removes, the
advance is restored, hut not with interest.
Nankaido. In Kii knni, Nakusa and Abe kori, the
cropper is called "low-cropper."® The contract is a
private one, no instrument being employed and no term
fixed. The cropper is at liberty to transfer his interest to
another person, for a price called " produce money,"® and
the consent of the landlord is not needed. If rent is not
paid, the landlord looks to the cultivator for the time being t
and distrains upon his interests. House-renters must give
bond with a surety, and if the rent is in arrear, the land¬
lord may have the tenant quit at any time. The house-
renter's rights do not differ from those of the house-owner.
In Sanuki kuni, Kagawa kori, no instrument of lease is
used and no term is fixed, and if the reftt is paid, cultivation
1. Ka (extra)-c/io (mannger). The above seems to be the literal
rendering and to agree with the nature of the tenancy. In fact,
however, kacho is synonymous with tokumai or rice-rent. See Uzen
kuni, Okitama kori, supra. 2. Toku-mai. 3. Maye-kin. 4. Shiki-
kin. 3. Ge (lowest, petty)-s<iku-tiin. 6. Toku-gin 7. Geiisaku-suru-
mono.
PART II. CONTRACT : CIVIL CUSTOMS.
77
may continue for an indefinite time. " Long-cropping " is
not known. A person not owning land where he lives is not
treated like an ordinary farmer and is called a "between-
man." ^ The rights of a house-renter are inferior to those of
a house-owner, and a law forbids his family to learn the
polite accomplishments or to wear silk clothes. In Naka
kori, no instrument of lease is used; the term is one year.
If the rent is paid, cultivation may continue for an indefinite
time ; but there is no " long-cropping." For house-renters
there must be a surety and a bond; and if rent is not paid,
the landlord applies to the local officials and has the tenant
leave. The house-renter's rights are regarded as inferior to
those of the house-owner, and he is not chosen as a ward-
official.
In lyo kimi, Uwa korl, no instrument of lease is used.
The term is 5 years, although the landlord may resume
possession within that period on non-payment of rent. The
rights of non-land-owning farmers and of house-renters are
inferior; and the latter may not wear full dress. In
Onsen kori, no instrument of lease is used and no term is
fixed. If rent is not in arrears, cultivation may continue
indefinitely. Where the tenant builds a house on the land,
a supplementary 2 contract is sometimes made for it. House-
renters and landless farmers are made to sit at the end-seats
in the village assembly ; ^ and the former are not allowed to
wear the outer coat.^
In Tosa imni, Kochi kori, the "original land"® is
forbidden to be sold, but the same purpose is attained by
making long leases. The lease is termed a " nineteen-crops
[lease]," ® the term being 20 years, and a deed is given
1. Mode, a contraction of ma-hito; these persons ranked between
the farmers and the outcasts (liinin and yeta). 2. J?os/ii-(mai'gin)-
haki (writing), 3. Yori-ai^ 4. Haori. 5. Honden, the land brought
into cultivation and registered before the Yamauchi family acceded
(about 1602). 6. Juhu-saku.
78
private law in old japan :
engaging the return of the land at the end of the term. The
cropper is to give the land owner a rent termed " extra-
produce," ^ and is to pay the taxes and other expenses. He
has the right to sublet to others and obtain a profit thereby
without the consent of the land-owner. The latter is called
" under-owner " and the farmer " upper-owner." ^ In Hata
kori, the land-owner may retake possession on non-payment
of rent. If no term is fixed, the owner may retake at
any time.
Saikaido. In Chikuzen kuni, Naka and Sagara kori,
no instrument of lease is used, and, though no term is fixed,
one year is the usual limit. The expression " long-
cropping " is not used, and the landlord may resume
possession at his pleasure, but he must give notice a year
in advance.
In Chikugo kiini, Ikuiba kori, a written instrument is
not commonly used in leases of realty.
In Buzen kiini, Kiku Arort, no instrument of lease is
used. One year is the term. The landlord may resume pos¬
session at any time, even though the tenantmay have been in
possession for many tens of years ; but after the seed has been
sown, the tenant cannot be evicted before the harvest. The
expression " long-cropping " is not used. In Shimoge kori,
no instrument of lease is used and no term is fixed. The
1. Ka-chi-slti. 2. Soko (bottom)-Ji-(land)-moc/t), and uwa (upper,
top)-ji mochi. These terms differ slightly from those given by Mr.
Grinnan (in his paper on " Feudal Land Tenure in Tosa,"
Trans. Asiat. Soc., 1892), which are solto-zuchi-mochi and uwa-zuchi-
mochi. I cannot find that the written character for ji may legiti¬
mately be pronounced tsuchi (though the nflaning of ji and tsuchi
are almost identical); and the term probably varied in different
places. Mr. Grinnan, however, says that the same character in
Tosa served for both words. He adds that nnshi was sometimes
used for mochi, the full term being viochi nvshi. Parts of the above
passage in the original are quite obscure, and the whole paragraph
gives an utterly insufficient view of Tosa leases, as may be seen by
referring to Mr. Grinnan's paper.
PART II. CONTRACT : CIVIIi CUSTOMS.
79
law is that the cropper shall undertake the payment of taxes
and incidental burdens. It was found that when the land¬
lord paid these, he increased the rent, the cropper abandoned
his occupation, and the land went to waste; so that since
the period Anyei (1772-1781) the feudal lord has the taxes
and burdens levied directly upon the croppers and annually
inspects the quality of their production. (Since the Kestoration
many crafty ones among the the "long-croppers" have
declared themselves to be the owners of their land and have
procured judgments of the courts in their favor; and al¬
though there may have been some justice in their claims,
their evidence of ownership was usually only this practice
of paying taxes and incidental burdens.) A " direct-crop¬
ping after 20 years occupation, and a "different-crop¬
ping " 1 after 40 years, become a perpetual-cropping, and
the landlord cannot resume possession at pleasure; so
that most landlords resume possession at the end of 14 or
15 years and then let out the land again. In Miwa Itoii, no
instrument of lease is used and no term is fixed. Cropping
is called " temporary-possession." ^ The cropper undertakes
in his own name the payment of taxes and incidental
burdens. The expression " long-cropping" is not used,
and the landlord has the right to resume possession at
pleasure, no matter how many years of tenancy have lapsed.
In Hizen kuni, Sanuki kori, no instrument of lease is
used and no term is fixed, nor is " long-cropping" known.
If the possession of the land is to be resumed, the landlord
must give one year's notice.
In Higo kuni, Aso kori, where an instrument has not
been made out, and the cropper fails to pay the rent,3 the owner
may retake possession. There is a sort of cropping called
"undertaking the assessment,"^ in which the cultivator
1. Jiki-hosaku, hetsu-kosaku. See Shinano kuni, supra, and
the chapter on " Pledge and Hypothec." 2. Kari-data. 3. Tokumai.
4. Taka-iri.
80
PRIVATE LAW IN OLD JAPAN :
pays the Government rice-tax ^ and local expenses, as well as
a rent.2
In Hyuga kuni, Usuki kori, no term is fixed and no
instrument of lease is used except for cropping in another
village. If cultivation continues for more than 10 years,
the rights of "long-cropping" are obtained; and, pro¬
vided the rent be paid, the landlord can resume possession
only for the purpose of cultivating the land himself, and not
to let it out again to another person. But although the
term " long-cropping " is used, the cropper cannot transfer
his interest to another.
In Iki kuni, Ishida kori, no instrument of lease is used
and no term is fixed. Sometimes, if both parties are satis¬
fied, cultivation continues for many tens of years ; but the
landlord has the right to resume possession at anj' time.
Custom, however, forbids him, if the seed has been sown,
to evict until after the harvest.
In Tsushima kuni, Shimoagata kori, when the
number of cultivators ® on the public land diminishes, the
headman^ has the people choose and gives the elected one
an ofiiciaUy-sealed certificate and has him cultivate the
unused portion. This is called " temporary-cultivation." ®
If the taxes fall in arrear, the land is immediately taken
away and given to another. Where a person agrees to
cultivate land on behalf of the owner, he is called a cropper ;
the landlord may resume possession at any time, even
though such cultivation may have gone on for many tens of
years.
2.—PERSONAL PROPERTY.®
Tokaido. In Kai kuni, Yamanashi koi~i, in loans of
rice or other grain, a value is fixed on, and either the price
1. Nengu. 2. Tokuiuai. 3. Tnukuri-niisM. 4. Gichi-yahi
(orderiiig-olficer). 5. Ima-suku. 6. This section is one of those in
part ii. contract : civil customs.
81
or corn of an equivalent value is returned, interest being
added. On a principal of 80 yen, the interest is 25 sen per
month.
In Musashi Imni, To3'oshima hori, where clothing or
bedding is lent, the term is usually 8 days; as to other
articles there is no general rule.
Tosando. In Rikiizen Uuni, Toda kori, in the hiring of
horses from dealers, the hirer of a 8-year-old horse will
deposit, say, 8 yen, if the value of the horse is 10 yen, with
the dealer, and when the horse is 5 years old, he is returned
to the dealer, and the latter restores the deposit. This is
an old and popular custom, because both parties profit by
the arrangement.^ If a hired horse or cow bears a foal or
a calf, the latter is the property of the owner; but it is
usually agreed that if during the term there are 2 or 8 foals
or calves, the hirer shall receive the gift of the dam. In
loans of grain and money, the term is usually one year,
ending with the 12th month.
In Uzen kiiui, Okitama kori, in the hiring of cattle or
horses, if the animal dies by sickness or violent accident,
the hirer does not pay compensation. But this rule applies
only where the lender is a dealer. Where he is an ordinary
farmer or other outsider,2 the hirer must make compensation
at a later time by means of manual services. If the animal
dies by sickness or violent accident, the hirer does not
compensate; but it is otherwise if the death is due to the
hirer's intention.3
Hokurokudo. In Kaga kuni, Kawakita kori, if a horse
is lent during the cultivating season, the term " season
which the cnmpiler has failed to obtain materials at all satisfactory.
Much must be allowed, however, for the probable dearth of definite
customs oil this subject. Life in old Japan was not characterized
by such an abundance of personalty, especially of the sort likely to
be borrowed for hire, as in the West. The law of personalty is
chiefly contained in the subjects of Sale and Pledge. 1. The lender-
getting the feed of the horsi, the hirer the use. 2. Shirdtd. 3. Just
how the two rules of lending differ is not clear.
O
82
private law in old japan :
loan " 1 is used ; if during the winter, " winter-feed loan,"
this latter being made in order to feed the animal during the
winter. Sometimes a 2-year-old horse is lent, to be
returned when he is 3 years old. The borrower profits by
the manure, and at the same time feeds the horse, so that
when he is returned the lender profits by the increase in its
value. In Ishikawa kori, there is a custom of rice-lending
called " 6-to-loan,"2 by which 5 to are lent and G to are
returned in the autumn of the ensuing year.
Sanindo. In Idzumo kuni, Shimane kori, clothes and
furniture are sometimes lent on an arrangement caUed
"exchange."3 Money is borrowed and the articles are
given in exchange as securit}', a date being fixed for repay¬
ment. If at that time the debtor fails to pay principal and
interest, the creditor may sell the articles.
Saikaido. In Chikugo kuni, Mitsuma kori, a written
instrument is required in loans of monej', but not in loans
of other articles.
8.—PERSONAL SERVICES.^
Tokaido. In Musashi kuni, Toyoshima kori, the hiring-
out of apprentices,® personal services is practiced among
masters,® when a master-artisan^ has a great deal of work
placed in his hands and, needing extra apprentices, hires
temporarily the apprentices of some other master ; and a
reasonable wage is paid. But no apprentice wbo has
completed his term ® of apprenticeship and has a separate
establishment can be so hired out by his master without
his consent. ^
1. Saigitm-kashi. SaigeUu (year-month) conveys the idea of a
period of time, long rather than short. 2. Itoku-to-kaslii. 3. Kaica.
se-ire. 'I. Jin-ryokti. Here again, meagre materials are offered. The
whole subject of carriers, as to which many customs prevailed, has
been left practically untouched. o.Deslii, G.Oya (parent)-lata (per¬
son). 7. To-rijo. Til is the ridge-pole of a roof, njo, the lesser timbers t
tr-nju has figuratively come to mean " master-artisan." 8. Kenki.
part ii. contract : civil customs.
83
Tosando. In Shinano kuni, Takai kuri, in hirings
for more than one year, a written instrument must be made-
out. The wages of artisans are paid twice yearly, in July
and December. In Saku kori, in the season of cultivation,,
farmers hire themselves out to each other in turn. This is
termed " mutuality," ^ and the wages are those of ordinarjr
servants,^ the same rate being taken in every case. But a
man's labor for 1 day must be repaid by 1^ days of a
woman's labor; and 1 day's use of a horse is equivalent
to 2 days of a man's labor. If an artisan is given his
wages in advance, and he delays the performance of the
work, he must pay interest on the money received or give
extra labor ; on the other hand, if the employer does not
pay the wages when due, he must add interest.
In Uzen kuni, Okitama kori, where a hired man runs
away with his master's money or with advance-wages, the
employment-office ^ from which he was hired is not respon¬
sible.
In Rikuzen /iKWi, Toda /lori, when a farm-laborer 5 is
hired, the time is usually 3 years, his wages being paid in
advance, and a written instrument being given. For woman-
laborers,® the term is usually 1 month or 2 or 8 weeks, no-
written instrument or surety being given. In Ojika kori, there
is no regular term for the hiring of sailors or boat-cooks,
as the engagement is usuallj^ for the time of the voyage, nor
is there a regular rate of wages. If their belongings are
lost during the voyage by calamity of Heaven, the ship¬
owner is responsible. He is bound to pay wages and furnish
food, even while the ship is touching at a port. Men to
man a fishing-boat® are hired for a single season (that is, for
the bouito-catching season) from April 1st to July. Each
man receives, beside his wages, one-tenth or one-fifth the
price of the fish caught by him.
*
1. Yiii. 2. Hokunin. 3. lye-nushi, 4. Yosei-yado. 5. Saku-
otoko. 6. Saku-onna. 7. Sendo. 8. Gyo (fishing)-/M (man).
84
pkivate law in old japan.
Hokurokudo. In Kaga kuni, Nomi kon, the term for
hiring sailors is from the depai'ture to the return of the ship.
In Echu kuni, Nikawa kori, laborers are commonly
hired for house-building, roof-laying, and rice-planting, and
are termed " help." ^ In Imizu kori, a person hired to
Carry is hound to carry carefully, but is not liable for injury
happening through calamity of Heaven.
Sanindo. In Izumo kuni, Nogi kori, no " place-filler " 5
exists for the hiring of servants 3 and the master hires them
directly. But there is a person called " parent who acts
as surety for such persons and through whose hands the
wages® are paid twice a year. No regular custom exists
as to the hiring of artisans ; the wages are reckoned at so
many sen a day, and not by the month.
Sanyodo. In Suwo kicni, Yoshihiki kori, there is a
person in towns called " place-filler," 3 who recommends
servants for positions. The term of service for women
hired through him is usually half a year ; as to men there
is no general rule, but the wages are reckoned at so many
yen per year. No instrument of suretyship c is required,
and if the servant borrows his salary in advance and then
runs away, the master cannot recover the money from the
" place-filler." The wages of artisans are reckoned at
so many sen a day.
1. Go (helpj-rj/ofcit (power). 2. Kuchi (opening, hence, empty
place or position)-ire (put m)-nui (person); employment-office.
3. Baku (man-servaut)-hi (maid-servant). 4. Oya (parent)-6!i7i (part,
position. 5. Kyu-ryo. 6. Uke-shosho.
( 85 )
CHAPTEK V.
DEPOSIT.!
la contracts of deposit the depositor 2 usually
selects as depositary ^ some trustworthy person among
his relations or friends, so that the interchange of in¬
struments is rare, and there are no special customs on the
subject. But it is customary to favor [the claim arising
from] the receiving of money on deposit ^ more than the loan
of a thing for use,5 whether interest on the money is paid
or not, and hence, although it be lost by a calamity of Hea¬
ven,'' the obligation of returning it is not affected. Variations
from these principles, are as follows :
Kinai. In Yamato kuni, Soyegami kori, when the
harvesting in the autumn is finished, the farmers sometimes
entrust their cattle to those who live in the hills. The
bailee 3 uses them for his own needs and obtains the benefit
of tbe manure, and no charge is made, [because the bailor
has the benefit of the Iseep of the cattle during the winter].
If by calamity of Heaven the cattle are destroyed or injured,
the bailee is not liable ; if by his negligence, he must make
compensation, but in this case a compromise is usually
made.
1. Futaku. 2. Aziike-mishi. 3. Azukari-nxtshi. Azukeru sig¬
nifies actively the making of a deposit; azukanx signifies passively
the receiving of a deposit The idea of a trust or confidence is
also implied in both words. 4. Azukari-kin. 5. Shaku-yo-hutsu'
6. Teix-sai.
66
private law in old japan,
In Settsu kanl, Yabe Unri, there has been no such ex¬
pression as " loan of money for use," i the only term used
for all such transactions being "receiving money on
deposit," 2 Interest is not stipulated, in the true deposit of
money, and the obligation is to repay the sum without fail,
even though it be lost in consequence of a calamity of
Heaven,
Tokaido, In Iga kimi, Abe kori, in the case of money
received on deposit, the obligation is considered much heavier
than in the case of loan,® and the sum must be repaid even
though it be really lost.
In Ise /liini, Wataraye/wri, no term "money loan
is in use, all such transactions being known as "receiving
money on deposit; " so that [no distinction is made and]
all disputes are in fact decided according to the rules of
deposit,®
In Mikawa kuni, Atsumi knri, in a deposit of rice, the
depositary receives a storage-fee ; ® in a deposit of money,
the depositary pays a low interest. If the object of the de¬
posit is lust through some calamity, the depositary need not
make good the loss, in case of rice; but he must, if it is
money.
In Idzu kuni, Takata kori, if an object received on de¬
posit,® whatever it may be, is destroyed, the depositary must
make good^ the loss.
In Sagami kuni, Ashigara kori, when an object received
on deposit, for which a storage-fee ® is paid, is lost through
a calamity of Heaven, the depositary does not make it
1. Shaku (borrow)-j/o (use)-A:m. 2. Adzukari-kin. 3. Taishaku
4. Kimen (lit. gold and co-p-per)-taishaku. 5. I, e. even when the
transaction of deposit is really a loan, the responsibility of repaymen
is absolute. See the legal precedents in Part III for the difference
in the treatment of deposits and loans. 6. Kura {storehouse)-shiki
{put)-kin. 7. Beitsho. 8. Adzukari-mono. 9. Kura-sbiki-dai (price)-
kin (money).
part ii.—contract : civil customs.
87
good. But as money received on deposit ^ is applied to his
use, he must repay it without fail, even though it be lost by
fire or theft.
In Kai kiini, Yamanashi kori, when an article is
deposited in a storehouse, a storage-fee is paid, and the
depositary is bound to keep the article safely.
Tosando. In Shinano Jcuni, Saku kori, it is customary
to deposit the funds of an inheritance,^ during the heir's
minority, with some adult, aud funds for temple-repair ®
with the chief-pai'ishioner ; ^ the savings of old men are also
deposited. Low interest is charged in these cases, and a
written instrument is seldom given. The depositary of
such funds 5 lends out at a higher interest, paying only the
lower interest to the depositor ; and if the former becomes
insolvent, the fund is not taken by the creditors. In
Minochi kori, the depositary must pay if the article
deposited is lost in any way whatever.
In Kikuzeii kuni, Miyagi kori, where goods are depo¬
sited with a wholesale house,® a written document, with
surety, is given. The depositor pays a deposit-fee,'' and
cannot get back the goods until it is paid. The depositary
is liable, if the goods are lost or destroyed, even by calamity
of Heaven.
In Uzen kuni, Okitama kori, where goods are de¬
posited, a storage-fee® is paid ; and the depository is not
liable even though the goods are injured by fire or insects or
are lost by theft or robbery.® If an entire storehouse is
hired, the key is given to the hirer.
Hokurokudo. In Kaga kuni, Ishikawa kori, the
depositary, if he charges for storage, must keep the goods
very carefully.i® He is not liable for destruction caused by
calamity of Heaven ; but is liable if it is due to his fault.'i
1. Adzukari-hin. 2. Sozoku-kin. 3. Shvfiikii-kin. 4. Dan-clw.
5. Adziikari-kin. 6. Toiyg. 7. Adzukari-chin. 8. Kiirashiki-ryo.
9. See Note 3, p. 88. 10. Yoku (well) hozen (safe-perfect)-sara (do).
11. Ayamiichi.
88
PKIVATE LAW IN OLD JAPAN.
When a wholesale house or a warehouse-keeper accepts goods
on deposit for compensation, the obligation arises to keep
safely.i In the case of the shipping-and-wholesale houses2 of
the seaports, the customary obligation is to make com¬
pensation if the article received on deposit is destroyed by
fire caused by the bailee's fault, or is lost by theft or
robbery,3 or is damaged by rain-leakage due to the non¬
repair of the storehouse.
In Noto Inini, Hoshi kori, when a mare is bailed without
charge by the depositary, the latter may make use of her in
his cultivation, and also receives half the value of a foal, if
any is born during the term. If the animal hailed dies, the
depositor bears the loss. In Hagui kori, the depositary is
bound to keep the article very carefuUy,^ because he receives
a fee® for his services. If it is destroyed otherwise than by
calamity of Heaven, he must make compensation.
In Echu kuni, Tonami kori, when rice or other gi-ain is
deposited iu a storehouse, the usual period is from the time of
the harvesting to the 7th month of the succeeding year; and
the storage-fee is at the rate of 2 sho per kokufi The
rate is the same even though the owner withdraws the
deposit before the end of the term; and if the deposit
continues beyond the term, 1 sho per kokii is added to
the charge.
In Echigo kuni, Kambara koi i, when rice or other grain
is sold, but is kept on deposit by the seller, the time is
fixed, a written document is given, and the depositary is
liable if the goods are destroyed by fire or by rats, or if they
are lost by theft or robbery. But if the depositor fails to
1. Hozeii sum. 2. Funa-doiya. These toiya apparently did
much of their business on commission ; but the term " wholesale
house" has been preserved in order to distinguish them from
nakagai, brobers or ordinary commission houses. 3. To-nan; this
term does not distinguish between theft and robbery. 4. Mappara
(paramount, most important) hozen sum. 5. Tesu-ryo (lit. trouble-
money). 6. 2 per cent.
part ii. contract : civil customs. 8&
take away the goods at the end of the term, and they are
afterwards destroyed, the loss is his.
Sanindo. In Idzumo kuni, Shimane kori, where an
entire storehouse ^ is hired, a term is fixed, a written in¬
strument given, and a storage-fee paid; and when the key is
handed over, the storehouse-owner has no further responsi¬
bility. But where only a few bales of grain or casks of
wine or other articles are deposited, the key is not handed
over, and so the depositary is under the obligation of keep¬
ing the goods carefully.2 In Nogi kori, when the depositary
receives a fee, he is bound to keep 3 carefully,^ and is liable
if the article is lost.
In Iwami kuni, Shima kori, a storage-fee is paid, and
the depositary is bound to keep carefully.® If the goods are
lost by theft or roberry or are destroj^ed by fire, the
depositary is liable; if by any other calamity of Heaven, the
depositor loses.
Sanyodo. In Harima kuni, Shikito and Sayo kori, it
is considered that a much heavier obligation attends money
received on deposit than attends money loaned for use,®
and there is an old law that when a judgment is rendered
[in bankruptcy] the latter ^ shall be ordered to be paid off
first.
In Suwo kuni, Tsuno kori, where a whole storehouse is
hired, a charge is made, and the key is handed to the
depositor, who is bound to keep the storehouse carefully.®
In Bizen kuni. Mine kori, when goods deposited are
lost by theft or robbery, the depositary must pay at least
some portion of their value; but when they are destroyed by
fire or injured by rats, the depositor bears the loss.
1. Duzd. 2. Tori-shimari (exactly, strictly). 3. Mamori-ohi (put
under watch), i. Chu-i. 5. (superintend, guard). 6. Sha-
ku-yo-kin. 7. This seems clearly to be an error ; read " the former."
8. Kwan-shu (take care of—guard). This krcan differs slightly from
the ktmn in Shima kuni, supra.
so
private law in old japan.
Nankaido. In Sauuki kuni, Naka kori, it is considered
that a much heavier obligation attends money received on
deposit than attends money loaned for use, and it is the
custom to require its repayment, even when lost by a
•calamity of Heaven.
P. 91, line 2 from bottom : Insert:
Strictly speaking, too, " pledge " should not be employed where,
as often' (apparently) with shichi-ire, the title, and not merely the
possession, passes to the creditor. But firsTJ the idea of a transfer
of full ownership is no longer an essential part of the Anglo-Ame¬
rican mortgage, as distinguished from a pledge; and, secondly,
" pledge " is the nearest term to ihichi-ire and will suffice if notice
he given, as here, of the sense indicated.
( 91 )
CHAPTEK VI.
HYPOTHEC^ AND PLEDGE.^
I.—REAL PROPERTY.
Kinai. In Yaraato laini, Kuse kori, land is not pledged
but is placed in hypothec. The transaction is nominally a
transfer of the property to the creditor, the instrument heing
sealed and recorded hy the local officials, and the whole
process heing known as "provisional alteration."^
1. Kaki-ire (written-entry). The original form of the term seems
to have been kakiire-sliichi, that is, a security created merely by a deed
or by an entry in a register. 2. Shield (pledge, also, security in gen¬
eral-ire (put). Teito, a term sometimes occurring, seems usually to
be a term meaning " lien " or " security " in general. But some¬
times it is equivalent to kaki-ire. Ten has a similar meaning. The
■word " mortgage " will here be employed to include both pledge and
hypothec, where the original seems to indicate no distinction. The
word " hypothec " is here employed in its ordinary sense as signify¬
ing an interest in land given by the debtor to the creditor by way of
security, the debtor retaining possession of the property, real or per¬
sonal. The word " pledge " is used as signifying a similar interest
involving the transfer of possession to the creditor, whether the pro¬
perty be real or personal. These terms have been employed because
they seem to correspond to the usual content of the terms " kaki-ire"
and " shichi-ire," and because no literal rendering of these would
convey their meaning adequately. It is true that " pledge " is usually
applied in English law to personal property only. But there is no
reason why it should not be employed for realty also. The term
" nantisseinent" is soused in French law. In the Japanese Draft
Civil Code (Art. 1121) M. !^issonade has employed the terms " nau-
tissement mobilier " and " nantissement immobilier." S. Kari-
kakitsuke-kuye.
92
private law in old japan.
In Settsu hunt, Yabe kori, the term " hypothec," in
towns and villages alike, is unknown, and all such trans¬
actions are called " pledge." When cultivated land is
pledged, the taxes and sundry charges are nominally paid
by tbe creditor, the debtor in name becoming the creditor's
tenant. In fact, however, the debtor merely pays the
annual interest agreed on, and at tbe same time is
responsible for taxes. The usual term is one year, hut
the instrument remains valid for 10 years. If at the end
of that time the debt remains unpaid, the property becomes
the creditor's forever. In towns the transaction is similar,
the creditor nominally but the debtor actually paying the
town charges. If the land is not redeemed, within the
period specified, it becomes tbe creditor's forever. As a
proof that the land has not already been mortgaged, the
ward-elder, in towns, and the headman, in villages, seals the
instrument.
Tosando. In Iga kiini, Abe kori, in towns, when the
debtor who has created a lieni on his land is not able to
pay at the appointed time, the local officials usually constrain
[the debtor] to renew tbe instrument. If he refuses, they
proceed to sell the land, sometimes without eveu informing
the creditor.2 On the occasion of a renewal, tbe officials
take 5 one-thousandths of the loan as a fee. In villages
real property is mortgaged under tbe name of a sale, called
" sale with redemption on repayment within a term of
years." 3 The name of the owner in the land-register is not
altered ; but a note is made of the mortgage. The taxes
and sundrj' charges are paid by the owner, who also pays
interest on his debt. If at the expiration of the term, which
usually does not exceed 10 years, he is not able to discharge
the debt, tbe instrument is commonly renewed.
1. Teito. 2. This procedure is unexplainable; but tlie passage
cannot be interpreted in any other way. 3. Molo-ukeryo nannen-
kagiri-uriwatashi.
PART II.—CONTRACT : CIVIL CUSTOMS.
93
In Ise Imni, Ano kori, there is no pledge of real
property. Where in villages one borrows money by creating
a lien^ on realty, he makes an instrument in which are
entered 2 the assessed production, area, and name^ of the
plot. This is signed and sealed by the witnesses and the
company-chief and indorsed by the headman^ and elder.
In case of default, the land is sold for a period of years ; s
for there is no permanent forfeiture.® In towns the instru¬
ment is signed by the [debtor's] company and indorsed by
the headman.'^ On default the property is sold and the
debt paid from the proceeds. The indorsement of the
officials merely attests the non-existence of prior mortgages
and has no effect as regards any controversy between the
debtor and the creditor.
In Shima kuni, Toshi kori, the hypothec is signed and
sealed by the debtor's relatives and company; but as the
headman never does so, it often happens that land is twice
mortgaged. If the debtor becomes bankrupt, the mortgage
creditor has no preference over others, the proceeds of the
property being distributed proportionately. In former times
it was considered a great disgrace to have to hj'pothecate
one's land.
In Owari kuni, Aichi kori, in towns, when residence-
land is hypothecated,® the instrument is signed and sealed
by the relatives and company [of the debtor] iind by the
local officials. It contains the matters of description as
given in the house-register, and a clause that on default of
the mortgagor the land shall be transferred in perpetuity to
1. Teito. 2. Kaki-ire. 3. Azana. See note to Kawachi kuni,
in the chapter on " Sales." 4. Shoya. 5. Nenki-uriu-atashi.
6. Nagare (flow, go adrift, hence, be forfeited). 7. Nanushi.
8. Kaki-ire-shichi. Here we have probably the original form of the
term kakiire. Though the hypothec was at first called a " pledge
by written entry," the firs^ part of the expression came into use
as implying the whole, and thus " kakiire " became opposed to
"shichi" or " skichi-ire."
94
PRIVATE LAW IN OLD JAPAN :
the mortgagee. But as a dispute and thus a lawsuit usually
arises between debtor and creditor, ou the occasion of a
default, the land is in fact not transferred until after the
judgment in the lawsuit. In villages the instrument is
signed and sealed by the [debtor's] company and the head¬
man, and contains the matters of description as given in the
land-register. If a default occurs, the parties usually come
to an understanding, and the creditor allows a further delay
of from 3 to 5 years ; so that the matter is seldom brought
into court.
In Mikawa kuni, Atsumi kori, land is ordinarily sub¬
jected to a lieni by making an entry ^ of the production,
area, and name of the land [in the land-register]. A pledge is
accomplished by the transaction3 referred to in the chapter
on Sales. The instrument is signed and sealed, in villages,
by the relatives and company of the debtor and the head¬
man, in towns by the relatives and a representative^ of the
company and by the headman. The chief of the company®
uses his ofiicial seal, as the headman does, and not his own
principal-seal.® In Nuhata kori, real property is put in
hj'pothec only, not in pledge. The instrument, in towns, is
signed and sealed by the relatives of the debtor and by the
headman and must contain a statement of the depth and
frontage of the premises. In villages it bears the signatures
and seals of the debtor's relatives and company and the of¬
ficial seal of the headman,'^ and contains a statement of the
production, area, and name of the land. The headman
usually declines to sign a mortgage where the creditor is in
another ward. But in the case of " ward-money,"® a loan
is sometimes made to another ward alld secured by a hypo¬
thec of residence-land.
1. Teito. 2. Kakiire. 3. Kanyo-uri. Probably the " sale of
patrimony " there mentioned under Mikawa kuni. But this term is
not there used and its significance is obscure. 4. Sodai. 5. Kumi-
gashira,—i. e. the sodai just mentioned. 6. Jitsu-in. 7. Shoya.
%. Machi-kin, money lent to a ward (or village) by the feudallord.
See the chapter on Bankruptcy (Mikawa kuni, Mikata kori).
PART II. CONTRACT : CIVIL CUSTOMS.
95
In Mnsashi Incni, Toyoshima kori, a transaction known,
as " house-pledge is effected by depositing the title-deed ^
with the creditor or the headman ^ during the term of the
loan, the deed in the latter case being enclosed by the debtor
in a sealed envelope, and the instrument of debt being in
both cases countersealed by the headman and the debtor's
company. Another kind of security is the " title-deed de¬
posit,"^ the instrument of debt being executed by the parties
only and deposited with the creditor and not countersealed
by the headman or company. But in this case, if a suit
arises, the debt is not recognized by the court as having any
preference over others.
In Totomi kiini, Sauo kori, in case of a pledge, the
land is delivered to the creditor, who pays all taxes and
sundry charges, the land being called " good-wiil land."
The relatives, company, and village officials seal the instru¬
ment, which contains the ordinary description. This, with
an additional document bearing the seals of the village
officials, is deposited with the mortgagee. The term is
usually 5, 7, or 10 years, a short one being preferred. If a
default occurs, the property is forfeited, and the name of the
owner in the register is changed. In hypothecs the instru¬
ment is executed by the parties only, and bears no seal of
the officials. In Shikicbi kori, the pledge is usually for a
term of 10 years, and on default the land would strictly
become forfeit and the owner's name be altered in the
register. But this extreme result is seldom reached
and another term of 10 years is usually granted. For
this reason a farmer having large possessions consisting of
mortgage-lauds is looked down upon as not owning a family
1. lye jichi. 2. Ku (buy and sell)-kenjo (instrument); it served
as a certificate of title in ^ansfers and was handed over with the
property. 3. Naiiimhi. 4. Ko-lienjo-adzuke. 5. Mainai (something,
given as a favor on request) clii.
PRIVATE LAW IN OLD JAPAN.
patrimonybecause his ownership is not complete. Besides
the pledge for a definite term, there is a " pay-when I-have-
money deed," 2 by which it is stipulated that the debtor
may redeem whenever he obtains the money. The hypothec
is of the ordinary kind and bears the seals of relatives,
company and headman. A mortgage-creditor of course has
a preferred claim in case of bankruptcy.
In Kai kuni, Yamauashi kori, in a pledge, the instru¬
ment of debt 3 is witnessed and then taken to the headman,
who places a divided seal ^ upon the instrument and the land-
register, and then attests by indorsement the genuineness
of the contract. But sometimes this instrument is delivered
directly to the creditor after being witnessed. The creditor
is always liable for the taxes and sundry charges. The
period of payment varies. Sometimes it is agreed that redemp¬
tion may take place at any time during the term, but not
thereafter; sometimes that redemption may be made after the
expiration of the term. In Kamakiira kori, the usual
period is 10 years. But a second 10 years is added, if the
debtor desires. On default at the end of the 20 years,
the land is forfeited and the creditor becomes absolute
owner. In another kind of pledge, called " happen-to-have
pledge," ® the debtor may redeem at any time before 10
years have passed, but not thereafter. In the hypothec the
details vary greatly, and depend entirely on the understanding
of the parties.
In Idzu kuni, Takata kori, in a pledge, the term is
always fixed. The pledgee pays all taxes and sundry charges,
and his name is substituted in the land-register as owner.
In a hypothec there is merely a deed gpiven, and the village
officials take no part in the transaction. If hypothecated
1.1/f/o (name, i&rm\y)-sldki (bottom, foundation)-c/ii (land). This
seems the best interpretation of this troublesome phrase. 2. Kane
{money)-ari (is, comes) shomon. 3. Kashikin shoslio. 4. Wari-in,—
part of the impression appearing on one document and part on
another. 5. Kin (money)-«/i!( (master). 6. Ariai-shiclii.
paet ii. contract : civil customs.
97
land deteriorates in value, other land must be substituted if
the creditor requires. If a default occurs, the land is put
in pledge with the creditor. As perpetual sales are prohibit¬
ed, transactions of sale are called "pledges for a fixed term."
The usual term is 10 years, and forfeiture ensues on default.
But in case of forest-land, 24 or 25 years is the usual term ;
and if redemption is made after that time, the mortgagee first
cuts down all the timber. The reason for such an extension
of the ordinary period is that, while cultivated land yields
annual returns, a forest, when cut, requires 7 or 8 years
to attain a growth serviceable for fuel and other purposes,
and thus the creditor is able to cut the timber not more than
3 times during the whole term.
In Hitachi kiini, Ibaraki kori, the local ofiicials do not
attest any mortgage, unless it is given for arrears of taxes.
Tosando. In Omi kimi, Shiga kori, there is no pledge,
properly so-called, of real property, the hypothec alone
being used. However, there is sometimes found in villages
a kind of land called " term-land ";i in this case the
debtor has transferred the land for a limited period to the
creditor, who takes all the profits except an amount
equivalent to the taxes, and this he gives to the debtor
for payment to the collector. In Inugami kori, mortgages
are usually made by way of hypothec.2 But in some
villages land is transferred to a pledgee for a limited
period, and he pays the taxes and other charges.
In Hida kuni, Ono kori, all mortgages' are attested by
the oflScers of the ward or village; the term usually does
not exceed 10 years. The law is that the creditor shall
cultivate the land, either himself or by tenants, and pay
all taxes and sundry burdens. But the law is not strictly
observed, and although every mortgage is described in the
document as a pledge, the debtor ordinarily retains possession
and cultivates it, paying the taxes and sundry charges, and
1. Nengen-da. 2. Kakiire or teito.
7
•98
PRIVATE LAW IN OLD JAPAN.
also the annual interest—in rice or money—to the creditor.
At the end of the term the debtor may redeem ^ by paying
the principal.2 A different sort of transaction, called " part
forfeiture," 3 is as follows. Where a debtor has hypothecated
his land and defaults in payment at the end of the term, the
creditor assumes possession and undertakes the payment of
taxes and charges, while the debtor on his part signs a
document guaranteeing that neither his relatives nor others
shall make any claim against the creditor ; but it is to be
noticed that the name of the owner is not altered in the
laud-register. If after an agreed period the arrears^ are
discharged, the owner 5 is at liberty to do as he pleases
with his land.
In iShinano htmi, Hanu kori, the instrument, after
execution and attestation, is delivered to the officer of the
village, who compares the description in the deed with that in
the land register and then certifies to its correctness. The
creditor owns the land during the term, and out of the profits
pays the taxes and sundry charges. The debtor may redeem
at the expiration of the term and may have the deed also re¬
turned to him ; but if he defaults, forfeiture usually ensues.
In Ogata koti, where the term of pledge is fixed, the debtor
cannot redeem before its expiration, nor can he do so after a
default, if a stipulation for forfeiture has been made in the
deed. If no term is fixed, the debtor may redeem whenever
he is able, though not after 10 years have elapsed. In Saku
knri, in former times, hypothecs and pledges were sometimes
made for terms as long as 15 or even 20 years, and the in¬
strument was not attested by the village officers. But during
the period Kyoho (1716-1736) the ^actice arose of having
such au attestation; and after Kwansei (1789-1801) and
Bunkwa (1804-1818) the term ordinarily was from 5 to
10 years only. During Kayei (1848-1854) and Ansei
1. Vke (receive)-modosii (take back). 2. 3loto (original)-/i/»
(mone}'). 3. Clu't-nayare. 4. Fiisai. £. Jinushi.
PAET II,—CONTRACT : CIVIL CUSTOMS.
99
(1854-1860) it was still shorter and varied from 3 to
5 years. The customary contents of a deed of pledge
are as follows : A recital that the description of the plot by
area, grade of soil, and name, agrees with that contained in
the laud-register; a recital that a specified sum of money
has been borrowed for a specified term of years ; a stipulation
that the property may be redeemed on the expiration of the
term by paying the amount of the debt; and a stipulation that
all taxes and charges shall be paid by the creditor during
the term. If the description of the pieces of land takes up
more than one page, it is put on a separate paper, which is
also attested by the village officer and is duly referred to in
the principal instrument. Where the requirements as to
attestation or length of term are transgressed or the de¬
scription does not correspond with the register, no action will
be entertained upon the instrument. Where the headman
himself is pledgor,^ the attestation must be by another head¬
man or by the company-chief and the farmers' representative.
Any provision that, while the pledgee ^ shall cultivate the
land and take the profits, the pledgor shall nevertheless pay
the taxes and render the local services ; or that the pledgor
who attorns as tenant 3 of the pledgee shall render the local
services ; or that the pledgor shall attorn as tenant 3 of half
the pledged land and shall pay and render taxes and services
upon it; or, finally, that an undivided piece of land shall be
divided for the purpose of pledging, is unlawful. In Mino-
chi Icori, the usual term is 5 years, and the instrument is
attested and indorsed by the village officers. If a default
occurs, the debtor, even though the property be insufficient
to discharge the debt, may claim from the pledgee the pay¬
ment of a sum called " tears-money,"* equal to one, three.
1. Shichi-oki {put)-Jius?ii (master, person). 2. Shichi-tori (take)-
nu$hi. 3. Jihi (near, next)-Ictsaku. 4. Namida-kin,—because it was
originally a sum charitably granted in answer to the tearful suppli¬
cations of the debtor.
100
PRIVATE LAW IN OLD JAPAN I
or five huudredths of the priucipal; and this sum the debtor
deposits for the benefit either of his town ward ^ or of his
Buccessor.2 Moreover a pledge of cultivated land may be
redeemed at any time within 10 years after payment is due.
In Shimotsuke knni, Tsuruga kori, the longest period
for hypothec is 10 years; on default, the ownership is
transferred. Cultivated land iu the neighborhood of Nikko
yields so little return that no one will take it as security,
forest-land alone being taken in mortgage.
In Iwaki kuni, Shirakawa kori, in towns, mortgaged land
is never forfeited to the creditor. If a default occurs, the
land is sold and the debt paid out of the proceeds. Hypothec
is the only form of security used.
In Iwashiro kuni, Aidzu kori, in towns, if a default
occurs in a hypothec,® a report is made to the local oflBce, and
the land is publicly offered for sale for 30 days.^ If no
purchaser is found, the land is sold at auction,® the creditor
taking the proceeds, and handing the surplus, if auy, to the
debtor. If no bid is received, the land is transferred to the
creditor. Where land is pledged, it can be redeemed at any
time, no matter how long after the pledge was made.
In Eikuzen kuni, Miyagi kori, there has never been
any distinction between " kaldire-shiclii" and " teito,"
[and the latter is the term in general use for a hypothec].
The debtor and creditor, after agreeing on the term, draw
up the instrument; the debtor seals ; his relatives and com¬
pany, with the headman, counter-seal; and it is then delivered
to the creditor. In Toda kori, a pledge of land (especially of
residence-land) is called " private arrangement." ® There are
1. Machi-kin. 2. Sozoku-kin. 3. Kakiire or teito. 4. Apparently
at a stated price, probably the amount of the debt. 5. Ire (put
in)-fuda (card); the bidder writes on a card the amount of his bid,
and either puts it in a receptacle or sends it by messenger, the
highest bid being usually accepted. But the process differs from an
auction in that the seller merely announces a willingness to sell
and bids may be sent in at any time. 6. Nai-shimatsu (private-
arrangement). The force of the nai is not clear.
PAST II. CONTRACT I CIVIL CUSTOMS.
101
two sorts, one is the " private arrangement" properly so
called, the other is " pledge-land private arrangement."
The former is in effect a sale.^ The transaction is as
follows. A petition for permission to sell, sealed by the
debtor and creditor, and countersealed by the relatives
and company and by the headman,^ is presented to the chief-
headman,® who counterseals and forwards it to the feudal
deputy.^ The latter transmits it to the district-deputy,®
whose sanction ends the process. In the " pledged-land
arrangement" the debtor seals the instrument, obtains the
counterseals of his relatives and company and of the
company-chief and headman,^ and delivers it to the
creditor. After a foreclosure, a petition asking transfer
of the estate ® is made, in the same manner as above
described.
In Uzen hini, Okitama kori, in a hypothec, even though
redemption is not made within the agreed period, the land
does not become forfeit provided the interest is paid. In
Tngawa kori, an instrument of hypothec is generally attest"
ed by the ward or village officers, but sometimes by only the
relatives of the debtor. But an instrument of pledge must
always be attested by the ward or village officials.
In Ugo kuni, Akita koii, in a pledge, the debtor delivers
a deed of perpetual^aleto the creditor, and takes a receipt
in exchange. The term varies from 3 to 10 years. The
transfer is recorded in the land-register 8 and the name
of the owner is changed. If a default occurs, the land
is forfeit.
1. It seems to be a transaction accompanying the abandonment
of one's own family name (nai-tsuhure, private-extinction) and adop¬
tion into another family, in order to keep the latter from dying out,
as described in the chapter on "Domicile" in Part VII. 2. Kimoiri.
3. Okimoiri. 4. Daikwan. 5. Gundai. 6. Takawake-negai. For
some further notes on mortgage and tenancy in Rikuzen kuni, see
Appendix. 7. Yeitai-uri-watashi. 8. Qoyo (ofiicial)-clio.
102
PBIVATE LAW IN OLD JAPAN :
Hokkaido. In Oshima kuni, Kamedo Icon, all mortgages
of realty are in the form of hypothec.i In most instances
the title-deeds are deposited with the creditor, and no
instrument is executed.
Hokurokudo. In Wakasa kuni, Onifu kori, the name
used is always " pledge," never " hypothec." There are,
however, two methods. "Where the term is limited, the
creditor is never charged with the payment of taxes and
sundry charges; but where there is no fixed term, the
creditor is so charged.
In Echizen kuni, Asuha kori, in villages, a pledge is
called "original article",2 and the pledgee pays the taxess
and sundry charges.^ In the hypothec, land is merely
subjected to a lien.® In towns, in a pledge of realty, the
house and adjoining land is all given over to the pledgee,
who renders the various services.® The deed usually pro¬
vides that if the house is burnt by calamity of Heaven,^ the
ground alone need be restored. In Tsuruga kori, what is
called "hypothec" is the creation of a lien ® on cultivated,
forest, or residence land for a limited period; and if a
default occurs, the debtor sells the laud mortgaged and
then pays his debts. A pledge, in the usual sense, is
unknown.
In Kaga kuni, Ishikawa kori, the hypothec® of land is
forbidden by a law of the fief; so that people usually
mortgage by means of a sale with agreement for re-purchase
within an agreed period.
In Echu kuni, Imizu kori, both pledge and hypothec
of laud are forbidden by a law of the fief. However, a
hypothec of buildings is often privatelj^ made, the debtor
giving the creditor an instrument couutersealed by a witness,
and keeping possession of the property. The creditor cannot
1. Teito, kakiire. 2. Hon-motsu,—probably an abbreviation of Aon-
motsu kayeshi,01 conditional sale, described in the chapter on " Sales"
and substantially a pledge. 3. Koso. 4. Shohi. 5. Teito. 6. Yaku.
1. Ten-sat. 8. Kakiire-shichi.
PART II. CONTRACT : CIVIL CUSTOMS. 103
on default take possession of the property, but has a right to
have it sold to pay the debt.
In Echigo kiini, Kambara kori, in towns, when a hypo¬
thec ^ is made, the instrument is countersealed by the
debtor's company and transmitted with a petition to the
ward-representative. 2 The latter searches the register to
see whether a prior mortgage exists, enters in the register
of the ward-assembly the debtor's name, the amount
borrowed, the term and the interest, certifies by inscription
the genuineness of the instrument, and hands it to the
elder, who examines, indorses, and seals it. In villages, the
borrower and lender consult and agree as to terms, and
the former then petitions the headman to permit the contract.
If permitted, the debtor executes the instrument and delivers
it to the creditor. The term caunot exceed 10 years, and
during that time the creditor is entered in the land register
as owner. In case of default the land becomes forfeit, and
an instrument of forfeiture is delivered to the creditor by
the debtor, the former thus obtaining complete and perfect
ownership of the land. In Uwonuma kori, there are two
kinds of pledge, one, a pledge properly so called, lasting
usually for 5, 7 or 10 years, and the other in substance a
sale. The form of the instrument is in both the same ; but
in the latter the term is one year only, and if a default
occurs, the land is forfeited to the creditor. In Koshi kori,
a pledge, whether of cultivated laud or of residence land,
is in form a sale, the instrument being known as a " deed of
offering.''^ The buyer gives the seller a document agreeing
to return the land at the expiration of an agreed period on
payment of the original sum. The only requisite for
hypothecs is the attestation of the instrument by the local
officials. In Kubiki kori, the custom is for the debtor to
give the creditor au instrument of sale,^ and the counter-
1. Kakiire-shichi. 2. itachi-dai. 3. Sashiaije-shosho. 4. Bai-
ken-shosho.
104
private law in old japan :
seals of the company and the headman are wanting, the parties
alone sealing the instrument. In Kariha kori, a hypothec
requires the attestation of the local officials, iu villages as
well as in towns. There are two methods of pledge; in
one, the creditor pays the taxes and services ; in the other
the debtor. The parties choose the method they prefer;
but the former is usually a sale to all intents and purposes.
In Sado kuni, Zota koH, the borrowing of money by
giving security in the shape of a lien^ is called "pledge,"
although the transaction is in fact only a hypothec.® The
taxes during the term may be paid or not by the creditor,
according as agreed ; but in the former case the transaction
is in effect a sale.
Sanindo. In Tango kuni, Yosa kori, in villages,
mortgages of cultivated land are sometimes called pledges*
while they are in fact hypothecs, the debtor paying the
taxes and sundry charges. But the mortgagee, even when
claiming under a properly attested deed, cannot satisfy
himself from the estate until it has discharged all arrears
of taxes. In hypothecs of town land, a slip® is attached to
the entry in the house-register, and the details are entered
in a separate book called " register of house-pledges."^ On
default, the house is, according to the term of the agreement,
either transferred to the creditor or sold.
In Hoki kuni, Omi kori, the debtor sometimes makes
a perpetual sale to the creditor, receiving in exchange a
document stipulating to return the land on payment of
principal® and interest® before the expiration of the term.
This is the true pledge. Other transactions, though called
pledges, are in fact hypothecs. •
In Idzumo kuni, Shimape kori, in towns, no distinction
has ever been made in words between "pledge" and
" hypothec," the term " pledge" serving for both trans-
1. Teito. 2. Kakiire. 3. Sagefuda. 4. Iije-shichi-cho.
5. Gwan-ri.
part n. contract : civil customs.
105
actions. The debtor delivers to the creditor the instrnmeiit,
countersealed by a surety and by the company and indorsed
by the chief inspector ^ and the ward-elder ; the creditor then
delivers the money or rice agreed on. No distinction is made
between the mortgage of a building and of the ground under
or around a building, both being known as "house-and-
lot" 2 mortgages. In villages the parties to a hypothec
report to the headman,3 who enters the particulars in the
register of pledges,^ and the instrument, after being counter-
sealed by the headman and elder, is given to the creditor.
But the latter does not take possession of the land, and
interest is paid in money.
In Iwami kiini, Mino kori, all pledges are counter-
sealed by the ward or village officers. The creditor takes
possession of the land and obtains a profit by cultivating it
himself, so that no interest is paid. At the end of the term
the debtor may redeem by paying the principal. In hypo¬
thecs the ownership remains in the debtor, so that the
interest is to he paid in money, and on redemption both
•principal and interest must he paid.
Sanyodo. In Harima knni, Shikito kori, the usual
term for a pledge is one year, the taxes and sundry charges
being paid by the pledgor, and the land being redeemable
on payment of principal and interest. But the original
instrument retains its validity without renewal [and gives
a right of redemption] for 10 years in all, and if default
then occurs, the ownership passes to the creditor. In Sayo
kori, the usual term is 3 years, the pledgor paying taxes
and having the privilege of redemption, as above, for
10 years.
In Bizen kuni, Mino koti, in towns, instruments of
mortgage must hear the seal of the headman and also of the
house-pledge officials, who are publicly elected, by order of
1. 0 (official or chiet)-molnidai. 2. lye-yashiki. 3. Shoya.
4. Shichi-hikaye-cho.
106
PKIVATE LAW IN OLD JAPAN :
the mngistrate, and transact all business relating to mortgages
of real property.
In Aki kuni, Numata and Aki kori, the usual term for a
securitywhether in villages or in towns, is 9 months. At
the end of that time another 13 months is added. If the
debtor is then still in default, and the parties cannot be re¬
conciled, the land must be transferred to the creditor. This
is called " register-changing." ^ But it seldom happens, for
the local officials are required to bring about a private settle¬
ment whenever possible.
In Suwo kuni, Yoshihiki kori, a hypothec is constituted
as follows. The debtor reports to the balk-masterS (who
keeps the land-register and the pledge-register ; the latter
the name and area of the land and the terms in the
pledge-register, and then, with the headman, indorses the
instrument. The debtor retains and cultivates the land
himself, paying interest in money. The land seldom goes to
the creditor by forfeit; for the debtor, if his money fails, sells
the land and discharges his debt with the proceeds, the
value usually being much in excess of the debt. But if the
laud will just pay the debt, it is forfeited to the creditor, and
the debtor transfers it by a " deed of offering or " deed
of grant."® In Kyuka kori, a mortgage is usually effected by
a deposit with the creditor of the title-deeds,^ with a so-
called " annexed-document."® This is called a " deposit-
pledge." ® The instrument is not sealed by the ward or village
officers. Sometimes a mortgage is accomplished by the
surrender of the old title deeds and the issue of fresh ones
indorsed and sealed by the ward or viUage officers. Tliis is
known as an " original pledge; " tHI process being similar
to that used in sales for a term of years.
1. Teito. 2. Cho-kiri. See the chapter on " Sales," Tama-
to kunL 3. Aze-kashira. 4. Shichi-ire hikaye-cho. 5. Age-jo.
6. Yuzuri-jo. 7. Kenjo. 8. Soye-shomon. 9. Nagekomi (throw iiito)-
shichi. 10. Uon-shichi. See note 2, p. 102.
paet ii. contracts civil customs.
107
In Nagato kuni, Amu kori, when buildings only are
hypothecated, the instrument does not bear the seal of ward
or village officers.
Nankaido. In Kii kuni, Nakusa and Imibe kori, when
a security ^ is given, the deed is sealed by the debtor and
witnesses and attested by the headman,^ kimoiri,^ and
chief-headman,^ and the transaction is called " return of
original price;" 5 the transaction is in effect a sale. In
towns, when a debtor defaults, the ward officers call upon
him, and if no result ensues, the town magistrate is informed
and the property sold to pay the debt. The surplus, if any,
is given to the debtor ; if there is none, the creditor suffers so
much loss. But sometimes, when the value of the estate
is much below the amount of the debt, the land is trans¬
ferred directly to the creditor, being then called " forfeit-
land."
In Awa kuni, Miyoshi kori, there is a kind of pledge
called " sale for full 5 years," 6 by which the debtor delivers
the land to the creditor, who is to pay the taxes, to restore the
land at the end of 5 years (but not before) on payment of
tbe debt, and to keep it until paid. An old custom permits
redemption at any time within several tens of years. In a
hypothec, the debtor, when the contract of loan has been
made, signs the instrument, procures its attestation by tbe
village official whose duty it is to examine lands, aud
delivers it to the creditor, who gives the money in
exchange.
In Sanuki kuni, Kagawa kovi, hypothecs are included
in the term " pledge." On default, the property is for¬
feited to the creditor ; and if the debtor neither pays nor
executes a transfer, an action may be brought. But this
1. Teito. 2. Shoya. 3. See Introduction. 4. O joya. 6. Hansen
(original thin^-kayeslii (return). Though teito is used, there seems
to have been here a transfer^o£ possession. See infra, Buzen kuni,
and in the chapter on sales, Kii kuni. See also Echizen kuni, supra.
6. Goka-nen-kiri-uri.
108
PRIVATE RAW IN OLD JAPAN ;
seldom happens, as the headman^ and elder usually inter¬
vene and procure the debtor to pay. In Naka kori, in
villages, to make a lien upon cultivated land to secure
borrowed money, a record ^ is made of the land's production
and area, the property being then known as " pledged
thing." 3 The usual term is one year, and when this
expires, the deed may be renewed. In towns the term is
the same, and if interest is regularly paid, the deed is
allowed to continue without renewal for an indefinite time.
This kind of transaction is properly called "hypothec."^
In lyo kiini, Uwa kori, in villages, to borrow by
creating a lien in cultivated land, the debtor pledges the
title-deeds,® and the instrumeu't of debt is signed by the
company-chief. On default, the property is usually sold.
In towns (where the term " pledge" includes hypothecs)
the instrument is attested by the ward-officials,® and in case
of dispute, the latter must fulfiU their duty by intervening
to settle it. In Onsen kori, in villages, the pledge of
cultivated land, other than new land,'' is prohibited. Mort¬
gages violating this rule have force only between the parties
themselves, and the officials do not record or enforce them.
In towns, where a house or lot is pledged, the ownership is
changed in the pledge-register by attaching a pasted slip.
On default, the complete ownership is immediately trans¬
ferred. The hypothec is of the ordinary kind.
Saikaido. In Chikuzen kuni, Sawara and Naka kori,
the ordinary distinction exists, in villages, between pledge
and hypothec. In towns the hypothec only is used.
In Chikugo kuni, Mii kori, the instrument of pledge
must he sealed by the debtor and tfle surety, and counter-
sealed by the inspector 8 and the headman. The creditor
cultivates the land, paying taxes and local charges, and
1. Shoya. 2. Kakiire. 3. Shichi-motsu. 4. Kakiire-shichi.
5. Ko-sagefuda. See the chapter on " Ownership and Title" (lyo
kuni), in Part V. 6. Machi-yo-gakari. 7. Shinden. 8. Sletsuke.
PART II. CONTRACT : CIVIL CUSTOMS.
109
taking the profits in lieu of interest. The term varies, and
even in case of default, it is customary to restore the land
upon payment at any time within 10 years after the
expiration of the term. But this time is by previous
agreement sometimes extended to 15 or 20 years. The rules
for sealing the instrument of hypothec are similar.
In Buzen kuni, Kiku kori, a pledge is called "return of
the original article," ^ and is in the form of a sale of the
property with agrecmdht to return on payment of the prin¬
cipal. The term may be limited or unlimited. Hypothec is
kuown as " security ;"2 either a deed is given containing a
description of the land, or the title-deeds 3 are deposited
with the creditor. In Shimoge kori, in towns, when a
pledgor is in default and the creditor begins an action, a
"first closing," 1 and then if payment is not made, a
"second closing,"^ is ordered by the feudal official, and
then the property is transferred. In Usa kori, pledges are
all made in the form of sales for a term of years.® The
hypothec® is of the ordinary kind.
In Bugo kuni, Oita kori, pledges are made under the
name of "sales for a term of years," the term "pledge"
not being used. The hypothec is of the ordinary kiud. To
prevent double hypothecation an entry is made in the land
register.
In Hizen kuni, Sonoki kori, hypothec is known as
"pledge." Pledge is known as " sale for a term of years."
1. Honmono-kayesld. 2. Hiki-ate. 3. Ko (old)-shomon (deed).
4. Ge (lowest)-Zat {pait?);p'; (highest)-6i(. The explanation is that
the doors of the shops were (probably) in two parts, an upper
and a lower, opening and closing independently, and that the gehu
signifies the preliminary closing of the lower half, the jobu the final
closing of the shop and cessation of business. The first closing was
apparently provisional, and was intended to hasten the debtor's ac¬
tion, and if the money %as speedily raised the process would go no
further. Compare the chapter on "Bankruptcy," Echigo kuni.
5. Nenki-uri-ivatashi. 6. Kakiire, teito.
110
PBIVATE LAW IN OLD JAPAN :
In Saga Icon, the term is not prolonged unless the consent
of the creditor is secured and a new instrument made out.
In Higo kuni, Aso kori, a pledge is ordinarily for a
term of 3 years, the pledgor not being entitled to possession
again until the expiration of the teim. There is also a
" receiving-pledge,"! in which no term is fixed, and the debtor
may at any time resume possession on payment of the
principal. In the so-called " temporary-pledge " ^ (which is
really a hypothec), the creditor takes interest on the debt
instead of cultivating the land, and the debtor retains pos¬
session. Perpetual sales of land to persons outside the
seller's village are forbidden; so that in such cases the
transaction of pledge is much resorted to for the purpose-
In Takuma kori, the seal of ward or village officers is
not required for an instrument of pledge ; but the company
of the debtor seal as wituesses. The pledgor and pledgee go
to the ward or village office and procure the change of
the owner's name in the land-registry. In Akita kori,
pledges are of two kinds, the names being " term-pledge " 3
and "receiving-pledge."! In the former, the term of
years is agreed on, the money is advanced, and stipula¬
tions are made that the debtor shall not take back the
land during the term, nor after its expiration without first
discharging the debt, and that the creditor shall at any time
after the term restore the land on payment of the debt.
Each party executes an instrument and both are counter-
sealed by the headman and attested with divided-seal
by the chief-headman. This is the proper method;
but when the land is of small value, these proceedings
ai'e taken only as to the instrumAt coming from the
1. Uke-yosei (receive into, collect)-s/u'c/it, juki-shicM. The
Chinese characters are the same, the former pronunciation being
probably the usual one. The idea may be that of collecting or
getting back on demand and payment. 2. Toza-shichi, 3. Nenki'
shichi.
PAET n. CONTKACT ; CIVIL CUSTOMS. Ill
debtor. In the " receiving-pledge " the term is not fixed.
Debtor and creditor each execute an instrument, the
provision being that the land shall be returned on repay¬
ment of the debt. In all kinds of pledge, redemption must
occur between the 11th and 3d months inclusive.^ It is a
regular stipulation in instruments of hypothec that the debtor
shall make no objection if on default at the end of the term
the creditor assumes possession of the property. The in¬
strument is sealed by both parties and countersealed by the
headman. But in some localities the latter formality is
omitted.
In Hyuga Jcuni, Miyazaki and Koyu kori, hypothec is
the only form of mortgage, pledge being unknown. In
Usuki kori, in villages, where the pledge is for a term of
years (usually 10 years), the pledgee takes possession, pays
taxes and charges, and takes the profits by way of interest.
Redemption cannot take place till the end of the term.
Where the need of money is pressing, the security is
usually a hypothec, interest and principal being paid
together at the end of the term. In towns, hypothec alone
is used.
In Satsuma /ami, Kagoshima Iwri, the seal of the
village or ward officers is required for a hypothec. In towns
this seal is usuallj- placed upon a separate document, in
which the debtor's company state that they will make
no objection, even if, according to stipulation, the land is
delivered to the creditor on default at the end of the term.
This document is given to the creditor.
In Iki kuni, Ishida Jcori, pledge goes by the name of
" sale for a term of 3'ears," 2 the estate being given to the
creditor during the term. Hypothec is known as "lien," ^
the debtor giving the creditor an instrument describing the
property.
1. lu order that an unjust advantage might not be reaped from
crops planted in spring. 2. Nenr/en-uri. 3. Teilo.
112
PRIVATE LAW IN OLD JAPAN.
la Tsushima kiuii, Shimoagata kori, the hypothec is
of the ordinary kind. In pledges, the creditor cultivates the
land during the term, but the owner pays the taxes and
sundry charges.
2.—PERSONAL PROPERTY.
In Settsn kuni, Nishinari kori, in order to make a valid
lien,i the article must be delivered to the creditor. But
fixtures 2 (such as ovens, ceiliugs,^ supports ^ for sliding-
doors, and other detachable articles) may be hypothecated
by record.
In Yamato kuni, Soyegami kori, pawnbrokers 5 nowa¬
days often accept certain articles as security by a transaction
similar to hypothec, in which interest ® is paid.
In Kai kuni, Yatsushiro kori, no report to the headman
is made in case of a pledge of rice, clothes, or the like. But
the money-lender notes the details in a book and gives the
pledgor a certificate attesting the right to redeem on pay¬
ment. If a default occurs, the article is forfeit.
In Shinano kitni, Takai kori, the usual term is 8 months
or a year. If the article is lost or destroyed while in the
custody of the pledgee, he is bound to make compensation;
and this is measured, in case of loss, by twice the amount of
the sum lent, and in case of destruction, by the market price
of the article. But if the destruction is by fire or the loss
by theft, the pledgee is not responsible.
In Riknzen kuni, Miyagi kori, rice, utensils, clothes,
and other pledged articles are deposited with the pawn¬
broker, who gives the debtor a •ertificate containing a
description of the articles and the amount of the debt. The
term is usually 8 months. A pledge of the person to the
1. Teito. 2. Kugi (nail)-ts!(A-e {affix)-H!0«a (thing). 3. These are
often made of boards laid without nails upon rafters. 4. SMkii,
kamoi (wooden beams). 5. ShicJiiya. G. Nichi-hu.
PART 11. CONTRACT : CIVIL CUSTOMS.
113
service of another ^ was also known in former times. The
parents of the child reported to the headman, executed an
instrument of debt, received the loan and delivered the child
to the lender for a term of 5 or 10 years, the child being
registered in the family of the creditor. This transaction
was the only exception to the rule forbidding removal from
a village to a town. But the custom has gradually dis¬
appeared since the period Kwansei (1789-1801).
In Echu kuni, Imizu kori, if a default occurs, the
article is forfeit and the pledgee may sell it or keep it as
his own. In Nei kori, none but pawnbrokers may lend
money on security. If the article pledged is lost or
destroyed by flood, fire, theft or other unforeseen event, the
pledgee is not liable to make compensation, nor the debtor
to pay the debt.
In Echigo kiuii, Kubiki kori, no instrument is required
for the validity of a pledge. If the pledge was effected by
the agency of another, he is regarded as a witness. In the
town of Niigata any one may lend on pledge. The regular
term is 3 years; but practically redemption may be made at
any time by paying, principal and interest.
In Idzumo kuni, Nogi kori, the term is usually 6
months. On its expiration the creditor notifies the debtor
to redeem; if he fails to redeem, the creditor may dispose of
it as he thinks best.
In Suwo kuni, Yoshihiki kori, a pledge of rice may
be made by delivering the rice to the lender and receiving
the loan and a written receipt, or by depositing it in
the public storehouse and giving the creditor an instrument
of debt endorsed by the headman in charge of the store¬
house. A term must always be fixed beforehand. For
articles other than rice the creditor merely gives the debtor
a certificate, in which it is stated that the pledgee undertakes
no responsibility for damage by fire or by rats. The
1. Shichi mono-lidka.
S
114
PRIVATE LAW IN OLD JAPAN :
ordinary term is 6 mouths* In Kyuka kori, the lending of
money on pledge of rice or other articles is known as
" raising ready money.Where the article is one having
a market price and the latter falls below the value named
in the agreement, the borrower must make a part payment
[or the article will be sold forthwith]. Interest on metal
articles is usually 2 per cent, on others 1^ per cent per
month. The same form of instrument is used in all cases.
If principal and interest be not paid at the end of the term,
the thing pledged becomes the property of the creditor.
In Chikugo kuni, Ikuha kon, the term varies from 6
to 12 months ; but practically the debtor can redeem as
long as the article is in the creditor's possession.
1. Geii-(present)-A:m (money)-t>e (put in). The idea seems to be
that of putting the articles in pledge, and getting money in exchange.
Perhaps the shichi of shichi-ire originally belonged in the phrase.
( 115 )
CHAPTEK VII.
PEESCEIPTION.i
Usually, when a civil action arises in any province,
some popular headman and elder in the district are chosen
as go-betweens, to talk over the parties to an amicable under¬
standing, and thus no judgment comes to pass as to the
right or wrong of the matter. The result is that the question
of prescription rarely arises, even in case of unsecured loans.
But there are some special customs to be noted.
Kinai. In Settsu laini, Yabe Icori, when a dispute arises
as to a contract of loan or of deposit and an action is
brought, the feudal officials do not take cognizance ^ of it if
10 years have elapsed since the execution of the instrument
sued on.
Tokaido. In Iga kuni, Abe kori, it is the general custom,
when a money loan^ is in arrear for more than 20 years, that
the instrument is destroyed and the account struck out of
the books.
In Suruga kuni, Shida and Mashizu kori, in the case of
a commercial house, when a money loan^ or a credit® has
been in arrear for more than 20 years, or on account of the
death or absconding of the debtor cannot be collected, it often
1. Kiman (end of (jnii) tokumen (acquire-freedom). 2. Tori-
a^eni. 3. K(i.ihi-kin. 4. Kaslti (lend)-da.s7n (put out)-A()!. 5. TJri
(sell)-kake (credit) - kiii.
116
PRIVATE LAW IN OLD JAPAN :
happens that the facts are entered in the so-called " eterni¬
ty-book," 1 and the claim struck out of the principal book.2
In Sagami kuni, Ashigara kori, there is no prescription
of money-loaus.3 I'here is a sort of prescription in case of
instruments providing for the redemption of mortgaged land;
for even though there is an express stipulation for an
unlimited term, the feudal official does not take cognizance
after the lapse of 20 years.
In Kadzusa kuni, Moda kori, prescription usually occurs
if a sum loaned or received on deposit is in arrear for more
than 10 years.
Hokurokudo. In Wakasa kuni, Ouifu kori, it is the
general custom, when a sum loaned or given on deposit has
been in arrear for 10 years or so, that the creditor abandons
his claim.
In Echizen kuni, Asuha kori, the feudal official takes
cognizance only of pledges or hypothecs of realty evidenced
by official attestation, and not of ordinary private loans ; so
that prescription is not known, [since the former are perpet¬
ually enforceable and the latter not at all].
Sanindo. In Harima kuni, Shikito kori, the law is
that when an action is brought for a loan, for money given
on deposit, or the like, and 120 months have passed since
the time for payment named in the instrument, the feudal
official does not take cognizance of it.
In Bigo kuni, Mitsuki kori, there is an old law that,
when an action is brought on a loan which has been overdue
for 10 years, the feudal official shall not take cognizance.
Nankaido. In Sanuki kuni, Naka kori, the feudal
official does not take cognizance of actions on contracts, such
as loans, money received on deposit, and the like, after 10
years from the time fixed for payment in the instrument.
1. Man (ten tliousancl)-)?CH (yeavs)-c/io. But there is a heavy
paper known as " mannen-gami," and the name probably arises
merely from the use of this paper as the material for the book.
2. Hon-cho. 3. Ki)me)i taisliahi.
part ii. contract : civil customs.
117
Saikaido. In Buzen Icuni, Shimoge kori, notwith¬
standing demands for payment that may have been made by
the creditor, the feudal official does not take cognizance of
any action brought after 10 years from the time of payment
named in the instrument.
In Bugo kuni, Hayami kori, the feudal official does not
take cognizance of an action brought to recover a loau or
money received on deposit after 20 years from the time of
payment named in the instrument.
In Hizen kuni, Takaku kori, it is an old law that the
feudal official shall not take cognizance of an action upon a
contract brought more than 10 years after the time of pay¬
ment fixed in the instrument.
( 118 )
CHAPTEK YIII.
BANKKUPTCY.i
As a rule, when a person's debts ^ accumulate,^ ahd
his property does not suffice to pay, his relations and
company act for him,^ and after coming to agreement ®
with all his creditors," fulfill his obligations by distributing
among them the money [resulting from a sale of his effects].
If any one of the creditors is dissatisfied and declines to
accept the dividend,'' the local authorities " take the sum in
trust. This mode of bankruptcy is called " bankruptcy by
composition."" When the act of insolvency consists in the
non-payment of taxes, the locfil authorities supervise the
matter and take out first the amount of taxes due. This is
called "bankruptcy affecting the feudal office." ■ Most
bankrupts remove to another region to obtain employment;
and even where they remain at the place of their bank¬
ruptcy, they have lost their property and therefore cannot
continue on an equal footing in social intercourse. Such is
a general outline of the customs. Special variations are as
follows.
1. Hoki (abandonment). More common terms are shindai-kagiri
(property-all), hasan (break, destroy-property) bunsan (disperse-pro-
perty). In shindai-kagiri the idea is that the debtor gives up to his
creditors " all his property." The term " insolvent" is here used to
signify the state of being unable to pay ; " bankrupt," to mean one
who has been adjudged insolvent. 2. Fasai. Z. Kasami. 4. Shusen.
5. Kyogi. 6. Saishu. 7. Haito-in. 8. Yakuba. 9. Kiogi jo no bun¬
san. 10. Tachiai. 11. Kwan ni taisuru bunsan.
part ii. contract : civil customs.
119
Kinai. In Yamashiro kuni, Otagi and Kazuno kori,
the local authorities, when a man becomes insolvent, make
an inventory of his property, appoint a commissioner ^
from among his relatives, call the creditors together, cause
the property to be sold, distribute the proceeds, and thus
discharge the obligations of the insolvent. In rural districts
bankruptcy proceedings take place only in case of non--
paymeut of, taxes, not in case of non-payment of ordinary
debts .2
In Settsu kuni, Yatsushiro kori, in the case of forced
bankruptcy,® the local authorities supervise the proceedings,
selling the property and distributing the proceeds among
the creditors. Custom requires that those who have been
subjected to this procedure shall cease to wear the outer
coat ^ and to use their hereditary family names,® and their
rights as members of the village are greatly curtailed. In
the case of bankruptcy by amicable private composition,® the
creditors give their sanction, and there is therefore no
special curtailment of rights. In either case there is no
further calF upon the debtor by his creditors for payment,
even if he succeeds in gathering property again.
Tokaido. In Iga kuni, Abe kori, when the act of insol¬
vency consists in the non-payment of a claim of the feudal
ofiSce, and the proceeds of the sale of his property are in¬
sufficient, his relatives, his company, and the people of the
village, are liable for the deficit, in the order named. By
old custom a bankrupt is forbidden to use a rain-hat or clogs
even in rainy weather.
1. Sewa-nin (a general word for manager, committee-man, or
commissioner). 2. Sotai-taishaku (debts contracted face to face, i. e.
without official attestation). But here the term seems to cover all
ordinary claims in favor of private parties. 3. Kosai (judicial decision)
human (i. e. involuntary^bankruptcy, resulting from an appeal to the
authorities by the creditors), i. Haori. 5. Buidai no kamei. 6. Sotai
(face to iace) jukudan (amicable agreement). 7. Saisoku.
120
PRIVATE LAW IN OLD JAPAN.
In Ise kuni, Ano kori, where the act of insolvency con¬
sists in the non-payment of a claim of the feudal office,! the
village authorities supervise the proceedings, have the
property sold, take out the nmouut of the lord's claim, and
distribute the surplus, if any, to the other creditors. In
case of an ordinary debt,^ the relatives and the company of
the debtor take entire charge of the proceedings and the vil¬
lage authorities do not interfere at all. Generally, the
creditors who receive a dividend ® are deemed to have re¬
linquished their rights and do not make any subsequent
demand upon the debtor for any unpaid portion of their
debts. When a man owes so much to the feudal oflfice that
he is not able to pay it all, and in consequence his fellow-
villagers are obliged to fulfill ^ his obligation, he is called a
" sold-out man," ® and the villagers, first reporting the mat¬
ter to the authorities, build him a separate cottage, without
any floor, in a corner of the village, and make him do
laboring services for the village, not allowing him to culti¬
vate [land for his own benefit]. In his temple-register ®
also he is termed " sold-out," and he is not accorded the
ordinary treatment of a farmer. But if he afterwards
acquires means again and pays his debts in full, or if they
are paid by his children or other descendants, then the term
" sold-out" is erased, and he resumes his rights and his
position among his fellow villagers. In a town, the relatives
of a bankrupt of this sort take charge of him, and he loses
his independent domicile.^ They provide a suitable liveli¬
hood for him, and no special curtailment of his rights
takes place.
1. Ko-shaku. 2. Shishakii (private debt). 3. Bumpai-kin
A. Benshd. 5. Ko-kyaku-nin (ko-kyaku,—■proha.hly, proceeds of a
public sale, hence one who has been sold out). 6. Shumon-cho. See
Simmons' " Notes on Land Tenure" for the status of a farmer.
7. Fu (appendant)-se/ri (domicile), i. e. his domicile is considered as
merged in or attached to that of his relatives; his independence
s lost.
PART II.—CONTRACT ! CIVIL CUSTOMS.
121
In Owari laini, Aichi kori, when a person becomes
insolvent, his relatives and company take charge of the
matter, ascertain his property, procure the assent under seal
of all his creditors, sell all his property, except that covered
by mortgages 1 evidenced by an officially sealed instrument,
and distribute the proceeds. Those who receive a dividend ^
relmquish all right to the unpaid claims and do not again
call upon the debtor for payment. In villages, the bank¬
rupt's relatives and company enable him to earn a livelihood
as a farmer, by giving him a mattock and a poor cottage
scarcely sufficient to protect him from rain. If he has no
reliitives, the villagers give him these, and also lend^ him a
piece of cultivable land. In towns, there are usually some
creditors who do not accept the dividend but wait until the
debtor again acquires means to pay, hut in villages all
creditors are obliged, by custom, to accept the dividend
offered. The bankrupt himself and his descendants for
three generations cannot he elected to any village office
whose holder is regarded as having authority over other
persons.^
In Mikawa kuni, Atsumi kori, when a person becomes
insolvent, his company report it to the local authorities.
These supervise the proceedings, seal® all the debtor's
property, sell it by ordinary auction" or by secret-ticket
auction,'!' aud distribute the proceeds among the creditors.
In the case of mortgaged" property, if the mortgage is
evidenced by the seal® of the headman,the secured creditor
of course has a right of preference n in the distribution of
the proceeds. If a creditor agrees to accept the dividend,
he takes the money and surrenders his instrument, relin-
1. Teito. See the Chapter on " Hypothec and Pledge." 2. Biim-
pai-kin. 3. Adzukeru. 4. Hito no cho (head of men). 5. Ffi-in.
6. Seri-uri. 7. Nyu-satstl or irefuda. See the Chapter on " Sales."
8. Teito. 9. Oku-in. 10. Shoya. 11. Saki (&rst)-dori (take) ken
(right).
122
PRIVATE LAW IN OLD JAPAN.
quishing all further rights. Sometimes a creditor declines
the dividend and decides to wait until the debtor again
acquires means, and his claim remains outstanding until that
time. Subsequent payment by the debtor under these circum¬
stances is called " prosperity-payment." i When a bankrupt
has surrendered 2 his home^ to his creditors, his friends
(most frequently his relatives), out of pity for his
misfortunes, in many cases provide for his support. Thus
it appears that a bankrupt does not incur any special
disgrace, and he may even be chosen as one of the town
officers. Where a debtor defrauds his creditors by conceal¬
ing his property, the company is regarded as responsible ;
so that it is always obliged to investigate and to prevent this.
Where insolvency occurs and taxes are iu arrear, it is the
custom to pay them from the proceeds ® of the sale before
any other claims are paid. In Nukata kori, when a person
becomes insolvent, and wishes to surrender ® his property,
he reports the fact to the local authorities. Then the head¬
man, and the debtor's company supervise the proceedings,
ascertain the amount of his property, and sell it. They
first take out-of the proceeds the amount of ward-money or
village-money.'' This signifies a sum of money lent upon
interest to the headman of a town or village by the lord of
the fief. It was called " official loan,"® and was applied,
in a town, to the expenses of public post-horses,® and, in a
village, to the expenses incurred by the village in paying
the taxes, etc, of a defaulting villager. In more recent times
the same phrase machi-kin or mura-kin has been applied to
money received in charge by one village or town from
1. Sliussei-henkin (rising-in-the-world repayment). 2. Sashi-dasu-
3. lye-yashiki. 4. Intoku. 5. Bai-kyaku-kin. 6. Hoki. 7. Machi-
kin, mnra-kin. 8. Go-haishaku-kin. 9. Ten-ma. Messengers of the
feudal lord were entitled to demand fresh horses from each shuku or
post town. 10. Tatekaye (paying on behalf of another). 11. Azti-
karu.
PART II. CONTRACT : CIVIL CUSTOMS.
123
another and circulated in loans. The amounts due on secured
claims ^ evidenced by the seal of the headman are next
taken out, and the surplus is paid to the remaining
creditors. Those who accept dividends are regarded as
having abandoned all further claims, and do not call
upon the debtor for the unpaid balance even if he again
acquires property, for the bankrupt is regarded as having
"washed " his estate and thus extinguished his obligations.
In a village, bankrupts are despised and are not allowed to
sit even on the porch 2 in the assembly of the villagers.
In Totomi huni, Sano kori, a bankrupt person goes into
retirement and places his family in charge® of his relatives.
When the company report the bankruptcy to the local
officials, and arrears of taxes are due, the latter seal up the
property, and, after selling it by secret-ticket auction, dis¬
tribute the proceeds among the creditors. Priority is given
to all holding secured claims by way of hypothecation or of
pledge.! But the homestead is left untouched, so that the
family name may not be cut off. Bankrupts may live in
their former home, but they go out only by night or in
disguise and so when such bankruptcy is impendiug in a
family of ancient lineage,® it has long been the custom for
the leudal lord to come to its assistance. In Fuchi kori,
a bankrupt goes into retirement, and his company proceed on
his behalf to the creditors, offer to surrender his property,
and request a release.'' The creditors then supervise the sale
of the property, and distribute the proceeds. After this the
bankrupt is subject to no further demands.® But if it ap¬
pears that the insolvent, some days before going into bank-
1. Teito. 2. Eiiijawa. 3. Azitkeru. 4. Teito no shichi-ire kaki-ire.
5. The same idea underlies also the form of punishment known as
hiisoku or oshikome. This was generally reserved for samurai, and
consisted in an imprisonment in one's own house ; but the prisoner
might go out and about during the night hours, using as much privacy
as possible. 6. Kijuka. 1. Kamben. 8. Saisoku.
124
PRIVATE LAW IN OLD JAPAN.
Tuptcy,^ has lent money or sold realty, the creditors do not
release their claims. Though all his property is subject to
sale, his company relatives often manage ^ to buy it in for
him and allow him to live in it; the bankrupt, however, lives
in disgrace, with closed doors, and goes out only by night.
His family is given in charge of his relatives. Even if a
turn of fortune comes, he is never allowed to fill any office
involving authority over others.
In Suruga/rwu?, Abe and Udo Aon", in towns, the insolvent
reports to the ward-chief, and the latter, after an investiga¬
tion and a consultation with the creditors, auctions the
property, and distributes the proceeds. If any creditor
refuses to receive his dividend, the ward-chief takes it in
charge 3 and after a few years delivers it to the debtor,^
[if still unclaimed]. In the distribution, priority is given to
claims secured by hypothecation in writing sealed by the
ward-chief. In a village, the insolvent goes into retirement,
and the headman, when the relatives report to him,
immediately makes an investigation, and, acting for the
debtor, sells the property and distributes the proceeds'
paying first any arrears of taxes. But the farming and
cooking implements are not sold, and the bankrupt is per¬
mitted to live in an outhouse s away from his own home, and
the homestead is pledged for 10 years. He is usually not
permitted to return to his home, and if perchance he does,
he ranks below the yeta and hinitifi Thus the disgrace of
bankruptcy is so great that every effort is made to avoid it.
In Shita and Mashizu kuH, the whole village is liable
for any arrears of taxes due from a bankrupt. Even if the
bankrupt acquires means again and returns to his village, he
is called " repayment-man," 7 and until he repays this
amount to the village, he cannot take part in any election of
1. Lit., shutting up shop (lieiten). 2. Lit., exhaust their strength.
3. Azukarti. 4. Honnin. 5. Lit., in a haigoya (ash-shed) or kigoya
(wood-shed). 6. For some account of these outcast classes, see Sim¬
mons, "Notes, etc." 7. Benno-nin.
PART II. CONTRACT ; CIVIL CUSTOMS.
125
ofiScers and is regarded as having inferior rights. So that
bankrupts often build huts on waste land and become day-
laborers.
In Idzu kuni, Takata kovi, the bankrupt does not
reliuquish i his homestead; even though he may offer to do
so, his relatives and company do not consent.
In Sagami kuni, Kamakura kori, the bankrupt's re¬
lations and company, acting on his behalf, consult with the
creditor, pledge or sell the property, and distribute the
proceeds among the creditors. But the homestead they
always preserve and give him the use of it to assist him in
acquiring means again. In a village all the different families
are friendly to each other, having many old ties of relation¬
ship, and thus, since in the course of time some may
become poor and others rich, mutual forbearance is
practised, and it never happens that a creditor refuses to
asseut to the dividend offered. Often, too, the debtor's
compauy and relatives manage to prevent any loss to the
creditors by means of a subscription ^ called " succession-
club." 3 lu Ashigara kovl, the homestead is reserved for
the debtor. The object of this is to preserve undiminished
the number of houses in the village. As the debtor's
company and relatives always consult with the creditors
on his behalf and bring about a settlement, there has
been no htigation over such matters, since time im¬
memorial.
In Musashi kuni, Toyoshima kori, when a man is in
arrears^ with his debts, and the creditor brings an action ^
in the ofiSce of the town magistrate, and on account of the
debtor's flight or hopeless insolvency no means of payment
appear, one of his relatives is advised to come to his
assistance and pay.® The ward officer then procures the
1. Te-fhancl) 6a«asu-(separate). 2. Kyo-kin. Z.Sozoku (succession
to property)-lo (lottery dtub). 4. Todokoru. 5. Shusso. 6. Lit., give
assistance-money {jo-kin).
126
private law in old japan.
dismissal of the action. This is what occurs in most cases ;
but if no assistance is given, the creditors either consent to
the bankruptcy and accept the dividend, or wait and proceed
against the debtor when he acquires property again. The
preceding statements apply to the common people. But
where judgment is given against one of the gentry,i the
case is often transferred to the Chamber of Decisions,2 and
an order is made for the payment of the claims in yearly
instalments ;3 this is called "payment by instalments."^
Sometimes the town magistrate, keeping the matter in his
own hands, detains the debtor until an investigation of his
means can he made.
In Hitachi Icuni, Niibari kori, after the permission of
the headman is obtained, the debtor's company consult
with the creditors, sell the property, and distribute the pro¬
ceeds. The homestead is not included in the sale, and is
given to the debtor.
Tosando. In Omi kiini, Shiga kori, the village officials
take charge, in case of insolvency, auction the property, and
distribute the proceeds among the creditors, reserving home¬
stead property to the extent of 10 tsubo. There is a place
called " distress-district," 5 where huts are built for bankrupts,
and they live there, entering the village only occasionally
until they acquire means again. A man suffers a loss of
rights when he becomes bankrupt. In Inugami kori, in old
times, bankrupts were not permitted to use the outer coat or
the rain-hat.
In Mino kuni, Atsumi, Kagami, and Katagata kori, the
insolvent employs an agent,6 and after consulting with his
creditors, sells his property and dittributes the proceeds.
In the lonely villages among the mountains, the bankrupt
retires to a hut outside the village. Even this hut may not
be built in the usual style ; there must be no foundation
1. Bnhe. 2. llyojosho. 3. Nennen wari-watatihi. 4. Kiri-hin.
See Part III. 5. Nanju-cho. 6. Sjewa-nin.
PART II.—CONTRACT : CIVIL CUSTOMS.
127
stones, and the thatch-material must be reeds i placed in the
opposite direction to the usual one. This style is called
" hole-foundations and cross-thatch." 2
In Kotsuke Inini, Owaraki kori, the insolvent delivers
his property to his company, who consult on his behalf
with the creditors, obtaiu their sealed consent, sell the
property, distribute the proceeds, and thus fulfill his
obligations. lu villages a bankrupt's rights suffer more or
less diminution, and he is not permitted to wear a rain-hat.
In Iwashiro kuni, Shinobu kori, the creditors meet,
and the headman, taking charge, sells the bankrupt's
property and distributes the proceeds. The creditors
generally consent that his homestead shall be retained.
Few bankruptcies occur. In Aidzu kori, it is the custom, in
the case of ordinary Indebtedness, for the parties concerned,
at the instance of the feudal officials, to make an amicable
settlement, so that there is practically no such thing as
bankruptcy. Where a person is unable to pay his taxes,
all his property is taken by the officials in payment. This
is called " residue-sale." 3
In Rikuchu kiuii, Isawa kori, it is a popular maxim
that " a family must not be rooted out," and so when a man
finds himself insolvent, his friends as a rule manage the
matter on his behalf, pay his debts, and relieve him from
the necessity of removing to another district or of living
in disgrace among his neighbors.
In Mutsu kuiii, Tsugaru kuri, the insolvent, when there
is no longer any hope of paying his creditors, calls a meet-
iug,i and surrenders all his property ^ for distribution among
the creditors. Yet the latter often contrive instead to find
aome livelihood for the debtor and allow him to repay them
when he has obtained the means ; so that the number of
bankrupts is small.
1. Kaya. 2. Hori^ho\e)-tare (build)-/ia»7i(/'a (post), saica (con-
(thatch). 3. Seki-barai. 4. Sliu-kwai. 5. Shindai-hayiri.
128
PRIVATE LAW IN OLD JAPAN.
In Oshima Imni, Kamedo kori, there is a meeting of
the creditors and a consultation, ^ and usually they find some
means of restoring his fortunes; so that there are few
bankrupts here.
Hokueokudo. In Wakasa kuni, Onifu kon, the number
of bankrupts is extremely small. In a ward of 4,000 houses
or more, there is about one bankrupt in 10 years; in
villages there are none to be found. When a man becomes
insolvent, his relations consult with the creditors on his
behalf, effect a reform, and enable him to preserve his
estate.
In Echizen kuni, Asuha kori, his relations and company
consult the creditors on his behalf, sell all his property, and
extinguish his obligations by distributing the proceeds.
The real property is put in mortgage, ^ by a document
ofiicially attested, and if the proceeds of this are not enough
to pay principal and interest, the members of the insol¬
vent's block^ are obliged to make up the deficit. The rights
of a bankrupt suffer more or less diminution ; for example,
he is not allowed a seat in the ward or village assembly.
But such consequences are in no way due to action on the
part of the local officials. In Tsuruga kori, the debtor's
effects are sold by secret-ticket auction, and the proceeds
used to extinguish^ his obligations. In the case of those
creditors who possess an instrument of debt known as
"good fortune document,"5 payment in full may afterwards
be required when the debtor obtains the means. Other
creditors have no further claim after bankruptcy. It is
common for the bankrupt to remove to some other district;
but if he remains, his rights suffer considerable diminution,
and he does not maintain social intercourse with his
townsmen.
1. Jaku-dan. 2. Teito. 3. Chonai. 4. Mannkaru. 5. Shia-
waxe-shomon, i.e. a document agreeing to pay in full whenever the
debtor has the good fortune to obtain the means.
part ii. contract : civil customs.
129
In Ecliu kuni, Shimizii kori, when proceedings are
taken for money due ^ and a distribution 2 takes place of
the proceeds of a sale ® of the debtor's property, it is the
custom to take out taxes first, and to distribute the remainder
proportionately to the amount of the claims, the amount
lacking being handed over by the debtor when his condition ^
improves.
In Echigo kuni, Kariha kori, it is the custom for the
debtor's company, in settling his affairs, to recognize three
classes of claims ; first, taxes in arrear,® second, loans of
money,® and third, purchase-money unpaid.7 One who
finds himself insolvent stops business, shuts down the door,®
and hangs a screen in front, and his relations and company
settle his affairs in the usual way. The officials do not
concern themselves, except to secure the payment of tax-
arrears. The bankrupt suffers no considerable diminution,
of rights.
In Sado kuni, Sawata kori, the insolvent's relatives and
company settle his aff'airs as usual, and with the proceeds of
the sale of his property extinguish 9 his obligations. The
officials do not concern themselves, and invariably leave sucli
matters to mutual arrangement of the parties. The rights
of a bankrupt are somewhat diminished. But frequently he
crosses to the Hokkaido Island, and after he has acquired
means again, returns to his domicile.^® This is called " work¬
ing at Matsumaye." u
Sanindo. In Tango kuni, Kasa kori, a bankrupt is
called, in the villages, "broken-defaulter."^ He is not
1. Todokori-kin sosliu. 2. Haito. 3. Uri-barai. 4. Mimoto.
5. Nengu mishin. 6. Shaku-kin. 7. Kai-gakari. 8. Bit (^).. The
outer doors of a shop often pull down, in part or entirely, from
above. Compare with this passage the chapter on " Hypothec and
Pledge," Buzen kuni, Shimoge kori. The character for hu is the
same in both passages; its meaning is uncertain. 9. Nogarerii.
10.Ki (return).iieA:i (dom^ile). 11. Matsumaye is a town in Hokkai¬
do, in old times the largest town in that region. 12. Tmhure-
(broken, smashed)-»tiji/iin (non-paying, defaultingi.
»
130
PRIVATE LAW IN OLD JAPAN :
permitted to wear his outer coat at the village assembly.
In towns, the insolvent's relations and company almost al¬
ways come to his relief, and settlement by way of dividend ^
seldom occurs. In Yosa kori, the insolvent's relatives do
not concern themselves, and his company settle his affairs
in the usual way, the property by custom being auctioned in
some much-frequented street. In some cases dissatisfied
creditors keep their instruments of debt and await the time
when the debtor acquires means again. The business of the
bankrupt is taken up by his relatives. His rights suffer no
considerable diminution, though he must take a humble
position and stand below others.
In Tajima hum, Idzushi kori, the insolvent auctions his
property, and extinguishes his obligations by paying
a dividend to his creditors. In some cases a creditor
exchanges his old instrument for a new one, and awaits a
future time for payment. In villages they do not allow the
bankrupt to wear the outer-coat for the rest of his life.
Before the period Tempo (1830-1844) the bankrupt was not
allowed to bind up his hair with the queue-string.
SanyodO. In Harima Imni, Shikito kori, one who has
been publicly adjudged^ bankrupt delivers up his seal to
the officials, who strike his name from the land-register.
This is called " losing the name." 3 The bankrupt acquires
the domicile^ of his relatives, but may regain his own
domicile ® after 10 years, or sooner if before that time he
acquires means and pays his obligations in fuU. The officials
have no concern with the settling of an insolvent's affairs.
In Bigo kuni, Fukatsu kori, when a man becomes bank¬
rupt through non-payment of taxdl, the village pays the
taxes on his behalf, and the bankrupt becomes a " water-
drinker," 6 and is not allowed an equal seat ^ in the village
1. I)umpai-kin. 2. Knsai. 3. Bo-mei. 4. Ten-nehi. 5. Fuhi-
seki. 6. Mizu-nomi; that is, he is so poor that he lives on little
more than vater. See Simmons, " Notes on Laud Tenure," pp.
84, 170. 7. IJo-seki.
part ii.—contract : civil customs.
131
ftssembly. In towns, a bankrupt is called " rule," i and no
special degradation occurs. In Mitsuki kon, when bank¬
ruptcy occurs through default in taxes, the officials sell not
only the cultivated land hut also the residence land of the
debtor to make good the arrears. A hut is built for him, ou
the common-land 2 of the village, barely sufficient to protect
him against rain and dew. He is called " goiie-up farmer,"3
and, even if he acquires means once more, is not again
known simply as a " farmer." In the case of bankruptcy
resulting from ordinary debts, the debtor usually removes to
another province and the officials do not concern themselves.
Nankaido. In Kii kuni, Nakusa and Abe kori, an in¬
solvency is usually settled by mutual arrangement with the
creditors. But if such a settlement cannot he thus arranged,
the creditors petition the officials, and the latter cause the
debtor's property to he sold and distributed. Bankruptcy
proceedings in villages on account of taxes in arrear are rare,
because the relatives and the villagers join in settling the
deficiency.
In Sanuki kuni, Kagawa kori, when a money-lender to
the Shogunate,^ or the descendant of such a person, becomes
insolvent, the Government takes charge of the matter;
otherwise it is left to private arrangement. The acceptance
of a divideud works a complete discharge. A bankrupt he-
comes degraded and does not hold social intercourse with his
townspeople. In Naka kori, bankruptcies seldom occur, as the
debtor's relatives and company relieve his necessities. But
when all means of assistance are exhausted, his property is
sold, the proceeds are distributed, and the creditors cancel
I. Shiho, "rule," "method." The connection is obscure.
Kyo-yu-chi (lit., together-possessing-land). 3. Agari-hyakti-<ho,—
probably because the common was usually on a hill-side. 4. Kyulian
(a term for the Shogun^te Government) yotatsu (undertaker of a
business). The latter word was a euphemism, in this case, to avoid
putting the relation on a purely money basis.
132
private law in old japan :
the entry of debt. A bankrupt's rights are considerably
diminished, and be cannot ever after be chosen to any office
•of authority over others.
In lyo kuni, Uwa and Onsen koii, when a bankruptcy
•occurs through non-payment of taxes, the debtor delivers
up' his property to the control of the village.® By means of
this possession (called " management ") ® of his cultivated
land, the village makes good * the arrears of taxes. In a
town, the creditors assemble,® and extinguish his obligations
by a distribution of the property ; the officials do not
•concern themselves with the matter. It is an old rule that
in all cases of ordinary contracts, where a dispute arises,
the feudal office does not entertain any action ; so that these
matters are always settled by mutual consultation.®
Saikaido. In Buzen kuni, Kiku knri, it happens, in
eight or nine cases out of ten, that the insolvent's relatives
and company relieve his necessities, and by means of a lot¬
tery'' enable him to continue in business. When this is not
done, a settlement is made in the ordinary way, and even
his house ® is sold. No further demand® is made upon
him, even if he subsequently acquires means. The rights of
the bankrupt are considerably diminished, and he cannot ex¬
press his opinion at any general meeting,'® nor marry in any
family of the village or ward ; and it may even happen that
a contract for marriage" is broken off. In Shimoge kori,
the debtor summons his creditors, sells his property, and
distributes the proceeds, and the creditors destroy '2 their
instruments of debt. Sometimes the creditors prefer to wait
till he acquires means again. In villages, the arrears of taxes
are first taken out. In a village, the^ankrupt is driven out
of it; in a town, he is forbidden to live on a main street.'®
1. Snshidasti. 2. Isnoii (the village as a whole). 3. Shihai.
4. Daisho. o. Yoriai. 6. Kyu-gi. 7. 'I'aiiomoshi-ko, 8. Ka-oku.
9. Semeru. 10. IchidTt shukwai. 11. Engumi. 12. Hogn ni sum
.(lit. make into waste paper). 13. Onwte-eho, in distinction to ura-
dona or back street.
PART n. CONTRACT : CIVIL CUSTOMS. 133
In Hizen kuiii, Takakii kori, a settlement of the ordinary
kind is made; it is called "dispersing the property.There
are persons there who have been twice or thrice bankrupt;
yet there is no special diminution in their rights.
In Iki kuni, Ishida kori, the relations and neighbors
of insolvents frequently come to their assistance and by means
of lotteries 2 enable them to continue their business. In
case of bankruptcy, the creditors do not subsequently
demand the balance of their claims, even though the debtor
again acquires means.
In Tsushima Island, Shimoagata kori, there is a
saying that " bankrupts may not drink the water of the
castle-town," and the bankrupt retires to some lonely village
and makes a livelihood there; but he is not specially looked
down upon by the villagers.
1. Bunsan. 2. Mujin-ko.
( 134 )
APPENDIX.
I.
CUSTOMS EEL AXIS a TO TENANCY IN
lUKUZEN PBOVINCEA
Samlen is rice-land which has become vacant through
either the death, the removal or the flight of the cultivator.
Such laud was scattered here and there throughout the
province; hence the name san (scattered)(lowlaud).®
Saiiden was of various sorts, hommyo (original niime)-samien,
nemu (sum of yea,rs)-scmden, sanden-maye, sanden-nami
(row, line), and others. Hommyo-saiiden is that which has
been put in charge of some one who cultivates it and pays
taxes as in the case of other lands. ® Ne)mi-sande)i is the
same, except that in this case there is a limited term, while
in the former the term is indefinite and thus in effect
perpetual. Sandeii-maye is land assessed so high that no
one can be found to take the place of the former occupant;
1. These Notes are taken from a " Hist(^ of Taxation in SenclaL
Fief" (Sendai fief is equivalent to Bikuzen province), 5 volumes,
compiled from local records some 10 years ago by order of the Sen¬
dai Prefectural Assembly. It is now extremely rare, and was lent tO'
me for translation by Mr. Matsuzaki Kuranosiike, Lecturer on Taxa¬
tion at the Imperial University. Since that time his copy also has
unfortunately been lost. 2. But this account does not quite tally
with the statements on p. 62, tmpni. 3. Because the land was
treated as if it was still that of the original owner.
PART II. CONTRACT : CIVIL CUSTOMS,
135
in such a case the feudal official orders the village to bid
for it, and the person bidding the highest tax obtains it. ^
This is also known as sanden-tatezuhe. Sauden-nami is a
plot cultivated by all the village in common or by an agent
for the village. Every plot of sanden, when its term of lease
expired [and until it was re-let], was cultivated as a
sanden-nnmi. In the 8d year of Temmei (1783) a severe
famine prevailed, and many farmers deserted their homes,
the land becoming sanden. The same thing happened during
Tempo (1830-1844) ; and the number of sanden plots
increased until there were some to be found in every village.
Those of the Temmei period were called "old sanden;"
those of Tempo, " Tempo sanden " or " new sanden." In
an enactment of the feudal lord, in the 2d year of Bunkwa
(1805), it is said : " There are in the fief of Sendai many
deserted houses and lauds. Plots left vacant during the
last 3 years will be treated sls hoinmyo-sanden;^ those be¬
coming vacant after this year ought properly to be treated as
sanden-nami.^ But as the number of farmers at present is
so small, we order that land becoming sanden within the
next 3 years shall as before become hommyo-sanden." i In
the 5th month of the 4th 3'enr of Bunkwa (1807), it was en¬
acted: "Where a plot of land is sanden-maye and it is worth
300 won or more, the substitute-farmer who cultivates it
shall be entitled to exemption from taxation, and may be
given other sanden to cultivate, if the first be not enough to
occupy him. If several persons are placed there as substi¬
tutes, the land will be apportioned equally between them.
The exemption will last for 5 years." In the 5th month of
the 9th year of Tempo (1838), it was enacted : "For some
1. We .are still left uncertain as to the exact force of the maye,
(see p. 62). But the context of the above passages indicates that maye
is a general synonym for mochidalca, or possessions. 2. That is,
given to a man to cultivate for himself. 3. That is, given to the
village to cultivate for the common benefit. 4. Perhaps because a
larger income was obtained by this plan.
13G
PRIVATE LAW IN OLD JAPAN :
time past the desertions have been numerous, and the de¬
serted plots have been entrusted to ^ the deserter's village or
company, because if we treat them as sanden the tax-income
will diminish.2 But now, as there is no help for it, we have
decided to treat such plots as sanden. If we make trust-
land out of them, and impose all the regular services thereon,
the farmers will be ruined; for even before the famine came,
many of them were scarcely able to support themselves.
Nowadays, with the famine and the lessening of the num¬
ber of cultivators, matters would grow much worse. It is
the duty of administrators to take measures to relieve this
distress, and it is orderd that hereafter deserted land shaU
become sanden, not trust-land, A man shall be free to cul¬
tivate it or not, as he pleases; the term shall be 3 years,
and for that period no services shall be imposed." In the
1st month of the 1st year of Genji (1864), it was enacted:
" The famine of Tempo resulted in the desertion of many
plots of land, and these were made sanden, with an exemp¬
tion for a term of years. The term having expired, they
should now be treated as ordinary lands ; however, another
extension of 3 years is gi-anted. The lands deserted since
last spring are also to become sanden. At the end of the
term they are to become trust-lands, and new tenants
are to be appointed to cultivate them. These plots being
numerous and widely scattered, the inspectors must now
begin gradually to survey and examine them all, deciding
which are to be rated as ordinary lowland and appoint¬
ing substitute-farmers to cultivate them. But in every case
the exemption is to continue for 3 years longer, as poverty
still oppresses many of the farmer^ and severe measures
on our part would only bring them to ruin. Such a
result would be as painful to us as it would be distressing
to them."
1. Azuke-chi. 2. Because azuke-chi was subject to all the or¬
dinary service), sanden was not.
PART II. CONTRACT : CIVIL CUSTOMS.
137
II.
CL'STOiJS RELATING TO MORTGAGES IN
RIKUZEN PROVINCE}
The rules of the fief for the regulation of mortgages
were very strict. The reason for this severity was the
desire to prevent the accumulation of land in the hands of
the rich and the impoverishment of the poor. In the 8th
month of the 1st year of Kyoho (1716), it was enacted :
" Where a debtor pays at the appointed time, the creditor
shall restore the land received as security." Where a
debtor is un.able to pay his debts, he shall give notice
to the oflScials, naming the land, if any, which he has
mortgaged. They will then notify the creditor that
the land is not to be forfeited, but is redeemable whenever
the debtor olfers to pay the debt. In the 2nd month
of the 10th year of Kyoho (1725), it was enacted:
" Farmers may pledge their land." In the 7th month
of the same year it was enacted : "If the privilege of
pledging land is freely given to farmers, as hitherto, it
will end by a few men obtaining the real control of the land.
For this reason it is necessary to restrict the power of pledg¬
ing. Yet as this is the only method by which the poor are
able to raise money for their undertakings, we cannot make
an absolute prohibition. Hereafter the parties must draw
up an instrument, describing the extent, situation, value>
and production of the plot. An official certification of the
correctness of these recitals is to be made on the village-
register and on the parties' instruments. The term should
not exceed 2 or 3 years. If the pledgor discharges his debt
when due, the land shall be restored to him. If he defaults,
he must pay off the debt by yearly instalments, beginning with
the succeeding j'oar.'* In the 7tli month of the 14th year
1. From the same "History of Taxation, etc."
138
PRIVATE LAW IN OLD JAPAN,
of Kyoho (1729), it was enacted : " A mortgagor will not be
allowed to abandon his land to the mortgagee. Nor will a
mortgagee be allowed to force the debtor to pay otherwise
than by yearly instalments. The forfeiture of land pledged
will result in the poor losing the ownership of their lands ;
and the mortgagee is not allowed, unless he owns less than
5 kiiammon of land,i to have pledged land forfeited to himself,
even if the mortgagor is unable to pay by yearly instalments.
What shall be done in such a case will be determined by the
lord when the case arises."
1. This was the maximum value permitted to any one farmer.
For the rules in Sendai fief on this subject, see Part V., Appendix.
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TRANSACTIONS
of
THI^: ASIATIC SOCIETY
OF JAPAN..
VOL. XX: SOPFLEMENT.
CONTENTS;
j Materials for the Study of Private Law in Old Japan: Part III (Section I).
I Edited by John Henky Wigmobe.
I
I
Yokohama, Shanghai, Hongkong & Sinoapobb : Kelly & Walsh, L'd.
Tokyo : Z. P. Mabuya & Co., L'n.
London ; Tkubneb & Co.—Pabis : Ebnest Lbboux.
Leipzig t*»bkblin; K. F. Koehlek's Antiquaeicm.
OCTOBER, 1892.
11. MMrKLBJOHN Co., X*riiiters, No 26 Water Street, Yokohama.
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
EDITED, WITH NOTES AND AN INTRODUCTION,
BY
JOHN HENKY WIGMOEE.
PUBLISHED BY
THE ASIATIC SOCIETY OF JAPAN,
TOKYO.
OCTOBER, 1892.
MATERIALS FOR THE STUDY OF PRIVATE LAW
IN OLD JAPAN.
PART L-INTRODUCTION.
PART II.-CONTRACT: CIVIL CUSTOMS.
PART III.-CONTRACT: LEGAL PRECEDENTS.
Section I: Money Loans ; Letiinq and Hibino.
Section U : Sade.
{In preparation.)
Section III: Deposit, Pledge.
(In preparation.)
PART IV.-CONTRACT: COMMERCIAL CUSTOMS.
(In preparation.)
PART V.-PROPERTY: CIVIL CUSTOMS.
PARTVI.-PROPERTY: LEGAL PRECEDENTS.
(In preparation.)
PARTVII.-PERSONS: CIVIL CUSTOMS.
(in preparation.)
PARTVIII.-PERSONS: LEGAL PRECEDENTS.
(In preparation.)
MATERIALS FOE THE STUDY
OF
PEIVATE LAW IN OLD JAPAN.
PAET III (SECTION I).
CONTEACT: LEGAL PEECEDENTS.
ERRATA.
for " Introduetion " read " Part I."
for "house-master" read "house-
manager."
Page 6, note 4,"
" 16, " 4,
" 129, " 2,
" 10, last line,'^
" 11, lines 8, 9,
" 29, " 7,
" 58, " 19,
" 58, " 1,17,
" 219, " 26,
" 9, note 8, for " bales " read " koku."
" 18, line 21, after " Disposition " insert " of."
" 22, note 1, deJe the fifth sentence " Apparently * *
* * both parties."
" 28, note 6, line 2, for " This " read " The former."
" 127, lines 4, 8, 10, " " shall" read " should."
" 145, line 15, after " communicated " insert "
" 180, note 2, line 1, for " is " read " was."
" 202, line 11, for "provisional" read "discounted."
" 202, note 8, (iel£ the sentence " Shita sometimes * * *
bill; " and insert " This term was applied
to bills drawn by merchants against goods
shipped (say) from Osaka to Yedo and
discounted by the consignors at an Osaka
bank. The sAita (" below ") represents
the idea of discount."
" 208, line 16, at the beginning, insert " (1)."
" 218, between lines 13 and 14, insert " Kwansei, XI,
1 (February, 1799)."
" 882, hue 17, for " October " read " September."
CONTENTS.
page
Chapter I.—Letting and Hiring.
Section I.—Money 1
II.—Chattels 276
" III.—Interest 296
" IV.—Contracts for Payment in Yearly or
Monthly Instalments 314
" V.—Joint Borrowing 383
" VI.—Arrears of Judgment Instalments... 345
" VII.—Private Settlement 377
" VIII.—Sundries 425
Appendix.—Chronological List of Precedents.
CHAPTEK I.
LETTING^ AND HIEING.^
SECTION I.—M0NEY.2
[No. 1] Judgments in Actions on Money Loans J
1. Resolution* of the Chamber of Decisions*
Dated Kyoho, XIV, 12 (February, 1730.)®
"Disputes^ about claims based on money loans, un¬
paid purchase-money,® etc., and contracted during and since
Kyoho, XIV, 1 (February, 1729) shall be taken cognizance of
aud adjudged according to the practice previous [to the
Nullification Order of Kyoho I (1716)]When an action
1. Tai (lend)-s/ia/;tt (borrow). It would seem that there is in
Japanese no such clear distinction in terms as that designated
by the Boman locatio-conductio and commodatum, or indicated,
though not with strict constancy, by the English let and lend,
hire and borrow, and taishaku applies indiscriminately to both.
The gratuitous loan, however, seems usually to have been trans¬
acted under the term azukeru, which is strictly a deposit, and
taishaku, in the present connection, answers to the term above
used. 2. Kin (gold)-if(re (silver). 3. Shaku-kingin. Strictly, shaku
is a borrowing; but the corresponding English term names the
transaction from the creditor's side. As will appear later, there
is some doubt as to whether shaku-kingin is not sometimes
used in a wider sedle, meaning "money claims" in general.
On the whole there is probably no such use. But, as the cases
Vol. XX. Sup. Pt. ill.—].
2
PRIVATE LAW IN OLD JAPAN I
jjo. 1] in tbis section show, the procedure in actions on money loans
was different from that' in actions on pledges, deposits, bills of
exchange, and a number of other claims. The money-loan action
became a type, and the procedure in other sorts was from time
to time assimilated thereto and was referred by the Courts to that
category. Hence, though the term " money-loan " seems hardly to
have been used in the sense of " money-claim," yet the action on a
money-loan was a typical one, and money-loans headed the list of a
class of actions treated in the same manner. The term kane-kitji
(money action), the exact meaning of which is yet uncertain, seems
nevertheless to have been a generalized term, applying to the class
of actions of which the money-loan was the type and deriving its im¬
portance from the characteristic procedure of the class. On the other
hand, shakn-kingin (money-loan), as it occurs in the cases below,
very often has the restricted meaning of " ordinary money-loan ; "
for loans from funds of certain sorts or for purposes of certain sorts
were specially named, as will be seen,—because in some instances
claims were made successfully for a special treatment ou these
grounds, while in others the same claim had been made unsuccessfully.
Thus shakii-kingin has three senses: (1) Money loans in general; (2)
an ordinary loan, not from a special fund or for a special purpose ;
(3) a type of actions including most or all of the money-actions and
marked by a special procedure. 4. Mosliiaicase. 5. Hyojo (decision,
judgment)-s/io (place, room). For an account of this highest Court,
see Part I. 6. That is, the 14th year of the period Kyoho, and
the 12th month. The Western dates here given are taken from Mr.
Bramsen's invaluable " Japanese Chronological Tables." English
dates before the change of calendar in 1752 may be corrected by the
reader, as Mr. Bramsen begins his Gregorian dates in 1582. Where
only the month of the year is named in the Japanese text, if the first
day falls after the middle of the Western month, the ensuing month is
given ; if before the middle, the month as recorded in the Tables.
7. De-iri (going out and coming in). The reference is probably
to the hostility of the disputants, who refuse to stay in the same place
with one another. I)e-iri is applied commonly to disputes resulting
in litigation; kuji is the action or lawsuit itself. 8. Kai-kakari.
9. In order that the allusion, as well as the significance of the Eesolu-
tion may be understood, it will be worth while to turn to No. 28, and
read the first document or two, and then to read in succession the
other precedents referred to in that case, viz., Nos. 1, 5, 13, and 99.
The present Resolution operates to remove an order of suspension or
limitation (here termed " Nullification Order ") passed 14 years be¬
fore. The text of the cases mentioned above, particularly of No.
PART III. CONTRACT : LEGAL PRECEDENTS.
3
is brought 1 and the parties have appeared ^ on the day
appointed for the hearing 3 by previous indorsement of the
Court on the plaintiff's complaint,^ the Court is to order a
30-day term 5 [in which payment is to be made], and
furthermore [if immediate full payment is impossible] a
payment by instalment ® on the last day of successive 80-
day terms. If the debtor is remiss in his payments, he is to
be put into haudcuflfs; and if he still continues in arrears, then
an order for execution in bankruptcy' must be issued.
28, 1, will indicate the nature of these orders. They seem partly to
have served the purpose of a statute of limitations, but chiefly to have
aimed at the relief of the debtor class by extinguishment of a portion
at least of their debts, the means being an order to the parties to
settle privately. It is a characteristic trait of Japanese society that
under the circumstances the creditor should be able to effect
any real compromise and not be entirely evaded by a debtor
whose obligation the Court had refused to enforce. The result
attained by these orders {which were extremely few in number)
was the relief of the community from a congested state, a relief
for which we forestall the need by our statutes of bankruptcy;
but in Japan bankruptcy meant as a rule such social degrada¬
tion, such an ending of one's career and a destruction of the
family life (this is to be seen in the customs recorded in Part
II), that it was an extreme resource, an individual phenomenon, and
never operated, as it does with us, to give constant relief as needed.
For this reason, perhaps, these Nullificatiou Orders became social
necessities. This theory is corroborated by the fact that until
1842 (No. 28, 1, infra) there seems to have been no definite and
invariable rule limiting actions to a prescriptive period of years.
1. Vttayeru. 2. Makari (a verb-stem used in combination with
other words, without apparently affecting their meaning, except
to give an air of sternness and severity to what is said, and thus
much used by officials)-(ie)'it (come forth). 3. Toriatsukai, lit.,
transaction, management. The Magistrate by indorsement of the com¬
plaint at once decided the taking cognizance of the suit and Appointed
the day for hearing it. 4. SO (suit)-yV7 (letter), o. Kivi (cut, limit).
6. Kin-kin. T. Shinclai karjiri. See Part II. Neither "execution"
nor " bankruptcy " alone describes this process, and the above term
seems to be the least objectionable. F'or further elucidation of the
method, see No. 28, («/)%, and Part VI, which contains a Section on
the subject.
4
PRIVATE LAW IN OLD JAPAN I
1] These rules apply to townspeople and farmers. As to
military gentry,^ the same procedure is to be followed for
the 30-day term and payment by instalments, but no im¬
prisonment or bankruptry shall ensue.®
These rules have all been in practice up to the
present time, and they are henceforth to be observed with
more strictness than has been usual, beginning with all suits
begun since Kyoho, XIV.
As to interest.® If in an acknowledgment of a money
loan interest is named in the body of the document and
close to the principal amount,^ it shall be taken up ® by the
Court; but if it is named at the end and appears to be an
after-insertion, an inquiry into the circumstances shall first
be made."
2. Precedents recorded in the office of the Town Magistrate
of Yedo.
Dated Kampo, I, 7 (August, 1741.)
" In regard to actions founded on the following
claims:
[Ordinal-}'] money loaus ;
Unpaid purchase-money; ®
Ground-rent;''
Shop-rent; ®
1. Bushi. This term will be used to indicate the various grades
of samurai regarded as a single class. 2. For the methods to
be substituted, see No. 12, infra. *8. Ri (profit) (money)-Ain.
4. Talca. 5. Tori-agerii. The above is the literal meaning of this
word, and it will henceforth be used as an equivalent of " take
cognizance of," "exercise jurisdiction over," " recognize the validity
of"; it has moreover a peculiar application, not exactly correspond¬
ing to any of those terms, and yet apparent enough from the context.
6. Ure-kake-ld/i. 7. Ji (land)-dai (price). 8. Tana (shop)-c/fin (fare
for hiring).
PART III. CONTRACT : LEGAL PRECEDENTS.
5
Prayer-fund loans; ^
Patent-fund loans; 2
Advances on behalf of another ; ^ and
Loans for taxes due in advance: ^
the court shall order a 30-day term, and, if at its expiration
the debtor cannot pay, then a payment by instalments.
But the following claims :
Bills of exchange; ®
Wages for labor ; ® and
Earnest-money;
differ from private money loans,® and full payment without
delay must be required.
1. Tera-kata (Buddhist temple)-s/ti(Zo-lei)i. This was money con¬
tributed to a temple to pay for prayers for dead ancestors. Ordinarily
such a gift exceeds nowadays 100 yen. The interest pays the expenses
of the prayers offered perpetually on the anniversary of the ancestor's
death. 2. Kwan-kin. See 1 )!/;•«, No. 9. S. Tatekaye-kin. i. Senno-
hei-kin. A daimyo often secured his borrowings by pledging the
rice tax of his fief, and sometimes, for greater security, the peasants
were ordered to pay in advance the tax of the succeeding year or two.
The above term indicates either a loan to a daimyo secured by a
promise of the advance-payment of the rice-tax ; or a loan to a
farmer who has been ordered to pay in advance and is obliged to
borrow for the purpose. The latter is the more probable meaning.
5. Kawase-kin. 6. Shokunin (workman, artisan)-tenia (labor-time)-
chinkin (price). 7. Tetmke-kin. 8. Altai shaku-kiii. Aitai (some¬
times pronounced sotai) is used to designate a private transaction,
i.e., one not needing a public authentication or registration, and
hence opposed to pledges, land-transfers, etc. It has already been
said that shakii-kingin (money loan) is the typical claim in a class
of actions differing in procedure from pledges of realty, etc. Now
this passage and a few others indicate that the aitai or non-official
nature of these transactions is the quality which in Japanese juris¬
prudence united these various actions. This is in harmony with
the nature of the practical distinction between the two great classes,
for the sJiaku-kinyin clSss was enforced with great leniency to the
debtor and was even subjected to the Nullification Orders already
mentioned; while the other class was given a comparatively speedy
6
PRIVATE LAW IN OLD JAPAN :
No. 1] The practice already followed shall be continued in
regard to the receipt of dividends i from the profits ^ of
any undertaking,^ where the document bears the joint seals
of the various parties.
If a suit for money due is brought against a farmer,
and the real obligor is alleged by the farmer to be an
esquire,^ the esquire shall not be so regarded even if he
appears to have been the real borrower, unless the instru¬
ment of debt bears the indorsement of the esquire or the
attestation of one of his deputies." ®
[No. 2] Money Loam, with hlanh deed ® or with
doubled princqwdd
Dated Kyoho, XIV, 12 (Februaiy, 1730).
" Those who have taken part in mortgages, loans, etc.,
where the amount is left in blank or is to be repaid in double,
are culpable; and the Court is not to give judgment for repay¬
ment, but is to impose fines® on both parties and witnesses.
No distinction of liability is to be taken between creditor®
and debtor,^® but the fine shall be determined strictly accord¬
ing to the personal circumstances of each."
remedy and does not seem to have been subjected to those Orders,
A perusal of the various precedents will show how the members of
the two classes altered from time to time. Historical progress
must be kept in mind in reading these precedents ; and in No. 28,
dealing with the same subject, one perceives the more complex
character of Japanese commerce 100 years later.
1. tJ'ari-ai. 2. Toku (produce)-yo (use). 3. Uke-oi, especially,
an undertaking to construct buildings or other large works. 4. Jito.
See Introduction. 5. See No. 28, 2, Art. 16, infrn. 6. Hakit (white)-
shi {paper)-tegata (note, deed). 7. Dai (doublej-kin. This is proba¬
bly a Besolution of the Chamber of Decisions. 8. Ka (faultj-i-yo
(price). 9. Kin (money)-s/iu (master, person). 10. Kari (borrow)-m<s/it
(same as shu).
PART III. CONTRACT : LEGAL PRECEDENTS.
7
[No. 3] Disposition ^ of an Action hij one tcho
has suffered Local Exile ^ and seeks to en¬
force a Claim for Money Lent^ to a Resi¬
dent of his former Domicile. '
A Resolution of the Town Magistrates of Yedo,
in Full Session,4 upon a Consultation 5 by the
Town Magistrates of Osaka.
Dated Kyoho, II, 4, 2 (May 12, 1717).
" Where a person suffers exile from his locality, but has
a claim against a person residing there and petitions for its
payment, the petitioner ® himself of course cauuot re-enter
the place, so that the Court canrot take up a suit brought bj''
him. But if he transfers ^ his claim to a relative or a
servant or some other person of his household, and the
transferee ® brings suit, the Court will take it up, and
ufter investigation give judgment.® The above was resolved
by the Town Magistrates [of Yedo] in Full Session, on be¬
ing consulted by the Town Magistrates of Osaka.
The disposition of actions where the defendant suffers
local exile should also be compared."
[No. 4] Money Loans.^"
A Proclamation " of the Chamber of Decisions.^^
Dated Yenkyo, III, 3 (May, 1746).
"We hear that lately, owing to' pecuniary distress,
many dishonest methods of lending money have come into
vogue, and that oppressive clauses are inserted in the
1. Tori-atsukai. 2. Tokoro-barai (exile from a particular village,
town, or ward). 3. Kashi-gin. 4. Probably the two Magistrates and
their chief clerks. 5. Hyogi-sho. 6. Negai-nin. 7. Yuzuri-watasu.
8. I'uzuri-uke (receivefnin. 9. Saikyo. 10. Kin-gin taishnku.
11. On-furegaki. 12. Cited from " Kempo Buryo." These references
are to the books containing the decisions and other precedents.
8
PRIVATE LAW IN OLD JAPAN :
No. 4] instruments and usury i is taken. This is not to be allowed,
and we order a reform in these matters. Hereafter, when
we have given judgment against a defendant, and after
default have ordered payment without fail, whether he he of
the gentry, the priesthood, or the townspeople, we shall in¬
vestigate to see whether there has been anything improper, —
oppression by the creditor, usury, or failure to give the
debtor a receipt upon settlement and subsequent entry of
action 2 for the amount; and we shall punish the creditor as
the circumstances require.
Nowadays there are many persons who lend money
upon deeds of s.ale of houses, storehouses, or ^undr}' uten¬
sils. This differs from the transaction of house-pledge,^ nor
does the instrument bear the seal of the headman, so that it
is in fact only a hypothec ; and we shall give judgment as in
the case of [ordinary] money loans.
But sales of boat-shops or of hair-dressers' shops do
not come under this rule.
This is to be made known in ali the wards.
3rd month."
[No. 5] Disposition * of Actions %ipon Money
Loans.^
Dated Yenkyo, HI, 8 (May, 1746)
1. (high)-ri (interest). 2. Shiisso suru. S. Iije-shichi. A. Tori-
sabaki-kata. 5. Probably a Besolution of the Chamber of Deci¬
sions. See No. 28, 1. The head-notes of the cases, here printed
in italics, seem usually to have been made up by the compilers
of the collection. The description following it, naming the sort of
document, the date, and the parties writing and receiving, is some¬
times by them, sometimes by the present editor; it has been inserted,
when lacking, because of the greater convenience to the reader. It is
not always possible to tell from the text whether the headiiote is by
the compilers of the Judicial Department or by the original Tokugawa
clerks who put together the documents in the volumes cited as
sources; in the latter case the headnote would bear somewhat the
same relation to the documents as that of the headnote of an official
Beporter in the United States. The portions unmistakably belong-
part iii.—contract: legal precedents.
9
1. [Ordinary] money loans ; ^
2. Prayer-fund loans :
3. Patent-fund loans : 2
4. Loans on hypothecs : 2
5. Advances on hehalf of another :
6. Loans for taxes due in advance :
7. Wages for labor :
8. Earnest-money:
9. Dowry-money: ^
10. Unpaid purchase-money :
11. Investment-loans : 5
12. Loans secured by deeds of deposit® of utensils :
18. Loans secured by deeds of sale 2 of articles ;
14. Loans to Government vassals® and Govern¬
ment merchants,® secured by hypothec of
ground-rent or house-rent of residence-land
received from the Government:
ing to the original text are enclosed in quotation marks ; except the
headings of the different documents of a single Number, where each
document usually contains a superscription indicating its nature.
The dates are of course usually found in the original; but where there
is a single document only, the date is placed in the headnote only,
especially as it is not always possible to tell whether it belongs in the
•document. 1. SlMku-kingin. 2. See infra. No. 9. 3. Kakiire kin.
4. J/san (brought property)-Ain; usually the money brought into the
family by the woman or the man on the occasion of a manqage ; but
sometimes also the sum brought by an adopted son. 5. Shiire-kin;
this term is somewhat obscure. Shiire conveys the idea of an in¬
vestment, a stock bought for re-sale, a sum laid out. Shiire-kin
probably means money borrowed for the purpose of investing,
or money advanced by the wholesale-dealer to the producer.
6. Azitke-shomon. T. Uriwatashi-shomon. 9. Go-ke-nin, —petty sa¬
murai belonging to the Tokugawa house, their income being less than
300 bales of rice. They served often as police, keepers, stewards,
■etc., and were as a class overbearing and untractable, looking down
on all vassals of other fiynilies as inferiors. 9. Go-yo tashi-choniii
(merchants assisting Government undertakings). These wei'e rich
towns people, who lent money to the Government, and were accorded
the privilege of sword-bearing and endowed with a piece of land.
10
PRITATE LAW IN OLD JAPAN :
5] [Claims arising from transactions of the above sorts
occurring before Yenkyo I (1744) shall not be taken up ;] i
but for those occurring during and since Yenkyo I the Court
shall issue a summons ^ for the 4th or the 21st day of the
month and order payment within a 30-day term. If any
arrears, however small, remain at its expiration, a payment
by bi-montlily instalments shall be ordered. If the debtor
is still in default, an order of execution in baukruptcy shall
issue.
If a debtor fails to appear ^ on summons or is in
[wilful] default after being ordered to pay, he shall, if ono
of the military gentry, be reported to the Council of State, or
if of the priesthood, farmers, or townspeople, be punished.
Moreover, where money has been illegally loaned, the
creditor shall be punished as circumstances require."
[No. 6j Issuing of an Order for Evicting* a
Tenant pending trial of a Money Action ^
against him.
A Reply of Magaribuchi, Lord of Kai, Town
Magistrate of Yedo, to a Consultation by
Makino, Lord of Osumi, Town Magistrate of
Yedo.
Dated Anyei, YII 8, 18, (October 8, 1778).
1. Letter of Consultation^
" From Makino, Lord of Osumi;
It has beeu the custom that v%erever a tenant of
house or ground is sued on a claim of money lent, the house¬
master'^ cannot petition for an eviction without under-
1. This must be supplied. See No. 28,1. 2. Yohi-dashi. 3. Fusan
sum. 4. Ji (laud)-(iate (expel), tana (shop) date. o.Kinsu (moDey)-deiri.
6. Go-sodan-slio. Cited horn " Kakitoine." T.Iye-nushi. There is some
difficulty in determining the meaning of this word. Literally it should
mean " house-master," and to-day it signifies " house-owner." But it
PART III. CONTRACT : LEGAL PRECEDENTS.
11
taking i responsibility for the claim. But we learn that
this rule causes much hardship to land-owners ^ and
house-masters,3 and it is reported that there are evil-
disposed tenants who, when the}- perceive their house¬
master about to petition for their eviction from the house
or the ground, intentionally^ cause a money-action to be
invented. So that henceforward may we order au eviction
from ground or house without an undertaking of the action
by the house-master,—providing that this rule shall not
apply to the trial ® of any other kind of suit ? ®
8th month, 6th day."
2. Answer.
" I think that hereafter you may well proceed as your
letter suggests.
8th mouth, 18th day.
Magaribuchi, Lord of Kai."
[No. 7] Jiidfjment requiring, after investigation,
that a Feudal Lord or Esq2iire shall pag a
Money Loan'' contracted hy Farmers with
the Listrict-seals.^
A Resolution of the Chamber of Decisions, in Full
Session.9
Dated Kwansei, II. 2, 11, (March 26, 1790).i®
1. Proposal.
"When farmers have taken a loan,giving an instru-
was in old days applied to a sort of bailiff, the agent of a large land¬
owner (who might be a noble) in a town, having the general
superintendence of the letting of houses and lands, and virtually
all-powerful in those matters. He was often known as oya or
" parent" of the tenants, exercising a paternal care and influ¬
ence, and making a prominent figure in the local community.
1. Hiki-ukeru. Ji-nu»hi. 3. lye-mmhi. 4. Waza-u-aza.
5. Gimmi. 6. Kuji. See infra. No. 28, 2, Art. 28. 7. Kingin-taisha-
kit. 8. Go-in. For the extent of the region called gii, see Introduc¬
tion. 9. Ichi za. 10. Citei horn " Ko-liari-garni." 11. Sliaku-yo.
12
PRIVATE LAW IN OLD JAPAN :
No. 7] ment with the district-seal, and the creditor brings a suit
for repayment, making defendants ^ of the joint-sealers, the
Full Chamber shall indorse the petition, summon the far¬
mers, and try the matter. If the farmers plead ^ that the
debt is in reality a debt of the feudal lord or esquire, and
if, although there is neither official seal^ nor indorsement^
of the feudal lord or the esquire or a retainer nor a collateral
document,® a retainer® on being summoned affirms, in accord¬
ance with the farmers, that the debt is that of the feudal
lord or the esquire, and that the latter undertakes it, then
an order of payment shall be issued against the feudal lord
or the esquire.
If the farmers assert the debt to be that of a feudal
lord or esquire, and a retainer of the latter disputes this,
the court shall accept the statement® of the retainer. In
such a case, even though the debt appear to be in reality
[that of the lord or the esquire], it shall not be decided ® to
be his debt, unless the instrument bears his indorsement as
well as the official seal of the local official, and the farmers
shall be ordered to pay."
2. RubiicJ^ " We concur in the above views, fol¬
lowing our practice in the case where a debt entered
in the day-bookie of a creditor is not attested by the
debtor's seal; the rule in that case being that, although the
law does not permit us to declare the claim a valid one, yet^
if the debtor admits positively the arrearage and his admis¬
sion tallies with the creditor's statement, we shall order pay¬
ment, but that if the debtor disputes it, we shall not order
payment." i® •
1. Aite (opposite party). 2. Moshi-tateru. 3. Okuslio. 4. Urn-sho.
5. Soye-shomon; that is, given by one of those persons. 6. Kerai.
7. Moshi-arasou. 8. ^Jo.^hi■lcuchi. 9. Sadame. 10. Shu (rei3)-sfto
(writing). 11. Hi yose t$uke-komi-cho (claily-miscellaneous eutries-
book). 12. So-i-naku. 13. See No. 28, 2, Art. 16, for a rule on the
same subject.
PART III. CONTRACT : LEGAL PRECEDENTS. 13
3. Orihr.
" When fitrmers borrow money upon an instrument bear¬
ing the district-seal, and the instrument bears the official
seal or the indorsement of a feudal lord or esquire or bis
retainer, or a collateral instrument exists, if the creditor files
a petition against the farmers, then the Full Chamber shall
indorse the petition, summon and examine the farmers, then
summon also the retainer, and after a trial order the feudal
lord or esquire to pay.
Note, that if the above official seal or indorsement
exists, an order of payment may be made to the feudal lord
or esquire, even though [the creditor] does not petition for
such an order.
The above resolution has been taken at a Full Session."
[No. 8] Debts of a Temple-Incumbent^ iviio has
suffered Funislment.
A Reply of Wakizaki, Lord of A\vnji,2 to an In¬
quiry 3 by Negishi, Lord of Hizen.i
1. Ji-in. 2. Temple Magistrate from 1791 to 1813. 3. Toi-
au-ase. The most common terms to designate the circum¬
stances under which the documents came to be written are:
Moshi-awase (resolution), employed of a concurrent determination
by two or more persons, ana here usually of the Chamber of Deci¬
sions ; sodan-sho or kakeai (consultation), usually applied to a letter
from one Magistrate to another; but kakeai is sometimes applied
to letters from the retainer of a feudal lord to one of the Magistrates;
vkagai-sho (request to a superior, here termed " petition "), properly
employed for requests made by a private person to an official, by a
retainer to a Magistrate, or by a Magistrate to the Council of State;
toi-awase (inquiry), usually in communications between equals ; hyo-
ketsu (decision), and a few other terms, applied properly to adjudica¬
tions of specific disputes ; fare (proclamation), applied to all pro¬
clamations by authorities, but especially to machi-hure, regulations
or laws posted for the information of the townspeople; an (proposal,
bill), a proposition of lf,w, made either to the Chamber or to the
Council of State; ehita-an (draft of a law) is used in the same
connection. 4. Town Magistrate from 1798 to 1815.
14
PEIVATE LAW IN OLD JAPAN :
No. 8] 1. Inqiiiiy.
" Where the late incumbent i has left a debt, but has
been punished for some reason and his succession 2 ex¬
tinguished, should the present incumbent 3 be made to
undertake the payment of the debt " ?
2. Answer,
" In regard to your letter, I will say that when the in¬
cumbent of a Buddhist temple is punished and his succession
is extinguished, the subsequent incumbent^ is to undertake
the debt, if it is one attaching 3 to the temple itself. There
is a precedent 6 by which the successor was ordered to pay,
when the former incumbent had suffered punishment,
because the temple-seal had been used; so that in the case
mentioned by you, if the instrument shows that the money
was borrowed for the needs of the temple, we think it is
just to order the successor to pay."^
■[No. 9] Order for the Paijnicnt of a Loan made
h>j a deceased Zato of the Blind, the
Petition hcing filed hij his Successor.
A Decision ^ of the Chamber of Decisions, in Full
Session.
Dated Kwausei, V, 5, 2 (June 10, IVOS).!"
1. Mcmitramhuii of Consultation.'^^
" Heretofore, when in instruments of debt taken by
1. Sen ju. 2. Sei-dai (lit. generations). 3. Go-ju. 4. So-jn
5. Tsiiki. C. Sen (formeij-rei (customary iflle). 7. No date. Cited
from " Cluhd lcusai-rokii." 8. This was a class-name for the three
highest ranks among the blind. Money-lending was one of the chief
occupations of the blind, especially by those of the privileged classes.
See, for some account of these ranks among the blind, Dixon, in
Trans. Asiat. Soc. Jap., XIX, 578. 9. Hyo ketsu. Yet the deci-sion
itself does not appear. But it is certain that the proposal was approv¬
ed. 10. Cited from " Fuhari-gami." 11. By one of the Magistrates.
PART III. CONTRACT : LEGAL PRECEDENTS.
15
zato the rank of the creditor (whether first or second ^ )
and the words " and fellow-members " ^ or " and appren¬
tices " 3 have been written in, and a clause has been inserted
reciting that the money loaned is part of the " patent-fund,"^
and at the creditor's death the son, mother, wife, or other
successor has petitioned for payment, payment has some¬
times been ordered, sometimes not, and the decisions are at
variance.
It is true that if in the instrument the creditor is named
as one person only (for example, ' So-aud-so,' or ' So-and-
so, a Koto ') and there is no joinings of others (such as ' and
fellow-members' or ' and apprentices'), the claim may
legally be transferred 6 to an outsider,'^ and the latter may
sue the debtor. But if the above terms are used, the instru¬
ment implies that it is to be transferred 3 to the apprentices or
the fellow-members. Now, although the instrument may be
worded at the pleasure of the parties so as to pass on death to
either outsiders or other zato, y ;t in the above case certainly
no outsider can claim the right to sue on the ground of
being the general successor to the patrimony of the deceased.
1. Ken-gyo, hoto. 2. Kalcama. 3. Deshi. This would he
because loans or contributions had been received from these
persons and a certain community of interest existed. 4. Kwan-kin.
In order to attain the highest ranks, the Emperor's patent
was necessary, and certain examinations were to he passed;
but these latter might be omitted on payment of a fee, sometimes as
large as 500 ryo. To obtain the necessary wealth was one of the great
ambitions of every blind man. A store of money was set aside for
the purchase of the patent, and gradually added to. Meantime, it
might be incj-eased by lending it out; and when this was done, the credi¬
tor could not be considered harsh or unjust if he rigorously exacted
full and prompt repayment of a fund so important to his welfare in
his profession. For this reason it became eustomary to recite, in all
instruments of debt, that the money lent by the blind capitalist was
a part of his " patent-fund." 5. Kaki-kuwaye. G. Yuzuri. T. Sliiro-
to (white-person; one \ho is outside of a trade or profession).
3. YuzuH-heki.
16
PRIVATE LAW IN OLD JAPAN :
No. 9] Henceforth, then, we think, where the instrument, in a
loan of patent-fund, in terms joins the apprentices or the
fellow-members of the creditor, and the successor ^ or the
assignee^ of the claim is a zato, the judgment should be as
heretofore; but where an outsider petitions as general
successor, my opinion is that we need not order paj-ment."
[No. 10] Ordering Payment ivhere the Instrii'
nient specijics on its Face no Terrn.^
A Decision by the Chamber, in Full Session, upon
a Consultation by Huchikano, Lord of Kawachi^
as to a suit between Onishi Sonosuke, Manager
of the Shogun's Ceremonial Tea Chamber and
Purveyor of Tea-Vessels,^ plaintiff,^ and Ma-
yeda Onoyemon, retainer of Matsudaira, Lord
of Gemba, defendant. ®
Dated Kwansei, III, 11, 21 (December, 16, 1791).^
1. Consultation.
" This suit began on the Ith day of the 6th month,
and I have proceeded with the trial from time to time. In
the instrument of loan ® there is a statement to the effect
that the debtor shall pay gradually, according as the
adjustment of his affairs will permit, but that he shall not be
negligent in the payment. Though no term is fixed, the
debt is now in arrears for 18 years, running on by virtue of
the above promise ® as to gradual payment. My request is
for advice as to whether I should or^r payment. I append
a copy of the instrument."
1. Sozoku-nin. 2. Yuzuri-iike-niil. 3. Ki (term) (/elsit (month).
4. These titles were all honorary. For the scheme on which they
were based, see Introduction. 5. Negai (beg)-nin. 6. Aite. 7. Cited
from " Kakitome." 8. Shaku-yo. 9. Yakusoku.
PART in.—CONTRACT : LEGAL PRECEDENTS.
17
2. Decision.
"As to this suit, it has been decided by the Chamber,
upon consultation in Full Session, that payment should
be ordered."
[No. 11]. Disposition o f an Instrument of Loan ^
given hy a Banished ^ or Absconding ®
Debtor.
A Keply of Hatsukano, Lord of Kai, to a Consul¬
tation by Ikeda, Lord of Chikugo, as to a suit
between Riyemon, householder,^ of Shiba
District, Katamonzen Ward, Block No. 1,
plaintiff, and Takada Bunyemon and Yamada
Onoyemon, former retainers of Tsumaki, Lord
of Sado, defendants.
Dated Kwansei, III, 12, 6 (December 30, 1791).®
1. Consultation.
" The defendants, by an instrument bearing their joint
names,® borrowed 40 ri/o, in Horeki, IX (1759), and Bun¬
yemon, by instrument bearing his own name only,'^ bor¬
rowed 50 ri/o in the same year, from the said Riyemon.
The latter has now filed a petition against the Lord
of Sado, because it was stated in a clause of each in¬
strument that the money was borrowed for the use of the
debtor's lord. I sent the complaint ® to the Lord of Sado,
who has replied, ' That he does not remember borrowing
either of these sums ; that, as to the debtor Bunyemon, ho
had taken away his swords® in Horeki, X (1760), forbidden
him to reside in Yedo, and banished him for misconduct;
that, as to Onoyemon, he had absconded in Horeki, XIII
1. Shaku-yo. 2. Tsuiho. 3. Shiippon. 4. lye moclii. 5. Cited
from " Kakitome." 6. Ren-mei. 7. lehi-mn. 8. So-jo. 9. Dai-shi^
(lit., long-and-short).
Vol. xxi 9iip. Pt. Hi.—3.
18
PRIVATE LAW IN OLD JAPAN :
No. 11] (1763); that the Lord of Sado had entered these events in
the records of the proper office as they occurred ; that when
he horrows money for his own use he invariably indorses the
instrument; that neither of the present instruments hears
his indorsement; that in his opinion the statement of the
two vassals as to the use for which the money was intended
was of their own invention ; and that therefore he declines
to pay.' Now, if the borrowers of this money are discovered
and sued, ^ well and good: hut as this reply is doubtless
correct, and as the whereabouts of the two men is not
known, shall I make no order ^ as to the petition, and
dismiss 3 the complaint, inasmuch as the Lord of Sado
points out that the instrument is not indorsed by him, and
that he does not recollect any such loan ?
12th month."
2. Answer.
" In regard to your letter, I think that you had better
refuse an order of payment and dismiss the complaint."
12th month.
Hatsukano, Lord of Kai."
[No. 12]. Disposition Actions brought after the
Limit ^ of Time for entertaining Suits.
An Instructions of the Council of State to the
Chamber of Decisions.
Dated Kwansei, IX, 8, (October, 1797). ®
1. Letter. •
" It is of the greatest importance that you should so
proceed in your cases as to make your conclusions in every
instance correspond to the real merits ,7 no matter how long
1. Ai-kalcaru. 2. Sata. 3. Kijoku-ka. 4. Kagiri. 5. On-kakitori. 6.
Citedfrom " Furu-hari-gami." 7. Jijiuu; literally, " facts," " truth."
part iii.—contract: legal precedents. 19
a time is spent in the inquiry, and especially now that a
reform has been made in regard to the limitation of
actions; ^ and it is your duty to see that the conduct of
neither party shall impede the course of justice. Now,
though we hear that the Shogun is shortly to make a new
Proclamation,® and though in the meantime few suits may
come before you, stiU it will be well for you to consult as
to your private rules ® in these matters ; [and we make the
following suggestions].
Where a payment by instalments has been ordered, hut
the debtor has brought into Court a less sum than is due,
the proceeding hitherto in vogue is not satisfactory. Hence¬
forth, if the debtor be a vassal of a 10,000 koku lord ^ or
some other important person, you had better, if the
circumstances demand, summon the Chief Seneschal ® or
some other important official, and order payment without
fail. Doubtless it is impossible, merely by means of an
order, invariably to secure complete payment on every
occasion, and if the debtor alleges any unavoidable® hind¬
rance, you may receive the excuse. But if this occurs
three times or so, and you think that the debtor has been
negligent in attending to the debt, then you shall call the
matter to the attention of the official who appeared for the
debtor; ^ and if any further irregularit}' occurs, you shall
summon the Chief Seneschal, as above mentioned, and
censure him and order payment. Before proceeding to this
extreme, you should notify the debtor that the matter has
reached such a stage, and then take the above step on receiv¬
ing an acknowledgment of the receipt of the notice. Where
1. See the next precedent. 2. Of course the Shogun took no active
part in the matter. This phrase means that the Council itself was
preparing the measure. 3. Nai (privatel-kifca (rules). 4. That is, a
daimyo in the exact sense. 5. Kara. 6. Yamii wo yezoru. 7. No
vassal or lord of any impirtance appeared personally in a court of
justice, unless on important occasions. He was represented by some
of5 cial.
20
PRIVATE LAW IN OLD JAPAN :
No. 12] the debtor is a person of small estate or a holder of office,^
and the case comes to extremes, notify him, as above, about
summoning the Chief Seneschal or other officers, and if this
does no good, make an order of payment without fail and
address it to the Chief of his Bureau.^ If he is under the
direct control 3 of the Junior Council,^ address the order
to his fellow-officers ; if he is the only one in that office, to
those of the same rdnk; 5 if there be none, then to his
family.
If after all this the debtor remains in arrear, you shall
inform the Shogun, and he will make some order, which, wo
think, will induce proper conduct by the debtor. The
creditor, as a usual and natural thing, is intent on winning
his profit, and even heartless in attaining his end; but you
must, in the trial, not forget [that he is merely seeking his
due]; while as to the debtor, he ought constantly to
remember his honor as a borrower, and you must instruct
him not to forget what honor requires of him ; and you must,
in case of necessity, not fail to report him publicly to the
Shogun, who will then make some order.
Such, we think, should be the private principles on
which you should proceed. Consult among yourselves
thoroughly, and deliberate on the proper rules, reporting
thereon to us. It will not be too late even if you report
after the issuing of the Proclamation before-mentioned. We
especially urge you to communicate your views, because it
would be highly regrettable if the present evil state of affairs
should continue or grow worse, and we desire to discover
some means of amendment."
2. Answer.
" We have perused your letter, and consider that it
leaves nothing more to be said. We agree with its sug-
1. Kinslii. 2. Kashira shihai. 3. Jiki shihai. This was to
avoid disgracing so high an officer by a summons of debt. 4. Wnka-
doshitjori, the body next to the Council of State. 5. Doretsu.
PART III. CONTRACT : LEGAL PRECEDENTS.
21
gestions, and shall adopt them as a temporary system,
until the Proclamation is made. After that we shall make
a farther investigation of the subject and report to you.
8th month.
Chamber of Decisions, Full Session."
[No. 13] Disposition of Actions on Money
Loans. ^
A Resolution of the Chamber of Decisions in Full
Session.
Dated Kwansei, IX, 9, 13 (November 1, 1797).^
"As to suits upon money loans,2 credit sales, farm-
laborer's wages, 3 workmen's wages, ^ etc., it has been
ordered that judgment shall not be given [by the Magis¬
trates] in any such cases now pending, and that even suits
[belonging to these classes] already taken up by them and
adjudged shall not be further treated in any Magistrate's
Court. Their disposition shall he as follows:
(1.) As to suits now in the course of trial before
the Temple Magistrate, Town Magistrate, and Finance
Magistrate, where payment within 30 days has been ordered,
and as to suits to enforce satisfaction of a judgment
for instalment-payments, the above Magistrates shall make
orders in their Courts substantially as follows: As to suits
upon money loans, credit sales, farm-laborers and work¬
men's wages, an order has been made that henceforth the
Magistrate's Court shall not try all those hitherto tried,
and shall therefore not render judgment in cases pending
or on [motions to enforce judgments for] 30-day payment
or instalment-payment. So that the parties in such suits
shall settle the matters between themselves,® and when
private settlement® has thus been made, no certificate of
discharge ^ need be filed.
1. Cited from " Shoji-dome." 2. Shalcu-kingin. 3. Sahi-ryo.
4. Tema-chin. 5. Aitai. 6. Naisai. 7. Sumikitchi-shomon.
22
PRIVATE LAW IN OLD JAPAN :
13] (2.) If a Magistrate has already forwarded a first-seal ^
case [of the above classes] to the Chamber of Decisions,
he shall, upon the appearance of both parties on the trial-
daj', 2 make order as above, and annul the complaint; 3 and
the same shall be done when a private settlement is reached
[in a pending case].
Note, that the complaint-instrument thus declared null
is to be brought by the Magistrate to the Chamber, and
there in the private room he shall cancel his seal.
(3). Where, in a fief held in trust for the Shogun,^ or
in the district of a deputy, an order for instalment-pay¬
ment has been made, the Finance Magistrate shall order the
official in question to frame his decision according to the
1. Sho-han. This term is a difficult one, but seems to have the
following import, according to the authority of Kvji Hikwan (" Private
Book of Suits-at-Law "). When a complaint was first entered, the
Magistrate indorsed it, to the effect that the parties should endeavor
to settle privately, by the mediation of their headmen, landlords, and
companies, and upon failure in this should appear on the 7th day from
date. If both parties were within the jurisdiction of the Magistrate,
he tried the case himself; but if the defendant was not under his
jurisdiction, the indorsement directed the parties to appear on the
appointed day before the Chamber of Decisions, who then tried the
case. The Magistrate, at the time of thus indorsing, affixed his
seal, and the other members of the Chamber added theirs after¬
wards, presumably at the time of trial. Apparently a case where
the defendant alone was under the jurisdiction of the Magistrate
before whom the case was brought was assimilated to the case
where both parties were. A " first-seal case" then meant one in
which the defendant was not under th? jurisdiction of the Court
where suit was brought, and therefore a case in which the Chamber
took original jurisdiction. See infra, passim. But several obscure
points remain, which it is impossible at present to clear up. 2. Sashi-
hi (appointed-day). 8. Meyasu. -1. 0-azukari-sho,—that is, belong¬
ing to the Tokugawa family and administered by one holding under
the Shogun as a vassal (usually an esquire), not merely as an
administrative official.
PART III. CONTRACT : LEGAL PRECEDENTS. 23
intent of this order, and to annul the order for a payment
termi and forward it to the Magistrate.
Note, that cases within the jurisdiction of the Temple
Magistrate are to be investigated by him [on request of the
Finance Magistrate], and a reply 2 made to the Finance
Magistrate.
(4.) [In cases of the above-specified kinds] any
order for a payment term or final-certificate ^ which has
been delivered to the plaintiff shall be returned to the issu¬
ing Court and forwarded by it to the Chamber of Decisions
[for cancellation].
Note, that this applies to payment orders made by a
Magistrate in suits heard at Private Sessions.^
(5.) This Order is to apply only [to the ordinary
actions] in which the established rule is to order an instal¬
ment-payment after 30 days; ® and actions on house-pledges,
boat-house hypothecs, hairdressers' hypothecs, arrears of
wages of servants, money lent on pledges of reliable pro¬
perty,® bills of exchange, land pledge, rice bought and left
1. Nichi-gen shomoii,—an instrument made upon rendering judg¬
ment and ordering payment by a fixed date. 2. Aitatsu. 3. Oshi-kiri
(pushed to an extreme)-sfto (writing),—the order for instalment-
payments. See No. 51, 2, c, (12). 4. Until Kwanbun (1661-1673)
the Council of State, the Censors, and the Magistrates had
been accustomed to meet as a Court or Chamber of Decisions
six times monthly. At that period a separation was made.
The Chamber was attended by a Councillor on three days of
the month, and the three Magistrates alone held Court on the
other three days. The former occasions were called Formal Days
{shiki-jitsu); the latter, attendances (tachiai), probably because only
the attendance as a Censor by way of inspection was required. Tbe
sessions of the different Magistrates in their own Courts were called
Private Sessions (uchi-yoriai). There were three of these monthly
at the period above mentioned; but the term indicates that it was
applied only to a meeting of the Magistrate and his chief clerks.
Ordinary daily trials seem to have been termed te-kagiri (ofl-hand
cases) 5. That is, that money loan class mentioned already in No. 1.
6. Tashika-iiaru shichi-motsu. The nature of the property is not clear.
24
PEIVATE LAW IN OLD JAPAN :
1^0. 13] ou deposit i shall be taken up, whether brought before this
order or not.
Note, that where it is found on investigation that an
alleged land pledge or deposit-sale of rice is not what it
purports to be, but only a hj'pothec® and tbus on the
fooling of an ordinary debt, an order is to be made refusing
judgment, if the instrument was executed before the order.
(6.) No action upon a loan 3 made on or before the
30th day of the 8th month (October 19) of this year shall be
taken up ; but those brought on aud after the 1st day of the
9th month (October 20) shall be taken up.^
(7.) In regard to actions on money loans to the Govern-
meut,5 loans from relief funds ® belong to chief Buddhist
temples or Shinto temples or other great temples, aud loans
from assistance funds of inns, they shall be takeu up and
payment ordered.
Note, that where the person representing the Govern¬
ment temple or the inu has included in one of the above
1. Kai-adzulie-mai. See Part II, p. 83, Ecliigo huni. 2. The
two hypothecs above named would thus be exceptions to the
general rules for hypothecs. 8. Taishakn. 4. It would seem
that the essence of this order was a limitation of claims existing
before a certain period, with a quashing of all suits of certain
classes entered before that period. The difficulties are as to the
classes included. The classes as to which the rule of instalment-
psyment is here predicated do nnt quite tally with those enumerated
in No. 1 or No. 5, but are probably assumed to be well known. The
term " loan " in par. 6 refers to all the classes of suits previously
ordered to be quashed. See the note to No. 1, supra. It must be
remembered that a hypothec is always re^rded as belonging to the
class of ordinary loans, except in the two cases above mentioned.
5. Kogi-o-kashitsuke-kin. 6. 0-teate-kashitsuke-kin. Oteate-kin
a sum of money bestowed by the Shogun ou some individual or
association nominally for the purpose of giving relief in some
pecuniary emergency. These loans were made from such a fund.
7. Josei-kin-kashitsuke kill. In large towns there was usually a chief
inn, at which daimyo and other travellers of high rank put up.
The fund accumulating from their largesses was calledyosci-k/n.
PART III. CONTRACT : LEGAL PRECEDENTS. 25
loans ordinary money of his own, an investigation is to be
made as to what portion of the loan comes under the terms
of this rule, and, in case of necessity, the matter may be
referred to the Government for decision.
(8.) As the old instruments of debt supporting the
claims in which orders of payment have already issued have
been taken possession of and cancelled, and the creditor now
possesses no proofs ^ of debt and would be hindered in
the private settlement^ [of the claims dismissed under this
■order], such instruments ought to be renewed by the debtor;
and if the creditor petitions on the ground that the latter
has refused to do so, the Court shall persuade him to renew
it, pointing out that this order for private settlement has made
it necessaiy; and if the creditor is still anno3'ed by debtor's
delay, some punishment 3 shall, on consultation, be inflicted.
Note, that when such a renewal takes place, the
instrument is not to be dated as of the present 9th month,
but in such a way as to secure the paying off of the
flebt ^ in a reasonable time. 5
The above Resolution has been passed by the Chamber
•of Decisions.® "
[No. 14] Taliing vp a Complaint hij a Person
ivho has siifered Local Exile or by his
Agent'' against a Debtor in his former
Locality.
A Decisions of the Chamber of Decisions, upon an
Inquiry by the Town Magistrate of Osaka.
Dated Kyowa, II, 5, 21 (June 20, 1802).®
"An inquiry has been received from the Town Magistrate
l.Shuho. 2. Aitai-zumi. 3. Togame—ot&m&xy ineaDing, "cen-
BUie." i. Ko shaku (lit., old-loan). 5. That is, if the actual date of
renewal were used, the creditor might have to wait for another long
period calculated from«that date. 6. " In Full Se.ssion" is omitted;
tut there seems to be no significance in this. 7. Dainin. 8. Cited
from " Kakitome."
26
PRIVATE LAW IN OLD JAPAN :
No. 14] of Osaka as to whether a complaint of the above nature
should be taken up; and upon deliberation the Chamber baa
decided as follows:
' If the creditor's exile was not accompanied by con¬
fiscation 1 of patrimony, ^ then a complaint filed by his agent
to enforce payment of a loan^ to a person in his former
domicile should be taken up and indorsed; for as the
actual plaintiff is the agent, it is not as if the creditor
himself were reappearing in] his domicile. Moreover,,
although a person exiled from all Yedo or from all the
Three Districts of Osaka ^ cannot bring an action, even
by an agent, because he cannot enter the Magistrate's
Court, a person who has suffered local exile only has
nothing to prevent his filing a complaint in the Magistrate's
Court, for the only place from which he is excluded is the
ward of his original residence. So that such a person may
file a complaint, by himself or his agent, in a suit against
a resident of his former ward, and we will take it up.'
The above Decision was reached, Kyowa, II, 5, 21."
[No. 15] Disposition of the Complaint^ in a
Moneif Loan Action against a Number of
Eetainers.
A Replj' of Negate, Lord of Bigo, Town Magis¬
trate of Yedo, to an Inquiry from Kobase, Lord
of Nagato.
Dated Bunkwa, X, 8, 27 (Sept. 21, 1813\®
•
1. "A money loan action was brought, before the Lord
of Nagato, by Chuzo of Hitachi ktini, Kuwayama village,
against Oguri Shichirozayemon and ten other retainers
1. Tori-agent. 2. Kazai (family-property). 3. Kashi-kin. 4.
Mere local exile kept a person out of his ward or district only, not out
of the whole city. 5. Sujd. 6. Cited from " Furu-hari-gami."
PART ni. CONTRACT : LEOAL PRECEDENTS.
27
and the Lord of Nagato, finding no precedent^ for the case
of a suit brought on one complaint only against several
retainers, made inquiry of the Lord of Bigo, whose answer
was as follows :
' The usual practice is, when a complaint founded on
a money loan is brought by a townsman against several
retainers, that he must file a separate petition for each
single demand, 2 no matter how many demands he may
have, and the Court sends each petition to the Chief of his
Bureau, or if he is a person under direct control [of the
lord] summons a retainer of his and delivers the complaint
to him.® '
Such was the answer of the Lord of Bigo. As to the
manner of serving ^ the complaint, there has been no general
rule; but in future we will in all cases proceed in the above
manner, in analogy with the procedure in case of suits by
townsmen.
This was decided at a Pri%-ate Session [of the Town
Magistrate's Court] ".5
2. Example of a Notice of Suit.
" To Kobori, Lord of Shimosa.
From Kobase, Lord of Nagato.
As an action on a monej' loan bas been brought by
Chuzo, of Kuwaj'ama village, Makabe kon,
Hitachi kuni, against Nisliikawa Yoyemon, of
1. Senrei. 2. Kuchi. This word (literally, "mouth") has a
number of derivative idiomatic uses. Here the sense of "item,"'
" single head," is intended. It does not correspond exactly to our
" count," nor yet to " cause of action." It signifies a single claim
against a single person. 3. See No. 12, supra. 4. Tasshu (lit., com¬
municate). 3. This ^'rivate Session would of course include the
heads of staff and other clerical officers in the court.
28
PKIVATE LAW IN OLD JAPAN :
15] your Bureau,^ we send you a copy of the com¬
plaint in a separate document. If the substance
of it is without error, you had better direct
Yoyemon that it would he well for him to try
and make a private settlement,^ and in any case,
to report [to you] after serious deliberation.
8th month."
[No. 16] Proceedings in an Action on a Money
Loan against Retainers of the Hongican
Temple.^
A Reply of Sakakibara, Minister of Imperial
Revenues, Town Magistrate of Yedo, to a Con¬
sultation of Matsudaira, Lord ot Idzu, Temple
Magistrate.
Dated Bunsei, X, 4, 6 (May 1, 1827).^
1. Comuhation.
" An action was brought before me by the Manager ®
of the Taisho Temple of the Jodo Sect, of Yuki kori,
Sliimosa Ictmi, against the Superintendent ® and Deputies®
1. Kuini. 2. Naisai. 3. The Shin sect of Buddhists, the largest
and most influential in Japan, has in all of the principal towns two
chief temples called Hongwan. One is known as the Western, the other
as the Eastern. 4. Cited from " Shoji Kakitome." 5. Ko-shu. 6. Bin
turns)-5a(t (watch); rusii (absence)-i (dwell). This was an ofiicer of
government and superintendence, managing the affairs of believers
within the district appertaining to one of the larger temples situated
at Osaka, Yedo, etc. With him consulted the branch temples in all
matters reciuiring superior sanction. Under tSe rinhan were the rusui.
This term was sometimes given to the officer of a daimyo's house¬
hold, who superintended the family affairs during his lord's absence.
But here it signifies the subordinate officers under the rinhan, living
in different districts and reporting as occasion arose. The rinhan
was only an administrative officer, not the chief of the sect; and
the name seems to indicate that it was held in turn (month by
month) by two or more persons.
PART III. CONTRACT : LEGAL PRECEDENTS,
29
aud District-representative 1 of the Hongwan Temple, of
Tsukiji district, Yedo. After examining the complaint, I
found it stated that a sum of money borrowed by the Temple
for the use of its kitchen is in arrear. I then examined the
precedents, as the Hongwan is a temple of high rank [and
the matter might need special treatment]; and among these
I found the case of Gonzayemon, house-master,®^ of Soutlv
Kaji ward, block No. 2, against certain retainers of the
Hongwan Temple. This action was brought before Tsutui,
Lord of Iga,3 and he summoned them to appear^ and
join suit,® bringing tbeir written answer; ® but the re¬
tainers, it seems, forwarded a document asserting that, as the
Hongwan Temple is in all ordinary matters on a special foot¬
ing, it ought to be so also in this case, and in fact should be
treated after the analogy of a feudal lord. I made further
examination, but finding no precedent in my own Court, I
inquired of the Superintendent to learn whether the officers
of the Temple had ever appeared before any other magistrate
in such a case. The Hongwan of Asakusa district replied
that no such instance had occurred, but the Hongwan of
Tsukiji district reported that in the 2nd month of the second
preceding year Chiye, wife of Shinshichi, a house-renter
of Kobei's, of Hougo district, block No. 4, had brought
an action on a money loan against the retainers^ of that
Temple before Sakakibara, Minister of Kevenues.® The latter
summoned the retainers and ordered payment; but it
ended in a private settlement. I accordingly asked the
Minister of Imperial Eevenues about this case; and he
1. Hochu sodai. This was a clerical officer who attended to the
publication of Government proclamations or sect regulations among
the temples of his district and to similar affairs. A district (called
a himiai] comprised 20 or 30 temples, and each ktimiai seems to have
had a representative. 2. lyermshi. See note to No. 6, ante. 3. Town
Magistrate. 4. Blakari-deru. 5. Knji (suit, claim)-area se (cause to
meet, confront). 6. H^ito-sho. 7. In such a case they were of course
sued merely as representatives of the temple. 8. The writers of
the answer are the clerks of this Magistrate.
30
PRIVATE LAW IN OLD JAPAN :
No. 16] answered that although there had been no precedent for
this suit of Chiye, wife of Shinshichi, against retainers of
[a temple such as] the Hongwan, yet it was the ordinary
practice, ^ in suits by townspeople against temples, to
summon the parties to the joint-pleading on the 7th day
[after action began], and so he summoned both parties and
ordered payment. But the defendants obtained a post¬
ponement of the day of payment, and during the interval
they forwarded a document representing that, as the
Hongwan Temple was in all ordinary matters on a special
footing, it ought in this case to be allowed the same privileges
as a feudal lord. The Minister of Imperial Bevenues thought
it doubtful whether they could be treated in such a manner,
but as the joining of suit had taken place, and, during
the interval for which the time of payment had been
postponed, a private settlement had taken place, he sanc¬
tioned this disposition of the case. I learned also that it is
the custom, in the Town Magistrate's Court, not to indorse
the Complaint [as for military gentry], in suits by towns¬
people against temples, but to summon the parties to a
joinder of suit on the 7th day.2 This differs from the
practice in our Court, and I have been debating in my own
mind which practice is preferable. As the claim in question
is not a private debt 3 of the Superintendent, retainers,
etc., but is in fact, against the Temple itself, it seems
unfair, even though the suit is nominally against those
persons, to indorse in the same manner as against ordinary
1. Shikitari. 2. It is not quite clear what distinction was here
intended, and comments on these questions of procedure must be
reserved for a later volume. The first alternative seems to refer
to the method of summoning the military gentry. But it is believed
that the summons and the taking cognizance of the case were
always done by indorsement. Compare also " seven-day indorse¬
ment only," a few lines below. Hence " as for military gentry" or
some such qualifying phrase must be supplied. 3. Jibun-shaku.
PAST UI. CONTRACT : LEGAL PRECEDENTS. 31
temples.^ Moreover, as there may be inconvenience in
reporting the matter to Kyoto,^ if a seven-day indorsement
■only is made, I propose, therefore, that for the future, in suits
against the Hongwan Temple, a summons shall be sent [to
the Superintendent], with the complaint, ordering him to
settle amicably® with the plaintiff, hut, if this is not
done, to forward an answer in writing. When this occurs
a summary trial ^ shall be made and judgment shall be
given.
I ask your advice as to whether this practice is a
proper one.
4th month."
2. Letter to clerks of the Temple Magistrate's Court, from
clerks of the Town Magistrate's Court.
'• To
Hori Soyemon, Esq.,
Masuda Shirobel, Esq.,
From Mochizuki Yoyemon,
Yamanaka Chubei.
We have perused your letter,® in which you request
a consultation and inform us that on the day before yesterday
Matsudaira, Lord of Idzu, heard the action on a money loan
against the Hongwan Temple, and that, upon a reference to
the Chamber of Decisions, his course was affirmed ; and
that as his practice differs little from that followed by our
Court in the case of military gentry, your Court will in
future proceed on the same principle and as set forth in the
accompanj'ing enclosure ; and furthermore that you think it
very desirable for the two Courts to adopt a uniform practice
on this subject. We reported j'our communication to the
1. It is difficult to see wherein a distinction lies,—unless it be
that in the Hongwan temples money matters were in the charge of
special officials, with whom consultation would have to be held,
while in the smaller cues the fiuancial managers and the parties
summoned were identical. It must be understood that the chief
difference in treatment #ouId be the allowance of a longer time before
trial. 2. The headquarters of the sect. 3. Juku-dan. 4. Te-hagiri.
See No. 13, (4), ante. 5. Evidently a later one than the preceding.
32
PRIVATE LAW IN OLD JAPAN :
No.16] Miuister of Imperial Reveuues, who examined the letter, and
said that he saw no objection to proceeding as stated in the-
enclosure. That I now return, keeping a copy and sending
the present reply by order of the Minister of Imperial
Revenues.
4th mouth, 6th day."
3. Enclosure.
"When an action on a money loan is brought against
retainers of either of the two Hongwan Temples, the com¬
plaints shall be taken up, and if it appears on the face of the
instrument that that money was lent for the use of the
Temple, the complaint shall be forwarded and served upon
the defendant in the same manner as in the case of military
gentry; and after 6 mouths [the Superintendent] shall be
summoned and ordered to consult with the debtor, and,
if settlement is not reached, the defendant shall be ordered
to return the complaint within 2 days, and when he brings
it, he shall be ordered to file an answer within a certain
number of days. At the time of the joint-pleadiugi those
persons against whom the action is brought shall appear;
and at this point the trial of the case shall first be under¬
taken."
[No. 17]. Payment by a Debtor who has suffered
Local Exile.
A Reply of a Private Session of the Court of
Ishikawa, Steward of Imperial Waters, ^ Fin¬
ance Magistrate, to a Consultation by Sakaki-
baia, Minister of Imp^i'ial Revenues, Town
Magistrate of Yedo.
Dated Bunsei, X, 11, 2 and 18. (December 19, 1827)
and January 4, 1828.) ^
1. Tui (confront, together)-/ce(sti (decision). 2. Mondo-no-sho-
This was an officer charged with inspecting wells and supplying
water, ice, etc., at the Palace in Kyoto. 3. Cited from " Shin-
harigami,"
PART III. CONTRACT ! LEGAL PRECEDENTS. 33
1. C<ynstiltation.
" Ought uot the successor, if any, of a person who has
suffered local exile, to undertake the debts of his pre¬
decessor, provided no forfeiture i of cultivated and resi¬
dence land and of other property was made ? "
2. A7mcer.
"We acknowledge the receipt of your inquiry. We
understand you to refer to the case where the defendant
suffers local banishment, and we searched for precedents on
that point, but found none. We discovered, however, a
case where this Court was asked, in Gembun, IV, 10,
(November, 1739) whether a claim for money lent by one
who was afterward seutenced to local exile was subject to
extinguishment,^ in which a negative answer was given,
although the contrary rule would apply if a confiscation^ of
patrimony had accompanied the sentence, for this would
include the money loan. A sentence of local exile has
nothing to do with wife or son, so that the wife or the son
may take the cultivated and residence land and other property,
or, if there be none, the exile may be given the proceeds ^ of
a sale of the property. Now, as even the claim of an exiled
creditor is not extinguished, much less should the liability
of such a debtor. In the latter case, the name of the debtor's
successor, if any, should be substituted by the Court in the
order for payment; and even if there is no successor, the
Court should revise the instrument, (if confiscation has not
occurred,) as soon as the debtor has fixed his residence,
and deliver it to him, ordering payment without fail. But
in Kwansei, VI, (1794) the defendant in a suit pending^
before your predecessor, Ikeda, Lord of Chikugo, abscond¬
ed, 8 and the Full Chamber decided (there being no preced-
1. Keuho. 2. Uchi-^an (throwing away or out). 3. Tori-age.
4. Daikin. 5. Tahi-hakari-kuji. 6. Kakeochi. Bankruptcy, in
Vol. XX. Sup. Pt. ill.—3.
84
PRITATE LAW IN OLD JAPAN ;
No. 17] ent in which the wife or son had under those circumstances
been ordered to he substituted in the order for payment)
that in the future in such cases no substitution should be
ordered, hut the order for payment should be annulled.
According to this it would seem proper in the present case
to annul the order for payment. Yet if such a rule he
established, it would not he just, in our opinion. In
ordinary actions on money loans, we have customarily
allowed the plaintiff to name the successor as defendant,
where [the debtor has died aud] a successor is in existence,
and so in case of a pendiug action, when the absconder's
successor is determined, it is hut just to have his name
substituted, and deliver it to him and order payment.
If you agree with these views, we trust that you will
lay the matter before the Full Chamber, so that our practice
for the future may he determined.
11th month."
3. Letter from the Steirard of Imperial Waters to Sakakibara,
Minister of Imperial Revenues.
Bunsei, XI, 1, 28 (March 18, 1828).
" You consulted us in the 11th month of last year as
to the case of a debtor who has suffered local exile. We
answered that we hoped to see a rule fixed for the future,
not for that case only, hut also for that of an absconding
pending action brought, and requested j'ou to lay the matter
before the Full Chamber, if agreeable. We shall be glad to
hear your views ou this subject, #ud beg to ask your
advice."
the social system of the time, usually meant lasting disgrace and
loss of caste. Departure to seek a livelihood in distant quarters
was the only resource open to the bankrupt who wished to retrieve
himself, and the absconding debtor is hence a frequent figure.
PART III. CONTRACT : LEGAL PRECEDENTS.
85
4. Anmer.
" I consulted you, as you say, in regard to local exiles'
debts, and your answer suggested that payment should be
ordered, which in fact accorded with my own view, and I
made order accordingly. You also noted the case of a debtor
absconding pending an action before my predecessor, Ikeda,
Lord of Chikugo, in which the Full Chamber decided not to
order a substitution of wife or son, which seemed to require
me iu this case to annul the order of payment; and
suggested that such a general rule would be productive of
injustice, and that where a successor has been determined,
we should order him to pay ; and proposed a reference to the
Full Chamber. But what I consulted you about was not
the case of a debtor absconding pending action brought, but
a first-seal case and we were both agreed, as to this case,
that payment should be ordered, and I did so order. So
that as to this point no reference to the Chamber seems to
be required. As to the other case you spoke of, I am myself
not yet decided, and I think it more suitable to consult the
Full Chamber when the occasion calls for it.^
2d month.
Sakakibara, Minister of Imperial Revenues."
[No. 18] Suits hy a Creditor against the Successor
of an Absconding Debtor.
A Decision of the Chamber of Decisions, upon an
Inquiry by Saga, Lord of Biigo, and Ishikawa,
1. That is, a case where tlie defendant is out of the jurisdiction
of the Lower Court (in this case hy banishment), and the case must
be seut to the Full Chamber for trial. See ante, No. 13. This case
seems to show that the Lower Court, though it did not try the case,
might pass on such questions as whether the suit was maintainable
at all, admitting the truth of the creditor's statements. 2. This
particular question came up a few months thereafter. See the next
precedent.
36
PRIVATE LAW IN OLD JAPAN :
18] Steward of Imperial Waters, Finance Magis¬
trates.
Dated Bunsei, XI, 4, 2 (May 15, 1828).i
1. Inquirij.
" In cases where the defendant in an action for money
lent 2 or unpaid purchase-money ®has absconded, we have-
hitherto thought that we should not indorse the complaint,
where the creditor sues the successor, because the. where¬
abouts of the debtor may eventually be discovered and he
may then be sued. This practice * of not indorsing in such
cases originated perhaps in the idea that, even though a
so-called successor exists, either there has been no determin¬
ation ® that he has in fact become the successor, or else^
as sometimes happens, his house is extinct,® and one of his
relatives assumes ^ his estate.® Moreover, the disappear¬
ance has taken place because of the debtor's adverse
circumstances ; so it seems doubtful whether a suit against
the successor, supposing there were one, would be of any
avail. In those cases where a debtor has died [pending
suit], and his widow ® has succeeded him, we have been
accustomed to order the suit to be reinstituted against her,
describing her in the complaint as " Harn, widow of Taro,"
and alleging that a sum of money lent to the husband in his
lifetime is due and unpaid. We have also made some
investigations as to proceedings in similar actions against
villagers.In the last year of the Hare (1819), when
Ishikawa, Steward of Imperial Waters, and Toyama, Warden
of the Palace Gates, were Lawsuit Magistrates in the
1. Cited from " Shin-hnrig'imi." 2. Kashi-kingin. 3. Vre-knke,
4. Shikitari. 5. Jitei. 6. Daiizetsti. 7. Hiki-iikem. 8. Ato-kata.
9. Goke. 10. Knta-kaki, (lit., " making a shoulder-writing," i.e.
writing the word descriptive of the person's status or rank). 11. Zui-
lata. 12. Kuji-kata kakari. The Finance Department was in two
sections, one of which managed the treasury proper, and the othe j.
the lawsuits falling under the jurisdiction of this Department.
PART III. CONTRACT : LEGAL PRECEDENTS. 37
Finance Department, there were a number of actions on
money loans ^ in which the creditor, because the debtor had
died or was otherwise unavailable and had left no estate,
was suing the surety.® It was thought by the Court that
the clause of the instrument "If the principal® shall be
in arrears ^ etc," signified only the case where the prin¬
cipal, in his lifetime, utterly fails® to pay the debt; so that
where the principal had merely absconded, and no successor
exists, the creditor should wait until the whereabouts of
the debtor was discovered [and then sue him] ; and that
therefore suits against the surely should thenceforth be
taken up, the principal having absconded, only when the
clause read " If payment by the principal is in any way
hindered,® payment shaU be made by the surety," and not
otherwise, even where the principal had died. The matter was
referred to the Full Chamber, and the}' came to the follow¬
ing conclusion : ' Generally, when a debt is secured by the
addition of a surety's name, the purpose of having a surety
is that he shall attend to the debt if payment is not made ;
so that the addition of a surety is to no purpose if the Court
•declines to order payment merely because there is no clause
expressing the undertaking of the surety. The obligation
of a surety, of course, lasts only during his lifetime [and
does not descend to his successor], while that of a princi¬
pal debtor who dies or absconds survives against his son,
grandson, etc., if there be any patrimony® inherited. But
when a debtor leaves no such successor, the Court should
1. Kushi-lihigin. 2. Shoniu. This signifies literally " witness
For the customs as to the existence or non-existence of suretyship
obligations for persons signing as shonin, see Part II. 3. Hoiiniii
(chief person). 4. Todokori. 5. Sashi-tsuk(iyeru, and kosJiO kare-ari
are the respective words. The meaning is ordinarily much the
same ; but here the sense seems to be as above. Here the idea of
the former phrase is ojfparently, that the debtor's estate should prove
to be of no avail; hence his absconding or decease would still perhaps
leave available means for the creditor. 6. Jye-kabu (family-stock).
88
PRIVATE LAW IN OLD JAPAN :
Uo. 18] order payment by the surety, if, after examining the
circumstances under which he became surety, it considers
that he ought to he regarded as liable,—and this in spite
of the absence of any clause expressly undertaking liability.
In answer to the argument that we ought not to hold him
liable without such a clause,^ it may be said that, if we
should refuse, [creditors would be loath to lend], the money
circulation would diminish, and undesirable results would
follow. It appears better to order payment by the surety
without distinguishing between the clauses "If the prin¬
cipal shall be in arrears, etc," and "If the principal's
payment is in any way hindered." '
Such was the decision of the Full Chamber. In the
present case, too, we think that it would be unjust if the
creditor could not sue the successor, even though the
debtor's non-payment is owing merely to his having
absconded. However, if on this principle we decided that
a relative who assumes charge of the estate and acts on
behalf of the debtor in bis business or in his cultivation is
liable for all the debts of the fugitive as "undertaker of the
estate,"2 then nobody would ever be found to perform such
offices, and the result would be many waste estates. In such
a case, therefore, the rule should be as hitherto, that the
mere undertaker is not to be charged with debts. But
henceforth, when a suit is brought by the creditor against
the son or other alleged successor to the estate of the
fugitive, the plaintiff should consult with the officers of
the defendant's village, and obtain from tbem a certificate
of identity® of the defendant, bearinn the names and seals
of the village officers and certifying that the defendant
has succeeded to the estate of the fugitive ; and if the
1. See, part II, Chap. II, for references to the fact that slmiin
might sometimes be regarded as surety, sometimes as a mere
witness only. Hence the desirability of an express clause of surety¬
ship. 2. Ato-hiki-ukenin. 3. Seimei-gaki (description of names).
PART III. CONTRACT : LEGAL PRECEDENTS.
39
plaintiff can show such a document, he may go on with
his suit.
We think that the rule should be thus, and [we have
the less hesitation in coming to this conclusion because]
there can be no objection, since the order of the last year of
the Horse (1822) respecting money loans, unpaid purchase-
money, etc., on the part of village officers to forwarding
the necessary certificate of identity.
We therefore make the above proposal.
4th Month.
2. Decision.
"Decided in accordance with the proposal, Bunsei, XI
4, 2, (May 15, 1828)."
[No. 19]. Action against the Surety for a Loan,
the principal Debtor being a Retainer who
has been exiled by his Lord and whose House
is extinguished.
A Reply to a Private Consultation ^ by Watanabe
Sanzayemon, a retainer, on behalf of Suwo,
Lord of Ise.2
Dated Bunsei, XII, 8, 6 (April 9, 1829).
1. ConsiUtation.
" A member of this fief,3 with a member of another
fief, borrowed a sum of money, on a joint instrument,^ from
a certain woman. But as the money was for the use of the
1. Vchi-hakeai. i. A daintyo in whose domain this case had
arisen. 3. Han. Tliis term is in fact, however, a compound of
he ideas of " clan," and " fief" implied. 4. Ren-in shonion.
40
PllIVATE LAW IN OLD JAPAN ;
Ko. 19] outsider only, he sealed and gave to the former an instru¬
ment engaging that he would keep him harmless. This
outsider was afterwards punished b}' his lord for some offense
and sent away to his native province ; and his house sub¬
sequently became extinct.^ The creditor, relying on the
terms of the instrument, which provided that either remain¬
ing one of the joint debtors should assume and pa}' the debt,
made a demand ^ upon the man of this fief. The latter
made efforts to compromise and begged tbe indulgence of the
creditor, but the creditor threatened to bring suit if even tbe
interest was not paid in entirely. Now the creditor knows
well that the money was used by the other man only, as above
stated, but she has not brought action against him, because
he lives in banishment in a distant province, and also because>
as his house is extinct, there are no children to be sued.
In these circumstances it would no doubt be proper enough
for our clansman to p,ay the claim, but the fact is that it is
quite beyond his ability to do so. The creditor sent a
petition to the lord of the debtor who had reaUy used the
money, but it received no attention; and now she is on the
point of suing our clansman, having no other resource but
to take this step. I should add that the clansman affixed
his seal to the instrument, not of his own motion, but at
the special request of the other man, who needed the money
for the performance of a pressing service of great moment to
his lord's interests.
How this matter will be disposed of by you, if suit is
brought, is the question. I submit the following queries :
(1.) If a suit is brought against this clansman, his
lord's name will be disgraced by the publication of such an
affair. Ma}' the lord punish him for this ? Or, if he be yet
under the control^ of his parents, may they not be made
to disinherit ^ him ? And if so, would his parents or his
successor be liable for tbe debt ?
1. Danzetsu. 2. Saisoku. 3. Kakari. 4. Kando.
PART III.—CONTRACT ; LEGAL PRECEDENTS.
41
(2.) If the suit is begun, the debtor will thus be
brought under the authority i of your Court; and by virtue
•of that fact may not the lord or his parents then treat him
■as they please, without getting permission ?2
(3.) If an action is brought before you against the
user of the money and a certificate of his punishment by
his lord is presented to you, will you take it up ?
(4.) If, without that, an action is brought against the
clansman here, will you, on petition of the clansman, use
your efibrts to have the official of the other man's fief pay
the claim? or will you decline to take cognizance unless
the plaintiff brings suit against the exile in your Court ?®
I beg to submit these questions privately to you.
Watanahe Sanzayemon, a retainer, on behalf of
Suwo, Lord of Ise.
Dated 2nd month."
2. Amwer.
"I acknowledge the receipt of your letter.
(1.) You state the case of a man who has borrowed
money jointly with a man of another fief, with the engage¬
ment that either remaining one shuil discharge the whole
debt. The outsider was subsequently punished by his lord
and his house became extinct. He had, it seems, given the
former an instrument stating that the money was solely for
his own use and engaging to keep the other harmless. But
this was a m-.vtter of private arrangement^ between the
parties [and cannot affect the creditor]; we should therefore
go by the terms of the instrument, and order the joint debtor
to pay.
1. Koye-kakari (voice-utterance, i.e., control, authority.) 2. Per¬
mission of the Government was in theory necessary in all cases
before capital punishment could be inflicted by a daitnyo. But
why it was here necessifty does not appear. 3. The suit against the
exile must be brought in the Yedo Court, before the Chamber, because
the parties were under different lords. 4. Ailai nai-gitei.
42
PRIVATE LAW IN OLD JAPAN :
No. 19] (2.) If an action is brought against the joint-debtor of
your fief, it will not he just for either the lord to punish or
the parents to disinherit him until the case has been tried
by the Court; much less can they do as they please with
the body of the accused during the trial; although if his
oft'ence were an unpardonahly heinous oue, they might do so
on securing proper permission from this Court. After trial
and judgment, he may be punished according to the family
custom 1 of the lord's house, us one who has cast public
disgrace upon his lord's name. As to the other point, when
the creditor sues the parents or sues the successor of the
house 2 for the debt, we usually order payment, provided the
punishment of the lord does not afifect the existence of the
house ; hut we do not, if the house is extinguished.
(4.) As the other man, who used the money, has been
punished by his lord and his house is extinct, if the creditor
institutes an action against the other debtor, we shall not,
on a petition by the latter, try to procure payment from the
officials of the other fief." ^
[No. 20] Actions for Moneti Loans, Unpaid
Purchase-Moneij, etc.
A Proposal addressed to the Council of State by
the Finance Magistrates.
Dated Bunsei, IV, 12 (January 1822).^
1. Ka-fu. 2. Kamei sozoku-nin. 3. Tflls answer to Qu. (4) seems-
to involve also an answer to Qu. (3). At first sight the reason for
the last answer seems to be that an action against one joint debtor
precluded a suit against another. But the proposed suit was to be-
by the joint-debtor, not by the creditor, and this negatives that sup¬
position. Probably the banishment and house-extinction were con¬
ceived as leaving all creditors remediless against the defaulter.
Hence the same negative answer would apply to Qu. 3. 4. Cited from
'' Sambugyo 'I'ori-hakarai-sho."
PART III.—CONTRACT : LEGAL PRECEDENTS. 43
1. ProjMsal.
" Many vicious practices are current nowadays with
respect to suits for money loans, unpaid purchase-money,
etc. For example, the creditor sometimes sends to Court
some person skilled in litigation [to represent him], pretend-
iug that he is a dependent of his, either a relative or a
servant. We have of course been very careful and have
punished such conduct where detected; but the creditor
disregards the Court's indorsement [directing him to make a
private settlement, if possible] and goes on with the suit
without approaching the defendant for this purpose ; so that
it often happens that [judgment is given by default
against] a deceased or fugitive debtor or a person wrongly
named. Again, some institute unfounded suits for some
petty arrearage against country people, knowing that the
latter, though they have no recollection of the claim, would
rather pay some proportion of it in settlement than undertake
the expense of coming to the Cityi to defend the suit.
Moreover, we hear that sometimes a person takes advantage
of the poverty or ignorance of another, and in lending him
money takes an instrument of pledge, stipulating for a
usurious interest, and afterwards alters the arrangement into
a contract of renting.^ Such transactions tend to increase
more and more the distress of the unfortunate petty-
1. Yedo. 2. The apparent meaning is that the creditor, by threats
to a poor debtor or by false pretences to an ignorant one, procured his
assent to the Change in the instrument. On failure to pay a pledge
of land, the creditor, on foreclosure, often rented it to the former-
owner ; thus the transaction would on its face look natural enough.
The object was apparently to shut out the debtor from the possibility
of redemption,—an important matter, as ordinarily the time for
redemption was a very long one (see Part II., " Pledge and,Hypothec,")
—and perhaps also to increase the amount paid as interest by calling
it rent. Kosaltii-mai is the word for " rent." On this word, see
Part II, passim.
44
PRIVATE LAW IN OLD JAPAN :
No. 20] farmers.1 Here, indeed, the borrower himself is at fault,
and may be punished where occasion requires.
As things are now, these practices, constantly on the
increase, cannot he stopped by any ordinary measure, and
we propose to you an order that if a litigant puts forward as
his representative ^ some person skilled in litigation who
is not a dependent, either as a relative or as a servant, not
only the suitor himself but also his village officers shall be
punished; and furthermore, that every litigant shall make
prior inquiry as to whether the defendant is dead, or his
family extinct, or an error exists as to his name, and other¬
wise make proper consultation, not only with the defendant
himself, but with his village officers. If this be done, we
think that these vicious practices will gradually cease. We
have already consulted the Temple Magistrate and the
Town Magistrate; and we enclose the draft of a Proposal ®
for the above order and respectfully ask whether you will be
pleased to approve it.^
Ishikawa, Steward of Imperial Waters.
Matsuura, Lord of Ise."
2. liiibric.
"If we strictly enforced a rule such as you propose,
many would suffer severe punishment who have merely acted
carelessly, with the disposition of the lower orders to
neglect the proper safeguards in pecuniary transactions.
We think that clemency requires us, first to make known
this order among all the lower classes, and, after due notice
given, then to put it into force and inflict punishment for its
violation.
12th Month."
1. Komaye. This word is often difficult to interpret, but here
it seems very clear that it indicates proprietorship, not merely
tenancy. 2. Dai. 3. An. 4. This proposal, the compilers' note
states, is found below, in a Consultation of Buusei V, 1; but it does
not appear.
PART m. CONTRACT I LEGAL PRECEDENTS.
45
[No. 21] Actions npon 3Ione>j Loans against
Condemned Persons}
A Decision of the Clerks ^ of the Chamber of
Decisions.
" In Bnusei IX (1826) the Town Magistrate consulted
the Clerks for the Examination of Complaints 3 as to
the propriety of ordering a surety^ to pay where the
debtor has been condemned to punishment. Among their
opinions ® is the following statement:
' Generally a loan of money is made by the parties
privately ® and with mutual trust. Now, although
the case is otherwise where the debtor has absconded,
died, or suffered forfeiture^ of patrimony, yet
where he has suffered only banishment ® or some
such penalty, we think the creditor cannot claim a
strict interpretation of the clause in the instrument,
" If the principal fails to pay, the surety will pay." ®
We think that in such a case payment by the surety
should not be ordered.
This our opinion.
12th month.
The Clerks for Examination of Complaints.' "
1. Cited from " Chiho Kosai-roku." 2. Tomeyaku. These
officials were 20 in number and were attached to the Chamber
of Decisions. They prepared cases for examination by the Court,
and drafted the decisions. The term juges d'instniction or
Instriienteii most nearly describes their functions; but as their
position was distinctly that of a subordinate staff, and an English
term is here preferable, the word Clerk has with some hesitation
been adopted. 3. Meyasu-tadashi-tmncyakn. This is the body
elsewhere referred to as meyasu-kata, " Bureau of Complaints."
4. Shonin. 5. Zonjiyori-nho. 6. Altai. 7. Kessho. 8. I'suiho.
2. This opinion differs from that expressed in No. 18, a subsequent
one in time.
46
PRIVATE LAW IN OLD JAPAN I
22] [No. 22] Disposition of Actions for 3Ionet/Loans
or rtirchase-Moneij where after Indorsement^
the Plaintiff or the Defendant Absconds.
A Reply by the Finance Magistrates and the Temple
Magistrates to a Consultation hy the Town
Magistrates, Sakakibnra, Minister of the
Imperial Revenues, and Tsutsui, Lord of Iga.
Dated Tempo VI, 7 (August, 1835).
1.^ Letter from the Finance Maijuitrates. "In reply
to your letter, we think that you may give judgment
just as you have proposed, now that the plaintiff
Yoshimatsu has absconded. But, before doing so, we think
that a delay of 6 months ought to be ordered, in order
that he may be discovered and apprehended, if possible.
Bd month.
Naito, Captain of the Imperial Body-Guards,
Okusa, Lord of Noto."
2. Letter from the Town ^ilaijixtrates. "We
have read and deliberated upon your reply. Tbe fact
is that our usual proceeding, in case the plaintiff in
an indorsed action on money loans or for unpaid purchase-
money has absconded, is to send the plaintiff's ward-
ofiicer and the defendant over to the Chamber of
Decisions, and direct that the action be not tried
and this has been our regular practice, so that, if we
suddenly changed it and ordered a 6 months' discontinuance,
1. That is, after the case has been ?aken up and the parties
summoned for hearing before either the Magistrate's Court or the
Chamber of Decisions. 2. This correspondence took place between
the Town Magistrates and the Finance Magistrates respecting a case
which came up before the former. .3. As the next sentences show,
the writer has in his mind chiefly first-seal cases,—that is, cases
in which the defendant is from without the jurisdiction of the Town
Magistrate's Court and must be tried by the Chamber of Decisions.
PART in. CONTRACT I LEGAL PRECEDENTS. 47
mnch coiifiision might occur. The defendant, too, would
suffer great annoyance, in being detained in Yedo
without trial, or in being sent back to his village subject
to a new summons in 6 mouths or so, for he must in¬
cur no small expense in making the journeys, espe¬
cially if bis village be a distant one. Besides, we
ought not to try any claim made by such a person as an
absconder, even if be is ultimately discovered and appre¬
hended. For these reasons, our practice hitherto has been
to order a dismissal of the action as soon as the absconding
becomes known, and we have no precedent allowing a six
months' interval. We shall feel it necessary, at least in the
suit now before us, to adhere to our former practice.
8rd month.
Sakakibara, Minister of Imperial Revenues,
Tsutsui, Lord of Iga."
3. Letter from the Finance Magistrates. " You
explain that it has been customary with you, where
the plaintiff in a money action absconds, to order a
dismissal, and that it would be very inconvenient were this
custom to be supplanted by a rule requiring a discontinuance
of 6 months. We think that you are right. But, on review¬
ing the precedents to which you referred us, we find that in
these cases the rule you follow is applied without distinction
between the absconding of a plaintiff and that of a defendant
(either in principal^ or in money ^ actions), and that iu both
1. Hon (original, cliief)-fciyi. The two classes here mention¬
ed probably correspond to the two classes discussed in the notes
to No. 1; on tills supposition hane-kiiji includes actions on
loans, hypothecs, etc.; hon-kuji, actions on pledges, land-transfers,
actions to determine boundaries, etc. There is to be a section in the
volume of precedents on Procedure, entitled " The difference between
kane-ki(ji and hon-kuji"; but at this writing the volume has not
yet been compiled and the material is inaccessible to the editor, so
that the final solution of^he riddle must wait for a while. 2. Kane-
kuji.
48
PRIVATE LAW IN OLD JAPAN :
No. 22] cases you make immediately an order of dismissal. We are
desirous to see a uniformity, if it be possible, in the practice of
the different Courts, and we made inquiry of the Lord of Shi-
mosa, as to the practice before the Temple Magistrate. He
replied. That your custom of making no distinction between
the absconding of plaintiff and of defendant, though settled
as far as you are concerned, has not yet been the subject of
a general agreement of the Courts, so that it cannot he
regarded as unchangeable ; That it would he better if in a
Private Session of your Court you resolved to refuse further
cognizance of the suit of an absconder (for the reason that
one who, after suing out an indorsement from a Court, runs
away because he is afraid he will lose his suit or because he
cannot pay the expense, does not deserve tlie aid of the
Court), even if he returns ; But that where the defendant is
the absconder, you should postpone judgment for several
months, during which interval the absconder might be-
appreheuded.
Such was the reply of the Lord of Shimosa. We our¬
selves are also of the opinion that we certainly ought not to?
take cognizance of the suit of a person who is so unconscion¬
able as to abandon it after suing out the indorsement of the-
Chaniber, especially on account of the inconvenience which
the defendant suffers through a postponement. But it is dif¬
ferent where the defendant absconds, since, if a postpone¬
ment is ordered until the absconder is apprehended, a
defendant, if he found his excuses insufficient or his
means of payment lacking, might abscond merely for
the purpose of delaying the suit. Of course, in principal
actions, there are sometimes cases^ in which the actual
appearance of all parties is necessary, so that they maj-
plead in each other's presence. But such cases are rare,
and exceptional cases may be treated in an exceptional
manner. For ordinary actions, whether principal or money
actions, we may lay down the general rule that when the
plaintiff absconds, the Court shall immediately give judgment
for the dismissal of the suit.
PABT III. CONTKACT I LEGAL PRECEDENTS. 49
This seems to be the opinion of the Temple Magistrate
also. We trust that it will receive your concurrence.
5th Month.
Naito, Captain of the Imperial Bocl3'-Guards.
Okusa, Lord of Noto."
4. Letter from the Toivn Magistrates. " When, in an
action on a money loan or for unpaid purchase-money
indorsed by us, the plaintiff^ has absconded, it has been
our custom to make an order of dismissal for the defen¬
dant, without allowing any interval for searching after
the absconder. We learn, however, that your practice
differs, and indeed there has never been any joint regula¬
tion attempted by us on the point. We should not think it
unjust to follow your practice to make the order of dismissal
conditional on the non-appearance of the plaintiff after
6 months' search. There are, to be sure some cases
in which the plaintiff, having agreed with the defendant for
a private settlement and received a part of the composition-
money,2 is himself dunned bj* his own creditors, and is
forced to fly or to conceal himself before receiving the whole.
Yet in most cases the absconding of the plaintiff is due to
the fact that his proofs^ are dubious or his character^ is sus-
1. Sosho kata. 2. Naisai-kin. 3. Shoko-butsu. 4. Minioto.
This term is difficult to reproduce in one word. A man's mimoto is
good or reliable where he has a fixed residence and occupation, has
not committed any crime, has well-known and reputable antece¬
dents, etc. His mimoto is bad or suspicious where he has no fixed
calling, changes his residence frequently without cause, has come in
contact with the police, belongs to nobody knows what family, eto.
The personal registration which has been customary for so many
hundred years is a means of ascertaining a man's mimoto. A broker
on the Rice Exchange pays in advance a mimoto-hosho-kin,—that is,
a deposit as security for good behavior —before admission into mem¬
bership. Mimoto is, in effect, "character," somewhat in the sense
that we speak of a servant's " character."
Vol. XX. Snp. Pt. ill—4.
50
PRIVATE LAW IN OLD JAPAN :
No. 22] picious ; so that, although he may have his account-books ^
or an instrument of debt or some other evidential material
in his possession, he cannot bring a suit anywhere and the
debtor has no longer anything to fear. Besides, even though
we might discover him within the 6 months, surely we
ought not to further the purposes of one who has become
an absconder. Indeed, the probability in such cases is that,
were we to examine his proofs or his character carefully,
we should find that he ought to be punished. Then, too, it
might happen that he would return with some plausible
excuse, and say [for example] that he went on a short
journey, but fell sick or broke his leg and was unable to
come back for a while ; so that we should be obliged, though
doubting, to accept his story and to order payment, with
possible injustice to the defendant. For these reasons we
have hitherto been accustomed to give judgment for the
defendant without delay. We imagine the difference in
your practice results from the fact that you have in your
Court so many suits about boundaries, ^ fisheries, 3 pasture-
land, * aqueducts and drains, 5 etc., the more important of
which involve, not merely a single plaintiff and defendant,
but all the people of a village, so that, even though 8 or 5 of
the plaintiffs or defendants abscond, you would not for that
reason order a dismissal of the case.® But we do not have
such cases before us.''
Now, as to the case of a defendant absconding. When, in
an action against several defendants, some of them abscond,
it would generally be vain to require the remainder to search
1. Chomen. 2. Sakai-chi. 3. Ryo-ba. 4. JIakusaba. 5. I'o
(useful)-aftu (filthy)-si(i (water). Probably these were among the
chief classes of the honkiiji. 6. Gimmi-sage. 7. The writers are the
Town Magistrates, and their litigants were chiefly tradesmen. The
Finance Magistrate had jurisdiction over the litigation coming
in from the provincial deputies, and thus over most of the land
litigation. See No. 48, infra.
PART III.—CONTRACT : LEGAL PRECEDENTS. 61
for the absent ones and produce them in Court; and we
have been in the habit of merely discontinuing the suit, and
allowing it to be reinstituted when the missing persons are
discovered. Here the plaintiff of course suffers some delay.
Still he will discover the absent defendants sooner or later.
Doubtless their families, or their sureties, or other persons
acting for them, will often make a private settlement and
then petition us to declare the absconders exempt from
further liability to be apprehended. Or perhaps the plaintiff
may inform us that the missing persons are concealed in a
particular village, and thus he has certain means of discover¬
ing them. In either of these cases a temporary discontinu¬
ance suffices, because, in the former, a final judgment can be
given, based upon the terms of the settlement, and in the
latter the defendants may be immediately discovered and
apprehended. As a general rule, then, the following seems
on the whole a satisfactory one. When in any action,
whether a principal or a money action, a defendant absconds
and is not immediately apprehended, a temporary discon¬
tinuance shall be ordered.
We now offer you our views and ask your advice.
6th Month.
Sakakibara, Minister of the Imperial Revenues.
Tsutsni, Lord of Iga."
5. Letter from the Temple and Finance Matjistrates.
"You have already consulted the Finance Magistrates
on the point of absconding parties, and with special
reference to a case pending before one of you, the Lord of
Iga, in which one Yoshimatsu, of Y'edo, Honjo district,
Yoshida ward, block No. 2, had sued one Ishijiro, of
Kadzusa ktini, llamajiku village, with 72 others, the
plaintiff Yoshimatsu having absconded. The Finance Magis¬
trates, after a consrdtation with the Temple Magistrates,
answered, ' that the absconding of the plaintiff amounts to
a defiance of the indorsement of the Court which he himself
52
PEIVATE LAW IN OLD JAPAN :
No. 22] had just sued out, ^ and no Court ought to take further cog¬
nizance of an action instituted by such an offender, and that
the Court should neither detain the defendants longer, nor
cause them to return home with the liability of appearing
again when the plaintiff is discovered.' In such a case, the
Court acts for the benefit of the defendants, the plaintiff
being the culpable one. Now, where the defendant absconds,
the case is just reversed. You propose that in such cases
the Court should order a temporary discontinuance, with
leave to sue again wheu the absconders are apprehended.
But this, we think, would lead to much inconvenience. For
instance, when a defendant finds that his excuses are insuflS-
cient, or that he has no means of payment, he has merely to
run away, knowing that this will effectually delay the suit.
It is true that, in principal actions, there may be cases which
require the actual appearance of all parties. But these are
rare, and an exceptional case must be treated in an excep¬
tional manner. In ordinary actions, whether principal or
money actions, we can hardly be justified in making a
general rule to order a discontinuance when either party ab¬
sconds; though in cases where the absence of the defendant
does make it impossible to go on with the trial, the plaintiff
should petition the Court to discontinue the suit temporarily,
with the prospect of resuming it when the defendant is
apprehended ; and if the plaintiff, through ignorance of the
law, fails to make such a request, the Court should point
out to him the proper course. In that case we should not
give final judgment refusing to order payment [on account
of the defendant's absence] until after several months have
elapsed.2
7th Month.
The Temple Magistrates.
The Finance Magistrates."
1. Negai-ukeru. 2. The preceding passage is obscure, but this
seems to be its meaning.
PART III. CONTR.ACT ; LEGAL PRECEDENTS.
53
6. Rubric, bij the Town Mac/istrates.
"In accordance with the above reply, the Finance
Magistrates on their side agree to give up the practice
hitherto in vogue of allowing a discontinuance for
6 mouths when the plaintiff absconds, and we, the
Town Magistrates, agree on our part to abolish our
practice of ordering a temporary discontinuance
when the defendant absconds."
[No. 23] Action on a ^loneij Loan against a
Vassal 2^^1'iAshed by Exile to his Province
and by House-Imprisonment}
An Inquiry made by Okusa, Lord of Awa,2 and
an Answer by Tsutsui, Lord of Kii.3
Dated Tempo, X, 5 (June), 1889.
1. Inquiry,
"Tempo, X, 1 (February, 1889)
To the Lord of Kii, from Okusa, Lord of Awa.
Yabeij the agent of Kin (on account of her sickness), member
of the family^ of the said Yabei, house-master,5
of Tensho ward, [Yedo] Plaintiff:
Kauai Shoji, retainer of Nambu, Lord of Tamha....Defendant,
The above suit was brought before me ; but while it
was pending, notice was received from Tsutsui, Lord of
Kii, on the 1st day of the 11th month of last year, (Decem¬
ber 17) that the defendant, by reason of evil reports of his
conduct, had been dismissed from service [by his lord,]
sent back [from Yedo] to the dominions of the Lord of
1. Tsutsushimi (lit., to behave circumspectly). 2. Town Magis¬
trate. 3. Town Magistrate; the person termed "Lordof Kii" in the
preceding case. 4. Dokyo,—indicating any person living under
the same roof and forming part of the household, as a younger
brother, poor relation#etc. 6. lye-nushi. It has been already ex¬
plained that this term sometimes differs from iyeitwchi. Here it
signifies the manager of a large number of rented houses.
54
PRIVATE LAW IN OLD JAPAN :
Mo. 23] Shinano, the chief of the main branch of his lord's famil)',
deprived of his stipend, and ordered into house-confinement
with a guard set over him, the retainers of the Lord of Shi¬
nano being directed to take charge of the culprit's family.
Now the face of the instrument shows that the defendant
borrowed the money for his sole use, as there is no joint
seal appended. So I suppose it would be proper to dismiss
the action, and in general hereafter if there be in such a
case any joint-sealer or surety or person who has taken
up the defendant's estate, to take cognizance of suits against
such person only, and absolving from further liability the
defendant who has been exiled to his province. On this
23oint I ask your opinion.
5th month."
2. Answer.
"In regard to the subject of your letter, my opinion
is that as the defendant has been sent to his province by
way of punishment for some offence, it would be improper
to recall him to Yedo because of a private obligation as to
property borrowed. ^ I think that the action may well be
dismissed, and that in cases where there is a joint-sealer or
a person who has taken up the estate, the procedure should
be as you say. Such is my answer.
5th month.
Tsutsui, Lord of Kii."
[No. 24] Taking Cognizance of an Action for Un¬
paid Purchase-Moneg or a Money Loan
brought by one sentenced to Local Exile.^
A Consultation between Okusa, Lord of Awa,® and
the other Magistrates.
Dated Tempo, IX, 3 (April, 1838).
1. Shaku-zai. 2. Cited from " ShojUome." 3. Then Town
Magistrate.
PART III. CONTRACT ; LEGAL PRECEDENTS.
55
1. Inquiry.
"From Okusa, Lord of Awa.
Tempo, IX, 2 (March, 1838).^
Teibei, renter of the house of Jimbei, ^ in South Daiku
ward, [Yedo] Plaintiff:
Hachinojo, farmer, of Sakanoya village, Tsuga kori, Shimo-
tsuke kuni, in the income-fief ^ of Kobayashi Jiroza-
yemon, and 96 others Defendants.
The above Teibei, the plaintifi", was living in Shimo-
tsuke kuni, Tsuga kori, Shikanuma post-town, in the fief^
of Toda, Lord of Inaba, and in the intervals of farming he
sold cloth. Sometime ago he was summoned to the office
of the fief to appear as a witness in an action on a money
loan, brought by Buyemon, of the same province, Kawachi
kori, Utsunomiya town, Zaimoku ward, against Shichiro-
zayemon, of the same province, Yenga kori. Tamo
village, and one other person. But Teibei was sick at the
time and did not appear as ordered; whereupon he was
ordered not to leave the town during the trial. But owing
to the preoccupation natural to his illness he did not remem¬
ber this order, aud when after his recovery, he found
himself heset by numerous importunate creditors, he deter¬
mined to set out and collect the arrears due him in various
quarters, and thus satisfy his creditors. He had heard
no more of the trial and imagined that the matter was
ended. Nothing came of his journey, and he therefore
decided to sue his debtors here in Yedo. He communicated
his intention to Zembei, the headman of the post-town,
declaring that he should return and pay off his debts as
1. This is some date in the suit; yet not that of the entry
of action, for that is said to have occurred in the 11th month.
2. Jimbei is the (y«nM8/({ of the house. Seesi<pra, No. 23. 3. Chigyo-
sho; for the explanatioiT of this term and similar ones, see Introduc¬
tion. 4. Byo-bun.
56
PRIVATE LAW IN OLD JAPAN :
No. 24] soon as ho obtained even a partial settlement with his own
debtors. He procured from the headman privately a
certificate of removal, left the town during the progress
of the suit, came to Yedo, and took up residence in the
shop of Yobei, in the premises of Kameya, in Hatchohori.
"While here he was cited, at the request of his lord, Toda,
Lord of Inaha, before the Town Magistrate, Tsutsui, Lord
of Iga, and sentenced to exile from his native town, Shi-
kanuma. Teibei then moved from Hatchohori to the shop of
Jinbei, in South Daiku ward, and in the 11th month of last
year brought before me the above action for various sums
unpaid purchase money and monej'-loaiis, against Hacbi-
nojo and 96 others. Now Teibei's act of leaving his own
town amounts to an unlawful absconding,^ aud if we regard
that consideration only, be is not entitled to indorsement
and issue of summons by this Court. But he has been
already puuished for that offence by local exile and cannot
return to his native place; moreover he has already been
registered^ as a citizen of Yedo. I am undecided as to
whether I should indorse his complaint, and therefore seek
your opiuion.
3rd month, 18th day (April 7th)."
2. Answer.
" With regard to the subject of your letter, Teibei
was, it is true, sentenced to local exile, but not to for¬
feiture of goods.^ Now a sentence of local exile does not
affect one's power of suing for debts due from persons not
within the original district from which he is exiled. But
an examination of the facts in this case shows that the
plaintiff was endeavoring to collect debts from persons within
his own district, when he procured the certificate of remo-.
val, came to Yedo during the trial of the lawsuit, and so
forth. If, therefore, we were to allow this man to go about
1. Kalteoclii. 2. Nimbetsu-cho. 3. Kessho.
PART III. CONTRACT : LEGAL PRECEDENTS.
57
with a complaint indorsed by us and bring suits for these
loans, it would certainly be to lend assistance to law¬
breakers. Still we are not justified in ordering an extin¬
guishment of the claim, in the absence of any sentence of
forfeiture of property. We have sought for precedents on
this point, but have found only one, a ruling of the Cham¬
ber of Decisions, in Kyobo, II (1717), running as follows :
'Where a person sentenced to local exile brings suit for
the payment- of a loan due from a resident of bis original
domicile, the Court shall not take coginzance, because the
plaintiff has no right to enter the place. But if be trans¬
fers bis claim to a relation, servant, or any person having
some connection with him, the suit of the latter shall be
taken up, tried, and judged.' In analogy to that case, if
Teibei, the plaintiff here, transfers bis claims to some
relation or other person, and the assignee brings suit, you
may of course take it up; otherwise, it should be dismissed.
3d month.
The Temple Magistrates,
Tsutsui, Lord of Iga,i
The Finance Magistrates."
[No. 25] Payment hy a Son of Dehts of his
Exiled Father.
A Reply of the Chamber of Decisions to an
Inquiry by the Trial Bureau.^
Dated Tempo, X, 1 (February, ISBO).^
1. Inquiry.
" Tami, wife of Heibei, house-owner, at Block No. 4, Mita,
[Yedo] Plaintif
a
1. The other Town Magistrate. 2. Gimmi-hata,—a bureau o£
the Chamber's clerks. 3. Cited from " Shoji-tome."
58
PRIVATE LAW IN OLD JAPAN :
No. 25] Inosuke, house-master, son of Yanosuke, house-owner,
deceased, at Block No. 4, Ta ward, Mita, [Yedo],
and Kinjiro (formerly Kinzo), ^ tenant of a house of the
above Inosuke Defendants.
Seven years ago, in the 12th month, the plaintiff Tami
lent the sum of 10 ryo to the above Yanosuke, as principal,
with the above Kinzo as surety, and last year, 11th month,
30th day (January 14, 1889,) suit was brought against
them for the arrears due. But it appeared in-the suit that
Yanosuke, in the 12th month of a preceding year, had been
convicted of violent conduct^ and sentenced to be flogged'
and then banished from Yedo and the district for 10 n
around it. Now if in this case suit had been brought
against [the son or] even the surety only, it ought not to
have been taken cognizance of according to a previous
decision.4 But here Inosuke has taken up the succession
of Yanosuke, his father, as well as the office of house¬
master, and has occupied his dwelling. This differs from
the case of a father being sentenced to a heavy punishment
with forfeiture of property and extinction of famil}', the
wife and children being reduced to such poverty as to be
obliged to separate, but one or more of the sons in the
course of time building up a new familj'. We think there¬
fore that the action may properly be brought against
1. This is apparently the effect of " Kinjiro koto, Kinzo." 2. Ko¬
ran uchi-kotcashi, which may refer to an assault or to destruction of
property. 3. Tatalci. See Mittheil. d. Deutsch. Gesells. Ostas., Heft
38, s. 370. 4. It seems necessary to suifJ»ose that the writer has
in mind the fact that a confiscation of goods has been ordered
or perhaps would ordinarily have been ordered in such a case.
Not only is this indicated by the next sentences, but it is certain that
the son and surety would have been liable unless confiscation had
occurred. See Nos. 17, 18, ante. For the later rule as to a surety's
liability where the debtor's property has been confiscated, see No. 28,
2, Art. 26, infra.
PART III. CONTRACT : LEGAL PRECEDENTS.
59
Inosuke, even though the debt be his father's, and that an
order of payment may issue. But as we find no precedent
to go by, we respectfully submit the matter to you.
1st month.
The Trial Bureau."
2. Appended Note. " We respectfully acknowledge your
instructions to order payment by the defendant Inosuke.
1st mouth, 28th day.
The Trial Bureau."
[No. 26] Money Loans.
A Reply i of the Yedo Town Magistrates, to
an Inquiry by Hasegawa Kiuzaburo, a Coun-
cillor.2
Dated Tempo, XI, 8 (September, 1840.)
1. Letter, from Tanimura Zenzayemon, clerk to the
Town Magistrate of the North, to the Town Magistrate
of the South.
"Enclosed is a copy of our letter in answer to Hase¬
gawa Kinzaburo, who made a Private Inquiry^ of us. We
have been directed by the Warden of the Palace Gate,^ to lay
the matter before you, his colleague of the South, and we
trust that you will review our answer and pass an opinion
upon it."
2. Appended Answer,^ from the Town Magistrate of
the South.
"We have looked through the documents you have
1. Cited from " Shcyi-tome." 2. Yoriai. This term, aocordingto
Mr. Rudorff, was applied to all Hatamoto whose income ranked over
3000 koku, when they were not in active official service, and seems
to have been an honorary dignity. See Note to No. 45, 3, infra.
3. Uchi-toiawase. 4. Ae Town Magistrate of the North. 5 . Sage-
fuda.
60
PKIVATE LAW IN OLD JAPAN :
No. 26] sent, and, being quite in accord with your views, we here¬
with return them."
3. Letter of Inquiry, from Hasegawa Kinzahuro.
" (1) A sum of money is borrowed by some one, in the
name of his lord, declaring that the money is to he applied
to the latter's household expenses. The borrower dies
without issue, and his family becomes extinct. The mer¬
chant-creditor demands of the lord the payment of the debt.
But it turns out that the money was never applied to the
lord's use, and the joint-seaP of the person named as the
joint debtor in the instrument appears to have been a
forgery, 2 as the person of that name knows nothing of the
ti-ansaction. If in such a case the lord or the joint-sealer
is unable to persuade the creditor of the groundlessness of
his claim and the latter sues, how shall the case he dealt
with? We respectfully ask your advice.
(2.) Suppose the facts to he the same as above, with
the following variations. The joint-sealer, being a sub¬
ordinate official, is commanded by the borrower, his superior
officer, to affix his seal, and does so under this compulsion.
Afterwards the borrower dies and his family becomes
extinct. If a suit results, how shall it he dealt with? We
respectfully ask your advice.
(8.) Suppose the same case as above, except that
the joint-sealer has indeed some preliminary negotiation
with the creditor about a loan, hut in fact never affixes his
seal, the impression being a forgery. The recital that the
money is to he applied to the household purposes of the
debtor's lord is also false and unauthorized. If owing
to the insistence of the creditor a suit results, how shall
it he dealt with? We respectfully ask your advice.
1. Hen-in. This has been sometimes translated " counter-seal."
In a document of debt, it seems to indicate a joint debtor, who may
as between the obligors be the real beneficiary of the loan. 2. Bohan.
PART in.—CONTRACT ; LEGAL PRECEDENTS.
61
(4.) Suppose the same case, except that here the
joint-sealer is a subordinate official, who, when on the
point of visiting his native province, is directed by his
superior officer to affix his seal to a blank document, on
the pretex that it would be necessary to have the seal if
a need for a loan should arise. Afterwards the superior
does employ the document for raising money. In such
a case, if suit is brought, how shall it be dealt with ? We
respectfully ask your advice.
8th mouth. Hasegawa Kiiizaburo,
by his retainer Kato Yemen."
4. Apiiended Ansu-ei-, by the Town Magistrate of the North.
"(1.) As the real borrower is dead, the action should
be dismissed, if it appears that the alleged joint-seal is a
forgery and that the money was not applied to the use of
the lord.
(2.) Here, although the joint-seal was affixed by
order of the superior officer, yet the fact remains that it
was affixed, and the responsibility cannot be evaded. How¬
ever we cannot finally answer until it appears whether
or not the money was really applied to the use of the
lord.
(3.) Here the alleged joint-sealer had some negotiation
with the creditor, but the seal is in fact forged and the
money was not applied to the use of the lord. The matter
is not an easy one to decide, and we must consider it
further before answering.
(4.) Here the joint-seal was affixed to a blank docu¬
ment at the request of a superior. Now although this was
done because, as his superior declared, the seal would be
necessary in case a loan should be made, yet the fact that
the money so obtained was after all not applied to the use
of the lord (even though really borrowed for the purpose)
shows that the affixing of the seal under such circumstances
62
PRIVATE LAW IN OLD JAPAN:
No. 26] was negligence in one so trusted as to be employed in the
management of the household affairs. Now that the
superior is dead, however, it is difficult to get at the facts,
and we cannot give a final answer without further investiga¬
tion as to whether the loan was in fact made for the
household purposes." ^
[No 27J Payment of Loans of Many Years,
Standing.
A Keply hy the Finance Magistrate to an Inquiry
hy a retainer of Matsudaira, Governor of the
Capital.
Dated Tempo, XII, 7, (August, 1841).
1. Inquiry.
" We enclose copies of documents of sole indebtedness ^
executed some 30 or 40 years ago hy the father or grand¬
father of certain persons now living. In each case the
debtor himself has long been dead, and the present head
of the family, a son or grandson, knows nothing of the in¬
debtedness, aud has never been asked to pay until the 2nd
month of this year, when an action was brought in the
North Court,3 which you indorsed and ordered for private
settlement. But a settlement is impossible, and we should
like to learn whether you intend or not to take up and
adjudge a suit based on such documents and brought one
or two generations after the debtors are dead. We there¬
fore forward copies of the documents and respectfully make
1. The idea seems to be that if the loan was really contracted in
the course of the management of the liousehold, the joint-sealer
must stand the consequences of his negligence ; but that he is not to
be visited with responsibility for a misuse of the document by th^
other official for the purpose of raising a private loan. 2. Ippan-
shomon (one-seal document). 3. Go-hamho.
PABT m. CONl'KACT ; LEGAL PRECEDENTS. 63
private inquiry as to the proper course to take, begging
the favor of an appended answer.
7th month, 1st day (August 17).
Matsudaira, Governor of the Capital, ^
by his retainer."
2. Copies of the above documents.
(1-)
" Memorandum.2
10 ryo in gold.
Owing to unavoidable necessities, I have borrowed
the above sum.
Kwansei, XII, 10 (November, 1800).
Akichi Yasozayemon. [Seal]
To
Jisuke, Esq., ^
of the Ise House. ^
(2)
Memorandum.
5 ryo in gold.
I certify that owing to unavoidable necessity I have
1. It does not appear who this person is, but probably he is a
feudal lord making inquiries of the Town Magistrate. 2. Ohoye.
Although this word sometimes means " perceive," its general mean¬
ing is " remember," and this latter idea seems preferable to the
ordinary corresponding English terms ("take notice," "know")
used in similar connections. 3. There seems no other word than
"esquire" to express the "sama" which is here by courtesy ap¬
pended to the name of the creditor by the debtor. The use of the
term is the more noticeable as the debtor is a samurai and the
creditor a merchant and one not entitled ordinarily to even a family
name. i. Iseya. This business name (ya being " house " or " firm ")
takes for merchants the place of the family name.
PEIVATE LAW IN OLD JAPAN :
borrowed the above sum. I shall without fail
repay it in instalments from time to time.
Kyowa, III, 12 (Jannary, 1804).
Akichi Yasozayemon- [Seal]
To
Heizahuro, Esq.,
of the Ise House.
(3.)
Memorandum.
50 ryo in gold.
I certify that I have received the above sum,
procured by you for me at my request.
2d month, 20th day.
Akichi Yasozayemon. [Seal]
To
Heizahuro, Esq.
of the Ise House.
(4.)
Memorandum.
5 ryo in gold.
This is to certify that I have borrowed the above
sum of you.
5th month, 27th day.
Akichi Yasozayemon. [Seal]
To
Jisuke, Esq., ^
of the Ise House.
(5.)
Memorandum.
5 ryo in gold.
This instrument is to certify that, owing to unavoid-
PART in. CONTRACT : LEGAL PRECEDENTS.
65
able necessity, I have borrowed of you the
above sum.
Bunkwa, III, 7 (August, 1806).
Akicbi Yasozayemon. [Seal]
To
Heizaburo, Esq.,
of the Ise House.
(6.)
5 ryo in gold.
This is to certify that, owing to unavoidable neces¬
sity, I have borrowed the above sum. I shall
repay it without fail by the end of the year at
the latest. This is given for the sake of future
security.
7th month, 10th day.
Akichi Yasozayemon [Seal]
To
Heizaburo, Esq.,
of the Ise House.
(7-)
Money Borrowed.
200 ryo in gold.
Interest, 1 bu in 30 ryo,
I certify that, owing to an unavoidable mischance,
I have been obliged to borrow the above sum.
I sball without fail repay it, principal and interest,
in the 12th month of the year of the Dragon. ^
This instrument is given for the sake of future
security.
Bunkwa, IV, 1 (February, 1808).
Akichi Yasozayemon. [Seal]
To
Heizaburo, Esq.,
of the<ise House.
1. Apparently the current year, but possibly 12 years later (1820).
Vol. XX. Snp. PI. 111.—S.
66
PRIVATE LAW IN OLD JAPAN I
No. 27] (.8.)
MemoraDdum.
7 ryo in gold.
This instrument is to certify that I have borrowed
the above sum, furnished to me by you.
Bunkwa, VI, 3 (April, 1809).
Akichi Yasozayemon [Seal]
To
Jisuke, Esq.,
of the Ise House.
(9.)
Memorandum.
5 ryo in gold.
I certify that owing to unavoidable necessity I have
borrowed the above sum of you. I will afterwards
replace this by a formal document.
12th month, 81st day.
Akichi Yasozayemon. [Seal]
To
Heizaburo, Esq.,
of the Ise House.
(10.)
Memorandum.
20 ryo in gold.
This is to certify that I have borrowed the above
sum of you.
Bunkwa, XH, 1 (February, 1815).
Akichi Yasozayemon. [Seal]
To Heizaburo, Esq., and ^
Jisuke, Esq.,
of the Ise House.
(11.)
Memorandum.
20 ryo in gold.
I certify that owing to unavoidable necessity I have
PART III. CONTRACT : LEGAL PRECEDENTS.
67
borrowed the above sum of you. Repayment is to
be made by delivering to you monthly 3 bales of
rice, beginning with the 1st month of the ensuing
year of the Rat (1804), until principal and interest
are paid. This is given for the sake of future
security.
Kyowa, III, 12 (January, 1804).
Ohashi Muteyemon. [Seal]
To
Heizaburo Esq.,
Jisuke, Esq.,
of the Ise House.
(12.)
Money Borrowed.
100 ryo in gold.
I certify that owing to unavoidable necessity I
have borrowed the above sum of you. I shall
repay principal and interest without fail by the
ensuing 11th month. This is given for the sake of
future security.
Kwansei, X, 5 (June, 1798).
Kokuma Okuhei. [Seal]
To
Heizaburo, Esq.,
of the Ise House.
The above is correct.
(18.)
Memorandum.
20 ryo in gold.
I certify that I have borrowed the above sum.
12th month, 12th day
Sugaya Daniiosuke. [Seal]
•
Heizaburo, Esq.,
of the Ise House.
68
PRH ATE LAW IN OLD JAPAN :
27] (Note, by the sender of the documents.
' The last two documents appear to have been execut¬
ed prior to the order of the 9th year of Kwansei
(1797), annulling certain claims.^ Should they
therefore he rejected ? ')
(14.)
Memorandum.
50 ryo in gold.
I certify that I have received the above sum ; I will
afterwards replace this by a formal document.
8rd month, 2nd day.
Sugaya Dannosuke. [Seal]
To
Heizahuro Esq.,
of the Ise House.
3. Appended Ansieer, by Yahe, Vnder-Minister of the
Interior.^
" In regard to your letter, an instrument of debt, even
though old in date, is to he taken cognizance of and pay¬
ment ordered, either if it is dated subsequent to the
Nullification^ Order of IX Kwansei, or if [being of a prior
date] the claim evidenced by it is in fact a deposited fund,
hearing no interest; hut it is not to he taken up and
ordered paid, either if there is sufiicient evidence that it
was executed (though hearing no date) before that Order,
or if the parties disagree about the two dates [unless it
was given for a deposited fund]. Such has been the practice.
But in such a case as the above, where the creditors have
been negligent in demanding paynaent, further inquiry is
necessary before we can give final answer.
1. But this order (see No. 13, ante) threw out of court only those
claims which were contracted before the 9th month, 1st day, of that
year. The suggestion may be that the documents were intentionally
post-dated. 2. Probably Finance Magistrate. 3. Kiken (Ut. abandon¬
ment). This term is now used to signify the " release " of English
law.
PAET III.—CONTRACT : LEGAL PRECEDENTS. 69
4. Letter from the above Yale, Under ■'Minister of the Interior,
to Toijama, Warden of the Palace Gate, Town Magis¬
trate of the yorth.
"Enclosed is a copy of my answer to the retainer of
Matsudaira, Governor of the Capital, by whom I have been
consulted about an action on a money loan now pending
before you. I beg to ask whether you have any objection
to make to it ?"
[No. 28] Disposition of Actions on Money Loans.
A Proposal laid before the Council of State by
Torii, Lord of Kai, Town Magistrate.
Dated Tempo, XIII, 10, 1 (November 3, 1842).i
1. Proposal.
" The failure of debtors to repay their borrowings has
recently become so frequent that creditors have been obliged
to resort to usury to recoup their losses, and in conse¬
quence the circulation of money is at present very sluggish.
Seeking a remedy for the situation, you have condescended
to consult me upon the subject and to ask whether anything
can be effected by a revision of the system of procedure in
actions on money loans. The result of my deliberation I
now lay before you.
[Rubric']. As money-lending is intimately connected
with the circulation of money in the world, the rules of
procedure relating thereto must be adapted to the needs of
the time. Thus, when it was found that the money circu¬
lation had been injuriously effected by the Nullification Order
ofKyoho, I (1716), an Order 2 was issued in Kyoho, XIV
(1729), by which all actions on money loans, etc., contracted
1. Cited from Tempo Kaikaku Yo-atsukai (" General Reform of
Practice in Tempo "). 2. See No. 1, ante.
70
PRIVATE LAW IN OLD JAPAN :
Ko. 28] after the 1st month of that year were to be taken cognizance
of. Another change, however, was made by the Order of
Yenkyo, III, 3 (1746), by which ^ all claims based on
money loans, etc., contracted before Yenk3'o, I (1744), were
to be settled out of court,^ while in actions on claims
contracted from and after that year the defendant was to be
summoned to the Chamber of Decisions on the 4th or 21st of
the month and ordered to paj', and on default an instalment
order was to issue, and if the default continued, he was to be
put in bankruptcy. Since that time the system of execution
in bankruptcy in the Town Magistrate's Court has been
conducted on those lines. But the effect of that system
was almost destroj'ed by the Resolution of the Chamber of
Decisions in Bunkwa, III, 5 (July, 1806), by which ^ it was
determined, after a report to the Council of State, to make a
change in the established amounts of the instalment-sche¬
dule by reducing the yearly amounts paj'able. The chief
consequence of this order has been that the instalment-
amounts, already small, became still smaller, and it was not
merely not worth while, but was even prej udicial to the creditor
to bring an action for his claim ; and the tendency has been
to force him invariably into a private settlement, and for
him to receive a part, say one-third, of the amount in ready
mone}*, and as to the rest, either to get the debtor to re¬
write the claim, or to release^ it entirely.®
Furthermore, men of late have become more and more
self-willed and shameless, insomuch that when they borrow
monej", they imagine that they can delay paj'ment indefinitelj*
b}- making some excuse or other; ]j'hile the creditors, on
the other hand, to make good the loss arising from the
devices of the debtors, naturallj' have recourse to usury, and
1. See No. 5, ante. 2. AHai-zumi. 3. See No. 99, infra. The
N unification Order of Ewansei, IX (1797), is not mentioned. See
No. 18, ante. 4. Kamben (pardon, release). 5. Here the rubric
ends.
PART III. CONTRACT : LEGAL PRECEDENTS. 71
have thus brought down upon themselves your recent order
for the reduction of the rates of interest. In seeking to cure
these evils and that of the inactive circulation of money, the
best measure, in my opinion, would be to disregard all
minor considerations and thoroughly reform the laws on this
subject, so as to facilitate legal proceedings as much as pos¬
sible and give the creditor a guarantee that he shall obtain
satisfaction without fail, if suit be brought, thus relieving
him from fear and disposing him to lend money at ordinary
rates. I therefore enclose a document setting forth the
details of the reforms which seem to me desirable. Pre¬
judiced as it may be, I beg your consideration of it. If it
meet your views, I shall make a further report as to the
form of the Proclamation to the townspeople on the subject
of the enclosure.
10th month.
Torii, Lord of Kai."
2. Proposed Law Amendin(j the method of disposing of Actions
on Money Loans.
Dated Tempo, XIII, 10 (November, 1842).
Art. 1. (1)
[Ordinary] money loans; i
(2)
Prayer-fund loans ;
(3)
Patent-fund loans;
(4)
Loans on hypothecs;
(5)
Advances on behalf of another ;
(6)
Loans for taxes due in advance ;
(7)
Wages for labor;
(8)
Earnest-money;
(9)
Dowry-money ;
(10)
Unpaid purchase-money;
(11)
Investment-loans ;
(12)
Loans to Government vassals or Govern¬
ment merchants secured by hypothec of
ground-rent or house-rent of residence-
l^d received from the Government;
1. For the vernacular terms, see No. 5, cmte.
72
PRIVATE LAW IN OLD JAPAN I
No. 28] For these claims the rule shall be as follows. An
order for payment within 30 days shall first be made; if at
the end of that time payment is not made, an order shall
issue for payment by instalments, twice a month; if default
continues, an order of execution in bankruptcy shall issue*
If a debtor fails to appear on summons, or is in [wilful]
default after being ordered to pay, he shall, if one of the
military gentry, be reported to the Council of State, or if of
the priesthood, farmers, or townspeople, be punished. [Such
has been the law heretofore in force]. Henceforth this
regulation is repealed as to farmers and townspeople. When
an action of the above sort is brought against such a person,
the parties shall be ordered to appear without delay and
confront each other, with oral pleadings; and if their
statements correspond,^ and there is no irregularity on the
face of the instrument of debt, the Court shall issue an
order for payment within a term doable that in case of a
house-pledge loan; if there is a default at the end of that
period, the debtor shall be ordered to confinement in the
hand-stocks,2 whence he shall be released on payment of the
claim; if the default continues, an order of execution in
bankruptcy shall issue. If the parties are at issue upon
the facts, the Court shaU try the issue, and then, if neces¬
sary, proceed as above.
If at the end of the term above mentioned the debtor
sends a representative, alleging illness in excuse for non¬
payment, then an inquiry shall be made as to the truth of
this, provided the defendant is a resident of Yedo, by the
local official of his district or by an officer of the Court, and
if the fact is. as alleged, an order to be confined at home,®
[but not to be put into stocks,] shall be made. If the debtor
resides in a distant province, whence he has been summoned.
1. That is, if the defendant does not deny the facts alleged. 2. Te-
jo-azuke. The defendant was committed to the house of a relative or
friend for safe-keeping. 3. Oshikome.
PART in. CONTRACT : LEGAL PRECEDENTS.
73
the local official shall make inquiries, and if they are satis¬
factory, the Court shall grant the representative's request to
take the defendant's place and shall treat him as the defend¬
ant in the case ; if however, there arises any doubt as to the
truth of the excuse, the Court shall instruct the feudal lord
or the esquire or the deputy to make the necessary inquiries.
Appended XoteA Fixing the term of payment at
double that used for suits on house-pledge loans, as
stated in the text, is quite proper. But to issue an
order of execution in bankruptcy in so short a time
seems too severe, at least where the defendant is a
farmer. In that case, then, let the rule be that if
the debtor pays the greater part of the debt, tbe
term shall begin de novo; provided, of course, that
if after this a default occurs, execution in bank¬
ruptcy shall be ordered as stated in the text.
Art. 2. The term of the hand-stocks confinement and
the home-confinement shall be about 30 days ; if at the end of
this time payment is not made, execution shall be ordered
as above.
Art. 3. If it appears that the debtor has secreted his
property, or committed any other illegal act, [he and] the
local officials shall on proof of this be suitably punished.
Art. 4. If the defendant is in fact a dependent ^ in the
house of another, he will have no property to be taken on
execution ; but if, though nominally a dependent, he really
has property of his own, or carries on a fair business,
he must deliver up his clothes, utensils, [and other
movables].
Art. 5. The same rule shall be applied where the defen¬
dant is a domestic servant; and the Court may, if desirable,
order his surety ^ to undertake and pay the claim.
1. By the Council of State. 2. Dohjo. 3. Every servant was
required to have a surety. See the enactments in Eudorff's Toltu-
gawa Gesetzsammlung, pp. 61-64.
74
PRIVATE LAW IN OLD JAPAN :
No. 28] Al t. 6. If any of the cultivated or residence land of
a debtor against whom an order of execution has issued is
subject to a pledge, the Court, if upon examination of the
instrument it appears that the pledge was made before tho
action was commenced, shall order the pledged property to-
be sold, the proceeds being paid to the pledgee to the amount
of his claim, and the surplus to the plaintiff; if there be no
surplus, the Court shall sanction whatever arrangement
may be reached between the pledgee [and the plaintiff in
regard to the latter's receiving a share in the proceeds],
But an instrument purporting to be one of pledge, yet
bearing no counterseal of the local ofScials, shall be treated
merely as an ordinary instrument of loan. Even though
no pledge exists, the land shall be delivered over to the
plaintiff not directly, but in the form of money, the land
being sold and the proceeds applied to the debt.
Art. 7. Money, residence land, and cultivated land
brought by the wife [of a bankrupt] in dower shall likewise
be applied as above described to the payment of the debts;
unless it stands in the name of the wife and is clearly
proved to have been brought in dower, in which case it
shall be exempt.
Art. 8. Where an action is brought against one who-
has been subjected to execution in bankruptcy and has
delivered up all his property and is living as a dependent in
the house of another, the Court, if on investigation it
appears that he is carrying on a fair business, shall
proceed against him as described above in the case or
dependents, and, if it is satisfied that he is in fact a dependent,,
shall dismiss the action, ordering suit to be brought when
he has again acquired means.
Aii. 9. Actions upon claims existing before the
[Nullification] Order of Kwansei, IX (1797),^ shall be
taken up and adjudicated, if the defendant admits the fact
1. See No. 13, ante.
part iii.—contract: legal precedents. 75
of the boiTOwing, no matter how man}' years have elapsed
between the conclusion of the contract and the bringing or
suit. But sometimes this interval is so long that the
accumulated interest has come to exceed the principal, and
sometimes one who is dunned for a liability of a parent or
other ancestor is forced, in order to avoid a suit, to acknow¬
ledge the claim and renew the liability in his own name
by an instrument of loan or of deposit in these cases,
after investigation, the Court, if it is the case of the interest
exceeding the principal, shall order the interest to be re¬
duced to the amount of the principal, or, if it is the case of
an ancestral debt or of a claim which has been outstanding
for 10 years or more, so that compound interest has been
reckoned and the debtor has renewed the entire amount in a
new instrument of loan or deposit, shall order a private-
settlement,^ without giving judgment.
Art. 10. Actions upon credit sales are difficult to
adjudicate when brought many years after the claim arises,
because the parties make endless contradictions in regard to
their accounts; henceforth the period of limitation for such
actions shall be 10 years. Actions brought later than that
shall not be taken up, and j^rivate composition^ shall be
ordered.
Art. 11. Nevertheless an action on a credit sale made
more than 10 years previously shall be taken up and an
order of payment issued, if the parties have continued their
transactions down to within 10 years and a part of the money
has already been paid.^
1. The renewal by an instrument acknowledging a deposit of
money was a favorite transaction, because the creditor obtained a
better remedy. See Part III, Section III. 2. Aitaizimi. 3. Naisai.
4. The meaning is notaclear; but at any rate it seems that some¬
thing more must have happened in the 10 years than a mere
part-payment*
76
PRIVATE LAW IN OLD JAPAN :
No. 27] Ai-t, 12. It has been customary not to allow interest on
ordinary credit sales, except in the case of sales of dried
sardines, where 3 rin a day are allowed. But this exception
has no good ground ; hereafter no interest shall be allowed in
credit sales, even though the parties have expressly stipulated
for interest if the money is not paid when due and have
affixed their seals to their account books in token of it.
Art. 13. (1) Ground-rent;
(2) ^bop-rent;
The rule ia suits on these claims has been to order
payment within 30 days, and on default, to order payment
by instalments, and on further default, to order execution in
bankruptcy. Yet both of these differ from the ordinary
money-claim in which the parties compound the in¬
terest ; 1 henceforth, therefore, they shall be ordered for
payment within the [smaller] period allowed for house-
pledge claims, and on default an order for execution in bank¬
ruptcy shall be made.
Appended Xote. Although, as you say, claims for ground-
rent and shop-rent differ from an ordinary money-
claim in which the parties compound the interest,
5'et it would tend to confuse the distinction
between a principal action and a money action
if we placed these two classes on the same footing
as house-pledges. Henceforth, therefore, they
should continue to be disposed of with the same
orders and periods as the other claims coming
under the head of money loans.
-Irf. 14. Where it appears, in actions on house-pledges,
laud-pledges, etc., that the plaintiff is a 3ifferent person from
the one to whom the instrument of debt is made out, the rule
has been hitherto that the action should not be taken up, and
1. Ri-bai ni sunt ordinarily means to " double the interest," i. e.
compound it. No. 86, infra, shows that it was allowable in ordi¬
nary loans to compound the interest.
PART m. CONTRACT ; LEGAL PRECEDENTS. 77
that, even though the plaintiff asserts that he has received an
assignment of the instrument from the creditor, the claim
should not be adjudicated unless good evidence of this is
offered. The effect of this rule was clearly not to forbid an
assignment of the instrument of debt; and it has resulted
that many persons have endeavored to obtain claims against
others by buying up old instruments,! accounts books, etc.,
and, after prevailing on the creditor to acknowledge this as
a transfer of the claim, brought suit against the debtor.
The evil was greatest for defendants in rural districts, whO'
would rather enter into a composition than incur the expense
of standing a suit. But a decision of the Chamber of
Decisions, in Temmei, VIII, 5 (June, 1788), put an end tO'
the evil by ordering that no assignment of a debt should bo
permitted, except to a father, mother, or brother. This
decision shall continue to be law, and the exception shall
also include the assignment of a patent-fund loan by a
master-blindman 2 to a disciple, a transaction already per¬
mitted.
Art. 15. Although cognizance used to be taken of
all actions on money loans where the amount sued for was
not less than 5 momme in silver or 500 mon in small
money,3 yet it tended to produce burdensome litigation ; so
that in Bunsei, year of the Horse, 1st month (February,
1822), it was decided by the Chamber of Decisions that the
complaint should be dismissed in actions claiming less than
1 'hu in gold, or 15 momme in silver, or 1500 mon in small
money. But in spite of this reform there has been much
hardship for the people of distant villages, against whom
(sometimes against a whole village) suit is often brought for
a trifling sum due upon a money loan or a credit sale.
Henceforth, in actions in which both parties live within the
1. Ko-shomon; th%original in a claim since re-written in a new
instrument. 2. Zato. See No. 9, a?)fe. 3. ^Teiu; copper and iron
money.
78
PKIVATE LAW IN OLD JAPAN I
No. 28] city of Yedo or the defendant lives within 5 ri thereof, and the
complaint-indorsement ^ orders appearance on the 7th day,
the minimum sum for which suit may be brought shall he 1
bu in gold, or 15 momme in silver, as above stated; while in
actions in which the defendant lives more than 5 ri distant
from the city, the minimum sum shall he 1 jt/o in gold, or
60 momme in silver (the present rate of exchange), or 6,500
vion of small money.
Art. 16. In actions on money loans hearing the seal
of the rural district,^ the practice has been that, although in
suits against the farmers of a village it appears that the debt
was really a debt of the feudal lord or the esqufre, yet this
fact cannot be taken cognizance of, if there is on the instru¬
ment no official seal or indorsing-seal of the feudal lord or the
esquire ; ^ unless the assertion of the farmers as to the real
purpose of the loan is coiTohorated by the feudal lord or the
esquire and a promise of payment is made by him, in which
case payment shall be ordered accordingly. But where there
is an official seal or indorsing-seal of the feudal lord or
the esquire or a retainer, or where there is a collateral in¬
strument by such a person, the feudal lord or the esquire
shall he ordered to pay, although no petition has been made
to that effect. The decision ^ of the Chamber of Decisions
in Kwausei, II, 2 (March, 1790), has hitherto been observed
as the law. Yet in such cases the persons whom the credi¬
tors specially look to are not the feudal lords or the esquires,
but the farmers themselves ; and the purposes of the credi-
1. Meyasu-urahan. The Court indorsed the complaint, ordering
an appeai'ance, and the plaintiff served it on the defendant. 2. Go.
See No. 7, ante. 3. One or more villages often pledged the rice-
product as security on payment of advances made to their lord.
The lord instigated or compelled this, and expected to pay the debt
from the rice-tax. But apparently the transaction was such as to
place the villagers in the position of borrowers, in name at least.
4. No. 7, ante.
PART in. CONTRACT : LEGAL PRECEDENTS. 79
tors would be defeated i if the feudal lord or the esquire were
made solely responsible and a payment by instalments
ordered. Henceforth, then, where an instrument of debt
made by farmers with the seal of a rural district fails to
contain the official seal or indorsing-seal of the feudal lord or
the esquire or a retainer, and there is no collateral instru¬
ment, the debt shall not be recognized as that of the feudal
lord or the esquire, even though the farmers request this ;
and if after an order for payment within a certain term the
claim is still in arrear, the Court shall order the counter-
sealing village officers to he put in stocks ; if the default
continues, the villagers shall he ordered to contribute to¬
wards its payment; or if the debt was incurred by action
of the officers only, and the people knew nothing of it, an
order of execution in bankruptcy shall he made against the
officers, if they do not pay. But where the instrument
contains the official seal or indorsing-seal of the feudal lord
or the esquire, or where there is a collateral instrument,
he shall he ordered to take up and pay the debt, if petition
is made 2 to that effect.
Appended Note. Although, as you say above, there
may he cases in which the only persons acquainted
with the transaction are the village officers, and the
farmers themselves are without knowledge of it,
and in such cases it would seem quite proper to
order execution in bankruptcy for the village
officers, yet a strict enforcement of this rule woulp
result in utter ruin for the officers and their
families or in their removal to some distant village,
and the public business of the village would be
completely at a standstill, so that great caution
must be exercised iu pushing the rule to this
1. Because the
■of the rice-product,
■does not appear.
onlji real security the lender had was the pledge
2. Whether by the plaintiff only or by the village
80
PRIVATE LAW IN OLD JAPAN :
No. 28] extreme. This is especially so since an equal
debtor, if not the sole real debtor, in such cases, is
usually the feudal lord or the esquire, even though
the instrument does not bear his olficial seal or
indorsing seal; so that the best method seems to
be to order the villagers to contribute to the
payment of the claim.i This rule however, need
not be strictly carried out, wherever after mature
deliberation the circumstances seem to make it
desirable not to do so. Where, however, there
exists a seal of the feudal lord or esquire, as
above stated, the rule should be as stated in the
text.
Jrt. 17. Pledges of reliable property.2
The rule has been for this class of claims that they
shall be treated analogously to house-pledges, and payment
shall be ordered within a term of days proportional to the
amount borrowed; that an instrument purporting to evidence
a sale of house or storehouse [but in reality given by way
of security] shall be treated as a hypothec-instrument,®
unless it bears the counterseal of ward officers, relatives,
and [ward] general-representatives,^ in which case it shall
be treated as a house-pledge; that even a loan made on
deposit of title-deed with the lender shall be treated as an
ordinary loan, if the instrument bears no counterseal of the
ward officers. Decisions shall be hereafter rendered, as
formerly, according to these rules.
1. The idea seems to be that, while the lord cannot be held
liable, yet the debt is no more that of the village officers than of the
people, and that they should therefore ndl be obliged to bear alone
the brunt of their suretyship. Yet the officers alone had taken part
in the transaction, and this seems very good ground for the distinc¬
tion criticized by the annotator. 2. Tashika nam shichi-nwUu.
The force of the tashika nam is not quite clear. The motsu pro¬
bably indicates houses, valuables and things other than land. 3.
Hypothecs were on the footing of ordinary loans. See supra, passim.
4. Sodai; this seems to imply that the sodai were not reckoned as
among the machi-yakunin.
PART III. CONTRACT : LEGAL PRECEDENTS.
81
Art. 18. Bills of exchange. The rule in regard to
suits for money due on bills of exchange is that thej- shall be
treated on the footing of actions on house-pledges, and shall
be ordered for payment within similar periods, unless the
amount bears interest, when they shall be treated on the
footing of ordinary loans. This rule shall remain in force
for the future.
Art. 19. (1) Building-loans ; ^
(2) Money advanced
(8) Sundry-expense money. 3
These three classes of claims shall be treated, as hereto¬
fore, on the footing of ordinary loans.
Ainieiuled Note. In claims for sundry-expense money,
[the defendant] is under an obligation to paj- the
expenses incurred [by the plaintiff], for which the
defendant ought to have forwarded [the money].
Now such advances are of course made without
agreement for interest, and it has long been cus¬
tomary to treat it as a principal action, analogously
to the house-pledge, although under exceptional
circumstances it may be treated as a money action,
analogously to ordinary money loans. This was
the decision of the Chamber of Decisions some years
ago, and the same rule shall obtain hence-forth^
Art. 20. (1) Money granted : ^
1. Fushiii-ltin; money lent to another for building expenses.
2. Shiohiri-kin; usually, money sent in remittances from time to
time, generally by way of gift; but the term seems to be applied
usually, as]a euphemism, to the advances of money-lenders to gentry,
on security of tax-rice. See No. 57, infra. 3. Zatsu-yo-hin ; appar¬
ently money due from A on account of expenses incurred by B on A's
behalf; answering roughly perhaps to the English " money paid to the
defendant's use," or to the French " gentian d'affaires," and perhaps
including the expenses of an agent. 4. Yuziiri-kin; probably a sum
promised by way of yuztm or grant, e.g. a transaction resting nomi¬
nally at least on family affection or some other reason than com¬
mercial gain.
Vo \. XX. Sup. Pt. ili.—6.
82
PRIVATE LAW IN OLD JAPAN :
28] (2) Money deposited ;
(3) Exchange-money ; i
(4) Character-security money : ^
There had been no precedent as regards money deposit¬
ed ; but it was decided by the Chamber of Decisions, in
the year of the Cock, 2d month (March, 1887), on the
proposition of Naito, Captain of the Imperial Body-Giiards, at
that time Finance Magistrate, that it should be treated
analogously to the house-pledge, because it cannot be (as an
ordinary money loan is) applied to the depositary's own use.^
Henceforth, then, tlie procedure shall be the same for money
granted and the other sorts named above ; provided that if
the sum is to bear interest [by agreement of the parties], it
shall be treated in analog}' to ordinary money loans.
Art. 21. Hire for chattel-leases.^ This occurs where
a man is unwilling to lend his money in the ordinary way,
not being certain of payment, and so makes a lease-for-hire 5
of clothes or other things to the debtor, in order that the
1. Ryo-gaye-hin; money to be given in exchange for a sum o
a different denomination or metal, Mimoto-sliolio-liin; money
deposited with a master or landlord or guild-master as security
for behavior or for performance of the obligations of a position.
3. That is, there is no reason why he should not be ready to
restore it at any moment; while in ordinary loans the money
had been used and it would be difficult to collect immediately
enough cash to discharge the claim. But there seems to be also
the feeling that an ordinary lender on interest is receiving a
profit from the transaction and hence ought not to press the
debtor too hard, while the transaction of deposit is entirely gratui¬
tous and the depositor's position is not ^ tainted with desire for
mere gain as to prevent him from insisting on a strict performance
of the obligation. 4. Son-ryo linsen. 5. Son-ryo (price, hire)-Aas/u'
(loan). The legislation on the subject is given in full infra, No. 70,
c( seq. It is difficult to see where the security to the lender of the
clothes conies in, for probably the pledgee would hold them as
against him. In fact the lender would seem to have had no security
at all, but merely to have reaped a high profit on the loan.
PART III. CONTRACT : LEGAL PRECEDENTS.
83
latter may pledge the goods and get money to meet his
necessities. In such cases the hirer, if he pledges the goods,
has a double charge to pay, vi?., the hire of the goods and
the interest on the pledge-loan ; and to prevent this evil, it
was ordered, in a Town-Proclamation 1 of Bunkwa, II, 2nd
month (March, 1805) that such leases might be made where
the purpose was in fact to meet a pressing pecuniary neces¬
sity, but that the term stipuliited in the instrument must
not exceed 3 days. Henceforth, therefore, no action on such
a lease shall be taken up if the instrument is not in
accordance with the above rule, and the sum to be re¬
covered as hire shall be limited to 3 days' amount,
even though a longer term has been agreed on between
the parties; and if the borrower [where the term
exceeds the legal limit] has pledged the goods hired,
he shall be ordered to return them. But the above
rule as to a 3-daj's' limit does not apply to leases
between friends or by one not making a busiuess of such
leases.
Art. 22. Yearly-instalment money.^ In actions for
yearly instahnent-mouey it had been customary for the
Court to pay no attention to the provisions of the instahnent-
'nstrument expressly declaring the sum to be payable in
yearly instalments, but to order payment according to the
original instrument of debt. But, in view of the fact that
the arrangement by which the payment by instalments is to
be made is not arbitrarily settled bj' the debtor himself, but
is made with the consent of the creditor, the Chamber of
Decisions decided in Horeki, IX, 5 (June, 1759)^ that instal¬
ment-agreements should be carried out according to the
intention of the parties, [and payment could not be enforced]
of instalments not yet due ; but otherwise as to arrears of
1. Machi- f.ire. 2. Nemj>u-kin, 3. Cited in the Section on " In¬
stalment Payments," infra.
84
PRIVATE LAW IN OLD JAPAN :
No. 28] instalments.! This decision was approved by the Council of
State, and henceforth such shall be the rule.
Art. 23. Action for pleasure-moneyIn order to pre¬
vent the running up of credit accounts of this sort, which
tend to produce numerous spendthrifts, henceforth no action
shall be taken up for the recovery of arrears due for the hire
of theatre-boxes in the theatres of the Theatre-block nor ot
i
prostitnte-iiire in the prostitute-quarter.
Art. 24. Precedent, Subsequent, and Concurrenf
Actions.3 If in an action on a money loan an order for
pa3"ment has been made, fixing a preliminarj* term, and the
debtor is then ordered to be committed to a friend for safe¬
keeping,^ with or without hand-stocks, or to be imprisoned,
as a step in the trial of some criminal charge pending against
him, the proceedings in the precedent action shall be
suspended until the conclusion of the subsequent action,
when final judgment shall be rendered.
Art. 25. If an order of payment fixing a preliminary
term has been made in one action, and a subsequent action
of a similar sort ® is brought, convenience requires that the
second complaint should temporarily be rejected, with an
1. The meaning is tliis. When a debtor was in arrears with
a large sum of money, a new instrument was often made out,
acknowledging the debt and arranging for a payment by in¬
stalments. These instruments the Courts formerly did not recognize.
Hereafter they are to be recognized, and the creditor may not
sue for the original sum except as it falls due under the new ar¬
rangement. Where a given instalment is not yet due, it cannot
be precipitated. But if an instalment is not paid when due, it is
demaudable immediately. The " otherwise" refers to the immediate
enforcement, not to any action contrary to the parties' intentions.
On the whole subject, compare the later chapter dealing with it.
2. Age-daihin; money to given to dancing-girls, actors, courtezans,
etc. 3. Sen-so; go-so; ai-so. The last was an action brought on the
same day as another. It must be understood that these terms
refer to actions against the same defendant. 4. Azuke. 5. The
classes probably in the writer's mind are the principal and the
money actions.
PART III.—CONTRACT : LEG.AL PRECEDENTS.
85
order to the plaintiff to bring it forward again after the
termination of the precedent action; provided that where
the subsequent action is by the government for the recovery
of a money claim, the precedent action suspended until an
order for payment in the subsequent one shall have been
made.
Art. 26. If the defendant in a precedent action
has died or absconded and his patrimony is dispersed,
or he has become bankrupt and entered a friend's
house as a dependent, and then an action is brought
against his surety, the latter shall he ordered to pay the
debt, just as the debtor himself would have been; but if
^he debtor has suffered confiscation of estate or any heavier
punishment, no order of payment shall be made.i
Appended Xute. But the better rule would be that if
the punishment of the debtor was not connected
with'any act respecting the claim which is the
subject of the action, but was due to some other
fault, the surely should not he released from
liability.
-I/f. 27. If after the debtor has delivered up all his
property for the payment of his debts a residue remains
unpaid, and the surety ^ is sued for this, an order of pay¬
ment shall be made.
Art, 28. If the subsequent action is on a money loan,
while the precedent action is of some other sort, the former
shall be taken up and tried, notwithstanding the existence
of the precedent action. But if the precedent action is one
for land-eviction or shop-eviction and a subsequent action
is brought while the other is pending, the procedure should
be first, to make an order for eviction against the defendant-
tenant, if sufficient ground is shown, and then to summon
1. This probably repKsents the rule hitherto observed. 2. That
is, each surety would be sued by the proper creditor for the amount
of his claim remaining unpaid.
86
PRIVATE LAW IN OLD JAPAN :
28] the defendant again, with his surety,^ and tiy the second
case. If the action for eviction is the subsequent one, the same
procedure shall be observed, [the eviction action being first
disposed of]. This preference given to actions for eviction
is not witheut its disadvantage; because a house-manager,®
when he wishes to be relieved from any concern in an action
brought against one of his tenants, himself brings an action
for land-eviction or shop-eviction against the tenant without
any real reason [except the wish to free himself from such a
tenant]; ^ but actions brought in that way are never to be
taken up.
Art. 29. Action npon house-pledges or any other
[brought against a person already defendant in another suit]:
shall be heard [first], without regard to priority in time.
Art. 30. Where a precedent action is under delibera¬
tion by the Three Magistrates,* a subsequent action brought
before their judgment is given shall be temporarily rejected,
with instructions to the plaintiff to bring it forward again
after the precedent action is disposed of.
Art. 31. Concurrent actions shall be tried at the same
time ; and if two actions on money loans are brought against
• the same defendant, the order of payment shall fix a term
liroportionate to the combined amount of the two claims.
When an order of execution in bankruptcy is made, the
proceeds of the estate shall be divided proportionately to
the amount of the creditors' claims.
Art. 32. If an action for land-eviction or shop-eviction
is brought on the same day as an action on a money loan,
•
1. Ji-uke-nin, tana-iike-nin. 2. hjemmhi. See ante, No. 6. 3.
See No. 7, ante. Presumably the shops were leased on a short
term—one month, probably,—so that there would be little difficulty
in claiming the right to evict. 4. Sambugijo, a session of the Town,
Finance, and Temple Magistrates; possibly it formed an in¬
termediate tribunal, for certain purposes, between individuals.
Magistracies and the Chamber of Decisions; but the term may
be merely a popular name for the Chamber.
part iii.—contract: legal precedents. 87
the former shall be tried first, and eviction ordered [if the
case requires]; and the debtor shall then be summoned again,
to be accompanied by his land-surety or shop-sui ety,i who
shall then be heard. But as this priority given to the action
for eviction is often taken advantage of by a house-manager
who wishes to relieve himself from the annoyance of being
concerned in an action against his tennut,^ and such a one
often sues out without any real cause an action for eviction.
In such a case the Court shall investigate the facts, and, if
it is satisfied of the plaintiff's improper motive, shall [tem¬
porarily reject the action and] order him to bring it forward
again when the other action is disposed of.
Art. 33. Even after a debtor has been adjudged bank¬
rupt, yet, if there is a residue of his debts still unpaid [by
the proceeds of his estate], he shall be subject to suit
for its recovery whenever he shall again acquire means.
Art. 31. Actions against military gentry on a money
loan. [Here the procedure shall be:] First, an order of
payment within 30 days; then an order of instalment
payments (the instalment-amounts to be those of the earlier
practice twice a month at the Chamber of Decisions ; then,
if the amount of the instalment-payment made is deficient,
the Court shall send back the defendant's retainer'^ to his
official residence to obtain the amount and hand it over ;
upon default in this respect the defendant's Chief Seneschal ®
or other high official shall be summoned and reprimanded
I. Ji uhe-nin, tana-uke-nin; this man was responsible to the
house-manager for tlie character of the tenant (see Part II, as to the
necessity of tenants giving sureties) and apparently also for his debts.
2. A perusal of Part II and of the laws in Eudorff's Tokugaica-Ge-
tetzmmnilung will show that a certain responsibility was placed upon
the landlord for the acts of his tenant, and that it was very natural
for the former to resort t* the expedient here described. 3. See the
allusion in No. 28, 1, a)ite, to the decision of the chamber on this
subject in 1806. 4. Who appeared for his master. 5. A'oro.
88
PRIVATE LAW IN OLD JAPAN 1
No. 28] for the delay, or, if the defendant be a vassal of low degree,
a peremptory order shall be sent to his Chief o/ Bureau,
fellow-official, or family.^ In all cases, if the occasion
requires, the retainer undertaking defence on behalf of his
master nmy be sentenced to imprisonment.^ Such has
been the past practice with reference to military gentry, and
in the future it shall continue the same.
Art. 35. Actions on money-loans against a temple,
no-actor,^ or Government-merchant.^
These actions shall be treated in analogy to those against
military gentry, and a repeated failure by the defendant to
bring the proper instalment-amount shall be visited with
suitable punishment.
Aildendum. In Kwansei, III, 8 (September, 1791),'
my predecessor consulted the Temple Magistrate .about the
disposition of an action brought against a temple-incumbent
on a money loan received by his predecessor, who had been
punished for some offence [and forfeited his office]; and the
Temple Magistrate, Makino, Lord of Bizen, answered : That
the incumbent should be held liable if the predecessor had
used the seal of the temple on the instrument; while if he
had used his own seal, the proper person to sue was
the surety, not the successor ; That such has been the prac¬
tice, and so, if an incumbent borrows money under the seal
of the temple, with a recital in the instrument that the
money is to be applied to tbe repairs of the temple, the
debt is in fact that of the temple itself, and the proper
person to be responsible, after the dismissal of the
incumbent, is the successor in office. The above pre¬
cedent I was fortunate enough to find among our records.
But this ciicumstance rather perplexes me; according to
1. See No. 12, ante. 2. The retiiiner not only appeared for the
lord, but also went to prison for him, if necessary. 3. See Cham¬
berlain's "Things Japanese," s. v. "Theatre;" also the same
author's "Classical Poetry of the Japanese." 4. See No. 5. ante.
PART III.—CONTRACT : LEGAL PRECEDENTS.
89
the speciiil custom of the Zojo Temple, of the Jodo seet,i
all debts incurred by the branch-temples must be reported to
the chief temple and sanction be obtained, so that a debt
incurred without such report cannot be regarded as a debt
of the temple, and the liability cannot be transferred to any
subsequent incumbent even though an instrumeut is given,
under seal of the temple, reciting that the money is
borrowed for the use of the temple; although a transfer
of the liability is allowed wliere the instrument reads
■" transferable to the disciples of the debtor," though
even in this case not as a temple-debt. This custom of
that temple has often been pleaded in defence to actions on
money loans, and my predecessors, during and since the
period Bunsei (1818-1829), have often consulted the Temple
Magistrate on the subject, his reply being always that the
person to whom the liability should be transferred in such
a case is the debtor's suretj' or religious associate,® and that
where the surety has died or retired and there is no associate,
the creditor is without redress; so that in such cases it has
been customary to induce him to compromise.® Notwithstand¬
ing this answer of the Temple Magistrate, [it is not a desirable
rule, and], now that a general reform is to be made in our
methods of treating the various actions, it should be ordered
that henceforth all debts incurred by the incumbent of any
temple of any sect shall be regarded as those of the temple
itself and the liability transferred to the successor in office,
provided that the instrument bears the temple-seal.
1. The lar;;e temple in Sliiba Park, patronized by lyeyasu
and containing in its enclosure the tombs of several Shoguns.
2. Ho-riti (religious-relationship). The term is usually applied
to the relationship between an elder priest and those younger ones
(usually of an inferior grade of priesthood) who associate themselves
with him as his disciples. They form a company bound by this
■" religions relationship," and, as in the case of master and appren¬
tices among artisans, tlaere are certain pecuniary relations between
them, and a possibility of inheritance for the disciples. 3. See No.
■59, infra, (us well as No. 58) for litigation on this subject.
90
PRIVATE LAW IN OLD JAPAN :
No. 28] Appended Note. Although the various temples may
have customs of their own in regard to liability for
debts incurred by one who had died or been
dismissed from office, yet if such customs be
allowed to prevail, the proceedings of Courts
would be thrown into confusion. It shall
therefore be ordered, as you propose, that thence¬
forth, if an instrument of debt given by a temple-
incumbent recites that the money is to be applied
to the repairs or other expenses of the temple and
bears the temple-seal, the debt shall be considered
as that of the temple, and, notwithstanding the
pleading of any special custom, the liabilitj" shall
be transferred to the successor in office.
Art. 36. Actions on money loans against the Hongwau
Temples have been treated, since the decision of the Chambei*
of Decisions in Bunsei, X, 4 (May, 1827),^ in analogy to
actions against military gentry. But henceforth thej' are to
be treated in the same way as actions against ordinary
temples .2
Appended Note. In a former j-ear it was decided by
the Cliamber of Decisions that where a loan is
received by a superintendent, deputy, or retainer of
a Hongwan Temple, not on his own account, but
in the name and on the account of the 'J'emple, and
an action is brought against the official, it seems
unjust to make a 7-day indorsement of the com¬
plaint as in the case of ordinaiy temples ; so that
when a money action is broug^it against a Hongwan
Temple, the Court shall first summon the superiu-
1. See No. 16, ante. But no docuinent is there given which
indicates that the Chamber indorsed the agreement. However, both
tlie proposer and the annotators concur in attributing to it the
authority of the Chamber. 2. Presumably he means in respect only
to the mode of enforcing payment.
PART III. CONTRACT : LEGAL PRECEDENTS,
91
tendeiit, deliver the complaint to him, and order
him to make a private settlement, and, on failure
to procure a settlement, to forward an answer to
the Court. Henceforth the same practice shall
continue.
Aft. 37. (1) Money loaned on house-pledge ;
(2) Wages of domestic servants ;
(3) Hiring of pledged-land ; i
(4) Hikimake f
(5) Permitting an escape;-'
The existing rules, in regard to those five sorts of
action are sufficiently minute and strict, so that no alteration
is necessary, and such actions shall be disposed of as before.
Such are the results of my deliberations on the subject.
If there has been anj-thing omitted, I shall not fail to
investigate further and report thereon.
Year ot the Tiger, 10th month (November, 1842.)
Torii, Lord of Ivai."
3. Eeport of a Conmltation reapevtitoj the Ueform projmeil
by Torii, Lord of Kai.
Submitted by the Temple Magistrates, Abe, Lord
of Totomi,^ and the Finance Magistrates.
Dated Tempo, XIII, 12, 5 (January 5, 1843).
"In the 11th month of this year we submitted our
opinion in regard to the reform proposed by Torii, Lord
of Kai, in regard to the method of treating actions on
1. Shichi-chi honahu. For the nature of this litigation, see Part
VI. 2. The meaning is^unascertainable. 3. ; perhaps an
action for aiding an escape. But the compilers, in a note, state that
the term belongs to criminal procedure. 4. The other Town Magistrate.
92
PRIVATE LAW IN OLD JAPAN :
No. 28] money loans, our opinion being to the eflect that we were
on the whole opposed to the changes suggested and wished
to make no change in tlie existing law ; hut you replied to
us in your letter that the present laws and usages, so far as
they exist, are so imperfect and ineffective that debtors often
take advantage of them to evade their obligations, and that
consequeutlj' there is delay in the conduct of suits and the
money-circulation is seriousl}' obstructed ; so that in the
present state of affairs, what is most needed is to facilitate
the settlement of all litigation as speedily as possible and to
secure to every creditor Ihe certain satisfaction of his claim ;
and you instructed us to deliherale once more on the subject.
Now, generally speaking, a contract of money loan is made
with mutual trust and friendship on the part of creditor and
debtor, so that it seems hardly proper to treat strictly accord¬
ing to the rules of law an action brought to enforce such a
claim. If we remember this, it is easy to see the propriety of
the present mode of ti'eating such actions, which is, first, to
order the parties to make a private settlement, then, upon a
failure to do so, to order payment by the defendant within a
term of days, and on default, to pay it by instalments, and,
finally, if even this is not done, to issue an order of execu¬
tion in bankruptcy, or, if necessary, to inflict some punish¬
ment ; or in case the debtor is of the priesthood or military
gentry, to stop with the order for instrument-payment, since
execution cannot he ordered against such a person. On the
other hand, the question of the money circulation is of
vital importance to all the townspeople, who transact
their business solely by the agency of money. We see
that, if indeed the whole principal is not lost, there is
great loss of time and mone}' in having their claims paid
hack little by little in instalments, the natural consequence
being that they avoid lending money as much as possible.
It need hardly he said that from this point of view the
system of instalment-payment should he abolished iu
commercial transactions, so far as the interest of the creditor
PART III. CONTRACT : LEGAL PRECEDENTS.
93
is concerned. But let us look at the matter from the debtor's
side. He borrows money in order to set himself up in
business or to rescue himself from pecuniary difficulties, aud
he has simply himself to blame if, after applying the money
in this way, he cannot pay, and execution in bankruptcy is
issued against him. Moreover, though now bankrupt, he
has ample opportunity of acquiring means again by future
efforts. For these reasons there would be notbiiig harsh in
abolishing the system of instalment orders, and in providing
for the issue of execution in bankruptcy without any in¬
termediate steps,—that is, so far as concerns the interest
of the townspeople, aud even of those villagers who make
trade their special occupation. But we cannot apply the
same principle to those villagers who follow a trade (as the
case is with most) in the hours not devoted to their chief
occupation, husbandry. If to such a person we refuse the
leniency which the instalment system offers and subject him
iuexorably to the process of bankruptcy directly upon default
at the end of a specified number of days, he is forced inevit¬
ably to sell off his plot of land—the patrimony of genera¬
tions—and then (especially when he has no well-to-do friends
to look to for help) either to become a day-laborer, or, worst
of all, to abandon his native village aud follow the
life of a vagabond, without means of support and with¬
out shelter for his head. The consequence of such
failures is that the [working] families of the villages
decrease in number and the extent of land lying idle is
increased. If what we have said is correct, it results that
the process of execution in bankruptcy [without tbe inter¬
mediation of instalment-payments] is not suitable for
enforcing money claims against villagers. But we do not
think that any exception should be made for that class of
debtors. First, it would result in non-uniformity of
practice if we employed different processes in similar
actions according as the defendant was a townsman or a
villager. Second, the method of instalment-payments, as
94
PRIVATE LAW, IN OLD JAPAN :
No. 28] already stated, tends to obstruct the money-ciiculation; for
by an order of the current year of the Tiger, 9th month
(October, 1842),i the rate of interest was fixed at 1 hu per
25 ryo [per mouth], which has prevented the creditor from
charging a high interest to compensate his risk [and there¬
fore the creditor is dejirived of the means he has of making
up for the uncertainty and tediousness of the instalment-
system.] These considerations are in our opinion strong
enough to require the entire abolition of the instalment-system.
Nor are we without a precedent, for the current practice in
the Court of Osaka is to issue execution in bankruptcy after
a specified number of days, without ordering the intermediate
series of instalment-payments. Acting on the same principle,
we may reasonably determine to abolish the system of
instalment-payments in money actions, so far as townspeople
and fiiriners are concerned.
The considerations we have mentioned have already
been discussed in the Proposal of Torii, Lord of Kai (which,
we believe, was based in this respect on the above-mentioned
process of the Court of Osaka); but we have none the less
ventured to express our opinion on this and other points
in the present comments to his Proposal, because the subject
is one of the utmost importance. We trust that if you
establish a new law on the subject you will adopt the
conclusion above stated [as to the abolition of instalment-
payments] ; in that case creditors would henceforth have
nothing to fear in regard to the recovery of their money, aud
debtors would not unreasonably delay payment, since on
default after a specified number of daj's the debtor would
immediately be subjected to executioniin bankruptcy and be
obliged to deliver over his property; and as a consequence the
money circulation would became active. If this proposition
of ours meets your views, we shall investigate the subject
further and shall attempt to prepare tlie draft of an order.
1. See infra, iu the Section on " Interest." The order was dated
Tempo, XIII, 9, 2J.
PART III. CONTRACT I LEGAL PRECEDENTS.
95
Tbe above document contains the results of our deliber¬
ations at our second meeting. We return your letter and
the other two documents which you sent to us.
Year of the Hare, 4th month (May, 1843).
4. Pecinion hij the Council of State.
" Year of the Hare, (June 22, 1843)
5th month, 25th day.
Handed down by the Lord of Echizen.^
Memorandum.
Your draft in relation to the reform of proceedings in
money actions shall be accepted as it is, with those changes
only which we have noted upon it, and we have instructed
the Temple Magistrate to notify the proclamation-officers ^
that hereafter all money actions against temples are to be
tried, not, [as heretofore], according to their special
customs, but in the same manner as actions against other
defendants."
5. Appended Note, hp Tocii, Lord of Kai.
" I respectfully acknowledge the receipt of your
instruction that my draft, relating to the reform
of proceedings in money actions and forwarded
recently to yon, is to be accepted iis it is, with
those changes only which you have noted upon it.
I acknowledge also the receipt of your instruction
to the Temple Magistrate to notify the proclama-
1. Mizuno, Loi'il of Echizen, the Councillor of State presiding
during the current month. He was one of the best known Council¬
lors of the century. 2. Fure-gasliira. These seem to have been the
subordinate judicial administrative officers under the Temple Magis.
trate. Disputes between persons under his exclusive jurisdiction were
first brought before them. Each temple is said to have had afiire-
gashira, and there were others who dealt with certain classes of
persons,—fortune-tellers, outcasts, etc.
96
PRIVATE LAW IN OLD JAPAN I
tion-officers that hereafter all money actions
against temples are to be tried, not [as heretofore]
according to their special customs, hut in the same
manner as actions against other defendants.
5th month, 25th day (June 22, 1843).
Torii, Lord of Kai."
liesoli(tio7i of the Chamber of Decisums as to the method
of disposhuj of Actions before it after the Beform in
the proceedings in Money Actions.
" Tempo, XIV, Hare.
We, the members of the Chamber of Decisions, ha%*e
passed the followed Resolution in regard to the method of
disposing of money actions, in conformity with the reforms
of practice lately made and promulgated.
(1) If after both parties have appeared on the ap¬
pointed dayi and suit has been joined,2 their allegations^ da
not raise an issue ^ [as to the existence of the claim],
the [Court] ^ shall inspect their written jileadings,® and then
dismiss the parties temporarily, afterwards summoning them
before the Chamber of Decisions on a vacant one ^ of the
1. SasM-hi, the 7th day often spoken of as appointed by the
indorsement of the judge. 2. Kuji (action)-ait-ase (join, confront);
the parties probably appeared together and were confronted. 3.
Moshi-kiiclii; this signifies their statements qua assertions. 4. Lit.,
meet in one point. 5. The process apparently was for the parties to have
their respective allegations written down (kuchi-gaki) by a clerk of the
Complaint Bureau (this may be the meaning of kuchi-gaki-tori, p. 107,
in fra ; for it is unlikely that the parties would venture to write their
pleadings themselves); they then appeare^and were confronted, the
debtor admitting the existence of the claim, and the Court (appar¬
ently the Magistrate with whom the action had been entered), after
examining the pleadings, appointed a day for judgment. 6. Kuchi-
gaki. 7. Cho-gicai (outside the book). Book-days were apparently
the fixed days (4th and 21st) already mentionel (No. 5, atite); these
would probably be used for trials of disputed issues; and the judg¬
ments in undisputed eases would be appointed for some one of the
vacant days set apart for money actions.
No. 28]
5.
PART III.—CONTRACT : LEGAL PRECEDENTS. 97
money-action clays,i and shall [then] make an order for the
payment of the claim within a term double that in case of a
house-pledge action, the length of the term being propor¬
tioned to the amount of the claim.
Addendum. Form of the written pleadings. The
defendant shall concisely make in writing 2 the following
statements as his written pleading: The circumstances
under which the debt was incurred; the amount already
paid; the wording of the instrument of debt; and the
undertaking to submit to whatever order of payment may
be made. The plaintiff shall, as his written pleading, state
on the same document, next to the defendant's pleading,^
that he has no objection to make to the statements of the
defendant, and that he hopes for judgment accordingly. If
the written pleadings are in the above form and there is no
irregularity in it, the proceedings abcve described shall be
taken as of course, without any consultation ^ or any oral
report.5
(2) Term of payment. ' If the unpaid arrears are
less than 100 rijo, the term shall be double the term settled
by the regulations for the equivalent amount in a house-
pledge action; hut if it is over 100 ryu, the term shall be
settled by the Court.' This being the provision of law, we
hereby accordingly fix the following schedule :
1. Kane-kuji-bi. 2. This does not in the original necessarily
imply that the defendant wrote the statement; he may have made
the oral statements, while the clerk reduced it to writing. But it
is certainly open to doubt whether the clerk did the writing.
3. The plaintiff had already filed his meyasu or complaint;
hence the next in order would be the defendant's kuchi-gaki, and
then the plaintiff's response. 4. Presumably referring to the act of
laying the case before the other judges for general deliberation.
5. Yenzetsu, the general term for a spoken address. Here the distinc¬
tion between a written reference and a mere oral reference seems to
be intended. Sho (letter) usually occurs in the term for " consult¬
ation."
Vol. XX. Sup. Pt. iii.—7.
98
PRIVATE LAW IN OLD JAPAN ;
No. 28]
Amount.
100-200 ryo
200-300 "
GOO-1000 "
Term.
400 days
600 "
650 "
If the amount exceeds 1000 ryo, the term shall be
about 2 years, or double that fixed by the order
[relating to house-pledge actions], which is 12
mouths, an intercalary month being reckoned as
one month. In extraordinary amounts the term
shall be determined by the Chamber on delibera¬
tion in each particular case.
(8) If, after judgment rendered as above, [ordering
a term for payment], the parties [appear at the Magistrate's
office and] declare that payment has been made, they shall
be sent to the Chamber of Decisions, where an entry of
payment shall be made.^ Where the debtor, by paying the
greater part of the claim at the expiration of the term,,
entitles himself to a supplementary term,^ or where the
debtor, in case of a failure to pay, is sentenced to hand-
stocks, the Magistrate before whom the action is brought
shall proceed without oral report [to the other members of
the Chamber]. But if execution in bankruptcy is to be
ordered, he shall send the defendant [to the Chamber of
Decisions], appointing a vacant one of the money-action
days, and the order shall issue accordingly after an oral
report [by the Magistrate to the other membeis].
(4) The form of the submission-document ^ for an
order fixing the term of payment ^ shall be as heretofore.
But now that the system of instalment-payments has been
abolished as regards farmers and townspeople, there is no
1. Probably by a clerk. 2. See No. 28, 2, Art. 1, ante. 3. Vke-
sho7non, the acknowledgment and acceptance signed by all parties
upon judgment rendered. See the cases passim for examples.
4. Nichigen sumikata.
PART III. CONTRACT : LEGAL PRECEDENTS.
99
reason why in such cases the term-payment order i should
be delivered to the plaintiff as heretofore; so that those
already so given should be taken hack.
(5) An order for execution in hankruptc}' shall
contain the following statements: That the Court has
ordered the defendant to discharge the claim within a certain
term, but the defendant declares his inability to do so; That
this is against law and therefore the Court orders execution
in bankruptcy ; and, That the defendant, under supervision
of his local officials, is to sell his ricefield and upland,
residence-land, house, storehouse, family belongings, ^ etc.,
and deliver the proceeds [to the plaintiff]. This order
shall be addressed to the defendant and the local officials.
The following order shall he issued to the plaintiff: That
the Court has made an order as above to the defendant;
That the plaintiff shall therefore personally examine the
defendant's rice-field and upland, residence-land, house, store¬
house, family belongings, and, after they have been sold,
shall receive the proceeds. A submission-document shall be
taken from the parties, signing jointly, in acknowledgment
of these orders. Moreover, as it seems improper that the
deputy, feudal lord, or esquire in whose district the defend¬
ant is, should be without knowledge of the bankruptcy, the
Court shall summon beforehand ^ an attendant^ or clerk ®
of the deputy or a retainer of the feudal lord or the esquire,
as the case may be, and notify him of the order.®
1. Nichigen shomm; another name for the uke-shoinon used in
instalment-judgments. Apparently this document would be the
basis of subsequent suits for | delayed instalments, much as a
judgment is sued on with us. Hence, upon the abolition of the
instalment system, no suits of this sort would be necessary, but
an application for execution. 2. Tahata, yashiki, iye, kura, kazai.
The last term probably applied specially to the personalty. 3. That
is, in time for him tojre present at the judgment. 4. Tetsuki. 5. Te-
dai. 6. In cases passim will be found a recital that this has been
done.
100
PRIVATE LAW IN OLD JAPAN:
No. 28] Note, that the suhmission-docnment shall contain a
detailed statement of the course to he pursued in case the
proceeds of the sale exceed or fall short of the plaintiff's
claim.
(6) Actions for unpaid purchase-money due for 10 years
or more, and actions on an instrument of money loan,
renewing an old loan and making interest and original
principal the principal of a new loan or deposit,^ cannot,
according to the new law, be taken cognizance of in any
Magistrate's Court. In accordance with this rule no action
for unpaid purchase-money due before the year of the
Serpent (1838 or on instruments of loan renewed as above
are to be taken up; actions of the sort now pending are,
after investigation, to be dismissed, and after an oral report
[by the Magistrate to the members] an order for private
settlement shall be made, stating, moreover, that no certificate
of discharge ® need be filed [by the parties with the Court].
The above rule shall apply wherever one complaint contains
several causes of action, of which some only are of the
above nature.^
Note, that cases forward by preliminary-seal [of a
single Magistrate],® if the action is for unpaid purchase-
money overdue for 10 years or on a loan-instrument
improperly renewed as above, (the fact to be ascertained by
inquiring of the plaintiff") shall also be subject to the above
rule. Moreover all [pending] complaints [in such actions],
except complaints for more than one cause of action,® shall
he taken possession of and the indorsements cancelled."^
1. See No. 28, 2, Arts. 9, 10, ante. 2. Tempo HI, ten years
before. 3. Sumikuchi shomon. i. That is, the individual causes of
action of this sort shall be rejected. 5. Shohan. See No. 13, ante.
The passage makes special mention of these cases because the main
section referred only to cases before a single Magistrate. 6. Mawari
(going around, circulate)-m€j/asu. The above seems the most
plausible rendering. 7. The proceeding where a case was finally
settled.
PART lU. CONTRACT : LEGAL PRECEDENTS.
101
Furthermore, if in any ease a determination of the fact on
which, as above, its validity depends cannot be reached
merely upon the plaintiff's assertions, a joint-pleading ^
shall be ordered for the purpose.
(7) If in any action judgment has been given and
instalment-payments ordered, and the instalment-terms have
begun to run, no order of execution in bankruptcy is to be
made and the case shall be disposed of according to the old
practice.
Note, that even though the action be for unpaid
purchase-money overdue for 10 years or for a loan impro¬
perly renewed, yet, if an instalment-order has been made,
the judgment shall continue to be enforced, as just stated.
Actions tried in Private Session ^ before a single
Magistrate and actions summarily disposed of [by a single
Magistrate] 3 shall be subject to the above [rule].
(8). Actions against military gentry. If after service
of the complaint no private settlement takes place and
notie'e of this has been given [to the Court], both parties
shall, as heretofore, be summoned before the Chamber of
Decisions, and after an examination of their pleadings, shall
be ordered to make a private settlement; if that is not done
within 60 days, then judgment shall be given. But if
there appears no probability of a private settlement, the 60
days' delay may be foregone, and, for example, the joining
of suit ^ may occur on the 4th day of a given month and
the judgment be rendered on the 21st of the same month,—
this proceeding being in accordance with the Resolution of
the Chamber in Bunkwa, III (1806).®
TaikeUu. 2. Uchi-yorini; on this day probably the chief
clerks were present in consultation with the Magistrate. 3. Te
(himdj-ka^iri (all, finish). Here again we must guess; but the
two terms seem to complement other each; the Magistrate doubt¬
less settled the majqfity of the cases without leaving his seat, or
else the clerks disposed of the case. 4. Kxtji-awase. 5. No. 102, 4,
pout.
102
PRIVATE LAW IN OLD JAPAN t
No. 28] Note, that the rate of interest shall be the same as
that already settled in the year of the Tiger when the
Proposal was made.^ But in these cases where payment
has already been ordered at the old rate, no change shall
be made.
Decided as above."
^'Appended Note. Where rice-field or upland, residence
land, house, or storehouse is in pledge, I think that we
had better order the pledgor to settle the matter, so far as
concerns that article, with the pledgee, and that the pledgee
should be directed to do so.
The Lord of Totomi." ^
7. Proceedings in the two Toum-Maijistrates' Courts in
repard to Money-Loan Actions before them,
a. "Tempo XIV, Hare, 6, 5 (July, 2, 1843).
To the Lord of Totomi,® '
from Torii, Lord of Kai.®
The men of my Department^ consulted the men of
your Department in regard to certain methods of proceed¬
ing in the two Courts in money-loan actions, and your men
returned an answer to ours, which has been shown to me.
I therefore enclose herewith seven documents,® embodying
1. 1813: the current year. See iufra, in the chapter on
"Interest." 2. Tliis Note seems to have no force as a part of
the Resolution, and possibly is misplaced. A subsequent case
deals with its subject and shows that Ms rule did not obtain.
3. Both of these were Town Magistrates, but which was in the
North and which in the South cannot be learned. 4. Ktmii. One of
the two Magistrates' Offices. 5. These important documents do not ap¬
pear, and have probably been lost. It would be natural to supiiose that
the next document but two (7, <1) is one of them ; but there is nothing
to indicate clearly what the source or place of that document is.
It would seem that there was a Trial Bureau in each Magistrate's
Court as well as in the Chamber.
PART III. CONTRACT : LEGAL PRECEDENTS. 103
the answer of your men, and beg the favor of your opinion
thereon.
Year of the Hare, 6th month."
b. Answer to the above, by the Lord of Totomi.
" I acknowledge the receipt of your letter and beg to
say that I have examined and approve of the documents
you send. In regard, furthermore, to the inquiry recently
made by [your] Trial Bureau to their colleagues [of my
Trial Bureau] in regard to second trials of money actions
and the payment of interest on investment advances in
purchases of timber and fresh fish,i I shall instruct them
to proceed as stated in the letter. As to when the late
reforms are to go into effect I shall expect to have further
notice from you. 2 The documents you enclose being copies
only, we have not returned them.
Year of the Hare, 6th month."
c. lieply from the Trial Bureau of the Lord of Kai.
" To Tojo Hachidayu,
Nakajima Kayemon,
from Hara Tsuruyemon,
Ando Gengozayemon.3
We have examined your letter and beg to say in
regard to your inquiry, that we shall inform you to-morrow
as to the date of the late reform going into affect. At
present proceedings are being governed by the old law.
6th month."
d. [Inquiry by the Trial Bureau* ]
(1) "Art. 9 of your 5 Proposal:® Actions upon claims
1. See infra, No. 28, 9. 2. Apparently the Court addressed was
the one having the presiding authority in this month. 3. The first
two are in the Court of the Lord of Totomi. 4. It is impossible to
tell certainly the source of this. 5. This would indicate that the
addressee is in the Court of the Lord of Kai. 6. See ante, No.
28, 2.
104
PRIVATE LAW IN OLD JAPAN ;
No. 28] existing before the Nnllificntion order of Kwansef
IX (1797) shall he taken up and adjudicated if the
defendant admits the fact of the borrowing, no-
matter how many years have elapsed between the
conclusion of the contract and the bringing of suit-
But sometimes this interval is so long that the
accumulated interest has come to exceed the princi¬
pal, and sometimes one who is dunned for a
liability of a parent or other ancestor is forced,
in order to avoid a suit, to acknowledge the claim
and renew the liability in his own name by an in¬
strument of loan of deposit; in these cases, after
investigation, the Court, if it is a case of the interest
on an old debt exceeding the principal, shall order
the interest to he reduced to the amount of the
principal, or, if it is the case of an ancestral debt
or of a claim outstanding for 10 years or more, so
that compound interest has been reckoned and the
debtor has renewed the entire amount in a new
instrument of loan or deposit, shall order a private
settlement without giving judgment.'
Paihrir. Now the foregoing article is occupied with
two subjects, claims in which the interest exceeds in
amount the principal, and claims in which the instrument
has been renewed by an instrument of loan or deposit. Yet
this distinction does not appear to he consistent with the fol¬
lowing Eesolution of the Chamber of Decisions: ^
' Resolution of the Chamber of Decisions, Art. 6:
Actions for unpaid purchase-money due for 10
years or more, and actions on an instrument of
money loan renewing an old loan and making inter¬
est and original principal of a new loan or the princi¬
pal deposit, cannot, according to the new law he-
taken cognizance of by the Magistrate. In accord-
1. See No, 28, 6, ante.
PART III.—CONTRACT ; LEGAL PRECEDENTS. 105
ance with this rule no unpaid purchase-money due
before the year of the Serpent (1833) or on instru¬
ments of loan renewed as above are to be taken
up ; and actions of the sort now pending are,,
after investigation, to be dismissed, and * * an
order for private settlement shall be made, stating,
moreover, that no certificate of discharge need be-
filed, etc., etc.' "
Appended A'ofc.i "It is true, as you state in your
letter, that although Art. 9 of our Proposal deals with two
classes of claims, yet the recent Order ^ and the Resolution
of the Chamber do not mention the former of the two-
classes. But, although we are to paj- due respect to that
Order and Resolution, yet, if a case comes up which belongs
to the former class of actions, we think that we may avail
ourselves of the reply of the government to our Bill, which
states that the latter is to be accepted as it is written,
except in the points covered by the Appended Notes, and
that we may therefore proceed according to the terms of
the Proposal [providing for the two classes of actions.] "
(2.) ' Where the claim is one outstanding for 10 years
or more, so that compound interest has been reckon¬
ed and the debtor has renewed the entire amount
in a new instrument of loan or deposit, an order
of private settlement shall be made, without giving
judgment.'
Eidmc. But in actions now pending in which the
parties have reached an amicable agreement and the payment
of the claim is progi'essing, there may occur cases [falling;
under the above article,] in which compound interest has
been reckoned and the instrument has been renewed. In
such cases what course is to be followed ? Are we to treat
1. By tlie addreaaee of the Inquiry. 2. This is wanting; but
seems to have been an enacting order or a proclamation embodying
the terms of the reform.
106
PRIVATE LAW IN OLD JAPAN :
Kg. 28] the claim as governed by the above 6th article of the
Resolution of the Chamber of Decisions ? ^ Or, as seems
to us preferable, shall we make no special inquiry into the
facts, [as would be necessary before determining on the
dismissal of the action under the above article], and con¬
tinue to enforce the payments agi-eed upon by the parties,
making an order for the production of accounts ^ and issuing
the proper orders ? "
Appended Xote.^
" As regards your inquiry, our opinion is that all actions
on money loans in which compound interest has been
reckoned and the instrument renewed, whether the parties
have or have not reached an amicable agreement and filed
a certificate to that effect, should be dismissed, in accordance
with the Resolution of the Chamber of Decisions." *
8. Uesolutiuii of the Trial Bureau^ in reijard to Pro¬
cedure.
a. "Tempo XIV, Hare, 6 (July, 1843.)
A reform having been effected in the method of dis¬
posing of actions on money loans, we, the members of the
Trial Bureau, have agreed among ourselves as follows, in
respect to our own procedure in such cases :
(1.) It has been customary, in actions not coming
before tbe Chamber of Decisions but tried and adjudicated
in either of these two Courts, when the parties have produced
1. The article as quoted is the 9tl^f the Proposal; but the
writer has evidently had in mind the corresponding article of
the Kesolution (Art. 6), which is in effect the same. 2. That
is, the payments made from time to time under the composi¬
tion. 3. By the addressee of the Inquiry. 4. It would seem
better to have regarded the case as governed by the analogy of the
article of the Resolution, providing for the enforcement of such
actions where an instalment-order had already been made. Compare
No. 28, 9, infra. 5. Of the Lord of Kai's Court.
PART III.—CONTRACT : LEGAL PRECEDENTS. 107
their written pleadings, ^ to try and decide numerous actions
at one time;2 but this practice tends to produce great
confusion of mind [in the litigants,] especially those who
are unacquainted with the methods of litigation, and to
beget distrust in the minds of creditors, the natural result
of which is seen in a diminished money circulation. We
therefore propose, by way of improvement, beginning with
the ensuing 13th day of the month, to try in each day only
6 or 7 cases, including both new and old. This is not
intended to be a permanent regulation, and the above
number will be increased from time to time.
(2) In actions coming before tbe Chamber,^ after both
parties have been summoned and their written pleadings
provisionally examined by the Trial Bureau, the case shall
be laid before the Chamber, by transmitting the report of
tbe examination 5 and the proofs.
Note, that the precise procedure in laying the case
before the Chamber and the form of the certificate® shall as
before be settled by the Bureau of Complaints.''
(3). If, in actions before the Chamber, a private
settlement is made at the time [that the case is being
•examined], the settlement shall be, as before, approved by
the Chamber.
(4). Actions brought against residents of a village less
1. Kuchi-gaki-tori. Here lori, from signifying the act of taking
down the statements, has come to mean the document itself. 2. This
means probably that new cases were begun before pending ones were
finished. 3. Shinki-ktiji, ko-hiji. The former were actions entered
but not beard ; the latter, actions partly heard. The " including "
seems to mean that the old cases would be gradually disposed of
aud still some progress would be made by taking up new ones.
4. Hyojo kuji. 5. Torixhirabe-kuchi-gaki. The proofs were pro¬
bably, as casespassiwi indicate, the written statements, documents, etc.,
obtained by the Tria>Bureau on examining the parties. 6. Tegata.
■7. Meyasu-kata; of the Chamber or of the Magistrate's Office, pro-
•bably the former.
108
PRrV'ATE LAW IN OLD JAPAN :
No. 28] than 5 ri from Yedo, the complaint in which has been
indorsed by the Magistrate [with whom the suit is entered]
shall be laid before the Chamber and adjudicated in the
manner above stated.
(5). Actions within the jurisdiction of either of the two
Courts. Of those actions at present pending before either
of the two Courts,! about 5 shall be tried each day, the
parties being summoned [with this arrangement in view];
for the purposes of rendering judgment the Court may
order the production of the account books of the parties,
or the drawing up of an instrument of settlement,® when the
defendant pleads that that amount is too large for him to
pay immediately but that he will pay it in a short time,
and the instrument of settlement shall be approved as
before.
(6). The same subject. Actions newly entered and
not yet taken up^ shall, as already stated, be tried in
order, one after another,^ the parties being summoned and
production of the account books being ordered.
As regards actions against military gentry, we have
compared and deliberated upon the decision of the Chamber
in Bunkwa, III, (Tiger), 7 (August, 1806),® the decision
of the Private Session in the same period, IV, (Hare), 6-
(July, 1807),® and the recent decision of the Chamber,
and we recommend as follows ;
(7). In actions against military gentry, when, after six
months, the parties produce a certificate of disagreement,^
and the case is sent down [by the Chamber to the Trial
1. These are the " old " actions referred to in par. (1). 2. Su-
mihichi sJiomon. S. Shinki-hiji. 4. Thus the 5 old actions and 1 or
perhaps 2 new ones make the " 6 or 7 " of par. (1). 5. See No. 102,
4, infra. 6. See No. 102, 5, infra. 7. Hadan-sho. This was required
as evidence that the case so far could not be settled privately and was
therefore ripe for the Court's attention. The " six months" was ap¬
parently the regular interval ordered for the purpose of compromise
in actions against military gentry. See No. 12, a«fe.
PART III. CONTRACT : LEGAL PRECEDENTS. 109
Bureau], the Bureau shall try the case twice,^ and, if in the
interval a private-settlement is reached, shall, as before,
•order [the parties] to request leave to withdraw.
(8). If a priyate settlement is not reached, [the
Bureau] shall, after trying the case twice, order the parties
to make out a certificate of disagreement, and shall send the
■case up, through the Bureau of Complaints.
Note, that the process of sending the case up to the
■Chamber shall in every case be managed by the Bureau of
•Complaints.
(9). If in the action thus sent down to the Trial Bureau
there has already been a joint-pleading ^ before the Chamber,
[the Trial Bureau] shall summon and examine the parties,
•and set forth to them the merits of the case,^ and, if then the
parties petition for leave to withdraw,^ permission shall be
given, as before.
(10) If a private settlement is not made, [the Trial
Bureau] shall try the case within 60 days, and if it can¬
not be disposed of within that time,® shall take up the
proofs [from the parties], and send the case up [to the
Chamber], through [those members of] the Bureau of
-Complaints who originally took down the written pleadings
•of the parties.®
Note, that the process of sending a case up to the
Chamber shall in every case be managed by the Bureau of
Complaints, as before.
The above is the result of our deliberations. We have
obtained the sanction [of our superior for them]; and he has
1. Apparently in effect two efforts to bring about a compromise.
•2. Taiketsu. 3. Ei (advantage)-<7at (disadvantages); the various con¬
siderations bearing on one side or another. 4. The Japanese idea is
that both should join in the instrument. Compare the custom of
having both parties sign an acknowledgment of the judgment.
5. That is, if the parties refuse to compromise or accept the deci¬
sions reached by the Bureau. See (8). 6. Kuchi-gahi-tori.
110
PRIVATE LAW IN OLD JAPAN :
No. 28] instructed us to consult our colleagues of the other Depart¬
ment."
h. Answer of the Trial Bureau.
"We beg to reply that the Lord of Totomii has
examined your report, and has declared that he has no
objection to make. We shall henceforth act in accordance
with its terms.
Dated 6th mouth.
The Trial Bureau."
9. Inquiry of the Trial Bureau^ in reyard to money
Actions.
Dated Tempo, XIY, Hare (1843.)
" (1.) With reference to the mode of pi'oceeding where
a money action ^has been brought, but the parties havo
made a private-settlement and have handed in an instru¬
ment of settlement, and the cause has again been brought
before the same Court,^ we fiud the following clause in the
decision of the Chamber : 'If in any action final judgment baa
been rendered, then, even though the action be for unpaid
purchase money due for more than 10 3'ears, or upon an
instrument of loan in which the original principal and
interest have been re-written as the principal, the old
rule shall obtain [and the case shall not be re-tried or
enforcement of payment be refused because the new rule
refuses to entertain such actions]Our question is whether
we may not by analogy apply this rule to the case above
mentioned of an action being renewed?
(2.) It has been decided® that the interest of 8 rin
1. The other Town Magistrate. 2. In the office of the Lord of
Kai. 3. Kingin-deiri. 4. Probably to enforce payment of an in¬
stalment. 5. See Art. 7, in the Kesolution, ante, No. 28, 6. 6. See
Art. 12 of No. 28, 2.
part iii.—contract: legal precedents. Ill
per day formerly payable on advances ^ for dried sardines
shall no longer be sanctioned. May we not by an.alogy
apply the same rule to the interest on the investment-
advances ^ for timber and fresh fish?
We beg to make inquiry on these points. 3
Hare, 6th month (July.)
Rubric. Though we have received no special answer
to the above inquiry, still the matter is determined by the
inquiry already made by the Lord of Kai to the Lord of
Totomi.i "
[No. 29] Disposition of Moncij Actions.^
Dated Tempo, XIV, Hare (1843).
1. " Claims to be treated after the analoijy of house-
pledye loans.
(1) House-pledge loans ;
(2) Loans on pledges of reliable property;
Rubric. But if there is no counter-seal of the ward-
officials, relatives, and [ward]-representatives, these are to
be treated like [ordinary] money loans.
Appended Note. Besides these, " liability-money " ® and
1. Shiire-zenkin. 2. Zenkin; apparently the same as shiire-
zenkin, money advanced by the wholesale dealers to the producers as
capital; interest had formerly been charged on it, for which see the
Section infra on " Interest." 3. Probably to one of the Magistrates.
4. See No. 28, 7, p. 103. 5. This is probably a Besolution of the Cham¬
ber summarizing for reference the results of the reforms of No. 28 as
regards the classification of actions. It is No. 38 in the original
compilation, but it evid^tly belongs in this place. 6. Hiki-oi kin.
This is obscure; but possibly may be an undertaking to make good a
default or injury.
112
PRIVATE LAW IN OLD JAPAN:
No. 28] other [similar claims] sanctioned by law are to be treated as
prescribed in the other document.i
(S) Bills of exchange :
Eubric, But if they bear interest, they are to be
treated like [ordinary] money-loans.
(4) Building-money;
(5) Remittance-money;
(6) Sundry-expense money
Rubric. But if it bears interest, it is to be treated
as above stated. For other particulars, reference is to be
made to the Appended Note in the other document.
(7) Money granted.^
(8) Money deposited.
(9) Exchange-money.
(10) Character-security money.
Rubric. But if it bears interest, it is to be treated
as above stated.
(11) Yearly-instalment money ;
Terms of payment for these classes of claims :
Amount. Term.
30 ryo or less 40 days.
80 njo or more 60 days.
50 ryo or more 80 days.
100 ryo 150 days.
More than 100 ryo, the term to be settled by the Court
in each case.
1000 ryo or more 12 months, in-
[cluding an intercalary month.
2. Claims to be yicen double the term house-jiledye loans.
(1) [Ordinary] money loans ;
1. The compiler thinks (and rightly) that this " other docu¬
ment" is the proijosal of No. 28. 2. See No. 28, Art. 17. 3. See
-No. 28, 2, Art. 20.
PART III. CONTRACT ; LEGAL PRECEDENTS.
113
(2) Temple-fund loans;
(8) Patent-fund loans;
(4) Loans on hypothecs ;
(5) Loans on behalf of another ;
(6) Loans for taxes paid in advance ;
(7) Wages for labor ;
(8) Earnest-money;
(9) Dowry money;
(10) Unpaid purchase-money;
(11) Investment-money;
(12) Money loaned on deposit of miscellaneous utensils ;
(13) Money loaned on deeds of sale of miscellaneous
articles;
(14) Ground-rent;
(15) Shop-rent.i
Terms of payment for these classes of claims :
Amount. Term.
80 ryo or less 80 days.
80 ryo or more 120 days.
60 ryo or more 160 days.
100 ryo or more 800 days.
1000 ryo or more. 24 months, in-
[cluding an intercalary month.
[No. 30] Memorial in regard to Money Actions.^
1. Proposal.
" (1). Money actions before us have recently increased
to such an extent that, if we are to try all of them, as we
do now, the Court days of the Chamber (the 4th and 21st of
every month) will be occupied with those actions exclusively.
1. For all the preceding terms, see No. 28, 2, ante. 2. Kingin-
deiri. Cited from " Kajoruiten." The document bears no date.
Vol. XX. Sup. Pt. iii.—S.
114
PRIVATE LAW IN OLD JAPAN I
Ko. 28] and no others can be heard; moreover, as a result of this, i
the morals of the Chamber may degenerate.® We therefore
propose that all actions on money loans, unpaid purchase-
money, etc., in which the Chamber or a Magistrate has been
accustomed to order a term of payment, shall be tried and
adjudicated only twice in each year, that is, once in the 4th and
once in the 11th month. This, we think, will lighten
the burden of the Chamber. Moreover we observe that
when, some years ago, a Private-Settlement Order was
issued for all money actions, and no such cases were heard
by the Magistrates, no inconvenience resulted. For these
reasons we make the above proposal.
(2). However, actions for domestic servants' wages,
house-pledge loans, loans on reliable security, loans evi¬
denced by a deed of sale, and rent of land or shop (which are
like rent of cultivated land 3), shall be tried and adjudicated
as at present and a term of payment fixed.
2nd month."
2. " We acknowledge the receipt of j'our order in¬
structing us to establish the law as stated in our proposal.
Year of the Dog, 3, 9.
Chamber of Decisions, Full Session."^
[No. 31] Memorial in regard to Moneij Actions.
1. Proposal.
" We have received your instruction sanctioning our
1. The entertaining of money actions. 2. A not unnatu¬
ral notion for samurai. See Dr. Knox's " A Japanese Philo¬
sopher," Trans. Asiat. Soc. Jap., 1892, passim. 3. Nengu. 4. It
is possible to make a guess at the date of this document, which
is a memorial laid before the Council of State by the Chamber. The
interesting question is whether it comes after the Tempo period
and thus indicates an unfortunate retreat from the reforms then
PART III. CONTRACT : LEGAL PRECEDENTS. 11&
recent memorial and requiring the Magistrates to express
their opinion as to whether, when a judgment has been
rendered in the 4th month, the parties shall appear again in
the next 11th month and report as to the partial or entire
accomplished. It would seem rather that the date is somewhere
before the middle of the previous century. In the first place, the
spirit of the document is more characteristic of the samurai officers
before they had been trained by generations of judicial experience.
The Chamber had been established only in the middle of the 17th
century. Morever, it is difficult to believe that the enlightened con¬
sideration of the people's needs shown in the documents of No. 28,.
ante, should have been succeeded by a spirit as inconsiderate as that
of this document. Second, the reference to the Private-Settlement
Order of " some years hgo " indicates that there was but one such
order in the minds of the writers; if they had written in the 19th
century, at least three should have come to mind and some distinc¬
tive naming of the one indicated would have been made. The re¬
ference also implies a personal acquaintance with the facts. Third,
the list of excepted actions in the second paragraph is very crude and
could hardly have been made at or after the epoch in which the
various species of claims referred to in Nos. 28 and 29 would have
called for recognition. The summary and crude style of the whole
document points to the same conclusion. Last, the provision in the
Yenkyo III Order (1746), by which cases were to be heard in the
Chamber on the 4th and 21st days of every month (No. 5, ante)
points to a possible contrary practice prior to that; and it may be
that the Order of 1746 indicates the abandonment of the practice
established in the present document and the return to double Court
days in each month. At any rate one may provisionally place this
document somewhere between 1729 (the date of No. 1. ante) and
1744. But the only Dog years there occurring are 1729 and 1741,
the latter being of course the more probable. The citation is said to
be from Kajoruiten. This is the name of the work (dated 1767)
appearing in Budorff's Tokugawa-Gesetzsammlung as Kujikata-Osada-
megaki, a collection of impoitant enactments issued before that date.
If this were the source of the document a latest date would be de¬
terminable for it. But Budorff's edition does not contain it, and there
may exist two collections of the name Kajoruiten. However, this
fact would indicate that the one here cited is a still earlier one, as the
1767 edition was too well-known to have the name again used.
116
PRIVATE LAW IN OLD JAPAN :
No. 28] discharge of the claim, and whether, when a judgment has
been rendered in the 11th month, the parties shall make a
similar report in the next 4th month. Our opinion is as
follows :
(1.) Our recent Memorial having been sanctioned,
we shall, when any new action is brought on a money loan,
summon the plaintiff to the Chamber of Decisions, on the
regular day in the 4th month, and shall serve on the
defendant a summons ^ to appear on the regular day of the
next 11th month. If in the meantime the whole claim is
discharged, an order to file a certificate of discharge shall
be made. If, however, a portion only or none at all
has been paid, the Court shall, on the appearance of both
parties in the 11th month, order the defendant to execute an
instrument engaging to pay without fail before the next
4th month. If in the meantime the claim is discharged, an
order for filing a certificate of discharge shall be made,
as above; if not, the Court, on the regular day of the next
4th month, shall make an order for the payment of a
reasonable sum, in fixing which the amount of the debt and
the condition of the defendant shall be taken into estima¬
tion ; of this sum payment shall be ordered without fail
before the succeeding 11th month. This shall continue from
year to year [until all is paid].
(2) In instalment actions where payment within a term
has been ordered in the Chamber of Decisions or a Magis¬
trate's Court, since our recent Memorial has been sanctioned,
the Court, on petition of the plaintiff, shall serve on the
defendant a summons to appear on the regular day of the
4th month. If in the meantime the claim is discharged, an
order for the filing of a certificate of discharge shall be made;
if not discharged, a reasonable sum shall be taken and
payment ordered on the regular day in the 4th month, and
an order issued to pay the remainder without fail in the
1; Sasliigami.
PABT III. CONTRACT : LEGAL PRECEDENTS. 117
11th mouth. This shall coutiuue from year to year [until
all is paid].
We request your consent to the above proposal.
8d month."
2. " We acknowledge the receipt of your order approving
the method of procedure proposed by us.
Year of the Dog, 3, 9.
Chamber of Decisions, Full Session.
[No. 32] In Actions by Eoyal Temples for
Money Loans the Creditor should not he
entitled, in the Complaint as indorsed by the
Bureau, a ' Money-Lending Office.'' ^
A Communication by the Temple Magistrate, Abe,
Lord of Ise, announcing the passing of such an
Order.
Dated Tempo, XIV, (Hare), 4, 6 (May 6, 1848).
1. Letter to the Toicn Magistrate's Staff from the Lord of
Abe.
" III regard to the general management of the loans
made by the Prince-Abbots of royal temples,^ I have, after
1. This document belon gs with the preceding one. 2. The
text of the orders shows that this title is a poorly chosen
one. 3. Miya-monzeki. The term of monzeki was first applied
to a member of the Imperial Family (including the four branch
families) upon retirement as Abbot to one of the leading Buddhist
temples. The Prince-Abbots were afterward known as miya-monzeki
m distinction from sekke-monzeki. In the course of time, the name of
monzeki was also given to a member of the yo-sekke families who went
into retirement andcntered a Buddhist temple. The go-sekke were
the five families of Court nobles whose members alone were eligible
to the two or three highest Imperial offices. These abbots were
118
PRIVATE LAW IN OLD JAPAN ;
No. 32] consultation with the Lord of Echizen, issued the decrees
enclosed and have made similar orders for the Dentsu
Temple [of Yedo], Daitoku Temple of Koya, and Tokei
Temple of Kamakura. As there are some points in which
the interests of townspeople are affected, I send you copies
for reference."
2. Order No, 1,
" To the Retainers of
The Prince-Abbot of Seiren Temple ;
The Prince-Abbot of Yemman Temple ;
The Prince-Abbot of Myoho Temple;
Although a decree was made in Bunsei (1818-1829)
regulating loans of Prince-Abbots, yet recently there has
heen much misdealing, by whicb debtors have suflfered griev¬
ously. Especially contrary to that decree is the practice of
making " additional-moneys," ^ which cannot possibly be al¬
lowed. We should bave taken measures against this before, but
have tolerated it only because it has been so long a custom
among the retainers of the temples. But now that the
Government has determined to make a general reform in
the practice of the Courts, we order that, when action is
brought on a loan [nominally that of the Abbot], the
member of tbe Complaint-Bureau before whom it comes
shall, without waiting for a communication from tbe Abbot
himself, cause the retainers to enter their complaints in
called jun-monzeki or sehke-monzeki. A strict distinction was kept
between the temples presided over by a %iember of the Imperial
Family and those presided over by the go sekke. There was no
instance of a miya-monzeki ever entering into the temples assigned
to the sekke-monzeki. Nor did a member of the go-sekke families
ever preside over the temples assigned to the viiya-mortzeki-
1. Sashi-kuwaye-kin; where some official of the temple, in addi¬
tion to the loans of the temple itself (of the Abbot, as they are here
called) lends his own money in the name of the temple, so as to share
in the advantages given to such claims.
PART III. CONTRACT : LEGAL PRECEDENTS. 119
their own names [as creditors], and that every instrument
of loan [thus sued upon] (except the sums reported in
Bunsei)^ shall be rewritten as an ordinary debt, and the
creditor's name changed into that of the real lender, and that
the new instrument, with the old one (its seals having been
cancelled) shall be produced at Court. In future the confu¬
sion of the two kinds of loan must be avoided, and trans-
Rctious of the above sort must be evidenced by ordinary
instruments of loan. Moreover, to remedy further the
present loose methods, we order that the retainers who
transact money-loans for Abbots shall abandon the present
practice of having a number of money-lending offices and
shall maintain one such office only, and for that purpose
shall, after consultation with his associates, hire a piece of
town-land 2 and move the office thither by the 10th month
of the present year. This shall be their only place for
money-lending, and shall be termed a " sojourning-inn," 3
care being taken not to give the appearance of a Government
Office.^ There they shall carry on their business uprightly.
■Otherwise than in the above manner no [retainer of a tem¬
ple] shall do a money-lending business, either in his own
house or in another's.® These persons, in spite of the
rule of Bunsei ® about the rate of interest, frequently take
it upon themselves to violate that rule and to exact usury.
This is unlawful, and they shall henceforth take no more
than the rate fixed in that law. Nor shall they take
[interest under the guise of so-called] "gratitude-money"^
or "expenses."® Whenever a loan instrument is re-written,
with interest and the original principal as principal, the rate
1. Perhaps an exception had there been made for certain classes
■of existing loans. 2. That is, outside the temple-enclosure and
among the merchants' houses. 3. Ryo-shtikii. 4. O-yaku-sho; the
debtors being more liable to imposition and extortion if they
thought that the office had any official character. 5. Apparently
this applied even to the loans on behalf of the temple-funds.
See infra, " Interest." 7. Rei-kin. 8. Kakari-mono,
120
PRIVATE LAW IN OLD JAPAN ;
Mo. 32] of interest shall be gradually lowered [at each successive
renewal]. In every instrument where there are joint
borrowers (except where a rural district borrows), the
amount borrowed by each one, whether of the military
gentry, townspeople, or villagers, shall he distinctly stated
in separate items, and every instrument not containing such
an itemized statement shall he void. Where a debtor is one
of the townspeople, the creditor shall show the seal to the
oflScers of the ward, and shall receive from them a certificate
of its genuineness. In all the above matters [the retainers
to whom this is addressed] shall avoid all misconduct,
acting with uprightness and zeal, under pain of punishment
in case of disobedience."
8. Order No. 2.
" To the Retainers of
The Prince-Abbot of Ichijo Temple ;
The Prince-Abbot of Butsuko Temple ;
The Prince-Abbot of Senshu Temple." ^
4. liubric.^
" With the above decrees was sent no draft of the
acknowledgment of the decree by the wards; we therefore
prescribe the following form :
1. This decree is in substantially the same words as the above.
After the passage " the creditor's name * • • • into that of the real
lender," it reads: " And no clause shall be inserted declaring that
the money is loaned by the Abbot because of some special reason.
Thus in all future transactions of this soi^ the loan must be evi¬
denced by ordinary private instruments (aitai-shomon)." The latter
passage is of some value in throwing light on the troublesome term
aitai, already discussed in the notes to No. 1. The term used in the
first title for " prince-abbot" is miija; in the second and third, man-
zeki. Yet the title of the first temple is given by Dickson, " Japan,"
p. 43, as monzehi. There seems to be no real distinction of classes
intended; probably custom associated a special word with a special
temple. 2. Probably by the Town Magistrate.
PART in. CONTRACT : LEGAL PRECEDENTS.
121
(A copy of the decree.)
We respectfully ackuowledge the receipt of your order
to inform our companies that the above decree has been
received at your Office [from the Temple Magistrate,] and
to record our seals in the official book.^
Tempo, XIV, Hare 4, 9 (May 9, 1843).
Tonuzo, representative of Shozayemon, now
ill. Headman of Shinagawa Block;
Yazayemon, Headman of Hiramatsu Block ;
Jisaburo, Headman of Block No. 2, Ta ward,
Kanda district.
The above order received at the office of Tarn
Tozayemon.2 "
[No. 33] Disposition of Loans from the funds of
the Three Temples of Ktimano^ and from
the Privij-Funds * of the Lord of Kii.
Dated Kokwa, II (Serpent), 8, 29 (Sept. 28, 1845).
1. Memorial^ astdng tlie Private Opinion \of the Council
of State] regardinj the treatment of Loans from, the
funds of the Three Temples of Kumano and the Primj
Funds of the Lord of Kii, from Kuze, Lord of
. Izumofi
" In regard to loans from the funds of the Three
1. This clause may refer either to the seals appended below, or
to a requirement that sealimpressions should be recorded for the
purpose of the certificate mentioned in the decree. 2. An officer,
apparently, of the Magistrate's Office. 3. Kumano san-zan (" three
mountains," because temples often stood on hills or mountains).
These are a famous group of temples in the leuni of Kii, in
the domain of the lord of Kii. 4. Yodo-kin; the money used
for the private expenses of a feudal lord. Kii was one of the
Oosanke, the three relatid families from among whom the Shogun
was chosen, when no direct heirs were left. 5. Addressed to the Coun¬
cil of State. 6. Temple Magistrate.
122
PRIVATE LAW IN OLD JAPAN :
No. 33] Temples of Kumano and the Privy-Fund of the Lord of Kii,
an instruction was given to the Full Chamber of Decisions,
in the last year of the Dragon, 8th month, (September,
1844) that they should be treated differently [from ordinary
money-loans] and according to the old practice. Since
that time the Lord of Izumi^ was given another office and
the matter has come before me; and I have accordingly
examined the documents in these cases, summoned numbers
of debtors from time to time, and ordered payment of
various claims. I have given much consideration to the
subject and have reached the following conclusions. When,
by the late reform of the law relating to money actions, in
the year of the Hare (1843),^ it was settled that a defaulting
debtor might be ordered into bankruptcy after a certain period
of days, without the intervention of a period for instalment
payments, the Lord of Yamashiro, then Temple Magistrate,
after investigating the subject, inquired [of the Council
of State] whether this rule for ordering execution in
bankruptcy might not be applied to the loans now in
question, so that there should be no more laxity in the
payment of these than in the payment of ordinary private
loans of townspeople or farmers. The proposal was referred
to the Chamber for consideration; but their opinion was
•divided. Ultimately the Instruction above-mentioned w.as
given. But no reply was made to the proposal of the Lord
of Yamashiro. The Lord of Kii, laying stress on the
wording of the Instruction that these loans should be
" differently " 3 treated, repeatedly and urgently demanded
bhe enforcement of their payment. Finally, when the Lord
1. The previous occupant of the position. 2. The reform dealt
with in Nos. 28 and 29. 3. Betsu-dan. The force of the Lord of Kii's
interpretation cannot be made clear by any rendering of the word
i)etsu. This means, primarily, " different," in the sense of " apart
from others," and, derivatively, "special," "particular." Hence
his argument was that the above loans should have a " special," in
the sense of a better, treatment.
PAKT III. CONTRACT LEGAL PRECEDENTS. 123
of Idzumi came into office, an instruction was sent [to the
Lord of Kii] to prepare a schedule of all the outstanding ^
loans fallen due during the previous 8 years. This schedule
had been sent in from time to time, until in the 10th month
of the preceding (Dragon) year (November, 1844), the whole
reported amount, principal and interest, of arrearages of
loans from the temple-fund and the privy fund to military
gentry, priests, townspeople, and farmers had reached
42,000 ryo, the number of instruments being 168, and the
debtors and sureties in all 700 persons. Numerous notices
of defaults have been sent since then by the officials of the
Lord of Kii, and many petitions for enforcing payment of
the arrears. During the last 10 years we have persuaded
many of the debtors into paying; but considerable sums
remain. Defaults were very few, beginning with the loans'
first occurrence in the period Bunsei (1818-1829), until and
during the time when the matter was under the management
of Wakizaka, Minister of the Imperial Household.^ The
debtor, when he was summoned to Court at the suit of the
officials of the Lord of Kii and urged to pay, would with
diligence and dispatch pay principal and interest. If he
pleaded ill-fortune in his affairs [as an excuse for delay], he
was subjected to pressure of some sort; sometimes, if he
were a commoner or even a Government-merchant,^ he was
detained at the bench ^ and ordered to sent for the money,
or perhaps committed to relatives® or sent to the iiand-
stocks; and this invariably resulted in payment of
principal and interest. But ever since the administration
of Mabi, Lord of Shimosa, ® and Inouye, Lord of Kawa-
1. Vtca-xthi (floating on the surface). 2. This person was Temple
Magistrate from Kwansei, III (1791) to Bunkwa, X (1813), again
from 1829 to 1837, and then one of the Council of State, from 1837 to
1841. He also possessed the inferior title of " Lord of Awaji."
3. See No. 5, ante, i.^oshikake, i. e. detained in Court. 5. Azuke,
See No. 28, 2, Art. 24, ante. 6. Who became Temple Magistrate in
1830.
124
PRIVATE LAW IN OLD.JAPAN:
No. 33] chi,i there has been a gradual loosening of restrictions^
debtors have become more negligent, and the arrears have
constantly accumulated. Money was even lent out to those
who were no better off than day-laborers and had no
resources of any sort; and the debtor constantly petitioned
for delay, for the creditors were not strict in enforcing
payment and the Court was too busy with other matters
to be especially zealous in these. Even at the end of these
periods of postponement the debtors frequently failed to
bring in the amount due. The result was that a loan was
the source of very little profit. Some of the debtors would
petition for delays of 2 or 8 days, and then bring in
[a small amount] in 2-shu or 1-s/iw pieces® or even in
copper or iron money. Where the debtor was one of the
military gentry, his retainer, knowing that the instalment-
payment process could not be put in use against him^
would often plead a bad harvest in his fief or excessive
expenses in the performance of his feudal duties, and evade
making any payment; so that it was hard to obtain even
interest, much more so the principal, from such persons.
Aflairs having come to this pass, the Lord of Idzumi'
after the lust report above-mentioned, in the 10th month
of the last Dragon year (1844,) from the Lord of Kii, after
consultation in Private Session, made out a schedule of
instalment-payments, proportioned to the amount of the
debt in question. His opinion was that, if the Court were
to grant every request for postponement and to sanction
the payment of any small sum which the debtor might
choose to bring from time to time, the creditor would not
get back his loan even after the lap^ of countless years;
while new suits would constantly be brought and the body
of defaulting debtors would grow to an enormous size.
He decided, therefore, to grant no request for delay unless
1. Who became Temple Magistrate in 1834. 3. These were
small pieces of silver; 4 $hu made 1 bu, and 4 bu made 1 ryo. See
Introduction.
PAHT III.—CONTRACT : LEGAL PRECEDENTS.
125
the debtor had already paid in such an amount that there
-was some reasonable probability of an ultimate full payment;
and instructions directing strict conformity with this
rule were sent around to the retainers of the different
gentry.^ When I succeeded to this office and the matter
came into my charge,. I several times made similar orders,
and from time to time summoned the debtors [and gradually
decreased the list]. Many times I have been put to unne¬
cessary delay and inconvenience through [false excuses of] a
mistake in the debtor's name, or his death, absconding,
retirement, or removal. Moreover it has become a notion
of the commoners that the repayment of a loan from a
•Government-fund 2 is treated with laxity, while that of
ordinary persons, which ought to be made by a private-settle¬
ment, is rigidly enforced ; and, in consequence, some persons
do not even appear when summoned, while others appear,
indeed, but without being accompanied, as they should be, by
their local officials,® and they offer the most unconscionable
pleas. I am told, in fact, that it has for some time been their
habit to treat the summons of a Magistrate with neglect, if it
is one issued in a money action. Their contumacy goes even
further, for after [the complaint is returned with] the
information that the debtor has absconded, retired, moved,
or died, it often appears on careful investigation that these
■are falsities, invented by the couutersealers to delay the
proceeding. The practice of the past years has been very
lax, in spite of these evil results, both because the loans
which are the subject of this litigation are " communicated "
by the Lord of Kii, and so the action, though a money-action.
1. That is, the retainers of the noble borrowers were instructed
that they must be more prompt with their payments. 2. The Lord
of Kii was a daimyo, but the term kogi (Government, public) would
be applied to him by his own people, and hence might be loosely used
by others with the sanK meaning. 3. A commoner was required to
be accompanied to Court by these officials, who were looked to for
some account of his character.
126
PRIVATE LAW IN OLD JAPAN :
No. 33] has no " petitioner,and also because the Magistrate's
Office has been too much occupied with other matter. The
debtors' disregard of the Court's authority has reached such
a point that the vassals of the various noble houses often
neglect to bring in any money on the days appointed for
payment, and boldly write to demand new delays ; and when
the retainers of the Lord of Kii refuse absolutely, they bring
in some petty amount, request a moderate delay, produce a
new instrument already drawn up, and demand that the debt
be re-written,—thus showing no sense of shame and acting
virtually in defiance of the Court's orders. Our action
hitherto has been confined to peremptory orders to pay,
and we have not proceeded to extreme measures, in the way
of examination before the Court, etc.; but the repeated
defaults and the general disregard of our orders aflPect
the dignity of the Court and I am much dissatisfied with
the state of affairs. If, indeed, the purpose of your
lustruction of the last Dragon year,^ requiring the claims
in question to be treated differently from ordinary loans,
was nothing more than to perserve the existence
of such claims,2 I will give myself no further
anxiety on the subject, and will confine myself
to urging payment by personal persuasion of debtors from
time to time, except where their contumacy does not
directly endanger the very honor of the Court, and this will
relieve me from much tedious detail. But I understand that
the real purpose of the Government in that law was to
facilitate the more speedy collection of these money-loans;
1. Tassuru (communicate); negai (beg, petition)-;im (person).
The former term was the appropriate one for one of the Lord of Kii's
station when making a private communication. The idea seems to
be, as appears below, that these claims arose from " gifts" of
money, and hence there could be no legal foundation for an action
to recover sums professing to be out-and-out grants. 2. See ante,
at the beginning of the letter. 3. Lit., " to prevent the kashitsuke
(loans)-tsubure (destruction)."
PART HI. CONTRACT : LEGAL PRECEDENTS. 127
and I think, therefore, that .whenever a debtor, after
requesting a delay, fails to bring in the proper amount at the
time appointed (the instalments and periods to be determined
according to the schedule already agreed oii),i he shall, aa
in the ordinary case of deficient payment of an instalment,
be detained at the bench,^ while his voucher 3 should be sent
to fetch the money; and that if the debtor still continues in
default, he shall, if a farmer or townsman, be sentenced to
the hand-stocks, or put in prison, and, if a retainer
of a noble house, shall be committed to the custody
of relatives or friends or confined in the prison
of the gentry. * Unless some such measures are adopted,
we can hardly expect to secure the satisfactory
payment of debts; aud if we do take these steps,
I believe that the present license on the part of the
debtor class may be restrained and a thorough improvement
be ultimately effected. It is said, however, that if such
measures are enforced, the belief might spread among the
lower classes that, as the request of the Kord of Kii [for
stricter enforcement of payment] has been granted, the
Government is about to exact without mercy the mone3'3-
due to it, [and hence that public discontent and unrest will
be produced]. Though no Governmental measure could in
fact be so tainted by greed for mere gain as to justify such
a belief, [I do not think that we need be deterred by such
a possibility], for, in adopting any measure of this sort, we
deal with a multitute of debtors and must in any case
encounter more or less criticism. I have decided to lay
the matter before you for your opinion, before issuing
any instructions of the above nature, since [without your
previous sanction] I should not feel so ready to enforce
1. See ante, p. 124. 2. See ante, p. 123. 3. The official or other
person (the landlord or house-manager, in the case of renters in
towns) who was requiiad to accompany the defendant to Court.
Sashi-soye-nin (accompanying-person) is the vernacular term.
4. Agari-ya.
128
PRIVATE LAW IN OLD JAPAN :
No. 33] obedience from the retainers who are within my jurisdiction,
and their contumacy would in that case only become more
aggravated. I repeat, that there can he no better means
of facilitating the collection of debts than to proceed on
the lines of last year's Private-Session decision above-
mentioned 1 against those who neglect to pay the amounts
as ordered and those who wilfully disobey the summons
of the Court. The lending of money has an excellent eflFect
upon the activity of the money-circulation, but it is essential
that there be mutual fidelity on the part of borrower and
lender. But in the present case the Lending-Offices of the
Lord of Kii have asked in vain for payment, and have at
last notified this Court and obtained its assistance. We
might suppose that the debtors, having obstinately held out
up to this point, would now yield and perform their obliga¬
tions with fidelity. But experience shows that they do not
do so. There is nothing left but to adopt measures of
severity calculated to root out this disregard of their
obligations, until finally they become weary of resistance and
pay what they owe.
In this situation of embarrassment and anxiety, I
request your opinion on the subject.
Year of the Serpent,
4th month."
2. Opinion on tJie same subject from the Finance
Marjistratesfi
" Treatment of loans from the endowment fund of
the Three Temples of Kuthano and the privy-
fund of the Lord of Kii.
1. See ante, p. 124. 2. This opinion, with the next two, was
handed in in the course of the deliberations following the preceding
memorial. The one numbered 4 was the first in time; but for
■clearness' sake this one is placed second, as the compilers have it.
PART III. CONTRACT : LEGAL PRECEDENTS. 129
In the 6th month of last year, the Lord of Yama-
shiro, at that time Temple Magistrate, presented a memo¬
rial to the Council of State, who referred it to the Chamber
of Decisions for consideration. This memorial, [so far as
it concerned the present subject,] was in substance as
follows ;
< =;= * * jjj (jase of secured claims, the Court
shall, in accordance with the provisions of the instru¬
ment, order the sale of the property given as security, with
payment out of the proceeds, if they do not suffice, the debt
shall be paid as far as possible. If in spite of this a
deficiency remains, or if the debt was not secured [and the
debtors fails to pay when ordered], an order shall be
made that if settlement is not made at the end of a period
double that given in case of house-pledge loans (reckoning
from the end of the term first given), then, if necessary, his
cultivated land, residence-land, houses, storehouses, and
family-belongings shall, as in case of execution in bank¬
ruptcy, be confiscated [for the benefit of the creditors].
The same process shall be applied where the debtor is a
shop-renter or ground-renter. In all cases the sale of the
property shall be held in the presence of one of the creditor's
local officials. Where the case concerns one of the military
gentry as debtor, and he repeatedly pleads [pecuniary]
misfortune in excuse, knowing that he cannot be brought
into Court, the retainer representing him shall be committed
to the keeping of friends or relatives, or, if need be, sent to
the prison of the gentry, to be liberated, in either case,
only upon payment made. Or else, if it seems best under
the circumstances, an order shall be made to take from the
tax-rice of the fief^ or the income-fief ^ of the debtor an
amount of rice equal in value to the instalment-amount of
1 year, sell it at the local market-price, and hand the
proceeds to the creditor. * * * '
ft
1. Ryobun. 2 . Chigyo-sho. See Introduction.
Vol. XX. Sup. Pt. ill.—9.
130
PRIVATE LAW IN OLD JAPAN I
No. 33] The opinion of the Town-Magistrates and Finance
Magistrates, upon deliberation by the Chamber, was as
follows :
' * * * * If the debt is unsecured the Court should
endeavor, as far as possible, to persuade the debtor by
setting forth the merits of the case,^ and thus enforcing its
payment with more care than in ordinary cases. If pay¬
ment is still delayed, the debtor shall be ordered to execute
a new instrument, and a term of days shall be allowed,
proportionate to the amount of the debt. If still no
settlement is made, an order of execution in bankruptcy
should issue. But in most cases there is a security of some
sort, and in that case the Court should proceed in accord¬
ance with the provisions of the instrument. When it appears
that no settlement has been made, an order of execution in
bankruptcy should issue, after the above proceedings have
been taken. But in the case of a debtor who belongs to the
military gentry, nothing should be done except order
payment by instalments, an attempt being first made to
obtain payment by urgent persuasion, until it appears that
an instalment-order is inevitable.'
There was also another communication,^ as follows :
' As rumors of unjust dealings have arisen in connection
with these loans, the amount of the original claim should be
fixed, and no additional-moneys 3 should henceforth be
allowed. Moreover, the practice hitherto in vogue iu regard
to these additional-moneys (apart from the chief question
whether they should or should not be treated as ordinaiy
money-loans) is not a satisfactory one. Instructions should
be issued that henceforth, in a suit fo»their recovery, the
debtor shall be summoned by a summons-paper ^ only
1. Eigai. 2. It was drawn up in a separate doouiaent
probably because it dealt with a different subject. 3. Sashi-
kuwaye-kin; private money of the retainers lent as a part of these
funds. See No. 32, ante. 4. Sashigami.
PART 111. CONTRACT ! LEGAL PRECEDENTS. 131
where the loan is from a privy-fund,^ but in all other
cases he shall be sued in the regular tribunal ^ through the
Magistrate with whom the complaint is entered.® If this
plan as to loans from privy-funds should prove desirable
the payment should be made (in case of all sums up to
10,000 ryo) at the Government-Office in Bakuro ward.
Of course, as these sums are in reality no different from
ordinary money-loans, the actions for their recovery may
[in all other respects] be treated like ordinary money
actions.'
The Temple Magistrates, however, [would not yield
to the opinion of the others and] declared that, as they
had formed their convictions after thorough deliberation,
they had nothing further to say.^ Subsequently the Council
of State issued another Instruction to the Chamber to
consider the matter again and determine upon the best
method of treating these cases. Again no decision was
reached, each party reporting that it maintained its own
opinion. Finally in the 8tli month of the last Dragon
year, an Instruction® was issued that these loans were
henceforth to be treated ' differently [from ordinary money
loans] and according to the old practice.' "We must of
coarse follow these instructions [and treat them 'differ¬
ently.' But this does not mean that they should be
treated in a more favorable manner.] The whole question
1. Yodo-kin ; see ante, p. 121. 2. Sono suji. 3. Meyasu-kakari,
The usual procednre would be, where the defendant was not
in the jurisdiction of the Temple Magistrate, to try the case
in the Chamber, the complaint being entered with the Temple
Magistrate. Here it would seem that these moneys, in the
case of privy-fund loans, could be specially recovered without going to
the Chamber. This supposes that summons by sashigami was pecu¬
liar to the Courts of the individual Magistrates, a rule of which there
are elsewhere many indications. The summons of the Chamber was
made by indorsing the complaint. 4. The chief point of
difference wasthat the^emple Magistrates wished to allow execution
against the military gentry, and the others did not. 5. The one cited
at the beginning of Letter 1, ante.
132
PRIVATE LAW IN OLD JAPAN :
Ko. 33] of whether they are to be treated in a different manner
arose in a discussion as to the method of forcing payment by
these debtors, and it has been finally decided that the reform
recently made should not apply to these loans, which should
be governed by the old procedure. In spite of the abovo
issue of the controversy, another memorial i has now been
presented by Kuze, Lord of Idzumo, complaining that no-
[further] instructions have been issued in regard to this
subject, and making certain statements about the Lord of
Kii's [demands for enforcement of payment]. But the Lord
of Idzumo's memorial seems to us to be ill-timed. He
has deliberated anew upon the matter and proposes certain
measures, more severe than those hitherto in vogue, for
enforcing payment from these debtors. But now that the
above Instructions have been issued, [such propositions
are no longer in place.] Furthermore [there are historical
reasons for the distinction made in the case of the present
loans.] In Bunkwa, XIV, Ox (1817), the late Aoyama,
Lord of Shimotsuke, then presiding [Councillor of State,] 2
in answering an inquiry by the Lord of Kii regarding one
of these loans from the funds of the Three Temples of
Kumano, stated that he would give attention to any general
request of the Lord of Kii for diligence in enforcing payment
of loans from these endowment funds ; but that, where a
particular claim was in arrear [and action was brought for
recovery], it could not receive any specially favorable treat¬
ment, but must follow the rules for ordinary actions for
arrears of loans. In respect to loans from a privy-fund,
also, the same Magistrate declared, in answer to an inquiry
from the Lord of Kii, that he could accede to general requests
onl}', [as above stated.] Now the letter then sent [in reply],
bj' the Lord of Kii contains the following : ' Although he
had in a preceding year requested Sakai, Lord of Wakasa,
1. Letter 1, ante. 2. He was Temple Magistrate 1793-1796, then
Councillor of State 1804-1835.
part iii.—contract: legal precedents. 133
then presiding [Councillor of State] to have these loans
attended to in the proper tribunal,^ yet the reply had been
that no special order of payment could be made for arrears
of the loans, though cognizance would be taken of them
as ordinary private loans. He now made inquiry again
on the same subject, though perhaps against the wishes
of the Magistrate. The fact was that the nature of the
loans was such that it was impossible for him to seek the
Courts in the ordinary manner, [as the Magistrates had told
him to do], since the sums had been originally lent out under
the name of " gifts,so that there could technically be no
such thing as money due and unp.aid in connection with
such a transaction. ' He therefore asked permission to
prefer privately certain general requests for payment.' It
thus appears that the Lord of Kii is not in a position to
insist on the payment of these alleged loans. But after¬
wards, in consequence of the Lord of Kii's repeated
requests, they began little by little to receive a ' different
treatment; until finally, in the last Hare year, 12th month
(February, 1844) 5 when a general order was made for the
private-settlement ® of all loans by the people and a similar
favor was accorded even to the borrowers of government-
money,'' the loans of the Lord of Kii were exempted
from the law. Thus at last it came to pass that they
received a ' different' treatment. The result thus reached
was, in our opinion, a necessary and proper one, and we
think that it would contradict the spirit of the rule laid
down in the Bunkwa period® if we were to take any
1. From 1815 to 1818. i.Sonosvji. Kiidasare-kin (con¬
descension-money). 4. That is, " special." 5. See infra, Section VII,
" Private Settlement." 6. Aitai-zumi. 7. This is not true, if it means
that private-settlement was ordered for Government loans. See
infra. No. 118. But the reference may be to the instalment-payments
permitted (No. 91, infra) by an order of the same date. 8. See p. 132
The argument is perhaps a little insincere, and apparently sug¬
gests that as the spirit of the answers then received by the Lord
■of Kii was that he could not claim private favors, so here he must not
134 PAKT III. CONTRACT ; LEGAL PRECEDENTS.
No. 33] more severe mensures for the collection of these debts.
There are, indeed, no invariable principles governing the
treatment of money loans, even Government-loans, as there
are of other subjects of litigation. [Still there must be a
certain amount of consistency and uniformity,] and we
cannot agree that it would be proper to use any harsher
measures with these two classes of loans than with Govern¬
ment loans, [which are on the same footing]—especially in
view of the benevolent intentions manifested by the Shogun in
the recent law reforming the procedure in money-loan actions.^
We therefore advise that no action be taken upon the
memorial in hand, and that instructions be issued directing
the strict observance of the object of the previous order,®
and that the old practice be followed in enforcing payment
of these loans.
Year of the Serpent (1845),
month.3
Wakizaka, Lord of Awaji,'!
Naito, Lord of Kii,^
Aoyama, Purvej'or of Imperial Supplies, *
The Town Magistrates, ®
The Finance Magistrates.
ask them. Then in answertotheprohablethoughtthattheproposition
is merely to assimilate them to all other loans, he claims the virtue
of consistency for his side and declares that they stand on the same
footing as public loans. When or by what enactment those were more
leniently dealt with does not appear. J. Keferring apparently to the
reforms described in No. 28, ante; but possibly to the Private-Settle¬
ment Order of 1844, No. 118, infra. 2. Cited at the beginning of
Letter 1, ante. 3. The figure is missing. 4Whese three were the
remaining Temple Magistrates, the writer of the Memorial being the
other. They sign here, because though the minority opinion (the
next document) was theirs, the opinion of the Finance Magistrates
prevailed, as the Town Magistrates came over to it and formed a
majority; the dissenters then yielded and signed the document as
the Resolution of the Full Chamber. 5. The Town Magistrates
wrote the Opinion numbered 4, and then decided to sign the opinion
of the Finance Magistrates.
PABT IIK CONTKACT : LEGAL PRECEDENTS. 135
3. Opinion on tlte same subject from the other Temple
Magistrates.
" Statement of our individual opinion respecting loans
from the endowment-fund of the Three Temples of Kumano
and the privy-fund of the Lord of Kii.
From Wakizaka, Lord of Awaji,
Naito, Lord of Kii,
Aoyama, Purveyor of Imperial Supplies.
The memorial presented by Kuze, Lord of Idzumo,
regarding the treatment of loans from the temple-funds
of the Three Temples of Kumano and from the privy-fund
of the Lord of Kii, recently presented to the Council of State,
and referred by them to the Full Chamber for a report
thereon, makes in substance the following statements: ' That
whereas lately Instructions were issued, after much discus¬
sion, that these loans should be treated differently [from
ordinary loans] and according to the old practice, [the
question arises. What was the old practice?] Now the
Lord of Idzumi determined, some time ago, on private
consultation, that the principal of these loans should be
paid off according to a schedule similar to that used for
ordinary instalment payments. Since his incumbency,
therefore, the custom has been, in pursuance to his rule,
to summon the debtors from time to time and urge them
to payment. But notwithstanding this the arrearage has
constantly increased, especially in late years. Loans have
been made to persons having scarcely any other resources
than their daily earnings and the collection of these claims
has naturally been accompanied by much laxity; so that
it has been customary to sanction the payment of the
most trifling instalments, even of a quantity of copper or
iron money. Moreover the order for private settlement
recently issued,i when these debts had been making no
1. Tempo XIV, 1844. See infra.
136
PRIVATE LAW IN OLD JAPAN :
No. 33] return 1 for some 8 years, produced a bad effect upon
the minds of the debtors ; for, though it is now 10 years
since the first order of payment was made [on some of the
claims,] there are numbers of them still undischarged.
Many of the debtors, in fact, do not appear when sum¬
moned i others appear, to he sure, hut without their local
officials, and make untrustworthy statements. A statement
too, that the defendant has absconded, or retired, or
removed, or died, is fabricated, in order to delay proceedings
against the countersealers. Moreover, among the retainers
of the military gentry any one who is punctual in the
payment of his debts is looked down upon as a person
of no accomplishments, aud all sorts of devices are resorted
to for the sake of delay. The truth is that their conduct
is no less than a defiance of the authority of the Magistrate's
Court and an insult to its dignity.
The Instructions of the last Dragon year speak not
only of following the old practice, hut of treating the cases
'differently.' The Lord of Kii lays particular stress on
this term. If the purpose of the Instructions, then, is not
merely to preserve the existence of these claims, hut to
facilitate their more speedy collection, then every defaulting
debtor should he detained at the bench, ^ or in case of
continued default, sentenced to the hand-stocks, to jail, to
commitment to friends, or to the prison of the gentry, as
the circumstances may require. Unless some such measures
are adopted, there is no hope of securing even partial
payment. But if they are adopted, a gradual improvement
will he effected in the conduct [of the dejjtor class.]
We have deliberated upon the subject, and our opinion
is as follows: At the time that these claims first a rose,
the reply was several times made to the Lord of Kii, in
1. Uwa-uki; this has been rendered " outstanding ; " here it
seems to convey the idea of " due and not being paid;" that is, all
payments on account had stopped. 2. See Letter 1, ante.
PART III. CONTRACT : LEGAL PRECEDENTS. 137
regard to their disposition, that his request could not be
granted, and that the loans must be disposed of according
to the rules for ordinary money loans. But after some time
further requests and communications having ensued on his
part, it came about that the payment of the sums due was
enforced, although there was no [person in Court ^as]
plaintiff demanding enforcement and hence no [regular]
judgment could be rendered. There was thus no further
necessity of considering the past [history of their
standing ] and it was accordingly ordered, two years
ago, in the last Hare year, 2nd month, 2 on request of the
Lord of Kii, that these two classes of loans should thence¬
forward be treated according to the practice then obtaining.
When subsequently amendments were made to the rules for
issuing execution in bankruptcy,2 the Lord of Yamashiro
presented a memorial, in the Hare year, intercalary 9th
month (November, 1843),^ directed towards the enforcement
of the sums then outstanding and unpaid. But on the
proposal thus made, [the Chamber] could not agree, and
there was a long delay before any order was issued. Mean¬
while tiie Lord of Kii continued to urge the matter upon
the Lord of Echizen,® stating that he had taken the time
to prepare a schedule® of the amounts in arrears, [when
the loans began to be enforced], that, when afterwards it
was ordered that they should be treated according to the
practice then obtaining,2 he had announced this to [his
debtors] in Yedo, in Osaka, and in the various provinces;
and that, as during the deliberations on the above memorial
of the Temple Magistrate no payment had been enforced,
he was greatly inconvenienced. Finally, Instructions were
issued to the Three Magistrates, in the 8th month of the
1. That is, they were thenceforth valid, and whatever their
previous standing had%eeu, it could no longer affect them. 2. This
does not appear. 3. See ante, p. 122. 4. See ante, p. 122. 5. The
presiding Councillor of state. 6. See ante. Letter 1.
138
PRIVATE LAW IN OLD JAPAN :
No. 33] last Dragon year,i that the enforcement of payment of
arrears due on the loans of endowment-moneys of the
Three Temples of Kumano and the privy-fund of the Lord of
Kii should be "differently" treated, and according to the
old practice. A notice of these Instructions was sent to the
Chief Seneschal of the Lord of Kii, who announced to [the
debtors in] the provinces, this city, Kyoto, Osaka, etc.,
that 'it has been ordered that the loans from tlie privy-
fund shall henceforth be differently treated.' The Lord
of Kii, who believed that the purport of the order was
to favor the stricter enforcement of his claims, is said to
have communicated with the Lord of Idzumo to that
effect. Now the purpose of the memorial of the Lord of
Idzumo's memorial^ was by no means to introduce any
new method of dealing with them, but only to treat them as
the circumstances might require, appl3'ing, where necessarj',
proceedings in use where analogous claims of the ordinary
sort were presented. We are of the same opinion, that the
questions in regard to accepting requests for delaj' and
sanctioning the pay^ment of various amounts brought in
should be left entirelj' to the disposition of the [Temple]'
Magistrate presiding at the time. If no such privilege is
allowed, and the Magistrate is limited to summoning
debtors and ordering paj^ment, and no decided step is taken
to restrain their culpable practices, the object of the
proclamation recently made in this citj' and the Western
Country ^ in regard to the privj'-fund loans, will be defeated.
Moreover the temple and privj--fund loans are not the onlj'
classes of claims which were stated to be treated according
to the old practice ; for loans of the royal abbots and of all
other temples of high rank were also left without change, so
that they were not required to be settled privatelj'. The-
Government debtors were graciouslj" treated with the bene-
1. See ante, p. 122. 2. Jn/e, the first document. 3. Knmigata ;
the central district around Kyoto and Osaka.
PART III. CONTRACT : LEGAL PRECEDENTS. 139
volence shown to other debtors, because the loans had not been
made for the sake of obtaining a profit, but of assisting the
community. But all other loans had as their motive the
winning of profit, so that as both principal and interest were
due and unpaid, [the borrowers, if the claims were enforced,]
would be in even a worse condition than had been the case
when they had not yet borrowed. Moreover the method
suggested by the Lord of Idzumo is much more favorable to
the debtors than the [immediate] issue of execution in
bankruptcy, as now used in the case of ordinary loans, and
its object is simply to secure the gradual payment of the
principal and interest of all of these debts without causing
embarrassment to the debtor. It is said that from the
time when these loans were first made, in Bunsei (1818-
1880) to the time of Wakizaka, Minister of the Imperial
Household, even a Government-merchant was detained at
the bench and ordered to send for the money or [on default]
sentenced to the hand-stocks; and if these ways had been
kept up, there would have been no difficulty in adhering to
the practice adopted [by the Lord of Idzumi] before the
recent order. But long before that time those strict
measures were forgotten, and the number of defaulting
debtors has multiplied greatly in the last few years. It is
therefore indispensable that some strict measure be adopted,
and we think thfit no better expedient can be devised than
that proposed above [by the Lord of Idzumo].
We recommend, then, that henceforth some measure,
more or less strict, be put in force against all debtors who
disobey the summons of the Magistrate's Court, and all
retainers of military gentry who act in defiance of the
Court. If this be understood as the purpose of the above
memorial, there cannot be thought any serious objection to
it. That we should take harsh measures against such a large
number of people, i® order to secure the desired improve¬
ment, may be a questionable expedient and may create
more or less discontent with the methods of the Magistrates'
140
PRIVATE LAW IN OLD JAPAN :
No. 33] Courts, both within and without them. On the other hand,
contumacy in the face of the Court's orders is something
that cannot he overlooked. [The rule should he that] any
one who defies the repeated efforts of the Court to secure
payment and culpably fails to pay, or who is culpable in any
other way with respect to the Court's authority, should he
severely dealt with, and if circumstances require, sentenced
to jail or to the gentry's prison, as the case may he. We
think, moreover, that, as the above procedure is not to he
adopted because of any applicability of the rules of ordinary
loans, it could he left to the direction of the Court,
according to the circumstances.
[There is one more point to refer to.] A loan from the
privy-fund should he made according to the mode prescribed
for loans from the endowment-moneys of the Three Temples
of Kumano. That is to say, this rule requires that the
sums should he lent out after selecting trustworthy persons,
whether military gentry of the grade of Jaimijo or lower, or
temples, or villages, or townspeople, as the case may he.
They ought thus to have been lent out only to such trust¬
worthy persons, as long as they are for official purposes,
and only after an examination of the property taken as
security. But, according to the Lord of Idzumo, there has
come about great laxity [in the 2ilacing of the loans], and
persons are taken as borrowers who have scarcely more
resources than their daily earnings; so that the enforce¬
ment of the loans has naturally become more difficult,
and the arrearage has constantly increased. It is said, too,
that the more indiscriminately this Iqpding has proceeded,
the more careless the loan-officials have become about their
duty of collecting them. For this reason some additional
measure must he adopted, in order to prevent this looseness,
or else the constant lending will result in serious
losses, which might cause considerable annoyance to you.^
1. " This is the most responsible office, and too often in times
PART III. CONTRACT : LEGAL PRECEDENTS. 141
A similar statement has already been made by Matsudaira,
Lord of Idzu,i in what he has written on " The Mode of
Making the Loans of the Three Temples of Kumano."
Since then, it has recently been ordered that (as requested
by the above memorial [of the Lord of Idzumo]) these
loans should be treated differently and according to the
old practice, it would be reasonable that we should proceed
to lacilitate the more speedy payment of the claims. Still,
we must, with the object of attaining this reform, not
suddenly put into force severe measures. It seems best, on
the whole, to follow the old practice, granting to the Court
the power to proceed at its discretion where the circum¬
stances of a particular case make it impossible to overlook
[the debtor's conduct]. In addition to the foregoing, it is
hard to say, in many cases whether we are to conclude that
the debtors are to blame for not paying when they can, or
whether the fault does not lie in the original placing of the
loans, without due inquiry, [with penniless borrowers].
We therefore respectfully propose that you instruct the
Lord of Idzumo to order the loan-officials of the Lord of
Kii to be more careful in placing their loans, in view ot the
large amount of arrears due outstanding.
As no agreement could be reached, on consultation
with the Town Magistrates and Finance Magistrates, we
have herein set forth our own opinion in the above document.
Year of the Serpent."
4. Opinion on the same subject from the Town Magistrates,
a. " Private statement of opinion regarding the loans
past has entailed upon its possessors the mistaken duty of retrieving
an error by the cowardly retreat of suicide. They are responsible for
the whole acts of government, which are supposed either to have
originated with them or to have been carried out with their cogni¬
zance." Dickson's Japan, a passage describing the Council of State.
1. This paper is not here given.
142
PRIVATE LAW IN OLD JAPAN :
No. 33] from the endowment-fund of the Three Temples of
Knmano and the privy-fund of the Lord of Kii.
From To5'ama, Warden of the Palace Gate,
Nabeshima, Minister of Public Works.
Inasmuch as certain memorials relating to the loans
from the endowment-fund of the Three Temples of Kumano
and the privy-fund of the Lord of Kii were presented by the
Temple Magistrates, and the opinion of the Chamber of
Decisions was divided on the subject. Instructions were
issued, in the last Dragon year, 8th month, that these two
classes of loans should be in all cases differently treated
[from ordinary loans.] But, we hear it asserted, in the
course of the past few j'ears both military gentry and
townspeople have lost all sense of duty, and are forming the
habit of despising the very Magistrates' Courts, and that
their growing disregard of their obligations is causing no
little obstruction to the enforcement of these claims ; for in
spite of the utmost efforts of the Magistrates' Courts to
secure the collection of these arrears (for the sums due
were moneys given on deposit by the Lord of Kii), the
orders of payment were not obeyed, If such is the case
with the debtors, these evil practices will constantly
strengthen themselves, so that, if we continue to adhere to
the mild methods now employed, they will end in threaten¬
ing the very authority and dignity of the Court. In our
opinion more severe measures are necessary, and there can
be no better means than to sentence such persons to jail or
to the gentry's prison, etc. But, on the other hand, we
have heard some very discreditable reports about these
loans, [which, if true, might render tliem unworthy of our
special care]. We ordered secret inquiries to be instituted
into their present management, and learned, in substance,^
that the following state of things is said to exist. The
fund from which the so-called loans of the Three Temples of
1. See d, infra.
PART III.—CONTRACT I LEGAL PRECEDENTS. 143
Kumano are made is in reality furnished by a common-
lottery-club,^ composed of the subjects of the Lord of Kii
•who have left bis dominions and are following their
occupations as townspeople in Yedo. The loans of this
club are very extensive, amounting to several ten-thousands
of ryo. Furthermore, the so-called ' privy-fund' consists
of ' additional-money' ^ contributed by various towns¬
people who frequent the premises 3 of the Lord of Kii [in
Yedo]. [These rumors alone would justify us in holding
our bands]. But, apart from this, now that the treatment
of Government loans, as well as of royal abbots' loans, has
been changed by the recent reforms, and no actions are
entertained respecting tbem,^ it would of course seem to
the military gentry and townspeople equally proper to
enforce a similar rule for these loans. It is said, too, that in
the opinion of these retainers, and still more of the un¬
intelligent lower classes, it is proper enough to plead
pecuniary inability or otherwise oppose the collection of
these claims, in spite of the strict orders of the Temple
Magistrate, because they think the claims unjust and because
they know that the so-called loans of the Lord of Kii were
never really made by him and have no better reason for
their enforcement than other money-loans directed for
private-settlement by the recent law. We do not assert that
the above rumors are entirely true, but no such rumor
would arise without some partial foundation. We are,
moreover, anxious lest the name of the noble lord be affected
by them. It has somewhat the appearance of partiality to
prescribe a ' different' treatment for this class of loans
only, where no reason for such an exemption is apparent.
1. So (general, in common)-i/e/a-/£0. 2. Sashikiiwayelcin,—
moneys lent by persons not having the right to use such a title for
their loans. See p. 118, ante. 3. Deiri; that is, townsmen who
furnished supphes, ete. 4. The laws of Tempo XIV, already
referred to. But the writers seems to err in including the royal
abbots' loans ; these were exempted. See Letter 3.
144
PRIVATK LAW IN OLD JAPAN :
No. 33] while, as we acknowledge with gratitude, your gracious
favor has effected such a reform in regard to all other
claims, even Government loans, that the military gentry and
even the townspeople who owe large sums have experienced
a lightening of their burden. If what we have said is right,
and still the Temple Magistrates are permitted to adopt
whatever severe measures they please—measures intensely
distasteful to hundreds of the common people—,there
would be no opportunity of effecting a quiet and gradual
settlement of these claims ; [the penalties proposed by them
would follow without delay], numbers of debtors would
crowd the prisons, many to die there in misery, and
serious discontent would be excited among the populace.
These consequences, we venture to think, would be far from
according with your gracious intentions. We trust, there¬
fore, that you will be pleased to establish some un¬
exceptionable method of lending money, which both the
gentry and the common people will understand and in which
they will place full trust; for although we do not know
exactly what influences are behind the class of loans now in
question, we cannot, in view of the reports already allud¬
ed to, help entertaining some suspicions. The matter
may perhaps be regarded as of lesser consequence, for these
claims are of the nature of ordinary money claims.i But
our decision in this case will be taken as a precedent for tha
future ; furthermore, the exceptional treatment of the loans
of the Lord of Kii, in spite of the recent reform (which
has more or less affected the funds of every royal
abbot), might give rise to rumors that the Government
makes distinctions between near aud distant reIations,2 which
1. Which were always regarded as inferior in importance to
controversies about land. Compare hon-kuji, principal actions, the
term applied to the latter. 2. The Go-san-ke, or Three Families,
were the descendants of the youngest three sons of lyeyasu, and from
them a successor was chosen, in case of a vacancy, to fill the seat of
the Shogun. To one belonged the lordship of Owari, to the second,
Mito, and to the third (the one here concerned), Kii.
PART III. CONTRACT : LEGAL PRECEDENTS. 145
would affect injuriously the name ofthePalaceFamilies, i and,
in the end, wonld stain even the honor of the Shogun himself.
Such consequences are deeply to be dreaded,^ and we
cannot but express to you om* apprehensions. A general
outline of the view set forth above has already been
communicated to you orally by the Minister of Public Works
in the 8rd month of this year. But as the matter was one
with which the Temple Magistrates are specially concerned,
a consultation was had with them. It was subsequently
to this that Kuze, Lord of Idzumo, presented a memorial
asking privately your will in regard to the treatment of
these loans, and this was referred [to the Chamber] for
deliberation. This session of the Chamber has not yet
taken place, and arrangements are being made for it.
Meanwhile, the above views have been communicated to
the Warden of the Palace Gates, who has expressed his
accord with them. We therefore herewith forward them,
in our joint names. We trust that, when the matter comes
up at the Full Session (which will be before long,) you will
■be pleased to lay the above statement before the Chamber,
as you have the right to do. ^
We thus venture, in spite of our awkwardness in
these things, to set forth our crude views in writing, and
respectfully lay them before you.
Year of the Serpent,
4th month.
Toyaraa, Warden of the Palace Gates.
Nabeshima, Minister of Public Works."
1. Dojo-kata-sliohe (lit., families in the Hall); the noble families
related to the Shogun. 2. This is worth noticing, as indicating a
standard of legal consistency and impartiality not by any means a
matter of course under a feudal regime. 3. By the Minister of
Public Works, who e'^dently drafted the document. 4. This sen¬
tence may mean a request to the Councillor to adopt these views and
present them with his sanction.
Vol. XX. Sup. Pt. iii.—10.
146
PRIVATE LAW IN OLD JAPAN :
b. Letter to one of the Town Ma/jietrates from hie Trial
Bureau.^
" We have looked over the Opinion presented by the
Finance Magistrates ^ and also the Opinion of the Temple
Magistrates.^ We think that the arguments of the latter
are drawn from the Memorial of the Lord of Idzumo,^
and are not sound; and that the Opinion of the Finance
Magistrates is the better one. It differs somewhat, how¬
ever, from the one recently presented [by you]. Will you,
therefore, [sign that Opinion of the Finance Magistrates, or
will you] consult with the Minister of Public Works and
draw up a separate Opinion ?
Year of the Dragon,
8th month.
The Trial Bureau."
■c. Bithric, appended to the ahoce by the Trial Bureau.^
" We have been directed by you to draw up the
Communication [of assent] about which we inquired above,
and we herewith enclose a draft thereof.
Enclosure. ' We have received your letter. ® We
are in accord with the views expressed in the Opinion
of the Finance Magistrates, and we shall therefore
append our names to it jointly.
Year of the Serpent,
8th month.
The Town Magistrates.
To the Lord of Ise.' " ^
1. The preceding Opinion was presented i/a the 4th month. In
the meantime those of the Finance and Temple Magistrates were
presented (2 and 3, supra). The Trial Bureau now asks a question of
one of the Town Magistrates. 2. Supra, the second document.
3. Supra, the third document. 4. Supra, the first document. 3. The
Town Magistrate has consulted with his colleague, and they now
decide to sign their names to the Opinion of the Finance Magistrates.
6. Some letter from the presiding Councillor asking an expression of
opinion. 7. The presiding Councillor.
PAET III. CONTRACT : LEGAL PRECEDENTS. 1-17
d. Report to the Town Magistrates as to popular rumors
regarding the loam in question.^
"It has been said, with reference to the loans of the
Three Temples of Kumano, which are managed at the
residence of the Lord of Kii in Tsukiji, [Yedo], and the
privy-fund loans, which are managed at his treasury-
office in Hama ward, that, though orders have been
issued to ti-eat these loans according to the old prac¬
tice, the debtors continue to disregard their obligations;
and, as you have inquired of us as to the popular opinion
on the subject, we herewith lay before you the result of our
investigations.
(1.) The loan-fund of the Three Temples of Kumano,
This originated among the numerous townspeople who
have come here from the fief of the Lord of Kii, and have
been entrusted by the Lord of Kii with his remittance 2
transactions, the chief one concerned being a certain Shoji
Shinjiro, a Government-merchant. ^ This person, who
is now in the service of the Lord of Kii, was employed while
a Government-merchant, in inspecting and superintending
the annual immigration hither from the fief of Kii, and was
known as a " travelling-headman." < At that time he
established, in the interest of these immigrants, a common-
lottery-club, known as the " Kumano Temple Relief Lottery
Club, "5 the affairs of which were managed chiefly by
Tokuyemon, a house owner of Tokuyemon ward, Honjo
l^district,] and Goroyemon, a house-owner of Horikawa
ward, Fukagawa [district]. The methods of this lottery
1. Kelerred to in a, supra. 2. Kawase; that is, all transactions
in which bills of exchange would be required,—the collection of the
lord's income from his province, the sale of rice and other products,
etc. 3. See No. 5, ante. 4. Tabi-shoya. This may mean that his
ofiSce required him go about the country ; or that he was headman
to manage the affars of travellers. The former is more probable.
5. Kumano sanzan 0-teate-soyeki-ko.
148
PRIVATE LAW IN OLD JAPAN I
Jfo. 33] club are as follows. A single share ^ costs 60 ryo [annu¬
ally] and this amount is to be paid in four times a year.
The full term (known as " final-meeting " ^) is 10 years ;
so that at the end of the 10 years the whole investment
amounts to 600 ryo. Each one of these immigrants is to
take 3 one or more of these shares, according to his means,
—perhaps one, perhaps five or six. These contributions
accumulate from year to year, and, two full terms having
now elapsed, the whole fund, principal and interest, amounts
to some 256,000 ryo. This is the fund from which the
loaus in question are made.
(2). The mode of lending.
The principal borrowers are sundry families of the
military gentry. When such a family wishes to get a
loan, a special request is made, naming the amount desired.
Suppose the amount is 1000 ryo. Now before the loan
can be made, the family in question must enter the club,
take 5 shares in it, and pay to the loan-office 75 ryo on
account, as the first instalment of the amount due ^ on the
5 shares. Upon this 500 ryo of the 1000 asked for are
loaned. Then another payment of 75 ryo is made as the
second instalment of the price of the shares, and the
remaining 500 ryo are then loaned. Thus the 1,000
ryo are received in two instalments. The interest is usually
reckoned at 1 hu per month for 25 ryo or for 30 ryo.^
The Lending Office at the same time owes an interest
of 1 bu per 30 ryo on the price of the shares, which runs
until the end of the full period. Payment of the loan
may occur by the shareholder drawing a prize. Sometimes
a
1. Kuchi (item, single thing). 2. Jl/an-Ziu-ai; the meetings for
payments and drawings occurred four times a month, and the last
meeting (manlncai) signalized the ending of the term. 3. Hiki-ukeni;
undertake, that is, subscribe to. 4. Kake-kin. 5. Each share was
worth 60 ryo, or 15 ryo four times a year; hence 5 shares would
require a quarterly payment of 75 ryo. 6. That is, 12 per cent, or
10 per cent.
PART lU. CONTRACT : LEGAL PRECEDENTS. 149
the term of the loan may be extended, if the original agree¬
ment provides for this, and in such a case the instrument is
renewed. But every borrower has to pay, besides the inter¬
est on the loan, the price of the shares, instalments of
which are due four times a year. These payments, it is
said, tend to consume the resources of the borrower appli¬
cable to the discharge of the loan, and naturally there is
likely to be a default on the loan. Moreover it is proper to
say that the families of the gentry whose affairs are in good
condition would not contract loans in the above manner, and
the borrowers are usually those families whose resources
are so doubtful that no capitalist among the townspeople
will lend to them and who are thus obliged to resort to the
Lending-Office. Thus the loan is one which at its very
inception is likely to fall into arrear.
(3.) The term of the instrument.
The instrument is made out as if a retainer of the
house were the real borrower; and it is also stated on the
face that the payment of the loan is to be undertaken by some
townsman frequenting i the mansion, and shall be effected
by them if the family itself defaults. But these town-
men, though they frequent these mansions, are really
without means, and only a few are so circumstanced as to
be able to raise such sums. They append their seals
against their will and only because they have long
frequented the mansion and must continue to do so in
order to retain the business advantages connected there¬
with. Thus, it is said, these townsmen naturally do not
care to answer the summons of the Lending Office to pay.
(4.) As to the management of the Three-Temples
fund.
The retainers of the Lord of Kii who had been parti¬
cularly concerned in it have recently withdrawn, and their
places have been taken by certain persons, [local] officials
1. Tachi-iri; the same as deiri.
150
PRIYATE LAW IN OLD JAPAN :
No. 33] of the proviuce, but now resident in Yedo. The affairs
are chiefly in their bauds; and while they, with a few of
the townsmen frequenting the mansion, viz., Shohachi, a
house owner of Block No. 1, Bakuro ward, and 2 others,
are to be found at the Lending-OflSce, attending to the
payment of the loans. But quite lately the above resident
officials, not leaving the matter to these townsmen, are
themselves making their demands for payment on the
borrowing families. The hitter are much put out by these
[urgent demands], especially as they have [the additional
burden of the] lottery shares, which they were obliged
to take in order to borrow the money. Thus, it is said,
the retainers of the borrowing families do not care to have
the noble lord [of Kii] report the matter to the Magistrate,
because the family owes the price of shares in the lottery
and also the loan itself, which was deliberately incurred.
The townsmen, too, who undertake payment of the
debt and affix their formal seals to the instrument,
are being persistently dunned by the lenders; and
when they request the lord's officials to pay off
the loan, the latter continue as before to delay pay¬
ment, for the reasons above stated. Those who are in
the end the sufferers are thus the townsmen who guaranteed
the loan, and [their lack of means] makes it unlikely that
■ payment can be got out of them.
Such are the reports in regard to that fund.
(5.) The loans from the privj'-fund.
This fund was established chiefly through the efforts
of one of the townsmen frequenting the mansion, one Toyota
Kyuyemon, a house owner of Block jft. 3, Mita, and the
transactions take place at the Treasury of the Lord of Kii,
in the Hama ward, under the management of his retainer.
The mode of lending the privy-fund cannot be exactly
learned. But it is said that the townsmen frequenting
the mansions of various families of the gentry found that,
in order to preserve the privileges they enjoyed, they must
PART III.—CONTRACT : LEGAL PRECEDENTS. 151
furnish additional sums over and above their existing loans,
many of which were in arrear. They therefore promised
the vassals of the various mansions to place out at interest
for them the privy-funds. But in fact they themselve
become the obligors to the vassals, and lent out their own
money on instruments purporting to be for loans of the
privy-fund. Where the loan is a large one, the instrument
is retained by the real lender; but where the amount is
small, the real lender receives from the Lending-Office
[which retains the principal instrument,] a memorandum
of the loan. The interest on these loans is 1 hi per month
for 25 ri/o,^ while the lender pays the noble lord 10 per
cent. At the close of each year, the real lender must pay
the 10 per cent on their loans, even though both
principal and interest are in arrear. The townsmen in
question are Tsutsumi Yasabnro, householder, of Block
No. 3, Mita, and 13 others, of the investment-furnishing
merchants.® Besides these persons, who frequent the man¬
sions of various families of the gentry and negotiate loans
in the above manner, there is one Chosaku, a son of Go-
yemon, of the Maru House, who has even lent sums of
money to eating-houses and to the tea-houses attached to
the theatres in the Sarugaku ward, under the names of
loans from the above Office ; and loans have been made to
other townspeople in the same way. But it is now rumored
about that in all these cases the loans are not in fact the
Lord of Kii's, but those of certain private persons, money¬
lenders, and the debtors, gentry as well as townspeople,
have become discontented nnl decline to pay, in spite of
1. 12 per cent. But the creditors must in reality have
obtained much higher interest; for first, the profit would
have been too small; second, the legal rate was 15 per cent,
from 1790 to 18*; and, third, usury was undoubtedly practised.
O-thiu'e-hata yotatsu; those who assist the officials in buying
or investing, presumably by lending money.
152
PHIVATE LAW IN OLD JAPAN :
No. 33] the orders issued by the Temple Magistrate at the request
of the noble lord.
Such are the rumors about the privy-fund. We pri¬
vately report to you as above.
The headman charged with keeping
order in the town." ^
6. Draft of a Town Proclamation by the Temple Magistrate on
the above subject.
" Draft of a Town-Proclamation.
Loans from the fund of the Three Temples of Kumano
have been regarded too lightly by the debtors, since
the order of Bunsei, XII (Ox.)2 Moreover, it is said
that some of them erroneously consider that their obligations
are covered by the Order of the last Hare year (1843) for
[the private settlement of] money actions. But as it has
now been ordered that these loans shall in all cases be
treated ' differently [from ordinary debts],' orders are
issued to the headman in charge of proclamations ^ to make
it clear to all the people of the city the real intention [of the
Government] as to the true nature of the above release from
debt, and to order them to pay [the present class of claims]
without fail.
Year of the Horse,
Intercalary 5th month."*
1. Shi-chu tori-shimari nanushi. 2. This does not appear.
3. Ko-guchi nen-ban nanushi. For these officers and their functions,
see Part I. Neiiban signifies yearly rotation in office. 4. This
Proclamation is somewhat difficult to explain. It was probably never
issued, for it is termed a |draft or proposal. Yet it is dated in
the year succeeding that in which the preceding documents were
written. It is, however, entirely improbable that the decision
arrived at in 2, supra, was changed.
PART III. CONTRACT : LEGAL PRECEDENTS. 153
[No 34.] Disposition of an Action on a Money-
Loan against one of the Military Gentry,
the Defendant having Absconded j^^nding
Trial'
1. Letter of Conmltation, ^
" Kayei, VI, Ox (1853).
A money-loan action was brought in the last Eat
year (1852) hy a certain Kazeichi, tenant of the shop of
Takichi, in Kodemma, Upper-Block, against Maroshima
Uchizo, a retainer of Sakai, Lord of Uta. But the said
Ucbizo absconded while the complaint was in the course
of service upon him. Upon searching for precedents it
appeared that in the last Ape year (1848) a similar
case had come before our colleagues of the other Depart¬
ment, where also the defendant had absconded while the
complaint was in the course of being served upon him. In
that case they had not been able to discover any precedent
and had inquired of us; whereupon we, after inquiring
of the Bureau of Complaints, had answered that although
no precedent could he found, we thought that they should
order a search ^ for the absconder, summoning the plaintiff
for that purpose and making the necessary order, or that,
if the plaintiff should ask leave to withdraw, it should he
granted and no search ordered. Upon discovering their
record of this answer, we inquired of our colleagues in the
other Department what measures they had actually taken
in that case ; they replied that as payment of the claim had
been undertaken and performed hy a fellow-retainer of the
defendant, the plaintiff had asked leave to withdraw, and so
no order of search had been made. In the present case, how-
over, it appears that no such undertaking has been made
1. Cited from " Shoji-dmne." 2. This letter is from (probably)
tiie Trial Bureau of •ne Town Magistrate's Office to that of the
other, though which Office originates or which receives cannot be
told. 3. Tazune.
154
PRIVATE LAW IN OLD JAPAN :
34] by a fellow-retainer, and that before action brought the joint
sealers of the instrument had also absconded, and no means
of payment exists ; so that, although there is no precedent,
we think that we should order the fellow-vassals to cause
a search to he made, and make an order to the plaintiff"
accordingly,! or, if the plaintiff asks leave to withdraw,
declaring his intention to enter the action again whenever
the defendant may he discovered, we should grant the leave
and order no search. In order to avoid non-uniformity of
practice, we beg to bring the matter before you, inclosing
the documents above-mentioned, and trust that you will
express your opinion freely.
Nakada Goyemon.
Year of the Ox, 4, 6 (May 13, 1858).
To
Tojo Hachidayu, Esq.,2 ApproveiL'^
Nakamura Jirokichi, Esq., A])prored.
Tojo Hachitaro, Esq., Approved.
Hara Jinzayemon, Esq., Approved.
Ando Gengozayemon, Esq., Approved.
Inazawa Yoichihei, Esq., Approved."
Eitbric. " The above proposition having been agreed
to, we on the same day reported it [to our chief] by
Takeji,! and on the 13th day of the month ordered Maru-
shima Toda, father and fellow-retainer of Ushizo, [the
defendant], to search for [and procure the defendant],
within a certain period. But after some negotiations
1. This order seems not to have dire^ed the plaintiff to take
part in the burden of the pursuit, but merely (as in the Bankruptcy
Order of the Resolution, ante, No. 28, 6. par. 5.) to have notified
the plaintiff of the measures taken and to have satisfied the Japanese
idea of obtaining the acknowledgment of each judicial act by all
parties, even those benefited thereby. 2. There seems to have been
some change of position, for in No. 28, 7, c, ante, two of these
officers are in different Bureaus. 3. Signed by each after his name.
4. Apparently a messenger's name.
PART III. CONTRACT : LEGAL PRECEDENTS. 155
between the parties, the said Toda paid to the plaintiff 2 bu,
a part of the money borrowed privately i by Usbizo, and
as to the remainder it was agreed that the plaintiff might
enter the action again whenever the defendant shall have
been found; and in accordance with this agreement the
plaintiff has asked leave to withdraw, which has been
granted."
2. Pu'iilij to an Inquiry.^
" To
Tojo Hachidayu, Esq.,3
Nakamnra Jirohachi, Esq.,
Nakada Goyemon, Esq.
From
Nakajima Kayemon.
Akiyama Kinzo.
We have examined your letter, and congratulate you
on being in good health and zealous in the discharge of
your duties. We made inquiry of you recently in regard to
a money-loan action brought against a retainer of a lord in
the last Ape year (1848), where the defendant had
absconded while the complaint was in the course of being
served, and desired to know whether there was any
precedent for odering a search for the defendant. You
then replied that, though in your Department also no
precedent existed, j'ou were of opinion that an order for
search should first be made and thp plaintiff should then be
summoned and notified of it, or if the plaintiff should ask
leave to withdraw, that the leave should be granted and no
order of search made. You now inquire what measures we
did in fact take in that case. In reply we beg to say
1. Taidan-kin. 2. This is the document referred to in the
preceding Inquiry as the reply by the other Department in answer
to an Inquiry as to •how the precedent cited had been in fact
disposed of. 3. This officer was at this time not in the same office
in which he appears later in the document first given.
156
PKIVATE LAW IN OLD JAPAN:
No. 34] that the suit was between Matsuyama, master-hlindman of
the first degree,! tenant of the shop of Binzo, Saruga ward
Asakusa, and Hashimoto Zennosnke, retainer of Satake Jiro,
and one other, as defendants ; and that, while the complaint
was in the course of service, the defendants absconded.
But as a fellow-retainer of the defendant undertook to pay
and did pay the claim, and the plaintiff then asked leave to
withdraw, we did not make any order of search.
3d month, 80th day."
[No. 35] Payiitent of a Money-Loan where both
Principal and Surety are Deceased.^
" When both principal and surely are deceased, and
an action is brought against the successor ^ of either,
then if the successor has received from his ancestor any
ricefield or upland or any family belongings, he must
deliver it to the creditor. But on the other hand, if all the
ricefield and upland, as well as the family belongings and
even the house and residence-land, of the ancestor has
already been given as security, either in pledge or in
hypothec, to any person other than the plaintiff, and the
successor has inherited only the name of the ancestor,
then of course the successor need not undertake payment.
In such a case, therefore, both principal and surety being
deceased, it must not be forgotten by the Court trying
the case that payment cannot be enforced from the
successor.! "
1. Kengyo. 2. Cited from " Daibun sosho." No date appended.
3. Ato-kabu. 4. This may be a Resolution of the Chamber of
Decisions. It seems to have been a very late one, for the whole
policy in legislation up to the Tempo period involved the ranking
of hypothecs as no better than ordinary loans.
PART lU. CONTRACT : LEGAL PRECEDENTS. 157
[No. 36] Payment of the Ancestor's Book Debt
by a Snccessor.
Note Appended to an Inquiry.i
"In regard to your inquiry, I think that, where a
creditor sues the successor for payment of a deceased
person's debts, you ought to order payment, provided the
account-book [of the creditor] is sealed [at the entry] by
the debtor, one seal^ alone being enough, and provided
the successor does not dispute the genuineness of the seal.
Year of the Ox, 11th month."
[No. 87.] Money Actions where both Principal
Debtor and Snrcty have been Siwceeded in
the Family-mastership A
"Though the principal debtor and the suret}' are
both deceased, yet if an action is brought against their
sons who have succeeded to the family-mastership, these
ought to undertake payment, provided there is no doubt as
to the genuineness of the [debtor's and surety's] seals. The
Court shall keep this in mind ; and if during a trial the
debtor dies or absconds, the Court has dismissed the cause,
explaining the reason to the plaintiff, yet afterward be again
enters the action against the son of the surety, alleging
that he has no other means of obtaining payment, the Court
shall take cognizance of the action and try it. But the
principle must then be kept in mind that payment is to be
ordered if the instrument of debt contains an express
1. No year-period appears. Cited from " Kwamjo-ki." It is
probably an answer by one Magistrate to another. 2. The debtor's.
For this form of debt, see cases in Part III, Section II. 3. Cited
from " Kosai-jimmon-shu." No date appears. The document is
probably a Resolution of the Chamber.
158
PRIVATE LAW IN OLD JAPAN ;
No. 33] stipulation that "If any thing happens to the principal,
the surety shall undertake payment;" and that if there be
no such express stipulation, payment shall not be ordered,
or else the Court shall consult [the Full Chamber]." ^
[No. 38] 3Ioncij Actions against Persons Sen-
tenced to Punishment.^
" Although the rule is that, if a debtor absconds, not
having committed any crime, an action may be maintained
for a money-claim against the successor to his estate and
payment is to be ordered ; yet if the debtor has committed
a crime and is deprived of his ricefield and upland, family
belongings, house and residence-land, and exiled from the
locality or sentenced to any graver punishment, no action
may be maintained or p.ayment ordered against the surety,
etc.; and the Court shall in the trial of the case either
apply this principle without more ado or consult [the
Full Chamber.] "
[No. 39] Actions upon Moneij Loans to Adopted
Sons.
" Where an adopted son borrows money and afterwards
absconds, and the creditor sues the adoptive father,^ the
1. It must be remembered that the term rendered " surety"
is sUonhi, which also and originally means " witness," and that
in some regions the shonin was regarded as a surety, in others
as a witness only (see Part II, Chap. II). Hence it was
reasonable to require that the distinctive character of the
shonin as a surety be shown by some express statement in the
instrument; if none such existed, then, it may be assumed, the
sanction of the Chamber was necessary in order that other evidence
might suffice. 2. Cited from " Bumhin-susho." No date appears.
3. Yu-fu.
PART III. CONTRACT : LEG.AL PRECEDENTS. 159
latter is bound to undertake payment, if the adopted son had
already succeeded to the family mastership when he incurred
the debt; but if he had not yet succeeded and was still
under the control of the parent, i then, as the debt was
contracted privately, 2 no order of payment shall be made
[against the father], in case of the son's death; and in
case of his absconding, an order should be made for sus¬
pending proceedings until discovery [of the fugitive].
This is the principle to be applied in actions of the above
sort."
[No. 40] 2Ioneij Actions against a Temple-
Incumhcnt on debts of his Predecessor.^
A Reply to an Inquiry made of
Itakura, Lord of Suwo.
" lu regard to your Inquiry, I will reply that if it is plain,
•on an examination of the instrument of loan, that the money
was borrowed for the use of the temple, no further delibera¬
tion is necessary [and payment should be ordered]. It
is true that the Shingon sect have a rule that no succeeding
incumbent should be held liable for the money obligations
of bis predecessor. But as this is a special rule made by
the sect itself, it should not be followed in actions between
members of that sect and any other, and the successor
should be held liable."
1. Oya-gakari. 2. Aitai. This is a new example of the idea
involved in aitai. Comparing this passage and those in which aitai
indicates transactions not witnessed by local officials, we may per¬
haps generalize and^ranslate aitai " without special authority o.i
sanction." 3. Cited from " Chiho-kosai-roku." No date appears; but
Itakura was Temple Magistrate about 18G0.
160
PRIVATE LAW IN OLD JAPAN :
41] [No. 41] Payment of Money Loans incurred hy
a preceding Temple-Incumbent}
" (1.) If the incumbent succeeded to the benefice
without knowing of any claims against his predecessor
and also without being informed thereof by the proclamation*
chief of the temple, then he is not hound to pay, and pay¬
ment is to be made by the disciples of the predecessor^
or by his surety. This is an old custom.
(2.) If money is borrowed by a temp le on hypothec on
deed of sale of its miscellaneous articles,^ Buddha-utensils,3
fixtures, etc., and the debt is in arrear, the person contract¬
ing the loan and his surety shall be punished, and no order of
payment shall be made.^
(3.) Although an incumbent declares that he was not
aware [upon his accession to the benefice] of any claims
against the predecessor, still, if he had not [at the time]
declared that he would not enter upon it if there were any
claims outstanding against the predecessor, he and [his]
surety will be liable."
[No. 42] Picfusal to pay hy a Debtor taking
advantage of some fault on the part of the
Creditor}
1. Cited from "Chiho bunshu." No date appears. 2. Ju-
motsu. 3. Butsu-gu^—the censers, candlesticks, etc. 4. This
rule corresponds with that laid down in a passage of the Kuji-
kata Osadamegaki (Eudorff, Tokugawa Gesetzsammlung, p. 55),
dated Gembun, III, 4 (May, 1738). Probably the above document
is a mere repetition of the Osadamegaki. 5. Cited from " Sliojl-
dome." No date appears, but the magistrates' names indicate it
approximately as of the Tempo period (1830-1843).
PART III.-—CONTRACT : LEOAL PRECEDENTS. 161
An Inquiry made by Naito, Captain of the Imperial
Body-Guard,i to Tsutsui, Lord of Iga.2
1. Inquiry.
"To Tsutsni, Lord of Iga,
from Naito, Captain of the Imperial
Body-Guard.
I beg to inquire whether there is [in your Office] any
precedent applicable to the followiug case: A borrows
money of B, and, though often requested to pay, fails to
do so; at last, taking advantage of some fault3 on B's
part, A notifies B that he will not pay.
5th month, 14th day."
2. Answer.
"In regard to your letter, inquiring as to the case where
a debtor takes advantage of some fault on the part of
the creditor and refuses to pay, I will reply that, although
the case may differ according as the fault is more or less
serious, yet if it is so inconsiderable that it may be excused
upon apology made, then the creditor should be ordered
to make apology to the debtor, and the latter should be
ordered to pay the debt; or, if a private settlement has
been made, it should be sanctioned. Such is my opinion,
though after careful search I can find no precedent applicable
to the case. I enclose, however, a case which I found;
though after all you may not consider it worth notice.
Year of the Tiger, ^ 6th month.
Tsutsui, Lord of Iga."
1. Finance Magistrate. 2. Town Magistrate. 3. The answer
shows that the " fault" consisted in an injury or insult of some
sort to the debtor. 4. In the Tempo period the Tiger years were
1880 and 1842; the document probably belongs to one of these two
years.
Vol. XX. Slip. Ft. ili.-ll.
162
PRIVATE LAW IN OLD JAPAN :
Ko. 42] 8. Precedent enclosed in the Answer,
" Temmei, IV, Dragon (1784).
Before Makino, Lord of Osumi.
In the case of Joyemon, tenant of the shop of Yabei,.
Fukagawa Ward, Sangen Block [Yedo].
The above person some years ago made an advance ^ to
Sano, Chief of Imperial Magazines, Attendant of the Shogun's
Court, for his household expenses, and had at the same time
paid 800 ryo as character-security money.^ The repayment
of the latter sum having been delayed, the said Joyemon
brought an action for it, in the last year of the Ox (1781)..
An amicable agreement 3 was reached, the debtor paying
50 }'i/o down, and promising, in settlement of the remaining
250 ryo, to send yearlj' instalments of rice,—800 bales *
in the year of the Tiger (1782), two years ago, 800 bales
in the year of the Hare (1783), last year, and 150 bales
in the present Dragon year ; and the debtor made out
and delivered an instrument undertaking as above. Upon-
this private settlement 6 being made, the plaintiff in the
aforesaid Tiger year (1782), asked leave to withdraw, which
was granted. But in the last Hare year, 10th month-
(1788), an action was again brought by the plaintiff,
alleging that the rice-instalments of the first two years had
not been paid. An attendant ^ was sent by the Court to
direct an amicable agreement. But meanwhile, on examina¬
tion, the Court learned that the market-price of rice was low
when the contract for the payment of the 250 ryo in rice-
instalments was made, and that since then it had risen, so
that at the time [of bringing the second action] the delivery
1. Shiokuri-kin. 2. Mimoto-shoko-kin. See No. 28, 2. The
connection of these two transactions is not clear. But apparently
Joyemon had entered into some relation of confidence with the
feudatory and had therefore given security-money. 3. Jukudan.
4. Hyo; one hyo contained usually 3^ to, but varied according to the
custom of thS region. 5, Naisai. G. Soye-tsukxti.
PART HI. CONTRACT : LEGAL PRECEDENTS. 163
of 800 bales, that is, one year's instalment, would be suffi¬
cient to repay the 800 ryo. Tiiis being the case, it was
clear that, although the first two instalments were due
and unpaid, the terms of the instalment-provision had
become unreasonable, and that to order payment strictly
according to the terms of the agreement would give the
creditor an excessive advantage. The Court therefore
ordered that, since it would be improper to enforce the
agreement strictly according to its terms (although other¬
wise if the suit had been brought after the price of rice
had again declined), the plaintiff should arrange with the
defendant and substitute an instrument promising pay¬
ment in money instalments, and then bring suit again
[if payment were not made] ; or else should wait for a fall
in the price of rice.^ But in spite of the exhortations of
tbe Court to this effect, the plaintiff considered only his
own gain, was obstinate, and acted unconscionably, to
such a degree that the Court was obliged to order him to
prison. But he is now repenting his misconduct and
wishes to be pardoned, and declares that he has con¬
sulted with Adachi Kwanyemon, a retainer of the defendant,
the Chief of Magazines, and that he desires to substitute a
mouey-instalmeut instrument, and asks leave to withdraw
his complaint. Nevertheless he is censured by the Court,
for so regarding his own gain only, in spite of the attempts
of the Court to convince him that it was reasonable to
make the above substitution by private arrangement with
the defendant.
In the above action the parties after consultation made
a private settlement and asked for leave to withdraw, which
was granted."
1. It may be thought singular that the debt was not reduced to a
number of bales of rice just equivalent at the ruling prices to 250 ryo.
But the payment wa^to be made by instalments and this expedient
would only have left opportunities for further uncertainty in the
future.
164
PRIVATE LAW IN OLD JAPAN :
• 48] [No. 43.] Payment of Money Claims against a
deceased Adopted Son.
A Petition by Eato Sezayamon, retainer of Abe,
Lord of Noto. ^
1. Petition.
" I had a second-eon, whom I sent in adoption to a
resident of another fief; and after succeeding to the family-
mastership there, he fell ill and died, his last request
being that a suitable son-in law be adopted and married
to his daughter; and a son-in law was thus adopted and
made family-master, with the sanction of the lord of the
fief. Now this second-son of mine had during the time that
he was family-master incurred a number of debts in the
shape of loans and unpaid purchase-money for which his
creditors have demanded payment of me, his natural parent.®
But I for my part have not known any thing of these
claims, and it seems to me unreasonable that a natural
parent should have to undertake payment of the debts of a
second-son incurred during bis mastership of the family of
his adopted father, and, furthermore, that as the above-
mentioned adopted son of my son (youthful though he is)
has succeeded to the family name, he, and not the deceased
man's natural father, is liable for these debts. The purpose
of my letter is to ask in private an expression of your
opinion as a guide for future action.
Year of the Boar, 9th month.
Kato Sezayemon."
2. Ansiver. *
" In regard to your letter I will reply that a natural
father ought not to be liable for loans or goods sold on credit
to a second-son during the latter's mastership in another
1. Addressed probably to one of the Magistrates. 2, Jitus-
kata-oya.
FART ni. CONTRACT : LEGAL PRECEDENTS. 165
family; and moreover, that as long as an adopted son
(youthful though he is) of that second-son has succeeded to
the family-name, and is still family master, the natural
father certainly ought not to be held liable, unless there is
some special reason, because the debts of a family attach
to the family-name."
[No. 44]. Proceedings tvhere in Actions against
Militarg Gentrg the Defendant's Lord
changes.^
An Inquiry made by Itakura, Lord of Suwo,2 to
the Town Magistrates of Yedo, Ishiya, Lord of
Inaba, and Kurokawa, Lord of Bichu.
Dated Bunkyu, I (Cock), 10 (November, 1861).®
1. Inquh'y.
" A money action was lately brought by Toy oka,
master-blindman of the first degree, ground-renter of Hokuden
Kotaro, against the retainers of Matsudaira, Lord of Totomi,^
for the recovery of arrears due ou loans made for their
lord's household expenses. But while the trial was pending,
a change of incumbents® took place, Yoshichiro being
ordered [by the Shogun] to succeed to the estate.® This
being the case the retainers of Yoshichiro asked to have the
1. Dai-kawari, lit., generation-change. In actions against the
higher nobles a retainer was usually made defendant; hence a change
of lords caused by death and the succession of the heir, meant in
fact a change in the person of the real defendant. 2. Temple Magist¬
rate. 3. No date appears. But the only years when these two Magis-
strates were in ofBce together were Bunkyu I and a portion of Bun¬
kyu II, (1861-2), and 1861 was the year of the Cock. 4. Beally a
claim against the lorA himself. 5. Dai-kawari. 6. The Shogun's order
was in effect a nominal proceeding only, the daimyo doing very much
as he pleased under most circumstances.
166
PRIVATE LAW IN OLD JAPAN :
No. 44] action suspended, in the manner ordinarily followed (they
say) by you in temporarily suspending actions [under
similar circumstances]. I wish to leam whether it is true
that you are accustomed to order a temporary suspension in
all cases of succession.
Year of the Cock,
10th month."
2. Ansuer.
" In regard to your letter we have to reply that, in the
actions brought in our Court by certain townspeople
against the retainers of the Lord of Totomi, we have ordered
that, inasmuch as a succession has occurred, the action
shall be dismissed, but it may be re-entered [against the
same defendants, as under a new lord] whenever the plaintiff
wishes. It has long been our custom to dismiss actions
temporarily in such cases.
Year of the Cock,
10th month.
Ishiya, Lord of Inaba;
Kurokawa, Lord of Bichu."
[No. 45] Loans from the Eeserve-Fund^ set
aside for the use of the Time-heeping At-
tendmts^ in the If est Palace.^
An Inquiry made by Furukawa, Lord of Yama-
shiro,* and Muragaki, Lori of Awaji, * of Iwase,
1. Tsu7nUate-kin. 2. 0-taiko-kata no bvzu, lit., priests of the drum-
department. They were called " priests " because their heads were
shaven. Drums were used for marking the hours; hence the " drum-
department " was the name given to the time-keepers. 3. Nishhnani;
the part just inside and above the Sakurada Gate. See McClatchie,
in Trans. Asiat. Soc. Jap., VI, 119. 4. Then Finance Magistrate.
PART III. CONTRACT ; LEGAL PRECEDENTS. 167
Lord of Iyo,i and Sakakibara, Minister of the
Imperial Revenues.i
Dated Bunsei, II (Hare), 10 (December, 1819).2
1. Consultation.
To Iwase, Lord of lyo ;
Sakakibara, Minister of Imperial Revenues,
from Furukawa, Lord of Yamasbiro ;
Muragaki, Lord of Awaji.
The whole body of Attendants at the Western Palace
have long been accustomed, by mutual agreement, to set
aside a small portion of their salaries, 3 [for the use
■of the Timekeepers] and to lend an interest from this
fund from time to time to such persons as the rice-
brokers, * the object being to defray the expenses incurred
by the Timekeepers in their occupation, for the Timekeeping
Attendants of the Palace are not able to maintain their posi¬
tions without some such aid. [The interest on] some of
these loans is now in arrear ; but the Magistrates are unable
to enforce payment, because the loan was made without
proper sanction.® Recently the Attendants requested to be
allowed to have the loan regarded as re-made and to receive
sanction for that purpose; but the only answer was that
this would offer a bad example, and that sanction could not be
given. A petition was thereupon made by the Chief of
1. Then Town Magistrate. 2. Cited from " Shoji-dome." No
date appears; but this was the only Hare year when all these were
in ofiBca together. S. Kirimai-kin. 4. Fuda-sashi. 5. The reference
is to the rule that no samurai should engage in any occupation for
gain. Samurai might make deposits for safe-keeping, but not loan
upon interest. The creditors in this case might perhaps have been
punished for their violation of law by a forfeiture of the whole
sum lent. But ther^ does not seem in fact to have been any real
question as to their recovering their principal. The doubt was as
to their recovering interest.
168
PRIVATE LAW IN OLD JAPAN :
No. 45] Atteudants, alleging that the Timekeepers would not be
able to maintain their position if deprived of the profit of their
fund, and begging that the amount due or to become due [on
the loans already made] might be graciously sanctioned by the
Shogun from time to time, so that their payment might be
enforced by the proper Court. This petition was sent down
to us by the Lord of Suruga,i with the oral message that as
the Timekeepers would be placed in an embai-rassing condi¬
tion if they lost the profit of their fund, some means had
better be found for preventing this, and he suggests the
following method.
Let the interest on these deposits,2 when it is paid, be
yeavl}' deposited with the Chief of Attendants; and mean¬
while let the Town Magistrates, upon application by the
Chief of Attendants, make a special order for payment,
so as not to treat the cases like ordinary money-actions ;
furthermore, although these deposits have not been sanc¬
tioned, yet as they have been made out of a fund established
bj' saving and setting aside portions of the Attendants'
salaries in order to enable their fellow-attendants to
maintain their position, it would be desirable, if j)ossible,
for you to make a special order to the depositaries
[containing a general instruation on the subject], and
commanding payment on application of the Chief of
Attendants, so as to avoid the inconvenience of petitioning
the Shogun on every occasion.^ We therefore refer the
matter to you and hope to have some answer to report to
the Lord of Suruga.
Year of the Hare,
10th month." *
1. The presiding Councillor of State for the month. 2. " De¬
posits " bear no interest, and hence it would have been improper
to apply the term " loan " to these, although the creditors had
designed to get interest. 3. Evidently the Shogun had aheady
given sanction to some extent.
PART III. CONTRACT ; LEGAL PRECEDENTS. 169
2. Meinoiandu7H by the Lord of fyoA
" (1). The whole body of the Attendants at the
Western Palace have long been accustomed, by mutual
agreement, to set aside a fund and make loans from it [for
the use of the Timekeepers], because these, unlike the
otliers, cannot maintain their position without some such
assistance. [The interest on] some of these loans being in
arrear, the Chief of Attendants, in the last Tiger year,
requested us to order payment; and we asked whether the
loans had been sanctioned in the beginning, stating that
otherwise we must regard the loans thus made from a fund
composed of salary-savings as private 2 loans ; of which the
Town Magistrate could not enforce payment. Now in the com¬
munication recently made to us by the Finance Magistrates
it is stated that the loans were to rice-brokers. If this be
so, that matter must be disposed of by the Saruya ward
Assembly-Office.3
(2) [Notwithstanding this,] we should, if ordered by
the Shogim, proceed to enforce payment, on notice by the
Chief of Attendants of a default in pa3-raent. But I do not
believe that we can do so now, [without such an order,]
merely upon application of the Chief of Attendants, even
though an oral instruction has been given to that effect by
the Lord of Suruga, and is approved bj" the Finance Magis¬
trate.
Note, that I do not see any reason why we should not
treat this transaction like an ordinarj' monej'-actiou, if an
order to enforce payment is given by the Shogun ; but a
special order of paj-ment must first be made.
Year of the Dragon,
1st month, 12th daj'."
1. Probably laid before his colleague or a Private Session of the
Town Magistrate's Court. 2. Aitai. 3. Saruya-machi-lcicaisho. This
was a Government office in the Asakusa district, Yedo, near the
Government Eice-St»rehouses, where loans were made at low interest
by the Finance Bureau to the rice-brokers, who in turn lent to the
samurai.
170
PRIVATE LAW IN OLD JAPAN :
No. 45] 8. Beply of the Town Magistrates.
" To the Lord of Siiruga:
Our opinion in regard to the treatment of the
reserve-fund of the Timekeeping Attendants is as follows ;
We have received for our consideration two documents;
one, a memorial presented by the Chief of Attendants, in
regard to enforcing payment of loans from the reserve-fund
formed from salary-savings by mutual agreement of the
Attendants, for the purpose of enabling the Timekeeping
Attendants of the Western Palace to maintain their position;
the other, a communication from the Finance Magistrates
and their Trial Bureau, proposing that the Town Magistrates,
Court! should adjudicate upon the above loans and enforce
payment [of interest] from time to time; that in the future
the Attendants should make no more loans privately, but
should send [for permission] to the Town Magistrates'
Office,! for example, have their moneys lent out to toivns-
people, and, on receiving interest, deposit it with the Chief
Attendant; so that by this means the Timekeepers should
■obtain the assistance they need to maintain them. On due
consideration we find that no instance has ever been known.,
except in the case of royal abbots and Buddhist and Shinto
temples, where one of the gentry 2 has brought an action for
money lent on interest. We except, indeed, also, the case of
Matsudaira Tarozayemon, Councillor of the First Rank,® who
1. Bugyosho; in some of its functions a Court, in others an
administrative Office. 2. Buke, here use^ in its widest sense.
3. Kotai yoriai. Of the vassals of the Shogunate family, Mr.Rudorfl
says : " These fell into two great classes, the hatamoto, with incomes
of between 300 and 10,000 koku, who again had their sub-vassals ;
and the gokenin, with incomes of less than 300 koku, usually running
•only with their feudal office. * • • The hatamoto were divided
into taishin and yoriai, with incomes over 3,000 koku, and omemiijo^
with incomes between 300 and 3,000 koku. The former class were
known as taishin (great-income), if they were occupied in active of-
paet iii.—contract: legal precedents.
171
receotly petitioned Makino, Lord of Bizen,i for permission to
lend out his assistance-fund^ for the purpose of obtaining
money to improve and cultivate a piece of land, part of a
benefice from the Shogun,® in Sanshu,^ which was in pressing
need of attention ; hut in this case, before any sanction had
been given, it became known that certain of the retainers
of the said Matsudaira had unlawfully lent out moneys,® and
they were tried before my predecessor, Nagate, Lord of
Bigo, convicted, reported to the Shogun, and punished. It
is true that there are precedents where certain families
have made deposits of their reserve-funds ® with towns¬
people, and, upon notice of arrears and application [to
Court], payment has been enforced. But these were cases
of genuine deposits, bearing no interest of any kind, or, if
interest was mentioned in the instrument, the Court
enforced repayment of the principal only. Besides this
consideration, it is not merely the Timekeeping Attendants
whose circumstances place them in need of money, but
every one whatever whose salary is scanty; and if those
should be allowed to loan from their funds for the purpose
of maintaining their position and get the Magistrates' Office
to sanction^ the loans, all the other lower samurai^ whose
salaries are scanty and whose necessities are pressing might
ficial service ; and yoriai (councillor), if they were invested with no
real office, but only with an honorary title ; in the latter case they
were either kotai (alternate)-?/on'ai or hira (ordinary)-yoriai. (Rechts-
Sfiege unter den Tokugawa). In the Hundred Latcs of lyeyasu, the
kotai-yoriai were ranked just above the Finance and Town Magis¬
trates.
1. Then presiding Councillor. 2. Teate-kin. See p. 24, note 6.
3. Go-shogo (august title); probably of the above import. 4. Mikawa
fcuni. 5. Probably on their lord's account. Thus he first violated the
law and then tried to get sanction when it was too late. 6. Sonaye
(provision against \9ss)-kin. 7. This term may imply that the office
also directed the placing of the loan. 8. Gokenin; samurai having
under 800 koku income. See p. 170
172
PRIVATE LAW IN OLD JAPAN :
Ho. 45] petition without end for a similar privilege, and irregularities
of all sorts would be introduced. Furthermore, it is stated
in the memorial of the Chief of Attendants that loans wero
made from the Attendants' fund to rice-brokers under their
control 1 as well as to ordinary townspeople. Now until
this time there has never been such a thing as an applica¬
tion to us to sanction a loan from one of the military gentry
to another.^ The Chief of Attendants declares that stiict
provision will be made, if the permission is granted, to prevent
"additional moneys.This is of course proper; yet as
years pass away the strict enforcement of such a rule will
be less and less probable.
On the whole, reflecting that ever since the period
Horeki (1751-1763) interest loans from reserve-funds [of
military gentry] have invariably been relegated to the
private understanding of the parties and no sanction
given, we regard it as unseasonable that this Office should
now make a special exception for the benefit of the Time¬
keepers only. Considering the special needs which affect
the petitioners in the fulfilment of their duties, we
should regard it as not improper, with reference to loans
to townspeople only, and on application of the Chief of
Attendants, in the name of the whole body of Attendants,
to enforce payment, not of the interest, but of the
principal only, in analogy to the above-mentioned cases
in which we have been accustomed to enforce payment
of arrears of reserve-funds deposited with townspeople.
We think, in conclusion, that if you decide to make no-
order for payment [of interest] on future loans, you had
1. Shihai. How there could be any relation of control does not
appear. But the reference may be simply the influence exercisable
by the Attendants through their position at court. 2. Some of
the fuda-sashi were samurai. 3. Sashikuwaye-kin. See p. 118,
note 1.
PART III.—CONTRACT : LEGAL PRECEDENTS.
178
better not direct the payment of interest on the existing
loans.i
Year of the Dragon,
1st month.
Iwase, Lord of lyo;
Sakakibara, Minister of Imperial
Revenues."
4. Appended Note of tlie Town Magistrate.
" We acknowledge the receipt of your order, in
which you direct the Chief of Attendants, agreeably to our
eommunication, that henceforth no private loans® on interest
are to be made from the reserve-fund of the Attendants; and
direct us, when default is made in the payment of any sums
.[belonging to that fund] and deposited with townspeople, to
order, on application by the Chief of Attendants, a payment
•of the principal only.
Sakakibara, Minister of Imperial Revenues,
Town Magistrate."
[No. 46]. Compensation given by an Innkeepier
to a Traveler whose Goods ivere stolen at
his Inn.
A Reply of the Finance Magistrate to an Inquiry
made by Ino Genpachiro, retainer of Matsudaira,
Minister of Palace Supplies.®
1. Inquiry.
" On the night of the 18th instant one Kosuke, of
Joshu,* Komura teori, Hamyo village, in the fief of Matsu-
1. The last sentence is somewhat ohscnre, but seems to be of
this pm-port. 2. Aiad of course no permission would be given for
duly authorized loans. 3. There is no date to this case. 4. Kotsuke
Jcuni.
174
PRIVATE LAW IX OLD JAPAN :
No. 46] daira, Minister of Palace Supplies, lodged at the Nakura
House, of Sakubei, in the post-town of Warahi. He
was placed in the same room with another traveler,
who was said to be of Omiya village and to have
lodged once or twice before at Sakubei's. This fellow-
lodger stole from Kosuke the following articles, which
were wrapped in a yellow-green cloth and placed in a
willow basket: 8 pieces ^ of white silk ; 2 1 piece of yellow
silk ; ® 1 piece of white silk ; ^ 3 small pieces of the same j
170 momme of white hemp ; 1 hu of gold wrapped in paper ;
and 1 letter. No suspicion attached to any of the servants
or members of the household; but Sakubei was sorry for
Kosuke's plight, and gave him for his travelling expenses
2 ryo 1 bu in gold, which Kosuke accepted. We wish to
know how to proceed in case the thief is apprehended and
Kosuke sues for the recovery of his goods.
Ino Genpachiro, retainer of Matsudaira,
4th month. Minister of Palace Supplies."
2. Appended Answer.
" In regard to your inquiry, Yamaguchi Tetsugoro,
Superintendent® of Warabi post-town, has reported that
his officers brought news of a thief entering Sakubei's house
and stealing articles belonging to a traveler lodging
there, but stated that they were unable to discover him.
The report being in due form, we have accepted it and have
instructed the Superintendent to report as soon as the thief
is caught. I understand that you make inquiry about the
2 ryo 1 hit in gold, which Kosuke received as a present from
Sakubei. The sum being given by Sakubei out of kindness
by way of assistance on account of the loss Kosuke had
1. Hiki; one hiki is 52 feet long. 2. Neri-futo-ori; a quality of
silk. 3. Ki-futo-ori. 4. Shira-kinii. 5. Shihai, i.e. the daikioan or
deputy.
PART III. CONTRACT : LEGAL PRECEDENTS. 175
suffered, the transaction was a private one; ^ and you
had better, therefore, have the parties draw up an
instrument providing that whenever the thief shall
be apprehended and the goods recovered, the sum shall
be restored to Sakubei.2 Moreover, in case Kosuke
informs you that in his opinion no suspicion at¬
taches to Sakubei's family, [and asks for a search for
the thief], you should sanction his request and instruct
him to enter action against the thief, as soon as he is found.
If, however, your special question is as to the propriety
of Kosuke's receiving the money from Sakubei, you may,
if your lord thinks best, order him to return it as soon as
may be.
Year of the Monkey,
4th month."
[No. 47] Monetj Loaned by an Innkeeper to a
Traveler tchose Goods tcere stolen at his
Inn.^
A Reply * to an Inquiry by a retainer of Matsudaira,
Under-Minister of the Interior.
" In regard to your letter about Yabei, of Konosu
post-town, Noguchi Tatsunosuke has reported to us that he
has been tried before Asaoka Hikoshiro, deputy in charge.
The said Yabei, when the goods of his lodgers, Sakata
Jinbei and Takahashi Yahachi, were stolen, ought immediately
to have reported it to the officials of the post-town and
1. Altai, that is, made without any authenticated instrument.
2. Apparently this is not because such was supposed to be the under¬
standing of the partigs, but because it was thought just. 3. No date
appears. Cited from " Kwamjoki." 4. Probably by the Finance
Magistrate.
176
PRIVATE LAW IN OLD JAPAN :
17o. 47] made complaint against the thief. But he did not do this,
and hushed the matter up by presenting a sum of money
to the lodgers. Moreover he knowingly allowed a traveler,
claiming to be a retainer of Matsudaira, Lord of Echizen,
to lodge the same night in another room in the house
without even inquiring his name; and he entered his
complaint only after yon had sent and informed him that
you had reported to the Magistrate. All these acts were
violations of law ; and you are to fine him 3 kivammon, order
him to enter an action agaiust the thief as soon as he
is found, and infiict some lighter penalty on Jimhei and
Yohachi. As for the 2 hu received by them from Yabei, you
should take it from them, send it to Hikoshiro,i who should
return it to Yabei, also notifying Hikoshiro in advance of
these instructions.
Year of the Goat,
12th month."
[No. 48] Disposition of Money Loan Actions in
Osaka Jurisdiction.
Instructions 2 to the Commandant 3 of Osaka.
Dated Temmei, I (Ox), 7 (September, 1781).
(1.) Disposition of money loan actions in Osaka jurisdic¬
tion.
Although the general rule has been that actions by
residents of Osaka or any private fief ^ are to be brought
before the Temple Magistrates and actions by residents
•
1. The deputy. 2. By the Council of State. 3. Jodai (castle-
deputy). The Commandant of Osaka, the chief of the Shogunate
provincial cities, was in charge of the civil as well as the military
affairs of the district. Under him were the Osaka Town Magistrates
and other officials. 4. Shiryo,—a, fief not held by the Shogunate
family. 5. The defendants here would be residents of any other fief
or of Shogunate territoiy.
PART III. CONTRACT LEGAL PRECEDENTS
177
of a Shogunate district i before the Finance Mugistrate, in
both of which cases the parties are to be summoned to
the Chamber of Decisions by the complaint ^ of the presid¬
ing Temple or Finance Magistral e bearing his own first-
seal ^ and the Full Chamber's indorsing-seal,^ whereupon
the case is tried and judgment rendered; nevertheless,
hereafter, the rule in money loan actions shall be as
follows :
In actions by residents of one of the Three Districts
of Osaka or of the 4 kani of Settsu, Kawachi, Idzumi,
or Harima, against residents of one of the 28 laini of Awa,
Awaji, Sanuki, lyo, Tosa, Bizen, Bichn, Bigo, Mimasaka, Aki,
Suwo, Nagato, Idzumo, Hoki, Iwami, Inaba, Oki, Chikuzcn,
Chikngo, Buzen, Bugo, Hizen, Higo, Hynga, Osumi, Satsuma,
Iki, or Tsushima, and actions by residents of one of these
28 kuni against residents of Osaka, Settsu, Kawachi,
1. Go-ryo-chi,—land administered by daikwan (deputies) or
jito (esquires!. The defendants here would be residents of any
other Shogunate district (including Osaka, etc.), or of a private fief.
The case is said to be " brought before " a Magistrate, but the only
meaning of this is that the case is entered with the Magistrate and is
really adjudged by the Chamber. The new ai-rangement here provid¬
ed for means that the local Magistrates were to take preliminary
cognizance, and then despatch the case to the Chamber, as before.
2. Meyasu. Apparently the meyasu had the character of an official
writ, as well as a complaint. This passage would indicate that it
was drawn up by the Complaints Bureau on the plaintiff's oral rela¬
tion. 3. Shohan. See aiite, p. 22. 4. Ura (baok)-7jan (seal). It is
not clear whether this refers to the inferior seal (mitome-in, which a
man might have in addition to his jitsu-in or official seal), which
might be borne on the back (ura) of the seal-block; or to the fact of
the seal being impressed on the back of the document. The former
is much the more probable. Thus the Full Chamber's sealing of the
complaint would be known as ura-han (here rendered " indorsing-
seal"); while the ordinary summons for trial in a Magistrate's
Court in 7 days would be termed ura (hsick)-gaki (writing); here
rendered " iudorsemSit." But it is not yet certain that such a dis¬
tinction existed.
Vol. XX. Sop. Pt. ill.—111.
178
PRIVATE LAW IN OLD JAPAN :
Ho. 48] Idzumi, or Harima, shall be disposed of (the old usages and
precedents being observed) by the Osaka Town Magistrate's
Office; except [actions against residents of] Idzumi, which
shall be disposed of by the Magistrate of Sakai.^
(2.) Although the general rule has been that actions by
townspeople of Osaka, Fushimi,2 Nara,3 Sakai, or [by
residents] of any private fief are to be brought before the
Temple Magistrate, and actions by residents of a Sbogunate
district before the Finance Magistrate, the parties being
summoned in both cases by the presiding Magistrate's
complaint bearing bis first-seal and the Full Chamber's
indorsing-seal, and trial and judgment thereupon ensuing,
nevertheless hereafter the rule in money loan actions shall
be as follows:
Actions (a) by those in the jurisdiction (4 Ataii) of
Osaka against those in the jurisdiction (4 /ci/m) of Kyoto,
and (1») vice versa: Here (a) actions by those in the
Osaka jurisdiction against residents in Yamasbiro, Omi,
and Tamba kuni,^ shall be disposed of by the Kyoto
Town Magistrate's Office, but actions against residents
of Fusbimi town by the Fusbimi Town Magistrate, and of
Yamato kuni by the Kara Town Magistrate; (i) actions
by those in the Kyoto jurisdiction against those in
Osaka jurisdiction shall be disposed of at Osaka, judgment
being rendered according to the old customs, except
those against residents of Idzumi kuni, which shall be
disposed of by the Sakai Town Magistrate.
Note, that money loan actions brought by a number
uf residents of Kyoto, Fusbimi, Nara, and Sakai, on
1. The town second in commercial importance to Osaka; it was
in the kuni of Idzumi. 2. The port and suburb of Kyoto, in Yama¬
sbiro kuni. 3. The chief town of Yamato kuni, formerly an Imperial
capital. The above four towns, with Nagasaki, Hakodate, Niigata,
Uraga, Shimoda, and Sumpu were of chief commercial importance
and were each under a Shogunate Magistrate. 4. These, with Yamato,
formed the Kyoto jurisdiction.
PART III. CONTRACT ; LEGAL PRECEDENTS. 179
R joiut complaiut [against those in Osaka jurisdiction]
shall be disposed of by the Osaka Town Magistrate, after
the analogy of the above actions.
(3.) Actions against residents of kuni other than
those mentioned, including money loan actions, shall
[continue to] be disposed of by the Temple Magistrate,
if brought by residents of Osaka or any private fief, and
by the Finance Magistrate, if by residents of a Shogunate
district, in both cases the [complaiut bearing the] first-seal
of the presiding Magistrate being sent to the proper
tribunal! -yyith an additional document by way of explanation.
Money loan actions shall, as above provided, always
be determined according to the old usages and precedents.
Actions other than these shall be disposed of according
to the recent decree in the year of the Dog (1778), the
cases being reported to the Chamber of Decisions and care
being taken to observe the law with strictness. Up to the
present time in an action begun by a complaint bearing the
indorsing-seal of the Full Chamber of Decisions, the de¬
fendant has not been sent down [to Yedo] if a prior action
is pending against him; but hereafter, even in such
cases, he shall be sent down to Yedo to appear-
on the day appointed, if he has been summoned by a com¬
plaint with the indorsing-seal of the Full Chamber.
The above provisions you are required to communicate
to the Osaka Town Magistrate's Office."
[No. 49] Money Loan Actions against Flayers.
A Reply of the Yedo Town Magistrate's Office to
an Inquiry by the Osaka Town Magistrate.
Dated Bunsei, VI (Goat), 3, 12 (April 22, 1823).
*.
1. The Chamber of Decisions.
180
PRIVATE LAW IN OLD JAPAN :
1^0. 49j 1. Letter of the Town Maijistrates of Yedo to those of Osaka^
" We have perused your letter. You say that generally,
iu a money-loan action against a player, the loan is made
upon the security of the wages to be received from
the theatre to which he is bound ; so that payment is in¬
variably enforced in Osaka even though the debtor is a
dependent in the household of another, not having a
separate establishment of his own.^ A case may be supposed
where the player has died and the creditor sues his son, who
has succeeded to his father's professional-name ^ in the call¬
ing of an action, or the suit, if there is no sun to undertake
payment, may be against a disciple who has succeeded to
the name and is receiving wages from the theatre. You
made some investigation for the purpose of deciding
what disposition to make of such case; but being unable
to discover any enactments or precedents on the point,
you have made inquiry of us as to the existence of any
enactments or precedents relating to the disposition of
actions against players. We beg to reply that we have
expressed our opinion in the enclosed document.^
3d month, 12th day.
Tsutsui, Lord of Iga.
Sakakibara, Minister of Imperial Revenues,
To
Naito, Captain of the Imperial Body-Guard,
Takai, Lord of Yamashiro.
1. A reference to No. 28, 2, Art. 4, will show that actions could
not usually be brought against a dependent. 2. This is the geimyo
adopted by actors, story-tellers, dancing-girls, musicians, and a few
others, corresponding to the firm or house name of merchants. The
right of using it is a kahu, the name being alienable by the owner.
Faithful pupils might be given the privilege of using it, and its
transmission after death was usually provided for by a testamentary
an-angement, if no son existed. 3. See 3, infra.
PART in. CONTRACT : LEGAL PRECEDENTS. 181
Note. You also inquire about the disposition of cases
where the line of succession to a professional
name has ended, and the name itself has been
taken up, without any special connection
with the last holder, by another person, who
is now sued by the creditors of the predeces¬
sor. Our enclosure contains also our opinion
on this point."
■2. Report of the Trial Bureau to the Town Maijistrates in
ret/ard to the aba re Inqtiirij.
a. Report^ made by the. Headmen of Sakai aud Fulciya
wards to the Trial Bureau.
" We respectfully report to you as follows :
(1) Payment of a deceased player's debts by a son
who has succeeded to his professional name :
(2) Payment of a deceased player's debts by a dis¬
ciple, the grantee ^ of the latter's professional name ;
(3) Payment of a deceased player's debts by one who
has taken up 3 his professional name, after it has
remained awhile without a possessor:
You have made inquiries of us [as to the usage] on
these points, and we reply as follows :
1. The Town Magistrates of Y(;do referred the matter to their
Trial Bureaus; the latter consulted two headmen as to the local
usage. The reports of the headmen and of the two Bureaus con¬
stitute the second group of documents. From this material was
made up the Eeply itself of the Magistrates, which here appears as
3. It is interesting to compare the Eeply with the other documents,
for the writer has followed no one entirely, but has adopted what
seemed to him the best points of all. The result is of special interest
as indicating that the Magistrates in fact guided and took active part
in the work of their offices,—a point of no small importance in the
history of Japanese administration, where the chief ofiBces constantly
tended to become m«»ely titular, and the real power to pass into the
hands of subordinates. 2. Yiizuri-uke-nin. 3. Tsugu, ^follow, come
next).
182
PRIVATE LAW IN OLD JAPAN 1
49] (1) One Hnnshiro, a player, the father of Hanshiro,
borrowed the sum of 44 ryo from one Iso, a dependent in
the household of Dembei, house-master, of New Idzumi
ward, in Kwansei, XI (Goat), 10 (November, 1799). Of
this amount 10 ryo were paid, and the said Iso, after
the death of the father Hanshiro, in Kwansei, XII
(Ape), 3, (April, 1800), and the succession to his
name of his son Kumesahuro under the name of Hanshiro,
demanded payment of the remaining 84 ryo. But her
demands being fruitless, she brought an action, 8 years ago,
in the year of the Dragon, 8d month, 29th day (Ma}' 11,
1820) against the present Hanshiro, the son, in the Court of
the Minister of Imperial Revenues,! and he indorsed the
complaint, on the 7th of the 4th month, in the ensuingj}'ear, 2
May 8, 1821. After consultation by the parties, the
plaintiff received 18 ryo, and a private agreement as to the
remainder was reached on the very day appointed for the
joinder of suit,^ and an instrument drawn up fixing a
period for the paymant of the amount.
(2) One Gennosuke, a player, borrowed the sum of 70
ryo from Kimbei, renting the shop of Chuhachi, of South
Maki ward. The said Gennosuke fell ill and died, in
Bunkwa, IX (Ape), 12 (January, 1813), and his disciple
Gempei, renting the shop of Gisahuro, of Iwashiro ward,
succeeded to the name Gennosuke. The said Kimbei then
brought an action on Bunsei, I (Tiger), 9, 29 (October 28,
1818) before Nagate, Lord of Bigo, then in office, for the
repayment of the whole amount of the debt of Gennosuke
the master, principal and interest together coming to 148 ryo,.
8 bu, and an indorsement of the complaint was made on the
8th of the 10th month, in the same year (November 6, 1818),
1. Sakakibara, one of the Magistrates to whom the Bureau is re¬
porting. 2. Perhaps an error for " same " ; in the action below only ^
days elapsed between entering the action and indorsing. In this case-
the date would be May 18, 1820. 3. Kuji-awase.
PAET lU. CONl'BACT ; LEGAL PBECEDENTS. 18S
A trial was had, and an order of payment issued. But at this
point an agi'eement was reached by the parties that, as the
defendant was too young and too low in his profession to be
able to undertake the payment of so large an amount, he
should renounce the name and never again use it; where¬
upon, as there was no reason why Kimbei should be
allowed to prosecute the action further, he consented
to a private settlement, and on the 24th of the 12th month,
in the same year (January 19,1819) a certificate of discharge
was filed.
(3). As to the payment of the debts of a deceased
player by one who has taken up his professional name,
after it has remained a while without a possessor, there has
been no case of the sort. There have been cases, to be sure,
where the new possessor, who is not a disciple but merely
some other player [having no special connection with the
deceased,] has given an endowment-fund to the family-temple
of the deceased for his benefit, or has voluntarily presented
a small sum of money to the deceased's parents or wife.
But there has been no case in which the new possessor
undertook the payment of the deceased's debts, nor in which
an action was brought against him to compel payment.
We report as above, in answer to your inquiries.
Bunsei, VI (Goat), 2, 1 [March 18, 1828).
Gorobei,
Headman of Sakai ward ;
Shozayemon,
Headman of Fukiya wardr
To the Court." i
h. Eeport of the Bureau.
" In regard to the inquiry of the Osaka Town Magis¬
trates, [we have the following to report:]
— s ^
1. Oo-bamko.
184
PRIVATE LAW IN OLD JAPAN !
No. 49] (1.) Whiit disposition shall be made of an action by
the creditor of a deceased player against the latter's son,
who has succeeded to the father's professional name, the
action being upon a claim against the father ?
In regard to this, we think that, although a son
ought to be liable [for his father's debts where he has
succeeded to the estate], yet it most be noted that in
this case the creditor did not place special reliance on the
father's right to the professional-name, but on his skill
and the wages to be earned thereby; so that if the son
were less accomplished in his profession or were in poor
circumstances for any reason, some arrangement should be
adopted by which the creditor could be convinced of the
true basis of the debt and be made to agree to a composi¬
tion. You should therefore, perhaps, first instruct the
parties to settle without the aid of the Court, taking into
consideration the circumstances of the son.
Ruhric. An action was brought, in Bunsei, III
(Dragon), 8 (April, 1820), iu the Courts of
the Minister of the Imperial Revenues,^ by
one Iso, widow of Hansbichi, dependent in
the house of Dembei, house-master of New
Idzumi ward, who had lent 84 ryo to one
Hanshiro, a player, renting the shop of Gensuke,
Fukagawa district, Yanagawa ward, the defendant
being Hanshiro, formerly known as Kumesaburo,
son of the said Hanshiro (now deceased) to whom
the money had been lent. The Court indorsed
the action, tried it, and finally had the defendant
pay 18 ryo in cash ^ anJ make out a new
instrument for the remainder, to be paid by private
settlement.
1. Go hanslu). 2. Sakakibara, one of the Town Magistrates in
whose Court the writers of this document serve. 3. To (present)-J;fn
(money).
PART III. CONTRACT : LEGAL PRECEDENTS.
185
(2). What disposition shall be made of an action by
the creditor of a deceased player against a disciple of the
player who has taken his professional-name and is
receiving wages from the theatre, there being no son to
undertake the payment ?
On this point, we think tliat when an action is brought
against a mere name-successor, who is not the successor
to the estate, a distinction should be observed between the
case where the defendant owes a special prosperity in his
profession to the possession of that name, and the case
where, as he earns comparatively little, on account of
professional mediocrity, or of not having received a very
popular name, he is not in circumstances which make it
reasonable to undertake payment. In such cases the Court
should persuade the parties to consider the facts and make
an amicable arrangement. Of course if it appears tbat the
disciple's adoption of the master's name was clearly made
without any understanding as to the payment of the latter's
.debts, the plaintiff should recover nothing.
Rubric. One Kimbei, renting the shop of Chuhachi, in
South Maki ward, lent a sum of 70 ryo to
Gennosuke, a player. The said Gennosuke
afterwards fell sick and died, and one Gempei
succeeded to his estate ^ and took his
name Gennosuke; whereupon the said
Kimbei brought suit against him before
Nagate, Lord of Bigo, then in this office,
in Bunsei, I (Tiger), 9 (October, 1818).
The Court indorsed the action; but
while the action was pending, a
private settlement was reached by the
parties, the defendant proposing that, as
his lack of professional skill did not
justify him in taking up his master's
1. Mtiteki.
186
PBIVATE LAW IN OLD JAPAN :
No. 49] name, he should relinquish it and never
afterwards take the name of Gennosuke.
So it was unnecessary to proceed further in
the litigation, and the matter was privately
settled in this way.
(3) What disposition should be made of an action by
the creditor of a deceased player brought against one who
has taken up the deceased's professional name without having
bad any special connection with the deceased, the name
having been for some time without a possessor ?
On this point we think that although it is reasonable
that one who merely takes up the professional name of a
deceased player, without having, as you say, had any
special connection with the deceased, should not be held,
liable for the latter's debts ; yet after all the very fact of his
having adopted that name indicates that there must have
been a connection of some sort. So that in each case,,
we think the parties should be summoned and examined,.
and, if the case seems to requii'e it, they should be persuad¬
ed to make au amicable arrangement.
Such is our opinion in regard to the disposition of
actions against pl.ayers. There are no established rules on
the subject, nor can we find any precedents exactly covering
these points. We report to you as above, enclosing copies-
of the certificate of discharge referred to in the rubric.
Year of the Goat,
2d month.
The Trial Bureau."
c. SuppleHwntary Report of the Trial Bureau.
m
" The above report was sent by us to the Trial Bureau:
of the other Department i in the above month, and they
returned their opinion on the 15th of the same month in tho
enclosed reply, which we now lay before you, our Chief,
without alteration, as follows :
1. One of the Bureaus was in the North Magistrate's Court, the
other in the South; but it does not here appear which is which.
PART HI. CONTRACT : LEGAL PRECEDENTS. 187
1st Question. In regard to your inquiry, if the
Court is merely to persuade the parties as to the-
just course to pursue, you should proceed as you
suggest; but if a formal judgment is to be given,
we think that payment should be enforced according
to the face of the instrument, unless it be deter¬
mined to order payment iu proportion to the
amount of wages received.
2nd Question. We thiuk that the defendant ought not
to be held liable, if it appear that, although he has
adopted the professional-name of his master, he
has not changed his own temple-registration i and
become the latter's adopted son, and consequently
neither has the same family-temple 2 as the
deceased nor has undertaken to support the latter's
family,—in short, that he is in no sense a succes¬
sor, properly so called, but only the successor to a
professional-name.
3rd Question. As you say in your letter, there is
no reason why one who merely takes up the pro-
fessioual-name of a deceased player, without having
had any special connection with the deceased,
should be held liable for the latter's debts; so that
in the absence of special circumstances,^ we think
you ought never even to persuade the parties [to
a private settlement, but should dismiss the com¬
plaint absolutely]
8. Reply of the Tomi Magistrates of Yedo.
(1.) What disposition shall be made of an action
by the creditor of a deceased player against the latter's son
1. This was the record of family-membership. 2. Bodai-slia^
The hodai-sho of a gfren family was that Buddhist temple to which
the family brought its dead lor burial. 3. Such as a special under¬
taking to pay.
188
PRIVATE LAW IN OLD JAPAN :
No. 49] who has succeeded to the father's professional name and
follows the occupation of a player, the action heing upon
a claim against the father ?
In regard to this, we think that, although a son ought
to be liable [for his father's debts where he has succeeded
to the estate], yet it must be noted that in this case the
creditor did not place special reliance on the father's right
to the professional-name, but on his skill aud the wages
to be earned tliereby; so that if the son were less
accomplished in his profession or were in poor circumstances
for any reason, some arrangement should be adopted by
which the creditor could be convinced of the true basis
of the debt aud be made to agree to a composition.
You should therefore, perhaps, first instruct the parties to
settle without the aid of the Court, taking into consideration
the circumstances of the son ; and, if there is no escape
from an action, you should, after rendering judgment,
endeavor to enforce payment of the amount named in the
face of the instrument.
(2.) What disposition shall be made of an action by
the creditor of a deceased player against a disciple of the
player, who has taken up his professional name and is
receiving wages from the theatre, there being no son to
undertake the payment ?
On this point we reply that where a mere name-
successor, who is not the successor to the estate, is sued,
he ought not to be held liable, if it appears that, although
he has adopted his master's professional name, he has
nevertheless not changed his own temjile-registration and
become the latter's adopted son, aud consequently neither has
the same family-temple as the deceased nor has undertaken
to support the latter's family—in short, that he is in
no sense a successor, properly so called, but only
the successor to a professional-name. Still, if it
appears that he owes a special prosperity in his profession
to the possession of that name, this should he taken into
PART m. CONTRACT : LEGAL PRECEDENTS. 189
consideration, and, if the case seems to require it, the
parties should be shown the importance of this fact and
directed to consult and make an amicable arrangement.
(8.) What disposition should be made of an action
b)' the creditor of a deceased player brought against one who
has taken up the' deceased's professional name without
having had any special connection with the deceased, i the
name having been for some time without a possessor ?
On this point we think that although it is reasonable
that one who merely takes up the professional name of a
deceased player, without having, as you say, had any special
connection with the deceased, should not be held liable
for the latter's debts, yet after all the ver}' fact of his
having adopted that name indicates that there must have
been some connection of some sort. So that in each case,
we think, the parties should be summoned and examined,
and if the case seems to require it, they should be persuaded
to make an amicable arrangement.
We have no precedents covering the cases you state,
hut we send you, as above, our opinion on those cases as
to the proper method of disposing of them. "
[No. 50] Petition for the Inclorsing-Seal of the
Chamber in a Moneif Loan Action, by one
ivho has removed from Settsn, Kawachi,
Idzumi, or Harima hiini to any other hint,
against a resident of one of those knni.
A Memorandum by the Town Magistrate of
Yedo.2
Dated Bunsei, 1 (Tiger,) 8 (September, 1818).
1. For example, as son or as disciple. 2. Probably cited from
" Shoji-dome."
190
PRIVATE LAW IN OLD JAPAN !
No. 60] "A towusman, formerly residing in Osaka, Awaza-
yashiro ward, there lent a sum of money, some years
ago, to Gojima Uzen, a Councillor of the First
Rank. ^ The debt beiug in arrear, the said townsman, who
has since removed to this City, 2 brought an action before
me to recover payment. I thereupon' made inquiry about
the plaintiif to the Town Magistrate of Osaka, and received
in reply a letter, from which the following is an extract;
' Whenever a townsman of this place 3 wishes to
remove elsewhere, he must first petition for permission,
and a regulation forbids him to remove without such notice.
The regulation also provides that the petition shall be
granted, if the petitioner desires to move to one of the four
kurii of Settsu, Kawachi, Idzumi, and Harima, provided he
is indebted to no one for a money loan or for unpaid
purchase-money; but it shall not be granted if his desire
is to remove to any Imni other than the above four, even
though he is not indebted for a money loan or for unpaid
purchase-money, unless he has no claims against others
[in Osaka] for money loans or unpaid purchase-money.'
Such was the report from Osaka. Now as the plaintifl"
here is still domiciled in that place, [and as he alleges
a claim against a resident there,] we ought to summon
his ward-officials and deliver him over to them, and this
1 have done.
Reported from the Office.^
Bunsei, I (Tiger), 8 (September, 1818)."
[No. 51] Disposition of Mojiey^Loan Actions in
Os.alia.
1. An Instruction to the Thire Magistrates^ hy the Council
of State.
1. Kotai-yoriai. See No. 45. 2. Yedo. S.Osaka. 4. Go-yo
(Government business)-iej/a (room) ; it is not clear what office
is meant. 5. That is, the Temple, Finance, and Yedo Town
PART HI. CONTRACT ; LEGAL PRECEDENTS. 191
" To the Three Magistrates.
The disposition of money-loan actions in Osaka shall
henceforth be made similarly to the practice in such cases
in this place that is, first, an order for payment within
80 days, without regard to the amount of the debt; then,
if payment is not made during that term, an order for
instalment-payment, based on the amount of the debt. No
distinction shall be made between precedent actions and
subsequent actions ;2 and all actions, no matter how nu¬
merous they may be, shall be disposed of in the above
manner. We have instructed [the Osaka Town Magistrates]
to deliberate with you over the details.
Year of the Boar,
7th month, 19th day,"
2. Eeport to the Council of State bij the Chamber of
Decisiom, as to a Consultation by the Osaka Toini
Magistrates.
a. Letter enclosing the Eeport.
"As we have been instructed that the disposition of
money-loan actions in Osaka is henceforth to be made
similarly to the practice in such cases in this place,—that is,
first, an order for payment within 30 days, without regard
to the amount of the debt, and then, if payment is not
made during that term, an order for instalment payments,
based on the amount of the debt,—and that no distinction
is to be made between precedent and subsequent actions.
Magistrates. No date appears; but the same subject comes up
in the documents contained in Part VI, in the cases relating to
Pledges of Land. A discussion of the dates of the present documents
■will be deferred to that place. It is sufficient to say that No. 51 is of
cither 1827 or 1839, probably the latter ; and that Nos. 52 and 53 lie
between 1806 (or a little earlier) and 1817.
1. Yedo. 2. See No. 28, ante, and 6, infra.
192
PBIVATE LAW IN OLD JAPAN :
50^ all actions, no matter how numerous they may be, being
disposed of in the above manner ; and as you have instructed
the Osaka Town Magistrates to deliberate with us as to-
details, and they have lately consulted us on the subject,
we now transmit to you our answers, contained in the
enclosure, and request your sanction for them."
b. Preface to the rie/tort.
" Inasmuch as the complaints, in certain actions on
money-loans, bearing our indorsing-seals ^ suiiimoniug the
parties to Yedo, were returned to us from Osaka because a
precedent action was already pending [against the same
defendant] in Osaka, we have in the interval since the
last year of the Goat 2 brought to your attention [more
than once] the subject of a I'eforiu in the method of
disposing of money-loan actions [in Osaka], [and you
have in consequence issued your recent instructions]; we
haye therefore determined to express our opinion as to
the method of disposing of the class of actions which are
to be treated like money-loan actions. [But it is not easy
to determine absolutely and once for all what sorts of claims
are to be included in such a list, and what sorts
excluded.] For example, a pledge is to be treated as an
[ordinary] money loan, if for some reason it cannot stand
as a pledge. Now, as to pledges, there was formerly only
one general form recognized ; but in Gembun, II, Serpent
(1837,) a special rule was made for the Eight provinces
of the Kwanto District ® and for Idzu huni, the details of
which are contained in the 1st section * of that law ; and
[since then] there have arisen ma^jj' different forms of
pledge of land, and no action relating to land-pledge,.
1. I.e., actions in which the Chamber took jurisdiction.
2. Seven years before. 3. Lit., first volume; but it might have
contained only a few pages. 4. The special and chief domain of the
Shogunate, centering in Yedo.
PART III. CONTRACT : LEGAL PRECEDENTS. 193
cropping,! house-pledge, can be properly determined
until the provisions of the instrument have been carefully
examined. Thus, though sometimes a land-pledge or house-
pledge may require to be placed on the footing of a hy¬
pothec, which is one of the money-loan actions, and first
a 30-duy term and then instalment-payments ordered,
yet this cannot be done without first examining the
circumstances of each case. For these reasons we should
prefer to have actions in Osaka disposed of on the basis
of tlie forms of transactions in use there. It is true that
the general rule with us has been to treat actions for land-
pledge, cropping, house-plodgo, and hypothec, brought
before us from any kiini other than Idzu and the Eight
Provinces of the Kwanto, according to a uniform rule, and
to recommend you to the same effect, whenever you
referred to us the inquiry of a Magistrate in some other
kiini in regard to an action of pledge, etc., before hiuu
Nevertheless, as regards Osaka actions, it would certainly
cause much confusion, were a change to be made suddenly
and not gradually in the rules applicable to this subject.
M'e think, therefore, that in our answer to the Osaka
Town Magistrates, we had better deal solely with the
subject of inquiry mentioned in the letter accompanying
the instruction,2 i. e. the kinds of claims proper to be
treated on the footing of money loans.
We hereby forward you our report in a separate
enclosure.
Year of the Rat,
10th month, 16th day."
c. Report^ of the Chatither of Decisiom.
" The Full Chamber ot Decisions has received instruc-
1. Kosaku; tenancy of land. See Part II, p. 53. 2. The Council
probably enclosed ^ with the Instruction the inquiries from
Osaka in c. 8. It is in form a reply to the Osaka Magistrates,
but is here laid before the Council in the shape of a report.
V*l. XX. Sup. Pi. lii.—13.
194 PRIVATE LAW IN OLD JAPAN l
No. 61] tions [from the Council of State] that money-loan actions
in your district are to be disposed of in similar manner
to such actions here, and we therefore make the following
regulations, in reply to the inquiries recently addressed
to us by you.
(1). ' When the complaint is entered in a money-
loan action, shall the indorsement be to the effect that, if
payment can be made at once, it sball be, and that, if the
defendant has any opposition to make, a joint-pleading i
shall take place on such-and-such a day, and shall the
complaint thus indorsed be delivered to the plaintiff, with
instructions to serve it on the defendant ? If so, how
many days shall be allowed before the day of appearance,2
and in determining this should any distinction be made
according as the defendant is a villager or a townsman ? '
On this point, we reply that the usual practice with
us, in an action against a townsman of this place, is to
appoint® the 7th day, summon both parties by indorsement
of the Magistrate's Office [when the action is entered] to
appear at the Office, examine them there, and send them
over to the Chamber of Decisions, where final judgment
is passed. In actions against country people the day of
appearance is determiued according to the distance [of the
defendant's locality], in fixing which the opinion of the
plaintiff is considered, and the parties, [after appearing],
are then summoned to the Chamber by an indorsement
containing the first-seal of the presiding Magistrate and
the indorsing-seal of the Full Chamber, and there the
1. Tai-ketsu. 2. Sashi-bi. 3. SaslT. The sashi-bi, or day
of appearance, is apparently the day fixed for the preliminary
hearing of the case, the taking of evidence, etc., all this being
managed by the ofiicials of the Magistrate's Office. Then follows
the tai-ketsu, or joint-pleading, on a regular Court-day, when the
parties appear and are questioned further, if necessary, by the
Magistrates, who have already read the papers of the case.
Judgment was usually deferred until another Court-day.
PART III. CONTRACT : LEGAL PRECEDENTS. 195
joint-pleading takes place. Of course, the joint-pleading
in a money-action is to be appointed for [the regular
days],—the 4th, an attendance-day, and the 21st, a formal-
day, 1—on which days also judgments are to be rendered and
instalment-payments ordered. But there is no fixed rule
for determining the day of appearance, and we think that
you may decide according to the custom, if any, in your
district in regard to appearance-days in money actions and
others.
(2) ' In such actions, where at the joint-pleading the
defendant admits that he is in fact liable for the loan, may
the Court proceed to order payment within 30 days, and,
then, if the case is not settled at the end of the term, order
immediate payment of the first instalment and at the same time
fix the [amounts and times of the] succeeding instalments?
If, when instalment-payments are ordered, the sums are paid
monthly without coming into Court, shall such payments be
sanctioned, unless notice is given [at the time] ?'
On this point, we reply that it sometimes occurs here
that judgment is rendered on the same day as the joint-
pleading ; but usually an order is made that, as the case
cannot be decided immediately, the documents must be
examined again, [and judgment deferred]; this examination
takes place at the official residence of the Magistrate before
whom the action was began ; [first, the interest is inspected];
if, for example, the terms of the instrument show the
interest to be usurious, it is reduced to 15 per cent
per year; then the total amouut of interest is calcu¬
lated, up to and including the month preceding that
in which the action was entered; then all sums paid
privately before action was brought are deducted ; and an
order is then made for payment within 80 days of the
whole sum due, principal and interest, and the defendant is
1. See No. 13, p. 23, note 4, ante.
196
PRIVATE LAW IN OLD JAPAN :
51J ordered to sign an instrument [undertaking payment], this;
being delivered to the plaintiff. If the plaintiff afterwards
makes complaint that payment was not made during the
term, payment of the first instalment is enforced by the
Chamber of Decisions, and the above instrument is
again delivered to the plaintiflf (to be kept until
the whole debt is discharged) with a slip appended reciting :
' So much has been paid; the remainder to be paid within
a term of etc.' Upon payment of the debt in full the
instrument is delivered up to the Chamber by the plaintiff.
Records of all these proceedings are kept in the record-
book 1 of the Chamber. We think that you had better
proceed in a manner similar to the above.
The usual process has been, in actions for arrears
of money loans since Yenkyo, I, Rut (1714),^ to
summon the parties for the 4th or the 21st, and order
payment within 30 days, and, if within that term a
portion, however small, is paid, to order' instalment-
payments twice a month, and, if arrears still continue, to
order execution in bankruptcy. If nothing at all is paid
in the first 30-day term, the defendant is ordered to pay
down on the same day® a certain amount as the first
instalment, and to pay the remainder in instalments twice
a month. If the defendant does not appear, a summons *
is to be sent to appear on the next Court-day for money
actions, and on that day [immediate] payment is to be
ordered, so that no. further order may be made for the
payment of that amount. In establishing the procedure
in this matter, so as to suit the needs of a particular
localitj-, due regard must be paid to itf money circulation.®
Rut in all cases the above rules should be referred to as
a standard.
1. 2Ioto-cho. 2. See No. 5, ante. 3. That is, the 30th day, on
which he has appeared in Court. 4. Sashi-gaki. 5. See No. 28, 1,
ante. The money circulation would be injuriously affected by tou
f,'ieat laxity towards the debtor.
part iii.—contract: legal precedents. 197
Note, that if an instalment is paid out of Court,^ it
is to be sanctioned by the Court upon notice from the
plaintiff, and a note is to be made in the record-book.
We enclose a list of the proper periods and amounts for
the instalments.2
(3). ' If, after an order for instalment-payments has
been made, no payment is made during the 80 days ,3 hut
on the day before the day of appearance * the plaintiff
receives from him, out of Court, the amount due on the
morrow, then must both parties give notice to the Court,
or may this payment he sanctioned if the defendant returns
the summons to Court and alone gives notice of the
payment ? Furthermore, what change, [if any], is to he
made in the form of summons ? '
On this point we reply that instalment-payments are
to he made, as above mentioned, twice a month, after order
made ; hut if the defendant does not appear [on the first
payment-day], for example, on the 4th, a summons shall
he issued, on application of the plaintiff, requiring him to
appear on the 21st, at 5 o'clock in the morning, as there
are some questions to he put to him.'
Ruhrk. Note, that the customary hour here [for
opening Court] is 7 o'clock in the morning, for
an attendance-day,® and 5 o'clock for a formal-
day.® You doubtless have your own customs on
this point.
If an instalment-payment is made out of Court, both
parties must notify the Magistrate's Office in which the
action was entered, on the day before the day set for
appearance, and the defendant must return the summons
to Court. The practice is, when a money action or
any other is sent to the Chamber of Decisions for a
1. Nai-btin (privately). 2. The reference probably is to the list
in No. 102, post. 4 Though it is said that the instalments were
payable twice monthly, the first instalment seems not to have been
-due for 30 days. 4. The 30th day. 5. See No. 13, ante.
198
PRIVATE LAW IN OLD JAPAN :
No. 51] particular formal-day, for all the previous proceedings iu the
case to be entered in a book [kept in the Chamber] on the
day before the formal-day. So that the plaintiff alone, in
the case we are considering, would have the entry made
[in this book] of the amount received out of Court, and the
payment should be sanctioned on his statement that he has
received it.
(4) ' If the defendant, after failing, as above mentioned,
to pay [on the first instalment-day], appears, in obedience
to the summons, on the day [therein appointed] for
appearance, bringing with him the prescribed sum, may the
Court, permitting him to, deliver it to the plaintiff, let him
go without some penalty for his failure to pay as ordered at
the end of 80 days ? '
On this point we reply that it follows from what
has I'ust been said in regard to the mode of enforcing
payment of an instalment when the defendant does not
appear as appointed, that no penalty can be inflicted for that
failure.^
(5) ' What is to be done when the defendant makes no
payment of any kind ?'
On this point we reply that, if the defendant brings no
instalment-payment, both parties are to be sent to the
oflicial residence of the Magistrate with whom the action
was entered, and after investigation an order shall be made
to pay without fail. No further proceeding shall be taken
until notice is given of a failure to comply with this order.
(6) ' Where the defendant often fails to bring in the
instalment on the day for which he is ^mmoned, may the
Court confiscate his entire property and deliver it to the;
plaintiff? If so, how many failures to pay will justify such
a step ?' 2
1. This paragraph is very elliptically worded, and its meaning is-
not certain. 2. The previous question refers to the case where nothing
at all has been paid ; the present, to the case where something has
been paid, but from time to time, or several times in succession, a
default occurs.
PART III. CONTRACT I LEGAL PRECEDENTS. 199
On this point we reply that, though the rule is to
order execution in bankruptcy when irregularities occur in
the payment of the instalments, yet there is no fixed rule as
to the number of defaults which must precede such a step.
The usual proceeding is to order commitment to the charge
of a friend i or confinement in hand-stocks,^ if no payment
at all is made, meanwhile continuing to urge payment, say
for 2 or 3 months ; but if even then no payment is made,
execution in bankruptcy is ordered. There is no fixed rule
as to this length of time, for it must depend on the
circumstances of each case. But the practice above-
mentioned will serve as a standard. The frequen
recurrence of bankruptcy would be avoided if in every case
careful and repeated examinations were held and payment
of instalments sought to be enforced by the Magistrate
in charge of the case.
(7). ' Ifthe defendant fails to bring in the whole amount
of an instalment oii the day appointed, and offers only one-half
or two-thirds, may he be permitted to deliver it to the
plaintiff, a penalty of some sort being inflicted in case the
amount is extremely small, less than the above ? Or shall
we decliue to order him to deliver it over unless the whole
amount is paid ?'
On this point we reply that there is no fixed rule;
but our own customary practice m^y be followed. That
practice is, when the whole amount of an instalment is not
brought into Court, to let him deliver over whatever he has
brought, and then either to have the plaintiff go to the
defendant's house and receive the remainder, or to send both
parties to the Magistrate's Office which has charge of the
case to be examined again ;3 in most cases payment can be
1. Azukari. 2. Te-Jo. 3. These frequent examiustions of the
parties were made with the object of ascertaining their relative
circumstances and ^f bringing moral pressure to bear upon the
debtor to induce him to pay, if he really was able, or to obtain
the money from friends, if possible.
soo
PRIVATE LAW IN OLD JAPAN :
No. 51] obtained in Uiis way. As a rule no penalty is inflicted for
a partial default; yet if there is culpability ^ in attending to
the payment of the instalments, the defendant, if a farmer or
townsman, is sentenced to confinement in hand-stocks; a
further examination of the matter is afterwards made, and if
he continues to be in fault,^ execution in bankruptcy is to
be ordered.
Note, that there is a regulation that if a defendant does
not obey a summons, he shall be sentenced, if a priest,
to 30 days' house confinementor voluntary retirement, 3
according to his rank, or if a townsman or farmer, to 80
days' hand-stocks confinement, or if a Government
merchant,^ to 80 days' confinement. If any member
of the priesthood is culpable in attending to the payment
of instalments, he shall invariably be reported to the Temple
Magistrate.
(8.) ' If, after instalment-payments have been ordered-
the defendant's house-manager brings action for eviction,®
may sanction be given, in spite of the pending instalment-
proceedings ?'
On this point we reply that eviction ® may be ordered,
even though the instalment-payment, have not been complet¬
ed. If the defendant petitions for consent to removal or to
substitution of address,^ consent shall be given, the entry
made in the record-book of the Court, and a slip appended
to the defendant's instrument of undertaking.®
(9.) ' If, while some instalment-payments are yet
1. Furdchi,—a common official wordlor unconscionable conduct of
a litigating party. Here the idea is that the ^btor could pay more.
If he made greater efforts. 2. Oshikome. 3. Yenryo. In this case
the defendant, as ia oshikome, must remain in his house; but the
' term " voluntary retirement" was reserved for those of higher rank
-as a euphemism appropriate to their position. 4. See No. 5, ante.
5. lye (house)-afte fclear, empty); equivalent to tana^^ate, in No.
6, Ante. 6. Tana-date. 7. Namaye-kakikaye. 8. See Answer (2),
ante.
PART III. CONTRACT : LEGAL PRECEDENTS. 201
unpaid, the defendant is arrested or ooniinitted to friends in
some locality ^ [on some criminal charge, preliminary to
trial], may the instalment dues be regarded as in suspense®
during that period ? Of course, if ultimately no punishment
should be inflicted, the enforcement of payment must be
resumed.'
On this point the proceeding should be as you
suggest.
(10.) 'If, betbre payment has been completed, either
of the parties falls ill and dies, shall tlie instalment-dues
he regarded as having lapsed 3 and an order be made for new
action to be brought as soon as a successor is determined
upon; or shall the enforcement of payment merely be
suspended until the successor is determined upon and then
be resumed ?'
On this point we reply that, if either party dies before
payment is completed, payment shall be delayed until a
successor is determined upon, and a substitution of names ^
shall be made, on application in the manner above stated,
the enforcement of instalments payments then being
resumed.
(11.) 'Where one of the parties wishes to make a
journey, and asks leave to appoint a representative® to
act for him, may this be allowed ?'
On this point we reply that a request to appoint a
representative should be granted.
(12.) ' May actions pending against Government
merchants be disposed of according to the ordinary
procedure ?*
1. Tokoro-azuhe. 2. Uwa (surface)-uii (float). 3. Nagare (float
away, drift off). This term is used (see Part II) to signify the for¬
feiture of mortgaged property. .Here it indicates a lapse of the old
-arrangement and a aacessity for making a new one. " Void " would
perhaps also convey the meaning, i. Namayet-kakikaye. 5. Dai-
ao-mono.
202
PRIVATE LAW IN OLD JAPAN :
51] On this point we reply that with us the debts, not
only of Government merchants, but also of military gentry
arc treated in the same manner as those of farmers or
townsmen, except that no term-deed ^ is required of
military gentry, a final-memorandum 2 being given [by the
Court] to each party. But as in your jurisdiction you
never have before you claims against military gentry, it
is unnecessary to go into the subject further. It is enough
to say that Government merchants are in these matters
, on the same footing as farmers and townsmen.
[13.) ' Actions for arrears on provisional bills of
exchange 3 due in connection with Government bills of
exchange ?' *
On this point we reply that there is no fixed rule in
regard to sums due on bills of exchange ; the circumstances
of each case should decide.
(14.) 'Actions for arrears of loans from pra3'er-
funds or endowment-funds received by temples from the
Government, or of loans bj' royal abbots?'®
On this point we replj* that all such loans, including
even those from funds given b)' the Government, are to
be treated on the same footing as ordinary money-loans,
unless by reason of some special circumstances the matter
is laid before [the Council of State] by the royal abbot
or priest, as the case may be, and an order is received
[from the Council] as to the mode of disposition; the-
order being transmitted bj' the Temple Magistrate for
execution to the Court concerned.
1. Nichigen-tegata; probably the same as the " instrument of
undertaking" mentioned in Answers (8) and (2). 2. Oshikiri-
kakiUuhe; a euphemism for the benefit of the military gentry,
the purpose of the document being the same. 3. Shita (below)-
kawase-gin. Shita sometimes has the sense of " supplementary,"
*' substitutionary ; " the term seems to mean here a preliminary or
provisional bill. 4. On-kavtase-kin-gin. 5. Migamonzeki. See No..
32, ante.
PART ni. CONTRACT : LEGAL PRECEDENTS.
203
(15.) 'Actions on loans secured by house pledges?'
(16.) 'Actions on loans secured by land-pledges and.
the various kinds of hypothec ?'
On the claims mentioned in the two preceding
questions we have received no instructions [from the
Council,] and therefore are unable to answer. ^
(17.) 'Actions for money received on behalf of an¬
other .2 Shall payment he enforced merely on the evidence of
an entry in the account-hook, 3 even though no instrument
[was drawn up between the parties], or is an instrument
indispensable ?'
On this point we reply that such actions are to he
treated on the footing of [ordinary] money loans, if the
claim is of a sort similar to that for money paid on behalf of
another.^ [In either case] payment may be enforced, even
though no instrument exists, if the claim is not disputed.
But if the parties contradict each other, judgment cannot be
rendered merely on a hook-entry.
(18.) ' Actions for money paid on behalf of another ?'
On this point we reply, that these actions are to he
treated on the footing of [ordinary] money-loans.
(19.) ' Actions for arrears of yearly instalments?' ®
1. Tliis refers to the difficulties mentioned by the Chamber in the
Preface to their Report (2, ante), and their reluctance to lay down
rules for pledges and hypothecs. 2. Tori (take)-fcaye (instead)-A:m.
3. Chomen. 4. See the next question. 5. Tate (stand)-&ay<
(instead)-A:in. In ordinary usage torikaye and tatekaye are synony¬
mous, and signify " substitute." What the distinction is here
cannot be made out. It may be suggested that torikaye-kin is
" money accepted instead of another," the action thus being against
an agent for money received, and the account-book mentioned being
that of the debtor ; while tatekaye-kin is " money paid for another,"
the payor thus bringing action against the debtor. This rendering
has been adopted for want of a better. 6. Nempn. See No. 28, 2,
Art. 22.
204
PRIVATE LAW IN OLD JAPAN :
No. 51] On this point we reply that payment of yearly-
instalments is to be enforced in the same manner as
[ordinary] money-loans according to the terms of the
instrument fixing the instalments. But payment is not to
be ordered of amounts not yet due. The instrument,
indorsed to this effect, is to be given to the plaintiff; and
whenever he brings action for amounts due and unpaid,
payment is to be ordered without regard to the number of
them.
(20.) 'Actions for the rent of chattels leased
On this point we reply that these actions are probably
to be treated like [ordinary] money loans.
To the preceding 8 questions, as you perceive, we
have replied generally in the affirmative, that these actions
are to be treated on the footing of [ordinary] money-loans,
because, though they differ more or less [from ordinary
loans], they are substantially of the same sort. We
have tried to answer your questions as specifically as
possible.
(21.) ' Actions for unpaid purchase-money ? '
(22.) ' Actions for loans secured by house-pledges ?'
(23.) ' Actions for dowry-money?'
(24.) 'Actions for house-building expenses?'®
(25.) ' Actions for wages of daily labor ?'
(26.1 ' Actions for loans from a zato's patent-fund ?'
(27.) ' Actions for exchange-money ?'
(28.) 'Actions for sundry-expense money?'
(29.) ' Actions for remittance-money ?'
(80.) ' Actions for investment-money ?'
(31.) ' Actions for earnest-money il
X. Kashi-moUxt chin-ten;-piohMy the same as the subject of
Art. .21, in No. 28, 2. 2. Daiku {carpenter)-»afcu (building)-ryo;
doubtless the same as fushin-kin (building-loans), in No. 28, 2, Art.
19, ante. 3. For this and the other terms, see passim Nos. 1, 5, and
28, ante.
PART III. CONTRACT ; LEOAL PRECEDENTS.
205
(32.) ' Actions for money lent on deeds of sale
of various articles ? ' ^
Claims of the preceding 12 sorts are to be treated on
the footing of [ordinary] money-loans.
(38.) ' Actions for money-deposited as security ? ' ^
On this point we reply that you doubtless refer to those
deposits made by undertakers of enterprises,^ with the
agreement that they are to be refunded as soon
as the enterprise is completed. If so. they are not to be
placed on the footing of [ordinary] money loans [as an
invariable rule], but must be determined according to the
circumstances of each case ; so that we can give no final
opinion without a knowledge of each case.
(34.) ' Actions for arrears of taxes payable by croppers.^
(35.) 'Actions for servants'surety-money ?'
As to these claims, we have I'eceived no instructions
[from the Council] and so cannot answer you.
The last 15 of this list you have been accustomed to
treat in analogy to [ordinary] mouej'-loans, and you had
better continue to do the same. We shall report further
to you on any other matters that may seem desirable ; here
we have confined ourselves to the questions propounded
by you and cited above. You may, as you suggest, make
further inquiries of us on any topics on whicii you may
desire information. But it must be remembered that we
can give you no answer in regard to claims which are
not to be treated in analogy to [ordinary] money-loans,
inasmuch as on these subjects we have as yet received
no instructions [from the Council.]
Year of the Rat,
10th month."
1. Shoshiki-uriwatashi-shomon; doubtless conesponding to (13),
in No. 5, ante. 2. SJ^iki-kin ; corresponding to mimoto-shoko-kin, in
No. 28, 2, Art. 20, ante. 8. Ukeoi-nin. 4. Ge-saku ; tenants of
agricultural land. See Part II, Ch. IV.
206
PRITATE LAW IN OLD JAPAN I
52] [No 52] Disposition of Money-Loan Actions in
Osaka}
" Memorandum.
(1.) The usual practice is here, in actions on money-
loans, when payment is not made after an order for
payment in a term of months,^ or for hand-stock confinement,
or for house-confinement, etc, to order the defendant
to deliver up all his property. If he has a house or
residence-land or ricefield or upland which has been put
in pledge to a townsman, it ought to be handed over to the
pledgee, provided the instrument was lawfully executed.
(2.) If the person subject to bankruptcy is liable
for arrears of taxes due to the esquire, ^ an examination
is made of the village account-books and a report made by
the ofiicers of the esquire, and if the Court is satisfied as
to the existence and amount of the claim, it orders the
plaintiff to pay the arrears and then take possession of
the entire estate.
(3.) If the bankrupt has borrowed of the feudal
deputy^ a sum of money from the latter's assistance-fund, ®
on the security of the borrower's ricefield or upland or
of his house or residence land, and if notice of this is given
[to the Court] by the deputy, the plaintiff is ordered to
surrender the property [so mortgaged] to the deputy, and
then himself receives the remainder of the entire property.
Such is the custom [with reference to deputies of the
Shogunate;] but there is no precedent in regard to officials
of private fiefs. ®
1. This is cited from " Chiho-kosai-roku," but neither date nor
source appears. It was probably filed in connection with the pre¬
ceding documents. As to its date, see note to No. 51. 2. Tsuki-
kagiri sinnikata,—the Osaka phrase corresponding with nicliigen,
etc. 3. Jito. 4. Daikwan. 5. Teate-kin; the euphemism for his
salary. 6. Shinjo; the fiefs outside of the Tokugawa family.
PART III. CONTRACT : LEGAL PRECEDENTS. 207
The above is said to be the customary process here,
RS stated in the letter to Odagiri, Lord of Tosa, and
Ishikawa, Uuder-Minister of the Interior,by Mizuno,
Lord of Wakasa, and Sakuma, Lord of Bigo, Town
Magistrates of Osaka, who declare that it is the practice
laid down by the lord Yutoku-In." 2
jNo. 63] Disposition of Money-Loan Actions
in Osaha?
" A Memorandum.
a. Days for Court-proceedings [as at present:]
Complaint-days ; *
2nd, 13th, 22nd.
Trial-days: ^
6th, 16th, 27th.
The above days shall be changed as follows ;
Trial- and Complaiut-days : ®
2nd, 6th, 18th,
18th, 21st, 27th,
b. Actions for money-loans or unpaid purchase-
money.
1. These two were together in office as Town Magistrates of
Tedo from 1797 to 1806. 2. The posthumous title of Yoshimune,
the 8th Shogun, one of the few able possessors of that office after
lyeyasu; he abdicated in 1745. The famous Oka, Lord of Echizen,
was Town Magistrate of Yedo under him. 3. As to the date
of this, see note to No. 51, ante. 4. Sosho-bi. 5. Kuji-bi. Sosho
and kuji have ordinarily no marked difference of meaning; but
here sosho-bi seems to indicate the day on which a suit may be
begun, and kuji-bi the day on which it is tried. 6. What the
compound phrase means is not clear, unless it is that on any one of
the six days a suit i^ay be begun or a trial held. This is the more
likely, as otherwise the 30-day rule below would not hannonize with
the schedule.
208
PRIVATE LAW IN OLD JAPAN :
53J (1,) [The Compliiuit] shall be delivered back [to the
plaintift] with an indorsement appointing as the day of
appearance the 30th day after the entiy of action.
(2.) If on the appointed day [appearance is prevented]
by illness, the day shall be postponed for 80 days more
if notice of the illness is given; such a notice will be
accepted twice, but even if it is given for the third time,
a joint-pleading 1 will be held without fail, even if by
means of a representative.
c. Mode of payment after joint pleading [and judg¬
ment for phiintiflf.]
Amount of claim : Term ;
Less than 10 kwannne 60 days.
From 10 to 50 hvamme 150 days.
Over 50 kwannne 860 daj s.
If payment is not made within the term, a house-
confinement of 80 days is to be ordered.
Note, that in each of the two Courts, if the debt is
not paid within the 60, [150, or 860] days, the
debtor is to be sentenced to hand-stocks confine¬
ment or to commitment to his village,^ when hd
appears ; but if his agent appears for him, alleging
his illness as his excuse, an order shall be made,
after sending to examine into the fact of the
sickness, for house-confinement. The same
proceedings are to be followed in the case [of a
resident of] a feudal deputy's district.
(2.) If within the term the larger part of the debt is
paid, a new term shall be appointed, equal in duration to the
first. 0
(8.) If during the house-coufinement above mentioned
payment is not made, execution in bankruptcy is to be
ordered.
1. Taiketsu. 2. ilura-azuke. Compare tukuru-aziike, 3, (9),
supra.
part iii.—contract: legal precedents.
209
Note, that in such a case, the process must be carried
out in the presence of the village officers and agents of both
parties.
(4.) All family-belongings (with the exception of
articles serving the personal use of the wife and children),
house, residence-land, ricefield, and upland are to be
subjected to execution.
(5.) Land subject to a hypothec i is to be handed
over to the creditor holding the security.
(6.) If the bankrupt is a dependent in the household
of another, the clothes and other movables of the debtor
alone are to be taken on execution.2
(7.) If house, residence-land, ricefield, or upland has
been put in pledge, it is to be sold, and the proceeds
delivered to the creditors entitled to share, after the
amount due as principal and interest has been subtracted
and paidj to the pledgee; or else the land [without
being sold,] may be forfeited ^ directly to the
pledgee.
(8.) After an order of execution in bankruptcy has
been made, no action against the bankrupt is to be
taken; unless it is brought after he has again acquired
means.
(9.) No action for a money loan or unpaid purchase-
money is to be taken up after the lapse of 10 years [since
the claim was in arrears.]
(10.) Minimum amount of claims for which action
may be brought on pledges, credit sales, money loans, and
cropping:
a. In actions by townsmen against villagers :
60 mortiine or more, in silver.
1 ryo or more, in gold.
5 iMammon, in copper or iron.
1. Kakiire-shomon. 2. That is, nothing else on the premises
than these, as the house and realty were another's. 3. Nagasu.
Vol. XX. Sup. Pt. ill.—14.
210
PEIVATE LAW IN OLD JAPAN I
53] b. In actions where both parties are villagers:
10 mbvme or more, in silver.
1 bu or more, in gold.
1 kwammon, in copper or iron. ^
(11.) No action for the hire of theatre-boxes, or for
wine or food there supplied, or kindred expenses, will be
taken up.
(12.) Actions tor unpaid purchase-money due more
than 10 years are not to be taken up, whether private-
payments 2 have or have not been made from time to time
since the year of the sale, and in spite of the fact that
less than 10 years has elapsed since the [last] payment
on account was made.
(13.) Nevertheless, if there has been a running account
between the parties, lasting down to within 10 years
[before action began,] the payment of all purchase-money
due more than 10 years before [and included in the
account] shall be ordered.
(14.) If in a money-loan action the complaint is
dismissed,8 after the Court has indorsed^ it, in consequence
of some impediment on either side, ^ and afterwards, when
the impediment is removed, a new action is brought
on the same claim, the new action is to be taken up
and adjudged even though the instrument of debt [shows
1. For the coinage values, see Part I. Here 60 momme
and 1 ryo are equivalent; but 5 kwammon is more than a n/o.
10 momme is one-sixth, and 1 bu one-fourth of a ryo, 1 kwammon
being also one-fourth. It is easy to see why lesser sums were allowed
in suits between villagers, such small amount*beiug of much greater
consequence in village life than among the townspeople.
Probably certain classes of transactions were customarily reckoned
jn certain coinages, and thus there might be no difficulty in making
different rules for the different coinages. 2. Uchi-waiashi, i. e., out
fo Court, without suit. 3. Hiki-ageru (withdrawn up). 4. XJragaki,
5. Such, perhaps, as temporary confinement, succession by an heir,
etc.
PART III. CONTRACT ; LEGAL PRECECENTS. 211
the claim to be] more than 10 years old; provided the
first action was instituted within 10 years after the claim
fell due.
(15.) No interest is to be allowed in judgments for
unpaid purchase-money, even though both parties state
that they verbally agreed upon the payment of interest
or that such a stipulation is recorded in their respective
account books. ^
(16.) Where in a house-pledge there is, besides
the principal instrument, an instrument guaranteeing
interest,^ the claim is to be treated on the footing
of an [ordinary] money-loan, and, in case of non-payment,
execution in bankruptcy is to be ordered, in spite of the
fact that the transaction is a house-pledge.®
(17.) In an action [for the transfer of property,]
where earnest-money has been paid, and the seller delays
the alteration of the land-register or the delivery of the
goods, a summons shall be sent for his appearance on the
second Court-day 4 thereafter ; requests for postponement on
account of illness may be granted twice only. After a joint-
pleading,® an order will be made for delivery of the goods
or for alteration of the register, as soon as possible.
Note, that in altering the register the name [of the new
owner] is to substituted.®
(18) In an action by a divorced wife for the recovery
of a sum of money, not a part of her dowry, but still
belonging to her before her marriage and since then spent
by mutual agreement of husband and wife, payment may be
ordered if there are any proofs [of the claim] J
1. Tsukekomi-clio. 2. Rigin-ukeai-sbouion. .S. This provision, to
be understood, must be considered in connection with an important
controversy about the nature of a pledge, the documents of which
will appear in Part VI, in the section on " Pledge." 4. Go-yo-bi.
5. Tai-ketsu. 6. ifiri-kayeru. 7. Probably the action would be for
the wife's share of the money or whatever it bought.
212
PRIVATE LAW IN OLD JAPAN :
53] (19.) Actions for money-loans or unpaid purchase-
money against the wife of one in mourning,^ as well a^
similar actions against the mourner himself, shall not be
taken up.
(20.) No actions for money-loans or unpaid purchase-
money due from a relative of the defendant shall be taken
up, if the claim was incurred by the relative during a period
of mourning, even though [he is dead or retired and] a
successor has taken his place.
Note, that no distinction is to be made where the
successor is an adopted son.
(21.) If, in an action for a money-loan, unpaid
purchase-money, or loaned article, the complaint is received
by the Court and a term of payment ordered, and the
defendant subsequently, [before payment is completed,]
committed _to his village 2 or ordered into hand-stocks or
prison ^ preliminary to trial on some [criminal] charge, the
complaint and the payment-certificate in the prior action are
to be taken away by the Court, and the plaintiff ordered to
enter suit again [for the unpaid amount] as soon as the
other matter is disposed of.^ The same rule shall apply
where the complaint is a pending-complaint [not yet
tried]."®
[No. 54.]® Actions for Bargain-Afonetj.''
"(1.) If a sum held on deposit^ is not paid on the day
1. Imi-gahari. Mourning nominally required the bereaved
person to remain in the house for a va^ng period of days.
2. Mura-azuke. 3. Roshu. 4. Of course the case would not
have to be tried over again. The plaintiff would bring the matter
up later, and the action would proceed at the stage where it was
suspended. 5. Kakari-vieyasu; apparently a case in which the
complaint had been entered but no trial yet had. 6. Cited from
Hoso-kokicari" 7. Tetsuke-kin ; tranlsated " earnest-money " in
Nos. 5 and 28. 8. Azitkari-kin.
part hi.—contract; legbl prkcecents. 218
appointed in the bargain-memorandum, ^ then the bargain-
money shall be forfeited. ^
(2.) The bargain-memorandum in a sale of house
or residence-land is void® if the seals of the local officials
are lacking.
(3.) If in a hargaiu-instrument no day is appointed
for alteration of the register, * an order shall be made for
the immediate payment of the amount due and for alteration
of the register."
[No, 65] Payment of Debts incurred in a
previous Generation.
A Reply to an Inquiry made by the Kyoto Town
Magistrate of the Yedo Town Magistrates. ®
1. Letter from the Kyoto Town Mayistrate to the Finance
Mayintrates.
"I beg to congratulate you on the continuance of your
good health and on your diligence in the performance of
your public duties, and presume that you are enjoying the
cool autumn weather. I enclose a document dealing with
a subject on which I should like to ask your opinion, and
1. Tetsuke-shomon. 2. Nagare. It would seem that a con¬
tract is made, in this case, to lend a sum, termed euphemis¬
tically a deposit; and a small advance is given as an earnest. This
is forfeited on breach of the contract. S. Ai-tatazu (does not
stand). 4. Cho-kiri, the transaction being a sale of land.
.5. Cited from " Koharigami." This inquiry came in the 9th
month, and was addressed to the two Town Magistrates. On
the 11th of the 11th month, Murakami, one of the Magistrates,
resigned, and Negishi, Lord of Bizen, was transferred from the post
ot Finance Magistrat#to that of Town Magistrate. Thus it became
proper for Odagiri, the Town Magistrate holding over, to consult his
new colleague.
214
PRIVATE LAW IN OLD JAPAN :
beg to ask you to let me know your opinion in an
appended note.
9th mouth, 7th day (October 16, 1798).
Myura, Lord of Ise.
To Odagiri, Lord of Tosa.
Murakami, Lord of Higo."
2. Enclosure.
" (1.) Suppose that a debtor gives to his creditor an
instrument reciting that as he has sold off all his property
[to meet other pecuniary demands] he is unable to pay at
the time, and promising to pay in full whenever his-
circumstances improve aud he again acquires means.
Afterwards the debtor dies, and his son, who succeeds him,
acquires means to such an exteut as to have a moderate
income and be able to employ servants. The creditor
learns this and brings suit against the son fur the father's
debt. Now should we rule that the instrument by which
the father engaged to pay whenever he acquired means
again has effect only for the lifetime of the father i and,
going by the exact terms of the instrument, hold the son
not liable,—without regard to amount of his property ? Or
is the son not to be exonerated ?
Appended Note.^
' You put the case of one who has been obliged by
his pecuniary needs to sell off all his property,
and delivers to a creditor an instrument engaging
to pay when he acquires mean#; the debtor dies,
his son, the successor, acquires means enough
to enable him to employ servants, etc., the
creditor finds this out and sues for the father's-
1. Ichi (one)-dai (generation)-kaf/iri (only). 2. These are pro¬
bably by Odagiri, the Magistrate holding over.
PART III. CONTRACT : LEGAL PRECEDENTR. 215
debt. Onr opinion is that the son ought to be
held liable, if the terms of the instrument are
clear [in guaranteeing payment in the above
circumstances, and not merely expressing a hope
of repayment] ; for there is no reason why a son
should not be liable for all transactions occurring
in his father's generation. But whether the
instrument is or is not clear as to whether
payment was positively to be made in the circum¬
stances mentioned cannot be determined except
after inspection of it. So that we cannot give
a final answer to your question.'
(2) Where a money-receipt ^ is produced as a proof
[of a loan], should it be so regarded,^ although it contains
no year-date, but only the year's calendar-name,^ month,
and parties' seals and signatures, if the time thus indicated
corresponds with the time of the transaction as stated by
both parties? Should it be rejected, if it contains not
even the year's calendar-name, but only the month ? In
this jurisdiction there are a number of creditors who
have lost their principal-instruments^ in the last fire,
and are obliged to bring suit with only their receipt
as proof of the debt.® I should be glad to learn about the
practice in your Court.
Apjiended Note,
' You put the case of the principal-instrument being
lost. I reply that a memorandum of receipt,® notcon-
1. Kinyin-uketori-aho. 2. Tori-mochiijuni (take to oneself,
adopt). 3. Yeto. For an explanation of the calendar system, see
Part I. The yeto name, as ordinarily abbreviated, would fit one year
in every twelve, and hence was by no means a certain indication of
the date. 4. Horultomon. 5. Apparently a preliminary receipt was
given by the debtor before the principal instrument was drawn
op. 6. Uketori-kakitsuke.
216
PRIVATE LAW IN OLD JAPAN :
65] taining the year-dnte, but only the year's calendar-
name and the month (or even the month only), can
nut be accepted as a proof; and no action brought
on such a memorandum ought to be taken up;
unless the defendant on examinatiou admits
positively that he incurred the debt, and his admis¬
sion agrees with the plaintiff's allegations,'
Such are the inquiries which I desire to make.
Though doubtless I am putting you to great trouble, will
you kindly let me have your opinions on these points in
an appended note ? "
3. Letter from. 07ie Town Magistrate to the other,
" In the letter of Myura, Lord of Ise, he puts the
case of a debtor selling off his property through pecuniary
necessities, giving an instrument engaging payment when¬
ever he acquired means, the debtor's son succeeding him
and acquiring means enough to employ servants, etc., the
creditor learning of this and suing him. Should the son
be held liable, if the terms of the instrument are clear ? Or
should he be held not liable, on the ground that the instrument
was effective only for the bankrupt's own life, and that
therefore after his death, no action can be brought against
the son, although it appears that he has acquired means ?
I should like to obtain some precedent.
Appended Note.
' My answer is that after due search I can find no
precedent on the point you inquire about. But
my opinion is that where an insTrument is given
engaging payment upon again acquiring means,
even the son must be held liable. On the other
points I quite agree with the decision of your own
Private Session.
1st month.
Negishi, Lord of Bizeu.' "
PART III. CONTRACT : LEGAL PRECEDENTS.
217
4. " The above decision was reached at a Private
Session,^ Kwausei, XI (Goat), 1, 21 (February 25, 1799),
the Town Magistrate to send the appended replies [to
Myura, Lord of Ise]."
[No. 66] Loans from a Prayer- Fund.^
An Action by the Kyogen Temple of Komagome,
Yedo, against Hattori Shingoro, before the Lord
of Bigo, Finance Magistrate.
Dated Anyei, IX (Rut), 4, 21 (May 24, 1780.)®
1. Judgment of the CouH,
" The action brought by the Kyogen Temple, of Koma¬
gome, [Yedo], against Hattori Shingoro, for the sum of
90 rgo, 1 bu, advanced^ to the latter, has been tried,
and judgment is rendered® as follows :
The action is brought too late. Although there are said
to have been several documents [showing the existence of
the claim], they have never been renewed since the death
of Shiugoro's grandfather, and the assertion of the claim has
beeu delayed until now ; and as the burning of the seals of
Shingoro's family since his grandfather's, as well as of a
number of documents connected with the case, has thrown
the matter into confusion,® and the existence of the
claim is disputed, no order of payment can be made.
It is ordered that a document [of submission] be handed
up."
1. Uchi-za; of the Town Magistrate's Court. 2. Shido-kin,
Bee No. 1, 2. 3. Cited from " Saikyo-dome." 4. Yo-date. 5. Moshi-
watasu. 6. I. e., has made it impossible to determine whether
the claim exists.
218
PRIVATE LAW IN OLD JAPAN :
No. 56] 2. Document of Submission^
" Docament handed up.
Daring and since Horeki, XI. Serpent, (1761),
Nakagawa Yoyemon, retainer of Sugiura Ichizayemon,
advanced at different times to [the family of] Hattori
Shingoro sums amounting to 90 lyo, 1 bu. The said
Yoyemon died some years ago, and it is alleged that
Myokyo, formerly known as Seki,® the widow ofYoyemon,
in the last Ape year (1776) granted ^ by bequest^
the above claim to the Kyogen Temple, the endowment
being afterwards confirmed by a deed of grant,s through her
relatives. On trial [of an action brought for its recovery],
both parties and their relatives were summoned, and it was
decided that if the advance had been made during or since
Horeki or the lifetime of Shozaburo, grandfather of Shingoro,
and instruments had been executed at that time, they
ought .to have been renewed ; ® but that, [as this had not
been done] and no assertion of the claim had been made
for so many years, it was now too late to sue, since the
alleged endowment by Myokyo could not be proved by
mere verbal statements and without an instrument of
bequest, and since Shingoro pleaded that he had no recollec-
1. This document, variously known as age-shomnn (document
handed-up), uke-slwmon (docament of acknowledgment or submis¬
sion), etc., and here entitled " sashi-age mosu issatsu no koto," was
an acknowledgment of the judgment, indicating the parties*
submission, and seems to have served as a proof for future
times estopping the parties from any gainsa^ng of the result of
the litigation. It usually contains a recital of the history of
the litigation, and does not seem to have been given in
ordinary actions of no special length or importance. In the later
Farts of this work will be found numerous examples. 2. On
the death of a husband the widow often retired to a con¬
vent and changed her name. 3. Kifu; used of grants to temples by
way of endowment. 4. Yui-gon. 5. Yuzuri-jo. 6. By the son or
grandson of the original borrower.
PART III. CONTRACT I LEGAI. PRECEDENTS, 219
tion of such a debt and the burning of theseals of several
generations [of Shingoro's family], as well as of a number
of documents connected with the case, had thrown the
matter into confusion. No order for payment, therefore *
could be made. We respectfully acknowledge the decis ion
and herewith hand up this document of submission. ^
Chikwaku, of the Kyogen Temple,
P laintif.
Mori Yasota, retainer of Hattori Shingoro,
Defendant.
To the Chamber of Decisions. "
[No. 57.] Apportionment of Money Advanced.^
An Action by Ibei, of Kodzukabara Town, Senju,
Bushu,® against Kinzayemon, renting the shop of
Ubei, in Uragashi, Shinagawa Town, before the
Lord of Shimotsuke, Finance Magistrate.
Dated Kwansei, XI (Goat), 6,11 (July 13, 1799).
1. Consultation.^
" From Suganuma, Lord of Shimotsuke.
Toshichi, servant aud representative of Ibei (de¬
tained by illness), farmer, of Kodzukabara town,.
Senju, Toyoshima kori, Bushu, deputy's-district
of Oiiuki Jiyemou, Plaintiff'.
Kinzayemon, renter of the shop of Ubei, Uragawa,.
Shinagawa town ; aud,
Jirozayemon, house-master, Block No. 2, Oyanagi,
ward, Kanda district, [Yedo] Defendants.
The parties in the above action were summoned for the
7th day by indorsement, and trial was had. The plaintiff's
statement was as follows :—
•
1. Uke-tho. 2. Shiohuri-hin. 3. Musashi huni. 4. The Case
is laid before the Chnmber in this form by the trial judge.
220
PRIVATE LAW IN OLD JAPAN ;
No. 57] The plaintiff Ibei had for years frequented^ the
residence of Soma, Lord of luaba, and had made advances®
to him at various times. It came about that the officials
of the Lord of Inaba instructed the defendant Kinzayemon,
in associations with the plaintiff Ibei, to make advances for
the household expenses of the Lord of Inaba for 4 years,
i.e. from the 9th month of the Horse to the ensuing Cock
year. Kinzayemon and the plaintiff had a number of consult¬
ations on the subject, and,, after deciding to undertake the
matter, they received from the officials of the Lord of
Inaba an instrument containing the agreement as finally
settled,^ and addressed to the said Kinzaemon and Ibei.
Among other provisions, it was agreed that the lenders
were to receive, in consideration of tiieir undertaking [to
advance money] for the kitchen department,® 35,000
bales® of rice out of the tax rice, to be taken from the
Lord of Inaba in the Horse year in the course of
transportation to Yedo, after inspection of the number
of koku at two places in the fief of the Lord of Inaba, iu
Oshu,^ and at the port of Choshu, in Joshu;® to
sell at that place the rice thus received, or, if they preferred,
to transport it on a fflAa.sc-vessel® to Yedo ; to defray,
from the proceeds of the sale, the expenses of the shipping
officials of the Lord of Inaba during their stay in the
l.De-iri-, " coming and going;" the same word that is used
to signify "dispute," "lawsuit." 2. Shiokuri. 3. Kumiai.
4. Gi (debate)-tet (settle)-s/ionton. 5. Makanai-kata ; this term was
probably employed conventionally, that the transaction might
not appear to be fur the lord's personal use; it would not have been
consistent with his dignity to have his personal needs the subject of
a transaction with a merchant. 6. Hyo; about 3, sometimes 4, bales
made a koku; the value of 100 hyo might then have been 40 or 50
ryo. 7. Then including the kuni of Iwaki, Iwashiro, Bikuzen,
Bikuchu, and Mutsu. 8. Hitachi kuni; a large fishing-town at the
month of the Tone, on an extremity of land, which must be pass ed
by all vessels bound to Yedo from the. north. 9. A heavy vessel, of
large carrying capacity.
PART III,—CONTRACT : LEEAL PRECEDENTS. 221
port of Choshu ; on its arrival at Yedo, [if it was not sold
at Choshu,] to store it in any storehouse they pleased;
and to make no advances for any other than the ordinary
household expenses during the three years from the Goat
year to the Cock year both inclusive; i [the Lord of Inabn,
on his part, agreeing] to consult with them in every
case as to the use to which the advances were to be put.
This instrument was received by Kinzayemon and Ibei from
the officers of the Lord of Inaba, with a memorandum-book
for monthly-advances,® containing an engagement to repay
the advances without fail by delivering the tax-rice 3 of
Soma, as agreed in the final-instrument. After the contract
was concluded for the advancements for the household
expenses of the Lord of Inaba, they received two copies of an
instrument addressed to them jointly, bearing the counter-
seals of the Lord of Inaba, stating iu substance that, upon
the 35,000 bales of rice being delivered to them out of the tax-
rice of the Horse year, they were to ship it as they pleased,
and, calculating principal and interest of their advances,
to pay themselves out of the proceeds. The plaintiff
and the defendant Kinzayemon then consulted, and fixed
the proportion of their advances at three-fourths for
Kinzayemon and one-fourth for Ibei. Ibei employed as
agent for the management of his share in the transaction
the other defendant Jiroyemon, who had once been his
household servant, and was at the time managing several
transactions for him. During and since the 9th month of
the Horse year Kinzayemon and Ibei had advanced to the
Lord of Inaba 4,686 iijo, 2 bit, in the above proportions;
1. The order was : Horse, Goat, Ape, Cock, the contract begin¬
ning in the first. 2. In this were to be noted the advances, the
debtor signing jpy way of receipt, and the creditor keeping the
book. 3. S/iu-no mat; put-in rice, i. e., sent by the farmers as tax,
for deposit iu the lord's warehouse.
222
PRIVATE LAW IN OLD JAPAN :
No. 57] and since the 11th month of the same year 16,810 bales out
of the above 85,000 bales had been transported to Yedo,
being put on sale at Yedo, at Choshu, and at Uraga
in Sashu, i and realizing the gross sum of 4,660 n/o
odd, netting 4,242 ryo odd, after deducting 364 ryo
odd, for the freight paid for (aA:ase-vessels to Uraga,
Choshu, etc., and other expenses. Out of these net proceeds
Kinzayemon and Ibei again paid by mutual agreement to
the Lord of Inaba the sum of 700 njo, to be ap¬
plied to the payment of other debts of his. As to the
remainder of the proceeds, some 8,542 ryo odd, the agree¬
ment being to divide in the proportion of three to one,
Ibei should have received one-fourth of the amount, or
885 ryo, 2 bu odd; but Kinzayemon,2 after remitting
612 ryo, 2 hu, by way of instalment, failed to deliver the
balance, in spite of frequent demands upon him. The fact
that the defendant Jiroyemon, the agent of Ibei, was
negligent in tbe matter indicates that the defendants were
in agreement to injure the plaintiff and were guilty of
improper conduct. The plaintiff has therefore brought the
action for the purpose of obtaining a complete investigation
of accounts and of getting payment of the amount due on
his proportion of the proceeds.
[The plaintiff also says:] 3 Kinzayemon, in his plea,<
alleges that he, as known to Jirozayemon, [the agent
of Ibei], before undertaking the joint-advances ® with
Ibei, was to advance, in the period from the 6th to the 8th
month of the Horse year, the sum of 1,000 ryo [on his own
account] to the Lord of Inaba, and had stipulated with the
1. Sagami kuni. 2. It must be lemembered that the shipping,
ete., was attended to by Jirozayemon, the plaintiff's agent, and
Kinzayemon. 3. This seems to be a kind of replication, after the
defendant's plea had been filed. But perhaps this document merely
states the general result of the whole examination of the parties.
4. Moshi-tate. 5. Kumiai-shiokuri.
PAST III. CONTEACT : LEGAL PEECEDENTS. 223
latter's officials to be allowed to take payment out of the
first proceeds of the above 85,000 bales of rice, so that the
entire advance made by Kinzayemon [for which he had a
lien on the rice-proceeds] amounted to more [than a sum
equal to three-fourths of the joint advance], But the plaintiff
Ibei has never been informed of this by Jirozayemon, so that
he knows nothing about it.i The plaintiff says that the
tax-rice 2 was to be received by the two^ jointly, in
payment for their advances; that the sum of 700 i-yo
advanced to the Lord of Inaba, as aforesaid, out of
the proceeds of part of the 35,000 bales was different
from the alleged advance of 1,000 ryo by Kinzayemon,
because it was advanced [by Kiuzaj-emon]^ with the consent
of both parties, after they had undertaken to make the
joint-advances; that, although the case might be different
if the whole 85,000 bales had been sent to Yedo and the
advances made up to that time had been wholly paid,5
[yet in fact only a part was sent], and of that part some
was lost by shipwreck, so that the entire proceeds of the
sale were insufficient to repay the joint-advances made up
to that date; that if these proceeds were to be regarded
as subject to suudry liens for advances made from all
quarters to the Lord of Inaba, there would be very little
left to apply to their joint-advances, and that it would be
impossible to make further advances ; and Ibei, therefore,
because the 35,000 bales aforesaid were intended for the
payment of their advances, demands of Kinzayemon the
delivery of one-fourth of the proceeds of the rice,
1. And therefore it cannot affect him. 2, Nengu-vuii. 3. The
plaintiff and Kinzayemon. 4. It was said before that the two agreed
to make this advance of 700 i~yo. But it is plain, from the fact that the
deduction of 700 lyo went entirely to Kinzayemon's benefit, that this
advance was made on his sole account. The previous statement
must therefore have been a careless mode of expression. 5. That is,
in that event be would have made no objection.
224
PRIVATE LAW IN OLD JAPAN :
The defendant Kinzayemon pleaded as follows :—
57] The ahove allegations of Toshichi, representative of
Ibei, are true [in the following particulars]: That [tho
plaintiff and Kinzayemon] had for years frequented the
residence of Soma, Lord of Inaba, and had advanced sums,
of money to him frOm time to time; that in the 9th mouth
of the last Horse year, [the defendant Kinzayemon] was
consulted by the officials of the Lord of Inaba about making;
advances for the letter's household expenses ; that, on reply¬
ing that he was not able to undertake it alone, he was in¬
structed by them to undertake it jointly with Ibei, and made
an agreement accordingly with Ibei to make the advances
for 4 years [that is, to the ensuing Cock year, inclusive),
the arrangement between the parties being that if advances
were made of kitchen-money from time to time, they should
receive in payment 35,000 bales of tax-rice to be sent
to Yedo; and that [the lenders] received two copies of
an instrument addressed to them jointly and bearing the
indorsing seal of the Lord of Inaba and the counterseals
of his officials, and also a book, countersealed by the
officials, for entries of the monthly advances, and containing
the statement that the repayment of the sums should be
made without fail by delivering tax-rice as provided in
the final-instrument. But it had been agreed, ^ as to the
advances made [by Kinzaemon] before undertaking the
joint advances with Ibei, .that the sum of 1,000 ryo to be
advanced between the 6th and 8th months inclusive of the
Horse year should be repaid out of the tax-rice of the
12th month of that year. Of this Kinzayemon gave
notice to Ibei, [asking his consent] bift Ibei was opposed
to this, [and it fell through] and the arrangement was
then made as to the making of the joint advances and the
division in shares of three-fourths and one-fourth; then
these advances were made to the extent of 4,686 ryo odd.
1. Between Kinzayemon and the officials, we must supposew
PART III. CONTRACT : LEGAL PRECEDENTS. 225
But in the 11th month the officials of the Lord of Inaba
then instructed^ [them] to make this extra advance on
account of certain extraordinary household expenses. But
Kinznemon, as well as Ihei, did not desire to risk any
extra advances, and declined. The officials, however,
[persisted,] stating that they had incurred a loan in
another quarter and had agreed to pay it out of the
tax-rice on arrival in Yedo, and declaring that the desired
advance could be repaid from the proceeds of the
85,000 bales to he transported to Yedo; so that it
was impossible to refuse. This 1,000 njo, then^
was by this agreement [with the officials] to be
repaid from the rice-proceeds, and accordingly Kinzayemon
gave notice of this to Jirozayemon, Ibei's agent, who
requested him to take it out of the tax-rice on its arrival in
Yedo. This Kinzayemon agreed to do ; and, after reporting
the fact to the officials, he delivered to Ibei 612 ryo, 2 hu,
out of the rice-proceeds, as the one-fourth which was to be
Ibei's share. The net proceeds, taking out sundry
expenses, of the various amounts of tax-rice brought to
Yedo were 3,542 ryo odd, of which one-fourth would be
885 ryo odd. But on deducting the 1,000 ryo, as by the
agreement above-mentioned, and dividing the remainder
according to proportion of 8 to 1, as agreed on for the
repayment of the joint-advances, the sum already delivered
Ibei would correspond very nearly to one-fourth of the
net amount to be divided. There could therefore be no
pretence that Kinzayemon had withheld from Ibei anything
due him, since this deduction had been agreed upon between
them. Kinzayemon can not see why Jirozayemon should
1. The language of the noble borrowers was that of dispensers of
favors, and where the commoner-capitalist failed to see the attractions
of this privilege, the language of command was often resorted to. In
some respects on» may compare the Jews and their loans in
European feudal life.
Vol. XX. Slip. Ft. iii.—13.
2^6 PBIVATE LAW IN OLD JAPAN :
No. 57] deny in ambiguous terms his knowledge of this [agreement
for a deduction] or why Ihei endeavors to injure him hy
all sorts of unfair statements.
[The defendant] Jirozayemon pleaded as follows :—
The above allegations hy Toshichi, representative of
Ihei, are true [in the following particulars:] That Jiro¬
zayemon has formerly been a servant of Ihei; and that
at the time of the transaction in question he lived in
Yedo, hut was managing several transactions for Ihei,
and from the 9th month of the last Horse year, when
Kinzayemon and Ihei undertook their joint advances
for the household expenses of the Lord of Inaha, had
acted as Ihei's agent in the matter. But he has
entered into no agreement with Kinzayemon as to
the contract [hatween Kinzayemon and the officials] that
Kinzayemon should take the sum of 1,000 ryo, to he
advanced hy him between the 6th and 8th months of the
same year,^ from the first proceeds of the 35,000 hales
of tax-rice received in payment of the joint advances,
nor as to [first] providing for this additional advance hy
Kinzayemon in settling the shares due on account of the
joint advances. The case might have been different,^ if
[the contract between Kinzayemon and the officials had
been for] the taking out of this special advance, [agreed
to he made] before the joint-arrangement 3 for advances
had been made, after all the tax-rice had been received
in Yedo and the joint advances had been taken out of
the proceeds. But such not being the case, [the taking
1. The meaning cannot be, in this passage «Bid in others referring
to the point, that the sums were actually advanced in the 6th and
8th months, else there would have been no reason for the commands
of Inaba's ofiBcials in the 11th mouth. The speakers are apparently
referring to this loan merely as the one agreed to be made in those
months or for those months. That was probably the period when
^he amounts became due which the loan was to meet. 2. That is,
there would have been no objection. 3. Kumiai.
PART III, CONTRACT : LEGAL PRECEDENTS. 227
-out of the special advance prior to the payment of the
joint advances] was contrary to the provisions of the
agreement between Ibei and Kinzayemon. The failure
of Kinzayemon, moreover, to hand over the remainder
due to Ibei over and above the 612 rtjo, 2 hu, paid to
Ibei as his one-fourth share, had caused Ibei to suspect
Jirozayemon of abetting Kinzayemon in his scheme, a result
very annoying to Jirozayemon.
Such were the statements of the several parties.
A retainer of the Lord of Inaba was then examined and
testified to the following effect. There was no reason
why Kinzayemon should take out from the rice-proceeds
the sum of 1,000 njo, to be advanced in the 6th and 8th
months of the last Horse year, before the satisfaction of
the joint advances made for the household expenses of
the Lord of Inata during and since the 9th month of the
same year from the 35,000 bales of tax-rice to be received
on joint account by Kinzayemon and Ibei. The mere
verbal statement by Kinzayemon that he told Jirozayemon
■of a contract [between himself and the officials] to take
out first the amount of his advance, and got Jirozayemon's
■consent, cannot be accepted as proof, inasmuch as Jiroza¬
yemon declares that he never gave consent to this prior
deduction of the 1,000 rtjo from the proceeds of the 35,000
bales and as there is no provision for it in the contract for
the ioint advances. The witness declares that he submits
to the judgment of the Court.^
The trial having elicited the above statements, [my
decision is as follows]; The defendant Kinzayemon's
allegation that there was an express agreement for the
prior taking out of his own advance, ■ agreed to be made
before the joint undertaking by himself and Ibei, cannot
stand, there being no proof; it rests merely on his own
♦
1. A declaration frequently occurring at the end of a deposition,
or stated as having been made by all the parties.
228
PRIVATE LAW IN OLD JAPAN :
No. 57] verbal statement, and the final-instrument addressed tu
Kinzayemon and Ibei and received by them from the officials
of the Lord of Inaba makes no mention of such an advance,
but states only that the 35,000 hales of tax-rice were to
be delivered to them, in consideration of their undertaking
to make advances for the kitchen-expenses in the household
of the Lord of Inaba. Furthermore, as both parties
agree in stating that, of the whole amount of joint
advances, three-fourths were made by Kinzayemon and
one-fourth by Ibei, and as an entry of this proportion
of 8 and 1 is also found in the payment-book ^ of each of
the parties, a copy of which was delivered to the Lord
of Inaba, this arrangement may be taken [as binding and]
not merely as a friendly agreement not having legal
efiect,2 even though it was a private ^ arrangement and
not noted in the final-instrument. I therefore inquire
whether the judgment shall be that the accounting for
the proceeds of the 85,000 bales of tax-rice is to be settled
on the basis of three-fourths and one-fourth; that, in case
the proceeds are insufficient [to repay all the joint-
advances] , an application be made to the Lord of Inaba
[by the parties to settle the deficiency]: and that the
parties now proceed in amity and uprightness to settle
the whole transaction ?
Year of the Goat,
6th month."
2. Decision of the Chamber oj Decisions.
" In the action of Ibei, of Kodzukabara ward, Senjn,
Toyoshima kori, Bushu, in the deputy'sflistrict of Onuki
Jiyemon, for the illegal witholding of payment for advances
1. Dashi-kindate-chomen,—probably the book for monthly ad¬
vances, already mentioned. 2. Nakama-koto. This seems to be the
effect of the phrase. Nakaina is a companion, intimate, and is the
common term for co-members of a guild. 3. AUai. See No. 1.
PART III. CONTRACT : LEGAL PRECEDENTS. 229
made for the household expenses of Soma, Lord of Inaba, in
a joint-undertaking with Kinzayemon, the parties were sum¬
moned for the 7th day by indorsement, trial was had, and the
following judgment rendered:
As it is clear that, the two parties were to receive on
joint account the tax-rice, the accounts shall be settled
by dividing the proceeds in the proportion of the respective
advances made, that is, taking respectively one-fourth
and three-fourths of the net proceeds of sale undiminished
by other deductions; ^ and the parties shall proceed with
amity and uprightness to settle the whole transaction. A
document of submission is also ordered. Notice of the
judgment shall be given to Komiyama Yasaku, clerk of
Onuki Jiyemon,2 and to Watanabe Heijiyemon, retainer
of Soma, Lord of Inaba.
Note, that as the case was laid before the Chamber
hy the Finance Magistrate, there is no complaint."^
[No. 58] Building Advances.
An Action by Yadayu, of Omote-demma Ward,
Akasaka District, Yedo, against Chikwan, of
the Tentaku Temple, before Nagate, Lord
of Bigo, Town Magistrate.
Dated Bunsei, 1 (Tiger) 7, 21 (August 22, 1818.)
1. 3/0(0 (original)-da&a (amount)-, a careless phrase indicating
the 3,542 ri/o, the entire net proceeds. 2. The deputy in whose
-district the plaintiff lived. Notice of this sort was usually directed to
be given, in order that the deputy or the ofdcial of the feudal lord
concerned might know the exact issue of the case and might be pre¬
pared for any possible future disagreements arising out of the same
matter. 3. Probably because the case was laid before the Finance
Magistrate by th^deputy, before whom it would be brought in the
first instance. This note is added because, as will be seen, a judgment
usually ends with an order to cancel the complaint and answers, and
here no such formal documents existed.
280
PRIVATE LAW IN OLD JAPAN :
Ko. 68] 1. Consultation.
1
(1.) Money-Loan Action.
Jubei, representative of Yadayu (detained by
illness), house-holder of block No. 1, Omote-
demma ward, Akasaka district, [Yedo]
Plaintif:
Chido, of the Tentoku Temple, a branch of Kissho
Temple, in the Komagome district, [Yedo], of
the Sodo sect; ^ and
Itsuryo, of Denchu Temple, a branch of the above
Tentoku Temple; and
Manko, of Yokoku Temple, a branch of Kyosho
Temple, in Yotsuya district, [Yedo], of the
same sect Defendants'
(2). Money-Loan Action.
Kinshiro, representative of Kichiyemon (detained
by illness), renter of the shop of Kinyemon,
in block No. 1, Homminato Ward, (Yedo),
Plaintiff:
Chido, of tbe above Tentoku Temple ;
and
Itsuryo, of the above Denchu Temple...
The parties in the action [first] mentioned above were
summoned and trial was had.
The plaintiff's statement was as follows :—
Yadayu was requested, 6 years before, in the year of
the Ape (1812), by Chikwan, then incumbent of Tentoku
Temple, to furnish® a sum of money for the purpose of
meeting construction e expenses of the J;emple, and he
thereupon advanced the sum of 700 ryo, taking on deposit
as security the title deed of a town-residence belonging
1. One of the Buddhist sects. 2. Yo-date, (supply, furnish).
The nearest term for yodate-kin is " advances," which will be used
throughout the case. 3. This covers both building and repairing.
PART III. COMl'RACT : LEGAL PRECEDENTS. 231
to the temple. Of this sum 110 ryo were repaid on the
maturity of the loan. Upon negotiation with Kiugyu, of
Denchu Temple, a branch ofTentoku Temple, as repre¬
sentative of Manko, the then incumbent of Tentoku Temple,
who was detained by illness, the instrument of debt was
renewed! for the remaining 590 tijo, with Manko, of
Tentoku Temple, as debtor, and Keikyoku, of Yokoku
Temple, and Kingyu, of Denchu Temple, as sureties.
The plaintiff also made a new advance of 250 ryo, and
received an instrument of debt bearing the seals of the
above three temples.
Rubric.^ When these instruments were taken from
the parties and examined, it appeared that the first
was dated Buukwa, XI, (Dog), 10 (November,
1814), and read as follows : ' Whereas recent
events have created special needs in connection
with the maintenance of the temple, and, there
being no other means of obtaining money, you
have managed, at my request, to furnish it from
your business-capital,3 I shall faithfully keep it*
for you. If there is any default on the part of
the depositary, the joint-sealers will pay without
fail.' The other document, bearing the seals
of the same temples, was of the same date,
and read as follows : • You hereby deposit with
me this educational fund,® for the use of your
younger sister Ise, and I shall faithfully keep
1. This phrase, which has occurred frequently in the foregoing
pages, is used where a debtor or the successor of a debtor makes out
a new instrument in place of the old one,—a measure which dimin¬
ished opportunities for dispute and prevented the operation of any
prescriptive limitation. 2. Notes made probably by the judge him¬
self, the main report being very likely thework of a clerk. 3. Motode.
4. Azukari; it isas common to term an ordinary loan a deposit, not
merely as a euphemism, but because deposits were treated in a
manner favorable to creditors. 5. Yo-iku (bring up, educate)-fcin.
232
PRIVATE LAW IN OLD JAPAN I
No. 58] it for you. If there is any default on the part of
the depository the joint-sealers will pay without
fail.'
The plaintiff also received [with the first of the above
instruments] a collateral instrument,^ reciting the reasons
for the renewal and engaging to pay without fail between the
8rd month of the Boar year (1815) and the 2d month of the
Eat year (1816), in monthly instalments of 50 ryo, with
interest at 1 bit per 50 ryo.^ Of these loans no report was
made by Tentoku Temple to the chief temple, Kissho, or to
the district-temple.3 The plaintiff, however, conceiving that
the debts really attached ^ to Tentoku Temple, has frequently
made demand for payment; and payment not having been
made, he brought the present action against Chido, its pre¬
sent incumbent, and the surety-temples.
As to the second action, the plaintiff Eichiyemon says
that 7 years ago, in the Ape year, 1st month (1812), he lent
to Chikwan, the then incumbent of Tentaku Temple, the sum
of 500 ryo, with interest at 1 hii per 25 ryo, receiving an
instrument of debt which promised an accounting ^ twice a
year, in the 7th and 11th months. Furthermore, in the
same year, 4th month, he lent 200 ryo on a similar private
agreement.®
Rubric. When these instruments were taken from
the parties and examined, they were found to be,
first, an instrument of debt for 500 ryo, with
Chikwan, of Tentaku Temple, as depositary, and
Korin, of Denchu Temple, as surety, dated
Bunkwa, IX (Ape), 1 (Februqjy, 1812); and,
second, an instrument for 200 ryo, bearing the
seals of the above two persons, dated the same
year, 4th month. These two instruments are
1. Soye-thomon. 2.1. e., } per cent a month. 9. Kumiai-lera,
See p. 28, note 1. 4. T$uki. 5. Kanjo, i. e., paying interest.
€. Taidan.
PART in. CONTRACT : LEGAL PRECEDENTS. 233
worded in the same way, as follows ; ' I shall
faithfully keep the above sum for you. Payment
shall be made without fail whenever it is wanted.
Interest shall be at the rate of 1 bu per 25 ryo
monthly, with an accounting twice a year, in
the 7th and 11th months.' In neither is there
a recital as to whether the debt is oue attached
to the temple 1 or is a personal one^ [of the
incumbent].
Payment not being made at maturity, a demand was
made; but Chikwan fell ill and died, and Manko, [his
successor,] retired, Kingyu becoming the incumbent of
Tentoku Temple. Kingyu, on demand being made,
.unlawfully ® refused to pay: whereupon Kichiyemon,
who then resided in Iwabuchi post-town, brought action
against Kingyu before Magaribuchi, then Finance Magis¬
trate. But pending trial Kingyu was punished for an offence
connected with another affair, and leave was given to
the plaintiff to withdraw. Recently Chido succeeded
to the incumbency, and this action was therefore brought
against him to recover payment.
The defendant Chido pleaded as follows :—
If indeed such large sums had been received on
deposit from Yadayu and Kichiyemon, as they asserted,
and the joint instruments described above were given,
a report ought to have been made to the chief temple,
or else the seal of the district-temple ought to have
been affixed. But neither of these things was done
and, furthermore, the seal used was not that of their
temple;^ so that neither of the debts can be considered
as attached to the temple. Moreover, the previous
incumbent, Kingyu, who had been guilty of misconduct
iu borrowing such large sums of money in different
1. Tera-Uuki. 2. Waga (Belf)-tno«o (thing). 3. Lit., selfishly.
4,1, e., it was a personal, not official, seal.
234 PRIVATE LAW IN OLD JAPAN :
No. 58] quarters that he could hardly remain in the benefice, had
been sentenced to banishment to a distant island, and
the benefice had been forfeited, and Chido, who had no
religious association! with him, was chosen as incumbent
by popular election 2 held by direction of the chief temple.
So that, if he were to undertake the payment of the
large sums [borrowed by his predecessors], the means
of the temple would be exhausted. He therefore aske
for exoneration ® from all these claims.
Manko, of the Yokoku Temple, another of the defendants^
pleaded as follows :—
He was formerly a disciple at Unryo Temple, in
Takayama, of Hishu,^ and afterwards became a "trans¬
ferred disciple"® of Chikwan, at Tentoku Temple, and
incumbent of Yokoku Temple. Chikwan died in the
preceding Dog year, 2nd mouth (1814), and Manko,.
appointed in his will as his successor, was confirmed
as such by the chief temple, and succeeded to the
benefice, taking over ® all the debts, as well as the
furnishings attached to the temple. But Manko fell
ill, and his illness became more and more serious, he
entrusted Kingyu with the affairs of the temple, as well as
other matters, during his illness; so that he had no
1. Horui. See p. 89, note 2. 2. Ntn (people)-san (elect).
When an incumbent died or retired, the danka (parishioners)—
every one was registered as a parishioner of some temple—
chose some disciple or other religions associate of his as
successor ; but the choice (probably in all tl|^ sects) required con¬
firmation by the chief temple. Very often some one was selected
who had been nominated by the departing incumbent. 3. Kamhen.
4. Hitachi kuni. 5. Yori-deshi. No one could become priest except
by succession to one whose horut he had befen. Hence, where an
incumbent died and left his disciples masterless, they rhust form a
similar connection with another priest, usually a horui of the deceas¬
ed. One who thus comes as a disciple from (yori), another who has-
died is termed a yori-deshi or transferred-disciple. 6. Hiki-ukeru.
PART III. CONTRACT : LEGAL PRECEDENTS. 235
knowledge [of any transactions occurring during Kingyu's
management]. Afterwards, in the 12th month of the
same year, he filed a petition with the chief temple, asking
permission to retire, and this petition was granted. Kingyu
was appointed his successor, to whom he made over, accord¬
ing to the temple-regulations, all the debts and furnishings.
Subsequently he recovered his health, and was re-appointed,
in the last Ox year, 8th month (1817), to the incumbency of
Yokoku Temple.
[The defendant] Itsuryo, of Denchu Temple, pleaded'
as follows:—
He cannot understand what reason justified Kingyu,
the incumbent next but one before him, and Korin, fivo
generations ^ before, to stand as surety for such large sums.
Furthermore, the seal is not that of the temple. He there¬
fore considers it an unjust burden to have been made a
defendant in the case.
Rubric. It is said that the above Chikwan fell ill
and died in the last Ape year, 2d month (1812),2^
that Korin fell ill and died in the same year, 9th
month ; and that Keikyoku, former incumbent of
Yokoku Temple, went-into retirement in the last
Ox year, 7th month (1817), and is now suspended ^
and attached to Hosho Temple, Ushigome district,.
[Yedo],
Such were the allegations of the parties. My inquiry
is whether the case, shall be decided in the following;
manner:—
1. That is, five incumbencies. 2. The date given above is the
Dog year (1814). 3. Zui-shin. This seems to mean the state of a
person who is forced into retirement as a punishment. It woulcE
differ from ordin^y voluntary inkyo or retirement, in that the person
might be reinstated in office, while the return from inkyo would be a
very rare occurrence. ^
286
PRIVATE LAW IN OLD JAPAN :
58] It may be argued that there is no reason to suppose
that the creditors intended the debt to he binding only
during the lives of the borrowers, inasmuch as the instru¬
ment hears the titles of the temples just above the seals
of the debtors, and inasmuch as [the creditors afterwards
procured] Manko and Kingyu, who hy reason of religious
association succeeded Chikwan, to undertake payment of
the claims, hy a private agreement ;i and, therefore, that the
debts should he regarded as attached to the temple.
Nevertheless, they must he regarded as only personal obliga¬
tions [of the incumbents], because there is no statement in the
instrument that they are to he attached to the temple.
Regarding them, then, as personal obligations, we find that
when Kingyu was sentenced to forfeiture of estate for
crime, and Tentoku Temple became a forfeited benefice,
[his] religious relationship was extinguished so that as
regards the instrument of debt executed hy Chikwan and
given to Kichiyemon, he cannot recover payment from
either Chido, [the present incumbent], or from the present
incumbent of Denchu Temple, inasmuch as the debt was
transferred hy Chikwan, on his death, to Manko, and by
Manko on his retirement, to Kingyu, who suffered forfeiture.
As for the instrument executed hy Manko and given to
Yadayu, (the debt being originally that of Chikwan, renewed
during the incumbency of Manko), it was transferred hy
Manko, on his retirement, to Kingyu, who suffered forfeiture;
so that payment cannot he recovered from Chido, [the
present incumbent], still less from the present incumbent
of Yokoku Temple or Denchu Temj^e; ^ though the
1. Altai. See notes to No. 1, ante. 2. It is fairly clear that
this " religious relationship " took the place of the family-relation
of secular life, and that the principles of family-succession were
applied to it. 3. The former incumbents of which, Eeikyoku and
Kingyu, had gone sureties on the loan. Eeikyoku had now retired j
Eingyu had suffered forfeiture.
PART m. CONTRACT ; LEGAL PRECEDENTS. 287
result would be different if an action were brought against
the surety Keikyoku, on his being again appointed to a
benefice ? ^ Shall therefore, an order he made dismissing
the case ?
We enclose, with this Consultation, copies of the
complaints 2 and answers,® with the instruments of debt,
in both actions."
2. Decision o f the Chamber of Decisions.
" Decided as above, by the Full Chamber."
[No. 59] Money Loaned.
An Action by Mohei, house-manager, of Shichiken
Ward, Ikenohata, against Bion, of Hoju Temple,
Misaki, Yanaka, Yedo, before Sakakibara,
Minister of Imperial Revenues, Town Magistrate
of Yedo.
Dated Tempo, VII (Ape), 3 (May, 1836).^
1. Consultation.
" Tempo, VII (Ape), 3 (May, 1886).
To Hotta, Lord of Bichu,®
From Sakakibara, Minister of Imperial Revenues.
Mohei, house-master, of Shichiken ward, Ikeno¬
hata Flaintiff:
Dion, of Hojii Temple, Misaki, Yanaka, of the
Jodo sect, and
Zenijemon, renter of the shop of Iwajiro, Umihe
ward, Fukagawa district, \Yefio\ ....Defendants.
This action was brought before me in the 10th month
of last year, and is still pending.
1. See note p. 237. 2. Soslto. 3. Ko-taye or to. i. Cited
from " Shoji-doine." 5. Temple Magistrate.
238
PRIVATE LAW IN OLD JAPAN :
No. 59] The defendant Bion pleaded as follows :—
The loan in question was incurred in the 8 th month
of Bunsei, VIII, Cock (1825), by Yuzen, predecessor of
Bion, as principal debtor, and Zen5'emon, as suretj'. After
the death of Yuzen the temple was without parishioners
and without religious relationship, ^ and year by year its
circumstances became more and more straitened, until
finally, as no one would accept a transfer of the benefice,® it
became a forfeited benefice,3 and fell under the controB of the
Zojo Temple ; until at length the defendant Bion, in the 12th
year (Ox) of the same period (1829), was appointed incum¬
bent. Bion had no knowledge of the loan in question, and
regards himself as not bound to pay.
Now [before the present action was begun] another
money-loan action had been brought before me against
the said Bion, in the 8th month of the last Goat year
(1885), by Jimpachi, renter of the shop of Yabei, in
Block No. 9, Ta ward, Shiba district, [Yedo]; and,
a similar plea being made to that action, and the
residence of the surety not being known, the plaintiff Lad
been given leave to withdraw, on the ground that payment
could not properly be demanded from the present incumbent,
the benefice having become forfeited on the death of the
original debtor, and the present defendant having become
1. J/a-dan viu-yen. That is. there were no parishioners
to support it and no religious associates to succeed the deceased.
2. Honii-yuzuri (lit., transfer of the relationship). This
" transfer of relationship" was the common mode of speech
applied to the succession to a benefice. If the transfer was made
during the lifetime of the withdrawing priest,*t took the shape, in
many or most cases, of a sale of the benefice (not in name, of
course); and the poverty of this parish was a reason why, even
if there had been a religious associate, he would not have cared to
receive it as a gift, much less to buy it. 3. Age-dera (taken-up
temple); perhaps " suspended " would express the idea equally
well. 4. Kwan-shii-mochi; that is, its affairs were administered by
the chief temple temporarily.
: . I •
PART III. CONTRACT : LEGAL PRECEDENTS. 239
incumbent by virtue of no religious relationship.! But, on
making further inquiries, I have learned that in two money-
loan actions brought before my colleague, the Lord of Iga,
in Bunsei XII, Rat (1828), by Jihei, house-owner, of Kata
Ward, Komagome district, (Yedo), against Zenkyo, the
temporary manager2 of Hoju temple, with its committee^ and
parishioners and the district-temple,^ payment was made in
both cases by way of private settlements pending trial.
Of these actions before the Lord of Iga I did not know last
year, [when the action was decided as above by me]; hut now,
on being apprised of them and on comparing the different
actions, I perceive that, though in each case the fact of the
forfeiture of the benefice existed, yet two opposite rules
have been adopted for the same state of facts, as regards the
propriety of ordering or not ordering payment. Such a result
is quite undesirable; and, on further reflection, I concluded
that the decision of the Lord of Iga, in ordering payment,
was the correct one, for the following reasons. Though
it often happens that a transfer of the benefice becomes
impracticable, because the temple has lost its parishioners
and then the benefice is forfeited, yet its creditors
would he placed in a very unfair position if an order
of payment were to be refused because of some regula¬
tion of the sect that in such a case the succeeding incum¬
bent need not undertake payment of his predecessor's debts.
The present case is distinguishable from the case where an
order of payment is refused because a predecessor suffered
forfeiture of estate. Moreover, it cannot be claimed that
1. See note 2, p. 89 ante. 2. Kwan-shu. See Note 4, p. 238, ante.
3. Sewa-nin; these were a few of the parishioners, chosen by the
latter to act with the priest in administering the secular affairs of
the parish. 4. Kumiai-tera. The temples of a certain region were
formed into a company (kumiai); and when a temple wished to
borrow money for repairs, etc.. it was necessary to get the counterseal
of the parishioners and of the head temple of the kumiai (rendered
" district-temple"). 5. By sanction of Court.
240
PKIVATE LAW IN OLD JAPAN :
No. 69] the loan was a personal one of the incumbent alone, since •
it is expressly stated in the instrument of debt that the
loan was to be applied to the use of the temple and since
the seal is that of the temple.
However, as it appeared fairly clear that the defendant
temple was iu very straitened circumstances, I directed the
parties to settle by amicable agreement, the plaintiff to
release 1 some part of his demand, and the surety, Zenyemon,
to afford some assistance. But the defendant temple insisted
that it could make no payment at all; whereupon I sum¬
moned Zenkyo, now incumbent of Anritsu Temple, in the
district of Zojo Temple, who had been temporary manager of
the defendant temple in the suit brought against it before the
Lord of Iga. On examination Zenkyo stated that the claim
in that action (which was brought shortly after the death of
Yuzen) had been privately settled by the temples which had
gone as sureties, Hoju Temple itself not being able to pay.
It would seem, on the whole, that a peremptory order of pay¬
ment [by the surety] would hardly be proper in the present case,
as the only surety is Zenyemon, and there is no additional
seal of a district-temple or the like. Desiring, therefore, to
establish a uniform rule for such cases (which we cannot
suppose will not occur again), I now, with the approval of
my colleague, beg to consult you, and ask your opinion as to
whether payment should be ordered or not.
Year of the Ape,
2d month."
2. Ansiver by the Temple Magistrate.
"I have been informed of the substance of your
letter. As to the rule of the Jodo sect, that no new
incumbent should undertake the payment of a predecessor's
debts [of which the chief temple has not been notified],
I have several times been consulted by you and have
1. Kamben.
PART III. CONTRACT I LEGAL PRECEDENTS. 241
answered aflSrming that rule. But [its eflfect on the
liability of the surety for such debt is still unsettled, and]
as it is undesirable that there should be conflicting rules on
the same subject, I have considered the matter again and
have come to the following conclusion. Since the creditor
has usually no knowledge of any such rule of the sect as the
above, [the rule should at any rate not be extended to
sureties for such debts], and it is proper, when an action
is brought by him against a subsequent incumbent and the
district temple standing as surety or against the parishioners
and surety, and the temple charged as surety is proved to
have acted as such, that payment should be made by the
surety, by way of private settlement, even though
the loan was incurred privately, without notice to the
chief temple, and though the debtor's seal was not his
formal seal.i However, as the above-mentioned rule of the
sect was insisted on by the defendant to apply to the
present case, I inquired of the managers of Zojo Temple,^
giving the case in outline ; and I enclose their answer.
Now, in the action already brought before the Lord of Iga
by Jubei, house-owner of Kata ward, Komagome district,
against Zenkyo, temporary manager of Hoju Temple, and
the surety, the surety-temple undertook the payment, Hoju
Temple not being able. With this precedent before us it
seems proper enough that Zenyemon, the surety in this
case, should, if there be no doubt that he acted as such,®
make payment, whether there is or is not the additional
seal of the district-temple.^ As to holding the present
1. Jitsu-in; this is used on formal occasions and for official
purposes. Ken-in or mitome is used for informal purposes. 2. The
chief temple of the sect. 3. The reference is to the ambiguity of the
term shonin. See Part II, " Witness and Surety." 4. The question
with the inquiring judge seems to be whether the surety can be held
if the subsequent incumbent cannot, and whether some authorization
of the loan is not necessary, such as the seal of the district-temple.
The answer implies that the absence of the district-temple's seal
cannot affect the surety's liability who goes as surety for the debtor
Vol. xz. Sup. Pt. 111.—m.
24^
PRIVATE LAW IN OLD JAPAN :
|?o. 59] incumbent liable, it would be proper, wherever due notice
of the loan had been given to the chief temple through the
district-temple, to require payment, so far as the circum¬
stances of the temple permit it.i But it seems hardly
desirable to make any absolute rule on this point; ^ and
I think it would he better for you to consult me 3 whenever
any specially difficult case arises.
Such is my reply to your question. I enclose a copy
of the report from Zojo Temple.
Year of Ape,
3d month.
Hatta, Lord of Bichu."
8. Report from Zojo Temple.
Tempo, VII (Ape), 8, 16 (May 1, 1886).
" You have informed us that, although the regulations
of the Jodo sect require that no subsequent incumbent
should he liable for debts of a predecessor [not communicated
to the chief temple], a regulation of which we have already
informed you, yet, as the creditor usually has no knowledge
of such a regulation, [the rule should, at any rate not he
extended to sureties for such debts], and in your opinion,
where an action for payment is brought against a subsequent
incumbent and a district-temple as surety, or against the
parishioners and surety, and the temple charged as surety is
personally, not for the temple ; and that in the instances where the
district-temple has sealed, it was acting as an ordinary surety, and
hence an individual who goes surety, instead of the district temple,
is to be held to the same liability.
1. The rule requiring notice was subsequently changed. See
ante, No. 28, 2, Art. 35. It is to be noted that the answering
judge insists on the necessity of notice, a point which the
inquiring judge made little of. 2. Because, where the temple
has become poor, it would not be just to put the whole load of
debt on the new incumbent's shoulders. 3. Because the Temple
Magistrate was the highest of the Three Magistrates, and should
especially be consulted in ecclesiastical causes.
PART III. CONTRACT ; LEGAL PRECEDENTS. 243
proved to have acted as such, payment should be made by
the surety, by way of private settlement, where the subse¬
quent incumbent refused to pay, even though notice had not
been given of the debt to the chief temple through the
district-temple. You requested our opinion on the subject.
We thiuk that your opinion by no means conflicts with
the rule of our sect. It is a rule of long standing with us
that a subsequent incumbent should not be called upon to
pay loans of a predecessor which were not communicated to
the chief temple when contracted. But it does not affect
the interests of the chief temple that the surety should, as
you desire, be required to settle privately with the creditor
on the fact of suretyship beiug established.
Such is our reply.
8d month.
Managers of Zojo Temple."
[No. 60.] Money Loan.
An Action by Kinsuke, of Susaki Village, Bushu,i
against Toshichi and another, of Ofune-kuramaye
ward, Fukagawa District, Yedo, before the Lord
of Sado.
Dated Kokwa, V (Ape), 2, 4 (March 8, 1848).
1. Consultation.
" From Kusumi, Lord of Sado :
Kinsuke, dependant in the household of Sobei,
elder of Susaki village, Katsushika kori, Busbu,
in the deputy's district ofSaito KeCoei...Plaintiff,
Toshichi, renter of the shop of Kinjiro, in Ofune-
kuramaye ward, Fukagawa district, [Yedo]
. Defendant.
1. Musashi kuni, in which Yedo was.
244
PRIVATE LAW IN OLD JAPAN :
Ko. 60] Summoned for examiuatiou :
Mosuke, renter of the shop of the five-meni
company,! in Shiwo ward, Reiganjima, [Yedo].
The above action was brought before me, a summons
issued for the 7th day, and trial had. The plaintiff Kiusuke
had formerly lived in Yokoyama-dobo ward, [in Yedo],
dealing in sandals.^ The defendant Toshichi was some
years ago in the employment of Heibei, Kinsuke's adoptive
father. That Einsuke had lent certain sums to Toshichi
was clear; but the case could not be determined without
examining the above Mosuke, renter of the shop of the five-
men company, of Siiimo ward, Reiganjima, [Yedo], and he
was summoned and examined.
The plaintiff Einsuke pleaded as follows :—
The alleged loan to Toshichi was made under the
following circumstances. Toshichi, in the last Dragon
year (1844) joined in the contract, long held by
Mosuke, for the cleaning of the canal passing under Eyo
Bridge, and undertook half of the length to be cleaned,
agreeing to contribute to the expense, the total amount of
which was to be about 3,237 ryo. But, his available money
not being enough, he informed Einsuke and requested him to
make a loan, showing the indenture® executed between
himself and Mosuke, and agreeing that payment of principal
and interest should be made from the Government-money ^
received from time to time in payment during the progress
of the cleaning. The plaintiff then from time to time^
beginning with the 12th month of that year, lent various
sums to the defendant, sometimes taking an instrument of
loan, sometimes getting the defendant's seal in an account-
1. Gonin-gumi tana. That a gonin-gumi possessed property in
common seems improbable; but this is the most natural explanation
of this phrase. 2. Setta, a kind of straw sandal. 3. Tori-kawase
(exchanged)-s/iomoM (instrument); each gave a copy to the other.
4. 0-sage-kin (money handed down from the authorities).
PABT III.—CONTRACT I LEGAL PRECEDENTS. 245
•book.i But as the undertaking went on, the expense
increased beyond the estimates, and the work began to go
more slowly ; and finally Mosuke, who had other undertak¬
ings of the sort on his hand and was pressed for money,
proposed to the plaintiflf and the defendant to take up
Jointly with him the cleaning-contract for the ahove place,®
just as the work stood. The plaintiff was informed of this
proposal by the defendant, and agreed to it, the arrange¬
ment being that those sums which had been lent up to that
time to the defendant should, with their interest, be left as
"they were; aud any moneys which might be received [from the
■Government] for the undertaking should be divided among them
without caring for settlement of the loan-account.® In the 10th
month of the next Serpent year (1845) a new indenture
to this effect was made out by all parties, and Toshichi and
Kinsuke entered upon the work. Kinsuke might have
taken an active part with the others in watching
the work, employing laborers, paying wages, etc.;
but as the business was unfamiliar to him, he left all
to the others. The cleaning went on; but after a time
some spots were found where the difficulty of the work
unexpectedly increased the expense, so that the original
estimate of cost was exceeded ; and at last the plaintiff and
the defendant were obliged to withdraw from the undertak¬
ing, and Mosuke proceeded alone with the remainder and
ultimately finished it.
The total amount of the advances made [by Kinsuke]
in this undertaking was 1,920 ryo, 1 hu odd, and of
1. Han (seal)-fort (take)-c^ (book); a book kept by the seller
or lender, in which entries of the sales or loans were made, the debtor
signing the entry. 2. I.e., the portion already undertaken by Toshi¬
chi. 3. See the end of the Consultation for the construction put on
these expressions. " Left as they were " means that they were to he
regarded no Icyiger as loans, but merely as Kinsuke's capital invested
in the partnership undertaking. " Without caring for settlement"
means that no settlement was to be made.
246
PRIVATK LAW IN OLD JAPAN :
No. 60] this sum 945 ryo had been paid, leaving a balance due of
975 ryo odd. Toshichi, indeed, had also made some
cohtributions [to the expenses of the joint undertaking
before Kinsuke entered], but these were small. It would
be unreasonable, were the plaintiff alone to be the
sufierer. Toshichi had invariably evaded with profuse
apologies his requests for payment, declaring that he was
quite willing to pay, but could not until the accounts
had been settled with Mosuke; and yet he continually
delayed the settlement of that account. The plaintiff
himself had borrowed from different quarters the amounts
advanced [to Toshichi], and, being without excuse for
his own creditors, had been obliged to sell even his house
and furniture, and had become a dependent in the household
of Sobei, a relative, of Susaki village, Bushu, where he
now is. The plaintiff therefore demands a detailed account
and the payment of all sums due,
The defendant Toshichi pleaded as follows :—
He had formerly been employed by Heibei, the
adoptive father of Kinsuke. In the preceding Dog year
(1838) he had left this position, and had entered the
sandal business for himself, hiring the shop of Kinjiro,
in Ofune-kuramaye ward, Fukagawa. Meanwhile Mosuke,
renter of the shop of the five-men company in Shiwo
ward, Beiganjima, had taken a contract for the cleaning
of the canal flowing under Kyo Bridge; but the area to
be cleaned was larger than he was able to undertake alone,
and in the last Dragon year (1844) he had asked Toshichi
to become his partner ^ and undertake half the length to
be cleaned. The cost of the whole undSrtaking was tO'
be 3,287 ryo odd. An indenture was drawn up between
them, agreeing that whenever the Government-instalments
should be paid, they should be divided between them.
Toshichi thereupon advanced 250 ryo odd for the work.
1. Ai (together)(do).
PAKT III, CONTRACT : LEGAL PRECEDENTS. ^47
and then, not having the money himself, he applied to
JCiQSuke to furnish further capital. The loans began in the
12th month of the same year, sometimes an instrument of
debt being given, sometimes the seal being affixed in an
account-book. The agreement was that payment should
be made, principal and interest, at each time that
a Government-instalment was received. The work of
cleaning was begun iu the 1st month of the ensuing
Serpent year (1845), but it progressed slowly, though
several advances of money were made. At this juncture
Mosuke, who had taken other contracts of the sort and
was pressed for money, proposed that the defendant and
Kinsuke should take the remainder of the Government-
money, 782 rtjo, pay 50 ryo due for hire of mud-scows, and
take up jointly with him the cleaning-contract for the
place already undertaken by Tosbichi, just as the work
stood. Tosbichi informed Kinsuke of the proposal, and,
a favorable reply being made, Mosuke gave notice to the
authorities and obtained their sanction. The sums already
borrowed by Tosbichi, with the interest, were to be left as
they were, the agreement being that whatever money might
be obtained from the undertaking should be divided among
the plaintiff, the defendant, and Kinsuke. The former
having thus become the partners of Mosuke, a new
indenture was made out on the 20th of the same month,
and the work was entered upon by them.
Rubric. The above instrument was ordered to be
produced, and read as follows ;
' Indenture.!
Whereas the cleaning of the canal under Kyo
Bridge has been undertaken by you, and one of
us then agreed to undertake the cleaning of
one-half the length, advancing his own share 8
1. Tori-hawase-mosu iisatiu no koto. 2. Wariai.
248 PRITATE LAW IN OLD JAPAN
Ko. 60] of the expense, and since the work has been
begun and during its progress the Government-
money has not been sufficient and large amounts
of money have been spent; Now therefore
it is agreed between all parties that we shall
receive the remainder of the Government-money,
782 ryo, pay 50 ryo due for the hire of mud-
scows, and undertake the cleaning of the portion
now remaining, and carry it on until completed
and officially inspected; that we shall pay the
wages of the bargemen, the expense of official
inspectors' sheds and laborers' sheds, fees of
superintendents, laborers' wages, etc., and shall
make every effort to guard against delay; that
we shall have no responsibility in regard to tbe
two special places [left to your charge]; that on
request we shall deliver to you your share i
of auy extra payments [of the Government-mouey]
which we may obtain for specially difficult
portions ; and that you shall leave the pumps,
scaffolding, and other apparatus just as they now
are, the same to be restored to you on completion
of the work. Acting under the agreement thus
privately made between us, we sball complete
the cleaning not later than the last day of the
eusuing 11th year, putting on a sufficient number
of men and boats ; and if this proves impossible
we shall endeavor to cause as little inconvenience
as may be. In testimony this we hereby
exchange instruments of the above effect.
Kokwa, II (serpent), 10, 20 (Nov, 19, 1845).
Toshichi, renter of the shop of Kinjiro, in
Ofume-kuramaye ward, Fukagawa.
1. Hai (di8tribute)-&tn.
PART III. CONTRACT : LEGAL PRECEDENTS. 249
Kiiisuke, land-renter of Jutaro, in Yokoyama-
dobo ward.
To
Mosuke, Esq."
The above instrument being drawn up, the plaintiff and
the defendant became the partners of Mosuke. But in
a short time difficult portions were found in the area
to be cleaned, and the cost increased largely, until the
amounts paid in by Eiiisuke by the 11th month of that
year amounted to 1,920 ryo, 1 ba; for the slowness of
the work made it difficult to estimate the total cost of
any portion beforehand. Moreover, as the time for
completion named in the contract had now expired, the
two, [Einsuke and Toshichi,] were obliged to give up
the undertaking, the remainder of the work being under¬
taken and ultimately completed by Mosuke. Of the
above 1,920 ryo, 1 bu, 945 ryo in all has since been
paid at various times to Einsuke, and the amount left
unpaid is 975 ryo, 1 hu. The above facts are admitted.
But [there are reasons why the payment of this remainder
should not be enforced]. Now that the plaintiff and
defendant, after entering into the above contract and
making out a new instrument in which they appeared
as partners 1 [of Mosuke] (who appears to have taken
advantage of their inexperience in such matters and
knowingly included the most difficult places in the portion
assigned to them) have given up the undertaking on
account of their miscalculation of the expense, it is
difficult to see why [Einsuke] should make the claim that
he does. 2 Of course the defendant occupies the position
of a former servant of Einsuke, and does not wish to
appear guilty of a breach of the duty of devotion arising
from that relation; but as his account with Mosuke is still
1. Vehi-nakama. 2. That is, if there was any Government
money to divide, he might claim some of it; but there was none.
250
PRIVATE LAW IN OLD JAPAN :
No. 60] unsettled, ^ it is impossible for him yet to settle the clainA
of the plaintiff.
Mosuke's statements were as follows :
For many years he had been in the business of spade-
manufacturing. In the last Dragon year he undertook, at
the estimated cost of 8,237 ryo,^ the cleaning of the canal
under the Kyo Bridge, and he requested an old friend,
Toshichi, renter of the house of Kinjiro, Ofune-kuramaye
ward, Fukagawa, to undertake one-half of the portion as
his partner.3 Toshichi agreed and subsequently advanced
money on different occasions. But his advances not being
sufficient, he asked one Einsuke, a house-owner, then
living in Yokoyama-dobo ward, a man of some property,
to act as capitalist.^ Kinsuke agreeing, the respective
amounts to be advanced were fixed, and the parties inter¬
changed instruments. The canal-cleaning was set about
by them in the 1st month of the ensuing Serpent year.
The work went on and from time to time the Govern¬
ment paid several instalments (980 rijo in all) of the
amount agreed on. The witness had at that time
other undertakings of the sort, and, as he began to fall short
of money, the work of cleaning suffered some delay; so
that finally he requested Toshichi to undertake jointly with
Kinsuke that portion already undertaken by Toshichi, they
two to receive the remainder, 780 »"yo, of the money to
be paid by the Government. Kinsuke agreed to Toshichi's
proposition and they notified the witness that they would
complete the cleaning of that section. The witness re¬
ported to the Government and got its consent, a new
instrument was drawn up, and the plaintifr and defendant
became the witness' partners [in the undertaking] Kinsuke
should have taken part in the supervision of the work ; but,.
1. That is, as Mosuke has paid over nothing from the Govern¬
ment. 2. Japanese in making a rough estimate always carry out
the figures in detail. 3. Ai-shi. 4. Kin-Bhu. 5. Uchi-mhama.
PART m. COWTRACT : LEOAL PRECEDENTS. 251
owing to his ignorance of such things, he left it all to the
witness and Toshichi. The cleaning was thus carried on by
the plaintiff and the defendant, all the expenses, such as
laborers' wages, etc., being paid by them. From the 11th
month of that year the work began to be neglected, for they
said the circulation of money was poor ; ^ and, as they failed
entirely to heed the remonstrances of the witness, he was
finally obliged to complete it himself, in order that no
delay might occur in the performance of the work, for
which he, as the original contractor, [was to some extent
responsible]. The result was a considerable loss to himself
(though the work was ultimately completed by him),
because the time agreed on for its completion was at
hand and he was obliged to have the men work at night
in cold weather. The witness thought there was no reason
why he should be obliged to pay them anything at
all—even though he had received the final instalments from
the Government,—in view of their unjustifiable abandon¬
ment of the work undertaken by them as his partners,
the result of which was to oblige him to finish it at his
own expense. All the parties concerned had suffered
large losses, in consequence of the unexpected difficulty of
certain portions of the work; but each must bear the
consequences of the error in the estimates, and Toshichi
and Kinsuke were not the only losers. The witness
declared that he was quite ready to share with the other
two, as agreed in the instrument above mentioned, any
extra amount which the Government might pay, and that
he had already petitioned for such extra payment on the
ground of the extra disbursements required for unex¬
pectedly difficult portions. But, as no order for such
payment had yet been made, there was nothing to be
distributed, and therefore nothing was owing Toshichi.
1. That is, they could not raise any more.
252
PRIVATE LAW IN OLD JAPAN :
Ko. 60] Such were the statements of the parties, [and the
Court reached the following conclusions]: It is clear
that the plaintiff had lent various sums to Toshichi,
taking sometimes an instrument of loan, sometimes the
defendant's seal in an account-book. But when the new
instrument was drawn up, by which both parties became
the partners of Mosuke, and [it was stipulated that] these
advances should be left as they were, and that any
money which might be received by them from the
Government for the undertaking should be divided among
them on its completion, without caring for any settlement
in regard to the above advances, this claim for the advances
became merely a matter between themselves, i and was
no longer to be regarded as a debt due from one to
the other.
The parties declare that they have no fault to find
with the proceedings as related above. ^
Trial was held as above related. The parties dis¬
agree as to the validity of the claim, but it seems to
me that the matter is one between themselves, and that
the judgment should be that no order of payment should be
made. I therefore consult you on the subject.
Year of the Ape,
2nd month."
2. Jiidyment.
" Kokwa, V (Ape), 2, 4 (March 8, 1848).
Before the Lord of Sado.
1. The idea is that as Kiiisuke had now enured the undertaking
as a partner, taking a partner's risks, his past advances should be
regarded as advances on the partnership account. Each one put in
what money he could get, and trusted to getting it back, not from
the other partner as a borrower, but from the proceeds of the under¬
taking ; the division being presumably according to the advances of
each. 2. This phrase is customary in this place. It may mean that
the summarized testimony was read over to the witnesses and was
declared correct by them.
PART III. CONTRACT I LEGAL PRECEDENTS. 253
An action Laving been brought by Kinsuke, of Bushu,
Katsushika kori, Susaki village, in the deputy's district
of Saito Kabei, for arrears of a money loan of 975 rijo,
1 hu odd, alleged to be due from Toshichi, renter of the
shop of Kinjiro, of Fukagawa, Ofune kuramaye ward,
[the defendant] was summoned by a 7-day indorsement
and trial was had. The judgment is that no further
trial shall be had. It is plain that the plaintiff lent
the above sum to the defendant, partly on instruments of
loan, partly in the shape of book-debts. But when the
new instrument was drawn up and the partnership was
formed 1 with Mosuke, renter of the five-men-company's
shop in Reiganjima, Shiwo ward, for the cleaning of the
canal, the loan was left as it was, the parties agreeing that
whatever moneys might be received for the cleaning
upon its completion should be divided among them, and
that no further account should be taken of the loan in
question, the advances thus becoming a matter between
themselves only. The parties should be directed to hand up
an instrument [of submission].
Note, that as the case was brought up by the
Finance Magistrate, there is no complaint." .
[No. 61] Moneij Loan.
An Action by Keiun, of the Sairen Temple, Lower
Ichibukata village, Bushu,® against Sentaro, of
Hagiwara village, "Washuj^ and another.
Dated Kayei, II (Cock), 3, 21 (April 13, 1849).
1; Consultation.
" This action was brought before the Lord of Yamato,
then Temple Magistrate, and, a first-seal summons having
ft
1. Uchi-nakama ni naru. 2. Musashi kuni. 3. Yamato kuni.
254
tRIVATK LAW IN OLD JAPAN :
No. 61] beed issued for the 21st of the dth month of the last Ape
year (October 17, 1848) as the day of appearance,i trial was
had. Pending trial, however, the office was vacated by
the above person, and the case, on coming before me, was
again examined.
The plaintiff Keiun alleged as follows :—
He had deposited with one Hyoshichi, of Washu,
Wada village, related to him civilly,2 a sum of 20 kwamme
in silver, which had been laid aside by him as a promotion-
fund.3 He was requested by Matabei, father of the
defendant Sentaro, in the last Serpent year (1845) to lend
him the amount fur a short time and had sent his disciple
Shimmyo to that place, and the latter, after negotiating
with Matabei and Hyoshichi, had lent the sum to Matabei,
taking a receipt from Hyoshichi. The loan was not paid at
maturity, and demand was made several times. Mean¬
while Matabei fell ill and died, and the plaintiff then went for
payment to his son Sentaro, but, notwithstanding frequent
demands, no payment has yet been made, and he has always
some excuse or other; by all of which the plaintiff is greatly
injured.
Sentaro pleaded as follows :—
He had no knowledge of any loan by Keiun to his
father Matabei, and moreovei* he found on inspection that
the seal on the alleged instrument of loan is not his
father's ; so that he cannot be liable.
The witness * Hyoshichi testified as follows :—
It is true that Keiun was born in Tsunoye village,
in the same province as the witness, and is civilly related
to him; that the witness was entrusted by Keiun with
a sum of 20 kwamme in silver to keep for him; that
1. Sashi-bi. 2. Zoku-yen. The disciple and priest were related
to each other religiously (see p. 89, ante); but the disciple's or
priest's natural father or son was related to him civilly. 3. To pay
any fees, etc., required. 4. Hiki-ai-nin (a person drawn in, i.e., one
involved, but not as a party).
PART III. CONTRACT t LEGAL PRECEDENTS. 255
■subsequently, in the last Serpent year, Keiun's disciple
Shimmyo came to the witness and requested bim to deliver
over the money, announcing Keiun's intention to mate
"the loan to Matahei as requested hy him; that the witness
immediately delivered it over and the loan was made [to
Matahei], an instrument being taken [hy the lender].
As the statements of the parties differed, other
witnesses were called, and the above instrument was taken
up [hy the Court], inspected, and compared with the
temple-registry ^ [of the defendant's father]. It then
appeared that the seal of Matahei, as well as those of
Genzo, of Taguchi village, and of others, (whose names
the instrument bore], were not genuine. Further trial
was had on this point. It appeared that the money said
to have been lent to Matahei was really not received
hy him at all from Shimmyo, who, it appears, after receiv¬
ing it, according to Keiun's intention, from Hyoshichi,
turned it to his own use, forging an instrument of loan and
deceiving Hyoshichi. Both Matahei and Shimmyo, however,
are dead, and the exact facts cannot be ascertained. But it
has been made clear hy the trial that no loan was received
hy Matahei; and the plaintiff now thoroughly regrets having
brought the action, proceeding, as he has done, on a mistaken
idea and without having another consultation [with the
defendant]. Hyoshichi also is now aware of his error ; for
he at first corroborated by his testimony the statements of
Keiun, declaring that the money was undoubtedly lent [to
Matahei] by Shimmyo, although the witness had had no
other personal connection with the transaction than the
delivery of the money to Shimmyo. He thoroughly regrets
his culpable conduct, and earnestly desires the pardon of
Sentaro. Sentaro, on his part, declares that he has no fault
to find, now that the facts have been made clear.
1. Because here the seals were to be found in authentic form.
256
PRIVATE LAW IN OLD JAPAN :
[No. 61 For these reasons [the plaintiff and Hyoshichi] have
asked leave jointly that the action may be withdrawn. Now
Keiuu and Hyoshichi would ordinarily merit some severity
on account of their culpable conduct as above described.
But leave has been asked to withdraw, and as there is no
reason why it should not be given, should I confine myself
to issuing a severe censure ^ and then grant leave to with¬
draw ? I consult you on this point.
Year of the Cock,
3rd month, 21st day."
2. Document of Submission.
" Document handed up.
An action for a money-loan having been brought
before you by Keiun, of the Sairen Temple, Bushu, Lower
Ichibukata village, against Sentaro, of Washu, Hagiwara
village, and another,^ witnesses were summoned and the
trial had.
The plaintiff Keiun alleged as follows; He had
deposited with one Hyoshichi, of Washu, Wada village,
related to him civilly, a sum of 20 kivainme in silver, which
had been laid aside by him as a promotion-fund. He was
requested by Matabei, father of the defendant Sentaro, in the
last Serpent year (1845) to lend him the amount for a short
time, and had sent his disciple Shimmyo to that place, and
the latter, after negotiating with Matabei and Hyoshichi,
had lent the sum to Matabei taking a receipt from Hyoshichi,
The loan was not paid at maturity and demand was made
several times. Meanwhile Matabei fell ill and died and the
plaintiff then went for payment to his son Sentaro; but,
notwithstanding frequent demands, no payment had yet been
made, and he has always some excuse or other; by all of
1. There were two degrees of censure {shikari); 1st, censure, 2nd,
severe censure (kitto shikari). 2. This person, Kiyemon, appears
below in the list of parties.
PART III. CONTRACT : LEGAL PRECEDENTS. 257
which the plaintiff was greatly injured, Sentaro pleaded as
follows : He had no knowledge of any loan by Keiun to
his father Matahei, and moreover he found on inspection
that the seal on the alleged instrument of loan was not his
father's ; so that he could not he liable. The witness Hyoshi-
chi testified as follows: It was true that Keiun was
born in Tsunoye village, in the same province as the
witness, and was civilly related to him, that the
witness was entrusted by Keiun with a sum of 20 kwamine
in silver to keep for him ; that subseijuently, in the last
Serpent year, Keiun's disciple Shimmyo came to the
witness and requested him to deliver over the money,
announcing Keiun's intention to make the loan to Matahei
as requested by him; that the witness immediately
delivered it over and the loan was made [to Matahei].
Further trial was had. It appeared that the money
said to have been lent to Matahei was really not received
hy him at all from Shimmyo, who, it appeared, after
receiving it, according to Keiun's intention, from Hyoshichi,
turned it to his own use, forging an instrument of loan
and deceiving Hyoshichi. Both Matahei and Shimmyo,
however, are dead, and the exact facts cannot he ascer¬
tained. But it has been made clear hy the trial that no
loan was received by Matahei; and the plaintiff now
thoroughly regrets having brought the action, proceeding,
as he has done, on a mistaken idea and without having
another consultation [with the defendant]. Hyoshichi also
is now aware of his error ; for he at first corroborated hy his
testimony the statements of Keiun, declaring that the money
was undoubtedly lent [to Matahei] hy Shimmyo, although the
witness had had no other personal connection with the
transaction than the delivery of the money to Shimmyo.
He thoroughly regrets his culpable conduct, and earnestly
desires the pardon of Sentaro. Sentaro, on his part,
declares that Kb has no fault to find, now that th^
facts have been made clear. For these reasons leave
Vol. XX. Sup. Pt. ill.—17.
258
private law in old japan :
No. 61J to withdraw was asked for aod has been granted. Now,
as for Keiun and Hyoshichi,—Keiun, intending to lend
to Matabei, father of Sentaro, of Hagiwara village, in the
same province, the sum of money which he had deposited
with Hyoshichi, of Wada village, Washu, entrusted the
matter to his disciple Shimmyo, who on receiving it from
Hyoshichi, did not hand it to Matabei, hut kept it for him¬
self, forging an instrument of loan. Nevertheless Keiun,
supposing that the loan had really been made, and feeling
impatient at getting no payment in answer to his demands,
prematurely brought action, without having, [as he should
have had], one more consultation [with the defendant]. As
for Hyoshichi, he at first corroborated with his testimony
the statements of Keiun, declaring that the money was
undoubtedly lent to Matabei, although the witness had had
no other personal connection with the transaction than the
delivery of the money to Shimmyo. These two, therefore,
would ordinarily merit some severity on account of their-
culpable conduct; but as they have asked for leave to
withdraw, they are only to be severely censured.
Such being your decision, we all respectfully acknow¬
ledge it, and herewith hand up our document of submission.
Kayei, II (Cock), 3, 21.
Keiun, of the Sairen Temple, New Shingon sect,
Red-Seal laud,i in Lower Ichibugata village,
Tama kori, Bushu, in the income-fief of
Nagasawa Naiki
Plaintiff;
Ibei, headman, representative of Sentaro and
Kiyemon, farmers, of Kagiwara village, Uda Aojt,
Washu, in the deputy's district of Ishiwara
Seizayemon .
Defendants;
Zenzo, farmer, of the above Hagiwara village, re¬
presentative of Moshiclii, elder, and Kibei,
1. Go-shii-in-cJti; the Shogun's red seal was used in grants of
tax-exempt land, of which temples were the most frequent bene¬
ficiaries.
PAKT III. CONTRACT I LEGAL PRECEDENTS.
259
farmer, of the above Hagiwara village, and of
Chosuke, headman, and Jinnosuke, elder, of
Upper Taguchi village, the same kori, in the
deputy's district of the above Seizayemon
Witnesses
Sangoro, Yogoro, Jinsliiro, representatives of
Kisuke, of the same village Ditto ;
Kiyemon, farmer, of Tsunaye village, Shikigami
kori, the same Imni, in the fief of Oda, Lord of
Tango Ditto;
Hyoshichi, farmer, of Wada village Ditto;
Seibei, farmer, of Higenashi village, Yamabe kori,
the same kuni, in the fief of Todo, Lord of
Idzumi Ditto;
Kokuryo, disciple and representative of Kikuryo,
of the Soyu Temple, Yuzu Nembutsu sect, in the
above Hagiwara village Ditto ;
To the Chamber of Decisions.
I also have appeared and made acknowledgment of
the above judgment, and herewith affix my official seal.
The Proclamation-chief 2 of the Shimpuku Temple."
[No. 62] Money Transaction.
An Action by Kumazo, of Yashu, 3 Kamma
village, against Gibei, of the same kuni, in
the Ashikaga New-land,^ Lower Town.
1. It is in the Japanese idea not at all improper for a witness
to have a representative. Even to-day the lawyer may testify
in Court on behalf of his client. 2. For this officer, see Part. I.
Here the Shimpuku temple is probably the head-temple of the
district, to which the plaintiffs belonged, and the above
officer would have the duty of keeping a record of all lawsuits
affecting temples within his district. 3. Shimotsuke kuni. 4. Shin-
den. At some previous epoch this district had been reclaimed for
■cultivation, and was popularly known by the above name.
260
PRIVATE LAW IN OLD JAPAN :
62] Dated Kayei, II (Cock), 4, 13 (May 5, 1849).i
1. Consultation.
"From Ikeda, Lord of Harima.
The above action ^ was brought before Makino of
Sunsbu,3 then Temple Magistrate and, a summons having
been issued for the 13tb of the 2Dd month of the year
before last (Goat) as the day of appearance, trial was
had. Pending trial, however, the office was vacated by
him, and the case, on coming before me, was again
examined.
The plaintiff Kumazo alleged as follows :—
He had been accustomed every year, in the intervals of
agriculture, to journey to Sendai to sell cloth, and had
often been accompanied by his eldest son Sakujiro and his
second son Ichijiro. But the plaintiff gradually found
himself less and less able, by reason of his years, to make
the long journey. Unwilling, however, on account of their
youthfulness and inexperience, to send his two sons alone,
he requested the defendant Gibei, a relative of his, who was
engaged in the same business, to take charge of his books
and continue supplying his customers for him, promising 10
ryo a year for his travelling expenses. This arrangement
made, Gibei was sent for the first time in the 6th month
of the last Hare year (1843), and was accompanied by
Sakujiro and the other son. He returned to the village in
the 7th month of the same year. They set out again in the
2nd month of the following (Dragon) year, and returned in
the 3d month of the same year; on this occasion all three
were to have gone again, but Ichijiro,* on account of
misbehavior, was kept at home, and Sakujiro alone
accompanied Gibei. The method of keeping their books was
1. Cited from " Sailcyo-dome." 2. The copyist states that he
has omitted the list- of pjarties, ste it is given in the later document
3. Sunshu was Suruga kuni. Here the words "Lord of" are
omitted from the full title.
PART III. CONTRACT REGAL PRECEDENTS. 261
to close the accounts of each year in the year following;
and accordingly they went over the accounts of the above
Hare year (1843) in the spring of the Dragon year (1844),
and balanced the receipts and expenditures.^ Subsequently,
in the 6th month of the Dragon year, Gibei alone was sent
out, Sakujiro being engaged in some other occupation ; and
he returned in the 7th month of the same year. He was
afterwards sent alone several times ; and during his trip of
the 9th month of the ensuing Serpent year (1845) Sakujiro
fell ill and died, in the 10th month. Now the accounts
for the preceding (Dragon) year should of course
have been gone over iu the spring of that Serpent
year; but the plaintiff, not once distrusting Gibei, who
was a relative of his, and believing that he could
learn all that was necessary from Sakujiro, who
had chiefly concerned himself with the business, allowed
the accounting to be postponed, as he was at the
time occupied with other undertakings. After Sakujiro's
death he for the first time notified Gibei, on his return
to the village, that he was ready to examine the accounts
from the Dragon year onwards. But Gibei, who had
kept the books in his possession during the two years.
Dragon and Serpent, failed to return them to the plaintiff,
notwithstanding his requests. The delay continued, on one
or another pretext, until finally the books were handed over
in the 1st month of the ensuing Horse year (1846). On
a close inspection the plaintiff found on balancing the
receipts and expenses, that a deficit of 641 ryo, 1 bii, 2 shu,
[in gold and silver], and 2 hcan 700 mon, in small money,
was due from^ Gibei. Since then, demand has several
times been made to him for payment, but he has done
nothing at all by way of satisfaction, always offering
some plausible excuse or other ; so that finally the plaintiff
has been obliged to bring this action. During the trial
1. De-iri (out-go and income). 2. Hiki-ai.
2G2
PRIVATE LAW IN OLD JAPAN ;
Ko. 62] witnesses have been summoned from time to time and
all the accounts have been compared. The greater part has
been made satisfactor}', except a sum of 250 ryo collected
from customers in Sendai, in the said Dragon year. As
to this, Gibei pleads that be sent the above money, on the
5th day of the 7th month of that year, during his stay
in Sendai, to Shichizayemon, the head of his main family
line,i in the same Icuni, Ashikaga, the town of Yoko, by
whom it was received on the 22d of the same month ; and
that a record of this was made in the books of the plaintiff;
and that the defendant on his return to the village, delivered
the money and the account-book to Saknjiro. [As to the
detention of the account-books : the defendant claimed that
it was sufficient to say thatj after the above occurrence
entries were made by Sakujiro in his own handwriting,
in the books of that year, of some money transactions of
the spring of the [following] Serpent year; for if the
books had in fact been retained by the defendant from
the Dragon year onward no such writing would have
been found there. But it may be that these entries
were made by Sakujiro while in Gibei's house on one of
the visits which he paid him before his death. Further¬
more, [as to the above 250 ryo], Gibei alleges that,
when he delivered the money to Sakujiro, Ichijiro was
present also. But Ichijiro, who died the year before
last (Goat), said in his lifetime, when asked about this,
that he knew nothing about any settlement of that
item. The plaintiff acknowledges that the trial has shown
that he was in the wrong in suspecting and charging
Gibei with unfaithfulness in some of the transactions, and
that he was negligent in entrusting Sakujiro with his
[home] business (altbough he had requested Gibei to
take charge of the outside trade for the very reason that
Sakujiro was too young), and also in delaying tho
1. Hon-ke.
PART III, CONTRACT : LEGAL PRECEDENTS. 263
accountiug. But he is unable to feel perfectly satisfied
as to Gibei's dealings, and be therefore hopes that
further trial will be had.
The defendant Gibei pleaded as follows :—
He had been engaged in selling cloth, during the
intervals of agriculture, and at the request of the plaintiff
he had made journeys to Sendai, either alone or in
company with sons of the plaintiff, for the purpose of
assisting him in his business. From the 6th month
of the last Hare year and onwards this had occurred
several times, and he had received 10 rijo a year
for traveling expenses. The above facts are true, as
related by Kumazo. When the action was tried which
Kumazo brought for the sum of 641 ryo, 3 bu, 2 shu, and
2 kwan 700 mon in smaU money, alleged to be due from the
defendant for receipts from customers in Sendai during his
journeys there in the last Dragon and Serpent years, and the
accounts were all compared, Kumazo declared that out of
this amount a sum of 250 ryo, received from customers in
the said Dragon year, was still due. But this sum, it had
been agreed with Sakujiro, was to be delivered to Yabei, of
the Kyo House, their regular courier, to be transmitted to
Shichizayemon, the head of the main family line, at Ashi-
kaga, in the same kuni. He therefore delivered it to an agent
of Yabei in Sendai on the 5th of the 7th month of the Dragon
year, setting out thence himself on the 6th, and returning
to the village, after visiting several places, on the 16th
of the same month. Subsequently he was notified on the
22nd of the same month that the money had reached Shichi¬
zayemon, and he received it from the latter and delivered it on
the 29th to Sakujiro, with an account-book kept in his own
hand. Ichijiro was at the time present and ought to have
had knowledge of the fact. The receipt of the cash was also
entered at the^time in the books of Kumazo. Furthermore,
Kumazo's assertion that the defendant had kept possession
of the account-books of the Dragon and Serpent years is not
264
PRIVATE LAW IN OLD JAPAN I
No. 62] .supported by the facts; for in the above hook, which is that
of the Dragon year, there are entries in Sakujiro's hand of
money transactions occuring in the spring of the ensuing
(Serpent) year. The fact is that, according to report,
Ichijiro and even Sakujiro were not at all well conducted,
and it seems not unlikely that this money was spent in
carousing and other pleasures by those two, and that Ichijiro,
upon the death of Sakujiro (of which he was really glad),
craftily prevailed on Kumazo to take his present course,
Ichijiro's intention being to get the defendant out of the way
and obtain full charge of the outside business. It is unrea¬
sonable on the part of Kumazo to make the serious charge
that there is still a sum due from the defendant, and that
the accounts have not been straight since Sakujiro's death,
in view of Kumazo's negligence in delaying the examination
of the accounts during Sakujiro's lifetime.
The witness Shichizayemon testified as follows :—
He carries on the business of cloth-selling in the in¬
tervals of agriculture; and Gibei's family is a branch [of the
witness's family]. He had heard that Gibei was accustomed
to travel to Sendai, on the business of Kumazo, either alone
or iu the company of Sakujiro and Ichijiro, Kumazo's sons,
and had made the journey several times since the 6th month
of the last Hare year. The witness also had customers in
the same place ; and it had for years been bis practice,
whenever a remittance of money was necessary, to make it
through the courier Yabei, of the Kyo House. Sakujiro also
was accustomed to remit money in the same way (thinking
other couriers less safe), to be received by^be witness when
brought by Yabei. This being the general custom, the
witness received from Gibei, then on his travels, the sum of
250 i-yo, on the 22nd of the 7th month of the Dragon year ;
and he delivered it to Gibei on the 29th of the same month,
on his return to the village.
Now, none of these statements can be accepted as com¬
pletely proved. But we certainly cannot believe the statement
*AET III. COMTBACT I LE&AL PKECEDEBTS. 265
of the plaintift, at whose request Gibei travelled to Seiidai,
iu Oshu, several times since the last Hare year, to carry
on his trade for him, that there is an unpaid residue of
250 ryo, collected from customers in the Dragon year, due
from the defendant; for [the defendant's statement] that
the money was paid into the proper hands after his
return to the village is corroborated by the testimony of
Shichizayemon, of Yoko town, Ashihaga, in the same Icuni,
End furthermore there is in the cash-book^ delivered to the
plaintiff by Gibei at that time an entry of its safe arrival.
It is furthermore unreasonable for the plaintiff to assert the
existence of this residue when be had [carelessly] entrusted
all his pecuniary affairs to Sakujiro, the very person whose
youth was the reason for requesting Gibei to accompany
him on the journeys. Moreover, in the account-book of the
Dragon year, said to have been for some time kept back by
the defendant, are entries in the hand of Sakujiro of some
pecuniary transactions in the following Serpent year; so
that the statement that the book was not received by the
plaintiff before that time cannot be accepted. Certainly it
must be said, as to the manner in which bis books were
kept, that if it was customary to settle up the accounts of
one year in the year following, he should have made such
an examination of the accounts. His negligence in leaving
matters in Sakujiro's hands because of other business and
in delaying the examination of the accounts was such that
we cannot accept his assertion as to this balance due, for
it was set up only after the death of Sakujiro and rested on
mere suspicion.
Trial having been held as above, the parties declared
that they have no fault to find.
The result of the trial was [the testimony] above
recorded. The plaintiff's claim being apparently without
foundation, think the judgment should be that no further
1. Kin-gin-deiri-sho.
266
PBITA^TB LAW IN OLD JAPAN I
Mo. 62] trial be bad, as the above testimony appears to require^
I therefore consult you.
Year of the Cock,
4th month."
2. Document of Submission.
" Document handed up.
An action has been tried in your Court for the
recovery of money due between Kumazo, of Yashu, Kamma
village, and Gibei, of the same province, Ashikaga New-
lands, Lower Town.
The Court certainly cannot believe the statement of
the plaintiff, at whose request Gibei travelled to Seudai,
in Oshu, several times since the last Hare year, to carry
on his trade for him, that there is an unpaid residue of
250 ryo, collected from customers in the Dragon year,,
due from the defendant; for [the defendant's statement]
that the money was paid into the proper hands after his
return to the village is corroborated by the testimony
of Shichlzayemon, of Yoko town, Ashikaga, in the
same kuni, and furthermore there is in the cash-book
delivered to the plaintiff by Gibei at that time an
entry of its safe arrival. It is furthermore unreasonable
for the plaintiff to assert the existence of this residue
when he had entrusted all his pecuniary affairs to
Sakujiro, the very person whose youth was the reason
for requesting Gibei to accompany him on journeys..
Moreover, in the account-book of the Dragon year, said tO'
have been for some time kept back by the defendant, are
entries in the hand of Sakujiro of some pecuniary trans¬
actions in the following Serpent year ; so that the statement
that the book was not received by the plaintiff before that
time cannot be accepted by the Court. Certainly it must be
said, as to the manner in which his hooks were kept, that if
it was customary to settle up the accounts of one year in the
PART in, CONXRACT I LEGAL PRECHDBNTS. 267
year following, he should have made such an examination of
the accounts. His negligence in leaving matters in
Sakujiro's hands because of other business, and in delaying
the examination of the accounts, was such that the Court
cannot accept his assertion as to this balance due, for it was
set up only after the death of Sakujiro and rested on mere
suspicion.
The Court has therefore ordered that no further trial
be made. We all respectfully acknowledge this, and here¬
with hand up our document of submission.
Kayei, II (Cock), 4,13.
Wakashichi, representative of Kinnazo, farmer, of Kamma
village, Aso kori, Yashu, fief of li, Steward of
Palace-Cleaning Plaintiff;
with the representatives of the village officials.^
Gibei, farmer, of Lower Town, Ashikaga New-lands, the
same kuni, fief of Toda Takejiro Defendant;
with the representatives of the village officials.
Shichizayemon, farmer, of Yoko Town, Ashikaga New-lands,
the same kuni, fief of the same person...IFitnm; ^
with the representatives of the village officials.
To the Chamber of Decisions."'
[No. 63] Mi'iietj Loan.
An Action by Katsu, widow of Seibachi, of Shimosa
kuni, Kemmikawa village, against Jiugobei, of
the same village, and 54 others, before the Lord
of Sado.
Dated Kayei, II (Cock), 7 (August, 1849).
1. Mura-ya^unin sodai; the village officials should have attended
as vouchers of the parties The names of the officials have been
omitted by the copyist. 2. Lit., summoned for examination.
268
PRIVATE LAW IN OLD JAPAN :
No. 63] 1. CunstiUation.
" From Kusumi, Lord of Sado.
Action for a money loan, by Katsu, widow of Seihachi,
Shimosa kuni, Kemmikawa village, against Jingobei, of the
same village, and 6 others.^
This action was brought before me, and, a first-seal
summons being issued for the 4th day of the 2nd month of
this year as the day of appearance, trial was had. Pending
trial Jingobei and 5 others of the defendants settled the
claim privately, and an instrument of discharge^ in due form
was filed. But one of the defendants, Shozayemon, of
Katsuta village, in the same kimi, declared that he had no
such debt as that for which suit was brought. He main¬
tained that the seal on the instrument [ofiered by the plaintiff]
was not his. The plaintiff, on examination, claimed that
the instrument was one which had been received by
her late husband Seihachi for a loan [to Shozayemon],
and there was no reason to suppose that the seal
was not genuine; that the defendant's assertion was
merely an excuse invented by him and the surety to avoid
payment; and that, as many other loans had been made by
Seihachi and instruments taken, all of which had been paid
on demand, it was very strange that Shozayemon alone
should raise such a plea. During these proceedings an
interpellations was filed by Sboshichi, son of Shozayemon,
• stating that, whereas an action for a money loan had
recently been brought by Katsu, widow of Seihachi,
against his father Shozayemon, the alleged sum was one
which had been borrowed for him, [Shosfcichi,] of the said
Seihachi in his lifetime, by Jinsuke, of Koushibashi village,
in the same kuni, and others, Shoshichi being at the time
1. The discrepancy between this figure and that above can only
be accounted for by supposing that the representatives were 6 in
number. 2. Sumi-kwhi-shomon. 3. Kake-komi (running in, handed
in irregularly)-so (complaint, proceeding).
PIKT III. CONTSACT : LEGAL PRECEDENTS. 269
unable to pay a sum lost in gambling games entered into
by bim at the persuasion of those persons ; and that, as
Seihachi had informed him that he would lend it only in the
name of Shozayemon as debtor, Shosbichi had reluctantly
executed an instrument, for 28 ryo, 2 bit,, in the name of
Shozayemon, and delivered it [to Seihachi], without the
knowledge of Shozayemon. This sort of a transaction
being prohibited by law and too important to be overlooked,
Shosbichi was examined and testified as follows :—
He is a horse-doctor, and, when in the last Dragon
year he went to a neighboring village to do some doctoring,
he met on the road Jinsuke, of Koushibashi ^ village,
and stopped with him to visit Yasugoro, of Yokoto village,
in the same province. There were there Goroyemon, of
the witness' village, Kumezo, of Yokoto village, Kanjiro,
of Kemmikawa village, and some others. After being
entertained with wine and viands, tlie witness was induced
by them to take part in a gambling game. At the end
of the second game he was told by them that he was in
debt for 24 ryo, 2 hu; but, as he did not have that sum
with him, he borrowed it, through the intervention of
Goroyemon, Kanjiro, and the others, from Seihachi,
of Kemmikawa village, who was said to be in the habit
of lending money to different people. But, as he was told
that the instrument must bear the name of his father
Shozayemon, he reluctantly executed an instrument in
the latter's name, without his knowledge, and gave it
[to Seihachi]. No money, however, was received by him
at the time. Subsequently, in the 8th month of the Goat
year, he was told by Goroyemon that he must renew the
instrument, because Seihachi claimed that the debt was
increased by interest to 28 ryo, 2 hu. The witness there¬
upon renewed the instrument, and at 'the same time wrote
1. The meaning of this name (" calf-bridge ") shows how Sho¬
sbichi came to go to that region.
870
PRIVATE LAW IN OLD JAPAN ;
No. 63] the name of the person in question ^ and of his relative
Kazayemon of the same village, as sureties, without
informing them, and delivered it to Seihachi,—putting no
seal on it, however, since he was a son, [not the head of
a family,] and had none.®
The said Jinsuke, Goroyemon, Kanjiro, Kumezo, as
well as Yasugoro and Saburoyemon, were summoned and
examined; but they declared that there was no truth in
Shoshichi's story. It finally appeared, after further examin¬
ation and repeated confrontations ^ of the persons involved,
that Shoshichi's statements were false and that he had not
taken part in gambling; that he stopped at the houses of
Saburoyemon and Kanjiro, on his way to a neighboring
village to do some doctoring, and only played chess with the
above two and Goroyemon, Jinsuke, Kumezo, and others,
betting ^ 10 or 20 sen on the result; that he was beaten
and lost a small sum and requested Seisbicbi to lend him
some money, who, being then in need of money himself in a
bargain he was making for a horse, promised to borrow it
of Seihachi, through the intervention of Goroyemon and
Kanjiro, but the promise was not carried out and the money
was not received ; that afterwards, in the 8th month of the
Goat year (the year before last), be was again in want of
money for a similar reason,5 and at the request of Seihachi
made out an instrument for 28 ryo, 2 bit, in the name of his
father Shozayemon, and delivered it to Seihachi; that, as
Seihachi did not have the entire sum at hand, only 3 ryo
were received on account,® the residue to be given after-
1. Probably Shozayemon, the father; tonifl>"this person," is
constantly used where the reader must guess at the reference.
2. This second document was apparently signed by Shoshichi, with
his father's and Kazayemon's names as sureties. 8. Aitai. 4. Kake-
slwgi, to bet on chess. Bakuyeki is the term for ' gambling," and
here seems to be confined to pure games of chance, not including
betting on games of skill. 5. That is, gambling debts. 6. Uchi-
kin.
PART III. CONTRACT ; LEGAL PRECEDENTS. 271
wards ; and that, before this was done, Seihachi fell ill and
died. The above also appears from the account-books of
the plaintiff to have been the true nature of the transaction.
It seems that the instrument, when first delivered, bore no
seal, and was probably sealed afterwards in Seihachi's pre¬
sence, when the payment on account was made and the
residue promised, but the facts as to this part of the
transaction cannot be learned with certainty, Seihachi being
no more.
Now, as for Katsu, there was negligence on her part
in bringing the suit against Shozayemon without conferring
further with him, even though she did not know that the
instrument bearing the name of Shozayemon, found among
Seihachi's papers after his death, was really executed and
delivered by Shozayemon's son Shoshichi without his father's
knowledge, and that Seihachi had never handed over more
than a part of the loan. Next, as to Shoshichi, he
played chess, in the last Dragon year, with Jinsuke and
others, betting 10 or 20 sen on the game; and, when he
went to borrow of Seihachi and was told that the loan
would be given only on condition that the instrument was
in his father Shozayemon's name, he delivered [to Seihachi]
an instrument, without seal, bearing the name of his father,
and received a sum on account. When the action was
hroughti by Katsu, widow of Seihachi, against Shozayemon,
for the money due on that loan, Shoshichi was afraid,
and, recalling to his mind the chess-playing with Jinsuke
and others, he bethought himself foolishly that, if he
should make up a story that he had gambled with them
and had obtained through their intervention a loan2 from
Seihachi in order to pay the gambling debt, and should file
a petition^ in Court to that effect, the others, alarmed
at the seriousness of the charge that they bad been
1. .dife-toi'u (to take another as defendant). 2. Kari-uhe-nwrau.
3. Uttae-ideru.
272
PBIVATZ LAW IN OLD JAPAN
No. 63] engaged in this violation of law, would endeavor to-
settle the case privately and cease to trouble his father
Shozayemon any further; and so he brought in the
interpellation containing false statements to the above
effect. But now he realizes his misdoings and repents. As
for Goroyemon, Jinsuke, Saburoyemon, Kumezo, and Kane-
jiro, they stopped short with betting on the chess, but for
this violation of law in betting on the chess (in company
with Shoshichi) they are now thoroughly repentant.
As Shoshichi has paid back to the plaintiff the 3 ryo
borrowed from Seihachi, and as Shozayemon has declared
that he has no fault to find with any person, the whole
affair having grown out of his sou's misconduct, the parties
all petition by a joint-document for the withdrawal of the
action,—a course which appears to be perfectly allowable.
Now though Shoshichi, Goroyemon, Jinsuke, Saburoyemon,
Kumezo, and Kanjiro were so culpable as to make bets in
violation of law, yet the affair occurred in the last Dragon
year, two years ago. Shoshichi, as well as Katsu, ought
in strictness to be visited with severe measures for their
culpable conduct, but now that leave to withdraw has been
asked for, I think it would be better only to order for
Shoshichi severe censure, and for Katsu, censure, omitting
any further penalty; and as for Goroyemon, Jinsuke,
Saburoyemon, Kumezo, and Kanjiro, to make no order for
punishing them for misdoings of so long ago. AH should
hand up a document of submission, acknowledging the
granting of leave to withdraw.
I consult you as to the above decision.
Year of the Cock, •
7th month."
2. Judgment.
" Action for a money loan, brought by Katsu, widow
of Seihachi, of Shimosa kuni, Kemmikawa village, against
Jingobei, of the same village, and 54 others.
PAKT III, CONTRACT : LEGAL PRECEDENTS. 27B
The claim was for arrears amounting to some 329 ryo,
2 bu, and 28 kwan, 200 mon in small money, due to
Katsu, widow of Seihachi, of Hhimosa kani, Chiba kovi,
Kemmikawa village, in tlie deputy's district of Iwata
Kuwasaburo, from Jingobei, of the same village, in the
income-fief of Kobayashi Toranosuke, and 54 others, and
an indorsing-seal summons was issued and trial had.
Pending trial the plaintiff, after consulting with Jingobei
and 68 others, privately settled ^ the suit against
these defendants, receiving some 89 ryo, 1 bu, and 9 kwan,
700 tnon in small money, out of the 801 ryo, 2 shu, and
28 kwan, 200 mon in small monej- [which she claimed],
and agreeing to take new instruments for 188 7-yo, 8 bu,
and make no further claim for the remainder. An instru¬
ment of discharge signed by all parties was filed. But the
couut2 in the complaint against Shozayemon, of the same
kori, Eatsuta village, in the income-fief of Ishiwo Oribe
[was not included in this settlement, and] his son Shoshichi
then made an interpellation, stating that the loan was
really made to him for paying a gambling debt and that
his father Shozayemon had no knowledge of it at all.
Witnesses were then summoned and further trial had, and
it appeared, after the parties had been confronted, that
Shoshichi had in fact not gambled, as he had stated,
that he had only bet on chess, and that his statements above
mentioned were false. It also appeared that Shoshichi,
without informing his father, had arranged with Seihachi
to borrow the sum of 28 ryo, 2 bu, but that only 8 ryo were
received, Seihachi not having the whole sum at hand, and
that, before the residue was received, Seihachi died.
The 8 ryo having been returned to the plaintiff, the
parties have all petitioned for leave to withdraw the action,
declaring that they have no further allegations to make, and
this petition is granted and an order of withdrawal accord-
1. Eachi-akeru, put an end to. 2. Bun, part.
Vol. XX. Sup. Ft. iii.—IS.
274
PRIVATE LAW IN OLD JAPAN :
No. 63] ingly issued. As for Katsu, Shoshichi, Goroyemon, Kumezo
Saburoyemon, Kanjiro, and Jinsuke, [the following orders
are made].
As for Katsu, there was negligence on her part in
bringing the suit against Shozayemon without conferring
further with him, even though she did not know that the
instrument hearing the name of Shozayemon, found among
Seihachi's papers after his death, was really executed and
delivered by Shozayemon's son Shoshichi without his
father's knowledge, and that Seihuchi had never handed
over more than a part of the loan. Next, as to Shoshichi,
he played chess, in the last Dragon year, with Jinsuke and
others, betting 10 or 20 sen on the game ; and, when he
went to borrow of Seihachi and was told that the loan would
he given only on condition that the instrument was in his
father Shozayemon's name, he delivered [to Seihachi] an
instrument, without seal, hearing the name of his father,
and received a sum on account. When the action was
brought by Katsu, widow of Seihachi, against Shoyemon,
for the money due on that loan, Shoshichi was afraid, and,
recalling to his mind the chess-playing with Jinsuke
and others, he bethought himself foolishly that, if
he should make up a story that he had gambled
with them and had obtained through their intervention
a loan from Seihachi in order to pay the gambling
debt, and should file a petition in Court to that effect, the
others, alarmed at the seriousness of the charge that they
had been engaged in this violation of law, would endeavor
to settle the case privately and cease to trouble his father
Shozayemon any further; and so he brosght in the inter¬
pellation, containing false statements to the above effect.
As for Goroyemon, Jinsuke, Saburoyemon, Kumezo,
and Kanjiro, they stopped short with betting on the chess,
but this betting, as well as Shoshichi's, was in violation of
law and was culpable in every one. The parties in strict¬
ness deserve severe measures, but, as leave to withdraw
has been asked, Katsu is allowed to go with merely a
PART in. CONTRACT ; LEGAL PRECEDENTS. 275
censure, Shoshichi, with severe censure, and for Goroye-
mon, Kumezo, Saburoyemon, Kanjiro, and Jinsuke, no
order of punishment shall be made, the offence having
occurred so long ago.
Such being the judgment, the parties are to hand up
a document of submission; and notice of the judgment is
also to be given to Hara Tsugizo, clerk of Iwata Kuwa-
saburo, to Nagata Gorodayu, retainer of Ishiwo Oribe, and
to Nomui-a Yabei, retainer of Yoshida Shinan."
SECTION n.—CHATTELS.^
[No. 70] ^ Concerning the Business of Leasing
Chattels for Hire.^
A Memorial by the Towu Magistrates. *
Dated Kokwa, 11. 8 (September, 1802),
1. Memorial.
"From Odagiri, Lord of Tosa,
Negisbi, Lord of Hizen.
In order to obtain some knowledge of the facts
relating to those who make a livelihood by chattel leases,
we have had a report prepared as to what is commonly
believed on the subject.® We have not publicly said so
on the occasion of examining litigants, yet it seems to
us that these reports reach the essence of the subject.
On the whole, this leasing of chattels for hire—household
utensils and furnishings, clothes, and the like—, if made
for the limited period already prescribed and for a moderate
charge, is a convenient method of supplying the temporary
needs of borrowers; and the practice has been, for some
time, to order restoration of the articles sued for and
' m
1. Buppin {hutsit-hin); this seems the nearest available render¬
ing. 2. The numbers of the cases were necessarily given before
printing for purposes of cross-reference, and after printing had
begun some changes were made in the numbering which left a few
numbers unfilled between the first and second Sections. There is no
gap in the text, except that one unimportant case has been omitted.
3. Sonryo. 4. Probably to the Council of State. Cited from
" Shojidome-sho." 5. Probably like the one appended to No. 83, ante.
PART m. CONTRACT LEGAL PRECEDENTS. 277
payment within 30 days of unpaid charges. In the class of See. II.
cases that have come before the Court of late the borrowers
are the poorer classes,—dwellers in hack streets, people
living on the earnings of to-day, i and the like. If they once
fall sick, they have no capital 2 [to support them,] and no
one will lend them money in the ordinary way; so they
lease chattels and borrow money by pawning them, or
lease the chattels and then pawn them again with the
lessor, or borrow money directly, the transaction being
nominally a chattel-lease. There is of course no fixed
rate for the hire of the chattels; and as the creditors
are liable to find that their penniless debtors have
fied the town, escaping secretly to the country districts,
or have in some other way eluded them, they naturally
impose rather high charges. Now, unless claims arising
from these transactions are relegated to private settlement,
the cases daily brought before us will reach a large
number; and our second deliberation in the last Goat year,
three years ago (1799),® was on the questions: 'Shall
actions on chattel-leases henceforth be rejected ? [If not
entirely,] how can a reduction in their number be effected ?'
In former times there were persons called ' day-to-day
lenders,'^ who exacted a high daily interest and lent for
a period of days. For each transaction they made out
two^instruments, one of which, intended for show, declared
the rate of interest to be 1 bu per 20 ryo [per month;
while the other contained the actual terms agreed on.]
But in the 2nd (Dog) year of Kwansei (1790), strict
regulations were issued against usurers, and since then
the term ' day-to-day loan' has gradually disappeared
and that of ' chattel leases ' has come into use instead. In
the same way, we believe, these ' chattel leases ' will
1. Sono-hi-gufhthi; hand-to-mouth persons, who never have
anything saved from yesterday. 2. llotode. 3. See infra, 2, 4. Hi
(iag)-nathi (instalment)-&(ufii.
278 PRIVATE LAW IN OLD JAPAN :
No. 70' disappear if we take strict measures. Yet, as we have
said, this sort of transaction is to the poor man a
perpetual spring at which he quenches his thirst and
obtains refreshment and strength, and to destroy it
entirely would be a fruitless waste of effort on our
part. Our conclusion was, after much deliberation
that where the claim was clearly unconscionable and
oppressive, the guilty party should be censured and
either sentenced to hand-stocks or committed to the
charge of relatives or friends, according to the circum¬
stances ; and judgment [for the recovery of any part of his
claims] should hardly ever be given. [This rule was
followed.] Those whose extortions had not been of an
aggravated sort were talked to of the right and wrong ^ of
the matter, and, as a rule, they acknowledged the justice of
what was said and entered into a private settlement.
Out-and-out usurers, of course, were on conviction
sentenced to banishment to a distant island. But since
last Goat year(1799)2 it is a fact that no final judgment
has been rendered in an action for hire of chattels leased ;
for when the military gentry have been found borrowing
chattels for hire or even in possession of articles suspected
to have been obtained in that way, they were reasoned
with on the right and wrong of the matter ; and where
lenders were found leasing chattels for hire, instead of
lending money directly, they were severely reproved, and
in consequence settled the claims privately; so that there
was no need of rendering a judgment at all.
S ■
1. Bi (advantage)-(/ai (disadvantage). The nature of this
peculiar Sinico-Japanese expression has already been explained.
The whole bearings of a subject are sometimes indicated by naming
the two opposite terms involved, thus " famess-nearness" is
" distance ". So here rigai signifies all the considerations that bear
on a question. The Court set these forth to the parties and urged
them to act in accordance with the dictates of reason. 2. The year
of the decision reached in the next document.
PART in. CONTRACT *. LEGAL PRECEDENTS. 279
Such are the considerations affecting this subject. [Sec. IL
The complete prohibition of these chattel leases would
inevitably cause great distress among the poorer classes, and
we believe that these claims should be dealt with in the
mode already followed. Particular note should be takeu by
the officers of our two Courts i of the names recorded in the
register [as professional money-lenders] ; and these and
all others, wherever a particularly extortionate claim is
made or the defendant is specially culpable, should be
punished, according to the circumstances, by banishment
to one's province,® by confinement in hand stocks, or
the like.
Such are our views on this subject, expressed after
perusal of the above report.
Year of the Dog,
8tb month [September, 1802)."
2. Instructions of the Town Magistrates, at this tune in force.
" (a). Actions on chattel leases forrestoration of the
articles and payment of the charges ;
(b). Actions on money-loans, in which final judgment
is given at this Court:
The trial of actions and disputes of every kind should
take place as soon as possible and judgment be rendered.
With regard, however, to the above two sorts, even though
the accounts, etc., are in proper shape, and are just as
alleged by the plaintiff, payment should henceforth not be
ordered immediately,—the new rule in this point departing
from the previous practice of ordering payment within a short
time even without requiring an instrument of acknowledg¬
ment. 3 A joint pleading should be ordered, the case tried
by the Trial Bureau, and most probably, after the right and
1. The two Sown Magistrate's Courts. 2. Zai-sho. 3. Kiichi-
gaki, the written acknowledgment of the judgment required of a
defendant after judgment rendered. See No. 28, ante.
280
PRIVATE LAW IN OLD JAPAN I
No. 70] wrong have been set forth to the parties, payment will be
made and no judgment need be rendered. If, however, the
case comes to a judgment, the defendant must draw up
an instrument of acknowledgment, declaring that he will
positively not fail to pay as ordered.
The above resolution was reached by the Lord of
Tosii and the Lord of Hizen, after consultation,
Kwansei, XI (Goat), 5, 27 (June 80, 1799)."
[No. 71] Leasing of Chattels for Hire.
A Town Proclamation by the Chamber of
Decisions.
Dated Bunkwa, II (Ox], 2 (March, 1805).
1. Proposal''- by the Town Mayistrates regarding the leasing
of chattels for hire.
"It has been a custom for certain money-lenders
to lend small sums (known as ' day-to-day loans') to
that class of townspeople who live on the earnings of
each day. The rate of interest was a little higher
than usual, and the loan was used by them as
their capital for that day.2 However, when the order
of last Serpent year was made directing the private
settlement of [ordinary] money-loans, the makers of these
day-to-day loans began to fear for their repayment,® and
[in order to evade the new law] they resorted to leases
1. Vkagai-iho. 2. They spend the money for food, etc., and pay
it back with what they manage to earn during the day. There
were and are numbers of such people in the capital. 3. This
was the Order of Kwansei, IX (1797), given in Nos.
13 and 111, by which ordinary money-loans due before that
date were directed to be settled privately. It precluded recovery
of a mere money-loan, but did not prevent the lessor of a chattel
from recovering the chattel and its hire.
PART III. CONTRACT ; LEGAL PRECEDENTS. 281
of clotbes, bedding, etc., charging a fee by way of hire, [Sec. 11.
and taking an instrument of lease from the debtor; the
hirers then put these articles in pawn with eonsent of
the lessors, and thus obtained money for their temporary
necessities. Thus the hirers were under a double burden
even greater than the exoibitant interest before paid,
the hire to be paid to the owneis of these articles, and
the interest to be paid to the pawnbrokers. We have
come to the conclusion, after much deliberation, that it
would be well to forbid these leases of chattels for hire,
and we enclose a draft-proclamation aimed at preventing
these exactions.
The lower class of the military gentry i have fallen
into the evil practice of hiring articles in the above way.
When suit has been brought for repayment, sometimes
the parties have made private settlement, sometimes they
have proceeded to trial. At "the present time there are a
number of suits of the sort pending, in which, if a private
settlement sliould not be reached, a full trial must be
bad. Nevertheless as the lenders have been guilty of •
improper conduct, it is hardly proper that payment shoud,
be ordered; while the hirers, who also are reprehensible,
certainly deserve some penalty.^ It would be well to make
an order such as is contained in the enclosed draft, and
to have it apply to future suits only, leaving the present
litigants to go unpunished.
We beg to make the above proposal, and enclose the
draft of a town proclamation.
Year of the Ox,
2nd month.
Odagiri, Lord of Tosa,
Negishi, Lord of Hizen."
1. Gokenin. See p. 9, note 8.
2. The creditors aggravated their usuriousness by taking ad¬
vantage of a lamurai's needs. The debtors were guilty of conduct
unbecoming a samurai.
282
PRIVATE LAW IN OLD JAPAN :
No. 71] 2. Draft of a Town-Proclamation,
'' In the 9th mouth of the last Serpent year a Proclamatiou
was issued regarding actions on money-loans, directing that
from and after that month such actions should not be
brought to judgment, but that [private] settlement should,
after trial,i be ordered. Consequently all claims for the
repayment of money, whether gold, silver, or small money,
should be settled in that way. But those who make a
practice of lending money to the lower classes have now,
in order to be sure of [enforcing] payment, ceased to lend
the money itself, and instead lease bedding, etc., for hire,,
taking an instrument from the hirer, who raises money
to satisfy his needs by putting these articles in pawn.
Thus the debtors are subjected to a double burden—the hire
of the chattels aud the interest on pledge-loan—and are in
great distress. Moreover, it .is said that in many cases
the instrument is in terms a lease of chattels, but in reality
it is money, not chattels, that the debtor receives. This is
improper conduct on the part of the creditor. We learn,
furthermore, that these loans are made espicially to the
military gentry and privately and it is an aggravation
of the offence. However no punishment will be inflicted
on those who have taken part, since there have been no
public regulations against such practices. But hereafter
the following rules shall be obeyed :—
(1). Actions brought for the payment of arrears of
loans of gold, silver, or small money made at the customary
rates of interest shall be taken up and payment ordered,
if the instrument of debt is valid.® Loans#t a higher rate
than the customary one are strictly forbidden.
1. A provisioDal examination,
transaction. 2. That is, without
3 That is, it is properly sealed
visions.
to discover the true nature of the-
informing the proper officials,
and contains no unlawful pro-
PART III. CONTRACT ; LEGAL PRECEDENTS. 283
(2). Actions on chattel-leases,^ where the debtor is [Sec. 11.^
really in need, and the articles are the customary ones—
clothes, hedding, etc, used for the purpose—shall be taken
up and payment ordered, if on trial the transaction proves
to be a lawful one.
Note, that of course no action shall be maintained
where the transaction is really, though not nominally, illegal;
the [essential and sufficient] rule is that the instrument
of debt should declare that the lease is for temporary
convenience and should limit the lease to 8 days; further¬
more the hire should not be more than the customary rate
[of interest].
If these rules are obeyed, no undesirable consequences
will attend them. Hereafter no actions on leases found
to he tainted with illegality—as where the articles have been
hired and then privately put in pawn—shall be taken up;
and where there has been special culpability, a penalty
shall be inflicted. No order of payment shall be made in
actions on chattel-leases now pending; they shall be left
to private settlement. The above rules shall be obeyed,
and hereafter all oppressive loans forbidden. Violations
of this order will be punished.
The above is to be published in all the wards.
Year of the Ox,
2nd month."
8. Acknowledgment of sanction.
" We acknowledge the receipt of your order to issue
a Town-Proclamation as proposed by us.
Year of the Ox,
2nd month, 19th day (March 19, 1805).
Odagiri, Lord of Tosa,
Negishi, Lord of Hizen."
1. The original does not specify whether the payment of the
rent or the restoration of the article was demanded; both were
apparently included in the same action.
284
PRIVATE LAW IN OLD JAPAN ;
[No. 72] Private Settlement of Actions for Restora¬
tion of Chattels Leased and for Payment
of Fees.
A Reply of the Lord of Kai, Town Magistrate, to a
Consultation by Nabeshima, Minister of Public
Works, Town Magistrate.
Dated Tempo, XV (Dragon), 8, 5 (September 16, 1844).
1.
" To the Lord of Kai.
from Nabesbima, Minister of Public Works.
There have of late been numbers of suits for the
restoration of chattels leased for hire. The plaintiffs did
not ask for the payment of the fee,^ but only for the
restoration of the article leased. Ou trying the cases
brought on loans made previous to the Private-Settlement
■Order,2 it appeared that in a number of them the
subsequent pawning of the articles was a part of the
transaction. Ordinarily, if the parties cannot settle their
dispute pi'ivately, they are to be summoned, trial bad, and
judgment rendered. But as regards these agreements for
chattel-leases, there is a Town-Proclamation of the year of
the Ox, three years ago (1841),^ as well as an official
Regulation ^ of last year, 6tb month, 7tb day (July 4,
1843), forbidding certain reprehensible sorts of leases
whether the illegality appears on its face or not. Now the
charge of a fee in these leases is virtually the same as get¬
ting interest on a loan ;5 so that it would geem proper to
1. Ryosen; the euphemism adopted to veil the transaction.
2. See No. 118, post. 3. This does not appear. 4. Instructions from
the Magistrates' Offices to the local officials. 5. That is, ■where the
lessor, to evade the law, has bought and leased chattels, and the
-debtor has pledged these and got a loan, the lessor has attained his
original purpose of making a profit on his money as effectually as if
be had lent it directly to the debtor.
PART III. CONTRACT : LEGAL PRECEDENTS. 28S
order a private settlement in actions for the restoration of [gee, II.
articles leased before the above Order.^ However, if the
debtor not only refuses to pay the fee, but even, though the
creditor has his deed-of-hand, limited to 3 days, as the
regulations require, declines to restore the article, he should
be deemed culpable, and the article should be taken away
from him [for the creditor] and payment [of the fees] ordered.2
Of course an action shall be taken up if founded on a transac¬
tion which is really, though not in appearance, an unlawful
one, especially where chattels are leased (instead of money
loaned) for very high fees,® even though the instrument
states that the lease, [as required by law,] is for 8 days only.
These seem to me desirable regulations to make, and
I beg to consult you on the subject.
Year of the Dragon,
8th month."
2. Reply.
" A claim made at the present time for the restoration
of chattels leased, where the lease was made on a 3-days'
instrument before the Private-Settlement Order is, in
essence, an unlawful one. My opinion is that after trial
of the case it should be disposed of as you say; and
I shall adopt the same practice in my own Court.
I reply as above.
Year of the Dragon,
8th month."
1. See Note 2. 2. This passage exhibits plainly the real nature
of these so-called Nullification or Private-Settlement Orders. They
were by no means intended to extinguish entirely the claims
covered by them, or to cut off entirely the creditor's remedy, as our
prescriptive statutes do. A compromise was ordered ; but if the
debtor did not make a real compromise, in which the creditor
received at least some portion of his due, the Court would enforce
satisfaction. Thus the debtor was not allowed to reject entirely the
creditor's den^^nd. Other passages point to the same idea. 3. That
is, the fee, if compared with the value of the article, is equivalent
to a very high interest.
286
PRIVATE LAW IN OLD JAPAN *.
[No. 73J Instructions regarding Payment in Actions
for the Bestoration of Leased Chattels and
Payment of Fees.
A Correspondence of the Clerks of the Town
Magistrutes.
Dated Year of the Dragon (1844),
6th and 7th months.
L Letter from the Clerhs of the Town Magistrates' Office.
" To Tojo Hacbidayu, Esq.,
Nakajima Kayemon, Esq.,
from Hara Tsuruyemon,
Nakata Shintaro,
Hara Zeuyemon.
We offer our congratulations on your continued good
health and your diligent performance of your public duties.
An instruction was recently issued that payment should
be ordered in actions claiming only the restoration of
chattels leased and not asking for paymeut of the fees,
where the chattels had been leased on a 3-days' instrument
before the Private-Settlement Order. Eecently, however,
disputes of this sort have been brought to the local ofiicials,
and in many cases the subsequent pawning or depositing
of the article was a part of the transaction; and we are
told that in some of these a recovery is given, if the circum¬
stances seem to justify it. But the Town-Proclamation of
the Ox year and the Kegulation of the last 6tb mouth
regarding chattel-leases were intended to prevent various
leases violating or evading the law; and as the charging
of fees is virtually the same as getting interest on a loan, an
-order of payment in actions demanding the restoration of
PART III. CONTRACT : LEGAL PRECEDENTS. 287
the chattel would seem improper.^ On our inquiry upon [Sec. II.
this point, we were instructed to deliberate once more;
Rnd after a second deliberation, we find that the pro-
-clamation about chattel-leases was made with the purpose
•of preventing evasions of the law in such transactions,
and that in this case the transaction, though it occurred
before the Private-Settlement Order, was, as required by
law, a 8-days' lease only, and therefore the debtor's
•complete refusal to pay the fee or restore the chattel is
unlawful. Accordingly the action should be taken up
and payment ordered. Transactions found on trial to
be mere evasions of the law, especially the earning of
large fees by drawing up a 8-days' instrument, yet letting
the lease run for several months, should be disposed of at
j^our discretion.
We reply as above.
7th month, 21st day.
2. Letter from Clerks of the Town Magistrate. ^
" [In many cases] chattel leases, made before the Pri¬
vate-Settlement Order, have been allowed to run on to
the present time, tbe articles having been pawned
and the original intention having been to gain fees for a
period of several months, that is, to get usurious gains
1. The writer's point seems to be that payment (sumikata)
of the fee in an action for restoration of the chattel is
uncalled for. But the term sumikata may also apply to the
restoration of the chattel. In that case the objection of the
writer would be based on larger grounds—that the whole
/transaction is outlawed—and " payment" should be rendered
" restoration and payment," or " performance." 2. This letter
was written before the preceding one; but it apparently
was not the letter to which the former was the answer. There
was probably ^ series of documents, of which only a few have
been preserved or copied. The correspondence is by the clerks
of the two Town Magistrates' OfiSces; this is as much as appears.
288
PBIVATG LAW IN OLD JAPAN !
No. Ti] without showing it in the instrument. If, tlien, suit ia
brought merely for the restoration of the articles, and
recovery be allowed, it is as if they were allowed to-
recover their capital, though without interest,—which
does not seem proper ; and these cases should be disposed
of by an order of private-settlement according to what can
be agreed on with the debtors. Nevertheless, if a case arises
in which a person is really obliged to borrow some articles
(not under an agreement to pay a fee), and then [without
previous concert with the lender] puts them into pawn,
should they not be restored to their owner ?
We beg to make this second inquiry.
Year of the Dragon,
6th month.
Kara Tsuruyemon,
Sakuma Kenjiro,
Nakiimura Jirohachi."
3. Letter from a Clerk.t
" According to our instructions after a second inquiry,,
we send for your perusal the reply received, and beg the
favor of your opinion.
Zenzayemon."
[No. 74.] Disposition of Actions against Militanj
Gentnj for Restorcttion of Chattels Leased.
An Inquiry by a Clerk of the Town Magistrate.2
" In Kayei, V (Rat), 8, 8 (Septembej 21, 1852), it was
ordered that such actions be disposed of as proposed by us in
our inquiry. The action was for the restoration of chattels
leased, by a woman Rise, of Dobo ward, Yashima, Tenjin-
1. This was evidently sent with Letters 1 and 2 as enclosures,
2. Cited from " Yo-slwjidome-sho."
PAKT III. CONTRACT : LEGAL PRECEDENTS. 289
sbita, [Yedo,] against the Palace Attendants i Teii and [Sec. II.
two others. There was recently a 7th-day case 2 of
the same sort, and a trial was bad after summoning
the parties. However, after deliberation by the Court,
another summons ^ to appear in 6 mouths, as is proper
in money actions, was decided on. The case was to
be tried before long to determine whether performance should
be ordered. On the 28th of last month, however,
the same plaintiff brought an action founded on the same
transaction against Seika and one other. Timekeeping
Attendants of the West Palace.1 The complaint in
the last case has been served on the defendant f-'eika,
and if in the case against Teii an order for performance
is issued, two actions based on the same facts might be
decided differently, which would be improper. Accordingly
both parties [in the case against Teii] were summoned
a few days ago and trial had. The defendant asserted
that no chattels were really leased, but only money loaned.
The plaintiff, on the contrary, positively asserted that there
had been a lease of chattels. The two thus contradicted
each other directly. They were summoned once more,
and it was announced to them that in view of their
contradictions it would be useless to try the case
further, and that in any case, even though the plaintiff's
assertion were true, yet the charging of a fee for chattel
olans was the same as getting interest on a money loan
[and hence the claim was necessarily relegated to private
settlement]. The best way of disposing of the case seems
to be to order an amicable settlement, postponing the case
for 6 months more ; then, if no settlement is reached,
to summon them next 1st month, examine the matter
again, and order performfvnce.
1. See p. 166, ante. 2. That is, a case dealt with by a single
Magistrate, not going to the Chamber. 3. Yobidashi,
Vol. XX. Sup. Pt. ill.—19.
290
PRIVATE RAW IN OLD JAPAN :
No. 74] Rubric.^ Actious on chattel leases have of late
increased constantly, and many of the transac¬
tions are found to violate the terms of the
Town-Proclamations on that subject; iu such
cases the parties are usually instructed that an
amicable agreement is better. The transaction
iu the present case was not entirely in accord
with the directions of the Proclamation; yet
[the essential rules were obeyed, for] the lease
was limited [to 3 days] and an instrument
countersealed by a witness was taken, so that
there is no important deviation from the Pro¬
clamation rules, and [performance may be ordered],
as you propose.
As regards the case last brought, a notice of receipt
of the first summons has been sent to us [by the plaintiff],
and, as at the present stage it is hardly necessary to
consult you, it seems better to order a postponement;
during the interval it will appear whether an amicable
agreement can be reached or whether a second summons
will be required in order to secure it, and this can be
reported [to the Magistrate,] as the regulation requires,
when the trial has been finished.
Such is the conclusion reached by all the members
of our Bureau on deliberation; and accordingly we inquire
your opinion on the subject.
Year of the Rat,
8th month.
Tojo Hachitaro."
[No. 75] Lease of a Trade-mark and a Liverij.
An Action between Jihei, son ofDengobei, ofNumadzu
1. The letter is evidently addressed to the writer's superior, the
Town Magistrate, and it is the latter who adds the rubric.
PART III. CONTRACT : LEGAL PRECEDENTS. 291
town, Shunshu,! and Gonnojo, renter of the [Sec. II.
shop of Sabei, in Yokoyama town, same Icuni.
Dated Kyoho, V (Rat), 2, 4 (March 12, 1720).
" The plaintiff, Jihei, of Numadzu town, Shunshu,
deputy's district of Kobayashi Matazayemon, brought suit,
alleging that his father Dengobei had inherited the
right to wear a crested livery,^ and the right to use
the shiJcinjo trade-mark ; ® that these, with the trade-name ^
[of the plaintiff] were deposited in charge ^ of Fukumoto
Baiken, living iu the shop of Sabei, in Yokoyama town,
13 years ago, in the year of the Rat, the sum of 80 rijo
being advanced as security-deposit,® at a royalty^ of 1
bu per month ; that on account of Baiken's poverty the
said livery and trade-mark were given up by him and
were afterwards deposited with Gonnojo of the same
place, upon the same agreement as before ; and the plaintiff
demanded that as the royalty was now in arrears for 4
years, Gonnc jo should pay the amount due or return the
livery, trade-mark, and trade-name. But Gonnojo answered
that his arrearage of interest had occurred in consequence of
the unfavorable condition of the drug-trade, and that, if
this continued and no improvement occurred, he would
return the above articles and the trade-name.
On trial it appeared that the livery, trade mark, and trade¬
name had in fact been deposited with Gonnojo, and that the
royalty was in arrears. But as Gonnojo promised that he
would return the livery, trade-mark, and trade-name as
1. Suruga tomj. 2. Go-mon-tsuki yakuken; a coat bearing the
crest of a daimyo and indicating that the bearer had a connection
with his house, as retainer, servant, etc. 3. Shikinjo kamhan.
Shikinjo was a drug used for perfuming the breath ; kamhan means
usually a livery worn by servants, but here is applied to the board or
other sign bearing the name of the medicine. "Patent" medicines
of all sorts are still very popular in Japan. 4. Myodai. 5. Azukari;
a euphemism for lease. 6. Shikikin; a guaranty that the articles
would be returned. 7. Tokuyo-kin (lit., profits-money.)
292
PRIVATE LAW IN OLD JAPAN
No. 75] stated above, he was merely required to make out an
instrument to that effect, and no order was made as to the
royalty. An instrument signed by Jibei was [also taken up
and] placed in the oflScial record-chest. The complaint
and answer together were then sent for cancellation of the
indorsing-seals."!
[No. 76] Transportation of Freight.
An action between Heibei and another, of Takeno-
uchi village, Yashu,^ and Mizuyemon and 10
others, of Mikami village, same kuni, before the
Lord of Shinano.^
Dated Temmei, I (Ox), 12, 11 (January 24, 1782).^
1. Report of the Case.
"Heibei aud another, of Takenouchi village, Haga kori,
Yashu, in the income-fief® of Okubo, Lord of Idzu, brought
suit, alleging that they followed the occupation of freight-
forwarders, receiving the paper and tobacco goods sent for
sale from Sakesu town by the Karasuyama company,® of
the same kori, and sending them on to the freight-forwarders
of Kobe village, of the same kori; and that Mizuyemon aud
10 others, freight-forwarders of Mikami village, in the same
kori, and in the income-fief of Ashino, Under-Steward
of the Imperial Kitchen, were interfering with the plaintiffs'
business. The parties were summoned by indorsing-
seal,'' and trial was had. It appeared tiiat the paper-
1. This was the regular procedure at the couclusiou of a case
before the Chamber. Compare No. 13, Art. 2, ante. 2. Shimotsuke
kuni. 8. Then Finance Magistrate. 4. Taken bom " Saibandome-
sho." 5. Chigyo. See Part I. 6. Karasuyama was a place-name,
applied to a kind of paper; probably identical with Kein's Kurashi-
yama. 7. XJraban; that is, before the Chamber of Decisions.
PART in. CONTRACT ; LEGAL PRECEDENTS. 293
goods forwarded from Sakesu town after being [Sec. II.
bought by the paper-dealers were known as the " guild
goods," while the paper sent from that place for sale else¬
where was termed " auction-sale goods.Tobacco sent to
Yedo was called " Yedo goods," and that intended for the
neighborhood [about Sakesu town] was called " auction-
sale goods." Thus far the parties agreed, hut as on other
points they contradicted each other, it was difficult to
reach a conclusion. They were therefore ordered to abide
by the arrangement settled upon in Horeki, VII, Ox
(1757) that is, the " auction-sale " paper goods were to
he forwarded through the freight-forwarders of Takenouchi
village, while the " guild goods " were to he taken by the
forwarders of Mikami village; and the tobacco was to he
forwarded in the same way. The parties were ordered to
hand up instruments of acknowledgment and to avoid
disputes in the future. The above decision was communi¬
cated to Ashizawa Hachiro, retainer of Okuho, Lord of
Idzu, to Arai Seikichi, retainer of Ashino, Under-
Steward of the Imperial Kitchen, and to Katayama Bunzo,
retainer of Soyei Yeyan and the complaint and answer
together were sent for cancellation of the indorsing-
seals."
1. The subject of the case is one that occurs more frequently
in the later Sections of Part III,—interference with a prescriptive
right to a monopoly. Here the plaintiffs had possessed the right to
deal with certain classes of freight, and hence it became important
to know just what kinds of goods were ineluded under the customary
names. The first class was the goods bought wholesale by a nakatna
(a firm or company belonging to a guild), probably for sale in Yedo;
while the second was apparently the goods sent out by the producers
for direct sale to the petty country-dealers. 2. As later cases will
show, an agreement as to the limits of such a franchise was often
made betwee* all parties and preserved for scores of years as in¬
dicating the extent of the prescriptive right. 3. This is a formality
customarily employed after the decision of any important case.
294
PRIVATE LAW IN OLD JAPAN :
No. 70] 2. Instrument of Submission.
" On trial of our dispute the old document of
Genroku, III (1690), given by Takenoiichi village to
Mikami village [to settle the respective privileges of the
parties], was found difficult to decipher. In the subse¬
quent memorandum of Kyoho, XVIII (1733), the payment
of a commission 1 [to the defendants] was recorded; but
this was confined to the Kuroba paper, and did not apply
to the Karasuyama paper sent from Sakesu town; so
that this did not settle the dispute. In Horeki, VII,
Ox (1757), another document, sealed by Sayemon and
another for Takeiiouchi village, was given to Genji Uyemon,
freight-forwarder of Kube village, in whicb it was stated
that the forwarding-rights of Kihei, a party to the dispute
then pending, were transferred in entirety to Mikami
village. It thus appeared that the goods purchased by
the members of the paper-guild, not only the Karasuyama
company, 2 but also the Torinoko company, should bo
taken for forwarding by Mikami village. As for the
'« auction-sale " goods, they should be taken for forwarding
by Takenouchi village, notwithstanding that auction-sales
are made at a number of new places other than the
prescriptive ones.^ The plaintiffs' assertion that the
transfer of Kihei's right, as stated in the above
document, was a single exceptional case is not well
founled. Nor is there any proof of the defendants' claim
to coUect a commission from paper goods forwarded from
1. Kosen; the defendants claimed either to h^ve the privUege of
forwarding certain goods, or to oblige the plaintiffs to pay a commis¬
sion if the latter forwarded them. 2. As a share (nakama) was often
divided among a number of houses, the word " company " will here
be used. 3. The defendant wished at least to restrict the plaintiffs'
business to those places and persons where a prescriptive right was
clear. But the Court lays down a general rule, allowing the plaintiff
to forward independently of the question whether he has ever taken
to the place before or not.
PART m, CONXRACT ; LEGAL PRECEDENTS. 295
Sakesu town. The same is true^ of leaf-tobacco 2 freight. [See. II.
But tobacco for Yedo is to be taken by Takenouchi village.
In the first place the old account-books of the plaintiffs
show the records of tobacco forwarded by them. Moreover,
it is unlikely that Mikami village will suffer appreciably,
even though no commission be collected by it as stated
in the Kyoho document. Furthermore, though the docu¬
ment of Horeki, VII, speaks of the transfer of certain
forwarding-rights, without distinguishing between "guild
goods" and "auction-sale goods," yet as Jibei and
Heibei of Takenouchi village have been following the
general occupation of freight-forwarding, there is no
reason why their business should be restricted to the
forwarding of paper goods. ^ So that the tobacco, as well
as the paper, is to be forwarded to the next village * by
the plaintiffs.
The above order has been issued, and if we violate
it, we are to be punished. We accordingly hand up this
instrument of submission.
Temmei, I (Ox), 12, 11 (January 24, 1782).
The plaintiff, Heibei, representative of Heibei, com¬
pany-chief, and Jibei, farmer, of Takenouchi village, Haga
kori, Yashu, in the fief of Okubo, Lord of Idzu :
The defendants, Mizuyemon, Bubei, and Jinyemon,
representatives of Hitcoyemon and another,
farmers, Hikozayemon, company-chief, Jinyemon
headman, of Mikami village, the same kori, in
the income-fief of Ashino, Under-Steward of the
Imperial Kitchen, Mizuyemon, and four others,
farmers, and Bubei, presiding headman, of the
same village, in the income fief of Soyei Yeyan.
To the Chamber of Decisions."
1. It is impossible to tell which part of the previous conclusions
this refers to. 4t. This seems to be the meaning of kusa-ni. 3. The
connection between the qualifying clause and the conclusion is not
clear.
SECTION m.—INTEREST.^
[No. 77] Interest on Money Loans.
A Proclamation, with Notes thereon.
Dated Kyoho, XIV, Cock, (1729).
1. Proclamation. Dated Kyoho, XIV, (Cock), 10, 26,
(December 14, 1729).^
"After the re-coinage of gold and silver in the
Genroku period (1688-1703) the price of grain advanced
considerably. Lately, however, it has fallen off again.
Notwithstanding this decline in grain-prices, the interest
on loans and pledges remains the same as before, to the
great embarrassment of the people. Accordingly it is
proclaimed that hereafter the interest paid on money
loaned since Geuroku, XV (1702), shall be not more
than 5 per cent; ® so that, where money loans previously
made are renewed at the end of the year with notes
payable in the future, the interest shall be as above.
The reduction above ordered shall not affect loans on
which the interest is now in arrears. The above rule
shall be strictly obeyed by borrowers and lenders. If
borrowers fail to pay, the creditors sh»uld report to the
Magistrate. If the reduced interest is not taken, the
borrower shall bring the matter before the Magistrate.
1. Bisokti,ribu. 2. Taken from " Bunden-sosho-sho." 3. Go-bu.
The unit was divided into 10 tcari; and each wari was conceived as
having 10 6u. Hence 5 per cent, is " go-bu," 15 per cent. " iehi-icari
go-bu," etc.
PART III. CONTRACT : LEGAL PRECEDENTS.
297
New money loans may be made privately, on whatever [Sec. III.
terms the parties please, except that no excessive interest
must he contracted for.
The above rules are to he strictly kept in mind.
Year of the Cock,
10th mouth."
2. An Inquiry addressed to the Finance Magistrate by a
Clerk.
Dated Kyoho XIV, Cock (1729).
" (1). The order has been issued that there should he
no redaction in the case of loans whose interest is now in
arrears. Does this apply only to loans on which the
interest is entirely unpaid, excluding the cases where
some portion has been paid ?
Appended Note. Just so.
" (2). The proclamation states that new money loans
not secured may he made privately, on whatever terms the
parties pleased, that in case of non-payment the creditor
shall bring the matter to Court, and that in case the
reduced is not allowed, the borrower shall come to Court
about it. Now is payment to he ordered not only in
case of [ordinary unsecured] loans, hut also in case of
loans on pledges [where the parties have transacted the
matter privately ^ ] ?
Appended Note. We shall consult [the Chamber]
and let you know.
" (3). In regard to new money loans, it is declared
that they may he made privately on whatever terms the
parties please, except that oppressive interest was prohibited.
Does this mean that interest on [ordinary] money loans
made previous the date of the proclamation is to he paid
1. This seems to be the only explanation of the sentence.
298
PRIVATE LAW IN OLD JAPAN :
No. 77] off at the rate of not more than 5 per cent., while interest
on loans made thereafter shall bear interest as the parties
please ?
Jpptnded Note. Just so.
These questions in regard to the payment of ordinary
loans and pledge-loans have arisen in connection with
transactions of the sort in various villages, upon which tho
deputies have consulted us.
Year of the Cock,
11th month.
Ina Hanyemon."
8. Resolution of the Chamber of Decisions.
Dated Kyoho XIV (Cock).
"If in the instruments of loan the rate of interest
appears as a part of the original, recovery shall be
granted [without further delay]; but if the entry appears
to have been written in after the execution of the docu¬
ment, an examination into the facts shall first be made."
[No. 78] Interest on Ilonej/ Loans.
A Kesolution of the Chamber of Decisions.
Dated Gembun, I (Dragon), 9 (October, 1786).^
1. Resolution.
"Interest on [ordinary] money loans and on hypothecs-
was [in Kyoho, XIV] lowered from the iiigh rate of 20
per cent, to the rate of 5 per cent. Now, however, an
order shall be issued prescribing 15 per cent, as the-
proper rate.
The above was determined at a session of the Full
Chamber."
1. Taken from " Injoshin-cho of Gembun, IV."
PAET in. CONTRACT ; LEGAL PRECEDENTS.
299
2. Appended Order. [See. Ill,
" Interest on [ordinary] money loans and on hypothecs
shall be lowered to 15 per cent., payment being ordered
at this rate."
[No 79] Correction of the Rate of Interest in
Land-Pledge Instruments bearing no Seal
of the Headman or no Place-name or in
any way not corresponding to the Land,
etc., and in Tenancy Contracts similarly
defective, both being regarded as Hypothecs.
A Resolution of the Chamber.
Dated Gembun, I (Dragon), 9, 21 (October 25, 1736).^
"Since Kyoho, XIV (1729), land-pledge instruments
bearing no seal of the headman, no place-name, ^ or in any
way not corresponding to the land pledged, ^ are to be
regarded as hypothecs. Such claims, then, are to be
treated on the footing of [ordinary] money loans, and
the sum due is to be paid off at the end of 30 days. *
Note, that arrears in the payment of rent by the
tenant are therefore to be assimilated to interest on a
loan® and are not to exceed 15 per ceht.
Year of the Dragon.
9th month.
The above was determined at a session of the Full
Chamber."
1. Taken from " Kakidome-sho." 2. Meisho; probably the azana
or name of a plot of land, given to it when originally reclaimed.
See Simmons, Notes on hand Tenure, etc., p. 101. 3. The written
instrument not correctly describing the land pledged. 4. In the
earlier periods the regular procedure for money loans. 5. The
pledgor often recced the land back from the pledgee as tenant, and
paid rent to the pledgee during the term. Numerous loans and
lawsuits involving this transaction will be found in Part VI,
500
PRIVATE LAW IN OLD JAPAN :
[No 80] Interest on Money Loans.
A Kegulation. ^
Dated Kampo, I (1741).^
" Interest on house-pledges and all other loans, where
the contract calls for more than 15 per cent., shall he
reduced to 15 per cent."
[No. 81] Unsigned Lostscripts, Notes, etc., as
well as Instruments not reciting the Prin¬
cipal and Interest, to be invalid.
A Resolution of the Chamher.3
Dated Anyei, VIH (Hog), 9 (October, 1779).
" Instruments not reciting the amount of principal and
the rate of interest, postscripts, notes, and the like, merely
stating the rate ot interest and not signed, are to be
regarded as invalid, aud no interest may be collected.
This has been the practice hitherto, and it has now
been confirmed on consultation."
[No. 82] Reduction o f the Plate of Interest from
1 hu per 10 ryo to 1 hu per 20 ryo.
A Reply by a Town Magistrate to his
Colleague.
Dated Kwansei, II (Dog), 5 (June, 1790).^
1. Inquiry.
" To the Lord of Kawachi,
from Ikeda, Lord of Chikugo.
1. Taken from " Kajoruiten-sho." 2. Sadame. 3. This is
inferred from the document. 4. Taken from " Kakidome-sho."
PAKT III. CONTRACT : LEGAL PRECEDENTS. 301
In the trial of money-loan cases brought before [Sec. III..
nie, [ have in some cases found the interest fixed at
about 1 bu per 10 ryo, or, in small money 124
mon per 5 kwammon.^ On examining the precedents, I
found one in which a penalty was inflicted for charg¬
ing 1 hu for less than 10 ryo, but not for charging 1 bu
for just 10 ryo. In such a case, then, payment at this rate
should not be ordered, but the right aud wrong of the matter
should be set forth to the parties, and they should be for¬
bidden to transact loans at so high a rate, in order that
justice may prevail.
The above is the conclusion I have reached, and I now
ask the favor of your opinion.
4th month."
2. Appended Note.
" The rate of 1 bu per 10 ryo is certainly usurious aR
compared with the [now legal] rate of 1 bti per 20 ryo.
lu my Office, too, I find no precedent for inflicting a penalty
where 1 bti per 10 ri/o has been taken. I shall, in such
cases, do as you propose to do, and when a claim is made
for interest at about 1 bu per 10 ryo, order payment at the
rate of 1 bu per 20 ryo.
I reply as above.
Year of the Dog,
4th month.
Hatsukano, Lord of Kawachi."
3. Reply to the Note.
" To the Lord of Kawachi,
from Ikeda, Lord of Chikugo.
1. The rates Jiere given are per month. Thus, there being
4 iu in 1 ryo, 1 bu per 10 ryo is 30 per cent. Kwammon (see Part I)-
is 1,000 mon.
802
PRIVATE LAW IN OLD JAPAN I
82] My idea as to the proper practice proves to agree
exactly with yours ; so, in accordance with your appended
note, we shall both adopt the same practice.
5th month."
[No. 83] Amendment of the Rule in regard to
Interest on Money Loans.
A Proclamation-Order from the Council of State to
the Three Magistrates.
Dated Tempo, XIII (Tiger), 9,29 (November 1, 1842).i
1. Proclamation.
" To the Three Magistrates :
' (1.) Hitherto the interest on money loans in general
has been 15 per cent. It is uow ordered that hereafter
the rate shall be 1 hu per 25 rtjo. Not the least excess
beyond this shall be allowed. Sundry charges exacting a
higher rate under other names are of course prohibited.
(2.) On loans already made at the usurious interest of
20 per cent, the rate shall be reduced to the above figure of
1 bu per 25 I'ljo. Loans may be made at lower rates as the
parties please.
(8.) The rate shall apply to all loans whatever, even
though from the funds of royal abbots ^ or other persons of
high position.
(4) The fixing of the above rate of interest on money
loans is not to be looked upon as a cause^f loss to money¬
lenders ; it rather tends to their peace of mind.3
1. Taken from " 0-lcakitsuke-tome-sho," and " Shin-harigarni-
sho." It has been already said the title Samhugyo (Three
Magistrates) is probably merely the popular name for the Chamber of
Decisions. 2. See No. 32, ante. 3. By relaxing the strain on the
debtor class and preventing bankruptcies and flight.
PABT III. CONTRACT : LEGAL PRECEDENTS. 308
Moneyed persons ought to lend their money for the benefit [Sec. III.
of society; borrowers are not to be so reprehensible as
to fail to pay what they owe. Lenders should sue for
their money only when it cannot be helped, showing
uprightness and sincerity in all their dealings, and obeying
the regulations of Kwansei, IX, Serpent year,i for money
actions. If these rules are violated and unjust dealing
practiced, they will on conviction he severely reproved.
The contents of the above shall be proclaimed through
nil the wards and villages.
9th month.'
The above order is to be announced in all those places
where the proclamation of Kwansei was announced.®
Judgment shall be rendered hereafter only on careful exami¬
nation of the facts. Where unjust dealing is discovered, it
should be carefully investigated for violations of the above
rules, and defaulting debtors who have been ordered to
pay are to be carefully examined again, and payment again
ordered."
2. Proposal by the Chamber in connection with the above
law.
Dated Tempo, XIII (Tiger), 10, 25 (November
27, 1842).
" (1). Money loans made before the end of the last
9th month at an interest of more than 1 bu per 25 ryo shall
be ordered paid at the rate of 1 bu per 25 lyo, if suit is
brought on or after the 1st day of the present month.
(2). If the instrument of loan is dated on or after
1. Probably No. 13, ante. 2. The " places " probably refers to
the country districts ; and the idea is merely for the officials to take
pains that the announcement is made in all places where the Shogun-
ate judicial auth#rity reached. This last paragraph is a direction
appended for the benefit of the Magistrates in their enforcement of
the proclamation.
304
PRIVATE LAW IN OLD JAPAN :
No. 83] the 1st day of the present month ^ and hears a higher
interest than 1 bit per 25 ryo, no suit shall he entertained
thereon.
(8). Part payments and final settlements of money
loans upon private agreement pending trial shall he made
at the rate of 1 ryo per 25 hu.
(4). The present schedule for instalmeut-payments
after judgment^ has been calculated for an interest of
1 bu per 20 ryo; but as the difference between that rate
and the one now ordered is not considerable enough to
cause serious embarrassment to the debtors, the schedule
of instalments shall remain unchanged.
(5). The rate now ordered is to apply equally to
loans from funds of royal abbots and other persons of
high position; the rate is to be lowered to 1 bu per 25
ryo for loans made up to the end of the last 9th month,
and suits on loans made since then at a higher rate are
not to be taken up.
(6). Now that the present order has been issued
[reducing the rate of interest], if debtors are found
acting reprehensibly in the private settlement of their
debts, judgment shall be rendered against them, after
trial, strictly and unfailingly; if there is delay in the
payment of instalments, execution in bankruptcy shall
issue as speedily as the circumstances may require.
(7). The rules for the disposition of suits on money
loans hold good also for actions concerning deposits,®
hypothec of cultivated land or of houses, and ground-rent
and shop-rent.
(8). Hitherto there have been variotfc ways of attempt¬
ing to enforce payment, where one of the miUtary gentry has
1. The proclamation had been issued on the 29th of the 9tb
month. 2. The reform in procedure which abolished the instalment-
payments was not effected till the next year. See No. 28, ante-
3. Cho-kin. See No. 127, post.
PART III. CONTRACT : LEGAL PRECEDENTS. 305
been ordered to repay a loan and has failed to hand in the Sec. Ill]
instalments as ordered. Hereafter, if a case occurs in
which such a debtor culpably fails to have his retainer make
the payment, no leniency shall be shown in dealing with
him, and strict fulfilment of the obligation shall be required.
In all cases whatever of loans, payment shall be
ordered, according to the provisions of the Proclamation,
after carefully trying the case and considering all the
circumstances.
The above order is proposed by us for sanction.
Year of the Tiger, "
10th month."
8. Acknoideihjment of Sanction received.
" We acknowledge the receipt of an order to proceed
exactly in accordance with our proposal to the Lord of
Echizen."!
[No. 84] Interest on Money Loans.
A Reply by the Town Magistrate to an Inquiry by
ofiicials of the Lord of Owari,
Dated Kayei, VI (0x1, 2, 29 (April 7, 1853).
1. Inquiry.
" To the Town Magistrates,
from the Lord of Owari's Castle-Officers ;
The townspeople who have lent money to the retainers
of the Lord of Owari are bringing suits in his Office for
repayment. In such suits is the calculation of interest to-
include the month in which the suit is brought ? And if the
rate agreed on is higher than 6 per cent, is it to be lowered
to that figure ? Or shall the interest calculation not include
the month of the suit ?"
1. Presiding Councillor of State.
VoL XX. Sup. Pt. ill.—SO.
806
PRIVATE LAW IN OLD JAPAN :
No. 84] 2. Appended Bephj.
" Interest should be calculated according to the second
alternative mentioned hy you. The rate is not to be higher
than 1 hu in 25 rijo, as ordered in the last Tiger year, 11
years ago.
Year of the Ox,
2nd mouth.
Ido, Lord of Tsushima."
[No. 85] Omission of Interest for Intercalcmj
Months in Judgments on Money Loans.
A Eeply by the Town Magistrate to a Consultation
by the Finance Magistrate.!
Dated Kayei, VI (Ox), 10, 18 (November 13, 1853).^
1. Consultation.
" To Ido, Lord of Tsushima,
from Honda, Lord of Kaga.
In ordering payment in actions on money loans the
practice has been, in the calculation of interest, to
omit the intercalary month and a statement to this
effect has been made in the instrument of submission
which the parties are caused to sign after judg¬
ment rendered. The reason is that if we include the
intercalary month or months the result would be
unfair [to the debtor]; for [the agreed] 1^ per cent, [per
year] is intended to be the interest for a whole year,
whether or not an intercalary mouth happens to occur
during a given year or not. ^ The terms of the Order of
1. Taken from " Shoji-dome-sho." 2. Probably. 3. For the old
Japanese Calendar, see Part 1.
PART III. CONTRACT : LEGAL PRECEDENTS. 307
last Tiger year.i however, indicate that the interest account [Sec. III.
is to be calculated by monthly instalmentsShall, then,
the interest calculation be made on the basis of a whole
year, and payment ordered accordingly ? I cannot find
any precedents in my office, and I therefore consult
you on the point.
Year of the Ox,
10th month."
2. Aiipended Ilephj.
" Your letter of consultation has been received, and
search has been made for precedents. I found that there has
been a regular practice on the subject. In the last
Hare year, the very year succeeding the Tiger year,^
it was agreed, at a consultation of my predecessors,
to omit the iutercalary month, and interest has since been
calculated on that basis. A copy of the form for order¬
ing interest is herewith enclosed for your information.
The above is my reply.
Year of the Ox.
10th month.
Ido, Lord of Tsushima."
3. Enclosed Copu of Resolution and Fonn of Order.
" The following form of order was determined upon, on
consultation between Torii, Lord of Kai, and Abe, Lord of
Totomi,^ Tempo, XIY, Hare year, Gth month (Jul)', 1848):
' Both parties being present after trial had, on
summons to appear for joinder of suit on date,
in the action brought month, day, on a claim
1. Tempo, XIII, 1842; No. 83, ante. 2. Because the rate of
interest was fixed at 1 bu per mouth per 25 rijo. It is obvious
that in years when an intercalary month occurred this rate would
exceed 15 per cent. ^ 3. The year of the law In question. 4. Town
Magistrates.
308 PRIVATE LAW IN OLD JAPAN I
No. 85] for , against , by , of ward, renter
of shop, on an instrument dated year,.
month, the following is declared to he the state
of accounts :
Principal, ryo in gold.
That is to sa}', ryo, with interest for
months, excluding intercalary months, from
year, month, to year, month, at the
rate of 1 hu per month per ryo.
Total amount due, principal and interest:
1-yo in gold.
Part payments, ryo received, years,
months.
Remainder, ryo in gold, now due.
The above statement of the amount due is declared
by both parties, after inspection, to he correct, and
they have no objection to make against an order of
payment. Let it therefore he as above.' "
[No. 86] Compound Interest^ on Money Loans.^
" When, for example, on a contract to repay 10 ryo
with interest at 15 per cent, a year, the lender brings
suit demanding compound interest on the amount in arrears,
it shall not be permitted; for the instrument of loan given
at the time does not provide for it, and the failure of the
lender to bring suit on default in the first year's interest
is his own act. In such cases the cal«ilation shall be
made at the ordinary rate of 15 per cent, a year.
However, where an instrument of loan has been
renewed and the new instrument provides that interest
in arrear is to be added to the capital and to draw
1. Ri (iuterest)-6(ii (double). 2. Taken from " Kosei-jimmon-shu
$ho."
PART III. CONTRACT : LEGAL PRECEDENTS. 309
interest upon itself, the borrower will not be allowed [Sec. III.
to escape from the payment of this interest, iu a
subsequent action, by alleging that he never agreed [to
pay compound interest] and by showing the original
instrument, because at the renewal of the instrument
compound interest was provided for by agreement of the
parties. Payment shall therefore be ordered according to
the new instrument."
[No. 87] Interest on Advances for Investment
made bij the Dried-sardine Guild.
A Report by the Manager i of the Guild.^
Dated Bunsei, X (Boar), 9, 2 (October 10, 1827)
" In an action concerning dried-sardine investment-
advances^ between Heizayemoii, farmer, of Shimonagaivillage,
Shimosa knni, in the income-lief of Takai, Lord of Tsushima,
and Jiroyemon, house-owner, of Hirane ward, Fukagawa
[Yedo,] the following report was handed up by the Manager
of the guild of wholesalers on the question whether interest
■could be charged, no mention of interest occurring in the
memorandum of the transaction, though the advance
was therein described as lent;
' When in transactions with the coast villages
■deposits^ are made of investment-money,® transportation-
money,® and final amounts due on purchase-money,'^ interest
1. Gyoji. See Part I. 2. Taken from " Shnji-dome-sho."
3. Shiire-zenkin. It has already been explained that this term
usually applies to the advaiiees made by the wholesale dealer to the
producer, for the purchase of stock, living expenses, etc. This
system of advances to the artisan and the producer is still prevalent
in Japanese commerce. 4. Aznkari. 5. Shiire-kin. 6. Ni-kawase-kin;
the probable i{)eaning. 7. NhnoUn shikiri-kin. This phrase is here
used technically, and apparently means the final (shikiri) amount
■due, on delivery of the goods by the producer, over and above
810
PRIVATE LAW IN OLD JAPAN :
No. 87] is customnrily pnid at 8 rin a day per ryo. It is true
that in some of the instruments given no interest is
expressly stipulated; while in others is found only the
expression ' interest-payers.' These, however, are merely
individual cases, due to carelessness or to special agree¬
ment with the part of the fishermen who furnish the
goods; and the general rule among the members of the
guild for many years has been to charge this rate of 8 rin.
This will appear from documents handed up to the
Court by the Manager of the dried-sardine guild, in Anyei,
V (Ape), 9, 13 (October 24, 1776): ^
(But it is not known what action the Court took in
these cases.)
(rt) " We respectfully offer the following report in
answer to your inquiry ;
More than a hundred 3'ears have passed since our
dealings in dried-sardines were begun here, in
the period Shoho (1644-1647); and it was about
seventy years ago, in the period Teikj'o (1684-
1688), that our trade became established on a
solid foundation, and that for the furtherance of
our business we began to enter into arrangements
with the coast villagers who furnished the
product.
As to interest, it was alleged not long ago that this
was paid at the rate of 8 rin a day per i yo in gold;
and that is correct.
We shall be greatlj' pleased if the order is made that
the same rate shall continue in fojce.
Horeki (Eat), 5, 5 (June 2, 1756).^
previous advances made to him by tlie wholesaler for purchase of
material, utensils, etc.
1. Answers when consulted by the Court as to prevailing com¬
mercial customs. 2. This date and that of the next document shows
that when they were handed in, as stated above, in Anyei (1776),
they were offered as old documents as showing the custom of previous
times. That is, their present appearance in Court is their third.
PART III.—CONTRACT : LEGAL, PRECEDENTS.
311
Jibei, of Block No. 3, Kofune ward, [Sec. II.
and 7 others.
To Isshiki, Lord of Siiwo, ^
Magistrate's Office."
(b) " We respectfully offer the following report in
answer to your inquiry :
We have been summoned in connection with an
action by one of the new wholesale-houses in
regard to the use of a crush-net 2 at Kujukuri
fishing-village during the spring of the last Rat
year. (The next passage is upon another subject
and is omitted). The interest on 1 ryo gold is
3 rin silver a day; so that for 100 njo for 1
year it would amount to 17 ryo, 2 hu, in
gold, and 10 momme, in silver: ® the rate is
thus about 18 per cent, a year. We receive this daily
interest for our loans ; but as we are bound to pay
interest at the same rate on the remainder of the
purcliase-money ^ due from us to the coast
villagers, there is on striking a balance a slight
profit in our favor, which we apply to the inter¬
est on our own borrowings.^ (The next passage
is upon another point, and is here omitted).
The guild-members hope to have a continuance of
the prosperity hitherto existing and to be free
1. Finance Magistrate. 2. Tsubiiahi-aiin'. 3. 100 rin = 10
= 1 momme silver. Allowing 351 days to the year, this gives a
total, for 100 ryo in one year, of 1062 momme, or 17 ryo (1 ryo = 60
momme), 2 hit (1 hit = 15 momme), and 12 momme,— a slight
discrepancy. 4. Uri-ahikiri-kin. 5. The idea seems to be that the
wholesalers were constantly making advances to the fishermen,
and on the other hand the sums due to the latter as the
remainder of the price of goods delivered to the wholesalers were
Constantly falliug due ; and that on the balancing of accounts there
was a slight Balance in favor of the wholesalers, by reason of the
former sums having been running longer. The allusions are not
entirely clear.
812
PRIVATE LAW IN OLD JAPAN:
No. 87] from loss and misfortune; and therefore solicit
your gracious favor.
Horeki, VII (Ox), 2, 23 (April 11, 1757).
Chuyemou, of the Zakka House, and
42 others.
To the Finance Magistrate."
(c) " We respectfully offer the following report in
answer to your inquiry :
To your inquiries in regard to the sums loaned by
the dried sardine wholesale-houses to the coast
villages as investment-money and in regard to the
respective amounts loaned to each debtor we
make the following replies :
(The next passage relates to another topic and
is omitted here). Inquiry has been made as
to the interest on loans for investing in nets*
A few years ago, by an agreement on that subject
made between the coast-villagers' traveling-
agentsi and the Yedo wholesale houses, it was
decided that interest should be paid, in order
to facilitate for them the cir culation of money,2
at 3 rin a day. The purchase-money® for goods
sent by the travelling agents was left on deposit
at the rate of 8 rin a day, and the loans [bj*
the wholesalers] were to bear interest at the
same rate. (The next passage does not relate
to this subject, and it is omitted). Such are the
1. Bxjo (traveling)-nm (persons). It seems fairly clear that we
have here a person corresponding somewhat in function to the
commercial traveler of 'Western lands, but also acting as a
collecting and forwarding agent. 2. This is either a phrase meaning
merely " for general convenience," or a way of saying that a rather
high interest would induce a prompter settling. 3. Vridailcin-
4. Aziikari; that is, it was treated as paid and then returned by the
creditor to the debtor and left at interest.
PART III. CONTRACT ! LEGAL PRECEDENTS. 318
amounts and rates of our loans. The amounts [Sec. III.
in arrears—that is, since Horeki—have not been
calculated.
The above are our answers.
Kwansei, III (Ox), 2, 5 (March 9, 1791).
Kabei, representative of
Kashiro, of the Hashimoto House,
Manager of the Dried-sardine Guild.
To Ina, Lord of Settsu,^
at the Government Office."
The preceding copies of records are handed up by us
in answer to your inquiries respecting the custom of our
guild. We assure you that they are correct.
For Yoyemon of Block No. 3, Koami
ward, Zembei, representative during
his absence on a journey to Seishu,
and in charge of his shop, and
temporary manager of the guild of
dried sardines'lees and oil; and one
other."
1. Finance Magistrate.
SECTION IV.—CONTRACTS FOR PAYMENT IN
YEARLY AND MONTHLY INSTALMENTS.^
[No. 88] raijmcnt bij Yearly Instalments.
A Memorandum handed up by the Full Chamber and
approved. 2
Dated Horeki, IX (Hare), 6, 26 (July 20, 1759).3
1. Memorandum.
"It has already been held that where a loan has
been renewed with an instrument providing for payment
by instalments, payment should be ordered of those
instalments only which have fallen due according to the
terms of the instrument; that is, that those portions whose
day for payment had not yet arrived would [not yet be
ordei'ed paid, but must] be left to private settlement,
[if the debtor cared to do so in advance,] and that the
portions unpaid at the expiration of the terms agreed on
should be ordered paid, no matter how many times the
same order be given.^ But these instalment-instruments
often coutain a clause providing that in case a single
default occurs and suit is brought for 4iie instalment in
arrear, the whole principal of the loan or the principal
and interest shall fall due at once. If, now, we order
1. Nen-gep-pu. 2. By the Council of State. 3. Taken from
" Kakidoiiie-sho." 4. The effect of this clause is not clear, unless
it means that the Court will repeatedly order full payment and.
not recommend compromise.
PART III. CONl'RACT : LEGAL PRECEDENTS. 815
payment of the whole principal in this way, following [Sec. IV>
the provisions of the instrument, and going contrary to
the [general nature of] the contract as entered into by
the parties, there will be two opposite methods of treating
the instiilment instruments nowadays executed, [which is
not desirable]. Moreover [the clause in itself is not a
good one for the interests of debtors, for] those who have
borrowed in previous j'ears will be greatly embarrassed
by being fiustrated in their hope of making the ordinary
instalment-agreement in the future, while those who have
already entered into instalment-agreements will find the
object of this arrangement defeated, if an order is made
for immediate full payment. We propose, tlierefore, that
a clause of the above purport should be disregarded,
and that payment should be ordered of only the instalment
due and unpaid, as decided upon at the last consultation
above cited.
Year of the Hare,
6th month."
2. AcknotcU'dijDieiK of sanction receiced,
" We acknowledge the receipt of the order approving the
proposal made by us.
Year of the Hare,
7th month, 11th day.
Chamber of Decisions, Full Session."
[No. 89] Proofs^ in Contracts for Yearly and
Monthly Instalments.
A Resolution of the Chamber of Decisions. ^
Dated Anyei, IV (Goat), 12, 25 (January 16, 1776).'
•
1. Shoko-hutfu. 2. Probably. 3. Taken from " Kakidome-sho."'
316
PRIVATE LAW IN OLD JAPAN :
" It is frequently attempted by the debtor, in actions
on instalment contracts, to prove the state of accounts
by the entries in his account-hook ^ or by letters written
by the creditor and stating the number of months unpaid
for. Such proofs certainly cannot avail in actions on
instalmeiit-coutracts, and the whole amount must be ordered
paid, [if no other proofs of payment are forthcoming].
But, even though in the contract-instrument itself, a record
of instalments paid is wanting, it will be sufficient if a
signed written receipt is preserved, showing the
amount paid in a year or a month ; in such a
•case, it has beeu determined on consultation, judgment
should be given in the debtor's favor [to the extent of sums
so evidenced]."
[No. 90] Instruments providing that Instalments
due at a Future Date shall full due Imme-
diatehj on Default in a single Instalment.
A Regulation of the Finance Magistrate.2
Dated Bunsei, III (Dragon), 1 (February, 1820).
"In actions on yearly-instalment contracts, instru¬
ments are sometimes presented which contain a clause
providing that, in case of failure to pay a single year's
instalment, the whole amount appointed for subsequent
dates shall fall due immediately. If this provision were
given effect, there would have been no use in making
the instalment-contract in the beginning}. Moreover there
are precedents declaring such a provision unlawful. Pay¬
ment shall be ordered, therefore, in such cases of no
more than the instalment due and unpaid, and the part
1. Kayoi-cho; one of the kinds of account books kept by a
merchant. 2. Taken from " Shiu-tiariyami-iiho"
PART in, CONTRACT t LEGAL PRECEDENTS.
317
of the complaint ^ relating to the instalments whose term [Sec. IV.
has not yet expired shall be disregarded. 2
The above rule has been laid down, in order that
the practice may henceforth be uniform, by Ishikawa,
Steward of Imperial Waters.3
[No. 91] Yearhj Instalment Payments withoiit
Interest to the Pi ice-Brokers.*
A Memorandum of an Order to be announced
to the Warehouse-Samurai 5 by the Town
Magistrate.
Dated Tempo, XIV (Hare), 12 (February, 1844).®
1. Note.
" Memorandum.
As provided in the accompanying document, the
amounts due from the various military gentry for loans
1. Meyasu. 2. This passage may mean that when the plaintiff
states his case no note shall be taken by the clerk, in reducing it to
writing, of the portions in question. 3. Finance Magistrate.
4. Fuda-sashi. These were the ordinary rice-brokers, who
advanced money to the samurai on their rice-stipends, or sold the
rice on commission. On the whole subject of this case further
information will be found in Part I. 5. Kurayado ; the samurai who
privately transacted business as rice-brokers, without leaving their
caste to become merchants. It would seem from this title that the
term fuda-sashi was often used generically so as to include them.
The only explanation of the term occurring thus in the head-note is
that the last sentence infra should read: " The above shall be
proclaimed [also] to the kurayado," and the maker of the head-
note hastily took*this as the chief purport of the proclamation.
But for another use of the term kurayado, which may be intended
here, see No. 127, infra. 6. Taken from " Shojidome-sho."
318
PRIVATE LAW IN OLD JAPAN !
No. 91] made from the S uuya ward Assembly-Office ^ shall be paid
off by iustalments proportioned to the amount due."
2. Order for Proclamation.
" To the Town Magistrate :
(1) The rules in regard to loans by rice-brokers
are hereby changed.^ Hereafter loans to upper and lower
samurai'^ alike shall be paid off, whether they be new
or old loans, in yearly instalments without interest, from
the time of the renewal of the instrument ^ at the time
of the payment of winter-rice ® this winter.
(2) The above instalments shall be made at the rate
of 5 ri/o in gold per year per 100 bales for loans
of 100 ryo or more, and at the rate of 5 per cent, of the
principal for sums of less than 100 i-yo.® This yearly
instalment shall be divided into three parts : in every 5
1. This was an office connected with the Finance Department, and
loans were here made to thofiulusaihi, and also, it, seems, to samurai.
2. The purpose of this proclamation was to relieve the strain upon
the samurai debtor class who had borrowed beyond their means and
had no hope of paying, d. Halamoto, gokenin; See p. 9. 4. As
has been before noticed, the habit was frequently to renew the
instrument of debt; and the above occasion would be a veiy proper
one for the renewal here enjoined or assumed. 5. Ou-kiri-m ti. The
rice-stipend of all the higher samurai, including all holding official
positions, was paid 3 times a year, in spring, summer, and winter.
The first two were called on-kari-mai (official loaned rice), the
last, on-kiri-mai (official final rice). 6. The stipend was
usually paid part in rice and part in money. Hence a rate at
which rice could be turned into money wa#* needed ; this was
determined by the authorities beforehand and announced on a
harigami or poster. It was published at so many ryo per 100 bales,
the rate in a certain year, for instance, being 40 ryo. A bale con¬
tained usually about one-third of a koku. Thus incomes were
reckoned at a fixed number of bales, but at any time the figure was
transmutable into ryo. The figure of the loan was naturally
reckoned in ryo.
PART III. CONTRACT : LEGAL PRECEDENTS. 319
ryo, 1 ryo 2 bu per 100 bales for each of the first two pay- [Sec.
ment days.i and for the third, 2 njo per 100 hales, and the
settlement of accounts shall take place at the spring, summer
and winter payment-days.
But note that loans are to he made in future with no
less facility and readiness than heretofore.
(3). Advances of stipend 2 made for the next salary-
term or the next hut one shall he reckoned in gold, taking
36 ryo, the r.ate posted for this winter's salary-payment, as
the basis of reckoning; 3 hut these loans shall he settled at
the latest by the 10th month of the coming year.
(4). Government-loans,^ therefore, [already made] to
brokers at the Saruya ward Assembly-Office shall also he
paid according to the above schedule, tiiat is, by instalments
without interest. Any loans made hereafter shall he subject
to the same rules as heretofore.
(5). It is thought that low-interest loans to upper
and lower samurai at the Saruya ward Assembly-Office
are not desirable ; so henceforth such loans are prohibited.®
All loans made up to date [to any one person] shall he
regarded as a single sum, and also the advances furnished 0
by the rice-hrokers, and payment shall be ordered in
instalments without interest at the rate of 5 ryo in gold
per 100 hales.
The above orders are issued. Let each observe
them strictly and see to it that no violation occurs.
12th mouth.
The above order shall he issued to the Warehouse
samurai."
1. See Note 5, p. 318. 2. On-fuchi-liata-mai. There was some¬
times a distinction between on-fuchi-mai, o-yakii-ryo, and the other
euphemisms for the stipends ; but here the term seems to apply to all
stipends due at these three occasions. 3. See Note 1, supra.
4. On sage-kin. Thus all previous official loans were to be paid
off without interest; and thereafter such loans were to be given up..
■6. Yodatekin; lit. money supplied.
820
PRIVATE LAW IN OLD JAPAN I
No. 91] 3. Memorandum of Instructions to the Town Maaistratef
to order rice-brokers not to cause inconvenience by
restricting their loans, since at Saruya ward Assembly-
Office a new [official] loan Las been authorized for the
stipendiaries of the Government, as provided in a previous
Order.
" To the Town Magistrate :
An order has just been issued autborizing the
repayment of the loans from rice-brokers in yearly
instalments without interest. Now once more, as in the
Kwansei period (1789-1801), Government money is to be
lent out, at the Saruya ward Assembly-Office, to the brokers
at the rate of 5 per cent, a year, and a new loan from the Go¬
vernment to the stipendiaries is hereby ordered.^ [The
brokers] shall therefore be careful to supply the needs of the
stipendiaries without hesitation. If culpable practices occur,
and suit is brought, the brokers shall be severely censured.
The above shall be proclaimed.
10th month."
[No. 92] Action for Arrears of Yearly or
Monthly Instalments due on Instalment'
Contracts or on Court-Orders.^
" Where action is brought for arrears of yearly or
monthly instalments ordered by the Court or agreed
upon by the parties, and the plaintiff demands the immediate
payment of the whole sum, principal and interest, the plaintiff
should be shown that is out of reason*and humanity to
demand the immediate payment of those instalments not
yet fallen due, and the order of payment should cover only
1. The only explanation of this statement is either that some
special loan elsewhere authorized is meant, or that the loan was an
advance of the rice stipend. 2. No date appended. Probably a
Magistrate's Regulation.
PAKX III. CONTRACT : LEGAL PRECEDENTS.
321
the instalments in arrear at the time, excluding instalments [See. IV.
not yet falleu due ; since a demand for the immediate pay¬
ment of the whole sum would go against the plaintiff's generous
agreement to accept payment by way of instalments."
[No. 93] Yearly Instalments.
An Action against Ritoji, of Okusa village, Shin-
shu,i and 4 others, by Kiusuke, representative of
Kakubei, of the same village, before the Lord of
Suwo.2
Dated Kwansei, II (Dog), 8, 4 (September 12, 1790).
1. Judgment of the Chamber.
" Action for the payment of 8 }ijd, a yearly-instalment
due and unpaid, between
Ritoji, of 0!;nsa village, Ina kori, Shinshii,
deputy's district of Suzuki Shinkicbi
Defendant;
and
Rinsuke, representative of Kakubei, of the same
village, in the income fief of Kondo, Governor
of Kyoto^ Vlaintiff.
1. Shinano hnrd. 2. Finance Magistrate. The suit was brought in
the Finance Magistrate's Court, and by him sent to the Chamber for
decision. 3. There were apparently two or more sections of the district
known as Okusa village; for the term mura was a loose one and
might include several communities. It is impossible, in a given case,
to know merely from the term mura, whether the region so named is
under a single set of local ofScinls. Thus the same mura might be
not only under two sets of local officials, but even in two feudal
territories. In oue case in Part VI a mura lay at the corner of three
such territories. It is true that a Shogunate deputy's district might
coincide, for judicial purposes, with an income-fief, as many of these
actions show; but here it would seem that one part of the mura lay
in an income-fief, another in a deputy's district.
Vol, XX. Slip. Pt. ill.—31.
822
PRIVATE LAW IN OLD JAPAN :
93] In the above action both parties were summoned by
indorsing-seaP and trial was bad. It appeared clearly
that the instriimeut of loan, which called for payment by
instalments, and was the only proof of the claim, was not
in fact given for a real loan, but for the residue of money due®
on a lottery-arrangement.® The alleged loan being therefore
1. Vrabiin; showing that the action was before the Cham¬
ber. 2. Ato kake-kin. 3. Mujin. The lottery was a favorite
method in old Japan for raising money to assist the building
of a temple, the repair of a house, and, especially, the succor
of fellow-villagers in distress. It was often perverted to gambling
purposes; but its charitable uses were equally important
and were perhaps the original ones. There were numberless
varieties, but two of the commonest methods may be described.
A club is fcji-ined, and each member subscribes, smv, 1 ktvamiiioit. The
club meets perhaps once a month. If there are 100 members, the
sum collec ted at the first meeting is 100 kwamvii»i. Lots are then
drawn, and the lucky one takes 10 kwnminon and retires from the
club. At the second meeting 99 kipamnioti are collected, 10 kionvimnn
are taken as before, and the drawer retires. The number of persons
is thus reiiuced one at a time, and when it is decided to end the
transaction, the amount on hand is divided equally among those
remaining. The term w:t (without)-;fn (end) thus arises from the
lengthy time required to finish out the lottery. This machinery
could be used for charitable purposes by giving the first drawing, or
more, to the person or institution to be assisted. It could also be
u.-^ed for the pui-pose of loans to members of the club (where the
club was in the nature of a permanent friendly society), the
whole sum collected on each occasion being drawn for by lot and
loaned to the successful drawer at legal interest. In this respect
Japan has preceded us in the application of the idea on which our
modern co-operative loan associations, etc., ^re founded; for the
editor has translations of documeuts of these friendly clubs dating
as far back as 1629. (See an article in the Japan Ufa if for October
14, 1891. For a description of an even more complicated
arrangement in China, see Ball's Things Chinese, art. " Societies.")
Lotteries were several times forbidden by the Tokugawa
Government, (see Eudorfl's Tokugawa Gesetzsammlung, passim'^
though it is difficult to say whether the prohibition in-
PART III. CONTRACT I LEGAL PRECEDENTS. 323
money due from a lottery, no judgment can be given on lScc. IV.
the claim, and the instrument is confiscated. The ofiice of
Kaknhei ^ is forfeited, and in addition a fine of 10 kwammon,
is imposed on him ; because he took, even though by consent
of ail the promisors, an instrument purporting to he for a loan
payable by instalments hut really for a claim due out of a lot¬
tery, and did not confess on examination the real nature of the
transaction, lest the action should he rejected, and also because,
believing the 3 bu in arrears to he too little, he changed the
sum to 3 ryo, and vrrote himself as addressee ^ of the instru¬
ment, which originally had no address. Kinsuke's office ^ is
forfeited, and in addition a fine of 5 lavammon is imposed
on him ; because, though fully aware of the above wrong¬
doing of Kakuhei, he culpably undertook to act as Kakuhei's
representative and asserted that the instrument was given
for a genuine loan. A fine of 3 kwammon is imposed on
Eitoji; because he was culpable in executing the above
instrument of loan to Kakuhei, with his forest-land and
residence-land as security,^ while in reality the instrument
was given for the residue of money due on a lottery-arrange¬
ment, [nor is it any justification that] it was doue by
consent of all parties. The offices of Gengoro® and lyemon
are forfeited, and a fine of 3 kwammon imposed on each ;
because, tliough fully aware of the facts, they affixed their
seals as sureties to the instrument of loan. A fine of 3
kwammon each is imposed on Sennojo and Kohichi; because
eluded all mujin, charitable or not, or only gambling vnijin.
In the present case it is impossible to tell whether the action
was rejected because it was founded on a lottery-transaction, or
because the instrument had been fraudulently drawn up; so that no
light is thrown on the above difficulty. The conduct of Kakuhei
merely indicates that for some reason he thought the mujin illegal.
1. Headman (Aoya). 2. Na-ate. Such a document would be
addressed to the person who was the creditor. 3. Headman (.s7ioy«).
4. Teito. Headman (unnusii).
824
PRIVATE LAW IN OLD JAPAN :
■No. 93] though fully aware of the facts, they aflSxed their seals as
sureties to the instnimeut of loan.
The ahove judgment was rendered, in the presence of
Masuda Yeisuke, representative of Suzuki Shirokichi, and
of Hasegawa Juyemon, the retainer of Kondo, Governor of
Kyoto.1 An instrument of submission has been taken from
the parties, and the complaint and answer together sent for
the cancellation of the indorsing-seais."
2. Instrument of Submission.
"It has been decided in our suit that no judgment
shall be rendered, because the transaction was not in
fact a loan but a lottery-arrangement. It has been ordered
that the office of Kakubei be forfeited, and in addition
a fine of 10 Ku-ammon imposed on him; because he
took, even though by consent of aU the promisors, an iu-
sti'ument purporting to be for a loan payable by instalments
but really for a claim due out of a lottery, and did not con¬
fess, on examination, the real nature of the transaction, lest
the action should be rejected, and also because, believing
the 8 bit in arrears to be too little, he changed the sum
to 3 rijo, and wrote himself as addressee of the instrument
which originally had no address.
It has been ordered that the office of Rinsuke he-
forfeited, and in addition a fine of 5 hnammon be imposed
on him ; because, though fully aware of the above -wrong¬
doings of Kakubei, he culpably undertook to act as Kakubei's
representative, and asserted that the instrument was given
for a genuine loan.
It has been ordered that a fine of 8 kicanimon be
imposed on Eitoji; because he was culpable in executing
the above instrument of loan to Kakubei, with his
1. An honorary title, it must be remembered.
PAKT III. CONTRACT : LEGAL PRECEDENTS. 325
forest-land and residence-land as security, while in reality [Sec.
the instrument was given for the residue of money due
■on a lottery-arrangement; [nor was it any justification
that] it was done by consent of all parties.
It has been ordered that the offices of Gengoro and
lyemon he forfeited, and a fine of 8 kwammon
imposed on each ; because, though fully aware of the facts,
they affixed their seals as sureties to the instrument of loan.
It has been ordered that a fine of 8 lavammon each
be imposed on Sennojo and Kohichi; because, though fully
aware of the facts, they affixed their seals as sureties
to the instrument of loan.
It has also been ordered that the above fines must
be paid at the office of Ina, Under-Minister of the
Interior,^ within the next 8 days.
We acknowledge the communication of the above
■orders and will observe them strictly ; for any disobedience
we must expect severe punishment. We hereby hand up
our instrument of submission.
Kwansei, II (Dog,) 8, 4 (September 12, 1790).
Kakuhei, plaintiff, headman 2 of Okusa village,
Shinshu, in the income-fief of Kondo, Governor
of Kyoto;
Binsuke, older brother of Kakuhei, headman 2
of the same village;
Ritoji, defendant, son of Masaburo, farmer,
of Okusa village, deputy's district of Suzuki
Kohichi;
Sennojo, for himself, and also as representative
of Kohichi, farmer :
Gengoro, formerly Yasuke, headman® of the
same village;
lyemon, headman.®
To the Chamber of Decisions."
1. Finance Magistrate. 2. Shoya. 3. Nanushi, The co-exist-
326
PRIVATE LAW IN OLD JAPAN ;
[No. 94] Yeavhj-Instalments.
An Action against Ino Hikozayemon, retainer of
Matsudaira, Chief of Kadzusa,i defendant, by
Konosuke, of Okano village, Sakushu,® plaintiff,
before the Lord of Kai.®
Dated Bunkwa, XI (Dog), 11 (December, 1814).
1. Consultation.
" From Magaribuchi, Lord of Kai:
Action for yearly instalments, between
Ino Hikozayemon, retainer of Matsudaira, Chief
of Kadzusa Defendant:
and
Konosuke, of Okano village, Sakushu...P/rti«ii^.
In the above action, brought before mo, both parties
were summoned for the 4th of the 6th month before the
Chamber of Decisions, and joint-pleading^ was had. It
appeared that in the 2d (Ox) year of Bunkwa (1805) 6,360
enoe of nanushi and shoya in the same village is something that
threatens with dissolution all the ordinary hypotheses as to the
significance and history of these institutions. See Simmons, Notes
on Land Tenure, etc., pp. 100-110, 169. In this case it is
possible that the shoya held somewhat the same office as the
kumigashira elsewhere. There is some ground here, however, for
thinking that these nanushi and shoya presided separately, as head¬
men, over two distinct communities comprised in the district known
as Okusa village. But this does not make the problem much easier,
for the proximity of the two kinds of headmen it^eighboring villages
is something not hitherto reckoned with.
1. The usual title with which the names of provinces are
connected is kami, here translated "lord" ; but the title of kami of
the three provinces Eodzuke, Kadzusa, and Hitachi was hereditary
in the Imperial Family, and for the military nobles the term suke
(chief assistant) was substituted in those three cases (Gubbins, in
Trans. Asiat. Soc. Jap., XV, 138). 2. Mimasaka kuni. 3. Finance
Magistrate. 4. Taiketsu.
PART III. CONTRACT : LEGAL PRECEDENTS. 327
momme, i and in the 4th (Hare) year (1807) 2,000 monime [Sec. IV.
were borrowed, at an annual interest of 1 bu per 80 ryo.^
A small part of the principal was afterwards repaid; in
some years interest only was paid; in others neither
interest nor any part of the principal was paid; and in the
last Goat year (1811) the total amount due, principal and
interest, had reached 8,310 momme. The parties then agreed
to turn the contract into one of yearly instalments;
and, 10 momme having been struck out by consent of
both, the sum of 1,600 momme, principal and interest
together, was taken as the amount due on the loan of
the Hare year, and the sum of 6,700 momme, principal
and interest together, as the amount due on the loan of
the Ox year, and yearly instalments were stipulated for
at the rate of 646 momme per year for the 6,700 momme
claim, and 154 momme per year for the 1,600 momme
claim, the payments to continue for 18 years beginning
with the Goat year. On the instrument given for the
1,600 momme loan Eiunosuke, the headman, and Jisaburo
the company-chief, of Numata village, Bizen kuni, in
the fief of the chief of Kadzusa, and district of his retainer
Ino Hikozayemon, countersealed as sureties. But the instal¬
ments due on these loans were not paid for the ensuing
three years, from the Goat to the Cock year. These arrears,
2,400 momme, are the subject- of this suit.^ These facts
are admitted by both parties ; and they have declared
that they will obey without fail whatever judgment be
rendered.
Now the total amount of the two loans, as newly
capitalized, is 8,300 momme; this, divided into 18
instalments, gives^ 638 momme, 4 bu, 6 rin, to each.^
1. The original form of expression is 6 kwan (thousand) 360 me.
2. In 1 ryo there were 60 momme. Hence these two sums amounted
to not quite li(hryo. 8. Uttnye. 4. ^ momme remaining for each
year are here expressed in tenths {bu or fun) and hundredths {rin),
momme being equal to .4 momme -|- .06 momme approximately.
328
PRIVATE LAW IN OLD JAPAN :
No. 94] But, by the provisions of the instruments, [the yearly
instalments payable are 646 and 154 monime respectively, or
800 momme a year, which in 18 years amounts to 10,400
momme, aud thus] the total sum payable is 2,100 viomnie
in excess [of the loans as capitalized]. It was proper
enough to take the old principal and interest as a new
capital and turn the loan into an instalment ci>ntract; hut
to reckon interest again upon these is not just or fair. In
my opinion the order of payment should omit this amount
added for interest. If^ then, we divide the total new principal
8,300 momme, into 18 parts, the annual amount due would
he 638 momme, 4 bu, 6 rin, with 638 momme, 4 hu,
8 rin in the last (Goat) year of the series.^ Will it, then
he right to order that the instalment amount written in
the instruments is invalid, that the yearly instalment due
is to he 638 momme, 4 hu, 6 rin, that the arrears due for the
past 3 years, viz. 1,915 momme, 3 bu, 8 rin, are to he paid
within 30 days, and that the sums not yet due are to
he paid as provided for in the instrument ? In a money-
loan action against Oknho Gemha by Genyemon, renter of
the shop of Jinyemon, in Block No. 2, Kobiki ward, [Yedo],
it was held at a session of the Full Cliamher, after delibera¬
tion, that where principal and interest in arrear are
capitalized in a new instalment-contract, interest on the
amount so capitalized cannot he allowed, and that instal¬
ments in arrear must he ordered for payment within 30
days. 2
I beg to consult you as to the above.
Year of the Dog,
11th month." *
1. Because the cycle was 12 years, and, as the payments
began in the Goat year and lasted for 13 years, the final year
would again be the Goat year. 2. This decision is not given
here.
PAKT III. CONTRACT : LEGAL PRECEDENTS.
329
2. Decision of tlie Chamber. [Sm. IT.
" An action was brought by Katsuzayemon, representa¬
tive of Konosuke, against Iiio Hikozayemon, retainer of
Matsudaira, Chief of Kadzusa, for arrears of instalment
pa3-ments, aggregating 2,400 mornme, due to Konosuke,
of Okano village, Oniwa kori, Sakushu, in the fief held
in trust by ^ Matsudaira, Lord of Eehigo. Trial was
had and the instrument of indebtedness was found to
be correct in form. But it contains a provision that
the interest [in arrears] should be capitalized, and thus
interest be collected upon interest. Interest upon interest
is not proper,2 and therefore, though the provision was
made with the debtor's consent, the sum thus provided
for must be struck out. It is ordered, therefore, that
1,915 vioiiime, 8 bu, 8 rhi, [the lawful amouut in arrears],
be paid by the defendant to the plaintilf within 30 days.
A memorandum of the final arrangements is to be handed
down to the parties [for signing], and this judgment
communicated to Sawahara Tatsusabnro, retainer of the
Chief of Kadzusa.
Note, that as the instruments provide that the
instalments not yet due should be paid as stated in the
instruments, [the amounts thus stated should be regarded
as] 638 mornme^ 4 bu, 6 rin, j^early, with 688 rnomme, 4 bu,
8 rin, in the last (Goat) year of the series ; and.
1. 0-azukari tlio. See p. 22, note 4. 2. This reason alone
would not prevent the Court from allowing interest during the
13 years on the original capital; yet such was the effect of the
decision. It rests probably on the broader ground of a dis-
iitclination to allow interest in instalment-contracts. 3. Oshikiri-
kakitsuke. It has been already said that oshikiri seems an equivalent
term for uke-shomon, " instrument of submission," given at the end
•of a trial whe*, as here, the defendant was a samurai. The
" handing down," therefore, indicates that here the draft was
given for signature.
830
PRIVATE LAW IN OLD JAPAN :
Ho. 94] furthermoi-e, the clause of the instruments providing that
on default in a single instalment the whole shall fall due
at once is invalid. Let them he returned to the plaintiff."
[No 95] Yearhj-InstalmentH.
An Action against Kimura Choan, defendant, by
Jimpachi, of Kuruma ward, Shiba, [Yedo],.
plaintiff.
Dated Tempo, XIII (Tiger), 9, 21 (October 24, 1842).
" To Torii, Lord of Kai,i
from Toda Kaichiro : ^
I beg to address you a note with reference to the
action against Kimura Choan by Jimpachi. Among the
instruments put in by the plaintiff is one which agrees to
pay instalments, not of monej', but of rice, making yearly
deliveries of 20 bales. It seems to be a proper transaction
for an instalment contract, but as yet no judgment to this
effect has been rendered. Shall I therefore [decide the
case in that wa)', and] order that the plaintiff be given
by a retainer of Kimura Choan an instrument in the form
of that enclosed ? If you have no objection, I will so
dispose of the case and will make out and send up [to the
Chamber] a formal instrument 3 of this tenor.
I beg to consult you as above, sending herewith a
parcel of the instruments in the case and the draft [above'
referred to].
9th month, 21st da}-.
' Draft. •
Total amount due from Kimura Choan,
Gold, 271 rtjo, 1 hu, silver, 9 viomme.
Payable witiiin 80 days.
The above amount is to he paid to Jimpachi,.
1. lown Magistrate. 2. A. clerk. 3. Honshi.
PAKT III. CONTRACT : LEGAL PRECEDENTS.
331
renter of the shop of Seisuke, of Kuruma ward, [Sec. IV»
Shiba, within the above period.
Tempo, XIII (Tiger) 9, 21 (October 24, 1842).
Chamber of Decisions.^ ' "
Euhric.^ " The instrument should be made out in the
form you enclose and sent to the Chamber, as directed
by the alternate Magistrate; ^ and another instrument
should he made out in the following form and sent [with
the appended paragraph] to the Chamber afterwards.^
' Instrument of Acknowledgment.
Total amount due and unpaid, principal and interest,
Gold, 213 ryo, 1 bu, silver, 7 momme 5 bic.
Of this
Gold, 71 ryo, silver, 7 momme, 5 bu, arrears
from 10th month, Serpent year, to 1st
month. Cock year ; ®
Gold, 85 ryo, arrears of rice for 4 years from
the Serpent to the Ape year, (the value of
28 kuku, at 1 o-yo per 8 to).
Total, gold, 106 ryo, silver, 7 momme, 5 bu :
to be paid now.®
Remainder,
Gold, 107 ryo, 1 bu.
The above have been determined to be the sums
in arrear, and payment has been ordered.
We shall strictly obey this order, and pay
the remainder of 107 ryo, 1 bu, in instalments
according to our contract already made.
1. This is apparently a draft-judgment, which the Chamber
is to confirm or not, when the case comes to it for final decision.
2. By the Town Magistrate. 3. 2'oniari-yaku (resting, not presiding).
4. That is, perhaps, in case the judgment is adopted by the
Chamber. 5. Five years. 6. Within 30 days.
PRIVATE LAW IN OLD JAPAN l
Tempo, XIII (Tiger), 9, 21.
Inaba Kohei,
Ishizuka Genshin,
retainers of Kimura Choan.
To Jimpachi, Esq.'
Of the whole sum [ originally borrowed ], 308
ri^o 1 bu, and 9 momme, 37 ryo have already
been paid by degrees, and the present judgment
is for the remaining 271 ryu, 1 lu, and 9
momme. The amount for which the period of
payment has not yet arrived ^ is to be repaid
according to the terms of the [original]
instrument.
Tempo, XIII (Tiger), 9, 21.
Chamber of Decisions.
1. That is, 271 ryo minus the above 213 ryo, or about 58 ryo.
2. The case seems to be this. A sum of about 308 ryo was
originally borrowed. Of this 37 ryo were paid, leaving 271 ryo due.
The amount in arrears at a certain period was 213 ryo; this was
turned into an instalment-contract by agreement of the parties.
Out of this 213 ryo, 106 ryo were now in arrears. Hence judgment
is given for the whole 271 ryo; 106 ryo in arrears are to be paid
down, the remaining 107 ryo of the instalment contract are to be
paid as they fall due, and the 58 ryo remaining on the original loan
are also to be paid when due. The only inconsistency is the
draft-instrument above, which requires the whole to be paid in 30
days. But its provisions would be over-ridden by the terms of the
last paragraph of the second document. This last document is
apparently a draft of an order or judgment to be signed by the
Chamber ; the 6rst part being the form prescribed for the instrument
of acknowledgment, and the second part the fuller directions of the
Court on the subject.
332
No. 95]
SECTION V JOINT BORROWING.i
[No. 96] A Loan incurredjointly hy the Betainers
of a noble Family; the Betainers aftenvards
punished and House-Extinction ordered;^
the Sons and younger Brothers neivly tahen
into Service, Stipends given, and Families
established ; in such a case hotv shall a Suit
by the Creditors against the Sons and younger
Brothers be disposed off
An Inquiry by Olsamura Senzo, retainer of Naito,
Lord of Yainato.
Dated Tempo, XI (Rat), 2 (March, 1840).
1. Inquinj by the retainer of a lord.
" The complaint of Jnjiro, representative of Heikichi,
now ill, renter of the house of Ichiyemon, house-manager, of
Sendagaya ward, demanding of Yoshida Senzahuro the
payment of money borrowed on joint-seals hy Yoshida
Ichisahuro and Yoshida Gakutaro, retainers of the Lord of
Yamato, was handed down [to me for investigation] on
the 23rd day, 12th month, year of the Boar (1889).
Gakutaro had died in the previous year, and Ichitaro, his
successor, a worthless fellow, absconded last year (Boar),
and an order of house-extinction was made [hy the lord].
•
1. Reii-shaku. 2. Ka-zetsu ; the ending of the family line and
name.
334
PRIVATE LAW IN OLD JAPAN :
No. 96] Yoshida famyy had been for many generations
faithful servants, the youngest brother of Gakutaro,
Senzaburo, was directed to reestablish the Yoshida family,
as the successor of Hikosaburo, Gakutaro's father, and of
his grandfather. Senzaburo was thus taken newly into
service, and knew nothing of the loan to Gakutaro and
Ichisaburo, Senzaburo is the head of a new family, not the
successor of Gakutaro and Ichisaburo, and hence, it seems to
me, is not liable for the loan to the latter. Is it right
that he should be ordered to make a private settlement ?
I beg to consult you as above.
2nd month, 7th day,
Okamura Senzo,
Retainer of Naito, Lord of Y'^amato."
2. Comultation by the Toicn MayistrateA
'' From Tsutsui, Lord of Kii.
heildchi, renter of the house of Ichiyemon, in
Sendagaya ward, [Yedo] Plaintiff.
Yoshkla Senzaburo, retainer of Naito, Lord of
Yamato Pefhidant.
Tlie above action was brought in my Court; I
handed down the complaint, and trial is now pend¬
ing. It appears that certain money had been borrowed
on joint-seals by Yoshida Gakutaro and Yoshida Ichisa¬
buro, Senzaburo's elder brothers; that Gakutaro died
some time ago and Ichisaburo, his successor, absconded in
the Dog year, 12th month (1839),^ and that on report of
the facts to the lord an order of house-extinction was made.
But as the Yoshida family had done fiffthful service for
many generations, the name of the family was conferred on
Senzaburo, Ichisaburo's younger brother, and he was
1. The Town Magistrate is laying before the Chamber (or at
any rate the Three Magistrates) the case which the retainer has just
sent to him. 2. The previous document made it the Boar year
1840).
PABT m.—contract; legal precedents. 835
newly taken into service. The plaintiff, believing Senzaburo [Sec. V.
to be the successor of Ichisaburo, brought action against
him. Now it would seem on these facts that Senzaburo
has been newly taken into service and is tbe founder of a
new Yoshida famil}'. Moreover, he knew nothing at all of
the loan incurred by his brothers. Besides, as Ichisaburo
was largely in debt, his creditors would all bring suit against
Senzaburo, if in the present action the latter is held liable,
.and he would be unable to pay them and would be obliged
to see bis family extinguished. On the other hand, Sen¬
zaburo is in fact the younger brother of Ichisaburo, and
maintains the old family shrine of the Yoshidas. These are
arguments in favor of regarding him as Ichisaburo's
successor. How should the action be decided ? There are
no precedents to go by. There are, however, cases in
which it has been held that whore a temple-incumbent has
forfeited his beueiice, and the benefice has been taken in
charge by the cliief temple of the sect and then granted
out to a new incumbent, the latter is not liable for the
debts of his predecessor. Shall we follow this principle and
hold that Seijzabui-o is not liable for the loan ? I am unable
to come to a decision and accordingly I beg to consult you.
Year of the Rat,
3rd month."
3. Appended Fiephj hy the other Mayiatrutes.
"According to your letter we understand that the
Yoshida name was given to Senzaburo, the brother of
Ichisaburo, and that he was newly taken into service,
the order being issued shortly after the flight of Ichitaro ;
and that thus the plaintiff supposed that Senzaburo was
the successor of Ichisaburo. But the true view of the
case is that Senzaburo is a new retainer, and tbe founder
of a new family. The entry into service and the possession
of the YoshicfJi name are due to the favor of his lord.
If he is now ordered to pay this loan, he would become
336
PRIVATB LAW IN OLD JAPAN :
96] quite unable to perform his feudal duties and continue
to bear the name of the Yosbida family, because the
various creditors of Ichisaburo would be upon him.
Thus the favor of his lord would have been bestowed
to no purpose. If the house-extinction was in fact effected
and Ichisaburo really absconded, would it not be unjust to
order [Senzaburo] to pay the loan ? The plaintiff's mistaken
belief that Senzaburo was Ichisaburo's successor is his
own fault. In the last Rat year, the decision of Soga,
Lord of Tango, now Finance Magistrate, in reply to a
consultation by Ichikawa, Steward of Imperial Waters,
was as follows : ' the former rule was that an action in
which the lender demands from one who succeeds to the
family name the payment of a loan made to one who
has now absconded should not be taken up and sent
[to the Chamber] for indorsing-seal. But this rule is not
properly applicable to all similar actions. It is true that
the flight in most cases is due to a burden of debt,
and if " undertakers of the estate" ^ are made liable for
all the loans of the fugitive, no one would take up the inherit¬
ance ; so that the general rule should be as above. But
where an action is brought in which the officers of the
plaintiff's village have made inquiries of the officers of
the defendant's village and the reply has been made that
the defeudant is in fact the regular successor ^ of the
fugitive, the action should be taken up and the defendant
held liable to pay the loan.' 3 In the present case judgment
should not be given [for the plaintiff], for the plaintiff has
not succeeded in producing any such information. This
seems the proper disposition of the case. •
1. Ato-kabn. The distinction is between those who step in and
take up a vacant inheritance for the honor of the family-name or to
pi'event land from going to waste, and those who are the regular
successors [sozoku-nin) by relationship. The former ease usually
occurs where there 'are no sons or brothers left. 2. Sozokn-nin.
.9. The passage is from No. 18, p. 28, ayite.
PART III. CONTRACT : LEGAL PRECEDENTS.
837
Year of the Rat, -geg_ y,
4th month.
Temple Magistrates,
Toyuma, Warden of the Palace Gates, i
Finance Magistrates. "
[No. 97] Disposition of an Action hy the Wife or
Son of a Creditor on a Jomt-instrument
addressed to that Creditor.^
A Correspondence between the Clerks of certain
Magistrates.
Dated Ansei, VI, 5 (June, 1859). ,
1. Appended Note by a Clerk A
" When the answer of the defendants was handed up
by me [to the Magistrate], on the 24th of the 5th month,
Ansei, VI, Dog (June 24, 1859), it was ordered that the
joint-pleading should be postponed for a time.
2. Letter from the Clerkfi of one Town Magistrate ^ to
those of the other.
" From Akiyama Kiuzo,
Takahashi Kichiyemon,
Nakashima Saburoyemon,
to Yamazaki Snkezayemon,
Nakainura Jirohachi,
Nakata Gozayemon.
We have read your letter. We understand that Kono,
the widow of Hironoichi, deceased, renter of the house of
Zenzo, in Block No. 1, Fukui ward, Asakusa [district, Yedo],
1. The other Town Magistrate. 2. An instrument of debt is in
form addressed to the creditor. 3. A note indicating that the trial
was delayed while the following discussion went on upon the point
of law. 4. Probably.
Vol. xr. Slip. rt.
888
PRIVATE LAW IN OLD JAPAN :
Ko. 97] has brought suit on an instrument jointly sealed by the
defendants and addressed to Hironoichi; and you inquired
of us recently as to the disposition of this action. The
question arises whether, as stated in the report handed up
by Okada, master-blindman of the first degree,^ when the
wife or son of a deceased [blindman] brought suit on an
instrument addressed to 2 the deceased, and the chief of the
blindman's guild 3 was inquired of as to the necessity for
appending his seal in such a case, the action which this
widow brings on an instrument addressed to the deceased
Hironoichi must pass through the hands of the chief of the
guild and the complaint bear his oflScial seal.^ We
inquired of our superior 5 accordingly, and he answered as
follows (and this is why we asked yon to consider the
matter further): That where a money-loan action is
brought by the wife or son or member of the household of the
deceased creditor, the custom of requiring the oificial seal of
the chief of the guild is not merely a practice prescribed by
the chiefs own direction, but has been sanctioned by the
Magistrate's Court. But you thought that the report of
which we sent you a copy was to be regarded merely as
a statement made by the guild-chief for the benefit of the
Court on that particular occasion, aud not as a regulation
for the practice of the Magistrate's Court. You therefore
1. Kengiyo. See p. 15, note 1, ante. 2. See p. 62, note 4, ante.
3. Soroku. 4. The guild-chief would demand a fee for affixing
the seal. The existence of such a prescriptive privilege would
be by no means a strange feature of Japanese life. In harmony
with the principle of settling all disputes, so far as possible,
privately and within the family, were certain spjpial privileges of en¬
forcing justice privately, particularly where anything like a caste or
guild was concerned. The most extended was that of Danzayemon,
chief of the Yeta (outcasts, the workers in skins), who had the power
of inflicting even the death penalty on members of that caste (see
Simmons, Notes on Land Tenure, p. 146). For the guild of the
blind there were numbers of peculiar privileges, and this claim of
the chief to affix his seal does not seem at all unnatural. 5. Kashira,
the magistrate.
PART III. CONTRACT : LEGAL PRECEDENTS. 839
proposed to your superior that, although at the trial [the [Sec. V.
claim would still be treated as the deceased creditor's in the
sense that, for instance,] the question of whether there were
any illegalities connected with the loau should he examined,
the chief of the guild ought not to manage the
action of the widow or child, according to
the report above-mentioned, hut the action should
he taken up and judged without requring the official seal
of the chief of the guild, provided the instrument does not
contain the phrase ' or to his apprentices' i or ' or to his
fellow-members ' ^ inserted [after the creditor's name].
After making this proposal to your superior you
inquired of us. It is true, as you say, that the report
handed up by Okada, master-blindman of the first degree,
is not a regulation of the Magistrate's Court, but was
made and presented in connection with the case on which
you had asked for instructions,3 and the custom stated in the
letter was followed in subsequent practice; so that it cannot
be treated as a mere rule made by the guild-chief himself.
Moreover there is a decision to the same effect, on an
inquiry by Takanawa, master-blindman of the first degree, in
an action where the successor of a deceased creditor brought
action on an instrument addressed to the deceased. We
called these facts to your attention, and askedyou whether you
did not think it worth while to reconsider your opinion,
and requested you, if you still regarded our practice hither¬
to as unjust and improper, to inform us of the method
followed in [your] Court and send us a draft of the order
proper to be made to the guild-chief. We made these
replies and requests without consulting our superior. Now
in your Court there are several records [bearing on the
subject],—among others the official copy, in red ink, of the
1. Deshi-uchIP 2. Nakama-nchi. 3. The clerks had inquired,
and the Magistrate had then ordered the opinion of Okada to be
taken.
840
PRIVATE LAW IN OLD JAPAN :
No. 97] report handed up by Talianawa, master blindman of the-
first degree, Bunkwa, XIII (Rat), 2, 11 (March 9, 1816),
which reads as follows: ' Nagate, Lord of Bigo,i
assented on a consultation to the proposition that a suit
by the wife of a master-blindmam of the first degree
or by any one under the control^ of the chief of the blind-
men's guild should not he taken up or disposed of without
the official seal of the guild-chief.' There is also a record,
for the 18th day, 3rd month, same year (April 10, 1816),
of the fact that Shibasaki, master-blindman of the first
degree, now chief of the guild, presented a petition asking
an order that the complaint in a suit should bear the official
seal of the guild-chief even where the suitor was an
outsider,® provided he was a relative of the deceased, aud that
the petition was dismissed by the Magistrates, on the
ground that it was not customary for the official seal of the
guild-chief to be affixed on a complaint entered in the name
of an outsider. Does it not, then, at least seem proper that
the guild-chief's official seal should be affixed to the complaint
in an action by the wife or son of the deceased creditor ?
You then, after examining the order made to the guild-chief
[in that case], inquired farther of your superior, and he
directed further consultation with ns. You then proposed,
as the method of disposing of such cases, tliat where a
money-loan instruuieut executed before the orders * of the
Temple Magistrate® had not been renewed, an action by the
wife or son of the deceased creditor should be taken up and
adjudged like an ordinary action ;® and }'ou sent with 3-our
letter a copy of the orders to the guild-chief as recorded in
answer to the inquiries of Takanawa and Shibasaki, master-
1. Town Magistrate. 2. Shihai. .S. Shiroto ; one not a
inrmber of the guild. 4. Monhi-wulashi. 5. The Lord of Bigo
was Town Magistrate, but the writer perhaps is referring to him.
C. That is, probably, where the original loan was made before the
above order (Bunhwa, XIII, 1816) and had not been renewed, the seal
of the guild-chief would not be necessary ; otherwise it would.
PART III, CONTRACT : LEGAL PRECEDENTS. 341
blindmen of the first degree. The red-ink copy of [Sec. V.
the document handed up hy Takanawa, master-hlindman,
we noticed particularly, because there is a record to the
same effect where an inquiry was made hy the same
•officials during the magistracy of Tsutsui, Lord of Hizen.
Thus the opinions of our two superiors are now
agreed, after these consultations, as to the disposition of
actions hy the wife or child of a deceased creditor, except
that we have not yet settled whether the guild-chief's
official seal is necessary where suit is brought before the
Temple Magistrate hy persons living within the premises of
military gentry .1 We have therefore summoned the guild-
chief, and he has answered that in all actions of the present
sort, whether the persons live on the premises of military
gentry or of townspeople, his official seal is customarily
used.
The procedure as above agreed on should be com¬
municated to the Temple Magistrate also, in order to avoid
contradictory treatment of the same sort of action. We have
communicated the above to our superior and he has directed
us to consult you. Hence we make inquiry once more,
enclosing the answers handed up hy the guild-chiefs; the
document sent to us hy you, being only a copy, we have
retained.
5th month, 19th day."
2. Enclosures.
(a.) " Answer in writing to the Court.
From the chief of the hlindmen's guild,
Kosugi, master-hlindman of the first degree :
1. The general rule was that the Temple Magistrate took cogniz¬
ance of cases coming from ordinary private fiefs. If the deceased
blindman had lijed within a nobleman's yashiki, it might be thought
that the chief of the guild could not interfere in the management of
■the suit, as the lord himself might be interested.
542
PEIVATE LAW IN OLD JAPAN :
97] I reply as follows :
The question has been asked me whether the wife or
son of a deceased master-blindman of the first or second
degree, living on the premises of a family of the military
gentry, is under the control of the guild-chief or not; and
whether, when the wife or son brings suit on a loan of
the deceased master-blindman, the official seal of the
guild-chief is to he affixed to the complaint or not.
The children of a deceased master-blindman of the
first or second degree, living within the premises of a
military family or a town family, are under the control of
the guild-chief while they are still in hopes of being taken
into military service [or the like] and their future is
not yet settled; and when such persons bring suit to
recover loans, etc., the complaint must hear the official
seal of the guild-chief.
When an inquiry was made on the same subject.
Tempo, X (Boar), 5, 3 (June 18, 1839), when Okusa,
Lord of Awa, was in office,'^ the enclosed answer was
handed up, and its receipt was acknowledged by Isogaj
Tetsunosuke,® Since that time I have followed the practice
therein stated; recently, [for instance], when the widow
of Mikami, master-blindman of the first degree, asked my
official seal for an action for money due on a loan, I
inspected the document and affixed my seal, that the
action might be brought before the Magistrate. It
has also been inquired what the procedure is where,
in such a suit for money due on a loan, the deceased
creditor lived without the Eight Provinces. ^ If one
living without the Eight Provinces requesfhd my official seal
and indorsement for an action on a money loan, etc., I
should after inspection affix my official seal.
1. This must be supplied in order to make the answer apply also-
to the townspeople, mentioned in the previous clause. 2. As Town
Magistrate. 3. A clerk. 4. Kwan-liasshu; the eight provinces east
of the Hakone mountains, surrounding Yedo, and the chief portion
of the immediate dominions of the Shogunate family.
PART UI. CONTRACT : LEGAL PRECEDENTS.
343
I enclose also a document containing an answer made [Sec. V.
by Takeyama, master-blindman of the first degree, chief of
the guild, when directed to give his opinion hy Suganuma,
Lord of Shimotsuke, Finance Magistrate, Kwansei, XIII
(Cock), 3, 5.
The above is in my opinion the procedure in such
cases. I beg to make this replj'.
Year of the Goat,
5th month, 15th day.
Kosugi, master-blindman of the first degree, chief
of the blindmen's guild."
[b) " Order made to Takeyama, master-blindman of the
first degree, by Suganuma, Lord of Shimotsuke,
Finance Magistrate.
Case of Tachu, member of the household of Sen,
widow of Genan, in Fukagawa post-town, Naka-
sendo,i deputy's district of Noguchi Tatsunosuke :
It was reported by the Deputy that the person above
named has requested his approval of a petition that the
Tsuchimikado House ^ deliver to him a divination-license,
as the petitioner follows the occupation of fortune-telling.®
A few days ago, therefore, I made inquiry of the chief of
the blindmen's guild. Information was received [in reply]
that the said Tachu had heen disinherited hy Toyonaga,
master-blindman of the first degree, but still retains his
membership^ as a master-blindman. I therefore instructed
Tatsunosuke to order him to prefer his request to the chief
of the guild.® I now inform you of the above.
1. The line of provinces running through the central part of
northern Japan. 2. A firm or house probably having some
special privileges in connection with this occupation. 3. This
was one of the special occupations of the blind. 4. Za (lit., seat).
5. This may me^n a request for the official seal or a request for
the license. It would hardly have been cited unless the former
had been the meaning.
844
PRIVATE LAW IN OLD JAPAN :
No. 97] This order was handed down to Kitamura, master-
hlindman of the first degree, representative of the chief of
the guild."
c. " Answer of Ishizuka, master-blindman of the first
degree, to an inquiry of Okusa, Lord of Awa, Town
Magistrate of the North.
Report.
You have inquired in regard to the necessity of the
official seal of the chief of the blindmen's guild in actions
where master-blindmen of the first and second degree, as
as well as blindmen having no rank, have transferred their
loans to children living in a separate family and the latter
bring action for arrears due thereon.
During the life of the creditor, the official seal is affixed
after examination [of the case], even though an actual
transfer has been made. As to instruments of loan addressed
to the wife [of the blindman], even in this case the official
seal is to be affixed.^ "Where the children bring action after
the death of the creditor, the chief of the guild affixes the
seal, after examination of the subject of the action, if the
plaintiffs have no instrument of transfer; but if they have
he does not concern himself with the action.
I reply as above to your inquir}'.
Year of the Boar,
5th month, 7th day.
Ishizuka, master-blindman of the first degree,
chief of the blindman's guild.
The letter is sent by the hand of Inawo Kimata, temple-
official, and its receipt is acknovjjedged by Isogai
Tetsugoro."
1. Even during the husband's lifetime, we may suppose.
SECTION VI.—ARREARS^ OF JUDGMENT
INSTALMENTS.
[No. 98] Action for Arrears.
A Reply to an Inquiry by an official of tlie fief
held in charge ^ hy Toda, Superintendent of
Palace Maidservants.
Dated Meiwa, IX (1772j.
" The matter of the Inquiry as to an action for
arrears of instalments ^ due from Kichihei and 3
others, of Ichihara village, Mino kuni, defendants,
to Chuzayemon, of Makuwa village, in the same
kuni, plaintiff.
If the payment of the instalment as ordered is quite
impossible, execution in bankruptcy should of course he
ordered; hut though as long a delay as possible should he
allowed for obtaining the amount due, some amount at
least, however small, should he paid in. If even this
cannot he paid, then execution in bankruptcy should issue,
ordering them to deliver up all their rice-land, upland,
houses, residence-land, and family-belongings, even houses
and residence-land in other fiefs, and even if only a small
1. Todokori-kin. There is nothing to justify the compilers
in making a special section for this subject. See Appendix
to this volume. The term is constantly applied throughout all the
cases to any sun* in arrears. It is here used specially of instalments
■due by order of Court. 2. 0-azukari-sho. See p. 22, note 4.
■3. Kiri-kin ; that is, instalments ordered hy the Court.
346
PRIVATE LAW IN OLD JAPAN :
No. 98] sum is realized, the plaintiff should be ordered to
acknowledge satisfaction [of the claim]. An iustrument of
submission to this judgment executed by both sides should
of course be filed in your ofiice. An exact inventory of
the rice-land, uplaud, bouses, residence-land and family-
belongings, should afterwards be drawn up in the presence
of both parties aud the village officials, and counter-
sealed by them. Altbongb the office of Cbuyemon, headman,
is not now forfeited, be cannot escape such a penalty unlesa
some small amount is paid [on account]. It is better to
tell bim this and get bim to psiy some portion of the
instalments [than to order bim into bankruptcy].
The plaintiff should be informed that, when Isoji again
acquires means, payment [of the amount still due] may be
demanded of bim,i and be should be ordered to insert this
in the above instrument [of submission] and append bis
seal thereto."
[No. 99] Where Instalment-Judgments have been
rendered against Residents of distant Pro¬
vinces, Parties' Relatives in Yedo mag not
appear as their Representatives.
Dated Anyei, III (Horse), 11, 2 (December 4, 1774).^
" Action on a money-loan against Arima Daino-
sbin by Jiroyemon and one other, representatives
of Denjiro undone other, of Yoda village, Ecbizen
kuni. •
In the above action a judgment for payment by
instalments was rendered on the 4tb of last month, and
1. This makes it necessary to suppose that the " satisfaction "■
before spoken of means " satisfaction of the claim so far as paid,"—
provided the Isoji here spoken of is the person in mind in the
previous passages.
PART III. CONTRACT : LEGAL PRECEDENTS.
347
both parties were to appear at Court monthly.i But their [Sec. VI»
homes are distant from Yedo, and the journey here and
back cannot be accomplished under 80 days. The plaintiffs
have therefore asked permission to appoint as their repre¬
sentative Heihachi, a relative, renter of the house of
Buuyemon, in Yazayemon ward, Kyobashi [district Yedo].
If this request is granted, numberless others of the same
sort will follow. The plaintiffs may use their servants,
etc., living in Yedo as their representatives; but the
request cannot be granted as to Heihachi." 2
[No. 100] Instalment-Judgments in Private
Fiefs.^
A Reply to an Inquiry made of the Lord of Kai.^
Dated Temmei, VllI (Ape), 12 (Jauuary, 1789).
1. Inquiry.
" When a money action is brought which [concerns
parties] in our own fief only, may we after trial give judg¬
ment for payment by instalments? Or may judgment for
payment by instalments be given only by the Government
[Magistrates]? Furthermore, what should be the amounts
of the instalments ?
I beg to make private inquiry.
Obu Geugo,
Retainer of Honda, Lord of Bugo.
12th month."
1. The defendant to pay, the plaintiff to receive the monthly
instalment. 2. The feeling probably was, partly, that a member of
the household or near relative would be more acquainted with the
party's affairs and more easily fixed with responsibility for him,
aud, partly, that the free appointment of agents would tend to
champerty, the ^rsffic in claims. 3. Shi-ryo; fiefs outside of the
Shogunate family's. 4. Magaribuchi, Lord of Kai, Finance Magis¬
trate.
348
PRIVATE LAW IN OLD JAPAN I
100] 2. Appended Bephj.
" When a money action is brought [which concerns
parties] in a single fiefi only, both parties should be
examined, the instrument of debt inspected, and judgment
rendered. First, an order of payment within 30 days
should be made. If in that time the defendant proves
unable to pay, an order for instalment-payment should
be made. Where interest has been agreed on at a rate
of more than 1 bit per 20 ryu, it must be reduced to
that figure. In calculating, the intercalary months must
be omitted. Days for payment of the monthly or yearly
instalments should be fixed, and on those days the parties
must be present in Court to deliver and receive the money.
If the defendant fails to bring the whole amount fixed, he
must be ordered positively to bring it on the next appointed
day [in addition to the sum then due]; if the deficiency
is only a slight one, it may be made up gradually on succeed¬
ing days. The above proceedings may be employed by you
as well as by Government Magistrates. The amount of the
instalments differs according to the total sum, principal
and interest, in an-ear. If you will notify me of the sum
in any particular case before you, I will inform you
without delay of the proper figures.
Year of the Ape,
12th month."
[No. 101] Non-Paiivwnt of Instalments on a
Debt of 200,000 Byo. •
A Decision by the Chamber of Decisions, Full
Session.
Dated Kwansei, IV (Rat), 8, 2 (September
17, 1792).
1. Ichi-ryo.
PART III, — CONTRACT : LEGAL PRECEDENTS. 349
"Action by Magoichi, of Nagabori ward, Fukagawa [gee. VI,
[district, Yedo,] for money due from Matsudaira, Lord of
Mutsu.
The rule has been in past years to order 80 njo [per
mouth] as the instalmeut, where the amount due was in
all about 10,000 ryo. Taking the same proportion, the
proper instalment for the sum uow in question would be a
little more thau 1520 ryo [per month]. But as the sum
was a specially large one, a Full Session was held to
consider the case, and it was decided to order that the
[monthly] instalment for sums of about 200,000 ryo should
be 1,000 ryo.
In the previous case of Yataro, of Hashido town,
Senju, Bushu,^ against Sutake, Governor of Kyoto, a
[monthly] instalment of 510 ryo was ordered for a total
claim of 62,849 ryo, the rate being 80 ryo on 10,000. But
as the amount due in this case is especially large, the
order to the Lord of Mutsu has beeu decided upon as
above."
[No. 102] Actions on Money Loans.
A Proposal of the Chamber of Decisions.
Approved Buukwa, III (Tiger), 6 (July, 1806).
1. Proyosul of Law hy the Chamber of Decisions.
"Since the order of the last Serpent year, 9th month,
that mouey actions were to be amicably settled,^ the parties
have come to a private settlement in all cases of money
due and unpaid, and have reported these settlements to the
Three Magistrates. There have beeu before the Town
Magistrate numerous claims against the military gentry
during the past 2 or 3 years. But in accordance with our
1. Musashi kmii. 2. No. 13, ante, dated 1797.
350
PRIVATE LAW IN OLD JAPAN :
No. 102J note appended to the Instructions of Matsudaira, Lord of
Idzu, in the Serpent year, 8th month, we urged com¬
promise upon both parties, setting forth the considerations
on each side; so that there was not a single case which
came to final judgment and an order lor instalment-
payment.i
liiihric. Since the Instructions of the Serpent year,
8th month, the parties in every suit seem to have
thought that, if they did not settle privately, some
severe penalty would be inflicted, and they
have all settled their affairs by private convention.
Thus there has been no final judgment rendered
or penalty imposed, 2 as stated above, for about
10 years. 3 But if now judgment be rendered
and instalment-payment ordered in 8 or 4 cases
without inflicting the usual penalty,^ the
consequence would be that numberless actions of
the same sort would be brought, and the people's
integrity, uprightness, and sense of duty would
deteriorate.®
But the actions brought lately are numerous, and in
many cases, unless a regular judgment is rendered, there
would never be any settlement. For this reason
we have thought that it would be best to give regular
judgments according to the legal precedents in cases that
positively cannot be settled privately, and after ordering
a private settlement within 30 days, then, [in case no
1. This order of 1797 relegated to private settlement
claims arising before a certain date of that year. It did not
apply to actions subsequently brought. The language here used
might seem to imply the contrary; but the explanation is that
the people followed the spirit of the order even in subsequent
disputes, and after bringing suit, consented to compromise. 2. The
penalty, that is, for not bringing in the instalment ordered. 3. See
Note 2. 4. This must mean the penalty for bringing suit on a claim
covered by the above order. 5. See p. 114, note 2.
PART III. CONTRACT t LEGAL PRECEDENTS. 351
settlement is made], to order payment by instalments of [Sec. VI.
the amount remaining due. But there are certain fixed
rules, enacted some time ago, [determining the amount of
the instalment to be ordered in each case]. Now, though
these rules should [usually] be followed, the amounts of
the instalment have in many cases heen reduced, by special
agreement of the Magistrates, where it appeared that the
defendant was actually unable to raise the fixed amount.
Thus the rules have gradually come to be applied with
some laxity; and, if now the debtors who fail to pay the
full amounts as fixed by these rules are punished as the
law prescribes, the number of persons thus punished would
be very large, because the cases in which those amounts
would he excessive are very numerous. Our conclusion
is, therefore, that the best plan is to change the rules
prescribing the instalment-amounts. As they are not a
part of the ' Collection of Laws,' i it will be quite allowable
to change them.^ Moreover, [there need be no objection on
the score of introducing an innovation unfamiliar to the
people,] for the litigants are well acquainted with the
instalment amounts [of lower figures which we have been
ordering in most cases]. We propose that the yearly
amounts set forth in the appended document be substituted
for those of the old law. Henceforth, therefore,
those who twice or thrice bring deficient amounts
and thus violate directly the instructions of the Magi¬
strates that the breach of private conventions and
the disregard of upright dealing are no profit to any one,
shall be punished as follows : For townspeople and
I. Osodamegahi; a codified collection of leading enactments
(last revised in 1783) ; contained in Kudorff's Tokugawa Gesetz-
fammlung. 2. The Council, with the Shogun's sanction, could of
■course have chAged them. The idea seems to be that such
permanent legislation should be left untouched as far as possible and
not lightly changed.
352
PBIVATE LAW IN OLD JAPAN :
No. 102] farmers, the hand-stocks, as is prescribed in the ' Collec¬
tion of Laws,' and, when default in the instalments still
continues, an order of execution in bankruptcy ; for
military gentry, the Chief Seneschal or some high
official should be summoned,^ examined, and sent to the
prison of the gentry, if they were the ones who had
undertaken the obligation,^ and where such a person
fails to take the course urged on him by the Magistrate,
you^ would, on being notified of this, communicate to his
lord; for persons in the service of temples, the same
procedure as for military gentry.
Euhiic. In loans pf money the circumstances
vary in different cases. Sometimes the debtor
merely does not pay the principal or even the
interest at the time agreed on. Sometimes they
delay much longer, and even renew the instru¬
ment again and again, with the creditor's consent,
engaging [in the new instrument] to pay the interest
already due and unpaid, so that the amount of
the interest ultimately received exceeds that of
the principal. Some pay half the principal and
interest, and are in arrears as to the remainder.
In the case of sales on credit, the buyers often delay
payment until long after receiving the goods;
while others, the best customers of the seller,
default finally in a small sum, after paying a
number of yearly instalments of the amount
due. Although the circumstances of these
various cases difter so widely, it has seemed
better to establish general •rules, applicable
1. This would be true only of the higher gentry. 2. That is, the
retainers who, as was the custom, had signed the instrument instead
of their lord. But whether this clause applies only to the prison-
sentence, or to the whole preceding part of the sentence, is not clear,
.S. The Councillor.
PART III. CONTRACT ; LEGAL PRECEDENTS.
353
alike to all, for the amount of the instalments to [See. YI.
he paid, and we consulted accordingly, for the
purpose of settling these rules. But the con¬
siderations bearing on the different amounts are
complicated, and their determination is not
without difficulty. Moreover, in many cases
the parties, if they are aware of the sums fixed,
would not act sincerely in regard to making and
demanding payment, ^ and their integrity would
suffer more than under the present state of
affairs. For these reasons we have made the
proposal contained in the main text.^ As to
principal and interest, if the debtor has already
paid the principal and is in arrears with the
interest, we shall urge the parties to settle
privately, without regard to the time that has
elapsed, and finally, if the debtor does not do so
within a reasonable time, we shall order payment
by instalments. However, in such cases the
amounts of the instalments might be reduced
somewhat, a reference being made in each case
(for such instances would be few) for consultation
[by the Chamber]. The Instructions of the
Serpent year® left nothing to be desired, and
we all assented to them; and subsequently we
met and determined on a set of private rules
for the treatment of the matters which formed the
1. That is, neither plaintiff nor defendant would settle privately
on terms less favorable to either than those he knew he could get in
Court; while each would put forth in Court all possible pretexts to
obtain from the judge the greatest possible advantage as to the
amount of the instalments. 2. Hommon; the body of the Proposal
Probably that formed the first draft presented to the Chamber by one
of its members, while the rubrics were afterwards inserted by general
agreement. 3. This order preceded the order of No. 13, ante, by
one month. See No. 111.
Vol. XX. Slip. Ft. 111.-33.
854
PRIVATE LAW IN OLD JAPAN ;
102] subject of the Instructions. i We were to report
again on these rules [for final sanction] if further
experience seemed to require it. But in the last
10 years there has occurred no case so diflScult
of settlement as to require a regular judgment;
and hence we made no report.
But in the last 2 or 8 years the cases which
could not be privately settled have become
numerous, and we have therefore made the
proposal set forth in the main text.
Shall these actions be treated as above proposed ?
We desire to learn your will on this point: and append a
copy of the Instructions of the Serpent year and also a
draft of the proposed instalment-amounts.
Note, that following the usage of the Serpent year,
we have provided for payment by instalments of the
entire remainder due, where the debtor has paid any part
of the claim. For example, though tbe debtor has paid
only 1 ryo or 1 bu out of 50 ryo due, the creditor is
ordered to accept payment by instalments. If the amount
of arrearage is large the debtor cannot possibly pay it off
within the 30 days ; moreover, to settle how much should
be paid down in each case [and how much left to be paid
by instalments] is a matter of great difficulty. Hence the
former rule is retained, that if any part whatever has
been paid, the entire remainder is to be paid by instal¬
ments.®
1. No. 13, ante. 2. The meaning of the postscript is this. Where
judgment was given for the plaintiff, the defendant was ordered to
bring the sum within 80 days; if he brought only a part, as usually
happened, the instalment order was then issued. But the writers
here propose that where any part has been paid, this 80-day interval
which was looked to for bringing in a part, shall be omitted and the
instalment order issued immediately; and that the debtor shall be
deemed to have partly paid even though 1 hu only in 50 ryo has been
paid.
PART III. CONTRACT : LEGAL PRECEDENTS.
355
2. Schedule of Instahmnt-payrnentsd- [See.
" Appended Document.
Revised Schedule of Instalment-Amounts, by the
Full Chamber.
Amount Due. Whole Period of Payment,
From 2 ryo to 100 rijo About 10 years.
" 101 " 1,000 " " 15 "
" 1,001 " 8,000 " " 20 "
" 8,001 " 10,000 " " 25 "
With the above arrangement as a basis, the annual
instalments for the various amounts due shall be as below.
Note, that the period in which payment is completed
is graduated between the above limits for inter¬
vening sums, for the total period required should
vary with the total amount due, as appears below.
The former instalment-amounts have been as stated
below, and though [at first] they were employed by the
Courts in ordering payment, many of the debtors disobeyed
the orders and brought in smaller sums, so that in recent
times permission to do this has come to be given. But
hereafter, now that the amounts have been revised, the rules
are to be applied strictly, and those who disobey are to be
punished without fail. Henceforward the orders of pay¬
ment are to be strictly enforced, notwithstanding [the
spirit of clemency shown in] this reduction of the amounts.
Amount due. Monthly Instalment. Finished, countiny
^^ intercalary months, in
Old. Eevised.
To 2 ryo 300 man 1 momme 10 years (12 momme or
2 shu+ per year).
{Appended Note. We decided, on consultation, that
instalments on small amounts due should be
reckoned in silver, but that, where necessary,
100 mo)i of copper or iron money should be taken
_
1. This is all a rubric.
856
peivate law in old japan :
No. 102] as 1 momme of silver; for although in our own
separate Courts it may do to concern ourselves
with copper and iron money, in the Chamber of
Decisions it is undignified and improper. Up to
this time no order has been issued in the Chamber
for a less sum than 1 hu in silver, even though the
amount due was small, and, since the present
2-s/i!( gold coin was struck, an instalment even
of 2 slm has not been ordered. Henceforth
instalments of as little as 2 sliu may be ordered in
the Chamber, but not of copper or iron money.)
Amount dueA Monthly Instalment. Finished, counting
^ ,1. intercalary months, in
Old. Revised.
To
6 ryo
gold 2 shu
3 momme silver
10 years (36 momme or
2hu+ per year).
To
10 ryo
1 hu
5 momme
10 years (60 momme or
1 ryo gold per year).
To
20 ryo
1 hu, 2 shu
[to 2 hu
2 shu
13 years, 4 months.
To
85 ryo
3 hu
1 hu
11 years, 8 months.
To
50 ryo
1 rijo
1 hu, 2 shu
11 years, 2 months
(4 ryo, 2 hu per year).
To
60 ryo
1 ryo, 1 hu
2 hu
10 years (6 ryo
per year).
To
75 ryo
1 ryo, 2 hu
2 hu, 2 shu
10 years (17 I'yo 2 hu
per year).
1. The money tables will be found explained in Part I. For
convenience the following notes are repeated. A ryo was divided
into 4 hu and into 16 sliu. It was also divided into 60 momme.
Hence 2 sliu ought to have been equivalent to 7J momme. At this
time, however, the 2 shu piece was of some^Jat higher value. The
copper and iron money was reclconed in mon. In former times 4,000
man was the standard equivalent of 1 ryo; hence 1 momme ^<3,5
equivalent to 66g mon. But the copper and iron money could not be
kept up to that standard, and it was sometimes reckoned at even
10,000 mon to the ryo, or 160§ to the momme. It would appear that
the customary exchange at this time was about 100 mon to the momme ;
this at least is what the Court prescribes. An intercalary month came
about once in 3 years.
PART III. CONTRACT : LEGAL PRECEDENTS. 357
Amount clue. Monthly Instalment. Finished, counting [Sec. YI.
x mtercalary months, in
Old.
Kevised.
To
100 ryo
1 ryo, 3 bu
3 bu
11 years, 2 months
(9 ryo per year).
To
150 ryo
3 ryo
3 bu
16 years, 8 months
(9 ryo per year).
To
200 ryo
4 ryo
1 ryo, 2 shu
14 years, 10 months
(13 ryo, 2 bu per year).
To
300 ryo
5 ryo
1 rj/o, 26ii, 2 shu
15 years, 5 months
(19 ryo, 2 bu per year).
To
400 ryo
6 ryo
2 ryo, 2 shu
15 years, 9 months
(25 I'yo, 2 bu per year).
To
500 ryo
7 ryo
2 ryo, 3 bu
15 years, 2 mouths
(33 ryo per year).
To
600 ryo
8 1-yo
3 n/o, 1 bu
15 years, 5 months
(39 ryo per year).
To
700 ryo
9 i-yo
Sryo, 2 bu, 2shu
15 years, 1 month (46
ryo, 2 bu per year).
To
800 rxjo
9 ryo
4ryo, 1 bu, 2 shu
15 years, 3 months
(52 ryo, 2 bu per year).
To
900 njo
10 ryo
5 ryo
15 years (60 ryo per
year).
To
1,000 ryo
20 ryo
5 ryo, 2 bu
15 years, 2 months (66
ryo per year).
To
1,500 ryo
20 ryo
6 ryo, 1 bu
20 years (75 ryo per
year).
To
2,000 ryo
20 ryo
8 ryo, 1 bu
20 years 3 months (99
ryo per year).
To
2,500 rxjo
30 ryo
11 ryo, 1 bu
20 years, 1 month (124
[2 shu
ryo, 2 bu per year).
To
8,000 ryo
30 ryo
12 ryo, 2 bu
20 years (150 ryo per
year).
To
5,000 ryo
45 ryo
16 ryo, 2 bu
25 years, 1 month (199
[2 shti
ryo, 2 bu per year).
To
7,000 ryo
80 ryo
23 ryo, 1 bu
25 years, 2 months (279
ryo per year).
To
10,000 ?-yo
80 ryo
33 ryo, 1 bu
25 years, 1 month (399
ryo per year).
For sums of over 10,000 ryo, the full period shall be
30 years or upwards, the instalment amount being deter-*
mined on special consultation in each case.
•3. Acknowledcjment of sanction.
"It has been ordered that the procedure in actions on
858
PRIVATE LAW IN OLD JAPAN :
money-loans should be as proposed by us, and we hereby
acknowledge the receipt of the order.
Year of the Tiger,
6tb month, 23rd day (August 7, 1806).
Chamber of Decisions, Full Session,"
4, Tailes enacted hy the Chamber of Decisions, Full Session,
Jor Actions on Money Loans.
Dated Bunkwa, III (Tiger), 8, 12 (Sept, 28, 1806,)
" Our revised rules for actions on money-loaus having
been sanctioned in accordance with our proposal, the
following [additional] rules have been determined on :
(1), Suits against military gentry. The complaint, ^
bearing the indorsing-seal^ [of the Chamber], is to be
served on the defendant, and an interval of 6 months
ordered. If the parties do not settle privately within
that time, they are to be summoned, with or without
[further] demand by the plaintiff.
Note, that strict care must be taken not to delay
longer than the 6 months, as otherwise [the
defendant] would begin to think the matter of
no importance,
(2), A joint-pleading3 being had, all the considera¬
tions and circumstances must be carefully examined, and
then the right and wrong ^ of the matter must be set
forth to the parties. If at the end of 60 days more they
have not settled privately, a formal judgment® must be
rendered.
Note, that previous to the lasti»Serpent year (1797)
there were some cases in which the joint pleading
1. Sojo. 2. Uraban. 3. 2'aiketsu. 4. This phrase has been
already explained ; it does not mean necessarily that the parties are
told that one is quite right and the other quite wrong ; the considera¬
tions on both sides are set forth, and each is urged to forbearance
and concession, 5. Seishiki no saiban.
PAKT III. CONTKACT : LEGAL PEECELENTS. 359
took place on the 4th day of the month and [Sec. Vli
the formal judgment was rendered on the 21st
day of the same month. But this practice
is contrary to the provisions of the Instructions,
and hereafter all cases must be tried as provided
above. Still if a case clearly is one which
cannot be privately settled [no matter how long
an interval may be fixed], the former procedure
may be followed.
(8). Where the defendant brings a less sum than
the instalment ordered, he is to be summoned [to the
Chamber] and ordered to pay the full amount. If he is
really unable to pay, it would he well to summon other
retainers, and after informing them of the facts give them
the same orders.
Note, that previous to the last Serpent year (1797)
the payment of a sum less than the fixed
instalment might be made, on petition of the
defendant, assented to by the plaintiff, where the
Court permitted the partial payment and appointed
the remainder to be paid at a future day.
But henceforth the full sum fixed must be paid
over to the plaintiff on the day appointed, without
the delay of a single day; otherwise the dignity of
the Court will suffer.
(4). As to the written pleadings,! the defendant's has
contained a statement of the manner in which the money
was borrowed and the provisions of the instrument [of loan],
and an asseveration^ that he will make no objection,
whatever order of payment be made. The plaintiff's has
contained a brief statement that the [defendant's] pleading is
correct and a demand for payment, the whole being in the
form of an indorsement' [on the defendant's pleading].
1. Kojo-gaki; corresponding in meaning and purpose to kuchi-
gaki. in No. 28, ante. 2. Chikai, oath. 3. Oku-gaki.
860
PRIVATE LAW IN OLD JAPAN :
102] This has been the form hitherto in use. Hereafter the
origin 1 of the loan, the execution 2 of the deed, its contents,
the amount of money, etc., must all be set forth in detail
[in the defendant's pleading,] while the plaintiff, expressing
his agreement with these statements, must indorse the
pleading as before.
(5). Hitherto, when judgment was rendered and pay¬
ment by instalment ordered, only the defendant was sum¬
moned and not his surety, etc. Hereafter the other retainers,
as well as the accused, shall be summoned for the second day
of appearance and, furthermore, at the time of issuing
the order for payment by instalments, notice must be
given to the other retainers that if the full sum fixed is not
brought a severe penalty will be inflicted, and notice
must be given by them to their lord ; ^ and an instrument
of submission to this order must be obtained from them.
(6). In regard to the mode of giving judgment, hitherto
each case has been adjudged by the Magistrate before
whom it was brought, without a general consultation of all;
only those cases which involved the higher gentry, etc.,
as sureties, ® were adjudged upon consultation after the
case was laid before all. The same practice shall be
followed in the future. If the defendant declares that
the loan was contracted before the last Serpent year
and the contents of the instrument do not show what
the fact was, and no witness' name appear in it, the case
1. Genin. 2. 2'etsuzuki. This means ordinarily " method."
But here it has a teclmical use, referring to the^reseace or absence
of an official seal, if any is needed, and, perhaps, also the joint or
sole nature of the liability, with other details of the mode of execu¬
tion. 3. This would probably be the day of rendering judgment, and
the order of instalment-payment would issue at the same time.
4. This is said of actions against the lower samurai. 5. That is,
where they were the real debtors, a retainer being the nominal
debtor. 6. And therefore entitled to the benefit of the Nullification
Order of that year (No. 18, ante).
PABT III. CONTRACT : LEGAL PRECEDENTS. 361
may ordinarily be adjudged after being laid before all of [Sec. VI.
us, as in suits where one of the higher gentry is surety.
But if the instrument makes out the loans to he of an earlier
date, while it plainly appears [from the evidence] that it
is of a date prior to that year, the decision must he that
no formal judgment can he rendered and that the parties
must settle the claim privately, in accordance with the Govern¬
ment Proclamation ; and such a case must he laid before
all of us. Where, also, it is specially difficult to reach a deci¬
sion, the proofs on both sides must he laid before the
other members and judgment he rendered on consultation of
all. It was said in the Instructions ^ that where the defendant
thi'ice in succession brings a sum less than the instalment
fixed and we are obliged to summon his superior officer, his
fellow-officer, his relatives, or the Chief Seneschal of his
lord, and order them strictly to cause him to bring in
the entire sum appointed, the case should be reported
for instructions [by the Magistrate to the Council]. But
in such a case we have only to warn them and order
them as above, which is not equivalent to censuring or
imposing a penalty; and hence it will he sufficient for
the report [to the Council] to he made by one Magistrate
only,2 and not in the joint names of us all.
(7). It was also said in the Instructions that, where
the borrower is actually prevented by unavoidable causes
from paying the whole instalment due, his petition for
delay, if well-founded, should he granted. We cannot,
however, determine beforehand all the different circum¬
stances that are to be regarded as establishing a sufficient
excuse; nor are we to accept as satisfactory any and
every excuse asserted by the debtor, for this would lead
to mischievous results. As a rule, therefore, extraordinary
■calamities of Heaven,^ such as inundation, fire, earthquake.
1. See No. Ill, post. 2. The one before whom the case was
■brought. 3. Temai.
862
PRIVATE LAW IN OLD JAPAN :
No. 102] etc., resulting in the ruin of more than half the debtor's
income-fief, are alone to be accepted as excuses, others
being rejected.
Note, that if such circumstances are asserted in
excuse thrice in succession, a report of the case
must be made for instructions [to the Council].
All suits relating to temples, towns, and villages should
he disposed of in accordance with the foregoing rules, hut
without reporting them, as no directions are given with
reference to them in the Instructions.
The above was determined on consultation in Full
Session.
Bunkwa, III (Tiger,) 7, 4 (August 17, 1806)."
5. Disposition of Actions against Military Gentry on
Money Loans,
Dated Bunkwa, IV (Hare), 6 (July, 1807).
"At a previous meeting of the Chamber of Decisions
in Full Session it was decided that where a money loan
action was brought against military gentry and a certific.ate
of disagreement! was presented, both parties should be
summoned to the Chamber of Decisions and formally
examined. But henceforth, in such a case, both parties
should first be summoned to the Court ^ of the Magistrate
with whom the action is entered, ^ a preliminary examination
held, and the parties urged to settle privately. If they
then cannot agree, they should be sent to the Chamber
of Decisions without delay.
1. Hadan-sho; a certificate, given at the end of the 6 months
already spoken of, that the parties could not reach an amicable settle
ment. See also No. 23, 8, Art. 7, ante. 2. The original is " official
residence," where, in distinction from the bugyo-sho or Magistrate's
office, trials of other than summary cases seem to have been held.
3. Of course all actions by townspeople against military gentry were
cases for the Chamber, though they were entered with the Magistrate
in whose jurisdiction the plaintiff was.
PART III. CONTRACT : LEGAL PRECEDENTS.
368
However, if at the time [of the preliminary [Sec. VI.
examination] they request a postponement, it
may be allowed twice ; after that the case must
be sent to the Chamber of Decisions.
Actions where a certificate of disagreement has been
filed more than 6 months before may be sent to the
Chamber of Decisions without any postponement."
[No. 103] Non-payment of the first Instalment
Due.
A Reply by the Town Magistrates to a Consultation
by the Finance Magistrate.
Dated Bunsei, VIII (Cock), (1825). ^
1. Consultation.
" Those who do not bring in even a small part of
the claim within the 80 days allowed for private settlement
are of course guilty of disobedience to the order, and it
is also proper to examine the defendant again in such
a case. Now there have been some suits in my Court
in which the defendant compromised with the plaintiff,
an order of instalment-payment was issued, and yet the
defendant failed to pay the instalment due the first month.
How should such a case be treated ? I beg to inquire the
practice which you follow.
Year of the Cock,
8rd month."
2. Bephj.
" When the compromise is effected within the 80
days and instalment-payment is ordered, the defendant
1. No date appears ; but this was the only year of the Cock while
these Magistrates were in office.
364
PRIVATE LAW IN OLD JAPAN :
No. 103] is required to pay at once, while in Court, the first
monthly instalment; and, if he requests postponement,
we refuse it and detain him, directing him to write
and procure the money; when he has obtained the first
complete instalment, we release him. As this rule has
been strictly enforced, there have so far been none who
have failed to pay the first instalment.
Such is our practice.
Year of the Cock,
3rd month.
Sakakibara, Minister of Imperial Eevenues,
Tsutsui, Lord of Iga."
[No. 104] Puijment of Deficient Instalments.
A Proposal by the Town Magistrates.
" In regard to the proceedings with reference to
debtors who bring in deficient instalments, the Pull
Chamber laid a proposal before Makino, Lord of Bizen,^
in Bunkwa, III (Tiger),^ and it was approved. Subse¬
quently numerous actions were brought, and, the judgments
being rendered according to the circumstances of the cases,
a certain laxity of practice came about, and some debtors
brought deficient amounts when they were able to bring
the whole. Henceforth, where the amount brought is
deficient, the cases of the townpeople and farmers are to
be disposed of as directed in the ' Collection of Laws.' ^
Military gentry are to be detained at the qgurt and ordered
to obtain the full amount. If the money is still delayed,
a higher retainer or the Chief Seneschal is to be summoned
and the duty of payment urged upon him. If the retainer
occupies an ofiice of low rank, the matter is to be urged
1. Presiding Councillor of State. 2. No. 102, ante. 3. Seep.
351, note 1, ante.
PART III. CONTRACT ; LEGAL PRECEDENTS. 365
upon his relatives, fellow-officials, etc. If the default still [Sec. VI»
continues, the retainer charged with the obligation is to
be sent to the gentry's prison, and his lord is to he
censured in some way. If these proceedings be followed,
the dignity of the Court will not suffer. But in distant
provinces they do not know what proceedings are being
employed in the Courts of the Magistrate, and as the
former proclamation! was issued several years ago,
some may have forgotten it. We therefore requested,^
in the Horse year, 4th month,® that these rules should
be again proclaimed; and it was done. The proper
proceedings in money actions were strictly followed
during the next few years. But very recently this
laxity has again come about, and debtors sometimes
bring in deficient sums. We have therefore held a
consultation on the subject. As the proclamations and
regulations have already declared such conduct to be
culpable, severe measures might well be taken with
those who bring insufficient instalments. Nevertheless,
the lending and borrowing of money is a transaction
springing from mutual trust and fidelity, and no severe
measure should be taken [to enforce the obligation]
without first using counsel and persuasion. Moreover
the lamentable condition of many—for calamities of Heaven
have laid waste their fiefs and they are even unable to
discharge their feudal duties—has justified special delay
in their cases. For these reasons there has come about
a laxity in enforcing the rules. It is positively necessary
that this should be remedied and that the rules be
enforced strictly. Yet if we proceed immediately after the
laxity of the past to take severe measures, the result
would be that numbers would be subjected to a penalty. The
best plan is to summon all those of the military gentry
who are in arrears, set forth to them the neglect of
» 7
1. Probably tbat of Bunkwa, III. 2. Probably of the Council.
3. See p. 8GG, note 2, infra.
866
PRIVATE LAW IN OLD JAPAN :
104] duty on the part of their lords and the culpability of
the retainers themselves, and declare that henceforth, if
a default occurs, the retainer will he imprisoned and the
lords also will suffer some penalty. At the same time
documents of submission shall he taken, sealed by them¬
selves and sureties. After that all claims of the sort shall
be enforced strictly according to the regulations already
made.
Such are our conclusions. We have obtained the
assent of the Full Chamber, and now make the above
proposal.
FitibricA Although strict measures [are well enough]
in regard to the payment of instalments, yet in a
great many cases the full amount is not paid in
because the debtor is really unable to do so.
Those who bring as much as half the amount
due might be permitted, if the Court saw fit, a
few days' delay. If less than half is brought,
severe measures might he taken, according to
the regulations. Furthermore, if we ourselves
keep the regulations in mind, the granting of
indulgence in special cases where it is proper need
not of itself result in a lax enforcement of the
regulations.
Sakakibara, Minister of Imperial Revenues,
Tsutsui, Lord of Iga." ^
1. The main document is a proposal to the Council, it would
appear. The rubric would seem to be an insertion by tue Chamber
when the document was submitted to them. 2. No date is given,
but we can determine with fair certainty fron#the names of the
Magistrates. The earliest date when they were both in ofiSce was
Bunsei, IV (1821), the latest. Tempo, VII (1836). The only Horse
years in that interval were 1822 and 1834, and it is probable that the
reference to the above Horse year is to the one next preceding the
time of writing. In that case the document would date towards the
end of 1836, because a few years are said to have elapsed since the
order of the Horse year.
PAKT HI, CONTBACT I LEGAL PRECEDENTS. 367
[No. 105] Delay in Payment of Instalments. [Sec.
A Reply by Torii, Lord of Kai, Town Magistrate
of Yedo, to a Consultation by bis colleague,
Abe, Lord of Totomi.
Dated Tempo, XIV (Hare), 5 (June, 1843).
1. Consultation.
" To the Kord of Kai,i
from Abe, Lord of Totomi.^
My predecessor, Toyama, Warden of the Palace Gates,
some time ago, after consultation with you, issued strict
orders as to the procedure in the case of instalment-
judgments. But the rules have of late come to he applied
with great laxity. On the 4th of this month the
defendant 2 in an action already reported to the Chamber
[and adjudged] brought in a sum falling far short of the
instalment ordered, and I detained him at my Court,
directing him to write and get the amount in arrears.
From day to day I urged on him the reasonableness [of
paying the claim]; but he replied invariably that of late his
lord's fief had yielded little income, and that, as it was really
difiScult to raise the money, the amount brought had some¬
times been deficient because he could not help it. It was
of course lawful to take severe measures in such a case,
according to the regulations already approved and, unless
this were done, it would have a bad effect on other debtors.
My intention is to take severe measures, according to the
regulations, after reporting the case to the Council. The
defendant had already paid half of one instalment, obtaining
a postponement for the rest, and it was when he came
again, at the end of the second term, without any
1. Both Town Magistrates. 2. Here a retainer appearing for a
claim for which his lord is really responsible. 3. Perhaps those of
the preceding documents. This case occurred before the reform of
No. 28, ante, had been carried out.
368
PRIVATE LAW IN OLD JAPAN ;
No. 105] money and requested another postponement that I
detained him and ordered him to get the whole amount
then due.' After daily urging him for about 10 days,
without effect, I summoned higher retainers and finally the
Chief Seneschal, and informed them of the circumstances
and of their neglect of duty. But the obligation still remains
unpaid. Unless something is done, I am resolved to send
to the gentry's prison the retainer who stood in the place of
his lord [in contracting the debt] .1 It would be undesirable
that the proceedings in such a case should differ in my
Court from yours, as to number of days, manner of impris¬
onment, etc.; and I therefore lay the case before you and
request your opinion.
Year of the Hare,
5th month."
2. Eepli/.
" On a previous occasion your predecessor, Toyama,
Warden of the Palace Gates, and myself, after consultation,
issued an order as to the proceedings in case of delayed
instalments ; and of course the proceedings thenceforth were
to be in accordance with those regulations. The urging of
the higher retainers to payment, the imprisonment of the
retainers responsible for the debt, etc., should be done just
as you suggest, lly own opinion is in accord, and my
practice will be the same.
Year of the Hare,
5th month.
Torii, Lord of Kai."
1. This was tlie most that could be done, as feudal sentiment
would not allow hands to be laid directly on the lord. The means
adopted wore equally eSective, for the reputation of the lord would
be seriously injured by the imprisonment of the retainer, and in
an extreme case the Shogun's displeasure might ensue ; while the
retainer himself was doubtless glad enough of the glory of suffering
for his lord's sake.
PART III. CONTRACT : LEGAL PRECEDENTS. 869
[No. 106] Revision of the Instalment-Schedule. [Sec.
A Resolution of the Chamber of Decisions, Full
Session:
Dated Tempo, XIV (Hare), 6, 14 (July 11, 1848.)
" Terms of Payment for Amounts Due.
Amoiint due. Term,
From
2
ri/o
to
100 ri/o
101
((
((
1,000 "
" 15 "
4t
1,001
ii
<(
8,000 "
« 20 "
it
3,001
a
10,000 "
" 25 "
Monthly Instalments to be paid for the different amounts
due, on the basis of the above scale
Amount due.
Instalment, as fixed before
[Bunkwa, III.]
To
2 ryo
((
6 "
ii
10 "
ii
15 "
4i
20 '«
2 " , 2 " , "
ii
25 "
ii
85 "
3 " ,
4i
50 "
ii
60 "
1 " , 1 bn, "
ii
75 "
1 " , 2 " , "
ii
90 "
ii
100 "
ii
150 "
3 " , "
it
200 "
4 " , "
ii
300 "
5
it
400 "
it
600 "
7 " ,
M.
1. This schedule, it will be seen, is the one in force before the
reductions of Bunkwa, III, in No. 102, supra.
Vol. XX. Sup. Ft. 1II.-34.
370 PRIVATE LAW IN OLD JAPAN :
106] Amount due. lustahnent, asjixed before
[Bunkwa, III.]
" 600 " 8 " , "
" 700 " 9 " , "
" 800 " 9 " , "
«' 900 " 10 " , "
" 1,000 " 10 " , "
" 1,500 " aO " ,
" 2,000 " 20 " , "
" 2,500 " 80 " ,
" 8,000 " 80 " , "
" 5,000 " 45 " , "
" 7,000 " 80 " , "
" 7,000 " 80 " , "
For sums of 10,000 r>jo or over, a special consultation
must be held in each case, the whole period to be 80 years
or upwards."
[No. 107] Money-Action Days.^
"If instalment-judgments are rendered at the deputy's
office,2 after approval of the Magistrates, much confusion
will ensue ; for as there are no regular money-action days at
the deputy's office, the parties will be appearing whenever
they please, some demanding a summons, others wishing to
pay. It will therefore be best to persuade a compromise
in all cases where it is possible. For cases where it is not,
days should be appointed on whicl^ the actions may
be tried and instalment payments brought in.
Note, that they should not be the same as the money-
action days of the Chamber of Decisions, viz., the 4th and
21st; the 3d, 23d, and 20th would do very well."
1. Kane-hi (money days); those Court days on which money
actions were heard. See No. 28, passim, ante. 2. Daikwun-sho; the
Shogun's deputy who governed the rural districts.
PARt III. CONTRACT : LEGAL PRECEDENTS. 871
[No. 108] Payment of Instalments in Distant [Sec. VI.
Provinces.
" lu regard to money-actions between persons of
different fiefs, there is a precedent in which, after a
judgment of instalment-payment had been rendered upon the
expiration of the 80 days allowed for compromise, the
delivery of the money was directed to he made at the office
of the deputy, 1 and not in Yedo, because the plaintiff
was a resident of a Shogunate fief. In an action for the
purchase-money of rice sold on credit, between a farmer of
Naruta village, Shinohu kori, Oshu,2 as plaintiff, and a
townsman of Soma castle-town, as defendant, a judgment of
instalment-payment was rendered, after trial had, and the
payments were f ormally made at the deputy's oflSce 3 at
Omori, in the same fief as Naruta village." ^
[No. 109] Instalment-Judgment for arrears of
a Money-Loan.^
An Action between Tozayemon, of Koya village,
Nitta kori, Joshu,® defendant, and Tsuneyemon,
of the same village, plaintiff.
Dated Temmei, II (Tiger), ll(Decemher, 1781).
1. Daikvian-sho, 2. A group ol northern provinces. 3. Jinya
(camp); a term commonly applied to the deputy's office. 4. This is
an example of the manner in which the Shogunate fiefs were scattered
here and there throughout the country, and served as centres of
influence for the Shogunate authority. The document is not dated.
It is probably a memorandum filed in the Finance Magistrate's
Court. 6. The arrangement of the previous precedents in this Section
was: 1. Regulations, laws, etc., in order of time; 2, the same, bear¬
ing no date; and now come, 3, reports of cases, in order of time.
This is the general arrangement in all the Sections. 6. Yamashiro
kuni.
372 PRIVATE LAW IN OLD JAPAN I
. 109] 1. InqtM-y hy the Deputy.
" Memorandum.
Tsuneyemon, of Koya village, Nitta kori,
Joshu, deputy's district of Endo
Hyoyemon Plaintif;
and
Tozayemon, of the same village Defendant.
Amount loaned 18 ryo.
Interest 4 ryo, 2 bit.
This is at the rate of 1 ryo per month per
15 bu, and covers the 15 months from the
last Ox year, 1st month, to the current
Tiger, Brd month.
Total amount, interest and principal...22 ryo, 2 bu.
Instruments, 2.
In the above case the allegations of Tsuneyemon were
as follows. In the year of the Cock, 6 years ago, he
had lent to Tozayemon 15 ryo, and in the Boar year,
8 years ago, 8 ryo, receiving two instruments of loans.
The interest had been paid to the close of the Rat year,
and the principal and remaining interest are due.
The defendant's statements agreed with those of
Tsuneyemon, and I took from them a document counter-
sealed by them and engaging to comply with whatever
judgment the Court might render.
Thus the statements of the parties concur, and an order
to pay should be given to the defendant. I inquire whether
this is right, enclosing the 2 instruments of loan, 2 submis¬
sion-documents, and the complaint,—5 sheets i in all.
Year of the Tiger,
10th month. Endo Hyoyemon."
2. Appended Reply.^
" As to the arrears due from Tozayemon to Tsuneye-
1. That is, 5 documents, each of one sheet only. 2. By the
Piuance Magistrate.
PART HI. CONTRACT : LRGAI. PRECEDENTS. 373
men, the interest should be reduced to the rate of 15 per [Sec, VI.
cent, a year, and then the whole amount due, viz., 21 ryo,
125 mon, be ordered to be paid in 30 days. A document of
submission should he taken from Tozayemon i and delivered
to Tsuneyemon. If the defendant does not pay within the
above period, payment shall be ordered in monthly instal¬
ments of 2 hu; a day for the monthly payment shall be
appointed, and the payment regularly made at your office
on that day. Tie a blank sheet to the document of
submission already given to Tsuneyemon, and let each
amount as paid be entered thereon. On each occasion the
defendant shall be directed not to fail in payment on the
next regular day, and a submission-document to that effect
shall be taken from him.
These rules must be strictly observed.
Year of the Tiger,
11th month."
[No. 110] Money-Loan.
An Action against Itakura Junoshin by Hambei, a
townsman, of Kanefuki ward, Yedo.
Dated Bunkwa, XII (Boar), 4,21 (May 29, 1815).
1. Inquiry.
" In an action for arrears against Itakura Junoshin,
by Hambei, a townsman, of Kanefuki ward, [Yedo,] the
defendant, on being ordered to settle privately within 30
days, made a part payment of 7 ryo on the whole amount of
20,050 ryo. If the claim were for an ordinary amount, we
1. This would indicate that a submission-document might be
taken on the ^completion of the trial before judgment rendered,
and also again after judgment rendered.
874
PRIVATE LAW IN OLD JAPAN 1
Not 110] would immediately issue the order for instalmeut-paymeut.
But siuce Kwausei, IX, Serpent,^ there has been no prece¬
dent of a judgment on a loan for more than 10,000 it/o.
The appended document presented in the Tiger year with
the memorial 2 states, as to the amount of the instalment,
merely that in claims of 10,000 ryo and over, the full period
shall be 80 years or upwards, and the amount shall be
determined on special consultation in each case. Sums from
1,001 to 8,000 are to have a period of 20 years ; from 8,001
to 10,000, 25 years; and the period of 80 years or more for
claims over 10,000 ryo naturally follows as the next in the
scale. But 80 years or more for upwards of 10,000 ryo
does not mean that the term is to be about 80 years
only, no matter how large the claim; and on this assump¬
tion we followed out the proportions already observed
in the case of claims between 1,001 and 10,000
ryo, and obtained 45 years as the proper period
for a claim between 20,001, and 80,000. Yet if this
method is carried out aud the full period of payment is
increased in proportion to the amount due, the period will
finally become an interminable one. The Court will be
seriously inconvenienced [in keeping account of these long¬
standing claims]. Moreover, [the Court should not
undertake to judge claims of such staleness]; for in the
Instructions of the Serpent year ^ it is declared that, after
the Proclamation was made in the 8d (Tiger) year of
Yenkyo,^ ordering that suits on claims arising during and
after the Eat year of Yenkyo 5 should be taken up, [money]
actions gradually increased during the next 50 years, and
that therefore, as the lending and borrowing of money is a
matter of private arrangement of the parties, actions on
claims of long-standing need not be taken up. We think,
therefore, that for all claims whatever of more than 10,000
1. The year of No. 13, ante. 2. No. 102, 2, ante. 3. The next
number. 4. No. 5, ante. 5. Yenkyo, I, 1744.
PART III, CONTRACT : LEGAL PRECEDENTS. 375
3-yo the full period for payment by instalments should be not [Sec. VI.
more than 40 years, and that in the present suit the order
should be as follows: Amount due, 20,050 ryo; monthly
instalment, 60 ryo, or 000 ryo per year, the payments
^soncluding in 88 years, 5 mouths.
We request to know whether we shall make an order
to that effect."
2. Court Memorandum.
" In this action an order was issued on the 21st of last
month to pay within 80 days. The defendant paid 7 ryo
on that day, au order was issued to pay in instalments
at 50 ryo per month, and a submission-document was
taken."
8. Document of Submission.
" lu regard to the loan without interest, made to
me, on my lord's account, by Hambei, a townsman, of
Kanefuki ward, an order to pay the whole amount within
80 days was issued, and I made a part payment of
7 ryo. An order was then issued to pay the remainder
in instalments of 50 ryo per month. I shall without fail
obey this order and not bring deficient instalments.
I also acknowledge being instructed that if an insufficient
sum is brought, severe measures will be taken with myself
and the other retainers, and in addition the Chief
Seneschal and other high officials will be summoned and
examined. If such insufficient sum is brought, we will
submit to whatever penalty is inflicted. But there will
be no failure to bring each time the complete amount of
'the instalment.
Bunkwa, XII (Boar), 4, 21 (May 29,1815).
Oshimoto Chusuke, retainer of
Itakura Junoshin.
876
PKIVATE LAW IN OLD JAPAN :
No. HO] To the Chamber of Decisions.
I also am aware of the order issued to Oshimoto
Chusuke. I shall inform my lord that, if a deficient instalment
is brought, it would be highly culpable and severe measures
would be taken; and I shall without fail see that no
deficiency ever occurs. I hereby counterseal this document
of submission.
Mita Kumajiro, retainer of
Itakura Juuoshin."
SECTION \TI—PEIVATE SETTLEMENT.i
[No. Ill] Frivate Settlement of Money-Loans.
lustructions issued by the Council of State to the
Three Magistrates.®
Dated Kwansei, IX (Serpent), 9, 10 (October
29, 1797).
" Memorandum.
Since the Proclamation of the 8rd (Tiger) year of
Yenkyo,3 ordering that money-actions on claims arising
daring and after the 1st (Rat) year of Yenkyo, [money]
actions have increased gradually during the last 50 years or
so. The lending and borrowing of money originates as a
matter of private arrangement between the parties, and
hence there is no necessity foi^ [the Court's] undertaking
and judging disputes of that sort. Such claims, therefore,,
already existing will not be taken up or adjudged; only
those actions for money-loans, unpaid purchase-money,
servants' wages, etc., which are brought [on claims arising]
hereafter will be taken up, and tried. Even those actions-
in which already a day of triel has been appointed or a
judgment rendered shall not be further heard or adjudged
in any Magistrate's Court. Money-loans owe their origin
to the integrity and mutual fidelity cf the parties, and if they
1. The cases of this Section ought properly to have been placed
in Section I. See Appendix to this volume. 2. These are the-
Instructions which led to the passing of the Eesolutions of the-
Chamber, No. 13, ante. 3. No. 5, ante.
878
PRIVATE LAW IN OLD JAPAN I
Ko. Ill] continue in the exercise of those virtues, all such trans¬
actions can be privately settled without diflSculty,
and the aid^ of public officials need not be sought
These truths are beyond doubt. Actions upon such
claims must necessarily mean lack of virtue in the parties.
The recent increase of such suits is due to the absence
of generosity and gratitude among lenders and borrowers.
The manners of the times are deplorable and show that
morality is declining.
But it must not be thought, because of this enactment
prohibiting the trial of claims, that the debtors are rid
of their obligation and need not repay anything. Such
an idea would be highly culpable. On the other hand,
those [creditors] whose cupidity leads them to attempt
by subterfuge to get their claims enforced in Court or
falsely to make out old claims to be new ones shall be
punished or censured. Furthermore, those [debtors]
who hereafter, [on being ordered to pay,] repeatedly
bring deficient instalments, shall on conviction be punished
severely.
Year of the Serpent,
9th month.
The^ above proclamation is now sent down to you,
and is to be published at all the places where that of
Yenkyo was published. Henceforth care must be taken
in all cases to apply strictly the rules here issued. Even
where an action is an old one and hence not to be
taken up, yet if any of the parties appear to have beeu
guilty of any wrongdoing, they are to be punished or
■censured, according to the rules. Those debtors who
bring in deficient instalments, when •ordered to pay,
clearly disregard the dignity of the Court, and are
to be censured; they should be told that if it
1. Lit., hand and mouth. 2. This paragraph is an addendum
lor the -benefit of the Magistrates alone; the above being the
Proclamation which they are to issue.
pakt iii.—contbact; legal pkecedents, 379
bappeus again tbey will be reported to the Government and [Sec. VII.
if the default continues, all the facts must be reported,
and we shall at once inflict pnnishment."
[No. 112] Taking itp of Actions on Money
Loans, etc.
AnOralProclamation,2 explaining the Instructions '
concerning Private Settlement of Money Loans
issued Kwansei, IX (Serpent), 9.
Dated Kwansei, IX (Serpent), 9, 12 (October 81, 1797).
" The meaning of the recent Proclamation concerning
money loans, in which it is provided that such claims
already existing will not be taken up or adjudged and
■only those claims which arise hereafter will be taken
up and adjudged, is as follows: All claims on money
loans, etc., arising before the close of the last 8th month
will be rejected; but those arising on and after the 1st
day of the 9th month will be taken up and adjudged.
This should be proclaimed to the people, that no mis¬
understanding may exist."
[No 113] Claims on Patent-Fund^ and Temple-
Fund Loans arising before the Private-
Settlement Order.
A Consultation by a Retainer. 5
Dated Kwansei, X (Horse), 4 (1798).
1 This is said for the higher military gentry. 2. Kotatsu fnre
—probably a proclamation to be published to the people orally.
3. No. Ill, supra. 4. See p. 15, ante. 5. The source of the
answer does not i^pear, but the writer is probably the Temple
Magistrate.
380
PEIVATE LAW IN OLD JAPAN t
No. 113] It seems to me that loans from patent-funds and funds of
Buddhist and Shinto temples made before the Proclamation
of the Serpent year stand on a special footing, and hence
such actions should be taken up and judged. I beg to
inquire on this point.
4th month, 26th day (June 10).
Mori Tozayemon, an official of
Makino, Lord of Hyuga."
Appended Reply. " Actions on loans from temple-funds
made before the Proclamation are not to be adjudged ; but
if any special wrong-doing appears, or if an assistauce-fund
given by the Shogun ^ is concerned, an exception should
be made and cognizance be taken of it.®
Year of the Horse,
6th mouth."
[No. 114] Actions on Money Loans made before
the Private-Settlement Order, where the
Debtor acts Unconscionably.
An Answer by the presiding Temple Magistrate,
Matsudaira, Lord of Suwo, to an Inquiry by a
Retainer.
Dated Kwansei, XII (Ape), 10, 12
(November 28, 1800).
1. Inquiry,
" In Kwansei, V (Ox), 10 (November, 1798) a resident
of our fief lent 100 ryo to a resident another fief, taking
1. 0-teate-kin; money given to a temple or other beneficiary
as a token of Government favor. 2. In the former alternative the-
writer seems to mean, as No. 114 shows, that if the debtor tried to-
repudiate his obligation, some notice might be taken and punishment
inflicted.
PART III. COKTRACT I LEGAL PRECEDENTS. 381
,Rn instrument promising repayment in the 8d month [See. VII.
■of the Tiger year (1794). The property of the debtor
is ample and his circumstances good; and the same
is true of his brother the surety. But they did
not pay at the time appointed, and though the creditor
has since repeatedly demanded payment, nothing
has been received. When finally, the creditor was on the
point of asking a certificate ^ from the lord and bringing
-Rction in Court, the Proclamation of the Serpent year
unexpectedly appeared, declaring that actions on claims
already contracted would not be taken up. The debtors
subsequently refused to pay anything at all, and sometimes
even spoke discourteously. The claim amounts to only 100
ryo, and is in itself not an important one ; hut if such an
example be permitted, all other debtors will follow it and
will disregard their honest obligations, causing great embar¬
rassment to creditors. It is therefore requested that sanc¬
tion be given for the creditor in this case, first to lay the
claim before the debtor's lord, and, if payment is still refused,
to bring suit in the Chamber of Decisions, with a certificate
from his own lord. May we give a certificate for such a
suit ? Or would the case not be taken up by the Chamber ?
I beg to inquire on this point, and enclose the instrument
of loan.
10th month."
2. Appended Reply,
" Actions on claims of whatever sort arising before
the Proclamation are, as a rule, not to be taken up or
adjudged. But unconscionable conduct on the part of a
debtor should of course be punished. The penalty varies
according to the circumstances, and I cannot here set forth
all the rules."
1. Soyekan; a document certifying, perhaps, to the identity
-and character of the plaintiff.
882
PRIVATE LAW IN OLD JAPAN :
[No. 115] Whether a Claim for Money Loaned
before the Private-Settlement Order, paid
bach after it, and borroived again, is to be
treated like a Claim on a re-ivritten Instru¬
ment of Loan, and to be ordered for Private
Settlement o^lt of Court.
An Inquiry made to tbe Chamber of Decisions by
the Town Magistrate.
Dated Kwansei, XII (Ape), 12, 11 (January
25, 1801).
1. Inqtiiry.
" From Odagiri, Lord of Tosa.
Odani Shunto, town-doctor,i of Sbitaya, Sakamoto ward,.
Block No. 2, brought a money-loan action against a member
of the military gentry. At the trial he stated that he lent
8 ryo to the defendant on tbe 9th of the 8tb month,
Kwansei, IX, Serpent (October 28, 1797). After the Private
Settlement Proclamation, the defendant borrowed 10 ryo
again from him, at the same time repaying the 8 ryo with
interest. The old instrument given for the 8 ryo was
returned [to the debtor] at the time, and a new instrument
for 10 ryo was taken, that is, after the Proclamation.
Should such a case be treated in the same way as that of
the renewal of an old debt in a new instrument ? And if so,
should actions on instruments renewed [after the Proclama¬
tion] be regularly taken up and adjudged ? And in that
case would not such a loose intergretation have bad
private results ? And therefore, on whole, should the not
settlement be ordered ?
I beg to inquire how the case should be disposed of.
Year of the Ape,
12th month."
1. Machi-i. The samurai physicians were never known as
machi-i, this term being peculiar to the physicians of the common
people. In a rural district the term was kyo-i or ronin-i.
PART UI. CONTRACT ! LEOAL PRECEDENTS. 383
2, Decision. yjj^
" It has been decided by the Chamber of Decisions,
Full Session, that the case should be disposed of as indicated
in the Inquiry."
[No. 116] Actions for the Price of Meals
Furnished.^
An Inquiry made to the Chamber of Decisions by
the Town Magistrate.
Dated Bunsei, X (Horse), 6 (July, 1827).
1. Inq^iiry.
" From Odagiri, Lord of Tosa.
Since the Proclamation relating to money actions ^
was made in the 9th mouth of the Serpent year, I have
disposed of all suits in accordance with the Resolution ®
passed by the Full Chamber dealing with the practice
in such cases or with the decision given [by the
Chamber] in answer to special inquiry by me. But
there has been no provision by either proclamation
or decision for actions for price of meals, and now a
case of ■ this sort has unexpectedly been brought. This
class is not mentioned in the ' Collection of Laws ' among
those in which the judgment is to be for payment in 30
days and then for instalment-payment. Claims for the price
of meals differ in their nature from claims for money
loans, hire of services,^ salaries,5 etc.; yet they resemble
money loans in this point, that they arise through private
1. Han-njo. 2. No. Ill, ante. 3. No. 13, ante. 4. Yatoi-ehin.
5. Kyu-ryo.
884
PRIVATE LAW IN OLD JAPAN :
No. 116J convention. Now in the ' Collection of Laws,' Art. 1
of the law concerning sundry expenses, travelling
expenses, lodging-hills, etc., in actions by villagers,i if
is said that where the action concerned himself alone, he
must himself pay all the expenses, but, if he is unable to do
so, the expense shall he divided equally among himself and
his relatives ; and in Art. 2 it is said that where the
action concerned the defendant alone and he was ultimately
executed or [otherwise] punished, payment must be
obtained by execution in bankruptcy [against the defendant's
property]. Should then the action for price of meals
be taken up where the person to whom they were
furnished was committed to the safe keeping of the
house-holder by order of Court,2 and even where he was
a litigant voluntarily resorting to the house during a
lawsuit concerning himself only 3 ?
Year of the Horse,
12th month."
2. Decision.
" It was determined by the Full Chamber, Bunsei
X (Horse), 6, 11 (July 4, 1827), that actions for the
price of meals furnished before the Proclamation should
be taken up where the debtor had by order of the Court
been committed to the house for safe-keeping, but not in
other cases, the claim being then one arising from private
agreement only."
1. Eudorff's Tokugawa Gesetz-sammlung, p. 71. This law
regulated the burden of expense where villagers came to
Yedo for litigation, whether as plaintiffs or defendants. 2. The
2d Article above cited relates to the case where the defendant
during trial has been committed for safe keeping to some
householder. The claim of this person for food furnished is the
subject of inquiry. 3. That is, not as the representative of a village,
«to.
PART lit. CONTRACT : LESAL PRECEDENTS.
385
[No. 117] Lodging in a Debtor's House to [Sec. VIL
demand Puginent^ of a Loan made before
the Private-Settlement Order.
A Report upon an Inquiry by Okabe, Steward
of the Imperial Kitchen. ^
Dated Tempo, XIII (Tiger), 6, 26 (July 2, 1842).
1. Inquiry.
" Inquiry in regard to the case of Matsngoro,
representative of Ichibei, now ill. renter ^ of the
house of Kitaro, of Iga ward, Yotsnya [district,
Yedo], who ^ came to the quarters of my officer in
the Srd month of this year, for payment of a
loan, presenting an instrument of loan.
6th month, 26th daj'.
Okahe, Steward of the Imperial Kitchen.
Matsngoro, representative of Ichibei, now ill, renter
of the house of Kitaro, of Iga ward, Yotsnya, came to
the quarters of my officers in the Brd month of this year,
and, showing an instrument of loan dated hack in
the 5th year (Serpent) of Temmei (17851, demanded its
payment. He declared that the money had been lent to our
famih', through the mediation of Ichibei, by one Sandayii,
his relative ; that afterwards Sandayu fell into pecuniary
difficulties, and was obliged to return to his native province;
that before he left, he demanded payment of Ichibei, who
consented to stand in the place of the family temporarily
and repaid the whole amount; and that after some time
Ichibei himself lost his property, and was hence obliged to
demand payment. Inquiry was accordingly made, but no
1. I (dwell. stay)-soisoi« (demand, dun). 2. A territorial lord ;
the events below occurred at his residence in Yedo. 3. Ichibei.
4. Matsugoro.
Vol. XX. Sup. Pt. III.—35.
886
private law in old japan :
Kg. 117] instrument could be produced in proof of the claim.i The
answer was made to him that a letter would he sent asking
inquiries in my home in the countr)',^ and I hiide Matsugoro
return to his house until a reply came. But though the
letter was at once despatched, no answer from our province
has yet come. The delay is perhaps owing to the difficulties
of learning anything about a transaction occurring so long
ago. Subsequently Matsugoro and the wife of Ichihei
dunned for payment on several occasions, and finally, when
my official requested them to wait a while longer, as a second
letter had been sent to our province, they refused and
continued to demand payment. On the 11th of this month
Matsugoro came again and repeatedly demanded payment,
and upon being informed by my officials that he must wait a
while until the answer, expected shortly, arrived from our
province, he declared his intention of bringing suit in the
Magistrate's Court and returned to his house. On the 16th
the wife of Ichihei seized my sedan-chair as I was passing
in the street 3 and thrust in a document containing
some unintelligible statements. I therefore bad her
come to my bouse and lodge there, and summoning
Kitaro, the house-manager [of the house which Ichihei
rented], I told him of the matter,^ and he promised to
reason with her and her husband and induce them to wait a
while longer. In a few days Kitaro informed me that
Ichihei and his wife refused to accede to his request, though
he had used all possible arguments with them ; and Kitaro,
because he did not care to rent his house to such persons,
placed them in charge of Matsugoro, their house-surety,5
«
1. The one above mentioned must have passed between Saudayu
and Ichibei only. 2. The fief of the writer. 3. A favorite means of
preferring a complaint where other measures had failed. It was
strictly forbidden by law. See Simmons, Notes, etc., p. 126-
4. Because he was in some measure responsible for the conduct
of his tenants. 5. The surety which every house-tenant was obliged
to give.
PART III. CONTRACT *. LEGAL PRECEDENTS. 387
renter of the house of Chosuke, of Choyenji-tani ward, [Sec. VII.
Ichigaya [district] • But I thought that it would he better
to allow them to continue to live in Kitaro's house and
to make a private settlement of this old claim as soon as
possible, aud I directed Mohachiro, headman, at Block No.
1, Temma ward, Yotsuya, to manage it. He answered
that he would do his best to bring it about and would inform
me of the result. He did not answer for several days. I
sent to find out the result. He had just directed them to
go to the house of Kitaro again aud wait till the answer
came from my province; they had refused to do so, but
Mohachiro sent word that they should be induced to do as I had
asked. If I refuse to entertain the claim of this person, she
is so lacking in mental balance that I am afraid they might
resort to even more lawless means than stopping my sedan-
chair. I therefore beg to inquire how the claim should be
disposed of. ^
6th month, 26th day.
Okabe, Steward of the Imperial Kitchen."
2. Beport of the Town Magistrate,
" The Inquiry of Okabe, Steward of the Imperial
Kitchen, was handed down to me [by the Council] 2 with
instructions to investigate the facts, and on perusing
the documents I learned the following. Ichibei, now
member of the household of Matsugoro, renter of the
house of Chosuke, of Choyenji-tani ward, Ichig.aya, Yedo,
had lent some money to the family of the Steward of the
Imperial Kitchen, in the 5th year (Serpent) of Temmei.
As the loan had been made before the Private-Settlement
Order of the 9th year (Serpent) of Kwansei, the creditor
1. The writej^ perhaps consults the Council not as a litigant,
but as a lord having certain judicial powers of original jurisdiction
in this case. 2. Probably.
388
PItlVATE LAW IN OLD JAPAN :
No; 117] was well aware that a suit would not be taken up and
adjudged by the Magistrate, So Icbibei's wife made a
demand for payment, and, not receiving it, she took up
ber lodging in the residence of the Steward of the Imperial
Kitchen, declaring that she would not return to ber house
until she got the money.^ If the money was really
borrowed by his family, the Steward of the Imperial
Kitchen must make an engagement with them that he-
will do justice and return the sum at some future time ;
and he should represent to her, moreover, that her staying
there could do no good and would injure greatly the name
of the family. If she does not thereupon consent aud leave,
the Steward of the Imperial Kitchen should bring an action
against her for making her demand by lodging on the
premises, and ask for a trial. I think that instructions to-
this effect should be given in answer to the luquirj'.
In response to your request, I have examined the case
and come to the above conclusions. I now return the
documents you sent me.
Year of the Tiger,
6th month.
Torii, Lord of Kai."
1. It does not appear in the first document that the-
woman went there in this manner and stayed. The inquirer
represents that he invited her, which was probably the view he
thought best to lay before the Council. The ^rst sentence above
about examining the document or documents (there is no means of
distinguishing) causes a little doubt, in that it might imply that the In¬
quiry was the only source of information ; but this seems out of the
question. The point is important because this is the only case I
have ever found of the practice of " sitting dhamn," as it is called
in India. How far indeed there was any such distinct practice
in Japan is not certain; but the present case may fairly be deemed
parallel.
PART m. CONTRACT : LEGAL PRECEDENTS. 889
[No. 118] Private Settlement of Actions for[Seo. VIL
Money-Loans, Wages of Labor,^ etc.
Instructions issued to the Three Magistrates by
the Council of State.
Dated Tempo, XIV (Hare), 12, 14
(February 2, 1844).
" To the Three Magistrates.
Numbers of the families [of the military gentry]
Tiave of late suffered from pecuniary difficuUies, and
various means have been tried for relieving them.
Government loans having been made as often as possible.
But many are burdened with heavy loads of debt, and
would not be able even for years to come to make payment.
The Government, therefore, out of compassion for their
unfortunate condition, and with the purpose of relieving
them from their difficulties, has already decided to change
the rule as to Government loans, and has ordered that
money lent out to them up to the present time
from the public treasury might be repaid by instalments
-covering a number of years.^ Now lending and
borrowing of money generally has its origin in a private
arrangement of the parties, and hence there is no real
necessity for taking up and adjudging disputes of that
sort. Hereafter, therefore, actions for money-loans
■contracted before to-day are not to be taken up and
adjudged; and only those claims which arise in the
future are to be taken up and adjudged. Of course this
-applies also to claims for wages of labor, ^ hire of services, *
salaries,® etc.
1. Teina-chin. 2. This order is found in No. 91, ante,
3. Tema-chin. 4. Yatoi-chin. 5. Kyv-kin. The three termg
-seem here to ^dicate merely higher grades of labor. Tema-chin
corresponds to our day-laborer's hire; kyukin to our monthly or
jearly salaries.
890
PRIVATE LAW IN OLD JAPAN I
No. 118] Note, that even those claims on which judgment has
been rendered and payment by instalments ordered are not
to be any further attended to by the Magistrates' Courts.
Interest is to be allowed only at the rate fixed by
the Proclamation of the last Tiger year, i and the taking
of higher rates under other names must not be allowed. As
a rule the aid of the Court need never be invoked in
disputes over money-loans, of however long standing,
if lender and borrower meet each other with a true
sense of their mutual duties.2 Now although private
settlement is hereby ordered, both parties must make
the settlement with a true sense of their mutual duties,
according to the principle of the Proclamation of the
9th year (Serpent) of Kw.ansei.3 Debtors must not
dishonorably refuse payment merely because an action
on the claim will not be taken up in a Magistrate's Court;
creditors must not attempt to evade the law by making
the claim appear to be of a class which the Court takes up
and adjudges. Those who violate the law in these ways
shall be punished severely.
Where a judgment is rendered [in future] ordering
payment by instalments, the defendant who repeatedly
brings in deficient instalments ^ shall be examined and
[if culpable] punished.
The above order is to be proclaimed in all the villages
and wards.
12th month.
The above proclamation is issued; and it is to be
published in the same places as that of the last Tiger year
(1842), and that of the 9th year (SStpent) of Kwansei
(1797)."
1. No. 83, ante. 2. The creditor's duty would be to consider the
circumstances of his debtor and have compassion on him if he had
met with misfortune or his resources had diminished. 3. No. Ill,
ante. 4. The partial abolition of instalment-judgments, as shown in
No. 28, ante, had not yet occurred.
PART III. CONTRACT : LEGAL PRECEDENTS. 891
[No. 119] Proceedings under the Order for [Sec. vii.
Private Settlement of Claims for Money
Loans, Wages of Labor, etc.
A Resolution of the Chamber of Decisions,
Full Session.
Dated Tempo, XIV (Hare), 12, 15 (February
8, 1844).
" Whereas an order has been issued that no claims
for money-loans, unpaid purchase-money, wages of labor,
etc., already contracted should be taken up and adjudged,
and also that even those claims for which au order of
payment has been issued and a day for rendering judgment
appointed should he dismissed and no further enforced,
the following rules shall he adopted for the trial and
final disposition of actions before the Chamber of Decisions :
Actions now pending trial or already ordered paid within a
given period or ordered paid by instalments shall he
disposed of by the presiding Magistrate ^ by a general order,
as follows :—
' An Order has been issued by the Government
that no claims for money-loans, unpaid purchase-
money, wages of labor, etc., already contracted
should be taken up and adjudged, and also that
even those claims for which an order of pay¬
ment has been issued or a day appointed for
rendering judgment should be dismissed and no
further enforced. All claims therefore now
pending trial or already ordered paid within a
given period or ordered paid by instalments
will he no further enforced by this Court, and
private settlements of claims before the Court
need not be reported.'
*
1. Kakari-hugyo ; that is, the one of the two or more Magistrates
of each Court whose monthly turn it was to preside.
392
PRIVATE LAW IN OLD JAPAN :
No. 119] In actions which have gone no further than the service
of the complaint bearing first-seal ^ and indorsing-seal, an
order to the above effect should be made when the parties
appear on the appointed day, and the complaint should be
taken in possession by the Court.
Note, that (he complaint, not only in the above
cases, but also in cases privately settled, should
be taken from the plaiutifl" and brought to the
Chamber, and there the indorsiug-seals should
be cancelled by ail the members.
In actions where the order of payment has directed
that the instalments be paid in at the neighboring
deputy's office on account of the distance [of the
parties] from Yedo, the Finance Magistrate is to direct
the officers of the deputy to take possession of the
term-payment instrument ^ and transmit it to the Magis¬
trate. Actions [of the sort] under the jurisdiction of
the Temple Magistrate must be attended to by him, and
[the complaint] transmitted to the Finance Magistrate.^
All term-payment instruments given on former occasions
to parties should be taken into possession by the pi'esiding
Magistrate and sent to the Chamber.
Note, that even in the case of actions summarily
disposed of 5 and not reported to the Chamber
the same rule should apply.
Claims for house-pledge loans, wages of domestic
servants, loans on pledges of reliable property, ® bills of
exchange, loans on land-pledge, rice-deposits, etc., shall be
1. Sliohan. See No. 13, avtf. 2. Unthau. ,3. KiriUin nichigen
slwiiion; the document of submisEioii to the judgment, executed
by the defendant and given to the plaintiff, engaging to pay
the amount adjudged due. 4. This seems to refer to actions
between residents of private fiefs and Shogunate districts,
which would come under the Temple Magistrate's preliminary
jurisdiction. 5. Te-hagiri. See p. 101, note 3. 6. See p. 80,
note 2.
pakt iii.—contract: legal precedents.
893
taken up and jud^^ed, whether or not they were contracted [Sec. VU.
before the Proclamation.
Note, that [alleged] house-pledge loans and
rice-deposits should be treated as ordinary
money-loaus, [if] on investigation [they appear
to be such in reality]. Ground-rent and shop-
rent claims should be taken up, whether datiug
before or after the Proclamation, according to
the principle laid down in the Proclamation of
the 9th year (Serpent) of Kwansei.
Judicable claims are those datiug from and after the
14th of this month; claims dating before that are uou-
judicable.
Claims for loans by the Governmeut, by the Three
Families,1 by the Emperor, by royal abbots, from assistance-
fuuds^ belonging to temples of high rank or otherwise of
special importance, or from funds belonging to a whole village
or ward, shall be taken up, whether dating before or after
the Proclamation.
Note, that loans professing to be of the above
character should be investigated, if there is
reason to believe that some portion of the loan is
in fact an ordinary loan, and judgment be
given accordingly, on consultation of all the
members of the Court, all doubtful cases being
reported [to the Full Chamber].
In accordance with the regulations, the instruments
on which suit is brought are taken into possession by the
Court when an order of payment is issued,^ and hence, in
order that the creditor may be able to effect a compromise
[of a claim covered by the Private-Settlement Order], he
1. See p. 144* note 2. 2. Seep. 380. note 1. 3. Because thereafter
the uke-shomon (Bulmission-document) serves as the proof of debt
and the basis of further suits. See p. 99, note 1.
894
PRIVATE LAW IN OLD JAPAN :
No. 119] must have the instrument renewed by the debtor.i When a
creditor complains that the debtor has refused to do this,
the debtor should be urged by the Court to renew tho
instrument, in virtue of the [benefit reaped by him from the]
issuance of the Private-Settlement Order. If he still refuses,
some punishment, to be determined by a consultation of tho
Full Chamber, should be inflicted.
Note, that the renewed instrument must not bear
date after the current 12th month ; it must cor¬
respond to the old claim and must bear [the-
same date, viz.] a date before the 12th month.
The proceedings in all actions henceforth shall be in
accordance with the Instructions ^ [of the Council] and
this Resolution of the Chamber prescribing the rules for
carrying them out.
The above resolution is agreed to."
[No. 120] Private Settlement of Claims concern¬
ing the Shipping of Goods.
A Reply by the Clerks of one Town Magistrate to
a Consultation by those of another.
Dated Tempo, XV (Dragon), 8 (May, 1844).
1. Consultation.
" To Kara Kakuyemon, Esq.,
Nakata Shintaro, Esq.,
from Tojo Hachidaju,
Nakashima Kayemon,
Shima Eiichiro.
We beg to ofier our compliments. Au action relating^
to goods shipped has been brought by Magobei, renter of
1. Because, as has been ordered above, the submission-document-
is taken away by the Court. 2. No. 118.
PART III.—CONTRACT : LEGAL PRECEDENTS.
395
the honse of Kichirobei, of Block No. 3, Koami ward, [Sec. VIl.
[Yedo,] against Choyemon, renter of the house of Chuzo,
of Homminato ward. The claim is really for the freight-
money advanced 1 for the shipping of the goods. We
heard some days ago that in your Department private
settlement had been ordered in a recent action for freight-
money advanced for the shipping of goods. If this is true,
we shall also order private settlement in the above case
without asking for any consultation between the Minister
of Public W orks ^ and your chief.^ We therefore request
an early answer.
3rd month, 28th day (May 15, 1844)."
2. Eeply,
"To Tojo Hachidayu, Esq.,
Nakashima Kuyemon, Esq.,
Shima Kiichiro, Esq.,
from Hara Kakuyemon,
Nakata Shintaro,
Hara Zenyemon.
We have read your letter. Last (Hare) year, llth
month (January, 1844), an action for freight-money was
brought before your chief against Kumagoro, renter of
the five-men-company's house ^ of Block No. 5, Hon-
hatcho-bori ward, ® by Hyojiro, member of the household
of Kamijiro, renter of the land of Seibei, of Block No. 2,
Funamatsu ward, and at the same time an action for
wages advanced® was brought before our chief against
1. Vnchin genkin ; probably the transaction was an instance of
the common practice of the advancing of funds by the wholesaler to
the prodncer or some inteiinediary. Here the former seems to have
advanced the cost of transportation and is now suing to recover it.
2. Town Magistr(#e. 3. The other Town Magistrate. 4. See
p. 244, note 1. 5. Wherever no town is mentioned the locality is
understood to be Tedo. 6. Yatoi-zenkin. See p. 389, notes.
896
PRIVATE LAW IN OLD JAPAN :
No. 120] Kichiyemon, renter of the house of Chuhichi, of Kameshima
ward, by Sahichi, renter of the house of Ubei, of Block
No. 1, Koami ward. As the two actions were deemed
to be entirely similar in principle, an order of private-
settlement was issued for both, after your chief bad
consulted our chief in the 1st month of tbis year. You
may compare these cases with the one now before you.
Such is our answer.
Brd month, 29th day."
[No. 121J Proceedings in the Magistrates' Courts
in Money Actions after the Private Settle¬
ment Proclamation.
Reply by a Magistrate to a Consultation by Matsu-
dairu. Governor of Kyoto.
Dated Tempo, XV (Dragon), 6, 14 (July 28, 1844).
1. Consultatidii.
" A Proclamation was issued in the 12th month of the
last Hare year, ordering that thereafter no claims on money
loans contracted before a certain day should be taken up
and judged, and I beg to make the following inquiry with
reference to it.
The rules adopted in m}' fief [in consequence of the
Proclamation] are these. None of the following classes of
claims when arising on or before the 15th i day of the 12th
month of the Hare year, are taken up, while those arising
on and after that day are taken up : cTaims for [ordinar}']
money loans, unpaid purchase-mone}',^ wages of labor, hire
of services, loans from temple-funds, loans from patent-
1. This is an error of the writer's ; it should be the 14th.
See No. 118. 2. For the vernacular terms and for explanations, see
No. 5, ante.
PART III. CONTRACT ; LEGAL PRECEDENTS. 397
funds, bills of exchange, earnest money, dowry-money, in- [Sec. VII.
vestment-money, loans secured by deeds of deposit of
sundry utensils, or by deeds of sale of various articles, or
by hypothecs of rice-field, upland, houses, or residence-land.
Is this proper ?
I think that the following claims should be taken up
and ordered paid, whether dating before or after the
Proclamation ; Claims for ground-rent, shop-rent, domestic
servants' wages, loans secured by hypothecs of shares i in
the hairdressers' guild, or by deposit of chattels not in the
form of a regular pledge, bills of exchange. Is this proper ?
As to a claim for a sum of money deposited by a
ground-tenant with the land-owner as security ^ and
retained by the land-owner on the removal of the tenant:
should this be treated on the footing of a pledge-loan ?
(Note, that the usual rate is that of 50 njo, in security-money
for a yearly rental of 80 njo, and custom requires that
the land-owner shall restore the security-money to the
tenant when he removes). Should claims for loans on
house-pledge, loans on land-pledge, and rice-deposits be
treated in the same way? If so, should, nevertheless,
claims purporting to be of one of these three classes, but
not in reality so, be treated like the ordinary money loans
of the Proclamation ?
I make the above inquiries, as I wish to understand
the whole subject.
6th month, 14th day.
Tsutsumi Yayemon, retainer of Matsudaira,
Governor of Kyoto."®
2. Appended Reply.
" Money actions in general, when founded on claims
dating before the Proclamation, are not' to be taken up.
1. Knhu. 2. ShiU-kin. 3. Of course an honorary title.
398
PRIVATE LAW IN OLD JAPAN I
JIo. 121J But claims on loans made upon the security i of rice-field,
upland, residence-land, should be taken up and tried, if the
contents of the instrument and the seals affixed are such
as to make it proper. Claims for ground-rent, shop-rent,
domestic servants' wages, bills of exchange, and loans
on pledges of reliable property, are to be taken up and
judged. Since the customs in regard to shares were
abolished,2 no loans secured by hypothec of shares in the
hairdressers' guild have been taken up.
It is not likely that a security-money greater that the
rent would be deposited with the land-owner; but if a
claim of that sort appears on examination to be well-
founded, it should be taken up and adjudged, whether
arising before the Proclamation or not.
Claims for loans secured by house-pledge and land-pledge
and for rice-deposits should also be taken up ; unless they
are not really of the above classes, when they should be
rejected as ordinary money-loans.
The above are the proceedings employed by the
Magistrates' Courts. In the private fiefs, however, all
actions may be disposed of according to the ancient usages
•of the ruling family."
[No. 122] Proceedings in Actions on Money
Claims arising before the Private-Settlement
Order, the Parties being residents of
Provincial Fiefs.
An Inquiry by a Eetainer.
Dated Kokwa, II (Serpent), 2 (March, 1845).
1. Hiki-ate. 2. This refers to the abolition of guilds, which
had occurred a year or two before. See Part I.
PAKT III. CONTRACT I LEGAL PRECEDENTS.
399
I. Consultation.
" In the 12th month of the Hare year a Proclamation
•was issued, ordering that claims on money loans contracted
before a certain day should not be adjudged, because such
transactions originate in mutual trust and fidelity and should
be quietly settled by the parties without the aid of the
'Courts; and claims arising on and after the same day were to
be taken up and judged. Shall, therefore, the officials of
my fief in the country ^ follow the same rule and dismiss
actions on money claims arising before the 18th day 2
of the 12th month of the Hare year ?
In accordance with the general regulation when the
farmers and townspeople of my fief borrow money of
residents of another fief and default in payment, and the
parties are at odds and cannot settle the case privately,
the action is brought after getting a certificate from
myself and from the lord of the creditor's fief. But,
.according to the proclamation of the 18th day of the
12th month, all loans before that day must be settled
privately between the parties, and no action upon them
is to be taken up iu a Magistrate's Court. Hereafter,
therefore, where the loan is between parties of two
different fiefs, and the ofiicials of the other fief communicate
with those of mine about the claim, may I refuse to give
the certificate, by reason of the provisions of the Procla¬
mation ?
Are the claims in the two following lists to be taken
■up and adjudged, whether arising before or after the
Preclamation ?
(a) Money loaned on security of land-pledge, house-
pJedge, and pledge of reliable property.
1. ChUiO no ryohun (lit., provincial fief). 2. The day of the
Proclamation was iu fact the 14th. See No. 118.
400
PRIVATE LAW IN OLD JAPAN :
. 122] (h) Groimd-reut, shop-rent, domestic servants' wages.,
price of rice deposited, ^ investment-advances for goods,,
etc.
I beg to make the above inquiries, because the
officials of my home fief^ write that they wish to know
about these matters.
2nd month.
Miya Wasuke, retainer of
Ogasawara, Castle Inspector.
Postscript. In regard to a claim on an instrument
asserted by the creditor to be an instrument of pledge, which
is really not so, as it has no recital of the area of the laud
or of the amount of rice^ (see the copy enclosed), and the
land has not been delivered [into the creditor's possession]:
should such a loan be treated as an ordinary loan ?
I beg to make this inquiry, because the officials of
the home-fief have written that they wish to he informed
on this point.
Miya Wasuke, retainer of
Ogasawara, Castle Inspector."
2. Enclosed Instrument.
" Government assessment, 4 l.-oku, 1 to, 4 s/io,.
5 po. In the Government territory, ^ the
plots 5 of Yayemon and Shichiyemon.
Being unable to pay seven-tenths of my land-tax,
I have delivered over the above amount® of land and have
at the same time received the price and have paid off the
1. Azukari-mai daikin. See the later Chapter in this Part on
" Deposit." 2. Hoii-ryo (lit., principal fief), referring to his provincial
estates ; his letter probably was written during his periodical stay in
Tedo. 3. Kome no tori-daka. This means either the amount to be¬
taken {tori) by the pledgee as rent from the pledgor as tenant
or, more probably, the amount of the tax-rice in default (tori-mai
being a popular name for tax-rice). 4. Go-ryobim, the domain of the-
Shogunate family. 5. 0-taka.
PART III. CONTRACT ; LEGAL PRECEDENTS. 401
taxes therewith. The foregoing statements are true; and [Sec. VIL
therefore from the ensuing Ape year (1836) you may use
the land as you please; but whenever the price shall be
repaid, you are to return the above amount of land and the
instrument. For future testimony I give this instrument,
countersealed by the surety and by all the villagers.
Tempo, VI (Goat), 12 (February, 1886).
Jiyemon, chief headman,
Soyemon, surety,
Chuyemou, head-farmer,i
Niyemon, general representative,2
of Bantojima village.
To Zenyemou, Esq.,
of the same village."
8. Appended Beply.
" (1). As regards actions between residents of your fief
and another fief, when the oflScials of the other fief com¬
municate the claim to you, your officials may refuse your
certificate, according to the provisions of the proclamation,—
if it is in reality a claim which the Proclamation requires to
be privately settled.
(2). Claims based on loans secured by land-pledge,
house-pledge, and pledge of reliable property, as well as on
ground-reut, shop-rent, domestic servants' wages, and bills
of exchange, are to be adjudged and payment ordered,
whether or not they date from before the Proclamation,
But claims alleged to be of the above sorts, but proving on
examination not to be so, are to be treated on the footing
of ordinary money loans. Claims for investment-advances
for goods are not to be taken up and adjudged if they date
from before the Proclamation.
1. Cho-hyakusho. For some notes on the classes of people in a
village, see Simmo»s, Notes, etc., p. 113. 2. Sodai; of all the farmers.
His duty here is not clear.
Vol. XX. Sup. Pt. iU.-36.
402
PBIVATE LAW IN OLD JAPAN I
Ho. 122] (8). On examining the enclosed copy of the instru¬
ment, it is clear that it is not a true instrument of pledge,
but is merely an instrument making certain cultivated
land the security for a debt; but on this matter the inquiry
must he made of the Finance Magistrate, as the contractors
are residents of a village [in the Government domain]
[No. 123] Disposition of an Action in which
the Date of the Loan is disputed, each Party
offering several Witnesses in Support,
A Decision^ of the Chamber of Decisions, Full
Session, upon a Consultation by the Town
Magistrates.
Dated Kokwa, 11 (Serpent), 9 (October, 1845).
1. Consultation.
"From Toyama, Warden of the Palace Gates,
Nabeshima, Minister of Public Works.
Where, in actions on money-loans brought since the
Proclamation, the defendant alleges that the instrument was
originally given before the Proclamation and was renewed
after the Proclamation,® and the plaintiff alleges that the
loan was originally made after the Proclamation, and neither
offers any proofs, the dispute should be determined accord¬
ing to the tenor of the instrument; and this has been the
practice. But sometimes a particularly difScult case arises,
as when the defendant brings forward «vritten proofs of
an indisputable character; and such cases have been
determined according to the opinions reached by each
1. Sodan-sumi (settlement of a matter consulted about).
2. Because such a claim was deemed to be covered by the
Proclamation.
PART HI. CONTRACT : LEGAL PRECEDENTS. 403
Magistrate. As their opinions may differ, this may result [See. YIK
in different decisions for similar cases. Is it not better,
therefore, to adopt rules such as the following for the
determination of these cases ?
(1). Ordinary instruments of loan, bearing date of the
12th month, 14th day,^ or later :—When, in an action on
such an instrument brought after the Proclamation, the
•creditor alleges the claim to he a new one, and the debtor
alleges it to he an old one [renewed], and offers as proof a
written receipt for part-payment 2 on the old instrument, and
when the contents and seals of the old instrument or the receipt
thus offered are trustworthy and corroborate the defendant's
statements, the claim should be treated as an old one and not
taken up. According to the decision 3 of the Full Chamber,
in .Anyei, IV (Goat), 12 (January, 1776), directing that
-* letters, receipts, pass-books,^ and other documents offered
by the defendant as proofs should not be accepted without
■ careful examination as to genuineness; when they bear
the priucipal-seaP [of the plaintiff], they must be deemed
authentic, and an order of payment in yearly, or monthly
instalments should accordingly issue; if the proper seals are
not affixed or the amounts, etc., do not agree with the
facts of the pending claim, the documents dating before
the Proclamation should not be accepted as proof [that
the claim is an old one] and the claim should be deemed
a new one. The action must therefore be taken up, and
the debtor's allegations rejected.
1. That is, of Tempo, XIV. 2. Uchi-kin. 3. Hyohetsu.
4. Kayoi-cho. The customer was given this by (usually)
the retail seller, and at each purchase an entry was
made in the pass-hook. A similar entry was made in the
customer's ledger-account as kept by the seller, and the edge
•of the pass-book being placed in such a way that the two entries
made a continuous line (which the perpendicular lines of writing
made quite easy), the«eller's clerk impressed his seal so that half
appeared in each book.
404
PRIVATE LAW IN OLD JAPAN :
123] (2). Claims on instruments in which the amount is
composed of an old and a new loan, the former made before,
the latter, since the Proclamation ;—
In Kwansei, XII, Ape (1800), while Odagiri, Lord of
Tosa, was in office [as Town Magistrate], some money-
loan actions against military gentry were brought by Otani
Sliunto, town doctor, ^ of Block No 2, Sakamoto ward,
Shitaya [district], in one of which he alleged as follows :
In the 8th month of the Serpent year of Kwansei (1797) he
had lent 8 njo to the defendant on his request. After
the Proclamation ^ he again lent him 10 i-yo, the debtor at
the same time paying hack the interest and principal of the
Q-ryo loan of the 8th month, and the creditor returning the
old instrument and getting a new one. Thus the loan
was really a new one dating since the Proclamation.
We had a consultation upon the case, and decided as
follows : ' The instrument was to be regarded as a renewed
one, and the loan as one made before the Proclamation;
for if this claim were taken up and adjudged, all claims
on renewed instruments must by the same principle be
taken up; hence the claim should be rejected, and the
parties ordered to settle privately.' The rule established bj'
this decision was afterwards applied in a number of cases,
and it seems, at the first glance, to be a proper one. But
suppose that one lent 200 ryo, for example, before tbe
Proclamation, and then after the Proclamation lent 100 ryo
more and took a new instrument of loan for 300 ryo;
it would certainly not be right to treat this entire claim as
an old loan re-written. lu the above case tbe additional 2
ryo is no doubt a small sum, but the 100 ryo in the example
just given is a large amount [and shows fhat the question
may become an important one]. Though it may have been
reasonable [in that particular case] to regard the instrument
1. This case is No. 115, ante. 2. Which appeared in the 9th
month.
PAKT III, CONTRACT I LEGAL PRECEDENTS. 405
as merely a renewed one, it would be unjust invariably to [Sec. YII,
treat all such claims ^ as old ones dating before the proclama¬
tion and to order private settlement. It seems to me, therefore,
that the following rule would be better : Where it appears
clearly from the instrument of loan or other documents that
a portion of the amount claimed was lent before the
Proclamation, and an additional sum after the Proclamation,
the claim should be rejected, to; the extent of the former
amount; but the claim for the latter amount should be
taken up and judged. Where the defendant's assertions
[as to the date of the claim] are corroborated by no written
proofs, the claim should of course be treated as a new
one.
We ask your opinion on the above subjects.
Year of the Serpent,
9th month."
2. Decision,
" The rules proposed by you for the determination
-of the two cases stated in your letter seem to us eminently
proper, and we are willing to adopt them. Hereafter, then,
we shall all observe these rules.
Year of the Serpent,
11th month.
The Temple Magistrates.
The Finance Magistrates."
1. In the above case the alleged new loan of 10 ryo may really
have been a mere re-writing of the interest and the 8 ryo principal,
especially as the •lleged payment and re-lending occurred at the
same time and could have been nominal only. But a real
instance of a new loan, as in the supposed case above, should
be treated as new, to the extent of the new advance.
406
PBIVATE LAW IN OLD JAPAN :
[No. 124] Application of the Private-Settlement
Order outside Yedo to Actions in Totvns
and Villages of private Fiefs.
A Decision of the Full Chamber upon a Consul¬
tation.
Dated Kokwa, II (Serpent), 12 (January, 1846).
1. Consultation.
"In the 12th month of the Hare year the Procla¬
mation was issued that claims on money-loans dating
before a certain day need not he taken np and adjudged.
May the provisions of the Proclamation he adopted in
the towns and villages of the various private fiefs of the
provinces as well as in Yedo ? There is no difficulty in
applying them whei'e the parties are residents of the same
fief; but where they are residents of different fiefs, what
is to he done ? Are we to understand that the Govern¬
ment Proclamation applies throughout the whole country ?
The officials of our lord's home-fief ^ are desirous of being
informed on these points; and we therefore make the-
above inquiry.
7th month.
Kamihara Sakunojo, retainer of
Myura, Lord of Bigo, and
Toyama, Warden of the Palace Gates." 2
2. Report to the Full Chamber.
" From Nabeshima, Minister of Pubflc Works.
A retainer of Myura, Lord of Bigo, has inquired as to
the applicability of the Proclamation's provisions [to private
fiefs]. Claims by residents of Yedo against residents of
the provinces, [if they date before the Proclamation]
1. See p. 400, note 2. 2. Doubtless he indorsed the inquiry,,
handing it on just as it was.
PART III. CONTRACT I LEGAL PRECEDENTS. 407
should of course not be taken up. But Kyoto [Sec. VH
aud Osaka are known to have their own special
usages, and hence their oflScials need perhaps not follow the
rule of the Proclamation. All other towns and villages,
whether of private fiefs or of the Shoguuate domain, should
obey the Proclamation; so that deputies and esquires
should not take up claims dating before the Proclamation
and the parties should be ordered to settle privately.
Should this be the rule ? There has never been any
provision relating to the applicability of the Proclamation,
not even at the time of the Kwansei Proclamation. ^ I
therefore consult you upon the point.
Year of the Serpent,
8th month."
8. Communication hy one Town Magistrate to the other.
" To the Warden of the Palace Gates, from
Nabeshima, Minister of Public Works :
An inquiry having been made by a retainer of Myura,
Lord of Bigo, as to the applicability of the proclamation
respecting money loans, I presented a written consultation
to the Full Chamber, after having talked it over with
you ; and the Full Chamber replied as in the enclosed
document. An order to this effect should be given
to the retainer of the Lord of Bigo.
I hereby communicate to you the decision, enclosing
the document.
Year of the Serpent,
12th month."
4. Reply of the other Magistrates.
" Actions in the Four Provinces,^ West Provinces,^
and the Middle Provinces^ under the jurisdiction of the
Kyoto and Osaka Magistrates should be disposed of
1. This seems to be an error. See No. 13, Art. B, p. 23, ante.
2. Shikoku. 3. Saikoka (i.e. Kyushu). 4. Chugoku. The Sanindo
408
PRIVATE LAW IN OLD JAPAN t
Uo. 124] according to the regulations peculiar to those districts ;
and the same is true for other fiefs which have ancient
usages of their own. All others must follow the provisions
of the proclamation. Hence, as to the inquiry of the
retainer of Myura, Lord of Bigo, actions between residents
of his fief in Sakushu ^ and residents of Osaka must he
regulated by the rules of the Osaka Magistrate's Court; but
when actions between residents of his fief and
residents of other private fiefs or parts of the
Shogunate domain are brought in Yedo [before the
Temple or Finance Magistrate], the Magistrates should
order private settlement and not take them up, following
the Proclamation. Thus, though the provisions ought
rightly to be applied throughout the country, the districts
which have ancient usages of their own, such as Kyoto
and Osaka, must be regarded as exceptions ; in all other
parts the proclamation must be observed.
This is our opinion. Should not an answer to this
effect be returned ?
Year of the Serpent,
12th mouth.
The Temple Magistrates,
The Finance Magistrates."
[No. 126] Arrears of a Loan made hy the
Family-Temple of the Lord of Oivari
previous to the Private-Settlement Order.
A Reply by the Temple Magistr^e to a Consult¬
ation by the Town Magistrate.
Dated Kayei, II (Cock), 10 (November, 1849).
and Sanyodo provinces are sometimes designated as " Chugoku."
But not all actions there arising were under the Osaka and other
Magistrates (see No. 48, ante). Only actions by plaintiffs in those
provinces againt residents of the Kyoto and Osaka districts were
under the jurisdiction of these Magistrates.
1. Mimasaka kuiii.
PART III. CONTRACT LEGAL PRECEDENTS. 409
1. Consultation, [See. VII,
"To the Temple Magistrate,
from Toyama, Warden of the
Palace Gates:
The temple-fimd [of the family-temple] of the Lord
of Owari consists of money given by the favor of the Lord
Eeisen-in,i from his money remaining after his death, to
the Jisho Temple, of the Tendai sect, at Ichigaya [district,
Yedo], for memorial services. So whenever a payment has
been made of a loan from this fund, notice has been given at
the lord's mansion in Ichigaya, and the transactions
[connected with these loans] have been accomplished in the
presence of the proper officers [of the Lord of Owari] ;
moreover, wherever payment is not made, an action has been
brought in the Magistrate's Court, as the instrument of
loan provides. Now, in spite of the fact that the instrument
dates before the Private-Settlement Order of the Hare
year, 6 ^ years ago (1844), should payment be ordered ?
Year of the CocV,
10th mouth."
2. First Reply.
" The Loans by the Jisho Temple of the Tendai sect,
at Ichigaya, were made before the Private-Settlement Order,
and hence I agree with you that it is difficult to order their
payment. However, until I know the nature ^ of the claim
and the terms [of the contract] and see the instrument o
loan, I cannot give you a final answer.
Year of the Cock,
10th month.
Honda, Minister of the Imperial Household."^
1. Reisen-in Sama; the posthumous name of the donor. 2. Five,
by our reckoning. 3. Slyonioku, 4. Temple Magistrate.
410
PRIVATE LAW IN OLD JAPAN I
No. 125] 8. Letter from the consulting Magistrate.
"In accordance with your directions I send the instru¬
ments for your examination.
Toyama, Warden of the Palace Gates."
4. Second Reply,
" On examining the copies of the instruments enclosed
by you and reflecting on the whole subject, my opinion is-
that although the loans from the temple-fund in question,
which was founded many years ago in the interest, of the
family of the Lord of Owari, are not by any means to be
regarded as ordinary loans, yet it does not seem proper to
order payment of them for this temple, in spite of the
fact that the loans were always made under sanction [of the
Lord of Owari]. I think that an order of payment should
not be made, because the instrument is dated before the
Private-Settlement Order. I therefore return you tho
documents enclosed.
Year of the Cock.
11th month
Honda, Minister of the Imperial Household."
5, Documejits enclosed.
a. " Money Deposited.^
Gold, ryo :
Interest at 5 hu silver [per month] per 1 ryo
gold.2
As our lord is m great need of money for public
purposes, he finds himself greatly obliged to your Temple
1. Azukari; this term was a less mercenary one than the term
" loan," and hence was preferred as one giving the loan the conven¬
tional appearance of a friendly transaction. 2. A 6u or fun was one-
tenth of a momnie, and 60 momme made a ryo; the rate was thus 10
per cent, a year.
PART m. CONTRACT : LEGAL PRECEDENTS.
411
for the assistance rendered, after he had long sought fruit- [Sec,
lessly elsewhere. Your assistance having been extended,
he engages to keep the money in charge safely. Payment
shall be made without fail, both principal and interest, by
the 20th of the next 12th month, with the rice-harvest ^
of this income-fief as security. If the amount is not paid
when due, the rice-harvest shall be delivered by the
villages at the market-price. An instrument signed by
the villages is hereby given, as well as an instrument with
the signatures of our lord and ourselves; these to be
valid notwithstanding any change of lord, office ^ or
generation.^ Payment shall diligently be made. For
future testimony this is given.
period, ,
month,
day. retainers of
Family.
To the Officials of the Jisho Temple."
[Indorsed]
" The contents of this document are correct.
b. " Our lord , being now in urgent need
of money for public purposes, after spending much time in
making fruitless requests elsewhere,® heard that a loan
could be had from the temple-fund donated by the family of
the noble lord ® at Ichigaya, and has been permitted to receive
1. Mononari-home. 2. Yakn. 3. Dai. That is, the obligation
■would bind the successor in ofSce and the successor in family
mastership. 4. Apparently intended for the names of the retainers
acting for the borrower. 5. This phrase, expressing a sentiment
which we should try to conceal, seems to be a conventional attempt
to make it appearthat the borrower has not gone to the lender as
to a professional money-lender, but after much fruitless effort has
turned to him as a friend. 6. Oyakata, a term often applied to
persons of rank.
412
PRIVATE LAW IN OLD JAPAN I
No. 124J a sum on deposit. The depositary acknowledges the receipt
of the amount named in the enclosed document. This
money is from the fund for memorial services for the lady
Jisho-in,i the mother of the lord Reisen-in, donated by him
out of profound regard for his mother, from money left by
him.2 For this reason the proper officials are to come,
on the occasions of payment, and witness the transaction,
notice being given to the noble lord beforehand.
Failure to pay would necessarily hinder the celebration of
the memorial services, and therefore we shall never ask for
delay. The notice that suit will be brought in the
Magistrate's Court on the day when the money is due, [if
it is not paid], has been communicated to our lord, and
he has declared himself satisfied and has signed his official
seal ou the enclosed instrument. As a further security
we give this instrument also.
month.
representing both public and private
interests ^ of
Family.
To the officials of the Jisho Temple."
c. " Instrument handed up.
Aic?ii, Ao/ i,
village.
Total assessed production, AoAii.
This year's tax-rice, • AoAu.
The esquire , possessed of the above amount, has
borrowed ri/o, from j'our Temple for household
1. The temple was thus named after this person, a not
uncommon occuiTence. JUlio-in is the term here rendered Jisho
Temple; the in is the same in the names of both temple and
person. 2.1-kin. 3. These two retainers represented the depart¬
ments dealing with these affairs.
PART III. CONTRACT : LEGAL PRECEDENTS. 413
purposes. The above rice-harvest is to stand as securitj' ^ [Sec. VII.
for this loan. If payment is not made, the above security-
rice shall be sold off, and the loan paid from the proceeds as
agreed. In case the proceeds are insufficient, the payment
shall he completed by an increased taxation assessed
according to the assessed production of the villagers. For
future [testimony] this instrument is given, sealed by the
villagers.
kuni, kori,
' ——J
period, representative of the farmers,
month, day. ,
company-chief.
headman.
To the Officials
of the Jisho Temple.
The above instrument given by the villagers is correct.
They are aware that arrears of the loan are to be paid
from the harvest-rice as we have already directed. If any
land in the village becomes waste, so that it supplies no rice,
other villages shall supply an equivalent amount, and no
delay will occur in the payment of the rice as agreed.
retainers of
Family."
[No. 125] Private Settlement of a Claim for
Money paid on behalf of Another.
A Reply by the Clerks of one Town Magistrate to-
a Consultation by those of another.
Dated Tempo, XV (Dragon), 8 (September, 1844).
ji ■
1. initiate.
PRIVATE LAW IN OLD JAPAN :
No. 125] 1. Consultation.
" To Uara Tsuruyemon, Esq.,
Nakata Sbintaro, Esq.,
from Tojo Hachidayu,
Nakashima Eayemon,
Matsunra Yeinosnke.
We desire an answer to an inquiry. We congratulate
you on the diligence shown in the discharge of your duties,
and wish you every prosperity. We are at present engaged
in the trial of a suit for money paid on behalf of another i
previous to the Private-Settlement Order, In the last
Hare year your chief, on being consulted as to a claim for
money paid on behalf of another, replied that the term of
payment should he double that employed for [ordinary]
mcney-loans, prayer-fund loans, and house-pledge loans.
Since, therefore, it is regarded as a money claim, we think
it would be proper to order private settlement, whether the
agreement was for interest or not. This is our opinion ;
but in order to make sure that this is right, we are
waiting until we hear from you.
8th month, 8th day."
2. Reply.
" To Tojo Hachidayu, Esq.,
Nakashima Kayemon, Esq.,
Matsuura Yeinosuke, Esq.,
from Hara Tsuruyemon,
Nakata Sbintaro.
We understand clearly the purport of your letter, and
on the point about which you consult us w*think as you do.
Such claims have been regarded as subject to private
settlement. Such is our reply.
Year of the Dragon,
8th month, 20th day."
1. Tatehaye-kin.
PAKT III. CONTEACT ! LEGAL PRECEDENTS. 415
[No. 126] Claim based on Dishonest Refusal to [See. Vlli
paij a Loan Contracted before the Private-
Settlement Order.
A Reply by the Temple and Finance Magistrates
to a Consultation by the Town Magistrate.^
1. Consultation.
" Consultation,
by Sakakibiira, Minister ot
Imperial Revenues.
Jirohei, renter of the shop of Yasubei, of Block
No. 5, Minami-hatcbobori [ward] ...Plaintiff;
Tanabe Yeisuke, and 2 others, retainers of
Hondo Kuranosuke, Councillor of the First
Rankji and
Sakurai Sodayu, and other, retainers of Mizuno
Tojiro, of the company of Mizuno, Lord
of Hoki, of the Palace Library Watch
Defendants.
The above action was brought by the plaintiff Jirobei;
and at the trial it appeared that during the lifetime of his
father Jirobei, to wit, in the 6th year (Tiger) of Kwansei
(1794), that his father had advanced 3 money, amounting
to more than 3,700 j-yo to the Lord of Yamato, the pre¬
decessor of the present family-master, Honda Kuranosuke,
for household expenses. The said Jirobei brought action,
in the 12th month of the 8th year (Dragon), before Odagiri,
Lord of Tosa, then [Town] Magistrate; and while the
trial was in progress, the Private-Settlement Order appeared,
1. See p. 170, note 3. 2. Cited from " Shoji-dotne-sho."
No date appears. But we may assume that the Serpent year (the
date of the letter) is 1821. There were Two serpent years iu this
Magistrate's incunTbency, 1821 and 1833; and the case would hardly
have dragged on from 1797 to 1833. 3. Shiokiiri.
416
PRIVATE LAW IN OLD JAPAN t
Ko. 126] in the 9th month of the succeeding year i and the plaintiff
died; so that an order for private settlement was issued.
The amount of the claim was so large, the plaintiff declared
satisfaction would be improbable, even though all the de¬
fendant's property were sold; and so desiring to have a trial,
on the ground of the defendant's dishonest conduct, in the
10th month of the above year the present plaintiff renewed
the suit before the Lord of Tosa, but pending trial it was
privately settled that a sum of 50 ryo should be paid down,
and the remainder be paid in rice-proceeds 2 at certain
periods or in yearly instalments; and so leave to with¬
draw was granted, after the plaintiff had received
an instrument bearing the informal seal of the Lord of
Yamato and of the Under Minister of the Interior, his vassal
and relative and the predecessor of the above Mizuno
Tojiro, and countersealed by the retainers of the
Under-Minister. Subsequently some payments ^ of rice-
proceeds were made, though not as much as the
contract required. But since the last Rat year^ no
payment has been made, and all requests have been
fruitless. The detention of such a large amount is said
by the plaintiff to be causing him great embarrassment,
and the delay of the past years has been a source of much
loss; for the second time therefore he brings this action
founded on the dishonest conduct of the defendant. It
was found impossible to consult the record of the trial
before Odagiri, Lord of Tosa, because all the official records
had been destroyed by fire. Now the Private-Settlement
Order of Kwausei, IX (Serpent) ,5 declares that any attempt
to repudiate a loan entirely, because of^the Court's not
taking up the claim, is entirely unlawful, and that where
complaint is make of a dishonest refusal to pay, the
1. 1797; see No. 13, ante. 2. Kome-lcin ; proceeds of the sale of
rice. 8. Teate (lit., assistance). 4. 1816, probably. 5. No. Ill,
ante.
PART HI. CONTRACT : LEGAL PRECEDENTS. 41?
defendant should be severely censured. Moreover, the [Sec. VIL
Instructions to the Full Chamber ^ provide that punishment
shall be inflicted, on conviction, wherever the terms of
the Proclamation are disobeyed. Although, then, some
payment has been made on account, shall we nevertheless
have a trial on the ground of dishonest refusal, and
summon the defendant again for this purpose ? Or, on
the contrary, as there were deliveries, though in small
amounts, of rice-proceeds up to the last Kat year, shall
we refuse to grant a trial, because of the large number of
actions, even for very old claims, which would be brought
on similar grounds (for the present claim is based on
a mere private loan) ?
We ask your opinion.
Year of the Serpent,^
6th month."
2. Reply.
" From
The Temple Magistrates,
The Finance Magistrates.
The action in question was brought by Jirobei, renter
of the shop of Yasubei, of Minami-hatchobori [ward].
Block No. 5. Ou the trial it appeared that during the
lifetime of bis father Jirobei, to wit, in Kwansei, VI (Tiger),
the latter advanced a sum of money, amounting to over
3,700 njo, to the lord of Yamato, the predecessor of the
present lord Honda Kuranosuke, for household expenses.
The said Jirobei brought suit before Odagiri, Lord of Tosa,
while the latter was [Town] Magistrate, in the 12th month
of the 8th year (Dragon) of the same period. While the
trial was in progress, the Private-Settlement Order appeared
in the 9th month of the succeeding year, and the plaintiff
died; so that aii order for private settlement was issued.
1. No. Ill, ante, the additional paragraph. 2. 1821, probably.
Vol. XX. Slip. Ft. lii.—37.
418
PRIVATE LAW IN OLD JAPAN;
NOi 126] The amount of the claim was so large, the plaiutiflf
declares, that full satisfaction would be improbable, even
though all the defendant's property were sold; and so,
desiring to have a trial on the ground of the defendant's
dishonest conduct, in the 10th mouth of the above year the
present plaintiff renewed the suit before the lord of Tosa. But
pending the trial it was privately settled that a sum of
50 ryo should be paid down, and the remainder be paid
in rice-proceeds at certain periods or in yearly instalments ;
and so leave to withdraw was granted, after the plaintiff
had received an instrument bearing the informal seal of
the Lord of Yamato and of the Under Minister of the
Interior, his vassal and relative and the predecessor of the
above Mizuno Tojiro, and couutersealed by the retainers
of the Under Minister. Subsequently some payments of
rice-proceeds were made, though not as much as the
contract required. But since the last Eat year no pay¬
ment has been made, and all requests have been fruitless.
The detention of such a large amount is said by the
plaintiff to be causing bim great embarrassment, and the
delay of the past years has been a source of much loss ;
for the second time therefore he brings this action founded
on the dishonest conduct of the defendant, and asks for
the summoning of the retainers of both Kuranosuke and
Tojiro. It was found impossible to consult the record
of the trial before Odagiri, Lord of Tosa, because all the
offcial records had been destroyed by fire. Now the
Private-Settlement Order of Kwansei, IX (Serpent),
declares that any attempt to repudiate a loan entirely,
because of the Court's not taking up the*claim, is entirely
unlawful, and that where complaint is made of a dishonest
refusal to pay, the defendant should be severely censured.
Moreover the Instructions to the Full Chamber provide
that punishment shall be inflicted, on conviction, wherever
the terms of the Proclamation are disobeyed. Although,
then, some payment has been made on account, shall
PAKT III. CONTRACT I LEGAL PRECEDENTS. 419
•we nevertheless have a trial on the charge of dishonest [Sec. YU.
refusal, and summon the defendant for this purpose?
Or, on the contrary, as there were deliveries, though
iu small amounts, of rice-proceeds up to the last Eat
year, shall we refuse to grant a trial, because of the
large number of actions, even on very old claims, which
would be brought on similar grounds (for the present
claim is based on a mere private loan)?
Such is the case on which you have consulted us, and
we understand it clearly.
Now it was provided iu the Instructions of Kwansei,
XI (Serpent),! that henceforth there was to be in the
Magistrates' Courts no taking up, adjudging, or fixing of
payment-terms [iu certain classes of claims]. It is
therefore improper to take up this action alleging dishonest
conduct in regard to a claim arising before the Proclamation
•of the Serpent year. In the 6th Article of the Proposal
made in Buukwa, III, Tiger (ISOB),^ relating to the
revision of the procedure in money actions and sanctioned
[by the Council], it was provided that (as the defendant
claims iu this case) although the instrument put
forward in proof by the plaintiff is of a date subsequent to
the Serpent year, yet if the claim is really of a date prior
to that year and the plaintiff's assertion is only an unlawful
pretence, the claim shall not be taken up ; aud that where
the question is specially difiicult to decide, it should be
referred to a session [of the Full Chamber], with the
allegations of both parties. According to the allegations
■of Jirobei, a payment has already been made privately,
while the trial was pending, iu the 12th month of the last
•Serpent year. Since then, the loan was made before the
the Proclamation, if this claim is taken up on the ground of
a dishonest refusal to pay, according to the contract, there
will come up numbers of old claims of all sorts, as you
have stated.
1. No. Ill, ante. 2. No. 102, 4, ante.
420
PRIVATE LAW IN OLD JAPAN :
No. 126] If we look at the action, on the other hand, as for
arrears of rice-proceeds which the retainers of the Lord of
Yamato unlawfully refuse to pay (the deliveries having been
made up to the Rat year, according to the instalment
contract but none having occurred since then), [we reach
the same conclusion.] There was a certain arrearage at
the time of the Proclamation; subsequently 50 ryo were
paid down, and the remainder was agreed to be repaid by
yearly instalments. This is not one of the cases in which
it is difficult to decide [whether the claim dates before or
after the Proclamation], and no trial should be permitted.
Year of the Serpent,
6th month."
[No. 127] Proceedings in Actions brought since
the Private Settlement Order.
An Itemized Inquiry by Clerks of the Town
Magistrate, with appended Replies.i
Letter.
" To Hara Tsuruyemon, Esq.
Nakata Shintaro, Esq.
from Tojo Hachidayu,
Nakashima Kayemon.
We learn with pleasure from your letter that you are
in good health and diligent in the performance of your
duties. There were, it seems, a not inco|>siderable number
of cases undecided and stiU pending trial in your Court at
the time of the Private-Settlement Order, and, as many of
them were in your opinion not affected by that law, you
have enclosed memoranda of these cases, to learn our
practice in those cases and our opinion thereon. This
1. This document seems to belong shortly after the Private-
Settlement Order of 1844.
PAKT III. CONTRACT I LEGAL PRECEDENTS. 421
we clearly understand and we shall try to reply. But as [Sec. VII.
our opinions are substantially the same as your own, we
append our replies to your memoranda.
1st month, 18th day."
2. Items of Inquiry,
" (1.) The dowry-money brought by an adopted son
was by agreement changed into a deposit.i On an action
for repayment, a private settlement was concluded, part
payment being made, and the remainder being rewritten
as a deposit. Should not this claim be ordered for private
settlement ?
' As you suggest, a sum of this sort, an adopted son's
dowry-money or deposit, though it has been
rewritten in a new instrument after action brought,
should he ordered for private settlement.'
(2). Buildings and chattels were put into hypothec
and an instrument given hearing the seals of the owner
and his relations; is not this claim to be treated as an
ordinary loan, according to the Town Proclamation of
Yenkyo,^ and therefore ordered for private-settlement ?
' As you suggest, private settlement should be ordered,
agreeably to the Town Proclamation of Yenkyo;
this is our opinion.'
(3.) Where one who owned a share in the rice-millers'
guild and had made the required character-security deposit ^
brings action and in the same complaint^ demands restora¬
tion of the deposit (on account of the Government's
abolition of guilds) ® and of a loan, is not the claim for the
loan to be separated from the claim for the deposit, and the
former alone to be ordered for private settlement ?
1. Cho-kin. Cho means literally " collect," and chokin means
sometimes " sayings." But it seems here to be used as a general
rwod for deposits, uzukari-kin. 2. No. 5, ante. 3. Shiki-kin.
4. leshi (one sheet of paper). 5. See Part I.
422
PBIVATE LAW IN OLD JAPAN :
No. 127] ' As you suggest, where the claims for the deposit and
for the loan are sued for in the same complaint, tho
claim on the loan only should, in our opinion, bo
ordered for private settlement,'
(4).i Action by rice-dealers 2 holding memoranda 3
promising delivery of the ticket-rice ^ at the storehouse of
Matsudaira, Lord of Mutsii, against the storehouse-
merchants s whose names the tickets ® bear.
Note, that there is no other instrument than the ticket.
As to this ticket-rice, the proceedings approved some timo
ago were as follows. First, against the tax-rice coming to
the storehouse are drawn tickets, each representing 20 bales.
This rice is then bought by the brokers 7 by secret-bid
auction,® [tickets being given to the buyers, and] the
agreement being that rice shall be delivered to them at any
time in exchange for the tickets. The successful bidder®
pays the price to the storehouse-ofiScials within a
certain number of days. He then resells the tickets tO'
the dealers at the current prices,withholding a discount
of one or two sho for every i-yo [of the purchase-money].
The dealers then in the same way sell these tickets among
themselves, and sales are made even in the country
villages.
1. These next inquiries are somewhat difiBcult to interpret. The
reader should first refer to what is said in Part I on the Eice-Trade.
The transaction appears to be this. The rice-dealers buy the tax-rice
through merchants entrusted with the matter by the lord's storehouse
officials and possessing a semi-official character. Tickets good for a
certain amount of rice are received by the dealers, and hear the
indorsement of the storehouse-merchants. The latter are now sued
for non-delivery. 2. Komeya-domo. 3. Kakitsuke. 4. Kitte-mai.
5. Kurn-raoto chonin. 6. Kitte; apparently the same as kakitsuke,
supra. 7. Nakagai; who stand between the store house-merchants-
and the dealers. 8. Nyu-satsu. 9. Raku satsu no mono. 10. Toki
(time)-soba (market price). 11. Tfaki (side)-»?iai; i.e., a small
portion as a commission.
PART III.—CONTRACT ; LEGAL PRECEDENTS. 423
(5). The case being the same as above,—when the [See. VII.
purchase-money has been paid and the proper number of
tickets given, an instrument ^ is handed over which bears
the counterseal of the lord's retainers and engages to deliver
the rice itself 2 at any time in exchange for the tickets.
There is also a subsidiary instrument 3 given in which it
is stipulated that if the purchase-money is paid hack [by the
officials to the rice-dealers] within a term of months, the
rice will be sold back^ by the dealers [to the officials] ; that
in the case of such re-payment interest shall be added at the
rate of 60 momme^ for every ICQ ryo of the principal;
and that if there should be delay [in this re-payment],
the rice should he sold to the brokers who had negotiated the
tickets, and the return of the purchase-money he exacted
[from them by the rice-dealers] .3 An instrument [to the
same effect] is also given by the brokers [to the rice-dealers].
Now [payment of the above purchase-money] being delayed,
the dealers have brought actions against the above officials.
(6.) The case being the same as above,—certain rice-
dealers have bought the un-hulled rice to he produced in the
same fief by a transaction made at the storehouse, and have
paid the purchase-money in advance, stipulating that the
rice shall be delivered between the 3d and 8th months of the
following year, and receiving an instrument countersealed
by the officials of the storehouse. But the rice not having
been delivered, they have brought suit for it.
Note, that the instrument does not provide for
interest.
1. Shimon. 2. She (actual)->»ai (rice). 3. Soye-shomon. 4. Vri-
modosu. The transaction was apparently an advance of money by
the dealers, and the rice served as an hypothecary security. This
seems to be the significance of these provisions. 5. 60 motnnie = l
ryo. 6. The bro]|ers had indorsed the instruments of sale or the
tickets, and thus the officials turned over the rice to them and left
them to settle with the dealers.
424
PRIVATE LAW IN OLD JAPAN I
l?o. 127] Now in the cjises described in the foregoing three items,
shall we order private settlement of those claims which bear
interest (for they are only ordinary loans) and treat those
bearing no interest in analogy to claims for rice bought and
left on deposit ? ^
' As to these three items relating to the ticket-rice
of Matsudaira, Lord of Mutsu, we think that the
claims hearing interest should he treated like
[ordinary] money loans and private settlement
ordered, and that those hearing no interest
should he treated like claims for rice bought and
left on deposit.'
(7.) In cases of money-deposits, is private-settlement
to he ordered where the money was originally a loan
by one person or by several jointly, which has been
renewed in the shape of a deposit,^ the old document
being shown in proof?
' As you suggest, a loan made solely or jointly
and then changed into a deposit should, we
think, he ordered for private settlement.'
(8.) Are claims for advances for wages of labor, 3
as analogous to earnest money and investmeut-money,^
to he ordered for private settlement?
' As you suggest, claims for advances for wages
of labor, as analogous to earnest-money and
investment-money, should he ordered, we
think, for private settlement.' "
1. Kai-azuke-mai. This transaction is dealt with in Section
III of this Part. See also Part II, p. 88, Hfchigo kuni. The
Private-Settlement Order did not extend to deposits. 2. Azukari-
kin. 3. Yatoi-chin. 4. Shiire-kin.
SECTION VIII—SUNDRIES.
^[No. 128] Payment of a Loan refused because
of Loss of the Instrument by Fire.
A Decision by the Chamber ou a Consultation by
a Magistrate.
Dated Bunsei, XIII (Tiger), 9, 2 (October 18, 1830).
"An action was brought for arrears due ou an
Jidvance of money,i and after the receipt of a part-
payment 2 a private settlement was reached, and an
instrument given engaging to pay the remainder in a
'Certain mode. This instrument, however, was destroyed
by fire. The debt had been entered in the [plaintiff's]
hooks, with a note of the fire; subsequently payment was
refused. On comparing the claim with the settlement-
document made out at the conclusion of the former action,
ihe amounts, etc., are found to tally, and the statements of
both parties agree on these points. Is judgment to he
given in such a case, notwithstanding the destruction of
the instrument ?
Aypended Reply. There is no precedent like the case
you state. But as the transaction was entered in the
miscellaneous-entries hook® (for the claim is for a
*
1. Shiokuri-kin. 2. Ate; the same as teate (lit., assistance).
•3. Tsuke-komi-cho.
426
PRIVATE LAW IN OLD JAPAN:
128'1 money-loan in the nature of unpaid purchase-money),^
even though the entry is not signed by the debtor, judg¬
ment should be given [for the claim], for both parties'
statements agree as to the amount. Since, then, there
was a previous action on the claim, and in this
action both parties' statements as to the amount are
agreed, judgment should rightly he rendered, not¬
withstanding the destruction of the instrument by fire.
Rubric, This was an action before the Chamber,
for the remainder due on a money-advance,
against Gombei, headman of Yoyama village,
Adachi kori, Bushu, 2 in the income-fief of the
Chamberlain® Shimada Hachirozayemon, by
Yashiro, renter of the shop of Heihachi, in
Okugawa ward, Fukagawa [district]. At the trial,
Tanaka Toyemon, a retainer of Hachirozayemon,
appeared, and declared, on being asked his reason,
that payment would be in vain, since the
instrument was destroyed.^ The case was there¬
fore reported to the Chamber of Decisions, and
payment was ordered."
1. Urikake-Icashi-kin. This phrase goes to indicate that the term
" money-loan " may have been used consciously in a large sense as
including all the classes of claims usually treated in analogy to or¬
dinary money-loans. 2. Musashi kuiii. 3. 0-ko-nando; this title
comes from nando, a room for storage, with the diminutive ko and
the honorific o, denoting the Palace. Shimada was the name of a
merchant prince, almost as famous as the Mitsui family; he became
bankrupt, however, early in Meiji. This office was doubtless bestow¬
ed on him by the Shogunate for services render^ in lending money.
4. That is, apparently, the debtor would not be able to have the
instrument restored to him as evidence of payment.
APPENDIX.
In the editing of the Legal Precedents it was found
impossible, for several reasons, to undertake any general
re-arrangement of the order of the precedents, and in
only one or two instances was the original order of thn
compilation disturbed. In a few topics, however, there is
a special need for a chronological arrangement of the whole
material of the volume. Within each Section of the volume,
as has been explained in the Notes, the precedents are
grouped in three classes,—1st, enactments, resolutions, etc.,
in order of time; 2ud, actions at law, in order of time ; 3rd,
all precedents (chiefly memoranda) bearing no date; and if
the classiflcation of the Sections had been unimpeachable,
there would be no need for a chronological re-arrangement,
except for the precedents of the Brd class to which
probable dates could be assigned. But the Sections, as will
be seen, are classified under heads not completely satisfactory,
and within the Sections (especially the long Section I) the
precedents are not always properly entered. The topic
that suffers most by these errors is that of Prescription
as dealt with in the Private-Settlement Orders. The
course of legislation ou this subject cannot be understood
without studying chronologically the four Orders of 1716,
1746, 1797, and 1844. The first is referred to in No. 1 of
the Precedents ; the second is found in No. 5 ; the third in
Nos. Ill and JL8; and the fourth in Nos. 118 and 119.
With a view to facilitating the study of this topic and of
any others for which numerous precedents exist, the prece-
ii PRIVATE LAW IN OLD JAPAN I
•dents Lave been arranged in chronological order, so far as
possible. Where no date can be inferred, the precedent
is placed in a supplementary list. Where the exact year
cannot be inferred, the precedent is placed in the index
lat the earliest of the possible dates.
A complete re-analyis of the precedents, with a second
index by headnotes, would have been desirable,—for
detailed study, indispensable. But as the remaining
portions of Part III contain matter similar to that of
this volume, and as a general topical index must be made
for the entire work (if not also a special one for Part III),
ail index to this volume could have a temporary value only,
Riid none has been made.
CHRONOLOGICAL LIST OF PRECEDENTS.
No. 8.—Resolution of Town Magistrates.
Disposition of an Action by one who has suffered
Local Exile and seeks to enforce a Claim for
Money Lent to a Resident of his former Domicile,
Kyolw, 11,1717 7
No. 75.—Action at Law.
Lease of a Trade-Mark and a Livery,
Kyoho, V, 1720 290
No. 77.—Proclamation, with Inquiries.
Interest on Money Loans,
Kyoho, X17, 1729 296
No. 1.—Resolution of Chamber, etc.
Judgments in Actions on Money Loans,
Kyoho, XIV, 1730 1
No. ,2.—
Money Loans with Blank Deed or with Doubled
Principal,
Kyoho, XIV, 1730 6
No. 78.—Resolution of the Chamber.
Interest on Money Loans,
Gemhun, 1,1736 298
No. 79.—Resolution of the Chamber.
Correction of Rate of Interest in Land-Pledge
Instruments bearing no Seal, etc., etc.
Gemhun, 1,1736 299'
iv
PRIVATE LAW IN OLD JAPAN :
No. 80.—Memorial to the Council.
Money Actions,
{Probably 174^) 113
No. 81.—Memorial to the Council.
Money Actions,
(Probably 1741) 114
No. 4.—^Proclamation of the Chamber.
Money Loans,
Yenhjo, 111,1746 . 7
No. 5.—Kesolution of the Chamber.
Disposition of Actions upon Money Loans,
Yenkyo, 111,1746 8
No. 88.—Memorandum by the Chamber.
Payment by Yearly Instalments,
Horeld, IX, 1759 814
No. 98.—Inquiry by a Retainer.
Action for Arrears of Judgment-Instalments,
Meiwa, IX, 1772 845
No. 99.—Decision of the Chamber.
Where Instalment-Judgments have been rendered
against Residents of distant Provinces, Parties'
Relatives in Yedo may not appear as Re¬
presentatives,
Anyei, III, 1774 846
No. 89.—Resolution of the Chamber.
Proofs in Contracts for Yearly and Monthly Instal¬
ments,
Anyei, IV, 1776 815
No. 6.—Correspondence between Town Magistrates.
Issuing of an Order for evicting a Tenant pending
Trial of a Money Action against him,
Anyei, VII, 1778 10
APPENDIX.
V
No. 81.—Resolution of the Chamber.
Unsigned Postscripts, Notes, etc., as well as
Instruments not reciting the Principal and
Interest, to be invalid.
Anyei, V111, 1779 300
No. 56.—Action at Law.
Loans from a Prayer Fund,
Amjei, IX, 1780 217
No. 48.—Instructions by the Council.
Disposition of Money Loan Actions in Osaka
Jurisdiction,
Temrnei, 1,1781 176
No. 76.—Action at Law.
Transportation of Freight,
Temrnei, 1,1782 292
No. 109.—Action at Law.
Instalment-Judgment for Arrears of a Money Loan,
Temrnei, 11,1787 371
No. 100.—Inquiry by a Retainer.
Instalment-Judgments in Private Fiefs,
Temrnei, VIII, 1789 347
No. 7.—Resolution of the Chamber.
Judgment requiring that a Feudal Lord or Esquire
shall pay a Money Loan contracted by Farmers
with the District-seals,
Kicansei, II, 1790 11
No. 82.—Correspondence between Magistrates.
Reduction of the Rate of Interest from 1 hu per 10 ryo
to 1 6it per 20 ryo,
Kwansei, 11,1790 800
No. 93.—Action gt Law.
Yearly Instalments,
Kwansei, II, 1790 321
vi
PRIVATE LAW IN OLD JAPAN .*
No. 86.—
Compound Interest on Money Loans,
{After Kwansei, II, 1790) 308
No. 10.—Decision of the Chamber.
Ordering Payment where the Instrument specifies on its
Face no Term,
Kwansei III, 1791 16
No. 11.—Correspondence between Magistrates.
Disposition of an Instrument of Loan given by a
Banished or Absconding Debtor,
Kwamei III, 1791 17
No. 101.—Decision of the Chamber.
Non-Payment of Instalments on a Debt of 200,000 rgo,
Kwamei IV, 1792 848
No. 9.—Decision of the Chamber.
Order for the Payment of a Loan made by a deceased
Zato of the Blind, the Petition being filed by his
Successor,
Kwansei, V, 1793 14
No. 12.—Instructions of the Council.
Disposition of Actions brought after the Limit of Time
for Entertaining Suits,
Kwansei, IX, 1797 18
No. 111.—Instructions by the Council.
Private Settlement of Money Loans,
Kwansei, IX, 1797 ^ 871
No. 112.—Proclamation.
Taking up of Actions on Money Loans, etc.
Kwansei, IX, 1797 879
No. 13.—Resolution of the Chamber.
Disposition of Actions on Money Loans,
Kwansei, IX, 1797 21
APPENDIX.
vil
No. 113.—Inquiry by a Retainer.
Claims on Patent-Fund and Temple-Fund Loans
arising before the Private-Settlement Order,
Kwansei, X, 1798 879
No. 55.—Correspondence between Magistrates.
Payment of Debts incurred in a previous Oeneratiou,
Kwamei, X, 1798 213
No. 8.—Correspondence between Magistrates.
Debts of a Temple-Incumbent who has suflfered
Punishment,
(Between 1798 and 1813) 13
No. 57.—Action at Law.
Apportionment of Money Advanced,
Kwansei, XI, 1799 219
No. 114.—Inquiry by a Retainer.
Actions on Money Loans made before the Private-
Settlement Order, where the Debtor acts
Unconscionably,
Kwansei, XII, 1800 880
No. 115.—Inquiry to the Chamber by a Magistrate.
Whether a Claim for Money Loaned before the Private-
Settlement Order, paid back after it, and borrowed
again, is to be treated like a Claim on a re-written
Instrument of Loan,
Kwansei, XII, 1801 882'
No. 14.—Decision of the Chamber.
Taking up a Complaint by a Person who has suflfered
Local Exile or by his Ageut against a Debtor
in his former localty,
Kyowa, II, 1802 25
No. 70.—Memorial by Magistrates.
Concerning the business of Leasing Chattels for Hire.
Kyowa, II, 1802 '. 276
Vol. XX. Sup. Ft. ill.—3H.
viii
PBIVATE LAW IN OLD JAPAN :
No. 71.—Proclamation by the Chamber.
Leasing of Chattels for Hire.
Bunkwa, II, 1805 280
No. 102.—Proposal of Law by the Chamber.
Actions on Money Loans,
Bnnkwa, III, 1806 349
No. 52.—Memorandum.
Disposition of Money-Loan Actions in Osaka,
[Between 1806 and 1817) 206
No. 58.—Memorandum.
Disposition of Money-Loan Actions in Osaka,
[Bettceen 1806 and 1817) 207
No. 15.—Correspondence between Magistrates.
Disposition of the Complaint in a Money Loan Action
against a Number of Retainers,
Bunkwa, X, 1813 26
No. 94.—Action at Law.
Yearly Instalments,
Bunkwa, XI, 1814 826
No. 110.—Action at Law.
Money Loan,
Bunkwa, XII, 1815 878
No. 58.—Action at Law.
Building Advances,
Bunsei, I, 1818 229
•
No. 50.—Memorandum by a Magistrate.
Petition for the Indorsing-Seal of the Chamber in a
Money-Loan Action, by one who has removed from
Settsu, Kawachi, Idzumi, or Harima kuni, to any
other kuni, against a resident of one of those kuni,
Bunsei, I, 1818 189
APPENDIX.
ix
No. 45.—Correspondence between Magistrates.
Loans from the Reserve-Fund set aside for the use
of the Time-keeping Attendants in the West
Palace,
Bunsei, II, 1819 166
No. 90.—Regulation of a Magistrate.
Instruments providing that Instalments due at a
future date shall fall due immediately on Default in
a single Instalment,
Bunsei, III, 1820 316
No. 126.—Correspondence between Magistrates.
Dishonest Refusal to pay a Loan contracted before
the Private-Settlement Order,
{Probabhj 1821) 415
No. 20.—^Proposal to the Council.
Actions for Money Loans, Unpaid Purchase-Money,
6i;C«
Bunsei, IV, 1822 42
No. 49.—Correspondence between Magistrates.
Money Loan Actions against Players,
Bunsei, VI, 1823 179
No. 108.—Correspondence between Magistrates.
Non-payment of the first Instalment Due,
Bunsei, VIII, 1825 363
No. 21.—^Decision of Clerks.
Actions upon Money Loans against Condemned
Persons,
Bunsei, IX, 1826 45
No. 16.—Correspondence between Magistrates.
Proceedings in iiii Action on a Money Loan against
Retainers of the Hongwan Temple,
Bunsei, X, 1827 28
z
PEIVATE LAW IN OLD JAPAN :
No. 116.—Inquiry to the Chamber by a Magistrate.
Actions for the price of Meals Furnished,
Bitmei, X, 1827 388
No. 87.—Report by a Guild-Manager.
Interest on Advances for Investment made by the Dried-
sardine Guild,
Bunsei, X, 1827 309
No. 17.—Correspondence between Magistrates.
Payment by a Debtor who has suffered Local Exile,
Bunsei, X, 1821 32
No. 51.—Instructions by the Council.
Disposition of Money Loan Actions in Osaka,
(Either 1827 or 1839) 190
No. 18.—Decision of the Chamber.
Suits by a Creditor against the Successor of an
Absconding Debtor,
Bunsei XI, 1828 35
No. 19.—Reply to an Inquiry by a Retainer.
Action against the Surety for a Loan, the principal
Debtor being a Retainer who has been exiled by his
Lord and whose House is extinguished,
Bunsei, XII, 1829 89
No. 128.—Decision of the Chamber.
Payment of a Loan refused because of I^ss of the In¬
strument by Fire,
Bunsei, XIII, 1880 425
No. 42.—Correspondence between Magistrates.
Refusal to pay by a Debtor taking advantage of some
Fault on the part of the Creditor 160
{Probably between 1830-1813).
APPENDIX,
xi
No. 22.—Correspondence between Magistrates.
Disposition of Actions for Money Loans or Purchase-
Money where after Indorsement the Plaintiff or
the Defendant Absconds,
Tempo, VI, 1835 46
No. 59.—Action at Law.
Money Loaned,
Tempo, VII, 1836 237
No. 104.—Proposal by Magistrates.
Payment of deficient Instalments,
(Probably Tempo, VII, 1836) 864
No. 24.—Correspondence between Magistrates.
Taking Cognizance of an Action for Unpaid Purchase-
Money or a Money Loan brought by one
sentenced to Local Exile,
Tempo, IX, 1838 54
No. 25.—Decision of the Chamber.
Payment by a Son of Debts of his Exiled Father,
'Tempo, X, 1839 57
No. 28.—Correspondence between Magistrates.
Action on a Money Loan against a Vassal punished
by Exile to his Province and by House-
Imprisonment,
Tempo, X, 1839 58
No. 96.—Inquiry by a Retainer.
A Loan incurred jointly by the Retainers of a Noble
Family; House-Extinction ordered; the Sons and
younger Brothers newly taken into Service; dis¬
position of Actions by Creditors,
Tempo, XI, 1840 888
No. 26.—Replj^to the Inquiry of a Retainer.
Money Loans.
Tempo, XI, 1840 59
xii
PRIVATE LAW IN OLD JAPAN :
No. 27.—Eeply to the Inquiry of a Retainer.
Payment of Loans of Many Years* Standing,
Tempo, XII, 1841 62
No. 117.—Report by a Magistrate.
Lodging in a Debtor's bouse to demand Payment of a
Loan made before the Private-Settlement Order,
Tempo, XIII, 1842 885
No. 95.—Action at Law.
Yearly Instalments,
Tempo, XIII, 1842 830'
No. 88.—Proclamation by the Council.
Amendment of the Rule in regard to Interest on Money
Loans,
Tempo, XIII, 1842 802.
No. 28.—Proposal to the Council, eic.
Disposition of Actions on Money Loans,
Tempo, XIII, 1842 GO'
No. 29.—Resolution of the Chamber.
Disposition of Money Actions,
Tempo, Xir, 1843 Ill
No. 32.—Letter of a M.igistrate.
In Actions by Royal Temples for Money Loans the
Creditor should not be entitled in the Complaint,
as indorsed by the Bureau, a ' Money Lending
OflSce,'
Tempo, XIV, 1843 117
No. 105.—Correspondence between Magistrates.
Delay in Payment of Instalments,
Tempo, XIY, 1843 867
No. 106.—Resolution of the Chamber.
Revision of the Instalment-Schedule,
Tempo, XIV, 1843 369
APPENDIX.
xiir
No. 91.—Proclamation.
Yearly Instalment Payments without Interest to the
Rice-brokers,
Tempo, XIV, 1844 871
No. 118.—^Instructions by the Council.
Private Settlement of Actions for Money Loans, Wages
of Labor, etc..
Tempo, XIV, 1844 389'
No. 119.—Resolution of the Chamber.
Proceedings under the Order for Private-Settlement
of Money Loans, Wages of Labor, etc..
Tempo, XIV, 1844 891
No. 120.—Correspondence between Clerks.
Private Settlement of Claims concerning the Shipping
of Goods,
Tempo, XV, 1844 394
No. 121.—Inquiry by a Retainer.
Proceedings in Money Actions after the Private
Settlement Proclamation,
Tempo, XV, 1844 396
No. 73.—Correspondence between Clerks.
Payment in Actions for Restoration of Leased Chattels
and Payment of Fees,
Tempo, XV, 1844 286
No. 72.—Correspondence between Magistrates.
Private Settlement of Actions for Restoration of Chattels
Leased and for Payment of Fees,
Tempo, XV, 1844 284
No. 125.—Correspondence between Clerks.
Private Settlemett of a Claim for Money paid on
behalf of Another,
Tempo, XV, 1844 413-
xiv
PRIVATE LAW IN OLD JAPAN :
No. 122.—Inquiry by a Retainer.
Actions on Money Claims arising before the Private-
Settlement Order, the Parties being residents of
Provincial Fiefs,
Kokfva, II, 1845 398
No. 88.—Opinions of Magistrates.
Disposition of Loans from the Funds of the Three
Temples of Kumano and from the Privy-Funds of
the Lord of Kii,
Kokica, II, 1845 121
No. 128.—Decision of the Chamber.
Actions in which the Date of the Loan is disputed,
Kvkwa, II, 1845 402
No. 127.—Correspondence between Clerks.
Actions brought since the Private-Settlement Order,
(About 1845) 420
No. 124.—Decision of the Chamber.
Application of the Private-Settlement Order to Private
Fiefs,
Kolm-a, II, 1846 406
No. 60.—Action at Law.
Money Loan,
Kokim, V, 1848 248
No. 61.—Action at Law.
Money Loan,
Kayei, II, 1849 m. 258
No. 62.—Action at Law.
Money Transaction,
Kayei, II, 1849 259
No. 68.—Action at Law.
Money Loan,
Kayei, II, 1849 267
APPENDIX.
XV
No. 125.—Correspondence between Magistrates.
Arrears of a Loan made by the Family-Temple of the
Lord of Owari previous to the Private-Settlement
Order,
Kayei, II, 1849 408
No. 84.—Inquiry by Retainers.
Interest on Money Loans,
Kayei, Yl, 1853 805
No. 34.—Correspondence between Clerks.
Disposition of an Action on a Money-Loan against one
of the Military Gentry, the Defendant having
Absconded Pending Trial,
Kayei, VI, 1853 158
No. 85.—Correspondence between Magistrates.
Omission of Interest for Intercalary Months in Judg¬
ments on Money Loans,
Kayei, YI, 1853 806
No. 74.—Inquiry by a Clerk.
Disposition of Actions against Military Gentry for
Restoration of Chattels Leased,
(About Kayei, YI, 1853) 288
No. 97.—Correspondence between Clerks.
Disposition of an Action by the Wife or Son of a
Creditor belonging to the Blindmen's Guild,
Ansei, YI, 1859 837
No. 40.—Reply by a Magistrate.
Money Actions against a Temple-Incumbent on Debts
of his Predecessor.
(About Ansei, YII, 1860) 159
No. 44.—Correspondence Between Magistrates.
Proceedings wh§re in Actions against Military Gentry
the Defendant's Lord changes,
Bunkyu, I, 1861 165
XVI PKIVATE LAW IN OLD JAPAN :
WITHOUT DATE.
No. 85.—
Payment of a Money-Loan where both Principal and
Surety are Deceased,
156
No. 86.—
Payment of an Ancestor's Book-Debt by a Successor,
157
No. 17.—
Money Actions where both Principal Debtor and
Surety have been Succeeded in the Family-
mastership,
157
No. 88.—
Money Actions against Persons Sentenced to Punish¬
ment,
158
No. 89.—
Actions upon Money Loans to Adopted Sons,
158
No. 41.—
Payment of Money Loans incurred by a Preceding
Temple-Incum bent,
160
No. 48.—Reply to a Retainer. ^
Payment of Money Claims against a deceased Adopted
Son,
164
No. 46.—Reply to an Inquiry b}' a Retainer.
Compensation given by an Innkeeper to a Traveler
whose Goods were stolen at bis Inn,
178
APPENDIX.
xvii
No. 47.—Beply to an Inquiry by a Eetainer.
Money Loaned by an Innkeeper to a Traveler whose
Goods were stolen at his Inn,
175
No. 54.—
Actions for Bargain-Money,
21
No. 92.—
Actions for Arrears of Instalments,
820
No. 107.—
Money-Action Days,
870
No. 108.—
Payment of Instalmentc in Distant Provinces,
871
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TEANSACTIONS
I
THE ASIATIC SOCIETY
OF JAPAN.
VOL. XX; SUPPLEMENT.
' CONTENTS:
Materifils for the Study of Private Law in Old Japan: Part V.
Edited by John Henry Wigmobe.
Yokohama, Shanghai, Honokono cfe Singapore: Kelly & Walsh, L'd.
Tokyo : Z. P. Maruya & Co., L'd.
London : Tbubner & Co.—Paris : Ernest Lerodx.
Leipzig^ Berlin : K. F. Kobhler's Antiquaridm.
JULY, 1892.
R. Meiklejohn Jt Co., Printers, No 26 Water Street, Yokohama.
X
MATERIALS FOR THE STUDY
OF
PRIVATE LAW IN OLD JAPAN.
EDITED, WITH NOTES AND AN INTRODUCTIONy
BY
JOHN HENRY WIGMORE.
PUBLISHED BY
THE ASIATIC SOCIETY OF JAPAN,
TOKYO.
•
JULY, 1892.
MATERIALS FOR THE STUDY OF PRIVATE LAW
IN OLD JAPAN.
PART I.-INTRODUCTION.
PART II.-CONTRACT; CIVIL CUSTOMS.
PART III.-CGNTRACT: LEGAL PRECEDENTS,
Section I: Money Loans ; Letting and Hiring.
Section II: Sale.
(In preparation.)
Section III: Deposit, Pledge.
(In preparation.)
PART IV.-CONTRACT: COMMERCIAL CUSTOMS.
(In preparation.)
PART V.-PROPERTY: CIVIL CUSTOMS.
PARTVI.-PROPERTY: LEGAL PRECEDENTS.
(In preparation.)
PART VII.-PERSONS: CIVIL CUSTOMS.
(In preparation.)
PARTVIII.-PERSONS: LEGAL PRECEDENTS.
(In preparation.)
m
MATEEIALS FOR THE STUDY
OF
PEIVATE LAW IN OLD JAPAN.
PAET V.
PEOPERTY: CIVIL CUSTOMS.
CONTENTS.
page.
I.—Ownership and Title 1
II.—Sundry Rights connected with Land;
1. Boundaries 20
2. Vicinage 25
3. Sundry Servitudes 39
4. Usufruct 43
5. Temple Endowments 44
6. Forests 48
7. Pastures 58
8. Ponds and Swamps 63
9. Drains 63
10. Ways 65
11. Irrigation 70
12. Rivers 77
III.—Succession :
1. Petitions and Reports 79
2. Right of Succession to the Headship 88
3. Distribution of Patrimony 95
Appendix 110
CHAPTEE I.
OWNEESHIP AND TITLE.
There is usually, in the case of ricefield, upland, and
forest land, a register, called " land-inspection-book or
" official-map-book," 2 and kept at the village office ; in this
is entered the total assessed production of the various kinds
of land in the village. There is also a " name-list-book " 3
or "production-book,"^ in which are entered the assessed
production, area, common name,® and owner's name of each
piece of land, the title being thus certified. In towns there
is a register for the land (which is tax-free),® called " map-
book or " area-book,"® in which are entered the number
of feet of frontage® and depthi® of each house and the name
of its owner, the title being thus certified, Variations
of custom more or less great are as follows:
Kinai. In Yamashiro Imni, Kuse kori, there is a
register 2 in which are entered the production, area, common
name, and owner's name of each piece of land, the title being
thus certified. When the title passes to another person,
the name is changed and the date entered, so as to give the
1. Kenchi-cho. 2. Mi (an honorific prefix, here employed because
of the official character of the book)-2a (map, chartj-cko (book).
3. Na (name)-2/ose (collect)-clio. 4. Taka-cho. 5. Azana. 6. Menzen.
This must mean merely " exempt from the rice-tax," because town
property was subject to the town taxes. 7. Yezu-cho. 8. Ken (a
measure of length)-su-cko. Throughout the remainder of the chapter
the word " register" alone is used in the text, the vernacular term
being given in the notes. 9. Magiichi. 10. Okuiki. 11. Sadameru.
Pt. T.-l.
2
private law in old japan :
history of the plot. In the period Kwanyei (1624-1644) the
Tokugawa government made 140 families tax-free, by
reason of their eminent skill in tea-growing. The assessed
production of this province is divided into three kinds, tea-
land, ricefield, and upland, the first yielding the largest tax.
Tokaido. In Iga kitni, Abe kori, in each ward of a
town there is an old register,! kept at the ward assembly
office,2 and enumerating briefly the houses and lands of the
ward. There is a copy of it at the ward-oflSce,^ the title of
each owner being thus certified. When a correction is
made at the ward-office, at the time of sale, it is reported
to the ward-assembly office, but the original book is never
changed. In villages there is a register ^ of all cultivated
residence and forest land, in which is entered in detail the
production, area, and owner's name, the title being thus
certified. By custom the right of ownership is confined to
heads of families.
In Ise kuni, Ano kori, there is in each village a
register ! of all the owners, giving the production, area, and
common name of each plot, the title being thus certified.
If an owner grants away land (it must be to some one of
good pedigree ®), he reports to the feudal official and
procures a seal of attestation. In town-lands the title is
determined by indorsement of the ward-officials upon the
deed of sale, the details being entered in the " sect-
register " ® of the ward. No other process of record is used
to determine title. In Wataraye kori, the land belongs for
the most part to the Sacred Domain of the temples Naiku
and Geku, and since ancient times there has been an
Imperial prohibition against new settlemftits being made
1. Mizu-cho. 2. Ilachigwaisho. 3. Maclii-yakiiba. This was
the office of the administrative officials. 4. Nayose-cho. 5. Yuisho.
6. Skuvum-cho. This contained the names, ages, etc., of the parishi¬
oners of each temple, and was the register on which the national
registration and census system was based. The more common term
was nimbetsu-cho (person-difference book).
PART V.—PROPERTY : CIVIL CUSTOMS.
3
there. i There are priestly officials, who have charge of
matters relating to the Divinities, and civil officials, having
an assembly-office, where civil matters are managed.
The latter officers are taken from noble families and
are divided into two classes. The Sacred Domain ^ pays
no taxes. As to the land within its limits, the owners
are forbidden to transfer their right to any person without
the Domain.3 There is no recording of titles, and although
sales must be reported to the officials, the sales are not
recorded; so that everything is done by private contract.^
In Shima kuni, Toshi kori, the headman5 keeps a regis¬
ter® in which are entered the production, area, and common
name of every plot, as well as the owner's name, the title
being thus certified. lu a town-ward the headman® keeps
a register containing the names of each owner, the title
being thus certified. The headman is so careful of this book
that though all his property be iu danger by fire or by flood,
he saves this even at the risk of his life.
In* Owari kuni, Aichi kori, the title to houses and land
in towns is determined by report to the feudal official and in
a register 8 kept by the ward-representative.® In villages
title is determined by record iu a register ® kept by the
headman. No report to the feudal official is made, but
his attesting seal must be obtained for transfer of newly-
reclaimed lands,!® since its production has until then not
been assessed.
In Idzu kind, Takata kori, there is a large river, the
Kanogawa. The middle of the river is regarded as the
boundary of the lands of the villages on opposite banks.
If the channel is altered in consequence of a flood, the
ownership of land which remains intact does not alter. So
1. Shugo (protected)-/loiu (no entrance). See Part II. Chap. IV,
Ise kuni. 2. Shiii-ryo. 3. That is, probably, any person coming in
from without and wishing to settle. 4. Altai (face to face). 5. Sho-
ya. 6. Nayose-cfio. 7. Mizu-clio. 8. lye (house)-?i«mi (row)-c/!o.
9. Machi-sodui. 10. Shinden.
4
PRIVATE LAW IN OLD JAPAN :
that it sometimes happens that land belonging to Idzu pro¬
vince is cultivated by people of Suruga province (which is on
the opposite side of the Kanogawa). If a piece of land on
the west bank is broken off and becomes attached i to the
east bank, it is called " river-bank land," 2 and remains the
property of the village whence it came.
In Sagami /ami, Ashigara Aor/, a portion of the east
bank of a river is sometimes broken off by a flood and
becomes attached to the west bank; but there is a prohibition
by the feudal lord against the cultivation of the portion
thus attached ; and although a kind of cabbage is sometimes
grown there for manure, it is against the law. If a portion
of land on one side is entirely destroyed,3 the tax is remit¬
ted, on report being made to the feudal ofiicial.
In Suruga hc7ii, Abe and Udo /lOi i, in towns, to trans¬
fer the title to lands or houses, a report bearing the official
seal of the ward-chiefs must be made to the feudal official.
In villages there is nominally no sale of land ; a mortgage is
used and the register is changed, without report to thte feudal
official. It is necessary for the deed to recite that the
mortgagor, in consequence of continued misfortune in recent
years, finds it difficult to pay his taxes, and without this
recital the headman^ will not permit the transaction. The
counter-seal of relatives is also needed. But the title to
residence-land cannot under any circumstances be trans¬
ferred. lu Shida and Mashizu /iori, title to real property
is determined by a register 5 kept at the local office, a yearly
report of changes of ownership being made to the feudal
official. A register of assessed production ^ is also kept.
The perpetual sale of cultivated land* is not permit¬
ted, and transfers are made for 10 years only. This
is called "deposit-land."'^ The person paying the price
1. Yosesu. 2. Kaicara-clii; kaicara is that portion of the river¬
bed which is bare in the dry season. For further notes on this
point, see Chap. 11, " Boundaries." 3. Kake (fall away, vanish)-
chi. 4. Na/iiishi. 5. Ndycse-cho. 6. 2'akat uke-cho. 7. Shiki-chi.
part v.—property: civil customs.
5
undertakes the payment of taxes and village expenses,
and if at the end of the term the seller does
not redeem 1 the land, it becomes forfeit 2 and the
title passes. The deed of a " deposit-land " must have
the counter-seal of the seller's relatives and company and
the official seal of the village officers. In transfers of forest-
laud (called " term-forest " ^ ) the term is 50 years, and at
the expiration of the time, when all the trees have been cut
down, the land is restored to its owner; this is called
"restoring the soil only." A term of this length is neces¬
sary, because there is no profit from annual crops in forest-
land. In towns the perpetual sale of lands and houses is
allowed; the deed must bear the official seal of the ward
officers.
In Kadzusa huni, Ytiki hori, there is a register ^ in
every village iu which the production, area, owner's name
and common name of each plot, are entered, the title being
thus certified. A copy of the record as to each owner is
given to him, and is called " hand-book." 5
Tosando. In Omi hxini, Shiga kori, there is a register ®
in the village office in which are recorded the production,
area, common name, and owner's name of each plot of rice-
field and upland, the title being thus certified. In the case
of residence-land in towns there is a " deeds-of-sale book
at the ward-office, and in it are entered the frontage and depth
of each house, as well as the name of its owner, the title
being thus certified. The official seal must be procured in all
cases of transfer. Sometimes the owner makes a deed of grant
during his lifetime and delivers it under cover to the local
officials, who keep it and seal it and after the owner's death
open it to see who is to be the new owner; but the
grantor may change the deed at any time before his death.
1. Uke-modotti (receive-take back). 2. Jiyu chi. 3. Nenhi-yama.
4. Nayose-cho. 5. Te-elio. 6. Mizu-cho. 7. Ko (selling and buying)-
ken (document)-cko.
6
PRIVATE LAW IN OLD JAPAN :
lu Mine kuni, Atsumi, Kagami, and Katagata kori,
there is a register ^ in every village, in which the production,
area, common name, and owner's name of each piece is
recorded, the title being thus certified, A family that
inherits an ancient register of laud-inspection is highly
esteemed; but few ever show the genuine one, if they have
it, for fear that if they become bankrupt and their effects are
sold, it may pass out of the family.2 In town wards there
is a house register 3 kept by the ward officials, in which are
recorded the frontage and depth of each house and its
o%vner's name, the title being thus certified. In Ahachi
kori, there is a register of the ordinary kind, and in some
villages a copy of the record relating to each owner is given
to him.
In Shinano kuni, Saku kori, in order to have ownership
in real property, such as cultivated or forest land, one's
title must be entered in the land-register.^ But the
ownership of personalty, such as animals and household
utensils, is complete without such entry, and the possessor
may keep such property against all others, until better evi¬
dence is offered. In Hanu kori, the owner of cultivated land,
forest land, ponds, or marshes, as well as the owner of rice
or money, may obtain a profit by letting others have the use
of such money or rice or the natural products of such land.
In Iwaki kuni, Shirakawa kori, there is a register 5 kept
by the headman,6 in which the production and area of each
plot, with its owner's name, are recorded. These are called
" original lands," ^ and on them are imposed the expenses
1. Taka-cho. 2. The official who had charge of the hook ap¬
parently took possession of it when a new one was made out, and
handed it down in the family. The editor possesses a number of
documents obtained from the family of a former headman. 3. Iije-
nami-cho. 4. Jikata bosatsu. This sentence is badly constructed
and the above rendering merely the most probable. 5. Mizu-cho or
taka-yosei-cho. 6. Shoya. 7. Ilon-den.
part v.—property: civil customs.
7
of furnishing horses and men for official travellers at post-
towns ; and on the newer hinds no such service is imposed.
In Iwashiro kum, Shinobu kori, there is a register kept
by the vilhige-officers for cultivated and forest land, in which
a record of the usual sort is made. Every owner has a
copy of the entries relating to himself in the shape of a small
ticket, which they call " hanging-ticket " ^ or " share-
ticket," 2 the title being thus certified.
In Kikuzen kuni, Toda kori, the ownership of hereditary
cultivated lands and of buildings is not certified by any
ticket, but is recorded in a land-register ® kept in the office
of the headman.^ But title to all other real property is
evidenced by a certificate of some kind. The owner of
realty can do as he pleases with it, except that he
may not sell it in perpetuity. His ownership is in¬
violable, unless it is confiscated5 for crime or taken®
for public purposes. The latter occurs when the feudal
lord needs the land for a special purpose or when a
reservoir or storage-dam for public use has to be construct¬
ed on the land. An order is issued for the taking, and other
land is given by way of recompense ; but if there is no other
land that can be so given, the owner of the plot taken must
suffer the loss and cannot even claim the price. By an
enactment of Kwausei, 9th year (1796), no one can own land
of more than 5 kwammon in value, nor set apart land
for a son establishing a new family, unless the family
estate is over 3 ku-ammon in value; but the law does not
apply to land acquired before that date or to town-lands.7
The ownership of horses and oxen is evidenced by a tag®
(one for each head), given to the owner by the feudal
official, through the headman, and renewed every year.
Any person having cattle without such a tag is punished
by house-imprisonment. All other personalty may be
owned and disposed of without any certificate.
• ■
1. Sage-fuda. 2. Hai-fu. 3. Taka-cho. 4. Kimoiri. 5. Kessho.
6. Tu-mokn. 7. See Appendix, 8. Kai (inspect)-iian (seal)-s/it (paper).
8
PRIVATE LAW IN OLD JAPAN,
In Uzen huni, Okitama kori, lands and buildings in
towns are recorded in the land register.^ The person so
entered as owner has a perfect title, and may sell, pledge,
or otherwise dispose of the property. His ownership is
inviolable, except in case of confiscation for crime by
order of the feudal lord. The owner of upland may turn
it into rice-field, and rice versa. Balks between rice-fields
are regarded as part of the fields, but not the grass growing
on them, and any one may cut and take the grass. A
hill-side adjoining rice-field or upland belongs to the owner
of the latter ; that is, if at the foot of a hill there is a rice-
field 10 cho in area, owned one half by one man and one
half by another, each is owner of half the hill-side. But
one may dispose of his share to the other, who will then
own the whole and may dispose of the grass, trees, etc., as
he pleases. Personalty may be transferred without the use
of documents or records of any sort, and possession^ proves
ownership unless better evidence is produced; except that
the ownership of horses and oxen is evidenced by a wooden
ticket. ^ Wben saltpeter is discovered in a lot of residence-
land, the feudal lord has the exclusive right of mining it.
But compensation will be paid to the owner for any injury
inflicted thereby, such as the loss incurred through destroy¬
ing the surface, or, if a house is thereon, the expense
of rebuilding it.
In Ugo kuni, Akita koi'i, when waste land is reclaimed
and cultivated, a portion of the area is set aside and exempt¬
ed from all taxes for an indefinite time. The portion is
known as " new-cultivation exemption.When it is
desired to sell it, both buyer and seller fiust apply for
permission to tbe feudal official. But the absolute owner¬
ship does not pass to the buyer. As soon as the contract
of sale is made, the portion becomes chargeable with the
1. Mizu-cho. 2. Te ni am (to be in the hand). 3. Kan-satsu.
i. Shin {nevi)-ro (labor)-men (exemption).
part v. property : civil customs.
9
taxes and other charges, the amount of these being entered
in the land-register,i and the certificate noting tiie area of
the land and the name of the village being delivered to the
buyer. The new occupant thereiifter pays to the nominal
owner the amount of the taxes, [the latter paying to the
proper official], while the occupant acquires a perpetual
right to the profits of the land. This is called an
"income-possession." 2
Hokkaido. In Oshima Inini, Kamedo hori, [in vill¬
ages] if one pays to the feudal lord a rent of 5 yen for every
100 tsuho of upland, he becomes its owner, and receives a
title-deed.3 The same rule applies to town-land also. There
are no terms such as "production" or "area." In
Tsugaru kori, there is a so-called "land-instrument"^
for residence land, countersealed and indorsed by the offi¬
cials, and serving as proof of titles no register is used. Few
persons own forest-land, the feudal lord owning almost all,
and there is no report of sales to the officials.
Hokurokudo. In Echizen knni, Asnha kori, a register 1
is kept at the village office, in which the usual entries are
made. The officials also copy the entries relating to separate
owners upon slips of paper called " hand-tickets," 5 and,
affixing their seal, they distribute to the owners these proofs
of title. In Kubiki kori, all utensils and other personalty,
except guns, may be used or sold as the owner pleases, nor
is any document necessary.
In Kaga kuni, Ishikawa kori, by law of the fief, land
cannot be subdivided by will among one's children unless it
is of more than 50 koku assessment. Hence has arisen a
custom of distributing one's land among one's children
under the name of a sale. An old law prohibits the grant or
1. Taka-cho. •S. Chigyo (a term applied to tlie right of the
higher sainvrtti to the profits of a definite district or plot)-dfl/ia.
3. Ko-hen. 4. Jimen-shomon. 5. Tefudn.
10
PRIVATE LAW IN OLD JAPAN.
sale of [village] land to temples, i samurai, and merchants.
In Kawakita kori, farmers only may own cultivated land;
otherwise the acquisition of all kinds of property is permissi¬
ble. In Nomi kori, it is an old rule that rice-field and upland
(called the " chief-possessions")^ may not he owned by
common persons, and may not be sold, leased, mortgaged or
otherwise disposed of by the occupant. So that when a
person wishes to transfer laud occupied by him, he petitions
the feudal official, declaring that he cannot pay his taxes,
and praying permission to transfer the land to another, and
pay taxes with the money received as compensation for the
transfer (the word "price" not being used). This trans¬
action is called " change of possessions." ^
In Noto kuni, Suzu kori, the supply of rice is a limited
one in proportion to the population, and exportation, as
well as manufacture into wine, is forbidden. In the districts
of the salt industry the people are obliged to obtain a vast
amount of rice (called " Government-advance " *) from the
feudal lord, and a fixed number of bags of salt are given in
exchange for 1 koku of rice. The law requires, therefore,
that all salt produced in this kori shall be directly deposited
1. This seems inconsistent with what is said as to gifts to tem¬
ples, in Chap. II, " Temple-Endowments." But the reference may
be merely to the law prohibiting the erection of new temples (XII
Kyoho, 1727, Budorff, Tokugau-a Gesetzsammluiig, 54), which however
hardly reached to this ilaimiate ; or we may supply (as is necessary
not infrequently) the words " without official sanction." 2. On-taka.
But the " on" may be the honorific used of the things
belonging to a superior. Hence, one construction of the pass¬
age may be (especially considering the refereiRe to the " common
people ") that the land was nominally owned by samurai, and being
received by them directly from the lord, it could not be alienated
without his permission. The analogy of one of the Tosa tenures, as
described by Mr. Grinnan in his paper on " Feudal Laud Tenure in
Tosa" (Trans. Asiat. Soc. Jap., 1892), leans to this view. 3. Kiri
(cut, erase,—hence, substitute one entry for another)-taA'a. 4. 0-
shiire-mai.
part v.—property: civil customs.
11
in the storehouse of the clan, and may then be bought by
any who wishes it. No salt may be privately sold, nor can
it even be used until it has been thus deposited.
In Ecbu kuni, Tonami kori, where a man has under¬
taken with the consent of the superintendent of new-cultiva¬
tion, 1 to improve the upland of another and cultivate it for
a number of years, and before the expiration of the time
turns it into ricefield at his own expense, he becomes the
owner of the land by payiug the original owner the value
of the upland.
In Echigo kxmi, Koshi kori, when in consequence of an
overflow of the Shinano Eiver there occurs an increase and
diminution of land by a detachment 2 of land in one place
and an accretion ^ in another, the owners of the detached land
must bear the loss, and the benefit of the accretion goes to
the owner of the land increased. In Kambara kori, the
ownership of town lands is evidenced by a land re¬
gister 3 kept in the ward assembly-house. Sales are noted
therein, with the date and the names of buyer and seller.
An inspection of the register is made in the first month of
every year by the ward representative and the elder. In
addition to this record, each owner has a title-deed for his
possessions. Almost all the upland, rice-field and forest
land has been acquired by the appropriation and improve¬
ment of the public waste-land, a price being paid to the
feudal lord aud the receipt being used as a title-deed.
Houses, as well as cattle, money, etc., are not entered in
the land-register and can be freely sold or lent. In Kubiki
kori, the ownership of lands in towns (including buildings)
is evidenced by a document sealed by the company and
headman, countersealed by the elder, and attested by the
governor. A copy is entered in the land-register, here called
" house register." ^ Buildings and lands in towns can be sold
only to residents of the same town. In Uwonunia kori, the
ownership of cultivated and forest land is evidenced by the
1. Kaisahu-bugyo. 2. Kake-chi. 3. Yose-chi. 4. lye-clio.
12
PEIVATE LAW IN OLD JAPAN,
land register.! Mortgages of land are permitted for a term
not exceeding 10 years, even though the mortgagee is in
another fief; but sales are ahsolntely forbidden.
In Sado kuni, Sawata Iwri, there is a register 2 of the
period Genroku (1688-1704). This is carefully preserved
at the village ofi&ce and is called the " official map-book." ^
When the villagers assemble at New Year to exchange the
season's good wishes, the book is placed upon an elevated
floor, and with offerings of consecrated wine they pay rever¬
ence to it. There is a copy of it called " bag-book," ^ in which
are entered the production, area, and owner's name of all the
lands in the village, the title being thus certified. In town-
wards there is a register i in the possession of the ward-elder,
and in it are recorded the frontage and depth of every house
iu the ward, with the owner's name, the title being thus
certified.
Sanindo. In Tajima Jaini, Izushi kori, there is a
register 5 kept by the headman 0 of every village, in
which are entered the production, area, common name, and
owner's name of every piece of rice-field, upland, and forest-
land. A copy of the relevant entry is given, on request, to
every owner. In town-wards, there is a house-register ^
kept by the headman,® in which the frontage and dejith, with
the names of owners, are entered, the title being thus
certified. In Idzuino Jaini, Shimane kori, the ownership of
residence-land is evidenced hy a " sale title-deed."® Of
personal property there is no record or document. All can
he sold, mortgaged, or otherwise disposed of at pleasure.
The ownership of cultivated and forest land is evidenced hy a
" person-name-list hook." !0 This also ftay he sold, mort¬
gaged, or otherwise disposed of at pleasure, provided taxes
are not in arrears. No one can under any circumstances he
1. Mizu-clio. 2. Ken-chi-cho. 3.0-zu-cho. 4. Fukuro-clio,
5. Taka-cho. 6. Shoya. 7. Ken (length)-ftelsii (difference)-c/io-
8. Nanushi. 9. Bai-ken-jo. 10. Nimbetsu-nayosei-clio.
past v. property : civil customs.
13
deprived of his property against his will. The owner of
cultivated, forest, or residence land, or of ponds or
marshes, is entitled to retain all the profits issuing there¬
from, whether arising in the course of nature or produced by
human industry.
In Iwami kuni, Naka kori, when the owner of cultivat¬
ed or residence laud cannot pay his taxes, it is the custom
for the headman 1 to pay them instead, and if frequent
defaults of this sort occur, the land is confiscated by the
headman and becomes the common land of the village (being
called " common cultivation-land," 2) and the owner loses
all title to it.
Sanyodo. In Harima Kuni, Shikito kori, a register 3 of
the usual kind is kept by the headman.^ This is copied
oiice in every five years and one of the copies placed in the
temple of the local divinity. * In town wards there is a
register 5 of the usual sort. There is also a title-deed ^
for every house, and on the occasion of a transfer this is
given to the feudal official with the petition, and a fresh one
is returned to the buyer, a fee^ of one-twentieth of the
purchase money being paid at the same time. Where the
transfer is one for which no charge is made (as for instance,
when the partition of a family patrimony occurs), a small
transfer-fee ® only is paid.
In Mimasaka kuni, Shouan kori, the terms " right-
Wle " 2 and " left-ladle " ^ are used of riparian proprietorship.
The river is usually in the control of the village on the right
bank, which pays the taxes; so that the village on the left
bank cannot do as it pleases, even in regard to fishing.
In Bigo kuni, Mitsuki kori, a register 3 of the usual
sort is kept by the headman i of the village. In towns, the
1. Slioya. 2. So {s.\\)-sakuchi. 3. Nayose-clio. 4. Vjigami.
See Satow, Transact. Asiat. Soc. Jap., Vol. III., App. 5. Mizu-cho.
6. Kolsenjo. 7. Tfauryo. 8. Cho kiri-ryo. 9. Miyi-shaku, hidari-
shaku. The significance is obscure.
14
PRIVATE LAW IN OLD JAPAN,
ward-elder keeps a house-register i in which areas and
names of owners are recorded, the title being thus certified.
Every house owner also has a title-deed,2 officially sealed by
the elder aud serving as proof of title.
In Aki kimi, Numata and Aki kori, a registers ot area,
size, and owner's name is kept by the headman, A copy of
the relevant entry, sealed by the local officials, is delivered
to each owner ; this is called " tswio-fixer" and serves
as proof of title.
In Suwo kuni, Yosbihiki kori, the ownership of resi¬
dence-land is evidenced by a title-deed, having on its face
the seals of the elder, chief elder, and ward officers, and on
its back the attestation of the district-deputy; i while that
of cultivated or forest land is evidenced by a certificate,
bearing a transcript of the entry in the land-register,®
On this certificate s are entered the person's possessions as a
whole, the total assessed production being named and sepa¬
rate parcels not being distinguished. The owner, therefore,
who wishes to transfer a separate parcel is obliged to have
the certificate made out anew ; but this cannot be done
except at the time of the revision ot the register, which ought
by law to occur in tbe 3d month of every year, but in fact,
owing to tbe inconvenience, does not occur oftener than once
in 3 years. For buildings alone tbere is no certificate of
ownership. Personalty may be disposed of at pleasure without
any restraint whatever ; but not realty. In Tsuno kori, the
ownership of cultivated, forest, and residence land, is
evidenced by a certificate,7 containing a transcript of the
1. lye-cho. 2. Uriki-jo. S. Mizu-cho. Daikican. o. Taliata-
nayose-cho. 6. Sage (hang, let down)-/«rfa (ticket). The sage may
imply that the ticket was pasted on the register, one end hanging
joose—a not uncommon practice in Japan. But probably the sense
of " something sent down by a superior " is here the proper one.
The sagefuda was made out and given to the land-owner by the
officials. 7. Sagefuda.
PART V. PROPERTY : CIVIL CUSTOMS.
15
land-register (known as "horizontal-book" i or "assembly,
book "2) and inspected officially every 3 years. In Kaga
koH, the owner of cultivated, forest, or residence land or of
ponds or marshes is entitled to retain all the profits issuing
therefrom, whether arising in the course of nature or
produced by human industry.
In Nagato Inmi, Toyoda kori, when a person is unable
to pay his taxes, his company, perhaps all the fellow-
villagers, form a lottery-club, ^ and pay the taxes with the
money thus collected. The owner, in return for this, agrees
to hold his land for the benefit of the club, and, while
continuing to cultivate the land, pays off the debt gradually
by buying up the lottery-tickets, until finally the debt is
redeemed and he becomes full owner once more.
In Tosa fiMJu", Kochi kori, "new-land"^ only maybe
sold, not " original-land." ® Tbe latter term is applied to
all lands cultivated and recorded in the register during the
rule of the Chosokabe family; the former term is used of
lands brought under cultivation during the rule of the
Yamauchi family.
In Awa kuni, Nabigashi 'Aon', tbe owner of property
may deal with it as he pleases, except that for transfer of
assessed cultivated land, forest land, lakes or swamps,
previous notice to the headman and the securing of his
official seal are necessary. In Miyoshi kori, there is an old
rule that he who is in arrear with taxes or other dues may
not, until the arrears are paid, deliver any portion of his
rice to another, even on the pretext that he owes to the
latter a quantitj' of rice.
In Sanuki Aim/, Kagawa kori, in villages, a register ® is
kept in which the pr oduction and area of each plot, with the
1. Yoko-cho. The idea may be that the book was longer hori-
zoutally than perpendicularly, as in fact some of the land-registei's
are. 2. Za (seat, alsembly)-c/(o. 3. Mujin-ko. 4. Shinden. 5. IIoii-
den. See Tosa kuni, in Part II, Chaps. Ill and IV. 6. Jundo-cho.
16
private law in old japan i
owner's name, are entered, and a docnment bearing the
official seal of the headman ^ and company-chief serves to
prove title. In towns a register ^ of the usual sort is
kept. In Naka hori, a register of the usual sort is kept, in
villages 3 as well as in towns.^ In sales of town-lands a
proper slip is posted over the name of the seller, and the
attesting seal of the chief elder is affixed.
In lyo kuni, Uma kori, a great register 5 of a similar
sort is kept; and the relevant entries are copied on small
certificates ® and given to the various owners, each hearing the
seal of the district magistrate^ and deputy.® In town-wards a
register ® of a similar kind is kept. In transfers of property
both parties file a petition countersealed by their companies,
and the town-magistrate gives a document of permission.
Saikaido. In Chikugo kuni, Mitsuma kori, some
formal process sanctioned by custom is requisite to gain title
to real property, while as to personalty delivery of possession
only is sufficient.
In Buzen knni, Kiku kori, a register i® is kept in the
village office, in which is recorded the production, area, and
common name of all plots of cultivated and forest-land, as
well as the owner's name ; each owner keeps a " transfer-
document," certifying to his title. In towns a transfer-
hook is kept, in which all instruments of transfer are
entered, the title being certified to by the counterseal of the
ward elder and chief elder, and by the indorsing seal of the
town magistrate. In Shimoge kori, a register of a similar
sort is kept for cultivated and forest land, each owner
having also a " transfer-deed " to certify to his title. In
towns a register i® of the usual sort is kept.
1. Shoya. 2. l/ri (sale)-Aere (deed)-c/io. 3. Nayose-clio. Mei'
sai {details)-n«Ar« (strike out)-tsHAe (enter)-c7io. 5. 0 {gieat)-sagefuda
certificate). 6. Ko-sagefuda. 7. Kori-bxtgyo. 8. Dai-ktvan. 9. Sun
(inch)- A'cn (examination)-c/io. 10. Naxyose-cho. ll.Yuzxc-ri-xcatashi-
cho. 12. Saku (cultivation)-nnnu (in sncoession)-c/io. 13. SlizU'
cho.
PART V. PROPERTY ; CIVIL CUSTOMS. IT
In Hyiigo kuni, Miyazaki and Koyu kori, a register
of rice-field and upland is kept in every village-office. Most
of the land is " allotment-land, and every 3 or 5 yearS'
the land is re-divided^ (except the newly reclaimed lands3),
and more or less alteration takes place in each one's
share; * so that although one may call himself the owner of
land of so and so many tens of koku, the term " owner " is-
a vain one. In towns a register® is kept in the ordinary
way, the title being thus certified.
In Osumi kuni, So kon, there is a strict rule that a
farming family® cannot own town land, nor a merchant^
family 7 own village land. The rice-fields and uplands are
nil owned by the feudal lord and his retainers, and the
common people cannot become owners; they may in fact
be regarded as croppers, with the exception of those who
reclaim new land ; these acquire its ownership and a special
record is kept of such in the register® of the village office.
This register contains also the usual record of the produc¬
tion and area of all rice-field and upland ; and there are
several greater persons® who distribute the land among the
lesser persons, i® and these cultivate their respective por¬
tions. All persons between the ages of 15 and 60 are
numbered among these lesser persons, and the taxes and
sundry services are paid by them. In the case of town
lands, the title is certified to by a deed received from the
feudal official.
In Iki kuni, Ishida kori, two registers are kept in each
village for cultivated and forest land. In one, the " clear
book," 1 are entered the production and area, with the
1. Kuji-chi. 2. Wari (divide)-ftayeru (comeback). 3. Shin-kai-
chi. 4. Uke-viochi, 5. Dai-cho^ 6. Noka, 7. Sho-kff. 8. Moto-
(original, chief)-c/io. 9. Na {na,me)-gashira (leader, head), i. e. their
names lead all others. 10. Na-ko (children), i. e. lesser names. An¬
other explanation is that na signifies the name given to a piece of
land, and hence the land itself. Thus the nagashira are the chiefs
over the land. IBee Simmons, " Notes, etc.," p. 101. 11. Bunko.
12. Kyo-cho.
Pt. v.—S.
18
PRIVATE LAW IN OLD JAPAN :
owner's name, of all newly-opened land, i as soon as it
is surveyed. But as all land except forest-land and
made-land ^ is the common property of the whole village,
even a person who has newly-opened land has no per¬
manent ownership, and his land is included in the
process of equal distribution among all the villagers.
There are two ways of distribution, distribution by official
orders ^ and distribution by mutual consultation.^ In the
former case the feudal official orders the distribution-super¬
intendent 5 to make the division. The latter occurs when
many families have divided, branch families have been set
up, and their land has in consequence diminished and their
livelihood become difficult. These then have a consultation
of the whole village or district, ® and a general allotment
of shares'' is made. Waste-land newly brought into cul¬
tivation is surrendered by its owner to the village or
district, but if the reclamation has been made but a short
time before, so that the profits as yet accruing are small,
the owner is allowed, af:er an inspection of the land, to
keep it until the next general distribution. This is called
" temporary ownership until the next distribution." ® In the
second register® are entered the production and area of
the lauds as received at the time of a general distribution;
this is for the purpose of tax-collection.
In Tsushima kuni, Shimoagata kori, there is one
registerin which the production and area of all rice field and
upland are entered; and a second register, called " present-
cultivation-book,"''in which are entered the names of the
cultivators.''' There are two kind of lands, public and
private. That which is newly opened aud^ cultivated by a
man's own efforts is called " private land,"'® and he is in
1. Kaihon-clii. 2. Kaimen (sea)-i(wie (bury)-I«i(7ce (hmlA)-shinden
(new land). 3. Go-ho-wari. 4. Sodan-wari. 5. Wari-hugyo.
6. Fure,—the extent of this district is obscure. 7. Kohun haiyo,
8. Mataicari-ichidai. 9. Taka-yose-eho. 10. Tsuho-tsuke (&x)-cho.
11. Ima-saku-cho. 12. Tsukuri-nushi. 18. Shi-den.
PART V. PROPERTY : CIVIL CUSTOMS.
19
reality the owner. But the land which has been cultivated
since early times is called " public land,"i and its cultivators
(called " present-cultivators ") can only take the profits^ of
the land and have no ownership. In towns there is a
register 3 in which frontage, depth, and owner's name are
entered, and the title is thus certified. A tax, called
"rafter and room money,"^ is imposed on town-lands.
1. Ko-deii.
2. Saku-toliu-mai.
3. Ki-clw.
4. Keta-ma-sen.
( 20 )
CHAPTER II.
LESSER EIGHTS CONNECTED WITH LAND.
1.—BOUND ARIES.i
Kinai. In Yamato kiini, Soyegami kon, boundary-
fences are erected and repaired by the owner on the sunny
side. 2
In Settsu kimi, Nishiiiari kori, the repair of a fence
must be done at the joint expense of the owners on each
side and under their joint supervision,
Tokaido. In Mikawa kimi, Atsumi kori, there is for
every house in a town a drain for conveying away filthy
waters, running along the boundary line of the premises.
The sa3'ing is, " The west for drains, the east for fences :
the north for fences, the south for drains." That is, the
houses on the west or the south of a drain must see to its
cleaning; while the houses on the east or the north of
a fence must see to its repairs. •
In Kai kuni, Koma koi-i, fence-repairs are to be made
at the expense of the owners on each side, sharing equally ;
but if one is too poor, the other must bear the whole. In
Yatsushiro kori, where a canal or a river serves as a
1. Bi.nkai. 2. Hi-omote (sun in front).
PART V.—PROPERTY : CIVIL CUSTOMS.
21
boundary, the middle line of the river or canal is the
boundary line, and repairs are made at the joint expense of
the owners on both sides.
In Musashi lami, boundary fences and walls are
recorded in a map kept at the ward-assembly office, and
known as "certificate."! In the period Kwanyen (1748-
1750) there was an examination of all boundaries and a
revision of the maps ; but fire afterwards destroyed them,
and there is now much confusion and error in regard to
the lines. It is the custom in villages to mark the bound¬
aries of land by a line of stones or of charcoal set into
the earth.
TosAxno. In Shinano kiini, Takai kori, when the
owner of land wishes to erect a fence, it must stand 2 or
3 feet from the boundary and must not exceed 4 or 5 feet
in height. 2 The expenses of repairing fences between resi¬
dence or garden land and the like are to be borne by the
owners equally, but in the case of cultivated land, accord¬
ing to the assessed production of the plots on either side.
In Hanu kori, the repairs of a boundary-fence running east
and west, the owner on the south side must make the
repairs.
In Rikuzen kuni, Miyagi kori, fences are usually built
and repaired by the arrangement called " sending-fence " ^
or " sending-boundary ; " ! that is: A repairs one-half part,
and B repairs the other half.® But sometimes the work is
done at joint expense ; often one owner supplies money, the
other services. In Toda kori, the custom of " sending-
fence " obtains, each owner repairing his own side. The
fence stands about If feet from the boundary, and may be 3
1. Koken. 2. So as not to cut off the sunlight from the next
land. But the rule should apparently apply only to the southerly
owner. 3. Okuri {^ud)-kaki. The connection is obscure, i. Okuri-
sakai. 5. The passage in Ugo kuni, infra, shows the meaning of this
unsatisfactory explanation.
22
PRIVATE LAW IN OLD JAPAN :
or 5 or even 10 feet high, as the owner pleases ; the materi¬
al may be hoards or bamboo or living shrubs. But in
former times the farmers were not permitted to build a board
fence. When a canal or river forms the boundary, an earth-
mound is made along each bank for the whole distance,
quite distinct from the private lands adjacent. The width
of the mound for a 6-foot canal would be 3 feet on each side,
and the owners on each side repair one half of the canal.
Sometimes a moat serves as the boundary, encircling the
residence-land on all sides ; the land-owner owns the moat
and therefore repairs it at his own expense. Formerly this
was a common practice, but owing to a prohibition at one
time issued, these moats are now seldom met with. Where
a river sep.arates two villages, the middle line is the bound¬
ary. Even when the course of the river is changed by a
flood, this line remains the boundary. The area covered by
the new channel is called " lost land," and the assessment
of the owner is proportionately reduced; yet his name is
still preserved as owner, even though the river covers his
property.
In Uzen /ami, Okitama Aon", the owners of residence-
land must repair boundary fences at their joint expense.
The fence must not exceed 6 or 7 feet in height. Where a
river separates two villages, the banks form the boundary,
not the middle line. When the course of the river is
changed by a flood, so as to cut ofi" a portion of the land of
one village, this portion is owned in common. The same
rule obtains where the alteration of course has been within
the limits of one village and an individual proprietor finds
his land cut off. •
In Ugo /ami, Akita Aon", when a river or canal serves
as a boundary, the line runs through the middle of the
stream, stakes being driven to mark the line. Each half of
tlie river or canal is repaired by the owners on that
side, though sometimes it is made a matter of joint
expense. The " sending-boundary" is customary in re-
part v. property : civil customs. 2^
gard to fences ; thus, A repairs the northern fence, [divid¬
ing his land from B's], B repairs his northern fence and
so on. In Yuri kori, the boundary fence [in towns] is
usually placed midway in the spaee of 1^ feet left between
two houses, and is repaired at joint expense. Where twO'
houses are built with a single partition wall and a con¬
tinuous roof, the wall and roof are repaired at joint expense.
Hokurokudo. In Echizen kuni, Asuha kori, the bound¬
aries of residence-land in towns are marked by stakes of
chestnut trees driven into the ground 3 feet deep; and
when the residence is sold, the stakes are taken up and
fresh ones driven. Kepairs of fences form a joint obligationr
the parties on each side repairing one half.^^
In Echigo kuni, Kambara kori, [in towns], a drain is
made in the space of 1^ feet (known as "shed-space")
required to be left between two houses. The drain serves
as a boundary, a stake being driven in the middle. The
space of 7^ inches 2 belongs to each house, and repairs are
made jointly. In Uwonuma kori, where a river separates
two villages, the middle line is the boundary. Nor, when
a flood alters the course of the river does the boundary
change; but the new channel is owned half by one village,
half by the other.
In Echigo kuni, Koshi kori, the drains between adjacent
lands are used as boundaries, the dividing line running
through the middle of the drain. Each owner repairs his
own fences.
In Echu kuni, Imizu kori, the owner (for example) of
plot A repairs the fences between A and B, the owner of
plot B the fence between B and C, and so on. ^ [Sometimes],
if the fence (for example) is 2 feel thick, one owner repairs
one foot of thickness, the other the other foot. If one owner
refuses or is unable to do his share, he is considered to have
1. Probably tile fiame arrangement termed okuri-sukai, in XJgo
kuni, and Kikuzen kuni, supra. 2. A Japanese foot has only 10
inches. 3. This corresponds to the okuri-sakai, supra.
private law in old japan :
waived his right in the fence. [Sometimes], if the fence is (for
example) 20 ken ^ in length, each owner repairs 10 ken;
or they may repair the whole at joint expense, and a failure
to do one's share is regarded as a waiver of ownership.
A drain may not be dug along the boundary without the
eousent of the adjacent owner.
Sanindo. In Iwami kuni, Naba kori, the line where
grass ceases to grow is the boundary between the shore and
private lands, and the breadth of the shore is usually about
120 ken, that is, from the tide-line to cultivated land.
In Idzumo kuni, Nomi Aon", where a river separates
two villages, the middle line is the boundary.
Sanyodo. In Suwo kuni, Tsuno kori, fences are repair¬
ed by both owners jointly; and the same is true of rivers
and canals. In Kyuka kori, the owner A repairs the fence
between his land and that of B, the next owner on the
north, B, the fence between himself and C, the next on the
north, and so on. Where a river or canal serves as bound¬
ary, the property owners repair it at joint expense, where
it passes between residence plots; where vacant land is on
either side, the repairs are done by the authorities. In
Yoshihiki kori, where a river separates two villages, the
middle line is the boundary; nor if the channel of the river
changes does the boundary change.
Nankaido. In Awa kuni, Nabigashi kori, among the
samurai, boundary fences are erected and repaired by the
owner on the sunny side. This is known as " sun-respon¬
sibility." 2
In Tosa kii7ti, Ogawa kori, a bounda^ fence is erected
and repaired by the owner on the sunny side, and a drain
is made on the shady side.
Saikaido. In Chikugo kuni, Mii Aori, boundary fences
are repaired by the owner on the shady side; ^ this is in
1. 1 J:en=about6 feet. 2. Hi-iikemochi.
3. Hi-ka (below tbe sun).
part v.—property: civil customs.
25
order that the other owner may not be able to construct
the fence in such a way as to cut off the sunlight.
In Bugo kinii, Hayami kori, the repairs of a boundary
fence are undertaken jointly by the adjacent owners.
In Hyuga kiini, Usuki kori, the owner of riparian land
undertakes the repair of the fencing on the lower side i of
the land, as the river flows.
In Satsnma kitni, Satsuma kori, in towns only, bound¬
ary fences are repaired by I he owner on the sunnj' side.^
2.—VICINAGE.
Kinai. In Yamashiro kiini, Kadono Aort, in towns, it
is allowable to place the foundation close up to the bound¬
ary. Where a window has existed since old times, a
neighbor cannot claim to have it closed, even though it
overlooks his land; but an overlooking window cannot be
newly made without paying to the adjacent owner a sum of
money, called " window-opening money." In villages a
[new] house must stand back 3 feet from the line of the
raindrip® [of the neighboring house]. When one builds a
house, he must give the two adjacent owners a document
engaging not to allow his trees to exceed a proper height;
he must also file with the feudal official a petition, accom¬
panied by a certificate from the adjacent owners that they
have no objection, and must also have an official inspection
of the building after its completion. The standard for the
height of trees is that they shall not overtop the roof-ridge ;
if one grows higher, the owner must pay " shade-money "
to his neighbors.
In Kawachi kimi, Shiki kori, a house must not be so
built as to cut off the sunlight from the adjacent house.
In Settsu kitni, Yabe kori, it is everyone's privilege to
build as high a house as he pleases, notwithstanding that it
•
1. Kawa shimo-mochi. But the passage is obscure. 2. Lit.,
above the sun. 3. Ama-ochi.
26
private law in old japan :
overlooks adjacent land. But the rain must not be shed
upon adjacent land. In Nishinari hori, when a storehouse
or projecting lattice ^ is built too near the public highway,
the owner must consult and obtain permission from the
ward-elder and the neighbors ; and whenever repairs are to
be made to it, the same procedure is necessary. .
Tokaido. In Iga kuni, Abe kori, a house may be built
close to the boundary-line ; and if the rain is shed upon the
adjacent land no objection can be made. But when one
builds a house higher than the adjoining ones, it is the
custom to cut out a part of the transverse beam supporting
the ends of the eaves [of the new house]. That it overlooks
the adjacent premises is no cause for objection.
In Ise kuni, Ano kori, all buildings must stand back
1^ feet from the line. No objection can be made if a house
overlooks the neighboring premises, either from its second
story or from a window. But iu order to grow a high tree
in cultivated land one must pay, in rice or money, a sum
called " shade-payment" 2 as a compensation for the
obstruction of sun-light. In towns the rain must not be
shed upon adjacent ground ; and a law of the fief prohibits
the erection of a three-story house or of a storehouse.
In Omori kuni, Aichi kori, people dislike to have a
neighboring house overlook their premises from a second
storj' or a window, and a screen 3 must alwaj's be con¬
structed. Rain may be shed upon adjacent premises.
In villages tall trees are not to be placed where their shade
may injure cultivated land, and if a tree grows above 18
feet < in height, the person injured may cut it down.
In Totomi kuni, Sano kori, iu towns if has always been
allowable to place houses close together, without providing
any sun-space. But in villages it is customary to build far
enough away from the boundary to shed the rain on one's
own land.
1. Tsuri-koshi. But the exact reference is not clear. 2. Kage-
shiki. 3. ilikakushi. 4. Three ken.
part v.—property: civil customs.
27
In Kai kiiui, Koma kon, a new house must stand 1 or
2 feet from the boundary, so as not to shed rain on the
adjoining land. In Yatsushiro kori, in towns, the distance'
from the line is not less than half a foot or 1 foot, and it
never exceeds 3 feet. In Yatsushiro kori, one cannot plant
a tree on his own land [near the boundary] without the
neighbor's consent.
In Idzu kuni, Takata kori, notwithstanding that one's
^and may be injured in consequence of its position [with
reference to a building already existing], no objection can be
made, since by old custom one must submit to this. Butne
new building can be erected which imposes any burden on
adjacent land. It is customary to preserve a space of 8 or
4 feet width between the sides of houses, the test being that
oxen and horses may pass through.
In Sagami kmii, Kamakura kori, there is a general
prohibition against the planting of trees on the southern
side of a neighbor's land, whether residence-land or cultivat¬
ed land. Trees already planted are trimmed every year, sO'
as to keep them from shutting off the sun-light. In
Ashigara kori, the rule for the erection of a building is
that it must be 6 feet distant from the adjacent pre¬
mises ; but when the land is too small for conveniently
observing this rule, a mutual arrangement is sometimes made
by which the builder of the new house is permitted to shed
the rain upon the adjoining premises.
In Musashi kuni, Saitama koi-i, in building a house, a
space of 1^ feet, and in building a storehouse, a space of
2^ feet, must be left between the building and the boundary
lien. A tree planted in residence-land adjoining cultivated
land must be placed 18 feet from the boundary line. Even
then, if it casts a shade on adjacent cultivated land, the
leaves must be removed, although it need not be cut down ;
yet if the adjacent land is meadow or rice field the tree
must be cut down. In Iruma kori, a house must stand IJ
feet from the boundary line, and a storehouse 3 feet. W hen
28
PRIVATE LAW IN OLD JAPAN :
it becomes necessary in building to erect an enclosure ^
about the premises upon a main road, it is customary to
petition the local officers for permission. If a tree on
residence-land grows to more than 10 feet 2 in height, it is
customary to have a " shade-cutting. " Wliether small
trees called " thatch-covered " 3 may be planted around the
edge of a piece of cultivated land, is decided by consultation
with the adjacent owners. In some villages it is required
that, when timber trees are planted near cultivated land,
R space of about 72 feet must be left on the southern side of
the cultivated land and a space of about 60 feet on
the western and northern sides. In Toyoshima hori,
a new house must stand back half a foot from the bound¬
ary, making a distance of 1 foot between the houses. The
object of this is to prevent the shedding of rain on adjacent
land. But in recent times this rule has not been observed.
The style of building known as " Osaka style " (in which
the posts supporting the second story are placed directly on
the front foundation line [instead of standing some distance
in the rear]) is not permitted, except for theatres and
prostitution-houses, which require large rooms and con¬
venient egress in case of fire> (Since the Eestoration, a
rule has been made that the foundation must stand 3 feet
from the line).
In Shimosa laini, Imba hn i, ordinary trees must not
be planted nearer to cultivated land than 1^ feet, and timber-
trees not nearer than 18 feet. In Katori kori, in building
a house it may be so placed as to shed rain upon the
adjoining, premises. To plant a tree near cultivated land
the consent of the owner must he proiffired, and a timber
1. Soto-kahoi. 2. One j"=ten shaku. 3. Because the rice-straw
is tied aronuj them to be sun-dried and become thatch. 4. The
ordinary style gives only a gable roof with attic rooms, which do
not give upon the street in such a maimer as to allow speedy
egress.
part v.—property : civil customs,
29-
tree in such n spot must not in an)- case exceed 6 feet in
height. A tree naturally growing there must be cut down
immediately on the request of an adjacent owner.
Tosando. In Omi knni, Shiga kori, a house must be so'
built as not to shed rain on the adjoining premises. In
villages a space of 4 or 5 feet must be left within the
boundary line, and a window opening on adjacent premises
must have a screen. One may at pleasure plant trees close
to the cultivated land of another; but in order not to give
the adjacent owner the benefit of the rain collected and shed
by the foliage, the foliage on the outer side of the tree is
stripped off. In Inugami kori, a house must be built so as
not to shed rain on the adjoining premises. A tree may
not be planted near cultivated land so as to cast a shadow
upon it; but sometimes a sum of money called " shade-rent
is agreed upon and paid to the owner of the land so shaded.
If such a tree grows beyond 10 feet in height, the excess is
cut oft.
In Mino kuni, Atsumi, Kagami, and Katagata kori, a
house must be built so as not to shed rain on the adjoining
premises; but an overlooking window is not objected to.
Large trees cannot be transplanted near cultivated land.
Trees already so planted must be trimmed off frequently.
In Ahacbi kori, a house must be built so as not to shed rain on
the adjoining premises. If without consultation with the ad¬
jacent owners a house is built so high that the ends of the
eaves overhang the adjoining premises, the builder cannot
complain if the adjoining owners cut off the overhanging
portion. If the second story of a house overlooks the
adjoining premises, a screen must be put up. When a tree
is near cultivated land, all growth over 10 feet must be
lopped off. In One kori, before building a house in a town
one must file with the feudal official a petition countersigned
b)' bis company and the ward officers of the place where
the land is situftted, and minst also furnish a plan of tho
1. Kuge-tteiigu.
50
PRIVATE LAW IN OLD JAPAN :
house. After due examination, permission is given. No
such proceedings are necessary in case of a house in a
village, but a house must stand back about 3 feet from the
boundary line i of a road or of cultivated land; this is called
■" shade-withdrawal." ^
In Shinano Icuni, Takai kori, the house must be, on
the south side, so placed that it does not shed rain on the
land to the south, and on other sides, a space must be left
equal to the length of the post [of the lower story] .3
Trees must not be planted near adj acent land on any side.
In Saku koH, the foundation of a new house must be laid
from 6 to 10 feet from the boundary. But in towns, where
space is scarce, this rule is not observed. The owner of
land standing high towards the south must see that he does
not cut off the sunlight from residence-laud [to the north
of him]. But where the slope is upwards from south to
north, the obligation is of course a light one. In Minochi
kori, the tops of trees in residence or garden land must be
lopped, so as not to obstruct the sunlight.
In Kotsuke kuni, Obaraki kori, the foundation of a
house must be placed 1§ feet distant from the boundary line.
No objection is taken if a second story or a window over¬
looks the adjoining premises. Trees planted on residence
land close to cultivated land must stand 8 feet back from the
boundary ; and if they grow so as to cast shade on the
adjoining premises, they must be lopped.
In Iwaki kuni, Shirakawa kori, before building a house
in a town, one must file a petition showing the ground-plan;
a ward-officer then makes an inspection and grants the
permit. The house must stand IJ feet fjym the boundary-
line. In villages trees of a forest adjoining cultivated land
are cut down all around for a space of 6 feet from the bound-
1. Kaisen. 2. Kage-hild. 3. This would be about 10 feet. The
object of the greater space on the north side was to prevent the in¬
terception of the sun's rays coming from the south.
PART V. PROPERTY I CIVIL CUSTOMS. 81
ery; this is called •' tree-sbade-cutting." Trees planted on
residence-laud must stand 8 feet back from the boundary.
In Iwasbiro kiini, Sbinobu Icori, before building a bouse
in a town, one must file a writing stating that the adjoining
owners have no objection and procure the permission of the
feudal official. The foundation must be placed feet from
the boundary line. No objection is made if a second story
or a window overlooks adjoining premises. Where in vill¬
ages a forest adjoins cultivated land, the trees are cut
down for a space of 18 feet from the southern boundary
of the cultivated land and of 9 feet from the northern
boundary. In Aidzu kori, the distance from the boundary
is 1^ feet for bouses and 2^ feet for storehouses. Windows
are forbidden on the northern and western sides; windows on
the southern and eastern sides, when intended for the admission
of light, are lawful, but must have a screen. Trees casting
a shade on cultivated land are prohibited; and though
mulberry-bushes may be planted 8 feet back from the
boundary, they must be cut down if complaint is made by
the adjoining owner.
In Rikuzen kuni, Toda kori, large trees must not be
planted to the south of a bouse in such a way as to cut off
sunlight. Dwellings and storehouses are usually placed 1\
feet from the next bouse, but further, if there would result
any inconvenience to the neighbor by the shedding of rain
from the roof; for every one is under an obligation to avoid
causing annoyance in that way. In Miyagi kori, the distance
between two houses should be 1|- feet (the term being " wall
extremities ") ; but the parties may by agreement lessen this
distance, and the rule is by no means generally observed.
In Mutsu kuni, Tsugaru kori, no tree may be transplant¬
ed so as to cast a shade on cultivated land, and the growth
of trees already so placed must be cut off.
In Uzen kuni, Okitama kori, the distance between
dwellings is customarily 1^ feet, between storehouses
3 feet. The roof must be so arranged that rain and snow
32
private law in old japan :
caught by it will not fall upon the adjacent premises.
Trees in residence land must be planted at least 8 feet
from the line; otherwise the adjacent owner may remove
them.
In Ugo kuni, Akita kori, in towns, a house must be so
placed that the rain is shed within the boundary line of the
adjacent house. On the public highway the house must
stand back 6 feet, and from the front a short roofing projects,
forming what is known as the "lesser store,"i and shed¬
ding the rain upon the highway itself. Under and through
this any one may pass.^ If the structure is burnt, the
owner receives by way of assistance of the authorities the
sum of IJ ktvammon.
Hokurokudo. In Echizen kuni, Asuha icori, a fee
called " shade-money" must be paid to a neighbor on
planting a tree close to his land. In Tsuruga kori, trees
must stand 8 feet from the boundary ; if the growth over¬
shadows the adjacent land, the parties meet, determine the
proper length, and cut off the branches to that point. In
building a house in a town the permission of the headman
must first he obtained, after petition and inspection; and
thus no controversies arise as to the overlooking of windows
or the shedding of rain. Storehouses are placed 1 foot
from the boundary. In Kambara kori, where it is desired
to raise the level of the land with a view to erecting a house,
the owner must before building notify the ward-represen¬
tative, who inspects the premises, and if the adjacent owners
do not object, permission is given. If it is desired to place
the house nearer the boundary than is allowed by law, the
consent of the adjacent owner must be obtained, compensa¬
tion of course being made to him. The extra distance
thus allowed is 1^ feet, and the expression " carpenter's
1. Komise. 2. The object was apparently to make the owner pay
for the privilege of shedding the rain into the street by furnishing the
public with a sheltered passage-way.
PART V.—PROPERTY : CIVIL CUSTOMS.
33
rule" 1 is used. A written instrument noting the
exceptional mode of building is in these cases always given-
In Kaga kuui, Ishika\^a kori, in towns, permission to
build a house must first be obtained by petition to the ward-
assembly, on inspection being first made to see that no ob¬
struction of streets is to be caused. In villages no permission
is needed if the front-beam ^ of the bouse is shorter than 15
feet; if it is longer than 18 feet, permission must be obtained
by filing a petition with a ground plan of the bouse.
When a bouse is built near cultivated land so as to cause in¬
jury by its shade, the owner must give in compensation an
amount of rice equal to that produced from a piece of land
about 6 feet by 12 feet. In Kawakita kori, the distance
betweeu adjacent bouses is always 1^ feet, without regard
to the relative heights. In Nogi kori, dwellings must be
placed about 6 feet from the boundary.
In Ecbu kuni, Nei kori, one must first procure the
inspection and consent of the feudal official before a new
bouse can be built. In Imizu kori, no objection can be
taken to the building of a second story, even though it affords
a view of the next premises ; still, a window may not be
made merely for the purpose of gazing into one's neighbor's
bouse. The distance between two bouses must be at least 2
feet. In Tonami kori, the owner of a bouse situated on
upland or uncultivated land may not plant a tree within 12
feet of adjoining [cultivated] land. Where there are a num¬
ber of plots of cultivated land, each owner must be careful
not to plant trees so as to injure adjacent land by the shade.
If this is done without consent of the other owner, the latter
has the right to remove it.
In Echigo kuni, Kambara kori, a house must stand
half a foot from the boundary, the distance between the
houses being 1 foot. In Kubiki kori, it is a long-established
rule that each person's snow must fall on his own ground ;
ft
1. Daiku-ho. 2. Mayegucln-iitsubori.
Pt. T.—3.
84
private law in old japan :
and if owing to the size of a house or its proximity to the
next, its snow accumulates on the neighboring premises, the
owner must go and carry it off. Where a window is made
on the side of a house, there must be a space of 2 or
8 feet between the houses. In Koshi hori, houses
stand back 1^ feet from the boundary. To overlook
adjacent land is not permitted. In villages trees must stand
back 3 feet from the boundary ; hut if a tree properly placed
grows so as to cut the light from adjoining fields, no objection
can be made. In Kariha kori, trees and houses, in villages,
must stand back 8 feet from the boundary. But in some
villages, called " land-distributing villages," ^ it is the cus¬
tom to make a [periodical] distribution 2 of all its lands, and
the possessions of all the villagers are equal; ^ and if in
these there is anywhere a tree which injures adjacent fields,
the village officials have it removed.
In Sado hunt, Sawata kori, a house must stand back
from the boundary inches, if it has a shingled roof, and
1^ feet, if it has a thatched roof. The overlooking of ad¬
jacent land is no ground for objection. If in a village a tree
casts shade on an adjacent field, it must he cut down with¬
out delay. If a grove next to a rice-field grows and finally
cuts off light, the owner of the field may cut down all the
trees for a space of 2^ feet from the boundary, without any
notice to the owner of the grove.
Sanindo. In Tamba ktini, Kuwata kori, on building a
house one must first file a so-called " house-building
petition," with a certificate of consent from the adjacent
owners, and must obtain permission from the feudal official;
and no complaints by others are thereafter receivable.
Trees must be planted 18 feet from the boundary of adjacent
cultivated land; and natural growth which encroaches on
this space must be cut off. In Taki koH, a house-foundation
is laid If feet from the boundary, and the presence of the
1. Jiuari-miira. 2. ICuW-Auy? (ilivide-cliange). 3.Kohei.
PART V. PROPERTY : CIVIL CUSTOMS. 85
neighbors is requested on such an occasion; though not
where a storehouse or a mere out-building is contemplated.
Screens must he used for windows that overlook. Trees
standing near boundaries of cultivated land must not be
allowed to grow higher than 15 feet, and branches extending
over the boundary must be lopped oflf.
In Tango kuni, Kasa kori, the branches of trees stand¬
ing near boundaries are cut once in 8 years, a consultation
being first held. In towns the consent of adjacent owners
and the permission of the elder must be obtained before
building; and subsequent complaints are therefore rare.
In Kumano kori, a house must not stand so as to shed rain
upon adjacent premises ; storehouses stand f of a foot from
the boundary. Screens are required for windows that over¬
look.
In Tajima kimi, Izushi kori, in villages trees must
stand 2 or 8 feet from the boundary; if the branches grow
out over the boundary, the overhanging part must be lopped
oflf, the measure being made by erecting a bamboo stick at
the boundary. In towns the inspection and permission of a
ward officer must be asked, before building a house; so that
complaints about overlooking others' premises are rare.
Storehouses stand back from the boundary f of a foot, if a
hafuya, i and If feet, if a taruya.^
In Idzumo Icuni, Shimane kori, a new house must stand
If feet from the adjacent land; but the rule does not apply
to outhouses. Windows so placed as to overlook the
adjacent premises must be screened. In Nogi kori, in towns,
the distance from the boundary must be If feet, the whole
space being thus 8 feet. The object of preserving it is to
provide a space for the drain. But in villages there is no
rule, the parties settling the matter among themselves.
Trees may not be planted within 6 ken of the boundary,
in lowland, or 4 ken, in upland, though these distances
•
1. Local names for special kinds of buildings.
S6
private law in old japan :
vary according to the slope of the land. In Kamikado
kori, a new house stands 1^ feet from the boundary,
that is, 3 feet from the next house. The object
of preserving this interval [called " sun-striking "] is to allow
opportunity for ingress and egress at the occasion of a
funeral or of a commemoration, ^ when it is customary for
the family not to appear on the public highway. So that
there is in these towns invariably a passage between adjacent
houses. Overlooking windows are forbidden, unless some
good reason exists ; but even then they must be screened.
In Iwami kuni, Shima kori, the distance between two
houses must be at least 2 feet, in order that rain may not
be shed on adjacent premises. If a man builds nearer,
so that the rain does fall upon the next land, he must
construct, at his own expense, an eaves-trough. The owner
of trees standing at the edge of another's cultivated land
must cut them down, if they exceed 7 or 8 feet in height.
Such trees are termed " nuisances," and their cutting
down, " shade-cutting." In Naka kori, the distance be¬
tween two houses must be at least 2 feet, each being 1 foot
from the line. Overlooking windows may not be constructed
in dwellings; but there is no restriction as to storehouses.
Sanyodo. In Bigo kuni, Fukatsu kori, overlooking
adjacent premises from a window on a second story is not
allowed, and a shutter must be constructed. In Bichn kuni,
Kuboya kori, houses must stand 1J feet apart. If a clothes-
drying platform is to be built on the roof, notice must
first be given to adjacent owners. When cultivated land is
turned into residence-land, the permission of the feudal
official must be obtained, and no high tree%an be planted so
as to cut off the sun-light from adjacent cultivated land. In
Mitsuki kori, in building a house, the ordinary petition and
plan must be filed; after inspection by the village officer and
1. In honor of cue who has passed away.
part v. property : civil customs. 37
by the neighbors, and after consent obtained of both, the
house may he built, and no objections will thereafter he
entertained.
In Aki kuni, Numata and Aki kori, the permission of
the feudal official must be obtained before building a town
house, except in the case of outbuildings less than 8 feet in
height. If the structure is not built according to the plan as
authorized, it is torn down. Overlooking or shedding rain
upon adjoining premises is forbidden by custom. A house
near cultivated land in a village must stand hack 8 feet;
no fence higher than 3 feet and no tall tree may he put near
cultivated land.
In Suwo kuni, Yoshihiki kori, in towns, the distance
between two houses must he the length of a tile, that is, H
feet. Overlooking windows are forbidden, as well as over¬
looking second stories. In Kyuka kori, houses must stand 2
feet from each other, in order that the rain may not he shed
on the adjoining premises. Houses may not he built in
a district devoted to cultivation, unless for special reasons,
and then not nearer than 48 feet to the adjacent cultivated
land. Moreover, the covering of the roof with tiles is
forbidden, reeds alone being permissible for this purpose.^
In Tsuno kori, the permission of the deputy must he
obtained before building a house on cultivated land, because
a law forbids the erection of houses on rice-land, except
where the lack of rain or the cutting off of irrigation chan¬
nels has rendered the land unavailable for rice.
In Nagato kuni, Amu kori, overlooking windows in
dwellings are forbidden. But in storehouses they may he as
numerous as one pleases.
Nankaido. In Awa ktini, Nahigashi kori, in towns, a.
house may if necessary he built as near as 1 foot from the
next house. Overlooking windows are prohibited, except
1. The object of this regulation does not appear, unless it be the
discouragement of expensive structures-
38
private law in old japan :
when speeiiilly necessary, and even then they must be
screened. In villages, every house needs an adjacent space^
in which to dry grain and other things ; and when one plans
building a house, the neighbor comes and consults about
placing it so as not to cut oflf the sunlight from the dryiiig-
:ground. Usually some arrangement is reached by mutual
consent.
In lyo kuni, Uwa Icon, the shedding of rain on adjoin¬
ing land is forbidden, but this rule does not apply in the case
of a low leau-to.
Saikaido. In Chikuzen /rmui, • Sawara and Naka/."ori,
when a bamboo grove adjoins cultivated land, tlie overhang¬
ing trees must be cut down, a pole being erected to deter¬
mine whether the tree overhangs ; where the grove is at the
foot of a hill, the trees are cut down for a distance of 48 feet
from the foot of the hill.
In Chikugo kuni, Yamato kuri, in towns, liouses may
stand close up to the highway line; but the space between
two houses must be 1^ feet. In villages, the space must be
such that rain is not shed by either on the adjoining
premises. When cultivated land lies to the north or west
of a house-site, the house must stand 9 feet from the line;
if to the south or east, 3 feet; the object of the rule is to
prevent the obstruction of sunlight.
In Buzen kuni, Kiku kori, the shedding of rain on
adjacent premises is forbidden by custom, unless the
structure is only a low lean-to. Overlooking windows
must be guarded by screens, unless the neighbor gives a
-dispensation. But if the neighbor removes and a stranger
takes his house, the latter may requir# a screen to be
placed, notwithstanding the agreement by his predecessor.
If a tree grows so as to overshadow adjoining land, it must
be lopped. The trees of a forest at the foot of a hill must
Be cut down for a distance of 18 feet from the foot of the
1. Hoshi (drjing)-6a (place).
part v.—property: civil customs. 39
hill; but the iitsiu/i,'^ no matter how great its growth, has
always been left untouched. In Shimoge kori, the bound¬
ary space for houses is 8 feet. Trees growing so large as
to overshadow adjoining premises are cut down to about
6 feet high. In Usa kori, the boundary space must be such
as to prevent the shedding of rain on adjoining premises.
There is an instance in old times of a dispute about a
boundary, which was determined by letting down a leaden
plummet from the extremity of the eaves. When a tree
grows so as to injure adjoining cultivated land by its shade,
it is lopped, the measurement being made by the pole-
erecting method above described.
In Hizen kuni, Fuhakii kori, trees must in villages be
placed 3 feet from the adjoining boundary. If a tree grows
so as to overshadow cultivated land, and the neighbor
petitions for redress, the branches must be lopped, under
the inspection of the headman.
In Hyuga kiini, Miyazaki and Koyu kori, when a tree
stands - close to cultivated'land in a village, it is customary
to lop its branches every two or three years, under the
inspection of the village officers, measuring the overhanging
portion by the pole-erecting method. In Usuki kori, trees
planted near cultivated land must stand 3 feet back from
the boundary. If they grow so as to injure the adjoining
land, the owner of the latter makes petition, on the ground
of "obstruction to cultivation,"2 and the feudal official
orders the lopping of the branches.
3.—SUNDRY SERVITUDES.
Einai. In Idzumi laini, Otori kori, [in towns], where^
a plot of" pouch-land exists, a passage must be made by
which the occupant can have egress to the main street, 'ihe
ward-officials always see to it, when such a plot is trans-
1. Deiitzia smibra. 2. Sahi-xuwan. '6. Fukuro-chi, a plot shut
off by other land from access to the streets.
40
pkivate law in old japan :
ferred, that the passage is not closed, for otherwise the buyer
would find himself in a dilemma and [indirectly] the
community would be a sufferer. The closing of such
outlets has for generations been the subject of a probibition,
and the rule is still strictly observed by all.
Tokaido. In Kai hmi, Yamanashi kori, where there
is on A's land a well which B has a [prescriptive] right to
use, B may pass over the land of A to reach the well; but
B must repair an injury caused by him to the road, and
must replace any well implement lost or injured.
In Sagami kiini, Ashigara .where land is by reason
of its natural position subjected to some burden, such as
the reception of filthy waters flowing from higher land
to land below, the condition of things existing from ancient
times is strictly observed, and no alteration is made. But
as to artificial ^ burdens the matter rests entirely on mutual
agreement.
Tosando. In Shinauo kuni, Tokai kuri, there are
certain limitations on the rights of a land-owner. For
example, where A is an upper owner and B a lower,
and continual rains cause a flow of water down over the
land of B, he cannot object to this, as the upper owner has
a right to have the water pass off thus. Where a well or
stream is at the boundary between two estates, each owner
must so use it as not to injure the other. Those who use
the water of a stream in the upper portion must not so foul
it as to injure those who use it below. In Minochi kori,
where a common-pasture^ or a spring is situated in village
A, but villages B aud C are by custom entitled to use the
water or to cut the grass, village A hae a right to fix
a time for the exercise of these rights each year, and the
others must abide by tbis restriction.
In Bikuzen kuni, Toda kori, a well used by a number
of persons in common must be repaired at the common
1. Jinko. 2. Magvsa-ha.
part v. property : civil customs.
41
expense. Tliose who thus come in from other land to make
use of the well need not pay any rent for the passage over
the land where the well is situated.
In Uzen kuni, Okitama hoii, those who use the water
of a stream in its upper portion must not foul it. Where
A and B have equal rights to the use of the water of an
irrigation aqueduct, A being the upper owner, A must not foul
the water or stop its flow or erect a mill without the consent
of B. Nor must he so obstruct the stream as to flow
the laud of A to the letter's injury. Where A's laud is so
situated [in a town] that he cannot reach the highway
without passing over the land of B, B must allow A to pass
over his land, without charging any reut. But A must keep
the passage in repair.
Hokurokudo. In Kaga kuni, Ishikawa kori, [in towns]
where A's house is so situated that the family must walk
over B's land in order to reach the highway, A need not pay
any rent, hut must keep the passage in repair and free
from obstruction. In Yenuma kori, where the owner of
rice-land intends to erect a dike to keep out water, the
adjacent owners may object, if its erection would injure
them. In Kawakita kori, where the source of a stream
used for irrigation by village B lies in village A, the former
hires the land of village A where the stream passes, paying
the taxes and sundry charges. Sometimes, however,
village A presents the land to village B, and the latter
presents another piece in exchange to the former, the title
being transferred in each case. But whatever method is
adopted, village B alone has the obligation of keeping the
channel in repair. Where a well on the land of A is used
also by B, who has no well, the expense of repairing it must
he borne jointly.
In Echu kuni, Imizu kori, the lower owner must,
receive the water flowing from the land of owners above;
nor can he erect an embankment to set back the water upon
the upper land. On the other hand the upper owner must
42
private law in old japan :
Dot make a channel which sheds upon the lower land water
which would not otherwise have gone there.
In Echigo laini, Kambara kuri, where there are 3 plots
of land, each (for instance) 10 ken in length,^ and two of
them, B and C, are " pouch-land," B has a right to pass
out to the highway over A's plot, and C over both B's and
A's ; B pays a rent to A, and C to B, hut not C to A.
In Sado kunt, Sawata koii, there is a town district
named Aikawa, built upon the slope and at the foot of a
steep hill; and each house is obliged to allow the passage
through its premises of the sewjige from houses above.
But for constructing a new drain a consultation and the
consent of all parties interested is necessary. If a dispute
arises as to whether a particular drain is an ancient one,
resort is had for settlement to the land-register.
Sanindo. Iti Idzumo kicni, Shimane kwi, where A's laud
is so situated that he cannot reach the highway without
passing over B's land, A has the right to do so, but must
pay a rent to B or else give him a piece of land as com¬
pensation.
Sanyodo. In Bizen kiini, Kamimichi kori, where the
residents of plot B are accustomed to use a drain or take
water from a well in plot A, they must pay a compensation
for the use of the drain or the passage over the land. Those
on plot A must not close the drain to the injury of the
others, nor refuse to permit their passage.
In Suwo kuni, Kyuka kori, where those living on plot
B are accustomed to use a well on plot A, the owner of
A must not close the passage used by those from plot B.
But if its use reduces the value of plot At the latter must
pay half the loss. Where B cannot reach the highway with¬
out passing over A's land, A must not close the passage to B ;
hut the expense of maintaining it must be borne by both in
equal shares.
1. One AeM=about 6 feet.
part v. property : civil customs.
43
Nankaido. In Awtiji laini, Tsuna kori, where there
are three or four villages, one above the other, the lower
villages are bound to receive the rain-water or river-water
which flows down from the upper villages ; while the latter,
on the other hand, are bound not to foul it to the injury of
the former.
Ill Awa kuni, Miyoshi kori, on hill sides there are often
so-called " stair-flelds."i The plots are situated on a
number of different levels, each one rising above the other
like steps of a staircase. The plots are owned by various
persons, the boundary between one plot and the next higher
one being the farthest point on the bank to which the lower
owner can reach with his sickle and cut the grass. The
upper owner is bound to remove all ti-ees and grass grow¬
ing on the bank down to the boundary, in order that the
lower land may not be injured thereb3^ This is known as
" shade-cutting."
Saikaido. In Chikugo kiiiii, Mitsuma koH, where A
cannot reach the highwaj' without passing over B's land,
B must not obstruct his passage, but may claim rent from A.
In Hizen kicnt, Matsnra kori, where a strip of sloping
bank lies between adjacent plots, one of which is higher
than the other, the bank is regarded as belonging to the
lower owner .2
In Satsnma /.unr, Satsnma kori, the slope of a bank of
this sort belougs to the upper owner, unless the parties
agree otherwise. But in the latter case the lower owner is
bound not to alter tbe bank in such a way as to deprive
the upper plot of its support.
4._USUFIIUCT.'
Cases where one receives the income of land without
having the ownership are rare. There is a so-called
1. Hashigo-dempata. 2. So as to give him the control and
enable him to prevent the injury referred to under Awa kuni, supra.
3. Nyu (enter, come to hand, receivej-fcicalcu (amount) shotoku
.44
private law in old japan :
"retirement exemption,"^ by which the father, who on
retirement from the headship gives the patrimony to his
son, receives for his own use the profits of a certain portion
of the land. This right lasts during the father's lifetime.^
But there is no procedure in the nature of a public sanction,
the matter being usually arranged between father and
son; so that no general statements can be made in re¬
gard to it. 2
5.—TEMPLE ENDOWMENTS.'
Kinai. In Settsu Inini, Higashinari kori, when land
is given to a temple for supplying tbe expense of a celebra¬
tion or of prayers or offerings for tbe dead, villagers, known
as " managing-representatives," * take charge of the pro¬
perty, collecting the profits and paying the rice-tax and sundry
charges; so that the priests have not the complete pro¬
perty 5 in the land.
Tokaido. In Kai lami, Koma kori, land donated by
the Takeda family' is termed " blackseal land;"' by the
Tokugawa family, "red-seal land."' Donations were also
received from various other daimijo. Since the period
Kwambun (1661-1673) cultivated and other lands belonging
to farmers have been contributed to temples.' No taxes
(acquisition). In the new Codes yo {ase)-yeki (profits, fruits) is the
term for the right technically known as " usufruct." 1. Inkyo-men.
2. But much might have been learned. The next section belongs
perhaps under this head. 3. Kifu (grant, endow)-c/ii. 4. Seicakata-
social. 5. Shoyu-sensai. 6. One of the most powerful families of
the Middle Ages, whose most famous chief \?!ts Takeda Shingen.
7. Kokii-in-chi. 8. Shu-in chi, a seal customarily used by the Shogun
in granting tax-free lands. 9. No referenee to an edict of that date
can be found. It seems as though a negative may have been here
omitted, for elsewhere there had been prohibitions against temple-
donations. See Chapter I., Eaga 7;Mni, supra. But it may have been
that the prohibitions of the Middle Ages against such donations had
continued in force in Eai until the above period.
part v. property : civil customs.
45
are imposed on black-seal or red-seal donations. But
farmers' donations had to pay a portion of the produce as
a tax.
Tosando. In Shinano huni, Takai hori, temples are
not permitted to pledge or hypothecate their endowed lands,
whether contributed by the feudal lord or by farmers,
though they have full right to the produce. Land given
to a Shinto temple is termed " perpetual celebration fund;"*
to a Buddhist temple, " perpetual tablet fund in all cases,
it is given forever, not for a term. Those who take
cultivated or residence land in pledge or hypothec from
temples are by an old law punishable,' even though the
transaction be not a secret one. In Saku kori, donated
land is controlled by the temple, and the donor has no
interest in it. But the temple cannot dispose of it at
pleasure.* In Ogata kori, the name of the temple is
substituted in the title-deed for that of the former owner of
the land, but the latter is written alongside in the document,
lu Hanu kori, the managing priest of the temple gives the
donor a document acknowledging the gift. But the owner¬
ship' remains in the donor as before, the temple having
only the usufruct.
In Rikuzen kiini, Toda kori, when donations are made,
a transfer ® may be lecorded (in which case the temple pays
the rice tax and sundry charges) or may not be recorded
(in which case the donor continues to pay them), the latter
being more common, and no document being needed in
that case. (Since the Restoration, lands of the former sort
have been regarded as belonging to the temple ; of the latter,
to the donor).
1. Eitai-saiten-ryo. 2. Eitai-ihai (a wooden or metal tablet;
usually in the shape of a grave-stone, inscribed with the name of one
for whom j)rayers are to be offered)-r!/o. 3. Ill Gembun (1738).
-See Eudorff, Toku^awa Gesetzsammluny, p. 55. 4. Lit., make free
vfiih [jiyuni sui'it). See the law sapra. 5. Slutyttken. Takanuki
(striking out the assessment-entry).
46
pritate law in old japan :
In Uzen kmi, Okitama kori, in donations to temples,
sometimes the ownership is transferred, sometimes only
the usufruct. The former is the general practice.
In Ugo hmi, Hirnga kori, in donations to Buddhist
temples, a document is made out, certifying that the land is
given to the temple forever, and officially sealed hy the
headman, and is given to the temple, the transfer ^ heing
noted in the register. Land so given comes into the owner¬
ship of the temple in question.
Hokurokudo. In Kaga huni, Ishikawa koH, when
garden-land^ or a huilding-plot 2 is donated to a Buddhist
temple, the taxes are paid by the ward or village, and the
priests have no power to dispose of it. Sometimes a small
amount of cultivated land is given, being known as " Buddha
consecrated-land " and subject to the above conditions. Nu
document is necessary.
In Echigo kuni, Uwonuma kori, donation to a temple is
accomplished by noting the transfer 1 in the register at the
village office and delivering the land fo the temple, with a
donation deed having the counterseal of the donor's relatives
and the official seal of the headman. The temple thereafter
pays taxes and incidental charges. Sometimes the donor,
without delivering possession of the land, endows the temple
with the annual profits of the land; ^ this is called
" income-donation," 5 and the headman never puts his
official seal upon such a deed.
Sanindo. In Iwami kuni, Naka kori, the managing
priest pays the rice-tax and sundry charges on donated land;
but may not sell or pledge it at will. The profits are applied
to the maintenance of the temple-structuFe; the surplus, if
any, goes to the priests themselves.
1. Takanuki. The nuki (strike out probably refers to the striking-
out from the list of toxable land. The plot would of course be entered
in the register in the proper place as owned by the temple. 2. Niwa-
chi. 3. Shiki-chi. 4. Tukumai. 5. Kifu-mai.
part v. property ; civil customs.
47
In Idzumo kuni, Kamikado knri, when land is donated to
the Great Temple,^ the lords of the fief^ (Chijima and Kita-
jima families) have controls of it; if it is given to a local
temple,^ the parishioners.® In either case the profits are
accumulated and devoted to the maintenance of the build¬
ings. In Shimane kori, in Shinto temples, the profits of
donated land are in most cases donated to the maintenance
of the buildings, under the supervision of a manager, 6 and
the priests may not make free with them. But in the case
of Buddhist temples, the jiriests collect the profits and apply
them as they please ; however, they may not pledge or sell
the laud at will.
Sanyodo. In Mimasaka hini, Shonan kori, the priests
manage ^ donated land themselves, paying the rice-tax and
sundry charges and keeping the remainder ; but they may
not pledge or sell the land.
In Suwo kuni, Yoshihiki kori, land donated to a Shinto
temple is cultivated by the neighboring farmers and the
profits are applied to the maintenance of the buildings ; so
that the land is not at the free disposal of the priests. The
profits, however, of land donated to a Buddhist temple may
be taken by the priests; but tbey cannot dispose of the
land itself by hypothecating or pledging or selling it.
Nankaido. In Awaji kuni, Tsuna kori, donated land is
used for the expense of a perpetual light in the temple or
for oflferings to the deity; and the donor inscribes on the
deed the name of the temple and the fact that the right of
mortgage and sale is given. Still it sometimes occurs that
the land is restored to the donor, after mutual deliberation,
if it appears that he is in distressed circumstances.
In Tosa kuni, Kochi kori, the donor of temple-land has
the right to take it back, if he falls into need.
1. Taisha,—one of the two chief national Shinto temples.
2. luini-tsuko,—an old word first used more than a thousand years
ago. At that tims it signified a free land-owner. See Simmons'
" Notes on Land Tenure, etc.," pp. 65,240. 3. SliUuii. 4. Vjigami.
5. UJiko. 6. Shihai nin. 7. Tori atsukai.
48
private law in old japan :
Saikaido. In Chikugo lami, Mitsuma kori, in donations
of land to temples, sometimes the ownership of the land is
given, sometimes only the right of receiving the income
from it, and there is no regular practice; hut it is usual to
prescribe that the profits shall be applied chiefly to the
general expenses of the temple and not to the personal
expenses of the priests.
6.—FORESTS. 1
Kinai. Ill Yamato kxmi, Yoshino kuri, some of the
farmers of the middle and higher classes own forest-land
several tens of cho 2 in area. They sell the standing wood ^
to commercial houses in Osaka, Sakai, and elsewhere.
These houses often furnish saplings of cryptomeria^ or
cypress,® which the land-owners plant and care for, and the
matured trees after 30, 50, or even 100 years, are sold as
directed by the commercial houses, the laud-owners receiving
for themselves five-tenths of the proceeds of the sale.
Several saplings are originally planted in each tmho^ of
laud, and these as they grow are cut from time to time, so
that finally only one tree remains in perhaps several tsuho,
at the end of 40 or 50 years. These are the perquisites of
the land-owner. lYhen the whole forest is deuuded by the
tree-buyers, the land must of course be restored to the
owners, who are called " forest-keepers." The land-tax
is paid by the land-owners, not the tree-buj^ers.
Tokaido. In Ise kuni, Wataraye kori, timber in
forests belonging to individuals or to a village may be
disposed of by its owner at pleasure, forests owned by
the assembly ofiice for civil affairs of the Sacred Domain
(the headquarters being at the temple-sites of Uji and
Yamada) may be used for wood or grass by the people
1. Rimhoku. 2. About 2J acres. 3. Ttichi-ki. 4. Surji [Cryp-
tomeria japonica). 5. Hinoki {Rethiispora oltusa). 6. An area ubou
six feet square. 7. Yama-han.
PART V. PROPERTY : CIVIL CUSTOMS.
49
of the neighborhood ■without any charge; but as no large
timber is allowed to be cut, the rule is that a sickle may
be carried by those who enter, but not a saw. But in
the forests adjacent to the two temples themselves not even
a fallen leaf may be picked up.
In Totomi kuni, Sano kori, any one may enter a forest
belonging to his village and cut grass ; cutting with a sickle
in a forest is permissible, but not such cutting as is done
with a saw, because the timber is used by the village, after
due consultation, for the payment of village expenses and
for the repair of river-banks.
In Kai kuni, Koma kori, forests are owned by villages
or by individuals. In the former case the forest is kept
standing as a protection against gales or for use in some
extraordinary need. A sale is made after a consultation of
all the villagers.
In Idzu kuni, Takata kori, forests belonging to an
individual are called " private forests," ^ and the owner can
dispose of the timber as he pleases. Forests belonging in
common to a number of villages ^ are called " deep-water
forests " and cannot be sold.
In Rikuzeu kuni, Toda kori, there are several sorts of
forest-land. One is known as " land-appurtenant forest;"^
it is owned by the feudal lord, and no taxes are imposed on
it; but the villages are allowed freely to make use of it-
(Since the Restoration these have gradually been sold and
have come into the hands of the rich [land-owners], who
themselves take all the timber and grass and allow no one
else to do so). Another sort is known as " -waste-place." ^
There is here a great deal of grass-land. No taxes are
imposed, but the villages pay something for the privilege
of taking the jroRts. The amount was proportioned to the
assessed production of the village ; ^ and when a villager
1. Uchiyama. 2. Iriai mura-tichi. 3. Ji-zjiki yamn ; the ccn-
nectiou is not ajtparent. 4. Are-ba. 5. " This coriesponds to the
present district-tax {ku-hi)," the author adds in a note.
Pt. T.—4.
50
PRIVATE LAW IN OLD JAPAN :
cut timber or mowed grass he paid a ceitain sum to the
village. Another sort is know as " long-lease forest
this is owned by the feudal lord, but the use of it is given to
private persons on payment of a fee, and they may cut
timber or mow grass as they please. There are also
private forests; but even in these there are certain trees
which may not be cut by the owner without permission from
the feudal office ; these are pine,^ cryptomeria,^ cypress,^
elm,2 katsura,'^ pagoda-tree,^ shioji,'^ camphor,^
maple,apricot,12 white mulberry,!^ and others. The petition
for permission to cut must go to the feudal deputy ; but if
more than 30 trees of a size greater than 3 feet in circum¬
ference are to be cut, the petition must go to the magistrate
through the deputy. There is also a sort of forest known
as "official tax forest." In former times no tax was
imposed, though the laud was owned by individuals ; after¬
wards taxes were imposed, and since then the owner may
cut timber as he pleases. The taxes are estimated as
follows. The feudal official takes, say, an area of 1 c/td,^''
and reckons that the trees of 1 tan will be cut in the
first year, estimating 10 years as the time required for a new
gi'owth on that spot; then the value of the timber from 1
tan is reckoned, the expense of carriage, etc., subtracted.
1. I (stay)-Aii (long time)-7!e (root, tree). The above is the most
Ijlausible signification. 2. Matim. The word "pine," though not
strictly accurate, will be used for matsu. A variety, himematmi,
apiiarently Finns paroiflore, is also named in the text. 3. Siaji.
4. Hiuoki. This is Fetinispora (ihtusa. The Saicara {Fetinispora
2i(sifeni) is also named, and a variety, saicam sei, which Rein does
not mention. For all these trees, cf. Eein, ^ol. II. 5. Keijaki.
(). Ci'rcidiphyllum japunicuin. 7. Yenjii\{Sopkoni japonica). 8. Calo-
pctnax ricinifolia. 9. Kusiinoki. 10. Eein does not give this.
11. jSIumiji. 12. 2Iitme, commonly called "plum" by foreigners
in .Tiiitan. 13. Kiiira. 14. Tiailiniii. Id. Jliiiriin, jivobably the l;nri-
Innvjn, who munnged all the affairs of a large di.'-trii t. 111. (ioaieinjii-
yiiimt, now called zci ijhiiki. 17. 1 c/in^about 21 acres, 1 <770=10
tan.
PART V. PROPERTY ! CIVIL CUSTOMS.
51
nnd the probable net proceeds ascertained. Four-tenths of
this are to be paid in taxes ; the rest the owner takes. In the
second year, the process is repeated for another tan of area ;
and so on, until after 10 years the tax is again assessed on
the first tan. Forests owned by a whole village are exempt
from taxation, and may be cut without restriction. Usually
the trees are cut and sold by the village itself, and the
proceeds divided among the villagers equally. Ordinary
trees [not having a salable value] are cut and divided
equally among the villagers. Forests of the feudal lord are
managed by forest-officials ; and no one may cut the timber
except when it is sold by the lord. There is a sort of forest
known as " possession-forest," i exempt from taxes and
managed by the villages. Each villager contributes, accord¬
ing to his assessed production, to the expense of taking care
it of. (After the Restoration, the land was planted with trees
and given to the feudal office, which appointed a forest-
keeper ; 2 so that the forest has come entirely into the
hands of feudal officials and the people have no rights in it).^
In Uzen kuni, Okitama kori, one who cuts timber on a
mountain has the right to get it to the foot, even though he
passes over others' land in so doing and injures their trees.
In Ugo kuni, Akita kori, the owner of forest-land may
cut timber as he pleases, except that permission must be
obtained from the forest-superintendent before cutting
cryptomeria or cypress.® If more than 100 of these sorts
are to be cut, the preliminary inspection of the land is made
by the forest-superintendent himself; if less, by a keeper.®
In the former case, 3 out of every 100 (called the " official-
1. Shoji-yama. 2. Yamamori. 3. Tliis passage must have been
written early in the seventies or in forgetfulness of the changes by
which, in August, 1871, the lian, or clan-fiefs, became ken or
prefectures under the Central Government. But perhaps in these
western mountain districts, the word kan still lingered when Mr. Ikuta
visited them, and was applied to the prefectural authorities,
4. linkiizaii-kata. S.Hinoki. 6. Y<oiiiiiiiori.
52
private law in old japan.
percentage " ^ ) are to be given to the feudal lord ; but these
the owner then proceeds to buy back. There is no fixed
percentage where less than 100 are cut; nor is there any in
case of pine timber, which, by the way, is also not to be
cut without permission.
Hokurokudo. In Kaga huni, Ishikawa Icori, a law of
the fief requires that permission must be obtained in order
to cut down any of the so-called "seven timbers" (pine,
cryptomeria, oak,2 paulowuia,3 elm,^ cypress, and fir®),
whether owned by an individual or by the village in common.
The mountain pines are ranked with the forests belonging to
the fief and are forbidden to be cut. Ordinary trees owned
by the village in common, such as those planted to prevent
snow-slides on a mountain side or to keep off the wind or to
protect against storms from the ocean (all these are known as
" shelter from calamities "), may be cut down, but not wan¬
tonly. In Nomi kon, one may have the right of possession of
another person's forest-land, and may sub-let it for a period
not longer than the lessor's own term, but notice must
first be given to the owner.
In Noto Icimi, Hoshi kori, forests along the sea shore
are called "fish-touching forests," ® and the owner is under
an obligation not to cut them down. If such land belongs
to another village than that in which it is situated, the latter
pays a rent to the former to secure its preservation. In
Suzu the so-called " seven timbers " (pine, cryptomeria,
elm, fir, oak, paulownia,—these, when greater in circumfer-
1. 0-wariai. 2. Kashi. 3. Kiri. 4. Tsuki (same as keyaki).
5. Toga (same as tsuga); Abies tsiiga. 6. Vwo tsuki-sanrin. The
reference is to the protection which these foists were intended
to give against ocean storms (see the preceding paragraph). Tsiiki
is prolific in idiomatic uses; but the idea is possibly that the fish
almost "stick to" (this is an admissible meaning) the trees when
dashed against them by the waves. Observe that in the Japanese
thought "fish" is the active subject, "touch" the verb denoting
its action; the " tsuki" is not predicated of the forest, but of the
fish.
part v. property : civil customs. 53
ence than 1 foot—and chestnut ^ —when greater than 5 feet)
may not be cut down, even on private land, unless permission
is received from the feudal official to do so ou the ground
that one cannot otherwise pay his taxes.
In Echu kuni, Nei kori, timber belonging to a Shinto
temple may be cut down by the village, on consultation
with the temple-chief, and is regarded as a common posses¬
sion of the village.
lu Echigo kuni, Uwonuma kori, timber belonging to
the temple of the local deity cannot he cut except upon a
consultation of the whole village, and it is the custom to
apply the timber or its proceeds to the use of the temple.
Sanindo. In Idzumo kuni, Bhimane kori, where a
forest is owned by a village in common, the timber is used
for the repair of aqueducts, dams, roads, and bridges ; but
sometimes it is sold and the proceeds used to help out the
village expenses. Forests owned by individuals may be cut
by them as they please.
In Iwami kuni, Naka kori, when pine timber is cut,
even in private forests, one-tenth of the value must be given
to the feudal lord.
In Bizen kuni, Kamimichi koi'i, even in private forests
the inspection and permission of the chief headman must
first be asked before timber can be cut; but in any case a
law prohibits a complete destruction of timber, requiring a
certain uumber of trees per tsuho to he reserved.
Ill Suwo larni, Yoshibiki kori, one may obtain permission
from the feudal lord, on payment of a small tax, to occupy
forest-land of the lord and take all the profits issuing
therefrom. Such land is called " officially-loaned forest
land."2
In Suwo kuni, Kyuka kori, the individual owners of a
private forest mark the boundaries of their portions by stones
or trees; and such boundary trees no one may cut. But
1. Kuri. 2. 0-azuke-yama.
private law in old japan :
even in private forests the feudal official seals certain of the
largest useful trees, such as camphor, pine, cypress and
cryptomeria, [thus prohibiting their destruction without
permission].
In Nagato kuni, Amu hori, there are in every village
two or three forests to supply wood for river-bank palisades,
heavy beams, bamboo dike-frames, river-depth indicators,
weUs, aqueducts, dams, and other useful purposes. These
places are called "public-works forests;" and whenever
there is to be a timber-felling, the village first obtains
permission from the feudal official. There are also places
called " loss-compensating forests " the common property of
of the village. These are places reserved for relief on occasions
of special expense in a village undertaking, or of general
distress among the people. For cutting these as well as
private forests the permission of the feudal office must first
be obtained. In Toyoda kori, the best tree in every forest,
whether owned by an individual or owned in common by a
village, is selected by the feudal official and entered in an
■official book. ^ This tree is called " hook-tree" 2 and
eannot be cut down. If, however, it it is required for some
public purpose, such as the repair of a bridge, the next
best tree is selected and entered instead in the book.
Nankaido. In Awa Inini, Mima koH, headmen, country
samurai,^ and others owning large forests often make a
profit by selling the timber to those whose business it is to
deal with timber or woods. The transaction differs in
different cases. When timber for clogs * is sold, the
price is fixed according to the size of the ravine where the
trees stand; the timber is then cut and talien down to the
towns. When the timber is intended for charcoal, the price
is determined in the same way, but the charcoal is made on
the spot. When bird-lime® material is sold, it is taken
1. Choho. 2. Cho-boku. 3. Kyo-shi (the same as goshi). 4. Geta.
-6. 3lochi,—made probably from the Ilex integra (mochi no ki).
PAET V. PROPERTY : CIVIL CUSTOMS.
55
from the standing trees, and the price is fixed by the number
of tnhfuls taken. When firewood is sold, the trees are cut
into lengths of 3 feet 5 or 6 inches,^ and these are heaped
in piles (called hiro),^ measuring 6 feet in height and in
thickness ; the price is fixed by the number of hiro. When
timber is sold for trays, cups, and other woodenware the
artisans (called " wood-workers ") take their families to the
forest, build huts, and stay there [during the season,]
moving about from place to place. A tax is due from them
once in 8 or 4 years ; and the number of children in a
family is taken into account in computing the tax.
In Miyoshi kori, there is an oflicer called " floating-timber^
officer." When logs which are being floated down a stream
are dispersed by a storm or flood, the officer goes about
examining the river-banks and collects all floating-timber,
whether bearing the owner's mark ^ or not, despositing it
with the village officers and taking a deposit-receipt. Subse¬
quently he restores the marked timber to its owners, and
holds a secret-ticket auction s of the remainder, the proceeds
being paid in to the feudal official and laid aside for an
occasion of great need. When the finder ® of floating timber
restores it to the owner, the latter is obliged by law to give
him a reasonable fee as a reward for finding.
In Tosa kuni, Kochi kori, private forests are of various
sorts,—"local forest'"' (owned by a village in common),
" home-forest" » (owned by an individual), and " cleared-
upland" ® (sometimes called "cleared and changed up¬
land " 1"). Some of them extend over a whole ravine, others
over several cho. In the third kind mentioned, the timber
is used for firewood or charcoal, and the land, after being
1. The Japanese foot has 10 inches. 2. This is written in the
kana. 3. Eyu-boku. 4. Koku-in. 5. See Part II, " Sales." 6. Hi-
roi-nin. 7. Tokoro-bayashi. 8. Ya-ynkari (family-managed). 9. Ki-
ri-batake. 10. Kiri%aye batake. For the explanation, see the next
lines.
56
pkivate law in old japan :
cleared of undergrowth and grass, is planted with millet,^
pulse,2 and soy-beanThis is called " rotation clearing;
for a portion is cleared at a time, the whole being finished
in from 16 to 20 years, and by that time a new growth
is ready for cutting in the portion first cleared. When
the " cleared upland " plot is as large as 1 tan, a tax
of 2 sho of rice is imposed. The timber of the forests
of the feudal lord is sold sometimes on petition from
an intending buyer, sometimes (in the case of cypress
and cryptomeria) by secret-ticket auction. There are two
methods of sale ; in one (known as " forest-product" ®) the
number of trees is not counted, the purchase being made by
the surface-area; in the other (known as " cutting the
standing timber " ®) a count is made of the trees over a
certain size and a price fixed on this basis. In the former
case, the bargain is made with the feudal ofiicial and he
gives a certificate to the buyer, who usually goes to the
Osaka wholesale houses and raises money on it.^ The term
during which the timber is to be cleared is usually 10 years,
but to this, if necessary, a second term of 9 years is added,
and a third of 8 years, the whole thus reaching 27 years.
The buyer usually counts on taking the whole term for the
clearing. The forest is usually marked off into 3 parts, the
lowest being cleared first. The price is paid in two instal¬
ments; in a 1000 i/e« ® purchase, for instance, 400 down and
600 at a later time. In the " stauding-timber " sale, the
term for cuttiug depends upon the number of trees sold.
Saikaido. In Ohikugo /cimi, Miike Aon, the permission
of the feudal officials is necessary before cutting down trees
more than 5 feet in circumference, even in ^ivate forests.
1. Hiye; tor the exact significance as regards varieties, see Bein,
vol. II., s. V. 2. Mame. 3. Daizu ; a variety of mame. 4. Mawari-kiri.
5. Yama-shidashi; this is the most probable meaning. 6. Tachi-ki-
giri. 7. Apparently to pay for the timber. 8. The author sometimes
uses yen where he ought to have used i-yo, the old unit; yen were not
coined till 1871.
PART V. PROPERTY : CIVIL CUSTOMS.
57
In Hizen kuni, Saga kori, camphor trees, whether
large or small, may not be cut down without permission of
the feudal office.
In Higo kimi, Aso kori, there are four kinds of forest-
land,—"official forest," 1 "public forest,"^ "common
forest," 3 and " private forest." * The people of the locality
take care of the official forests, so that any one who has a
ticket may enter and cut ordinary trees for fuel,—but not
cryptomeria nor cypress. A public forest belongs to the
fief, but as it has been planted by the people of the locality,
the trees or the profits from them are used for the repair
of important temples, official buildings, dikes and bridges,
or for occasional relief in case of calamity by fire or flood.
In all these cases the officers of the ward or village consult
with the superintendents of the forest,^ and obtain permis¬
sion of the district-deputy ® before cutting. In the case of
common forests of a ward or village, the ward or village
officers, after holding deliberation and obtaining permission
from the forest-superintendent, cut down the timber and
apply the proceeds to the general expeuses of the ward or
village. Private forests may be cut at pleasure by the
owner, except the trees on the boundary between private
aud official forests. But even in private or common forests
useful trees, such as elm, oak, camphor, chestnut,
or paulowuia, of more than 6 feet iii circumference, are
entered in a forest-register,® and cannot be cut without
good reason. In Kyuma kori, persons sometimes make
a plantation of cryptomeria or cypress in the waste de¬
mesne lands open to them ; and the custom is for half the
trees, when grown, to go to the lord and half to the
planter. This is called " five-parts planting." 9 In Ama-
kusa kori, no tax is imposed on "public forests "i® or
1. Kwan zan. 2. Ko-zan. 3. Kyn-zan. 4. Shiyu-zan. 5. Yama-
shihiii-ytiku. 6. Gundai. 7. Aesculiis tubinata. 8. Yuma-ne-cho.
9. Gobu-sashi ; that is, five iu ten. 10. Ko-zan; see tupra.
58
private law in old japan i
private forests. But when timber is sold, the buyer must
pay a fee of one-teuth of the price to the shipping-master
(who is one of the forestry staff), and of this amount the
latter sends seven-tenths to the feudal treasury, keeping the
remainder hy way of salary and also paying the expense of
forwarding the lord's share to the treasui'y.
In Osnmi kuni, Aira kori, it is necessary, in case of
trees applicable to the lord's use, such as elm, camphor, oak,
cryptomeria, pine, cypress, paulownia and fir, to obtain per¬
mission for cutting from the feudal officials, even in case
■of private forests.
7.—PASTUEES.J
Tokaido. In Kai kuni, Yamanashi kori, there are va¬
rious sorts of pasture-land,—" village-owned small-products
places," 2 " individually-owned small-products places," 3
" wooded wastes," and others. There is also a " com¬
mon hillside-pasture,"^ owned by a number of villages in
common; those who take grass from this must in all
cases pay some tax. There are also pastures [formerly
1. Ma (horse) gusa (wild grass)-6a (place). Magusa is written
with one ideograph, and has commonly the derived meaning of " hay."
But it must have been formed in the above manner. See Bein, vol.
II, 183, for a description. Though " pasture" seems the best word,
the animals do not pasture on the land; the fodder is cut and fed to
them. 2. Mura-moclii-lo-mnnonari-ba; the ko indicates sundry inferior
products,—grass, etc. 3. Ichiiiin-mochi ko-nionotMri-ba. 4. Sanrin-
hoya. Any one who will consult Bein, vol. 1,144,146, vol. II, 212, 217,
will understand how it is tlmt mountain (hill), for«tt, and pasture are
eo inextricably mingled in Japanese customs. In san-(mountain)-nn
(forest) and rinzan one finds " mountain " and " forest " constantly
united in phrase, and the difficulty of rendering into English is only
increased when the notion of magusa is to be added. It may be sufficient
to remember that the Japanese farmer usually thinks of a forest as up
on the hill-side or the mountain-side, and of the grass-land as in the
same place, and that perhaps the two lie in scattered patches over the
part v property : civil customs.
59
belonging to the Shogunate] (now known as " Old Shogun-
ate wooded land,") ^ where taxes are sometimes paid for the
right to cut.
Tosando. In Shinano kuni, Takai kori, the villagers
were fomerly bound to clear off, every 4 or 5 years, the land
■covered with underbrush; this was called " brake-cutting."2
But now such places are simply burnt over, the proceeding
being termed " setting fire." In Minochi kori, no villager
may enter the pasture until it is opened ^ for the year.
The grass matures in the 5th or 6th month, and
the villagers hold a meetings and fix a day, which is
known as " opening day for the hillside." s A pasture
common to a number of villages ^ is opened when
the order to put in (he sickle ® is given by the managing
village 9 or by the proprietor-village.i9 Where the pastm-e
is the property of a single village, the order to cut is given
to the villagers by the village officers. At first " morning
mowing " " alone is permitted (this signifies that the grass
-may be cut only in the morning and may not be laid out on
the spot to dry); after several days " noon-mowing " 12 is
allowed, and the villagers may cut at any time of the day
and may dry the grass 011 the land. In Saku kori, the open
same Lill-side. Hence a looseness in the use of nil three terms. One
can merely translate as literally as possible and leave the words to
picture the place. But saun'n and rinzan ore always here rendered
" forest" or " wood," while rjama is given its original meaning. It is,
however, a question whether the idea of " forest " or " hill " is more
prominent in yairui as used in the following compounds. 4. Iri (enter,
vise)-ai (meet, together) yama magusaba. Iriai has the derived sense
of " in common." 1. Kyu-bakufu rinzan. 2. Yabu (bamboo brake)-
kari. 3. Hi-ire. 4. Yama-ake. 5. Yoriai. 6. Yanui-hiraki-bi.
7. Iriai no magtcsaba. 8. Kanna-ire. 9. Toban-mura. 10. Jimoto-
mura. That is, either a number of villages owned the land in com¬
mon, and each one in turn managed affairs for a year; or else one
village, the proprietor of the land, allowed others to use it, and ac¬
cordingly set the time for entrance. 11. Asa-kiisa kari. 12. Hirn-
kusa-kari.
60
PRIVATE LAW IN OLD JAPAN t
space used as a pasture in common by a number of villages
may not be entered [for cutting] by the members of any
other village; if a trespasser is found, his sickle and what¬
ever else he carries are taken from him; if he enters with a
horse, his horse is taken. No tree may be planted and no
cultivation undertaken in a pasture.
In Bikuzen kuni, Toda kori, pasture-land is called "bare-
hillside " 1 or " raviue-land ", and no taxes are imposed.
Sometimes it is owned in common by a number of villages,
sometimes by one only. No special regulations exist in either
case, and each one may cut as he pleases. In the latter case,
however, a day (called " waste-land opening " ^ or " clover-
hillside-openiug "3 ) is fixed by the headman for beginning to
cut, and notice is given to the villagers. On one sort of
pasture a so-called " waste-land service-money" * is im¬
posed ; the money is paid by the villages sharing the right to
cut, and is levied according to the number of horses owned
in each.
In Ugo kimi, Hiraga kori, pasture-land is usually
owned by the whole village ; and no taxes are imposed on it.
There are no regulations as to the day when cutting may
begin, nor as to tbe place where any particular family or
other set of persons is to cut. " Balk mowing " (of the grass
on the balks between the plots) is permissible only to the
owners of the plats. There is also a lowland-pasture (called
"grass-producing land,") which may be used only by the
owner of the land.
1. Su-yama. 2. No-biraki. 3. Hagi-yatna-Vraki. Hagi pro¬
perly signifies several varieties of the Lespedeza, and not merely the
one known as " Japan clover." 4. No (waste land)-te (hand)-yaku
(labor-services)-/ci're (money). This was probably a money commuta¬
tion of labor services due, perhaps, for the clearing of the laud.
The te apparently has the force of " manual labor ; " but may mean
" incidental." But compare yama no te (the region lying near or on
the mountains).
part v.—property: civil customs.
61
Sanindo. In Idzumo Inini, Shimane kori, in villages, a
"waste-hillside tax"i must be paid for the privilege of
mowiug. Until the season arrives no one may enter the
land ; and the opening da}' (called " hillside-opening "2 ) is
appointed hy the village officials and announced to the
people 2 or 3 days beforehand, and on the day fixed all the
villagers—men, women, and children—go out to the hillside
early in the morning and begin to cut. After the season
thus opens, each one may cut at his pleasure. In the
sea-coast villages they regulate the gathering of sea-plants ^
in the same manner.
Sanyodo. In Mimasaka kuni, Katsunami kori, where
pasture-land is owned hy a number of villages in common,
the members of other villages are strictly fordidden to cut
the grass or even to enter the place. The " hillside-opening "
takes place on a day [a'ppointed hy the village officers and]
announced to the people 2 or 3 days beforehand by a written
notice ; this day usually occurs between the 10th and 15th
day after the 88th night after the Spring Equinox. After
the opening day, each one may cut as he pleases. Pasture-
land owned by a single village is managed in the same way;
but if there is a surplus of grass beyond the needs of the
villages, it may he sold to members of other villages.
In Bichu kuni, Kuboya kori, pasture-land is known as
" waste-hillside " or " poor-people's-support hillside." The
former may he managed jointly by several villages (it is then
called " common 1 pasture,") or may belong to a single
village only; in either case a portion of it is frequently
brought under cultivation or planted with trees. The " poor
people's-support hiUside" is land occupied by "broken"
families, who gain a livelihood by cutting and selling the
timber on the hillside. These families formerly owned
barren land in the village ; not land absolutely waste and
1. Noyajna zei.* Yaina no kncliiake. 3. Mo. Eein does not
mention this. 4. Iriai.
62
PRIVATE LAW IN OLD JAPAN :
uncultivated, but land subject to taxation and yet quite
unproductive. The owner, falling into distressed cir¬
cumstances, offered it to others, asking to have it taken off
his hands, and no one being willing to take it, it was given
by him to the village, and he retired to the hillside and made
his living as has been related. Some of these persons have
ultimately acquired means again ; hut as they have once
received aid from the village, their rights are inferior and
they are not regarded as equals in social intercourse.
In Suwo liuni, Tsuno kori, pasture-land (or " under¬
growth-hillside ") is owned either in common by several
villages or by one alone. In the former case, those who
belong to these villages cut as they please ; hut no others
may enter. In the latter case, there is a similar rule of
exclusion ; hut sometimes another village pays a rent for the
privilege of using the pasture ; yet even this is only where
such a custom has existed since old times.
In Nagato kuni, Toyoda kuri, on the shore of main land
and island they gather sea-plants (the phrase being " sea-
23lant reaping "or " sea-jilant collecting,") in the same way
that the hillside villages cut the grass in jiasture-land.
Nankaido. In Awa kuni, Mima knri, there is a sort of
pasture-land known as " reed-iilace," i usually 70 or 80 cho
in extent, and owned by the village. From this are obtained
reeds for thatching ; and when one of the villagers wishes to
rejiair or renew his thatch, he notifies the headman, who
permits him to cut what is necessai-y. When it is desired
to cut timber from village land, the same procedure is
necessary. They sometimes have societies,^ called " build¬
ing-societies." 3 When a member of the society is about to
rejiair or to build a house, each of the others gives him 6
bundles of thatch and two of rope.
1. Kamkaydba. Kaya is a thatch-reeil (Imperata arundinaeea),
hmi-kaya is a variety not nientioueil liy Itein. 2. Ktnnini. 3. Fn-
Kliin-yumi.
part v. property : civil customs.
63
Saikaido. In Higo kiini, Akita kori, pasture-land
may belong to a single village, iind in this case the members
of other villages may not enter without permission ; or may
be used by several in common, the land being owned by a
single village ; or may be hired by a number of villages from
another village, to which rent is paid. But besides this
there are other ways of owning pasture-land,—more than
there is space to describe.
8.—PONDS AND SWAMPS.
Tosando. In Eikuzen kuni, Sosa kuri, swamps are^
like rivers, the property of the feudal lord ; so that those
who wish to fish or hunt game or cut rushes must pay
a tax for the privilege. The taxes are paid to certain
managers appointed by the village; these turn over the
money to the village, and the latter sends it to the feudal
office. The profits ^ obtained from the pond or swamp are
divided among the villagers.
In Uzen kuni, Okitama kori, the boundary of a pond
or swamp is the line to which the water reaches, but this
is considered to include the portion where the rushes grow
on the edge. When a pond or swamp lies wholly within
the limits of one village, it is the property of that village ;
but if it lies on the boundary between two villages, it is
owned jointly. The use of it, in either case, is open to all
members of the village or villages, and not exclusively to the
land-owners along the shore.
9.—DRAINS.^
Kinai. In Yamato kuni, Soyegami kori, in towns, the
cleaning and repair of drains are performed at the expense
1. lli'ielii, i. e. the fish, game, etc. The paragraph seems to in¬
dicate that the pond or swamp was worked by men employed by the
village, the produce of their work going to the general profit of the
villagers. 2. Kunni or ^hita wi:ii (literally, underneath-water).
private law in old japan :
■of the neighborhood as a whole, whether the drain be used
by one person or by many. There are, however, certain
limitations of this sort, that drains running east and west
[through the ward] are maintained at the expense of those
whose land borders thereon, a similar rule applying to drains
running north and south.i
Tokaido. In Musashi huni, Toyoshima kori, [in towns]
a drain crossing a public highway is cleaned at the expense
of the residents of the block [which it serves,] if it is of the
grade known as "great drain^ if smaller, the expense is paid
by the owners adjacent to the drain. In some quarters, an
association (consisting of a number of samurai or a number
of townspeople 3) undertakes the cleaning of " great drains."
In the case of samurai, the members pay according to the
income they draw from the Government; in the case o^
townspeople, according to the number of houses owned by
each. Certain persons undertake as a business the cleaning
of drains. (But since the Restoration this has been abolished.
Drains crossing a public highway are cleaned by the
Prefectural Government; all others by the local ward-
ofiSce.)
Tosando. In Shinano kuni, Saku kuri, a drain serving
-a whole village or a number of persons is cleaned at the expense
•of the whole village. But if it is appurtenant to one estate
■only, the owner of the estate must clean [the portion used
by him], whether it is at the upper or the lower end.^
Sanindo. In Iwami kuni, Naka kori, in towns, the repair
and cleaning of drains are at the expense of the house-
1. That is, apparently, the community of inte»st was limited to
a district served by a large drain running through a whole ward or
other large district. 2. Dai-kasui. A drain which did not stop
when it reached the highway and met the highway drain would be
the basis of a system of tributary drains in the indefinite region
known as a cho. 3. Chonin, i. e. merchants. 4. This paragraph is
not at all clear; and indeed the same may be said of this whole
section.
part v. property ; civil customs.
65
owners using them, and the rent ^ paid for their use is due
from the same persons. In villages, the persons paying are
the land-owners served by the drain.
Sanyodo. In Suwo kitni, Yoshihiki kori, in towns,
repair and cleaning of drains are undertaken by those
through whose land they run. But in some districts the
wards or the feudal authorities take charge.
Nankaido. In Sanuki kimi, Kagami koi'i, in towns, a
space is reserved on one side of every drain, called a " place to
throw out the refuse." The cleaning of the drain is an obliga¬
tion resting on every member of the village, and it is done
under the inspection of the ward officers.
10.—WAYS.^
Tokaido. In Owari kimi, Aichi kori, the width of a
wagon-road ® is fixed at from 6 to 7 feet, and of a field-path *
at from 3 to 4 feet. Repairs of the latter are made by
the village in which they are situated ; of the former, by an
association of villages ^ existing since ancient times.
In Totomi kinii, Sano kori, a road for horses must, by
an old law, be about 9 feet wide, and a cultivation-path ®
about 3 feet wide. When it is desired to close up an old
road and construct a new one, the feudal official must
investigate the plan, if the village after a consultation cannot
come to a satisfactory decision.
In Sagami kuni, Kamakura kori, the width of a field-path
is fixed at 3 feet, and of a road for oxen and horses at 6
feet. Notwithstanding inconvenience to travel, it is customary
that a new road shall not be opened without the consent o
the owners of the land through which it is to pass.
In Kai kmii, Tsuru kori, the width of the Kai Province
Sea-Road,7 one of the Five Sea-Roads, is from 2 to 3 ken.^
1. Shaku-ryo. Why it was paid does not appear. 2. Do-ro.
3. Kuruma-michi. i^Nogyo-michi. 5. Kumiai mura-mura. 6. Sakumi-
chi. 7. Koshu (the province ol Kai)-A'a!do. 8. One fcea=aboat 6 feet.
Pt. T.—S.
66
private law ik old japan :
The repairs are usually made at the expense of the fief. But
village-roads i and branch-roads 2 not more than 6 or 7 feet
in width are repaired either by the whole village or by the set
of persons [served by the road.] Where a way is used by
a particular set of personss and passes through another
village, it is repaired by those who use it, and not by that
village.
In Musashi kuni, Toyoshima kori, ways are repaired by
the feudal Board of Works, the expense being paid by each
block, and apportioned among the proprietors.
Tosando. In Shinano kuni, Saku kori, the width of a
great road is usually 9 feet, that of a medium road 6 feet, and of
a small road (or field-road, as it is sometimes called) 3 feet.
Roads running past houses are repaired by the house-owners,
through cultivated laud, by the owners of the laud which it
serves. The cleaning and repairing are done twice a year,
in spring and autumn. Repairs of bridges are made by the
village as a whole. In lianu kori, a village road is 2 ken in
width, a field-road ^ 4 feet, and a house road about 5 feet.
In Takai kori, the owner of cultivated land alwaj's leaves
a space of 8 feet between the road and his crop, so as
to prevent its being injured by the passing horses or
vehicles.
In Rikuzen kuni, Miyagi kori, the width of a great
road ® is 6 ken ; and that of a petty road'' is the same, including
an " eaves-space " ^ on either side. Repairs and cleaning
are done by the owners along the side, of whichever sort the
road is. In Toda kori, the width of a field-road is usually
1 ken or more. The repairs of the road and of its bridges,
if any, are made by those who are accustoijjed to pass over
it in carrying on their cultivation; and those only may cut
1. Mtira-michi. 2. Shi-do. 3. I. e. the cultivators of a certain
neighborhood. 4. Sakuba-michi. o. Okwan-niichi, 6. Komichi.
7. Naki (on\es)-shita (underneath),
PART V. PROPERTY : CIVIL CUSTOMS.
67
the grass along the road. A road running from one village to
another is usually 1 to 2 ken in width and is repaired by
the two villages jointly. A branch great-road ^ is usually not
more than 2 ken wide, and is repaired by the villages that
use it. A great Sea-Road 2 is usually repaired at the expense
of the fief. It is the custom for funeral and marriage proces¬
sions to pass along the public highway, even though the
field-road would be nearer. The expense of examining and
burying one who has fallen and died by the wayside ^ is paid
by the whole village, and is assessed equally upon all the
houses. This is true even when the man is found upon Land
owned by an individual.
In Uzen kiini, Okitama kori, [in towns,] roads are
repaired and cleaned by those past whose residences the
road runs, whether it be residence-land proper or an
appurtenant possession.^ If the latter is at a distance from
the owner's home, some one living near it acts as under¬
taker 5 of the work, by appointment of the owner. [In
villages] the width of a field-road is sometimes 3 feet,
sometimes 5 feet, and there is no regular width. If any
extraordinary damage is done to it, the expense of repairs
(usually paid by the owners on both sides) is shared by the
1. Wnki-okwan-michi,—probably equivalent to shido. 2. Okwan-
kaido,—tbe largest o£ all roads, here probably the Oshu-kaido.
3. Yuki (going) taore (fall down),—i. e. travellers killed by high¬
waymen or beggars dying of want. The duty of paying these expenses
was not infrequently the subject of litigation between villages,—
much in the same way that the settlement of paupers has given rise
to a peculiar class of cases in Anglo-American law. See Simmons'
" Notes on Land Tenure, etc.", p-ir. 195, 200, 206. See also Kiijikata
Osadiiinegaki, II, Art. 4 (Rudorff, Tokugawa Genetzsamvilung, p. 98):
" Punishment of those who send a sick traveller on from one inn to
another ; " and a case iu Part III of this Series. 4. Kakaye (hold,
possess)-c/ii. The exact significance of the expression is not clear.
But it seems to iifdicate something held by the owner of a yanluki,
and yet not a part of the yashiki. 5. Vkeoi-nin.
C8
private law in old japan :
cultivators and others who may use the road a great deal.
Where the same road serves as a branch-road ^ and a field-
road, the repairs are made by the whole village.
In Ugo huni, Akita kori, public roads are marked off
into various stages, the division-point being indicated by a
stone post or otherwise, and the maintenance of a given
part is assigned to a given village, the expense being borne
b}' the village as a whole. When a wayside-death occurs,
the expense of examination and burial is paid by the
village to which he belongs ; but if he is a stranger and his
home cannot be learned, then by the village where he is
found.
Hokurokudo. In Kaga kuni, Ishikawa kori, official
roads ^ and other important roads are repaired at the expense of
the various kori through which they run, the duty being
apportioned according to the assessed production of cultivated-
land,3 and labour-services being rendered upon assigned
portions of the road. The cleaning of the roads falls usually
on the villages individually, [each one cleaning the portion
within its limits]. In Kawakita kori, when land is used
for a road, the object being the convenience of a whole,
village or a particular group of the inhabitants or even of
an individual, a rent is paid by the parties benefited to the
owner of the land so used, or else other land is given in
compensation; repairs are made by the parties benefited
or b}" the whole village. In Nomi kori, the repair and
cleaning of a road are done by the owners along both sides,
each side undertaking half the road; if there are houses on
one side only, the house-owners take care of one half and
the other falls to the feudal office or the viUage as a whole.
Field-roads are repaired by the whole village.
In Noto kuni, Suzu kori, the repair of roads extending
through the two kori of Hoshi and Suzu, is made by the
two kori in common; those in one koH only, by that kori
alone.
1. Shido. 2. Kwan-do. 3. Kma-daka,—an unusual expression.
part v. property i civil customs.
69
In Echu A m Ml, Arakawa Aoi i, the repair of oflSciaj
roads 1 and branch roads^ is made at the expense of the
different kori; that of field-roads, at the expense of the
village ill which they are; and that of roads over the
mountains or through small hamlets,^ at the expense of
the Three Provinces.^
In Echigo Imni, Kubiki kori, roads are repaired and
cleaned by the owners on both sides, whether it be a main
road® or a branch-road. When a wayside death occurs the
rule for discharging the expense of taking charge and
burying is the same. In Kambara kori, the width of village-
roads and field roads is not fixed, but is usually about 2
feet. The repairs are usually made by the whole village.
The expense of a wayside death is similarly borne, of which¬
ever sort the road may be.
Sanindo. In Iwami knni, Shima kori, roads are divided
into three sorts ;—" oflScial construction roads," 6 of which
the feudal office undertakes the repairs ; " official assistance
roads,repaired by the people and the feudal office equally ;
and " self-construction roads," 8 which the villages alone
have the charge of. The cleaning of the roads falls upon
the owners along each side ; in towns, this is done every
morning and evening; in villages, the repairing and cleaning,
in the case of main roads and branch roads, either twice a
year (in spring and autumn) or once a year.
Sanyodo. In Suwo kuni, Kyuka kori, a main road is
usually repaired by the feudal office; but branch roads,
field-paths,® and petty ways are undertaken at the village
expense. When a road is bordered by houses, the owners
on each side usually have its cleaning to do.
1. Kwan-do. 2. Shi-do. 3. That is, a road passing through a
deserted region but connecting centres of traffic, and therefore an
important one. 4. Probably Echu, Kaga, and Echizen. 5. Hondo.
6. Go-Jiishin-sho. 0-teate-ha. 8. Ji-fushin-sho. But it is possible
that these terms refer to different portions of the same line of road.
9. Hempata-miehi. 10. Komichi.
70
pbivate law in old japan :
Nankaido. Id Tosa kuni, Kochi kori, the coDstniction
and repair of the roads through which the feudal lord goes
bieuuially ou his way to render service i at Yedo are
charged upon aU those who live along the road, 3 days labor
[per year] being assessed for every tan of low land, and the
owner supplying rations to the laborers at the rate of 1 sho
5 go per man per day. If these rations are not given, the
same amount must be paid in taxes.
Saikaido. In Chikugo Inini, Mitsuma koii, the repair
of horse-roads 2 and cultivators'-roads^ is at the expense of
the block* or village. But ways running past residence-land
are usually repaired at the expense of the owners on both
sides, though others may pass over the ways.
In Satsuma kuni, Satsuma kori, erection and repair of
great roads 5 and of the stone bridges along such roads are
at the expense of the feudal office ; while plank-bridges and
bridges floored with earth are erected, owned, and main¬
tained by the towns and villages using the branch-roads®
which these serve.
11.—IRRIGATION.'
Kinai. In Yamato kuni, Katsurashimo kori, there is a
village situated some 3 or 4 ri® from the river Nishijo.
This village makes use of the river-water for irrigation by
filling its reservoir ® from the river in spring and autumn,
when the villages further up, lying directly along the river.
1. Sankin (journey-duty) kotai (alternation). • 2. Vniairi-michi.
3. Kosaku-michi. 4. Cho, i. e. in towns. 5. Daido. 6. Waki-michi.
7. I'o (use)-s!i£ (water). This is a general term applied to water
when used for irrigation, fires, etc, in distinction from aku-sui, bad
or refuse water, i. e. sewage. The subject of the Section is virtually
" Aqueducts " or " Irrigation," and the latter has been preferred as a
title, instead of some more literal rendering, such as "Usable Waters.''
8. One ri=:2.44 miles. 9. Tame (collect, preserve)-ilre (pond).
part v.—property; civil customs. 71
do not need it, and thus suflScient water is stored up for
the remainder of the year. As a compensation they pay to
the upper villages a tax for the use of the water and also
are responsible for some share of the expense of repairing
and cleaning the aqueducts.
In Settsu kuni, Higashinari kori, Avhere the cultivated
area is low-lying, the river is dammed, and the water led
into the fields by aqueducts. In hilly regions reservoirs are
constructed and are filled by rains or from springs.
Tokaido. In Kai kuni, Yamanashi kori, the repairing
of flumes and channels is done by those who use the water;
that of reservoirs and ponds by the whole village, each
villager being bound to contribute one day's labor. Some¬
times, however, the expense is apportioned according to the
assessed amount of land, or according to the number of
houses. But the repairs of the three ponds, Tokushima,
Yasuzaka, and Asao are done by the water-superintendent,
the expense being paid by the feudal lord. In Yatsushiro
Icon, wheu an aqueduct serving a village suffers injury, the
owners of rice-land pay the expense of the repairs. But if
the expense is too great for them alone, the owners of
upland must contribute something.
In Musashi kuni, Toyoshima kori, the water is brought
in to Yedo by the Kanda and the Tamagawa aqueducts, the
construction and repairs being in charge of the Public
Works Office. The repair of the pipes and flumes of the
Main Palace, the West Palace, and the Fukiage Palace are
made at the expense of the Government. The military
gentry are liable for their water-taxes according to their
incomes, and the townspeople according to the frontage of
the houses, the payments being made to the Public Works
Office.
Tosando. In Shiuano kimi, Takai kori, an association^
of persons sometimes undertakes the repair of the head^ of
1. Knmiai. 2. Bunsui (dividing the water)-/cMc/ii (mouth, source).
72
PRIVATE LAW IN OLD JAPAN :
the nqueduct system, the villages taking charge of the
aqnediicts in their lower length. Where a village or a
set of persons makes use of water from a source owned
by a dilferent village or set of persons, the former takes
no part in the management of the upper part of the
system. In Minochi kori, river and aqueduct water
is invariably regarded as the property of the whole village
or of an association, and no individual may own it
exclusively. The villagers, when repairs are ordered by
the village officers, must render labor-services for that
purpose. When an aqueduct serves several villages. A,
for instance, using 1 part of the water, B 5 parts, and
C 6 parts, A is not liable for any share in the ex¬
penses, B and C bearing them all. Various other arrange¬
ments exist for sharing the expenses, depending on the
circumstances.
In Rikuzen kuui, Toda kori, at ordinary seasons, there
are no special regulations as to the use of water. But in
time of drought the water is usually obtained from some
large river, the quantity [admitted to each aqueduct] be¬
ing proportionate to the extent of hind [served by it]. For
example, if there are [on the line of the aqueduct] 10
villages, each assessed at 1000 kokii, sufficient water is taken
for land of 10,000 koku, the water passing down through
the upper to the lower villages. If the land is so situated
that it is impossible to lead tbe water successively from high
land to low land, then it is let on for one region one day and
for another the next day, the two regions alternating in the
use. This is termed " watch water." i The same arrange¬
ment obtains for distributing among individulfls the water of
aquenducts belonging to a single village. The construction
The idea is that the system of distribution began at a certain point,
perhaps a dam or pond, whence the various aqueducts branched off,
-and where the flow was regulated by the managers of the system.
1. Ban-mizu. See Iwami kuni, infra.
part v. property i civil customs.
73
and repair of the distributing-head i is at the charge of the
feudal lord; that of the aqueducts, at the charge of the
villages using them. Reservoirs are for the most part the
property of the feudal lord, but sometimes of a village or of
[an association of] 5 or 6 individuals. The repairs are
always made by the owner ; so that if a person has a
reservoir on his own land, he repairs it himself and has the
sole right to use it.
In Uzen laini, Okitama kori, irrigation water is led
directly from a river. The breadth of the [main] aqueduct
is usually 5 ken^ and 5 feet, and the repairs are made by
those whom it serves. Where it is a branch, serving only a
special group of persons, its width is less than this.
In Ugo kiuii, Hiraga kori, it is customary for 5 or 10
villages to form an association and have a common aqueduct
system. The repairs and cleaning of channels and flumes
are done at the common expense. One of the villages (term¬
ed •' parent village ) manages the distribution of the water
from the head and regulates its use. When land is taken
for aqueduct purposes, the owner is not given any compensa¬
tion but is simply excused from tbe taxes of the area taken.
Where a reservoir lying in village A and owned by the village
is used by village B only, village A may not shut off the
water so as to prevent its use by village B ; but the latter
must undertake the repair and cleaning of the channels and
flumes. The rule is the same where A and B are in¬
dividuals.
Hckurokudo. In Kaga kiini, Ishikawa kori, when
village A constructs an aqueduct through land belonging to
village B, the farmer must pay to the latter a sum (termed
*' aqueduct-rent") equal to the produce and rice-taxes < upon
1. Vchi (within, aD-kau-a {nyev)-kuchi. That is, the point on the
river whence the ^ater was sent in various directions tlirough tire
aqueducts. 2. One ilen=about 6 feet. H. Oya-sato. 4. Nengu-sakutoku.
•"Rice-taxes" may bean error for "labor-services," for the rice-pro-
74
private law in old jap.an :
the land thus taken. la Yenuma kori, when one village leads
water over its land from an aqueduct, the villages lying
lower down have a right to use the water flowing ofl", but
must also pay some part of the expense of repairs. The
rate is usually 30 days' labor for every 100 koku of assessed
production, but may be more than this in time of drought,
if more labor is needed.
In Noto kuni, Suzu kori, where on aqueduct is planned
by one village and others below it are in need of water, the
former may not construct the aqueduct as it pleases, and
it usually undertakes to make it of a certain width and
depth.
In Echu kuni, Imizu kori, when one village owns a
pond whence several other villages obtain water, they pay a
rent for it, as well as the cost of repairs, the assessment
being apportioned according to the amount of land owned by
each village.
Sanindo. In Iwami kuni, Shima kori, weUs are relied
on for drinking-water, and irrigation-water is obtained by
aqueducts from a reservoir or from a dam on a river.
Dams are of three sorts, according as they are contracted
and repaired by the feudal lord, by a village with the assist¬
ance of the lord, or entirely by a village. In a time of
drought the water is taken by diflerent districts in turn, and
good and true men are chosen to watch that the distribution
of the water is properly made ; so the term " watch-water
is used.
In Idzumo kuni, Kamikado kori, there are two rivers, the
Hi, running from Hashido village in Nita kori, to Kami-
sato village in Kamikado kori, and the Hii, running from
Kamisato village to Kamidate village in the same kori.
From these rivers comes the water used by the kori of
duce would include the rice-tax ; but more probably the explanation
is that " produce " means the net profits after paying out the rice-tax.
1. Ban-sui.
part v.—property: civil customs.
75
Kamikiido, Tatenui, and Idzumo. In the village of Ishizuka,
which is conveniently situated foi' managing the distribution
of the water, the head of the aqueduct-system is made, and
the people of this village take charge of the distribution of
the water to the three koH. The repairs and cleaning of
channels and flumes are done at the expense of the three kori.
In Noini kori, the maintenance of river banks and aqueducts
and the cleaning of rivers used for irrigation purposes are
done at the expense of the feudal office.
Sanyodo. In Mimasaka kuni, Katsunami kori, as
disputes are liable to arise in regard to the distribution of
water, a water-watch^ is appointed at the expense of the
village, to regulate the distribution fairly. Thus those
only who share in the expense ^ of the watch may use
the water, even during a drought. The same persons also
pay the expense of repairs.
In Suwo kuni, Yoshihiki kori, [in one region] there are
48 small ways ® leading from a place called Yamaguchi,^
and along each one passes a flume. At that point in a place
called Kimachi, lives a keeper whose duty it is to regulate the
suppl}'. If, for example, a fire occurs in a certain village,,
the water is turned on for that village. The repair and
cleaning of flumes and embankments are made by those who-
are served by them. In [other] villages water is obtained
from a river or a reservoir, the repair and cleaning
being done half by the people, half by the feudal lord.
At a time of draught, a water-watch is sometimes ap¬
pointed to regulate the distribution of the water. But
sometimes the distribution is efiected by a method
of alternation, the water being turned on to one plot
today, another to-morrow and so on. There is still a third
method, in which they use what is known as " divide-
1. Mizu-ban. ^2. That is, the people of that village only.
3. Komicbi. 4. Probably, as the name implies, at the foot of a
mountaiu.
76
private law in old japan,
timber." ^ A hole of from 1 to 10 inches in diameter is
made in a plank, and the water is let out according to the
area of the plot to he served. For example, if the plot is 1
tan in area, a 1-inch aperture is used ; 2 tan in area, a 2-inch
aperture; and so on.^ Still another plan is to choose
from the villagers good and true men to manage the dis¬
tribution and determine which plots most need the water,
without regard to whether they are large or small, on high
laud or on low land. This method is regarded as the best.
It sometimes happens that a villager manages surreptitiously
to turn the water into his plot when he is not entitled to.
When this is discovered, the water-watchmen repair to his
house, and takiug away one of his kettles, they put it in
pawn, aud spend the money in a wine-bout. This has been
since old times the customary punishment for a water-
thief.
Nankaido. In Awaji kuni, Tsuna kori, when those who
live along the upper part of an aqueduct wish to make a
new dam, they must first consult and obtain the consent of
the owners below them.
Saikaido. In Higo kuni, Aso kori, the local officers
execute all undertakings connected with the construction and
repair of aqueducts, working under the orders of the Em¬
bankment Bureau and Aqueduct Bureau of the feudal office.
In Osumi kuni, Gora kori, the construction and repair
of aqueducts are done at the expense of the feudal office [and
by its direction], only matters relating to the distribution
being iu the hands of the local officers; while a " labor-
official "3 superintends performance of the works under¬
taken. •
1. Btin-ki. This seems to meau "plauk;" aud yet it may be
that the bun refers to the distribution of the water. 2. It is probable
that planks having the proper aperture were placed at each of the
openings leading from the main canals to the different plots. 3. Chi-
kara-kayii.
part y. property : civil customs. 7T
12.—RIVERS.
Tokaido. In Musashi kuni, Toyoshima kori, in towns,
rivers are cleaned by the feudal office. Those along the
banks who use the water for manufacturing purposes must
pay to the feudal office a sum of money under the name of
" thank-money " ^ or "additional money." ^ Bridges are
built by associations ^ of military gentry and townspeople.
Those who have stone-embankments, small bridges, and
landing-places, are obliged to pay dues and to refrain from
obstructing the flow of water or the passage of boats.
Tosando. In Uzen kuni, Okitama kori, [in towns] „
the Matsu river, small at ordinary times, rises very suddenly
in rainy weather and becomes some 1,000 yards wide, so-
that the expense of repairing the banks is divided among
the houses in an area of 16 wards. The assessment in
former times was made, not according to the number of
houses, but according to the extent of one's residence-land,,
the unit being a plot 6 ken square. The source of the river
is regarded as a part of the river, even in the dry season,,
and not the property of an}* individual or any ward.
Hokurokudo. In Kaga kuni, Ishikawa kori, the right
of fishing belongs to tbe village occupying the banks, though
the right is sometimes sub-let. A tax (known as " river-ser¬
vices") must be paid for the right to fish ; and hence those
paying the tax are entitled to exclude others. In Kaga kori,..
there is an old feudal law against changing the bed of the
river temporarily for the purpose of obtaining fish. Another
method of fishing, known as "pond-clearing" requires the
closing of the aqueduct or river by a dam ; but this is not
permitted before the 210th day.^
1. Uyoga-ldn. 2. Sashikmcai-kin. 3. Kumiai. 4. A day indi¬
cating a stage in the ripening of rice when it is almost ready for
the sickle. PresuiAibly the water was needed for irrigation until this
time and was therefore not to be interfered with.
78
private law in old japan ;
In Echigo kuni, Uwonuma kori, river banks are main¬
tained at the joint expense of the feudal lord and the people.
In Kambara kori, rivers run up and down or across a town
are called " navigable," and are used for freighting and
for extinguishing fires. The drain-water and rubbish of the
town are received by the river, and so there is a cleaning,
once a year, at the expense of the town.
Sanindo. In Idzumo ku7ii, Takata kori, there runs
through the province a large river, the Kanogawa. No
clear distinction exists as to the respective duties of feudal
lord and villagers in regard to repairs of the river banks,
for private lands and demesne lands are intermixed in
a very confused manner, and the proceedings are different
for the two kinds of land.
Sanyodo. In Suwo kuni, Yoshihiki kori, repairs of river-
banks, etc., are made by the villages on either side, each
village repairing its own side up to the middle line of the
river. But the right of fishing belongs exclusively to one
or the other side of the river ; and so the taxes (known as
" salmon river-service rice"i or " whitefish river-service-
rice " 2 ) are paid by that side only, the rate being 10 inoin-
me for each koku of the assessment of the river-property.
Where the river changes its channel, the new channel is
cleaned out only in that portion used by boats, the work
being done by the boatmen, and the expense being paid by
"^he feudal office. But where the sum so advanced is not
enough, the riparian owners must supply the deficit.
1. Ai-kawa-yaka-koktt. 2. Shirauico-kaw i yaku-kokn.
( 79 )
CHAPTER III.
SUCCESSION 1 TO FAMILY PEOPEETY.^
1.—PETITIONS AND REPORTS.
When a person succeeds to the headship 3 of the family,
he exchanges his own second name for the usual second
name (called the " public name " *) of the master of that
family ; so that nore-registration in the land-register is need¬
ed ; but the age of the successor is recorded and the name of
the retiring father is re-entered in the temple-register.®
The successor usually employs as his principal seal® that used
by his predecessors, esteeming the possession of it an honor.
The more or less varying customs in different districts
are as follows.
Kinai. In Yamashiro kuni, Kadono and Atago kori, in
villages, no special report is made to the authorities by the
successor ; but he adopts the family cognomen, and at the
1. Sozoku. 2. Ka-san. 3. Katoku. I. Kogi-na. This will here¬
after be termed " family cognomen." 5. Shumoii (religious sect) niii-
betsu-cho (record of persons). This was because the name of the head
of the family stood at the head of the list of family members,
and also because, as appears below, the retiring head usually changed
his second name. tf. Jitsii-in, used for formal acts of legal import¬
ance.
80
private law in old japan :
time of revising the temple register reports that he will
continue to use the ancestral seal. But in towns a report
must always be made, and the successor, accompanied by
the ward officers, presents himself at the office of the town-
magistrate, with a deed of grant of the real property, and
has it indorsed. In general the male heir-apparent, when
he reaches the age of 17, goes through the form of " hat
donning," some person, at his request, acting as " hat-
father." After this time he is entitled to take part in the
affairs of the ward or village. But second and other sons
are called " room-dwellers " 2 and do not go through this
form.
In Idzumi kuni, Otori kori, a son or younger brother,
who has succeeded to the estate 3 of his father or brother
reports the fact to the ward-elder, who reports to the chief
elder. A deed of transfer, countersealed by the relatives
of the successor, the company, and the ward-officials, is
^hen filed, and the successor's name is substituted in the
land register.
In Settsu kuni, Nishinari kori, a notice is given to the
ward officers, and the successor's name is substituted in the
land-register. But this procedure is not needed in the case
of other than house-owners.^
Tokaido. In Suruga kuni, Abe and TJdo kori, when
one succeeds to a family name,® he reports the fact at the
local office and assumes the family cognomen, not changing
the ancestral seal; some persons do not adopt the family
cognomen, yet leave the entry of name in the land-register
unchanged. In Shida and Mashizu kon, no report of a suc¬
cession is made. But the local officials, wb^n the master of
a family reaches the age of 60, take his name from the begin-
ing of the family list in the temple-register and place it at
1. Yeboshi is an old-fashioned hat worn on formal occasions,
but only by adnlts. 2. I.e. take no part in the ontside affairs of the
place. 3. Iseki (estate of a deceased person)-c/io. 4. lyemochi.
0. Kamei.
part v property : civil customs.
81
the end ; so that a man of that age goes into retirement as of
course. The same seal is used for man)' generations.
In Sagami kuni, Kamakura kori, when the eldest son ^
marries, he thereupon becomes the successor, and takes the
family cognomen, reporting the fact to the local office.
In Musashi laini, Toyoshima kori, the custom is, ever
since the period Kwansei (1789-1801), for every succession
to landed property to be publicly announced in the streets by
the feudal governor, and for the name to be changed in the
title-deeds. If a deceased head of a family left no male issue,
the property is managed by the widow or a daughter, and
it is afterwards transferred into the name of the person who
joins the family as husband of one of its female members.
If any causeless delay occurs in fixing upon such a
person, the locfil officials may interfere and urge the widow
or daughter to do so. When a person during bis lifetime
names another as his successor, it is an old rule ol the
town magistrate's office that a note ought to be made in
the register of succession.2 This was again prescribed by
a proclamation in the 6th 3'ear of Kyoho (1721); but it
has been but little observed since that period.
In Kai kuni, Yamanashi kori, when the succession to
the headship occurs, the relations and company have a
meeting for the purpose, and send to the ward-headman a
verbal notice of the succession.^ In Koma kori, in case the
successor is a son by nativity ® and not a son or son-in-law ^
by adoption, no notice to the authorities is necessary.
Tosando. In Omi kuni, Shiga kori, no report is made.
In Inugami kori, when a succession 2 occurs, the usual
record is made at the time of the revision of the temple-
register, the change being called " one family change."
1. Cho-shi. 2. Dai-kaye (lit. generation-change). 3. JiUu-shi.
4. H/ttfto-yosW,—adopted for the pui-pose of marrying a daughter of
the family. Such\ person takes the name of the family into which
he marries.
et. T.—«.
PRIVATE LAW IN OLD JAPAN :
In Mine kuni, Ahachi kori, when a succession occurs,
a report is made to the local office and the change of
ownership of real property is noted in the land-register,
the names being also changed in the temple-register,^
after 100 days have elapsed.
In Shinano kuni, Saku kori, when a family-master dies or
retires, notice is given to the village officers, and the
successor takes the family cognomen. In Ogata kori, a
similar notice is given. In Hanu kori, when a family-master
dies or retires, a petition, couutersealed by the company,
and requesting the succession, is filed by the eldest son,
through the headman of the ward, at the ward-office, and
after permission is received, a public announcement is
made.
In Shimotsuke kuni, Tsuruga kori, the successor re¬
ports to the local office, deposits a facsimile of his seal, and
adopts the family cognomen.
In Iwaki kuni, Shirakawa kori, the successor, who is
called " chief sealer," 2 reports to the local officials, who at
the time of the revision of the temple-registers transmit all
such reports to the feudal official for record. The change
is also made iu the village tux-register, at the end of the
year, when the taxes are paid.
In Iwashiro kuni, Shinobu kori, the successor's report
is made as in the previous instance. The family cognomen
is adopted, so that no change in the land-register is needed.
In Aidzu kori, retirement is not practised among the common
people. A successor reports to the local officials, who make
the proper corrections in all the books.
In Rikuzen kimi, Miyagi kori, in to\^s, a report in
writing, signed by the retiring person, the successor, and
-one of the company, is presented to the headman. If the
succession be permitted by him, the property standing in
1. Nimbetsu-cho. 2. Han-gaxhira,—because his seal heads the
list in his family.
PART V. PROPERTY : CIVIL CUSTOMS.
83
ihe land-register ^ in the name of the transferor is placed
in the name of the transferee. The headman then orally
informs the town magistrate, who corrects the land-register
at his office.
In Rikuchu liuni, Isawa Icori, the successor adopts the
family cognomen. He must report to the local officials, if
he is a son by adoption, but not if a son by nativity. In
Iwate hori, retirement is not in name practised among the
common people. No special report is made of a succession;
and usually no change in the land-register is made, as the
successor adopts the family coguomen.
In Mutsu kuni, Tsugaru kori, retirement is not known.
The successor to a deceased person adopts the cogno¬
men.
In Uzen kuni, Okitama kori, all successions must be
reported orally to the company-chief, immediately, in case of
a retirement, and within 50 days, in case of a death ; and
the latter reports to the bailiff,2 who makes an official record.
The fact must also be reported in writing, attested by the
ward-chief, to the superintendent of sects,^ on the 10th day
of the 2nd month, when the annual revision of the temple-
register is made. lu Murayama kori, a report is made only
when the successor is an adopted son. The family cognomen
is adopted, and thus no change in the ownership as recorded
in the laud-register is necessary. In Tagawa kori, the
successor affixes bis seal in the family-register ^ at the local
■office; the ward or village officials then report at the annual
revision of the temple-register in the 6th month.
In XJgo kuni, Akita kori, no petition or report is necess¬
ary, for as retirement during lifetime is not the custom here,
and as the elder son succeeds as of course, a mere notice of
the death is sufficient. The headman makes a note in the
1. Ken-cho or noki-cho,—stated in a note to ha^ve been similar to
the mizucho but djptinct from it, a separate hench o being kept in erery
cho or block. 2. Kenclan. 3. Shumon-hugyo. 4. Koseki-cho.
84
private law in old japan :
family register at the time of revision. The family-master
has in most families home the same cognomen for genera¬
tions, and thus the successor takes the name of his father.
Hokkaido. In Oshima kuni, Kamedo koii, the report
of a succession is made at the local oflBce.
Hokueokudo. In Echizen kuni, Tsuruga kori, a success¬
or is obliged to adopt the family cognomen. The retiring
master changes his name ; hut as he is entered in the temple-
register merely as " the father," no report is ever made to the
village office.
In Kaga kuni, Ishikawa kori, [in towns] when the
headship is transferred in the lifetime of the master, the
grantor and the heir appear at the ward-assembly office,
with an instrument signed by both, and the entry in the
family-register is then changed. But a farmer is not per¬
mitted to distribute his property among his children during
his lifetime. The successor to a farmer is obliged to take
the same family cognomen as the previous family-ma.ster.
In Yenuma kori, the will i of a deceased person is taken to
the feudal office, together with a petition signed by the success¬
or, relatives, and company (the occasion is called " opening
the will," and the proper time is the 7th day after the
master's death), and the succession is confirmed.
In Noto kuni, Hagui kori, the successor adopts the
family cognonen. Only the fact of the death is reported to
the feudal official, as the eldest son succeeds as of course.
In Echigo kuni, Kubiki kori, no petition or report is
made by the successor ; but the name of the new master is
substituted at the revision of the family register. But when
retirement occurs, the successor gives verbal notice to the
headman.
Sanindo. In Taugo kuni, Yosa kori, on the death of
the master the local officials, without waiting for a report,
substitute the name of the eldest son as master, hut if it is
1. Yuigon.
part v. property : civil customs.
85
R case of retirement only, they wait for n report. When
"the successor changes his name, it is customary for him to
report to the officials.
In Innba kuni, Omi knri, the successor is not obliged
"to report until the time of revising the temple-register, when
ihe local officials substitute his name as head. In towns the
succession—which they call "change of master—must
always be reported.
In Idzumo kuni, Shimane kori, on (he death or retire¬
ment of a family-master, an instrument certifying to the
succession, sealed by the relatives and company, is sent to
"the town-magistrate, and the chief inspector 2 and ward-
elder make a note in their registers (the family-register and
the land-register), the name of the heir being substituted as
family-master. In Soyegami kori, notice is given to the chief
elder through the ward-elder, and the change is made in the
temple-register, the chief elder affixing his official seal.
In Iwami kuni, Naka kori, notice of a succession is
given, in villages, to the headman, in towns, to the elder,
whether the heir is son by nativity or by adoption. But
ihe notice is not made until the time of the revision of the
temple-register,3 in the 2nd month of every year, and then
only by the new master himself.
Sanyodo. In Harima kuni, Shikito kori, permission of
the feudal official must be obtained for a family-succession. ^
If a new seal is adopted, a facsimile of it must be deposited;
but not if the use of the ancestral one is continued.
In Mimasaka kuni, Nishihojo kori, notice of succession
is given to the chief elder, through the ward-elder, in case
of retirement, but in case of a death, only notice of the fact
of death is given [by the successor], as it is assumed that
"the eldest son has succeeded.
In Bizen kuni. Mine kori, there are no other proceed¬
ings than a notice to the ward-elder, who makes a note in his
register. •
1. Teislm-lcaye. 2. O-mokudai. 3. Nimhetsu-c}w. 4. lye-sozoku.
86
private law in old japan i
In Bigo kuni, Mitsnki kori, no special report of a suc¬
cession is made, the matter being decided by a family con¬
sultation. The family cognomen remains the same for
hundreds of years, and the entries in the land-register are
left as they are.
In Aki kuni, Numata and Aki kori, a succession to village-
property is usually not reported until the next revision to
the temple-register. In towns it is necessary for the suc¬
cessor to appear at the magistrate's office and stamp his seal
in the register, the proceeding being called " book-changing."'
In Suwo kuni, Yoshihiki kori, notice is given, in towns,,
to the elder, in villages, to the watch-chief.
In Nagato kuni, Toyoda km i, when among the upper
classes 1 (known here as memi), that is, those who may have
a family name and wear two swords, a succession occurs,
notice is given to the proper official; [such an arrangement]
is known as " direct-control." ^
Nankaido. In Kii kuni, Nakusa and Abe kori, in
villages, no special report is made, but the entry of the
name of the family-master is changed at the revision of
the temple-register. In towns, a succession to realty
requires the permission of the feudal official. Where the
inheritance is granted by one retiring,^ a petition by the
retiring master is enough ; but where the grant is by one
deceased,^ there must be a witnessed document of grant, and
a petition must be filed within 50 days after the decease, the
entry in the land-register being thereupon changed. Any
necessary delay must be explained beforehand.
In lyo kuni, Uwa kori, in villages, a succession is
reported at the local office and the name changed at the
time of revising the temple-register. In towns, a petition
1. Jd-to. 2. Jiki-shihai. This is a teclinical phrase, as ordin¬
arily used, signifying the official just above any given official (see Part
III, No. 12). But here the meaning is not clear. 3. Inlsyo yuzitri'
4. Shikyo-yuzuri.
part v. property : civil customs. 8T
countersealed by the successor's company must be filed, and
a letter of permission obtained from the magistrate.
In Tosa kimi, Ogawa kori, the common people, in case
of a succession, merely notify the local officials ; this is
called " name-changing." 1 The country-samurai 2 petition
the feudal official to allow the desired succession, and more¬
over are allowed (as the commoners are not) to retire
during lifetime, and to transfer the family-pedigree.^ These
country-samurai are those who have reclaimed waste land
(the area must he 3 cho or more) and are permitted to
enjoy the profits without paying taxes or other charges.^
Saikaido. In Chikugo kuni, Mii kori, notice of a suc¬
cession is given to the company-chief, inspector,^ and ward-
elder, and the successor's name is substituted in the
register.
In Buzen kuni, Shimoge kori, when a master over 60"
years of age refuses to go through the form of " picture-
trampling,"® the local officials treat him as having retired,
and alter the name in the registers. A new master does
not adopt the family cognomen until the death of the retired
master.
In Bugo kuni, Oita kori, retirement is not practised.
On the death of the master of a family, the family cognomen
is adopted by the eldest son, if the local officials so decide.
In Hayami kori, a succession must he followed by a report
and a change of name in the hooks. The principal seal
must he changed; and if time is required for this, the suc¬
cessor reports that he will temporarily use that of his
predecessor.
1. Namaye (name)-tsuAe (fix)-Aaye (change). 2. Go-shi. 3. Kabu.
This seems here the significance of this protean name. 4. See
the paper by Mr. Grinnan, on " Feudal Land Tenure in Tosa," in
Trans. Asiat. So» Jap., 1892. 5. 3Ietsuke. 6. Fumiye,—ti reference
to the trampling upon a picture of Jesus which was periodically
required as a test of non-Christianity.
68
private law in old japan !
In Higo kuni, Tamana kori, no petition or report is
required.
In Osunii kuni, So kori, the local officials, at the time
of the revision of the temple-register every 7 years, ascertain
and report to the feudal official all the successions that have
occurred, and, after sanction obtained, change the names in
the books. The successor,! except in rare cases, preserves
his own name.
2.—RIGHT OF SUCCESSION TO THE
HEADSHIP.
It sometimes happens that the master of the family
exercises his discretion and creates a branch-family with
the eldest son as its head, letting the youngest son succeed
in the chief family. But as a rule the eldest son is made
the successor.
The varying customs on the subject are as follows.
Kinai. In Yamashiro kuni, Atago and Kadono kon,
when something affecting the eldest son causes the father to
select the second or third son or any other person as the
successor, he must prepare a deed of grant, bearing the
attesting-seal of the feudal official, and place it on deposit
in the local office. The power to disinherit the eldest lies in
his discretion. Every deed of grant to take effect after
death must bear the attesting-seal of three rektives.
In Yamato kuni, Yoshino kori, the right of succession
belongs generally to the eldest son ; 2 but, if the father
wishes, he may make the second or third son his heir,
establishing the eldest in a branch family. *
Tokaido. In Owari kuni, Aichi kori, the eldest son
has the right of succession. But it often happens in villages
that, in order to encourage agricultural undertakings, the
master of the family has his sons one after another, begin-
1. Zoltu-nin. 2. Chonan.
PART V. PROPERTY : CIVIL CUSTOMS.
89
ning at the eldest, establish branch-families, the master
making such an apportionment of his property as he sees fit.
In Idzu ktmi, Takata kori, and in Hitachi kmii, Niibari
kori, the eldest child succeeds, whether male or female.
In Kai kuni, Koma kori, the term " succession " is
properly applied when the master of a family either dies or
retires from business by reason of age, and his son or
adopted son-in-law succeeds. In ordinary cases the eldest
son is entitled to the succession; but he is sometimes
excluded from it on the ground of either physical or mental
unfitness to govern the family, and the younger brother
succeeds instead. If there is no younger son, the succession
is sometimes selected by a council of the immediate family
and other kindred. In Yamanashi kori, the eldest legitimate
son! succeeds. But if by reason of mental or physical
incapacity or of misbehavior he is deemed unfit to manage
property, the second or third son or [failing these] a
daughter is given the succession, a son-in-law being adopted
in case of a daughter.
In Musashi kuni, Toyoshima kori, the right of manage¬
ment usually passes to the heir immediately on succession;
but sometimes the father [in case of retirement] or the
relatives [in case of the father's death] superintend the
family affairs, especially in pecuniary matters, whether
the successor be son by nativity or by adoption.
1. Chakushi. This word seems to be used by the author primarily
in the sense of " eldest " as distinguished from second or third son.
Dr. Hepbiu'n gives it the same meaning. But the original sense is
"legitimate son,"—chakti being "straight," "just," and s/u, "son."
" Chakushi," in the new Code, to be sure, signifies " legitimateciu'M";
but the older use was looser, and clearly " son " is here intended. But
in several passages in this Section it is clear that the term carries the
idea of "eldest;" in only one passage is the meaning "legitimate" an
essential one. On the whole, then, the phrase " eldest legitimate son "
has seemed the best rendering in most cases, the idea " legitimate "
being probably thaasubordiuate one. Dr. Weipert suggests, as the
best single term, erbsohn or hauptsohn, the Japanese understand at
once that " the sou " is nobody else but the eldest legitimate son.
90
private law in old japan :
Tosando. In Omi kuni, Shiga kori, the person who can
show a deed of grant ^ becomes the successor. In villages,
when the eldest son reaches the age of 16, he calls together
the oldest people of the village,^ goes through the ceremony
of donning men's clothes,^ and gives up his boy's name.^
This occasion is called " hat-donning," and determines his
right as heir-apparent.
In Shinano hnii, Ogata kori, it is the custom, in order
to avoid disputes as to the succession, that every farmer
(whether youthful or aged) shall in a dangerous illness name
his successor in a writing attested by the headman and
company-chief; and when this duty is neglected, the head¬
man, company-chief, company, and relatives urge him to
fulfil it. If after all a person die intestate his property is
inventoried in a book, which is given into the custody of
some relative until a successor is chosen. A will unattested
is invalid. In Takai koti, custom requires that the succession
to the family estate and the mode of distribution of personal
estate shall be provided for before death in a writing sealed
by the headman and company-chief. No claim to the
property can be brought unless thus certified in writing.
In Saku koi-i, the eldest son® generally is regarded as
having the right of succession. But if the father has
reason to fear to trust the management of the family
property to him, he may make the second or third son
the heir, establishing the eldest in a branch family and
apportioning to him a larger share than would have fallen to
a younger son in such circumstances. In Minochi kori,
among samurai, an illegitimate son® cannot succeed, unless
he has been acknowledged by petition to the feudal ofiice and
legitimizedby its approval. Moreover, an illegitimate
son, even though older than the other children, must call
1. Yuzuri-jo. 2. Thus invoking for himself a life as long aa
theirs. 3. Gembuku. i. Yomei. 5. Chonan. 6.3lekakebara no daiishi
(lit., concubine's son). 7. Chakushi.
PART V. PROPERTY : CIVIL CUSTOMS.
91
them "elder brother " 1 or "elder sister and be termed
a younger son,3 until he is legitimized as above.
In Shimotsuke kuni, Kawachi hori, if the eldest child is
a daughter, a husband is found for her and he succeeds to
the headship; for if a son were allowed to succeed in her
stead, the labor available for cultivation of the family land
would be diminished.^
In Uzen Inini, Tagawa kori, a similar custom prevails.
In Okitama kori, the eldest legitimate son® has the right of
succession, and if he dies, the right passes to the legitimate
grandson.® If, however, the grandson is too young to manage
the property, one of the grandparents or great-grandparents
assumes the succession temporarily, the grandson being
adopted as a son by that person. In case of retirement
during lifetime, the heir does not receive the entire patrimony,
a part being reserved as a retirement-portion.'^ But on
the father's death, this too passes to the successor. The
name " key-grant"® is given to this custom.
In Rikuzen kuni, Miyagi kori, the right of succession
belongs to males ® only ; thus if the eldest child is a
female,'® the next male child succeeds : or if the eldest
son dies and the second child is a daughter and the
third a son, the latter succeeds. But if the eldest son
leaves a son, a brother' or [married]" sister takes the
succession temporarily, the grandson becoming the adopted
son; this arrangement is known as "adoption in the
line." '2
In Ugo kuni, Akita kori, the eldest son customarily
succeeds. But if he is too young to manage the property,
and the second child is a daughter, her husband (the
1. Ani. 2. Ane. 3. Nisannaii. 4. By the death or retirement of the
father, leaving none in his place. 5. Chakiinan. 6. Chaktison, i.e. the
son of the one who would have succeeded. 7. Inkyo-ryo. 8. Kagi-
yuzuri; the allusioii is obscure. 9. Danshi. 10. Joshi. 11. See the
next paragraph. 12. (order. line)-yo.f/n* (adoption), i. e. adoption
of one standing in the original line.
92
private law in old japan :
adopted son-in-law) takes the succession temporarily,
adopting the grandson as his heir. The daughter's child has
in such a case no right of succession.
Hokurokudo. In Kaga Imtd, Ishikawa Uori, succession
may occur during lifetime, as already described. But it is
more customary for the master of a family to make his will
and put it in the keeping of his company; so that when a
death occurs, the successor is required to make his will
and deposit it with the company, who thereupon deliver up
to him the will of his predecessor. When a succession af
death occurs, the will of the deceased is opened in the
presence of the headman, the relatives and the company,
the occasion being known as " will-opening." i If the head¬
man considers any part unjust, he refers it to the magis¬
trate for decision. It is the custom for the successor to
adopt the family cognomen of his predecessor; and ordina¬
rily the eldest son, with the approval of the relatives, merely
changes his name and becomes family-master. But it
on account of physical defects or other reasons the eldest
son is unfit or if no son survives, a brother or other near
relative is appointed by agreement of all the relatives.'^ In
Nomi k)ini, a person may, on account of the infancy of his
eldest son, nominate his wife as successor, duly informing
his relatives and company of his determination, but the
widow must procure the sanction of the magistrate to her
succession. The succession is always determined at the
pleasure of the testator. In Kawakita kori, when the mas¬
ter of a family dies, and the widow marries again (this is
termed "succession by going iis a husband,"3 ) the children
by the first husband are regarded as the Ions by nativity
of the second, and the eldest son becomes the latter's heir,
taking precedence of the childi'en by the second marriage.
1. Yuigon-hiraki. 2. The above paragraph is in the original a
tangle of inconsistent and obscure statements, and it has been im¬
possible to interpret them clearly. 3. Iri-iiuiko-sozoku.
PART V. PROPERTY ; CIVIL, CUSTOMS.
9a
In Noto kuni, Hagui kori, the eldest son succeeds as of
course, if the will contains nothing to the contrary, even
though he be an incapable. If no son is living, the council
of relatives appoints a successor and reports the name to
the magistrate. In Hoshi kori, the permission of the feudal
official is necessary in order that one may give the eldest
son in adoption to another family and make a younger sou
the successor. When the widow of a man dying without
issue endeavors to obtain the succession by taking another
husband, she must file with the feudal official a petition
signed by herself and all relatives not beyond the degree of
cousin.
In Echu kuni, Imizu kori, the master of a family makes
his will betimes, seals it up, and deposits it at the ward
office. After his death the will is opened in the presence
of his relatives and company and the ward officers, and the
appointee is made successor. If no successor has been
nominated or no will has been made, a council of relatives
appoints a successor. But the general custom is for the
eldest legitimate son^ to be appointed heir, and if he is
dead, his son^ ranks next. If no legitimate sou 3 survives, the
succession may go to an illegitimate son.^ In Tonami kori,
the will is made betimes, in towns, by the family-master
(perhaps appointing a daughter), sealed up, attested on the
outside by the company, and deposited with the company-
chief. A council of relatives is held on the 7th or llth
day after the decease, and the question is put as to whether
the eldest son shall succeed. If the decision is in the
affirmative the appointment in the will does not stand; if
in the negative, the will is opened, in the presence of rela¬
tives and company, and the appointee becomes successor.
The company-chief then informs the town magistrate. But
in villages the succession can never go to a daughter.
1. Chaku-cJio. 2. Chaku-son. 3. Seike. 4. Junke.
94
private law in old japan
lu Echigo kuni, Kubiki kori, the succession is for
males ^ only, the [eldest son's] son or grandson2 taking prece¬
dence of a brother. When the heir is less than 10 years old
at the time of the father's death, the widow takes the head¬
ship of the family, and is entered on the sect-register as
widow of A." If the widow marries again, the new
husband becomes family-master, and the heir by the first
marriage is adopted as his heir. In Kambara kori, the
right of succession belongs to males only. If there are
none, then the brother of the deceased becomes family-mas¬
ter, in preference to a daughter.
Sanyodo. In Bichii kuni, Kuboya kori, the right of
succession belongs first to the eldest legitimate son. ^ But
sometimes he is established in a branch family, and then a
second or third son succeeds. Often, however, it is the
younger sons who establish branch families. When a branch
family is established, notice is given; the principal seal is
then made, and an impression placed with the headman.
In Suwo kuni, Yoshihiki kori, the eldest son^ succeeds
as of course; but in case of his mental or physical incapa¬
city to manage the family alfairs, the second or the third
son, or, if there is no son, a daughter, will take the success¬
ion, the father's seal attesting the appointment. In Nagato
kuni, Amu kori, a daughter may succeed her father, the cor¬
rection of names being made in the temple-register by means
of an appended slip.
Nankaido. In Awaji kuni, Mibara kori, when there
is no son, a daughter may inherit. Sometimes the widow
takes the succession temporarily, either as widow of the
deceased, or, perhaps, as his daughter. ^
In Awa kimi, Nabigashi kori, tbe eldest legitimate
son3 succeeds, in preference to an older illegitimate son; 5
and if tbe father desires to make an illegitimate son his
1. Danshi. 2. Shison. 3. Chukunhi. 4. Clionan. 5. ShoMtsu
m ko.
pakt v. property ; civil customs.
95
heir, the relatives of the lawful wife have a right to inter¬
pose objection.
In Tosa kuni, Kochi kuri, the eldest soni succeeds. It
is customary, in rural districts 2 among families of the upper
classes, where there are 3 sons, to establish the first and
the second sons in branch families, making the youngest
the heir.
Saikaido. In Chikugo kuni, Mitsuma kori, the eldest
legitimate son 3 customarily succeeds. But in case of his
incapacity or any other hindrance the second or the third
takes his place, or [in default of other sons] a daughter
takes a husband [who succeeds as adopted son-in-law].
In Higo kuni, Tamana kori, among the common people,
the eldest son customarily succeeds. But in case of his
incapacity, mental or physical, the second or the third sou,
after consultation by the relatives and company, takes his
place.
In Hyuga kuni, Usuki kori, the father often has the
eldest son establish a branch family and gives the succes¬
sion to the second or third son. In Miyazaki and Kayu
kori, the headman and the elder, at any time after the eldest
son reaches the age of 20, may enter his name in the
temple-register as master of the family, treating the father
as retired; and in any case, if a master in some way offends
the whole village, the village officials have a right to cause
him to retire.
8.—DISTRIBUTION OF PATRIMONY.^
When the master of a family desires to portion off a
son or younger brother and thus establish a branch family,
he gives notice to the local official, and goes through the
1. Chonan. 2. Go and mura. 3. ChaJiushi. i. Bun (divide)-2/o
{give). The term " apportionment" will here be used as the general
one, " advancement" being restricted to a distribution duiing the
parent's lifetime.
96
private law in old japan :
form of apportioning! a part of his estate and creating a
new family. The amount thus apportioned usually does
not exceed one third or one fourth of his estate. Varying
customs are as follows.
Kinai. In Yamashiro kuni, Atago and Kadono kori,
at the starting of a new family by a son or younger brother,
there is no fixed rule as to the amount to be apportioned.
In villages the part apportioned is customarily the property
acquired by purchase that part inherited from one's ances¬
tors is given only to one who perpetuates the main family.
In Yamato kind, Soyegami kori, a person who est¬
ablishes a branch family is sometimes excused from the
feudal service consisting in the furnishing of a stated amount
of labor.
In Kawachi kuni, Shibukawa kori, when one wishes tn
establish a younger son as the master of a new famil)', remov¬
ing his domicile to another village, the permission of the
oflicers of this village is obtained and the matter is attended
to by them. But the new-comer is called a "come-in
farmer,"^ and is in all respects treated as inferior to the
other farmers. "When the new family remains in the same
village, the village officials are informed.
lu Idzumi kuni, Otori kori, when a distribution is
desired to be made to a daughter or younger son, the father
makes out an instrument attested by witnesses and deposits
it with the village officials ; on the father's death, the
relatives open it and read it aloud. A similar document is
necessary for the appointment of the heir. In Idzumi kori,
when a second or third son establishes a branch-family, he
is sometimes exempted from village ch^ges or feudal
laboring services for 3 years. This period is called the
"new-walls three-years." ^
1. WakatSH. 2. Bai-toku. 3. Iri-byakusho. 4. Ara-kabe sannen,
—its purpose being to allow him to devote his funds to erecting a
house.
part v. property : civil customs.
97
In Settsu kuni, Yabe kori, the establishment of a new
family is reported to the local officials. The portion given
is of no fixed amount, this being in the discretion of the
master of the family. The same rule holds when a mer¬
chant apportions to some one of his clerks or agents who has
well served him for many years a part of his capital and of the
goodwill^ of the house, for the purpose of enabling him
to set up a separate house.
Tokaido. In Ise ktnii, Alio koii, no report is made of
the creation of a new family; but a note is made of the
additional family 2 in the temple-register. A poor family
sometimes petitions the feudal official for money to build a
house and buy farming tools, and receives assistance^ -
money. There is no fixed rule as to the amount of an ad¬
vancement.
In Shima kuni, Toshi kori, a rejiort must be made to
the feudal official, because an increase takes place in the
number of houses. There is no regular amount for the
advancement. In most cases the new family is established
in the same calling as the main family. In sea-coast
villages the portion often consists in a boat, with which the
new family carries on the occupation of fishing.
In Owari lami, Aichi kori, there is no fixed rule as to
the amount of capital portioned out. When an eldest son
starts a new family, his portion is sometimes contributed to
by the younger son, who succeeds to the headship of the
main family. Sometimes a merchant portions out to some
one of his clerks or agents who has well served him for
many years a part of his capital and of the goodwill of the
1. Noren. This is a curtain separating the shop-room of a
merchant's house from the living rooms. By custom it is regarded
as representing the house or firm, and thus it has come to have
the meaning " good-will," 2. Kado (gate,—hence, house)-mas/u
(increase). 3. Te-ate, lit. hand-placing, the attitude of one who lays
his hand on another's shoulder and offers friendly help.
i»t. T.-y.
PEIVATE LAW IN OLD JAPAN :
house, together with the right to use the house-name,^ and
lets him establish a separate house. In such a case, if the
beneficiary should subsequently injure the interests of the
original house in a commercial transaction, the head of the
latter may deprive him of the right to the house name and
goodwill and order him to cease trading.
In 'J'otomi kimi, Fuchi kori, the fixed amount for an
advancement of realty or personalty is three-tenths of the
iotal value of the family estate ; this amount is known as
"seven and three parts."^ If the amount exceeds this pro¬
portion, the relatives and the company may object. As
the number of houses in each village is fixed, one cannot
start a new family at pleasure, and usually one must wait
until a piece of residence-land is vacated by its occupant.
Even if an additional house is built, no report is made.
In Suruga kuni, Abe and Udo kori, a report must be
made to the headman, and during the building of the new
house one's company must contribute their assistance with¬
out pay.
In Kai kuni, Yamanasbi kori, the gift of property to
other than one's successor (for example, a younger child or
fi iend) must be made by an instrument of bequest. ^
In Idzu kuni, Takata kori, a part of the estate is some¬
times apportioned to a son or brother to establish him at
the head of a branch family, the amount given being in the
discretion of the master ; some do not give any of the cul¬
tivated land, but a portion of the residence-land is always
given.
In Musashi kuni, Toyoshima kori, a will is usually
made during the father's lifetime, giving « portion of the
estate to a daughter or younger son. On bis death, the
will is opened and the portion set off. When the daughter
marries or the son grows up [and starts a branch family],
1. Yago. Most commercial establishments have a title of their
own, quite distinct from the name of the owner or owners, i.e., Ise-
ya, Oicari-ya. 2. Shicli-hu sam-hu. 3. Ytiijo.
PART V. PROPERTY : CIVIL CUSTOMS, 99
the portion is taken to the new house. ^ If there is no such
distribution by will, there is no division of the estate,
because a division would be the source of wrangling among
the children.
In Iruma kori, an apportionment to a second or third son
is by law not permitted, unless the family estate is assessed
at 10 koku, or more. When a branch family is started, the
feudal official makes a present by way of reward. In towns,
the master portions out a part of the capital to the son or
brother, who hires a separate house. No report is made. ■
In Awa kiini, Awa and Heguri kori, the farmers dislike
to own descent from a new family, and so the brothers and
younger sons do not start new families but take the succes¬
sion of a family about to become extinct.^^ The amouut ap¬
portioned depends on the discretion of the master.
In Kadzusa kuni, Moda kori, in towns, a report is made
and the entry is changed in the land-register. But in vil¬
lages the practice is to take the succession of other families, as
just related. The amount of the apportionment is not fixed.
In Shimosa knni, Imba kori, apportionment is by law
not permitted if the family estate is assessed at less than 10
koku. The amount is in the discretion of the master. But
as permission to turn cultivated land into residence-land is
difficult to obtain, the custom is to re-establish extinct
families, as above related.
In Hitachi kuni, Ibaraki kori, permission of the feudal
official must be obtained, because in making the advance¬
ment a portion of cultivated land is turned into residence-
land. Whenever an additional house is established, the
feudal official gives a present bj' way of reward. The amount
apportioned is in the master's discretion.
1. Igon. This expression is used apparently because the por¬
tion would consfit chiefly of personalty. 2. Zekke, i.e. having no
male issue.
100
private law in old japan :
Tosando. In Omi kiiiii, Shiga kori, the amount appor¬
tioned is in the master's discretion. Where it consists of
realty, a deed of grant must be given. In villages, an
apportionment is not allowed where the family estate is
assessed at not more than 10 koku.
In Hida kitni, Ono kon, permission of the feudal official
must be procured. The portion is customarily not less than
10 koku in assessed production and 1 cho in area, and the
main estate remaining must not be less in quantity. If the
head of the new family does receive a plot of less than 10 koku
production, he loses the title of " farmer " and the family is
called "nobody's family ; "i moreover, his rights among his
fellow-villagers suffer considerable diminution.
In Shinano kuni, Sarashina kori, when a will is made,
and its provisions are ambiguous or the distribution is unjust,
the relatives and company have a right to disregard it and
make a proper distribution. In Takai kori, headmen whose
property is of less than 20 koku assessment and ordinary
farmer's whose property is less than 10 koku are forbidden b5*
law to set off part of their property to second or third sons.
In Kotsuke kuni, Ibaraki kori, an apportionment is
forbidden unless the family estate has an assessed produc¬
tion of 15 koku or more. The amount of the portion is
determined by a consultation of the relatives. The entry
of the fact is made at the time of the next revision of the
temple-register.
In Shimotsuke kuni, Tsuruga kori, the practice of
advancements for the establishment of branch families is
rare ; in most cases the second and third sons take the suc¬
cession of a " broken " family.2 In Kawilfchi koii, if the
family estate is assessed at 10 koku or less, an apportion¬
ment cannot be made without permission of the feudal official.
The amount is in the discretion of the master. A report
must be made at the local office.
1. Tare (whose ?, i.e. nobody's)-l(ado (gate, housej-j/a (house,
family). 2. Tsuhure-ya.
PART V. PROPERTY : CIVIL, CUSTOMS. 101
In Iwashiro kuni, Shinobu kori, the permission of the
feudal official is required. The amount is determined by a
consultation of the relatives, hut usually does not exceed one-
third of the whole estate. In Aidzu kori, the pennission of
the local officials alone is enough. In villages, second and
third sons usually succeed to the name and remaining
property 1 of a " broken " farmer. When an advancement
is made, the amount is in the discretion of the master.
In Rikuzen kuni, Toda kori, when property is to be
apportioned to a second or third son, the procedure is the
same as in the case of " private-extinction [of a family],"
described in the chapter on Domicile.^ There is no rule
as to the proper portion, and if the heir objects to its
amount, the father may not carry out his desire.
In Mutsu kuni, Tsugaru kori, the establishment of a
branch family is not permitted unless the master has reached
the age of 40 and the family estate performs a laboring
service of 40 days' labor annually. The amount is in the
discretion of the master.
In Uzen kuni, Tagawa kori, the amount is not fixed, but
does not usually exceed one-third of the estate. A report is
made to the chief headman and the entry in the land-
register is changed, the ward or village officers certifying
with their seals the transfer of the property. A farmer does
not portion off a plot of less tiian 5 koku iissessment. In
Okitaina kori, when a daughter or younger son is to be
established in a branch-family, a consultation of the relatives
and company is held, and an amount set off proportionate to
the size of the family estate. Notice of this is given to the
company-chief aud the bailiff ^ at the time of revising the
temple-register, on the 10th day of the 2d mouth. No
document or witnesses are needed.
1. yiyo (naine)-«€/» i (residue). 2. See Part VII. See also supra.
Chapter I, RikuSen kuni, where a reference is made to the same
procedure. 3. Kendan.
102
private law in old japan :
In Ugo kuni, Akita kjri, no one may establish a
daughter or younger son in a branch family unless he is
the owner of some realty, however little. The portion
assigned is usually two-tenths of the whole estate. In
Hiraga kori, the portion given as an advancement ^ may
not exceed one-tenth of the whole,—for example, 10 koku
from an estate of 100 koku. The relatives and company
must approve, and verbal notice is given to the headman.®
The name is changed in the temple-register at the time of
the annual revision. Sometimes it happens that a portion
of the estate is set off to a farm-laborer ^ wbo has worked
for the family for a long time, rendering good service, and
he sets up a separate family. The nucleus of his estate is
the savings which he has made, and what the master gives
him is an additional amount termed " house-building ex¬
penses " ^ and the privilege of using the master's name.
If land is given instead of money, the amount is usuallj' an
area assessed at 100 kari (2 sheaves make 1 ua, 10 tea
make 1 sokii^ or 1 kai i, and 100 kari are usually equivalent
to 1 tan in area). The establishment of this sort of
separate family is known as " kitchen-apportionment,"®
and a verbal notice to the headman is sufficient.
Hokkaido. In Oshima kuni, Kamedo kori, report is
made by the master, and the local officials make the requi¬
site changes at the next revision of the temple-register.
The amount apportioned is in the discretion of the master.
Hokurokudo. In Echizen kuni, Asuha kori, the master
may establish branch families or not, as he pleases. There
is no fixed amount for the advancement, but it seldom
exceeds one or two tenths of the estate. But if the eldest
son is for some reason the one to leave the main family, his
portion is sometimes one-half. A merchant sometimes
1. Bun (divided, part)-c/(i. 2. Kimoiri. 3. Saku-otoko. 4. Ka-
saku-ryo. 5. These are some of the old Japanese measures, which
seem to have survived in this region. 6. Daidoko-trari.
PART V. PROPERTY ; CIVIL CUSTOMS. 103
portions off the good-will of his business, as already described,,
but the relations of master and servant are in form pre¬
served until the third generation of the new house.
In Kaga ktmi, Ishikawa kori, a law of the fief forbids-
an advancement when the family estate is assessed at less
50 koku. When the owner of such an estate desires to makfr
an advancement, he conceals the transaction under the
name of a sale. However there is a general prohibition
against sales and apportionments to temples, samurai, and
merchants.
In Noto kuni, Hoshi kori, when a son or brother or
other member of the family wishes to establish a new
household, the master of the family informs the villagers^
and consent being obtained,- applies for permission to the
feudal official by petition countersigned by the village-
officials. The new householder pays from 8 to 5 yen to the
village as " face-money," i which is laid by against extra¬
ordinary casualties or is applied to the village expenses..
In Hagui kori, a portion may not be given to a younger son
unless the estate is of 50 koku assessment or more.
In Echigo kuni, Koshi kori, in villages, no estate
of less than 30 koku assessment can be subdivided ; and so,,
although the master of a smaller estate sometimes, fo
special reasons, establishes a second or third son at the
head of a branch family, the headman, though not openly
objecting, does not record the new house on the books.
In towns, the master of a family usually apportions a
part of his capital, seldom a part of the residence land. The
amount is not fixed, but it rarely exceeds one-tenth of the
whole. In Kariha kori, the s mallest estate allowed to b
divided is one assessed at 10 koku; but as the local officials
never report to the feudal official an increase in the number of
1. Tsitra-kane. Prosperity or elevation of position is described by
a common pb]%se, ** His face has become better;" and the term
face-money " probably involves the same idea.
104
pritate law in old japan :
houses, the law is often violated. The amount of the appor¬
tionment is not fixed. In Kambara kori, the portion for a
daughter or a younger son must not exceed one-fifth of the
whole estate. If it consists of land, a petition asking per¬
mission to transfer must be sent to the ward representative,
with the title-deed; the deed is copied at the ward assembly
oflSce, officially sealed, and forwarded to the elder and head¬
man, who indorse it and deliver it to the head of the new
family. This ward-assembly office manages the affairs of
the ward, and the ward-representative, elder, and headman
are to be found there.
In Sado kimi, Sawata kori, a law prohibits any
change in the number of houses, so that the creation
of branch families is not allowable, and it is customary
for a younger son to wait for the removal of some
family and take its place. The amount of the advancement,
after a consultation by the relatives, is usually referred to
the local officials for final determination.
Sanindo. In Tamba Imnl, Taki kori, estates assessed
at less than 10 koku may not be subdivided ; in all cases
permission of the feudal official is required. The house of
the new family may be covered with straw-thatch only, not
with reed-tbatch or with tiles.
In Tango knni, Kasa kori, a report must be made. In
some villages an increase of the number of houses is not con¬
sidered desirable, so that even though a branch-family be
established, the name is recorded with that of the main
family, until an opportunity arises to succeed to the name and
remaining property of some extinct family. In towns, ap¬
portionments by merchants are rare, and mo^ of the new
families build up their business by their own efforts.
In Hoki kiini, Aimi kori, no report of the new family
is necessary, and for the advancement the consent of the local
officials only is enough. In towns and villages alike the new
family is for 3 years exempt from the various burdens and
charges.
PART V, PROPERTY : CIVIL CUSTOMS. 105
In Idziimo kani, Naka kuri, the apportionment of pro¬
perty to younger children by lust will must be attested by the
nearest relations.
In Iwami kutd, Shima kori, when a second or a third
son is established in a branch family and when a daughter or
a son marries into another family, a portion of the estate is
given them. In case of distribution made by will, the will
must be opened in the presence of the relatives, the company
and. the beneficiary. If the latter alone opens it, the will is
of no effect.
S.ANYODO. In Harima kuni, Shikito kori, in villages, a
report of the apportionment is made to the local officials,
and the entry is changed in the land-register. In towns,
the permission of the feudal official is necessary. The
amount is not fixed.
In Bigo Imni, Fukatsii kori, the establishment of a new
family is reported to the local officials; if also a grant of
part of the estate is made, the entry in the land-register
is changed. The amount varies ; but in no case must
it be unsatisfactory to the heir-appareiit, and it is gener¬
ally about three-tenths of the whole. In Mitsnki kori,
in towns, a report that a new family is established is
given to the feudal official, together with a certificate
from the temple which the master attends. In villages,
there is meiely a report to the local officials of the appor¬
tionment of property. The amount is in the discretion of
the master.
In Aki kuni, Aki and Numata kori, in towns, a report
of the new family is made to the local officials. The
^mount of capital portioned out is in the discretion of the
master; but the saying " six to four " shows that the
new family receives less than the successor to the main
family. But where a son from a village family has been
adopted into a town family, he must always succeed to the
headship of the^iain family. A merchant sometimes gives
to a faithful employee the right to use the house-name, as
106
private law in old japan :
already described, and a branch house so formed ranks
second only to a branch-family established by a son or
brother.
In Nagato kuni, Amu kori, a portion consisting of cul¬
tivated or forest land is given to the daughter or younger son
who is to establish a branch family or to marry into
another family. This is called "share-rice," ^ and the amount
is decided upon at the time the child is born. But some¬
times the division takes place by will. The will is not
valid unless it is opened by the relatives and company and
read aloud in the hearing of all present.
Nankaido. In Kii kuni, Nakusa and Abe kori, in
towns, an apportionment does not exceed one-third of the
whole estate, and may not be made to any relative farther
removed than a cousin; though, as already described, it may
be made to a faithful employee, and in this case it is called
"education grant."^ In villages an advancement is made
even to a brother or son, by the transaction called "return
of the original amount," 3 described in the chapter on
Hypothec and Pledge. The amount is varying.
III. Awa kuni, Miyoshi kori, as a rule, one who has but
a small estate is not allowed to establish a son in a branch
family, but if some necessity arises, the relatives and
village officers investigate the matter, inspecting the laud
which it is desired to set off for the residence, and if no
objection is made, the apportionment takes place. ^
In Saiiuki kuni, Naka kori, in towns, the amount of
capital apportioned is in the discretion of the master. But
when he apprehends disputes after his death, he seals up an
instrument of bequest, and deposits it with4be chief elder,
who after his death opens it and announces the will of the
deceased. In villages, a law prohibits any lessening of the
1. irafce-»iai. 2. Shitmhe-yuzuri. 3. Honsen-kayeshi. See Part
II, Chap. VI. i. The hesitation to allow this would be due to the
diminution of tax-producing rice-land caused by turning rice-land
into residence-land.
part v. property : civil customs. lOT
cultivated area ; so that a new house, if built ou foundation
stones and not merely by placing the timbers in holes,i can¬
not he erected without permission of the feudal official.
In lyo kuni, Uwa kori, in towns, the amount of the-
portion is in the discretion of the master. The permission
of the feudal official must be obtained. But in villages the
consent of the local officials is enough. In Onsen kori, the
permission of the feudal official is in all cases necessary.
The amount is in the discretion of the master. In towns an
increase in the number of families is considered undesirable ;
but in villages the opposite is the case, and the feudal official
sometimes gives "house-money " to build the new house.
Saikaido. In Chikuzen kuni, Sagara and Naka kori,
there is a saying " seven to three," but the share apportioned
seldom exceeds one-third of the whole. The additional
family is registered at the revision of the temple-register.
In Chikugo kuni, Mitsuma kori, no distribution is made
to daughters or younger sons except by will.
In Buzen kuni, Kiku kori, a report of the new family
must be made to the local officials. Great honor is attached
to having many branch-families. The amount of the portion
is determined by tbe master, but seldom exceeds one-third of
the estate. In towns a merchant often portions off a faith¬
ful employee, as already described, in the manner of a branch
family ; but the relation of master and servant is in form
preserved. In villages also a master sometimes portions off
a part of his estate to a domestic servant,^ who makes a
separate house, and is then called "name-child farmer." 3
He is bound to visit his patron's house ou certain days for
ever and to perform manual labor for him. The " original
farmers do not treat him as an eqilal, and in fact regard
1. Because the latter structure would be of a temporary charac¬
ter, not enduring. 2. Meshi (oider)-tsukai (employ). 3. Na-ko-hyak-
usho. Compare (Chapter I, Osumi kuni, 4. Hon (true, original,,
principal) ■ hyakiisho.
108
PRIVATE LAW IN OLD JAPAN :
him as ouly next above the outcasts.^ In Shimoge kuri, in
villages, the law forbids an advancement if the estate is of
10 kohl assessment or less, but the local officials, in case of
a violation, tacitly permit it, and the master of the new
family reports at the next revision of the temple-register.
In towns a branch family is established as a branch-business-
house.2 But for fear of the imposition of feudal charges no
report is made until the new business is going successfully.
In Usa kori, a branch family is said to be " within the
stock," 3 for, no matter how many are established, none are
registered as having separate domiciles. A law forbids the
apportionment of an estate less than 1^ cho in area; but the
law is not needed, for no one would think of dividing a
a smaller estate.
In Hizen kuni, Sonoki kori, no reports of the new
family is made until the next revision of the^mple-register ;
but the local officials are informed of the advancement at the
time it is made. In villages it often happens that the older
sons are established at the head of branch-families, while the
youngest son ^ succeeds to the headship of the main family.
In Takaku koi i, the amount of the portion is in the dis¬
cretion of the master. In villages it often happens, as above
related, that the youngest son succeeds to the headship and
the older sons start branch families. In Amakusa kori,
an advancement is not permitted if the estate is of less than
10 kohl assessment, but as in many cases the local officials
on their own responsibility acquiesce in the breach of this
rule, the practice is very confused.
In Hyuga kuni, Miyazaki and Kayu kori, no report is
made, but every 2 or 3 years the local o®cials make an
inspection and register the new masters in the temple-regis¬
ter. The amount of the advancement is determined by
consultation of the master and the relatives.
1. Yeta. 2. De mise. 3. Kahu (family-stock, guild-share, etc.)-
uehi. 4. Batsu (after, last)-«n« (male, son).
PART V. PROPERTY ; CIVIL CUSTOMS. 109
In Osumi kuni, So kari, the permission of the feudal
official is necessarj' before establishing a new family, and
its master has an entry made entered in the temple-register.
The amount of the advancement varies, but seldom exceeds
one-third of the estate.
In Iki kuni, Shida kori, the portion consists of house¬
hold utensils and a piece of residence-land, all cultivated
land being reserved for the eldest son on succeeding to the
headship of the main family. The master of the new family
obtains from the village a share of the publicly-distributed
land.i
In Tsushima kuni, Bhimoagata kori, permission of the
feudal official is required in creating a new family. The
amount of the advancement varies.
1. Kobun no taliata. See Chapter I, lUi hnni.
( 110 )
APPENDIX.
ALIENATION OF LAND IN RIKUZEN KUNI.'
Conceniimj Alienation.^ In the feudal days the sale of
land in this fief was not allowed. The object of this prohibi¬
tion was the protection of the poor and the prevention of
great accumulation of landed property by the rich. For the
same reason the transfer of land by way of mortgage or of
gift was prohibited, unless valid reasons existed. Severe as
was the restriction, it was justified by the abuses which
prevailed. The rich were constantly getting the land of the
poor by way of security, though the transaction was veiled
under some other name, and by means of these evasions of
the law the poor became still poorer and it was impossible
to relieve their distress. The following are some of the enact¬
ments passed. "No one may own more than 5 lacaninwHs
worth of land, unless he can prove that he owned it before
the passage of the law against alienation." (II. Gembun;
1737.) " Alienation of land is prohibited, except in the
following cases, after investigation: (1) Where a man
wishes to establish his younger brother as a farmer; (2)
where a man has received a great deal of iftudcw 3 and is
unable to cultivate it all himself; (3) Where a man's laborers
have left him and he is unable to cultivate his land; in such a
1. This is extracted from the "History of Taxation in Sendai
Fief," referred to in Part II, Appendix. 2. Taka-wake, taka-bun.
3. See Part II, Appendix.
PART V.—PROPERTY ; CIVIL CUSTOMS.
Ill
case the feudal official will examine into the reasons for their
leaving, and if it proves to have been by his own will and
not through the inducemeuts of others, the alienation will
not be permitted; (4) where a man wishes to divide his
residence-land into 2 or 4 parts and assign one or more to
some relative who is to live there. Except for extraordinary
reasons, no one may alienate his land other than as above."
(XII, Kwansei, 1 ; Feb., 1800). " The regulations in
regard to the alienation of land have recently been adminis¬
tered with much laxity, and hereafter they are to be strictly
observed, the district-magistrate and the deputies and other
officers examining the reasons carefully before permission is
granted." Those who are entitled to alienate may alienate
individual plots, but not an area measured by so and so
many feet." (IIIBunkwalO; Nov., 1806). " When a mort¬
gagor is unable to redeem, he may alienate his land to the
creditor, retaining the portion not needed to satisfy the debt.
But this will be permitted for the next two years only; and
after that only in case of extraordinary need, to be determined
by investigation." (Ill Bunkwa; 1809). " The regulations
as to alienation have resulted in much land lying waste,
since the poor are uuable to cultivate them, owing to
their lack of resources, and cannot sell them. The
deputies, district-magistrate, inspectors, and headmen are
to make an examination of these lands, and if it is really
impossible for the owner to cultivate them, he may be
allowed to sell or mortgage them. But great caution must
be exercised in giving such permission, for it is easy to be
deceived in such matters, and if such deceit comes to be
practiced with impunity, transfers will increase, and
finally the rich will become the owners of all the lands.
Moreover, under no condition is an alienation by measure¬
ment to be permitted." (VI Bunkwa; 1809). " There has
been and still is much land transferred by way of mortgage
and private gift. The reason is to be found in the poor
condition of the people, aud especially in the famines of 5
112
PRIVATE LAW IN OLD JAPAN :
aud 2 years ago, when the droughts deprived people of their
subsistence, and they were obliged to choose between violat¬
ing the law and dj'ing of hunger. Thej' naturally chose
the former, and raised money by mortgaging or selling their
property; so that being completely in the power of the
rich, the latter made very severe terms, aud will reap great
profits if we now give our consent to the alienations thus
made. The officials are therefore to investigate into the con¬
dition of the land under their j urisdiction, and, as it is desirable
to avoid permitting the alienation if possible, to see that the
debtors contrive in some way to redeem their land, and where
there are a number of claims against the same land, to
rewrite the various debts so that the debtor will be able to pay
Unless we take some such measures, land-proprietorship will
be in the greatest confusion, and it will be difficult to im¬
pose and collect the labor-services in the proper manner.
At the present time the poor are the nominal owners^ and
the rich the real owners,® and thus, as the taxes are assessed
on the nominal owners, the rich escape the burden, and as
the poor are unable to bear it, there is much delay and
default in paymeiit, and the feudal officials are embarrassed.
For 5 years from now alienation will be permitted as above."
(IX Tempo, 3; April, 1888).
1. Takamochi 2. Jimmhi.
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