官民有区別をめぐる諸問題

宮崎県福島地方の里牧の帰属について

抄録

The purpose of this paper is to question the legitimacy of the appropriation of the common pasture in Miyazaki Prefecture by the Meiji Government. "Kan min yû kubun" (the classification of land) was an undertaking begun in 1871, through which the Meiji Government classified forests, pastures, and waste lands into private or government-owned land and continued until 1881. It was the beginning of the Land Tax Reform. By this appropriation 71 percent of all the forests and waste lands were incorporated into land owned by the Government.
Fukushima, located at the southernmost district of Miyazaki prefecture, was an exceptional case, where, some of the commons were taken up by the Government through "Kan min yû kubun". Then most of the rest were appropriated even after the Land Tax Reform. As a result, a total of 95 percent of the forests and waste lands in Fukushima were incorporated into land owned by the Government.
When the Law concerning the Returning of Government-owned Land to former owners (Koku-yû-tochi-shinrin-genya karei hô) was enacted in 1899, however, in Miyazaki prefecture only 1.5 percent of the requests were granted. All the land returned, inclusive of land brought back through administration litigations, amounted to no less than 6 percent.
One common was returned to its owners through an administration litigation as late as 1910, in which only half the villagers participated. Then the remaining one half of the villagers called for the affirmation of joint ownership on the rest of the land. But the Tokyo district court dismissed their claim in 1972.
I would like to question the above-mentioned decision of the Tokyo district court, and also to criticize three writings on which the decision was based.
First I woud like to mention the title of each writing and summarize its assertion, followed by my criticism.
I. "Tokugawa Jidai niokeru Yamanengu no Seishitsu" (The Nature of Yamanengu dues on common forests in the Tokugawa Period) by Kaoru Nakada in Kokkagakkaizasshi, Vol. 21, No. 11, 1907.
It asserted: Except the land which yielded "Honto Mononari" (main rice-tax), all forests and waste lands should be incorporated into government-owned land.
My criticism: Dr. Nakada interpreted only the letter of the Law concerning the Returning of Government-owned Land, but omitted to cite detailed instructions which the Department of Agriculture and Commerce had issued for the enforcement of the law. It is unreasonable to interpret the criteria of the classification of land of 1876 according to the administrative regulations of 1899.
II. Takanabe Han Maki Mondai no Kôsatsu (An Inquiry on Pastures in the Takanabe Han), by Mataji Takakura, c. 1964.
It asserted: Commons were owned by the Han, not by the villagers, and the Hanshu (lord) permitted the villagers to pasture in them.
My criticism: Mr. Takakura failed to cite any evidence showing the actual conditions of use of pastures in the Fukushima district, and misinterpreted many of the documents he cited.
III. Iriai no Kenkyû (The Study on Commons) by Michitaka Kainô, 1943.
It asserted: "Classification of land" was an administrative act by the Meiji Government to "create" arbitrarily (or tyrannically) ownership of land.
My criticism: Dr. Kainô neglected to recognize a delicate nuance in the wording of the criteria of the classification of land and failed to appreciate the fact that the Daishin-in (the Supreme Court before World War II in Japan), respecting old usages, had been in favor of the upholding of common ownership of villagers on the grounds of common usages which had been held for a long time.
It is my conclusion that the common pasture had features which should justly be called "private" common land, and so it should be incorporated into private land.