Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1963, Issue 13
Displaying 1-50 of 71 articles from this issue
  • with regard to Kumamoto Clan as a Central Figure
    Hiroshi Kamada
    1963Volume 1963Issue 13 Pages 1-52,I
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    I Substantial aspects of succession.
    It is bilateral relation between feudal service and fief that distinguishes the family of Samurai from others. (1) As to service, we find an official post which corresponded to the rank of family, and a successor was placed in a little lower rank than his father's, and took up a lower post. (2) As to the right of daimyos vassals, they could not rule over their own fief even in the earliest period, but could only collect land-tax. But its direct collection system was also denied in middle period, and after that rice provision system came to be adopted. Their real income, of which the standard persentage was 40 per 100 koku (_??_), was 12-25 per 100 a year, and the rest was cut down according to the clan's financial policy.
    II Quantitative aspect of succession.
    In this clan, Serokusei (_??__??__??_), hereditary system which guaranteed inheritance of father's whole fief was carried out in Kan-ei (_??__??_) 10 (1633) and continued till Horeki (_??__??_) 6 (1756). After this year it was changed into Segensei(_??__??__??_), diminishing hereditary system which cut down some portions for relief of finance. But on the other hand, we cannot overlook that legal security was increased by legislation against insecurity through daimyo's arbitrariness and foot-soldiers (Kachi _??__??_) succession was newly permitted.
    III Succcessor and forms of succession.
    (1) On primogeniture : It was established in the Genroku (_??__??_) -Kyoho (_??__??_) ages (1687-1734) because of the following : (i) the expectability of fief-increase disappeared because land reclamation work was faced with limit, (ii) division of fief meant degradation of government post owing to gradation by quantity of fief, (iii) in the same ages the authority of the eldest son was established.(2) On adoption : Its purpose was defined on succession. Its necessity was absolute to vassals, but to daimyo was not so much, and so in early period it was prohibited as one of the vassal control policies. In accordance with command of Tokugawa central government (Bakuhu _??__??_), in every clan, we find there. were some principles such as (i) adoption must be made among the same rank, (ii) the priority of the same surname and the eldest line, (iii) the exclusion of woman's line.
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  • En-Fui Tai
    1963Volume 1963Issue 13 Pages 53-92,II
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    In the T'ang Lü, there are two fundamental principles concerning the punishment to which the governmental official who commits a crime is subject : (1) the offender can atone for the actual punishment, that is the principal punishment at the same time, (2) on the other hand, he should be subject to the accessory punishment. The punishment can be divided into two kinds, the principal and the accessory. The former includes such punishments as "minor blow" (_??_), "major blow" (_??_), "temporal banishment" (_??_), "perpetual banishment" (_??_) and "death" (_??_). The so-called "expulsion and dismissal" (_??__??_) belongs to the accessory punishment, being divided into "expulsion" (_??__??_) "bi-dismissal" (_??__??_), and "dismissal"(_??__??__??__??_). The official statuses of T'ang Dynasty in the application of T'ang Lü are divided into the "status by service" (_??__??__??_) and "status by merit" (_??__??_). The status by service in its broad sense includes the status by service in its narrow sense, the "status by honour" (_??__??_) and the "status of imperial guards" (_??__??_). The govenmental official, when sentenced to expulsion, is deprived of all the statuses he does hold and has held. He who is subject to bi-dismissal is deprived of two statuses, and he is subject to dismissal of one. In the dismissal, if the official holds two statuses, he only loses "status by service." The so-called "Kuan-Tang" (_??__??_) is by nature an atonement, that is, to relieve the official of the punishment to which he is subject, with the status he does hold and has held. In effect, it also has a function of disciplinary punishment which is an accessory one. The atonement in broad sense comprises the atonement with copper and that with status. The atonement in narrow sense is confined to that with copper.
    The official who is sentenced to the banishment, temporary or perpetual, can atone for it with his status in principle. Each official status, present or past, can be atoned for the temporal banishment of certain years in accordance with its height of grade. The perpetual banishment is regarded as tantamount to four years banishment. When the official status is not so high or much as to atone for the punishment to its full extent, the unatoned part should be atoned for with copper according to the provided rate, when the years of banishment sentenced is less than that which can be made with copper in stead of status.
    In the crime provided for the expulsion and dismissal, the punishment should be sentenced with both principal and accessory. The governmental official who comes under the crime above-said, the provision "Kuan-Tang" (_??__??_) can not be applied to, however slight the principal punishment may be: he should be subject to the accessory punishment of expulsion or dismissal. In this sense, "Kuan-Tang" is the common provision, and "expulsion-dismissal" (_??__??_) is the special one. As for the principal punishment, the offender can atone for with the statuses he does hold and has held. If the atonement with status can cover the punishment, there need not be atoned for with copper any more; if not enough the atonement with copper should be supplemented for the unatoned part.
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  • Kenji Iwata
    1963Volume 1963Issue 13 Pages 93-129,III
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    In Roman Law there were only two kinds of marriage settlement. First, the system of dos, secondly that of donatio propter nuptias. In this essay the author tried to make clear the general history of these systems and among the rest two problems : viz. the true meaning of the prohibition of donation among husband and wife, and that of the support among them.
    Now, many Japanese scholars in Roman Law have tried to explain the general history of Roman Civil Law. But the relations of the Roman family and the law-relations relating to it were left not so clearly explained.
    Dos is a kind of gift made to the part of husband on the Dart of the wife as her contribution towards expenses of the joint establishment of marriage.
    In early times, once dos was vested in husband, he had the absolute ownership of it for all purposes, subject to reversion to the donor of dos recepticia on dissolution of the marriage.
    In later times, husband owned dos only formally. But wife by actio rei uxoriae could reclaim it if husband died or the marriage ended in divorce, subject to husband's right to retain a portion of it for each child, and on the ground of wife's adultery. In those times, one of the true meanings of the prohibition of donation between husband and wife existed in the point that dos should be during marriage kept as untouched as possible. This opinion is a true key to the interpretation of the law of that prohibition of donation between them, I think.
    And, in Roman Law, in later times until Justinian, there was no legal duty of support of spouse on the part of either husband or wife, with the, exception of urgent cases of indigence. Usually, by a written instrument of dos (instrumentum dotale), it was shown expressly or impliedly, which side, e. g. either husband or wife's father, should support wife. Thus, in general, there was no legal duty of support on their part. In the exceptional cases of urgent indigence, it was true that a partner should support another, but this fact did not extend to other cases.
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  • Masajiro Takikawa
    1963Volume 1963Issue 13 Pages 130-143,IV
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    The existing parts of Egon-Ritsu, (_??__??__??_) which are contained, in both " Ritsusozanpen " (_??__??__??__??_) in " Gunshoruiju " (_??__??__??__??_) and the Ritsu (_??_) in " Kokushitaikei ", (_??__??__??__??_) lack three articles equivalent to those of T'ang-Egon-Ritsu (_??__??__??__??_) in old China. It has proved with certainty that among them, Article 22 found in T'ang-Egon-Ritsu, and been cut off by the compilers of Yoro-Ritsu. Articles 30 and 31 (the punishment laws concerning foreign trade) might be presumed to put into Yoro-Ritsu (_??__??__??_). As to the former parts of Yoro-Egon-Ritsu, which had been lost earlier, it is difficult to find out their traces. But, it is generally pointed out that the existing latter parts remain in their entirety.
    However, the author would like to insist on the following conclusion that even the several articles in the latter parts of Egon-Ritsu might have been cut off with intention or otherwise by failure in the process of transcribing them, not by the compilers themselves. It is not obvious whether these parts were relevant to both articles 30 and 31 or either one of them. Att any rate, judging from the very existence of the fragment of Article 31, which can be found in other sources, the author has no reason to doubt the fact that Article 31, corresponding to that of T'ang-Egon-Ritsu had been cut off, while they had been transcribing Egon-Ritsu in our country as times went on.
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  • Tomomasa Shirayama
    1963Volume 1963Issue 13 Pages 144-163,V
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    Since Japan was opened to foreign intercourse, common courtesy to foreigners demanded the consideration for the locality of banishment islands, , and the Tokugawa Bakuhu removed island prison colony to the more rest-ricted islands, far from the parts of Japan where foreigners were coming. In the second year of Bunkyu, the Bakuhu restricted the island prison colony in Ezo islands to fewer islands, and decided to send the rest of the prison colony away to Ezo, the northern island in Japan, now called Hokkaido, and banished them to Okushiri island which was situated at the northern end of Hokkaido.
    In addition to the island prison colony in Okushiri island, a yoseba, a kind of home for criminal coolie labourers, though it was smaller in scale than the yoseba at Tsukudashima in Edo, now called Tokyo, was established, in substitution for the island prison colony, at Usubetsu in the western part. of Ezo in the second year of Bunkyu, and in this yoseba were interned prostitutes, homeles wanderers, and monks and priests who commited adul-tery.
    This newly established yoseba in Ezo was not the place for intimidating the home coolie labourers to severe works as in the previous banishment island, but a disciplinary place, the object of which was to make them repent their sin and to exhort them to a virtuous life through the edifying measures of fishing around the island-coast.
    This yoseba fishery may be said to have killed two birds with one stone because it accomplished two aims, that is, the Hakodate Bugyo's aim of developing the resources of Ezo and the aim of edifying the men interned in the yoseba.
    The yoseba at Usubetsu, however, was abolished in the first year of Keio, and was transferred to the Okushiri banishment island, and the yoseba coolie labourers intermixed with the banished colony in that island. This, to my regret, resulted in the fact that intrinsic edificative nature of yoseba was lost by and by and a coercive tendency was strengthened.
    For all that, when we take the yoseba law as a kind of judicial reform in the island prison colony punishment law and exile punishment law, which form the important themes in the problems of criminal law of Japan, we can believe that one of the improvements of the criminal law in the Edo period was realized in the yoseba.
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  • Shozo Kanezashi
    1963Volume 1963Issue 13 Pages 164-180,VI
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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    With respect to Japan's shipping business in modern times, studies have been made in such ways that there are only few problems yet to be inves-tigated further regarding vessels, routes, ports and shipping systems and management. But, with respect to the main constituent of management, shipping operators, and practical workers, the crew, still further studies should be made. Above other things, without the thorough investigation of the human-relationship between operators and crew-men, practical under-takers of the business, the perfection of the study of shipping business can not be expected.
    The present writer tried to make some study on the contract of employ-ment of the crew with an intention of supplying a deficiency of the study mentioned above.
    The contract of employment of the crew in those times was the contract of service for supplying continual labor. The contract is divided into three kinds, whose subjects are respectively apprentice-sailors, sailors and captains.
    The conclusion of the contract of service was in reality the agreement of employees to the one-sided conditions offered by employers ; it was also attained through three due formalities, i. e., an interview, the delivery and receipt of advanced money, and drawing and delivery of the deed of contract.
    The contract consisted mainly of the kinds and the volume of labor and the amount of pay. These conditions of employment were again restricted largely by arrangements made among shipping operators and the routine of the shipping business world in those times. In the contract of service, employees were obliged to swear to perform their duties faithfully, and their responsibilities for the loss of property due to their negligence of service were described in details. The payment as the reward for their service was calculated according to the following four systems : the base-pay, the interest distribution, the Kiridashi, and the Homachi.
    As in other contracts of service, employees were at the mercy of their employers. They could be fired one-sidedly when they were judged to be guilty or ineligible from the point of view of employers alone, or even for personal reasons on the part of employers. And besides, in case employees violated the laws established by the feudal government, or arrangements made among employers, they were inflicted punishment and were incapable of being employed by other shipping operators.
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  • [in Japanese], [in Japanese], [in Japanese]
    1963Volume 1963Issue 13 Pages 181-222
    Published: March 30, 1963
    Released on J-STAGE: November 16, 2009
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  • [in Japanese], [in Japanese]
    1963Volume 1963Issue 13 Pages 222-240
    Published: March 30, 1963
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  • [in Japanese]
    1963Volume 1963Issue 13 Pages 241-243
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    1963Volume 1963Issue 13 Pages 244-245
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    1963Volume 1963Issue 13 Pages 245-246
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    1963Volume 1963Issue 13 Pages 246-249
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    1963Volume 1963Issue 13 Pages 249-251
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    1963Volume 1963Issue 13 Pages 251-252
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    1963Volume 1963Issue 13 Pages 252-254
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    1963Volume 1963Issue 13 Pages 254-255
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    1963Volume 1963Issue 13 Pages 255-257
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    1963Volume 1963Issue 13 Pages 257-258
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    1963Volume 1963Issue 13 Pages 258-259
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    1963Volume 1963Issue 13 Pages 260
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    1963Volume 1963Issue 13 Pages 260a-261
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    1963Volume 1963Issue 13 Pages 261-262
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    1963Volume 1963Issue 13 Pages 262-264
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    1963Volume 1963Issue 13 Pages 264-266
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    1963Volume 1963Issue 13 Pages 266
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    1963Volume 1963Issue 13 Pages 267-268
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    1963Volume 1963Issue 13 Pages 268-269
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    1963Volume 1963Issue 13 Pages 269-270
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    1963Volume 1963Issue 13 Pages 270
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    1963Volume 1963Issue 13 Pages 271-272
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    1963Volume 1963Issue 13 Pages 272-274
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    1963Volume 1963Issue 13 Pages 274-276
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    1963Volume 1963Issue 13 Pages 276
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    1963Volume 1963Issue 13 Pages 277-279
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    1963Volume 1963Issue 13 Pages 279
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    1963Volume 1963Issue 13 Pages 279a-280
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    1963Volume 1963Issue 13 Pages 280-281
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    1963Volume 1963Issue 13 Pages 281-282
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    1963Volume 1963Issue 13 Pages 282-283
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    1963Volume 1963Issue 13 Pages 283-284
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    1963Volume 1963Issue 13 Pages 284-285
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    1963Volume 1963Issue 13 Pages 285a-287
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    1963Volume 1963Issue 13 Pages 285
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    1963Volume 1963Issue 13 Pages 287a-289
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    1963Volume 1963Issue 13 Pages 287
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    1963Volume 1963Issue 13 Pages 289
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    1963Volume 1963Issue 13 Pages 289a-290
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    1963Volume 1963Issue 13 Pages 290-291
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    1963Volume 1963Issue 13 Pages 291-292
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    1963Volume 1963Issue 13 Pages 292-293
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