Legal History Review
Online ISSN : 1883-5562
Print ISSN : 0441-2508
ISSN-L : 0441-2508
Volume 1971 , Issue 21
Showing 1-48 articles out of 48 articles from the selected issue
  • Yoshio Shigaki
    1971 Volume 1971 Issue 21 Pages 1-29,III
    Published: March 30, 1972
    Released: November 16, 2009
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    Le mésus est le préjudice causé aux fruits d'un héritage par quelquesuns des animaux sujets à la verge du pâtre. Ce terme est peu usité ailleurs qu'en Bourgogne.
    Au début de mon séjour à Dijon comme boursier du Gouvernement français (1968-1970), j'ai, en effet, choisi les problèmes relativement au mésus comme thème de sondage de la documentation directe pour faciliter les recherches sur les justices seigneuriales et me suis efforcé d'éclairer la notion d'élevage sous 1'Ancien Régime au point de vue de l'histoire à la fois judiciaire et rurale en utilisant principalement les arrêts du Parlement de Dijon. C'est parce que dans les régions du Nord de la Bourgogne le mésus causé par les animaux était toujours d'actualité pour la communauté villageoise. Ce qui signifie particulièrement que 1'élevage était considéré comme trés important pour la vie des paysans pauvres. Sur ce point, on pourrait dire que, pour les paysans, la prairie est une richesse plus importante que 1'héritage ensemencé.
    Mais 1'élevage, à cette époque-1à, n'était permisque par l'institution de la vaine pâture qui commençait généralement vers la fin du mois d'août. C'était formellement interdit au vain pâturier et même au seigneur d'envoyer les bestiaux à la prairie pendant le temps de la vive pâture qui commence à la Notre-Dame de mars sous peine d'amende soit du roi soit du seigneur. Donc, c'était juste à cette époque qu'on pouvait trouver beaucoup de mésusants pour nourrir leurs bestiaux à cause du manque de foin.
    Ainsi, cet article a pour but, à la fois, d'analyser, autant que possible, les arrêts concernant le mésus du Parlement de Dijon pour contribuer à l'histoire rurale française et de confirmer la nécessité absolue de dépouiller ces arrêts pour mieux achever 1'étude sur les justices seigneuriales en relation avec les institutions judiciaires sous l'Ancien Régime.
    Les arrêts du Parlement sont contrôlés et collectionés à la Bibliothèque Municipale de Dijon, à la Bibliothèque Universitaire de Dijon et aux Archives départementales de la Côte-d' Or.
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  • Shigeaki Ochi
    1971 Volume 1971 Issue 21 Pages 31-60,IV
    Published: March 30, 1972
    Released: November 16, 2009
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    In the Hsi-chin _??__??_ age, the official posts were consisted of chiu-p'inkuan _??__??__??_ or liu-nei _??__??_ which was upper class and liu-wai _??__??_ or chihchang which was lower class.
    Chiu-p'in-kuan-jen-fa _??__??__??__??__??_ had a purpose to appoint such men to the posts of the officers as were highly valued by the public opinion in the rural communities. In this case, the shih-jen _??__??_ were the core of the government official class, and they were in service as chiu-p'in-kuan through the above mentioned public opinion. And some of the hsiao-jen _??__??_ who were not permitted to join the group of the shih-jen had also got in the official world as chiu-p'in-kuan through the above mentioned public opinion.
    As time went on, Chiu-p'in-kuan-jen-fa began to place great importance on the officer's birth, so the distinction between the shih-jen and the hsiao-jen was made by the lineage, not by the personal character. According to the change, the relation between chiu-p'in-kuan and liu-nei also changed. The official posts which the hsiao-ien should serve came to be excepted from liu-nei even if they were in service as chiu-p'in-kuan. Only the official posts which the shih-jen should serve formed liu-nei.
    The discord between chiu-p'in-kuan and liu-nei was soon settled in two ways. One way was established on the situation of the shih-jen. In the Liang _??_ age only the shih-jen were permitted to become the government officers of chiu-p'in-kuan or liu-nei and liu-wai. Then the hsiao-jen were excluded from the government posts. The other was completed by the ruler's one-sided measure. In the Pei-chou _??__??_ age all government posts which corresponded to the former chiu-p'in-kuan were settled as liu-nei, and the lower government posts which corresponded to the former liu-wai were fixed as liu-wai as before. Such a foundmental structure about the government posts was taken over in the Sui _??_ age.
    In the ages of Chin, Sung _??_, Pei-wei _??__??_, Pei-chou, and Sui, the word "chihchung" meant liu-wai, which was ranked under chin-p'in-kuan. But it was not certain in the Nan-ch'i _??__??_, Liang, Ch'en _??_ and Pei-chi _??__??_ ages.
    Again, in the Pei-chao _??__??_ age the word "hsü" seemed to mean the low-class officer a little vaguely, but in the Sui age it came to mean liu-wai.
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  • Osamu Oba
    1971 Volume 1971 Issue 21 Pages 61-95,V
    Published: March 30, 1972
    Released: November 16, 2009
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    Soon after Tokugawa Yoshimune (_??__??__??__??_) acceded to Shogunate on 1st year of Kyoho (_??__??_), 1716, he began to be much interested in the study of law and collected rare books of Japanese classical codes.
    On the other hand, he collected chinese books. First, he gave permission to the import of some kind of prohibited books on christianity-the books of technology and natural sciences written by those Cathoric priests who came to China at the last stage of Ming (_??_) dynasty. He then bought many Chinese books of code and geography. Among these Chinese codes, he had the most interest in Ta-ch'ing-Hui-tien(_??__??__??__??_) The first copy in Japan of Ta-ch'ing-Hui-tien was brought into Nagasaki (_??__??_) in 5th year of Kyoho, and he bought it. He further ordered Chinese merchants to bring one more copy, and he got it two years later. He ordered Fukami Kyûdai-u (_??__??__??__??__??_) to translate Ta-ch'ing-Hui-tien into Japanese. Kyûdai-u was the son of Fukami Gentai (_??__??__??__??_), and was Yoriai Jusha (_??__??__??__??_) like his father Gentai. Gentai's grandfather was a Chinese named Ko-ju-Kaku (_??__??__??_ Kas-shou-chiao), and Gentai had worked at Nagasaki as an interpreter. He could speak good Chinese.
    Kyudai-u went to Nagasaki with the firstly imported copy and began to translate it, asking about the difficult passages to those recently arrived Chinese merchants there. He stayed at Nagasaki from December of 6th to Feburary of 12th year of Kyoho.
    During these years, while engaged in the translation, he helped Yoshimune to buy useful Chinese books, and helped to get from a Chinese answers to those questions about China which was given by Ogi-u Hokkei (_??__??__??__??_ or Soshichi _??__??_) at the command of Yoshimune. Shin cho tan ji (_??__??__??__??_) by Shu hai sho (_??__??__??_Zhû-pei-zhang) is one of records of those questions and answers. The Chinese who answered Kyudai-u's questions concerning Ta-ch'ing-Hui-tien was Son ho-sai (Sun Fu Zhai _??__??__??_). We can prove the fact by his application for a license of trade, which is recorded in Wakan kibun (_??__??__??__??_). He applied for a license of trade for the reason that he liked to get a Chinese specialist about laws and official service to understand the discription in Ta-ch'ing-Hui-tien, for he could not illustrate some particular parts of the book, because he was a merchant and had no experiance as a government official. He left Nagasaki in November of 11th, and came back from China in December of 12th of Kyoho with Sin sho-an (Chèn Xié an _??__??__??_).
    Sin sho-an, with his name (_??_) Bing (_??_), another name (_??_) Dèng wei (_??__??_) (Syoan itself being his pen-name (_??_)), had domicile in Hang chou(_??__??_). and stayed at Nagasaki until 16th of Kyoho with Son-ho-sai.
    On 15th year of Kyoho, Yoshimune ordered Sin sho an to correct any possible mistake in Ogiu Hokkei's (_??__??__??__??_) revised copy of Táng lü-su-i (_??__??__??__??_) which done in 10th of Kyoho. Sin pointed out some words and phrases to be corrected and gave in the margin of Ogiu's book his opinion of each of Ogiu's point of mistake just above where the mistake was seen, and further more made a separate note gathering all these adaptations. Ogiu's revised copy and Sin's note are both kept in the library of the Imperial Household Agency.
    Shin sho an brought back a copy of Táng lü-su-i to China and showed it to L-i ting i (_??__??__??_)who was the Minister of Justice (_??__??__??__??_). And Li-ting-i wrote a preface to this important classical code. At that time, Táng-lü-su-i was very rare in China, perhaps it was impossille to find its complete copy. And on 21th of Kyoho, Sin visited Nagasaki again and brought a copy of Li-ting-i's preface written by his own hand. We can also see it in the same Library of the Imperial Household Agency.
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  • Yoshio Shiono
    1971 Volume 1971 Issue 21 Pages 97-132,VIII
    Published: March 30, 1972
    Released: November 16, 2009
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    It is generally considered that at the beginning of the Baku-han regime the socalled Kokudaka system, under which rice had to be paid as landtax, promoted more and more arable lands to be turned into rice fields. Closer examination, however, reveals that the Todai (_??__??_) per one paddy field was to be raised in order to collect more taxes. The author, in this article, intends to analyze the character of the "Villages" under the Baku-han regime through the investigation of this Todai and its function in history.
    While it has so far been understood that the Todai meant an expression of rice output per one tan (_??_) at the time of the survey, the author has found out that the real rice output was far greater even at that time. The so-called 40 per-cent tax system was, it has also been proved, imposed on this real output. The Muradaka (_??__??_), the sum total of the Todai, was the greatest annual tax that the feudal lord could impose on the farmers, whether it could really be put into practice or not. The feudal lord's principle was "the more tax income, the better." Under such government of his, as a matter of course, the farmers of the "Villages" tried lawfully to leave the "Villages" and came to organize their own communities or living quarters.
    The Genroku-Period(_??__??__??__??_)involves the birth of a new period characterized by such actions or behaviours on the side of the farmers.
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  • Kodo Sakurai
    1971 Volume 1971 Issue 21 Pages 133-177,IX
    Published: March 30, 1972
    Released: November 16, 2009
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    The greater part of the Japanese peculiar Law System in the pre-historic era has not been made quite clear yet, because the scientific approach to the legal characters of Japanese ancient Empire, especially to the origin of her Royal Family, had been prohibited untill the end of the World War II, and besides, the feature of the Japanese peculiar law system, prior to the reception of Chinese Mother law, or Tang Empire's Law, was of no letter one.
    In this article, therefore the author intends to describe some of the characters of our pre-historic Legal System exactly, above all, those of the governmental administration.
    At first he explains some of the legal terms, peculiar to ancient tribes and states of Japan under the clan system, and secondly, the way of public notice of Territorial Domain and the mutual status of the ancient states. The article consists of 2 chapters.
    Chapter I: The author shows a general view, adding to the Sacred Fire Worship System, which had displayed a strong power of rule in our society, and shows especially, the cohesion of the ruling system of government, with Mountain Worship and other tribal one, and thirdly, he shows the way of indication by the governmental Authority in old era of unwritten laws.
    During this explanation, he tries to clarify especially significant features of the vestieges of ancient administration through pointing to the Miyo-ken Yama or Tomi-yama as the administrative and military Posts of Observation of borders on the ground of Divine Agreements between or among the parties concerned, accompanied with Ohira-yama, Divine Mountain of the proof of Peace Treaty, and moreover pointing to Kunimi-yama, Mikuni-yama. Takami-yama, Yahazu-yama and Oeboshi-yama etc.
    Chapter II: In accordance with the present institution of Japanese prefectures, the author analyzes and illustrates the mutual status of each of the local states for the neighbouring states. The order of the description of each prefecture is as follows:
    a) From Chishima, the kurile Islands, and Hokkaido, to the North-eastern Provinces ;
    b) From the Kanto districts, the main central part of the Japanese main island, Chubu districts, or the Central Japan, and Hokuriku districts, to the Kinki districts or the Osaka, kyoto area;
    c) The Chugoku and Shikoku districts;
    d) The Kyushu and Okinawa districts.
    Through these illustrations of every prefecture, the legal sense and terms of unwritten law system of our country in prehistoric era are explained partly, out of the remains of our past and native civilization nowadays disused.
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  • [in Japanese]
    1971 Volume 1971 Issue 21 Pages 179-200
    Published: March 30, 1972
    Released: November 16, 2009
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    1971 Volume 1971 Issue 21 Pages 201-204
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 205-206
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 207-209
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 209-213
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 213-217
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 217
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    1971 Volume 1971 Issue 21 Pages 217a-219
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 219-220
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    1971 Volume 1971 Issue 21 Pages 220-221
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    1971 Volume 1971 Issue 21 Pages 221-222
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    1971 Volume 1971 Issue 21 Pages 222-223
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    1971 Volume 1971 Issue 21 Pages 223-225
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    1971 Volume 1971 Issue 21 Pages 225-226
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    1971 Volume 1971 Issue 21 Pages 226
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    1971 Volume 1971 Issue 21 Pages 226a-228
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    1971 Volume 1971 Issue 21 Pages 228-230
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    1971 Volume 1971 Issue 21 Pages 230-231
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    1971 Volume 1971 Issue 21 Pages 231-233
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    1971 Volume 1971 Issue 21 Pages 233-236
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    1971 Volume 1971 Issue 21 Pages 236-239
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    1971 Volume 1971 Issue 21 Pages 239-241
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    1971 Volume 1971 Issue 21 Pages 241-242
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    1971 Volume 1971 Issue 21 Pages 242-243
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    1971 Volume 1971 Issue 21 Pages 243-244
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    1971 Volume 1971 Issue 21 Pages 244-245
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    1971 Volume 1971 Issue 21 Pages 245-246
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    1971 Volume 1971 Issue 21 Pages 246-247
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    1971 Volume 1971 Issue 21 Pages 247-248
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    1971 Volume 1971 Issue 21 Pages 248-250
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    1971 Volume 1971 Issue 21 Pages 250-251
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    1971 Volume 1971 Issue 21 Pages 251-252
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    1971 Volume 1971 Issue 21 Pages 253-255
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    1971 Volume 1971 Issue 21 Pages 255-256
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    1971 Volume 1971 Issue 21 Pages 256-258
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    1971 Volume 1971 Issue 21 Pages 258-261
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    1971 Volume 1971 Issue 21 Pages 261-263
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    1971 Volume 1971 Issue 21 Pages 263-266
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    1971 Volume 1971 Issue 21 Pages 266-267
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 267-269
    Published: March 30, 1972
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    1971 Volume 1971 Issue 21 Pages 269-270
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    1971 Volume 1971 Issue 21 Pages 270-272
    Published: March 30, 1972
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  • [in Japanese]
    1971 Volume 1971 Issue 21 Pages 272-274
    Published: March 30, 1972
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