法制史研究

The purpose of my paper is to introduce Kuga Katsunan's works on local autonomy and notables in modern Japan.
(1) Kuga Katsunan is well known as one of the conservative and nationalistic journalists. He made a lot of comments on social, political and economic reform in modern Japan. He also made a big contribution to the heated controversy on what local government should be. He was really a tough opponent to bureaucratism in Meiji era.
(2) After Meiji Restoration in 1868, Japanese leaders considered it necessary to establish a Western legal system as well as Western frame of government in order to achieve modernization. It was remarkable that within a few years Westernization became a national goal and was carried out rapidly even with a considerable degree of popular enthusiasm. But resistance on the part of conservative nationalists appeared in the late 19 century. The nationalists insisted that Japan should reconcil traditional elements with Westernization in order to keep national identity. Kuga Katsunan wrote in his newspaper that the form of local government is far less important than the spirit (Japanese tradition and custom) in which it is worked.
(3) Until the end of World War II there was a history of lack of autonomy in Japanese communities. As the result of postwar refom, autonomy was given to local administrative units down to the village level. But autonomy still remains weak in Japan. So I believe that Kuga Katsunan's view on local autonomy gives us some suggestions even today.

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Wakamatsu-Ken was established 1869 in the place of Aizu-Han, which was regarded as a principal rebel against the Mikado-government after the collapse of Shogun-government. Therefore the organisation of Wakamatsu-Ken was formed without taking over that of Aizu-Han.
In Wakamatsu-Ken, much reliance could not be placed on its criminal investigation section because of corrupt practices. Trial and investigation that had been confused since former period began to be separated in consequence.
The criminal procedure of Wakamatsu-Ken was fundamentally similar to that of Shogun-government. But some changes were effected in jurisdi-ction. Ministry of Criminal Affairs had jurisdiction of grave crimes, and changed the principle of jurisdiction among local governments (Fu, Han, Ken) from personal to territorial one. In each local government, however, various principles of jurisdiction were adopted. Wakamatsu-Ken also adopted personal and territorial principles concurrently.
It was Karikeiritsu that was one of the characteristic sources of criminal law in Wakamatsu-Ken. Karikeiritsu was the criminal code which was established as a rule within Ministry of Criminal Affairs. It was unexampled that a local government adopted Karikeiritsu.
The criminal laws and systems of Wakamatsu-Ken were formed not only under the direct control of Mikado-government, but also under its autonomous control.

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Hideyoshi issued the Edict of Banishment of Missionaries in 1587. The next year Nagasaki, which had been governed by the Jesuits since 1580, was brought under his direct control. Artisans, who believed in Christianity, were expelled from the town at the same time, Tanners and makers of leather goods were forced to establish Kawata-machi along the stream called Shishidoki-gawa.
The Tokugawa shogunate made concessions to the Jesuits in order to continue trading with the Portuguese, while the edict was issued by Ieyasu in 1612.
At Nagasaki, for instance, in 1614 all of the churches were destroyed by Nagasaki-bugyo (a official appointed by the Tokugawa Shogunate). Main Buddhist temples were permitted to be built there. Buddist temples accepted the people who were forced to apostatize.
Kawata-machi people were forced to find Christians who pretended to be Buddhists and they were forced to help the execution.
In 1621, however, Kawata-machi people refused this order when Heizo Suetsugu (Nagasaki -daikan), who was an apostate (a Korobi-Kirishitan), commanded them to detain a Christian because they were also Christians. It was gradually difficult to refuse the order.
In 1648, moreover, Kawata-machi people were forced to move to Nish-izaka where Christians were executed. So the chief priest of Daion-ji (a temple of Jodo-shu) offered a bribe to Nagasaki-bugyo and was allowed to move there.
The Tokugawa shogunate made use of Kawata-machi people as a means of a drastic anti-Christian policy.

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The paper studies the English Land Law period with Glanvill (called G hereafter) as a main objective, particularly restricting the theme within the Tenure by Knight Service.
The paper develops along the following procedures. First it is stated that Glanvill is the earliest law book of Common Law and it's situation in the English Legal History, and then comes the mention that an action on the Tenure by Knight Service at the Court Baron holds a 'seignorial' character through the analysis of Glanvill and Plea Rolls. Then unexpectedly the lord emerges in the spotlight, who was thought to take an impartial role in the turmoil between the demandant and the tenant around the Tenure by Knight Service. That is to say, the lord becomes a real party in the turmoil in question.
Then secondly through the study of a writ of right patent (G. XII, 3), an assize of novel disseisin (XIII, 33) etc, the transition of suits from the Lord and the Court Baron to the Crown and Royal Justice, to point out that at the background of this, there are writs conceived by the King's Court and the novel proof contained in it, i. e. Jury in the broad sense.
And then, it studies the nature of English Feudalism in Glanvill, i. e. the real sense of 'seignoral' character. That is to say, the status contract (homage) and its progressive character, services and incidents, and right of succession and alienation on the tenure of knight service (=feodum). And in conclusion, Common Law in its emerging period is the law which being established during the transfer process of the jurisdiction over real action from Count Baron to King's Court.
This conclusion, the author assumes, will be revealed through the coming studies of the relation between the Crown and the local especially local selfcontrol with the county court convention in the center. And also this remains to be solved henceforth together with the closer analysis of each real action such as an assize of novel disseisin, a writ of right, and a writ of entry sur disseisin etc.

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