Ancestor-Worship and Japanese Law

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ANCESTOR- WORSHIP AND

JAPANESE LAW.

NOBUSHIGE HOZUMI. PROFESSOR OF

LAW

IN

THE IMPERIAL UNIVERSITY OF

TOICIQ

ALSO OF THE MIDDLE TEMPLE, UARISTER-AT-LAW.

TOKIO: Z. P. 14

TO

16

MARUYA

&

CO.,

LTD.

NiHONBASHI ToRI SANCHOME.

1901.

;

^/y.

^-t^ /

Kashiko-Dokoro oc-

and Shin-Den (#|t).

cupies the central position where the Divine Mirror is

placed,

and

is

dedicated to the worship of the First

Imperial Ancestor.

Kworei-Den stands

of

Kashlko-Dokoro and

of

all

dedicated to the worship

the Imperial Ancestors since

5c^), the

The

is

first

third

Emperor and

temple,

to the west

Jimmu Tenno

(#51!

the founder of the Empire.

Shinden,

stands to

Kashiko-Dokoro, and serves

to

honour

the all

east

of

the other

deities.

At

the present time, eleven " Great Festival

(:fe^B) are observed as National Holidays. with the exception of two, one of which

Emperor and

of the

New

the

other the

is

All these,

the birthday

Banquet of the

Year, relate to the worship of Imperial An-

cestors.

The

first

holiday

is

New

Year's

which the Emperor performs the ceremony of hai "

Days"

(H^^O

or

"

Worshipping

in

Day on "

Shiho-

Four Directions."

— This ceremony takes place in

the morning of the

—

i8

first

Palace at four o'clock

in the

by worshipping the

First

direction of the west,

and afterwards

the

He

day of the year.

Ancestor

Imperial

respective graves of the First

begins the

in

the direction of

in

Emperor Jimmu

Tenno, the Imperial father Komei Tenno (#nf55c^)

and the other

deities.

termination of this ceremony the

At the

and the Empress receive from the members of ministers, officials,

thus the

first

New

Emperor

Year's congratulations

the Imperial

family,

foreign

nobles and other dignitaries

;

and

ceremony of the court may be said

to

begin with the worship of Imperial Ancestors.

The Second January, and

is

takes

Festival called

"

Genshi Sai," (tC^S) meaning

" sacrifice to the origin."

On

this occasion the

or personally performs the sacra of the Sanctuary,

Imperial

Shin-nin (fH£)

in

attended by the

Household,

on the 3rd. of

place

and

the

all

and Chioku-nin

afternoon, the nobility and

all

of the lowest rank attend the

Emper-

the three temples

members high

of the

officials

of

{W]\i) rank.

In the

down

to those

officials

Sanctuary to worship

the three temples.

On

the 5th. of January

Festival which

or "

is

The Banquet

called

of the

occurs the third

National

Shinnen Yenkwai (llT^^^)

New

Year."

This

is

one of

""

— the two

—

19

Holidays which has no relation to

National

Ancestor- worship.

The

Festival

fourth

This

(#b;]5^J:^).

is

Day

Emperor and

is

observed on

The ceremonies on

Days being

other Festival

Komei Tenno-Sai

"

the anniversary of the death of

the August Father of the the 30th. of Januarj^

is

similar,

it is

this

and

unnecessary to

give any further description.

February nth, "

Kigen-Setsu

"

is

the date of the

(iflTCiiJ)

accession of the First

the Empire.

fifth

Festival called

or the anniversary

Emperor and

the foundation of

given

is

in

sixth Festival occurs

called " Shiunki

the Palace

and nobles.

to princes, foreign ministers, high officials

is

the

After the ceremonies are performed at

the Sanctuary, a grand banquet

The

of

on the 20th. of March, and

{^^M.M^)

Kworei-Sai"

or

"The

Spring Sacrifice to the Spirits of Imperial Ancestors." This ceremony of worship

is

also performed both in

Kworei-Den and Shin-Den by the Emperor attended by

The

worship

is

person

the high officials of state.

seventh

(#S^^^^) the

all

in

Festival

Day

"

Jimmu-Tenno-Sai

the 3rd. of April, which

of

Jimmu-Tenno,

for

is

this

''

devoted to

day

is

the

anniversary of the death of the First Emperor.

The

eighth Festival

{^^^M^)

or "

Day

is

The Autumnal

"

Shiuki Kworei Sai

Sacrifice to the Spirits

20 of Imperial Ancestors " which takes place on the 23rd.

Sacrifice "

The

October

of

17th.

This

Kan-name-Matsuri

and

"

consists in offering the

the

Emperor performs

On

With or

"

the

"

of

new

this occasion

This

crops

"The

"

Yo-hai

a

kind,

and offering

The

loth.

relic

"

or the " Distant at

ls6.

Sacrifice of the First Tribute" silk, is

of the ancient practice of select"

of the taxes in

on the graves of Imperial Ancestors.

it

Day,

Festival

the birthday of

th.e

also, the

Ancestor

Imperial

First

tlie

is

or

ceremoy

principal

ing the best portion of the " First Cargo

is

(#-^^)

Nino-sakino-Nusa," (J^mW) the offering of

made.

ninth

the cercm.onies at the Sanctuary,

besides the ceremony called

Worship

the

of

crop of the year to

first

Imperial Ancestor.

First

Spring

identical.

" Shin-sho-Sai "

called

is

date

the

is

"

the

to

and the ceremonies are nearly

Festival. "

corresponds

This

September.

of

H.M.

the

"

Tencho-Setsu," (^^gfi^)

Emperor and

is

one of the

two holidays which are not founded on the worship of Imperial Ancestors.

The nth. and "

last

Nii-Name-no-Matsuri

23rd. of of

new

will

November.

is

"Shin-sho-Sai" (iT#^) or

"

which

The

takes

chief feature

place is

on the

the offering

crops to the Imperial Ancestors, but this festival

be more

fully

dealt with

the accession of the

Emperor

when

I

come

to the throne.

to speak of

— the

All

national

Days

Festival

—

21

National flags representing

holidays.

Rising Sun are hung from every house their best

and the

attire,

holiday makers

;

go

while children

tlie

and

Emperor and

famous Speech on

explained to them by the

read and

is

women don

to their schools

Empress, and His Majesty's

Education

;

the

thronged with

are

streets

assemble before the portraits of the

observed as

annually

are

school masters.

From

tlie

foregoing,. it will be seen that the worship

of the Imperial Ancestors

national worship.

is the

THE WORSHIP OF CLAN-

§ 3.

ANCESTORS. The

population of Japan was originally considered to

have been divided into

tliree classes,

Shinbetsu

(#J5i])

the divine branch which consisted of the descendants

of

gods

;

Kwo-betsu

(^5iJ)

or the Imperial branch

which included the descendants of the Imperial

and Ban-betsu the

descendants of naturalized foreigners.

these three

each

clans, "

Uji

(H^iJ), or the foreign branch,

"

branches section

(R) or

"

was divided again having a

Kabane

"

(&).

distinctive

families,

comprising

Each into

of

many

clan-name

With regard

to the

"

—

22 original "

"

Kabane

there

came

birth

while

"

from

umi-chi

from

it

maintain that the

" izu "

"

or

(^M.)

"

" uchi "

of

claims

the

Some

scholars.

others derive

;"

(^)

used

times

denote

to

divergent views

"house"

As

Some

exist.

word was more

meaning of a "

kami

hone

signifying

ancestor

few are

namely ants

title

of honour

that

clan-

or

name

which remains

" corpse,"

;

also to the

is

it

late

is

equally

fact that

convey the

to

others derive

" god's

after

because

The

succeed.

" ;

agamaye

view of the

favour of applying

in

"

suggest

employed

usually

(##)

'

almost

clan-names,

(hfi^t-^) or "reverence" in the

of

Kabane," which was some-

"

word

blood

or " origin

(fij)

receive support in certain quarters {^^^iP). derivation of the

and

" Uji "

words

the

considerable divergence of opinions

is

among Japanese word

of

signification

bone,"

his its

death

from

word

bone of the

the

like

the

it

;

while not a

ordinary meaning,

a corpse that descend-

Professor

Kurita,

in

his

learned investigation into the subject of clans (K/;X#),

derived

from

it

" the stock

",

the

"

Kabune

"

(?Iffi)

"the root" or

word being employed

to designate

the root or stock from which descendants sprang.

have no

desire,

however, to involve myself

in

I

an

etymological discussion as to the original signification of these words

;

nor

is it

within the scope of this paper

— do

to

No

so.

—

23

matter which of these disputed deriva-

be the correct one, they one and

tions

idea of a certain

common

convey the

all

and consequently of

ancestor,

community of blood.

The word

common

titles

employed

in the

of time each

and hence

Small

employed to

was

or clan

arose

the

Each

number of subordinate

In the course

was subdivided division

Great clan

clan."

sometimes

also

sense of a clan -name.

" nji "

The word

itself.

usually

honour,

of

" 0-uji " (:^:K) the "

the

clan

more

was

which

deslrrnate

"

descendants of the same

and sometimes the

Kabane,"

clans,

denoted the clan-name, or the of the

appellation

ancestor, "

" uji "

"

and

" O-uji "

"

into smaller

of "uji"

Koiiji

example,

Nakatomi

"

a

and usually certain

bodies,

in

(4'EI)

order to

community

distinguish the sub-clans from the parent for

(/hR)

consisted of

words were added to great-clan names,

"

"

into

;

was a great-clan

name, born by the descendants of Ame-no Koyane-no

Mikoto

(Tc^MISoi}').

from which sprang

the

divisions " Nakatomi-no-Sakahlto," (^htSfSA) "

tomi-no-Miyatoko," (^lESji),

(pfE:^^)

Each is

the

ga

(

#

"

Naka-

Nakatomi-no-Oya"

etc.

clan has a clan -god or " Uji-gami "

eponym ) is

sub-

of that particular

the famous

"

community

Uji-gami

"

;

(Rijiiii)

thus,

who

Kasu-

of the Fujiwara clan

— (SI5R) which was one fluential clans in

—

24

of the largest and most In

Japan.

early times,

it

in-

seems

to

have been customary to render homage every month to the clan-god

man (^#^) and

festivals

;

at the

house of each individual clans-

but afterwards this

in

honour of

the

practice

declined,

were

clan-ancestor

and these were held three times a year

substituted,

All clansmen took part in the

the temple.

and records

still

exist

which show that

in

ceremony

;

court-officials

were permitted to set out on a journey to attend the sacra of the clan-god,

which were performed

temples far away from the obtaining leave

capital,

of absence.

in

without even

Sometimes

Irinds

the first

were

presented by the Emperors to the temples of clan-gods of high

order to mitigate the heavy expense

officials, in

The

of festivals.

on the occasion

offerings submitted

of festivals consisted usually of food, drink

and

clothing.

In order to give an idea of the nature of the 'oblations

on these occasions,

I will

translate literally a portion of

the prayers recited during the festival of the Fujiwara

clan-god

:

—

"

and the

offerings

presented are divine treasures a sword, a

hereby most respectfully in the

bow, a spear and a horse

light cloth, shining cloth, soft cloth

(hemp)

;

provinces

the ;

form of a mirror,

first-fruits

;

as vestments,

(silk),

course cloth

from the tributes of different

from among the things of the blue sea, the

— broad-fin (large

fish),

—

25

oarrow

(small fish),

fin

the deep and weeds of the shore of mountain and

and

up

tall

jars filled

like a

fered

field,

;

from among things

with sake and others things

offering, the peaceful offering

piled

These things are

prof-

sacra,

and the

full

as the grand offering,

he reverently prays that the Divine Spirits

were

also

;

all

by A, the master of the

peacefully."

of

sweet herbs and pungent herbs

range of mountains.

them

weeds

may

and

accept

Sometimes sacred music and dances

offered in addition to

the various

articles

enumerated above.

The word

" uji-gami "

or clan-god

is

now used

in

another sense, namely in the sense of the local tutelary

god or the patron-god of a man's This change

in the

use of the word " uji-gami " from

clan-god to local tutelary fact,

birthplace or domicile.

god

possibly arose from the

that in early days clansmen usually lived together

in the

same

locality,

and erected a temple

for the

worship of their ancestral eponyms, with the result that the clan-god

and the same

and the

deity.

local

patron-god meant one

But subsequently, the means of

communications gradually developed, and the members of the various clans began to disperse and to live different parts of the

uncommon

country.

Even now,

it

is

in

no

thing to find in the country villages the

greater part of the inhabitants bearing the

same family

name.

Moreover,

it

—

26

will

be shown presently that the

— Empire from being

administrative departments of the tribal

In

have gradually become all

local

and

terrilorial.

parts of the Empire, persons living within

certain localities are designated " uji-ko " (R-F) or the

They

children of the clan. after they are

god

born to the temple of the

for the first

(^#) and

carry their children soon

worship which

each

" uji-ko "

is

local patron-

" called " Miya-mairi

towards

contributes

the

maintenance of the temples and the expenses of the festivals

which are held

least twice

in

honour of

"

uji-gami

"

at

every year.

All these facts " uji-gami,"

combine to show that the worship of

or local patron-gods,

is

a relic of

the

worship of clan- ancestors.

§

4

THE WORSHIP OF FAMILYANCESTORS.

The next

point to be discussed

The

Ancestors of a House. tion of house-worship

is

the worship of the

occasions for the celebra-

may be

classed under three cate-

gories, namely, the Sacrifice-days, the Sacrifice-monlhs,

and the

Sacrifice-years.

chi"(.g'.B)

is

the

day

in

The

Sacrifice-day or "ki-ni-

each month corresponding to

the day of an ancestor's death.

For

instance,

if

the

— death occured on the

—

27

fifih

day of a month, the

would be celebrated on the

month corresponding

Thus,

ancestor's death. fifth

to

is

the day of the

the day and

month of an

if

the death occurred on the

"nen ki"

(^,li)

on the

00th

it

certain

in

day of the month of the

usually taking place

After

anniversaries. is

among

usually

looth

the

and the

year,

every 50th

celebrated

in

Shin-

loth, 20th, 30th, 40th, 50th,

ist, 5th,

anniversary

Among

month

an ancestor, the ceremony of worship

connection with toists

Sacrifice-year or

the day of the

is

years, ccrresponding to the

death of

The

of September.

fifth

year.

Buddhists, these anniversary ceremonies are

usually observed on the 27th, 33rd, 37tb, after

(PH)

of September, the " sho-tsuki " would be observed

on every

1

The

of every month.

fifth

Sacrifice-month or " sho-tsuki"

" kinichi"

ist,

3rd, 7th,

43rd, 47th,

50th,

13th, 17th, 23rd,

and looth year,

which period they are held every 50th year as

in

the case of the Shintoists,

In accordance with an ancient custom, sacrifices are

made and ceremonies dhists, after a

of worship performed

by Bud-

man's death, every sevenlh-day

until the

seventh seventh-day, that the date of death

;

is

the forty-ninth day from

tliese sacrifice

days being respecti-

vely designated the "first seventh-day" (|)]-t:B) "second

seventh-day

" (ll-t:H

)

and so on.

Amongst

Shintoists,

—

—

28

commemorated every

these Sacrifice-days are usually tenth day after the death,

and end with the

fiftieth oi

hundredth.

As

a rule, on "kinichi" or Sacrifice-days of each

month,

and the

members

part

in the

tsuki "

and

proceedings

priests

Shintoists,

and

relatives

of ancestors are invited to participate

both the Shinto and Buddhist

In

the ceremonies, but

officiate

among

among

their

own

Buddhists they sometimes take

place in the temples as well as in their

The

take

but on the occasion of " sho-

;

Shintoists the religious services are held in

houses, while

Buddhists,

relatives

" nenki," feasts are provided,

the worship.

religions,

and near

of the family

and descendants in

among

or hundredth day

fiftieth

only

among

seventh seventh-day

after the

own homes. somewhat

respective rituals of worship differ

in

the Shinto and Buddhist religions, and there are also

some

variations observable in

Buddhist fish,

sects,

and hemp

offered.

The

priests

who conduct

hands before the

altar,

nounces the prayer or

which

"

of

sake, rice,

for food

and drink,

for clothing,

of sakaki-tree and flowers

ches

their

silk

fruits,

of different

rites

Shinto offerings consist

game, vegetables and

and pieces of

the

are

frequently

the ceremony clap

and the

norito "

also

while bran-

chief priest pro-

(MM)

the words of

vary on different occasions, although, at the

— commencement

—

29

of the recital the spirits of the ancestors

are almost invariably informed that the head of the family,

members and

with other

assembled

for the

connections,

purpose of celebrating the particular

anniversary, reverently

offering

the

to

sacred soul

"lucks of sea and mountain" (umi-no-sachi

yama-no-sachi (llj;^^), meaning thereby etc), that

the house

is

in

dutifully submitted.

usually

may

protect

After

Tamagushi

to

which

is

" nigo-taye "

"

this,

each of the assembled of the house, takes

(:S$) or small branch of sakaki-tree,

attached a piece of paper representing

(|0^^) or

fine

With regard

places

cloth,

and then claps hands and

altar

spirit

and accept the offerings

family,

commencing with the head

a "

again as a sign of admiration. opinion of the late Professor is

Some

The

last

of this

named

Konakamura

ceremony,

all

the

consider

and others is

the

(/hff'Wff^S)

At

the

relatives

are

the most widely accepted explanation.

termination

on the

to the significance of the hand-clapping,

as a sign of /oy, others as an invocation,

and

it

makes obeisances.

three explanations have been given. it

game

fish,

The prayer

ends with the supplication that the

and watch over the

iM:^'^)

a peaceful condition, and that

the deiscendants are presperous.

party,

are

invited to a banquet, concerning which the late Profes-

sor Kurita in his treatise on the " Rituals of

Worship"

— writes

"

:-

The

relatives

—

30

assembled

partake

the

of

sacred sak6, which has been offered to the ancestor,

and

about his meritorious deeds, while each person

talk

present gives voice to a resolve not to degrade

way

the good

We

now

name

of the ancestor."

pass to the ceremonies of the Buddhists.

Tlieir offerings usually consist of tea, rice, fruits,

and flowers, either being

lotus.

artificial

cakes

or natural, the most usual

Fish and meat form

no part of the

because of the doctrine of abstinence from

sacrifice flesh,

any^

in

embodied

in

commandment not

Buddha's

Whether

any animate being.

the

to

kill

ceremony takes

place in the temple or in the house, priests officiate

and

When

recite sacred books.

it

is

performed

the

in

temple, sacred music generally accompanies the prayerrecitals.

The assembly

prostrate

themselves before the

in

turn

precedence being the same as worship.

The

feast

which

preceding evening does not

from that of the

is

in

burn altar,

the

order

of

the case of Shinto

held in the house on the

differ in its

Shintoists,

and

incense

general features

except that

the

food

consists of vegetables only.

In

addition

to

the

ceremonies performed on

the

three occasions referred to, there are three appointed

times

in

fices to

the course of a year,

when people

the spirits of ancestors both at

offer sacri-

home and

at

_

—

31

These are the weeks respectively

the graves.

of the

Spring and Autumnal equinox which are called gan," i^j^) and the Festival of or "

Bon

"

Urabon-ye

which continues from the 13th

In " Hig;in

July.

"

"

"

till

"

(^USt")

the i6th of

the family graves are visited, and

flowers and water offered upon the tombs.

In " Ura-

bon-ye," the Festival for the " Invitation of Spirits

On

held in every Buddhist's house. Bon-festival, markets

to the

or " Bon-ichi sale

"

Hi-

the day previous

many

in

is

" Kusaichi " ("^TfJ)

called

(Slfj) are held

"

places for the

On

of articles used in the decoration of altars.

the 14th of July, visits to family graves and offerings of flowers

and lanterns are made, and shelves are

erected in the houses called " Shoryo-dana" (l*SflI) or " the shelf for the spirits

"

which are decorated with

various kinds of vegetables, large lanterns called kiriko-

doro"

(-^fflJIf bS)

the 13th, the "mukai-bi" is

kindled

before

garden; and or

(jg'/C)

in

the

In the evening of

are also offered.

the

" or " Reception Fire

(^Sg-A)

door of the house or

in

"Farewell Fire"

house.

the

prayers, and

many

Priests

is

among

are

During

lighted.

invited

come and to

recite

offerings of rice, water, fruits, cakes

and vegetables are made on the curious

the

the evening of the i6th, "okuri-bi"

these four days, the spirits are supposed to stay

in

Spirit-shelf,

the offerings being

the most

oxen made of egg-

—

—

32

and horses fashioned from white melons, the

plants

being represented by

legs

Elaborate

hemp-stalks.

rules regulate the nature of the offerings of this festival

but

it is

The

unnecessary to dwell upon them here.

made on

extent of the sacrifices

the periodical services which

number

of priests

the occasion of

have described, and the

I

who conduct

the ceremony, as well

as the size and decorations of the ancestral graves vary in

accordance with the rank and fortune of the people.

One

of the most magnificent edifices in Japan

temple of Nikko

(H^) which

worship of lyeyasu (^j^),

gawa "

family.

There

Never say kekko

is

first

is

dedicated

Shogun

is

to

of the

the the

Toku-

a well-known popular saying

(splendid) until

you see Nikko."

In the early part of the

Tokugawa Shogunate, one

thousand priests took part

in

the ceremonies of wor-

ship on the occasions of" nenki" or the seventh-yearly anniversaries of the ancestors of Shogun,

one thousand sacred books every day,

and recited

until

they had

completed the recitation of ten thousand volumes ten days.

Of course

in

these festivals, which sometimes

took place two or three times a year, entailed great

expense to the treasury of the

state,

and also to the

Feudal Nobles who were compelled to make contributions 1

of rice and money.

8th century, however, a

At

the beginning of the

new law was

enacted,

by

— which the number of three hundred, the

~

33

was limited

priests

number

to

two or

of the sacred books to be

one thousand vokimes and the duration of

recited to

the festival to three or four days.

This reform

is

said

to

have reduced the expense to one-tenth of the origin-

al

amount.

This

demonstrate the impor-

fact helps to

tance attached to the worship of ancestors.

The worship festival

to

of ancestors

times mentioned.

Europe

is

not limited only to the

When

to pursue his studies,

out on a campaign,

some government

when an

a young student goes

when a

official

when

service, or

is

soldier sets

sent abroad on

a merchant under-

takes a long journey on business, he invariably visits

the graves of his ancestors in order to take leave of

them.

When

they live

in

places distant from their

ancestral graves, they very often in

order to

In

many

visit

the tombs and

make long

make

journies

sacrifices to

them.

Shintoist houses, the offerings of sak6 and

sakaki-tree

are

continually

made

;

and

in

Budhist

houses flowers are offerred everyday and incense are continually burnt in Butsudan.

In fact, the worship of

the spirits of ancestors forms a part of everyday-life of the people.

PART

III.

ANCESTOR-WORSHIP AND LAW.

I

THE GOVERNMENT.

I.

§.

have been

at

some

pains to describe the present

state of Ancestor- Worship in

Japan

that even now, the social

of the people

life

Now

influenced by the practice. subject of this paper

Worship

I

in

order to

come

is

show

greatly

the main

to

namely, the relation of Ancestor-

;

Law.

to Japanese

That the foundation of our government was the worship of ancestors goto

"

"

or

government

"

the

Temple

of the- Emperor.

" affairs

of " Seiji-hajime "

of

{WiM-\n)

his ministers the report of the

of 'Dai-jingu, the First Ancestor

Thus the business

of our

government

said to begin every year with matters relating

to worship. of

Matsuri-

on the 4th of January, consists of the

Emperor receiving from

may be

which means

"

Beginning of the Affairs of State," which

takes place

affairs of

"

The ceremony

worship." or the

shown by the word

is

" Sai-sei Itchi "

worship and government

(^85;—'i^) or " the unity "

is

an expression which

was very commonly used by old writers on government.

Upon

this

principle,

politics

even

after

and the

— ;

— of Chinese

introduction

—

35

civilization

ancient times,

in

and the great reform of the Taikwa

era (645

{:k.it)

649 A.D.) the Department of Divine Worship

was given

over

precedence

"

departments, even over

Council

which

of State

Da

all

other "

Jo Gvvan

(jjiFplfi'i')

government or the Great

was afterwards reorganized

and established as the Cabinet.

The most minute of worship are

to

regulations with respect to rituals

be found

in

old law-books such as

theTaiho Code {:k^^) and Yengi Shiki and

(®g^)

affairs

of state such as the promulgation

of the Constitution,

the declaration of war, the con-

all

clusion

great

and the revision of

of peace,

foreign powers

with

treaties

are usually reported to the

Temple

of

the First Imperial Ancestor at Ise, and sometimes to the tombs of other Imperial Ancestors. affairs of state-worship,

Department

of

which formerly belonged to the

Divine Worship, are

by bureaux of the

Although the

Home

now

administered

Department and the Imperial

Household, motions are brought forward every session of the Diet to the

government

Worship.

Thus,

to in

make

Autumn

almost

representation to

revive the Department of Divine

Japan,

as

it

was

in

China

great affairs of State are Worship and War," :A:^-S:J|i[ll^9^

in

"

The

{&^M:^

Commentaries of Sa on the Spring and

History of Confucius.)

_ The

THE CONSTITUTION.

2.

§.

-

36

Empire

present Constitution of the

of Japan

was promulgated by the Emperor on the February

1

1 1

th of

889, that day being the National Festival

of Kigensetsu or the anniversary of the foundation of

the Empire by the First

Ito (-^Stl^^), with

to

many

high

had been sent

officials,

Europe with the Imperial Commission

the constitutions of

elements of

to

examine

Western Countries, and most of

which find a place

the principles

(#^

framing of this Constitution, Marquis

In the

5c^).

Emperor Jimmu Tenno

component

the

in

have been

governments

constitutional

adopted, so far as they are consistent with the fund-

amental principles of the form of Imperial Government

which existed

from the beginning of the

That fundamental

principle

is

Article of the Constitution

be reigned over and

shall

clearly stated in the "

:

The Empire

governed by

Emperors unbroken for ages eternal" his

"

Commentaries

on

translated into English

writes "

the

Imperial posterity

Ancestors, ;

in

it

and

resides the

govern the State

".

Constitution"

From

of Japan

be

Ito

is

ist

of Japan

a line of

Marquis

by Baron Miyoji

The Sacred Throne

Empire.

Ito, in

(.S?i^^

^iSfiRJ^),

inheritedfrom

bequeathed

to

power

to reign over

and

this

will

is

to

it

be seen that

—

.

—

—

37

the foundation of the Constitution

Imperial Ancestors, forth

the

in

runs thus "

a

Preamble

definitely

is

Constitution

the

of

set

which

:

Having, by virtue of the glories of our Ancestors,

ascended the throne of a ages

for

eternal

;

with the

same

affectionate vigilance

their

moral and

intellectual

and hoping to maintain the prosperity and

progress of the State, in concert with with

Our beloved

desiring to promote their welfare

and give development to ;

that

have been favoured

that

benevolent care and

Our Ancestors, and

faculties

succession unbroken

lineal

remembering

subjects are the very

of

which

fact

the worship of

is

their support

We

Our people and

hereby promulgate

.

a

fundamental law of State to exhibit the principles, by

which

We

are to be guided in

point out to what

Our

Our

descendants.

their descendants are forever to

of sovereignty of the State,

conduct, and to

Our

conform.

We have

subjects

and

The rights

inherited frotn

Our

We shall bequeath them to Our descenNeither We nor they shall in future fail to

Ancestors and dants.

wield them, in accordance with the provisions of the Constitution hereby granted". In the course of the Imperial Speech on the occasion of the promulgation of the said that "

Constitution, His Majesty

The Imperial Fouuder

of

Our House, and

-

38

-

Our other Imperial Ancestors, by

the help and support

oi\h& forefathers oi Our subjects, of

Our Empire upon

That of

this

brilliant

Our country

a basis,

which

foundation

to last for ever.

is

achievement embellishes the annals

due

is

laid the

the glorious virtues of

to

Our

Sacred Imperial Ancestors, and to the loyalty and bravery of Our subjects, their love of their country

and

His Majesty further took an

their public spirit".

oath to the Imperial Ancestors at the Sanctuary of the Palace to observe the provisions of the fundamental

terms of the oath including the statements

law, the

that the

was the

constitution

"

exposition

of grand

precepts for the conduct of the government, bequeathed by

Iinperial

the

Our

Founder

Our House

of

other Imperial Ancestors'

Constitution

was intended

to

"

,

and

and that the

by

New

give clearness and dis-

tinctness to the instructions bequeathed

by the Imperial

Founder of Our House and by Our other Imperial Ancestors, of

in

consideration of the progressive tendency

the course of

in line

human

affairs,

and

in

order to keep

with the advance of civilization."

When

Jimniu Tenno founded the Empire, and as-

cended the throne, the ceremony of coronation consisted in the worship of the Hill of

Torimi

Yama

every Emperor there

is

Imperial Ancestors on the

(,^^Uj). a

At the accession

ceremony

ot

" called " Daijo-Sai

—

•

Oname-no-Matsuri," usually on the

"

(:fc#^) or

Day

Festival

—

39

of Shinsho-Sai

already

which the newly crowned Emperor fruits

of the year to his Ancestors.

Imperial

Law

House

"

says

first

referred to, in

the

offers

Article xi

The

first

of the

ceremonies

of

Coronation shall be performed and Daijo-Sai shall be held at Kyoto," that "

Article

Law

provides

upon the demise of the Emperor, the Imperial

heir shall

ascend the Throne, and

Devine Treasures of

spoken

of,

acquire the

shall

the Imperial Ancestors!'

Devine Treasures of

been

x of the same

consist

of

the

These

Mirror above

a sword and a precious stone which have

bequeathed by

the

Amaterasu O-mi Kami,

First

to her

Imperial

Ancestor,

descendant as symbols

of the Imperial power.

The

foregoing statement of the facts relating to the

Constitution

of the

Empire

that the sovereignty of Japan

will is

be

sufficient to

show

the heritage of Imperial

Ancestors and that the foundation of the Constitution is

Ancestor- worship.

§ I

3

THE PEOPLE

have already stated that the worship

Ancestors

is

our national worship.

They

.of Imperial

are worship-

ped, not only because they are the ancestors of our

-

-- 40

•

August Sovereign, but because they are the Sovereigns of our ancestors.

Formerly, as

I

have

said, the

of Japan were divided into three branches or

Bodies

(S^) and each branch was

"

Each

clans.

individual subject

people

"Three

divided into

had an "

uji "

many

or clan-

name, which was the mark of descent from a certain

Each

ancestor.

chief, called "

eldest

clan,

whether great or small, had

Uji-no-kami" (SJi)

who was

its

usually the

male descendant of the eponymous ancestor.

He was obeyed and honoured by

the clansmen as the

He was

representative of their

common

head of

their leader in the time of war,

and

their worship,

governor

their

in the

men were governed by clan,

who was

kami"

Small clans-

the "uji-no-kami" of the small

The Emperor was

them and

Imperial

time of peace.

the

himself subject to the "uji-no-kami" of

the great clan. ty over

ancestor.

all

the supreme authori-

the laws and proclamations of the

Government were transmitted

to the " uji-no-

of great clans who, in turn, transmitted

the " uji-no-kami

"

them

to

of the small clans and thus each clan

which was a body founded on the community of .

and worship, formed an administrative

blooa

division of the

country, corresponding to the present administrative divisions such as provinces, cities, towns, districts

Since the great Reform of the Taika Era

villages. (:fef-t),

and

in

spite

of the fact that the clan system of

— government continued

—

41

for a

long time afterward, the

basis of administrative division of the country gradually

changed from being /^rw;«a/ to being

Dr Hearn

very truly remarks

hold," the order of transition

"

in his

"

As

territorial.

Aryan House-

was from kinship

to

neighbourhood."

§

4

THE HOUSE

In the middle ages, clans began to gradually disinte-

grate and households took their place. after the

began

its

force

household, began

may be

mto

registration registration

form

illustrated

three epochs ;

the

individual,

unit

(p^0#f^) and

not the

of state.

by the history of our

ist,

the epoch of the

Law Clan-

of House-

epoch of the Person-

3rd, the

(##^iEBf R).

This

of this law can be

(ISR^BfR), 2nd, the epoch

al-registration

when

to

and that the

The development

of Registration. di\v\A^d.

was only

Restoration of 1868 that the house-system

to lose

transition

It

In

those

the clan formed the unit of state,

early it

days

was of the

utmost importance that each person's clan-name should

be kept sacred. certain clans could

As fill

only those

high

official

who belonged

to

positions or join the

Imperial body-guard, and as several other privileges

—

the

were often

particular clans, attempts

were enjoyed by

made

—

42

to forsake original clans and surreptitiously adopt

names of some

influential

" ordeal of hot

a stop to these abuses an

"Kuga

(WM) was

dachi"

In order to put

clans.

held

water

falsehood of

the

born by

clan-names

This ordeal consisted

who had assumed

false

suffer injury, whilst the innocent

In the 5th year of the

was founded

its

of the time.

people.

it

was claimed

clan-names would

would escape unhurt.

Sen Shizoku Jo" {MRtM

for the compilation of a clan-registry,

appointed which numbered

and a commission was amongst

or

Era of Tempei Hoji, (5c^S?)

(761 A.D.) an office called " ^jf)

the

truth

plunging the hand into hot

in

water before the temple of a god, and that those

Emperor

the

A.D.) to test

(415

or

obedience to an

in

Imperial proclamation in the 4th year of the

Inkyo iitW^M.)

"

'members the most distinguished scholars

The work

ever, not completed.

of the commission was,

how-

Since this time. Imperial pro-

clamations were frequently issued ordering

all

clans in

the Empire to send their genealogical records (x^^^R) to the government, in order that they might be includ-

ed

in

the Imperial archives.

those records the the

name

name

It

of the

of the ancestor from

was ordered, that first

in

ancestor and also

whom

the small clan

branched out should always be given and the records

—

—

43

noble clans had to be

of those claiming to belong to attested

by the signature of the head of the whole

Emperor Saga (l^iic^^)

In the reign of the

clan.

Konin

the 6th year of the Era of "

of Clan-names" or ed, a part of

which

Seishi is

Roku in

still

(?itl), "

" the

in

Register

(Wc-RM) was compil-

existence to-day.

This

Register consisted of 30 volumes and contained 1182 In that year, "

clan-names.

Kan Kei Jo "

the Bureau of Genealogical Investigation

The

lished.

(Hl.^^) or

was

estab-

preservation of genealogical records and

accuracy were considered to be matters of the

their

utmost importance

in

those times, and their loss or

forgery used to supply abundant material to the writers of novels

and dramas,

forgery of wills

just as the subject of the loss or

frequently resorted to by

is

Western

writers.

The

introduction of

"

Ko-seki

"

(^^) House-Regisyear of the Era

of

Taika (645 A.D.), when the great reform was made

in

try dates

back as

far

the

as

Although

the system of government.

was "

earlier in

It

'

introduction

its

historical

order

after that of the Clan-Registry, for the

of House-Registry has

period

its

date than the final compilation of the

Register of Clan-names,"

come

ist

down

must

system

continued from that remote

to the present time.

was only

in

the 31st

Year

of Meiji (1898 A.D.)

.

—

44

—

that the history of our law of registration

began

enter upon the third stage of the development.

which was promulgated

present law,

1898,

in

which replaced the previous law of 1871, the

name

House

Ho " (^^?i)

of " Koseki

still

or " the

to

The and

retains

Law

of

Registration," but the character of the law has

undergone a change necessitated by the progress of the social condition of the country, for

provides for

it

the registration of individual status or "Mibun-toki"

(#:3^ShB) as well as of house registration. It is

often asserted

selves with the early

family

was the

by

writers

who

phenomena

original unit

of society, that

It

to

me

was the

a

and that the

of state

aggregation of families formed a clan.

seems

concern them-

But

this

view

to reverse the real order of development.

was

clan which

which formed the unit of

recognised by law and

first

The

society.

family was

included in the clan but did not yet possess separate existence in the eyes of the law.

It

gradual disintegration of the clan,

house came to the of society.

fore,

was only by the

tliat

the family or

to

form the unit

and began

Thus, constituent element of

becomes smaller and

smaller, until

it

a

society

divides itself into

an atom or individual.

From what ment

has been stated relative to the develop-

of the law of registration,

it

will

be seen that

— Japan

is

now

in

—

45

Until recently, a

a state of transition.

house was a corporation and a legal unit of the

state.

But ever since the Restoration of 1868, the family

system has gradually decayed, house

Formerly, fill

entirely

lias

an

lost

corporate

its

character.

was the head of the family only who could

it

official

serve in the army, and

position,

But with the reform

property.

the

present,

at

until,

in

hold

system

the

of

government, the members of a house were permitted to

fill

public positions

and with the reform of the law

of military conscription, both liable

to military duties

commerce and industry

;

head and members are

while with the progress of

the younger

members

of the

house were entitled to hold public bonds, stocks and shares, which the law

recognises as their separate

Although the house has thus

property.

rate existence

in the

theless, maintains its

Ihe new

now

Civil

eyes of the law,

lost its corpoit

still,

never-

character as the unit of society.

Code which came

1898, allows

members

establish a

new "branch-house"'

to secede

operation

into

in

from a household and with the consent of

the head of the family (Art. 743 Civil Code)

;

for the

law recognises the tendency of social progress towards individualism, but, at the

same

time,

it

makes

provision for the continuity of the house. is

the

seat

of Ancestor-worship,

and,

careful

The house

therefore^

the,/

—

46

—

discontinuance of the house implies the discontinuance of worship.

It

many

contains

the house.

is

reason that the Civil Code

for that

against the discontinuance of

strict rules

may

has established a new house

another house. of a house hy

A

A

"

Article 762 provides that

abolish

it

and enter

who has become

person

the head

cannot abolish such

succession

who

person

house,

except where permission to do so has been obtained

from a Court of law

purpose of succession

for the

or the re-establishment

the

of,

main branch of the

house, or for any other just cause."

the

cited,

If

with the second clause of the

first

we

at

once see that

purpose of the continuance

who

establish

we compare article

this provision

the

to,

above

made

is

for

Those

of worship.

new houses have no house-ancestor to wor-

ship and therefore they are at liberty, abolish such houses,

and

to

if

so disposed, to

become members

of other

houses by adoption, marriage or any other arrangement.

But with those

house-headship, the

case

who have is

They

different.

trusted with the duty of worship which

it is

the greatest act of impiety to discontinue.

belong to branch houses, they

may

to the

succeeded

are en-

considered

But

abolish

if

they

them

in

order to continue or revive the worship of the ancestors of the -main houses

sprung.

from which their

own have

— For the same reason, that "

The

house

is

not permitted

new

provided

is

it

A

and to him

Article

legal presumptive heir falls

or

where the neces-

one, except in cases

main branch of the is

heres necessarius,

the duty of succeeding to the headship

of his house and of upholding the continuity of ship.

744

another house,

enter

to

sity arises for the succession to the

house."

in

presumptive heir to the headship of a

leo^al

estabh'sh a

—

47

its

wor-

For that reason, he or she cannot become a

member

of another house

by marriage, adoption

any other cause, nor found a house of

his or her

or

own,

except where the more important duty of preserving the continuity of the worship of the main branch of the

house renders such a step hardships arise from instance, a male

tlie

necessary.

Sometimes

operation of this rule.

For

head of a household or a male legal

presumptive heir of a house cannot marry the only

daughter of the head of another house, owing to the fact

that she

is

headship of the alternative

is

the legal presumptive heiress to the latter

house.

In such cases the only

to disinherit the heiress according to the

provision of the Code, which requires the

judgment of

a Court of law (Art. 975), and thus enabling her to

enter another house

by marriage.

-

Marriage

Is

MARRIAGE.

5-

§.

an institution based upon human nature

but the original cause of

be sought

for

its

protection, because

it

began

make

to

was regarded

perpetuating the worship of ancestors. the

old

law,

perpetuate the

union

it

was

for

obtaining a successor to maintain It

descendants should

means the

to

was due

not

rules

for

as a -means of

family should

and marriage represented

man and woman

Ancestor-worship.

state

In the eyes of a

essential that

itself for ever,

of

The

Ancestor-worship.

in

;

by law must

recognition

its

wedlock, and

recognised

-

48

the

purpose of

the

continuity of

to the

dead that the

become

extinct.

It

was a

an end, and that end was the continuity of

sacra.

It

was considered one of the greatest

misfortunes that could befall

man, that he should-

a

die without leaving a son to perpetuate the worship of his ancestors

and himself

are three things posterity

is

In passing,

Mencius (S-?) says. "There

which are

the greatest of them." it

may

and to have no

unfilial,

be noted that

tlie

^^M'^W\%.%'}z) other two

unfilial

things are the encouragement of parents in unrighteousness,

age.

and

failure to

To be

succour parents

without posterity

the other two, because

it

is

is

in

poverty and old

the greater fault than

an offence against the

—

49

—

whole line of ancestors, and terminates the sacrifice to In the "

them.

Book

{^U)

of Filial Piety"

Confucius

says " There are three thousand acts which are punish-

ed by the Five Punishments, but no crime than

impiety."

filial

greatest

{^m^m^^fm^WzH^T-^)

without male

fore, to die

man

that a

sin

greater

is

There-

was regarded as the

issue

could

commit against the

Chinese philosophy, which has been

doctrine of the

our country for more than one thousand

taught

in

years.

The reason

of this doctrine

The

obvious.

is

posthumous happiness of the ancestors of a family

depended on the proper performance of the family sacra.

It

was, therefore, the duty of every head of a

house to marry

for the

purpose of avoiding the calamity

of the family sacra becoming extinct.

was the

It

tablished principle of our customary law, which

tained with

some

(Art. 750), that a

es-

is

main-

Civil

Code

modifications in the

new

member

must obtain the

of a house

consent of the head of the family for his or her marriage.

The House-law

Code

also

"

Ko-riyo

required the

"

consent

{^^) of

of the Taiho

grand

parents,

parents and other relatives before the marriage could

According to Article

be celebrated. Civil

Code,

if

a

member

"jSo of the

new

of a house marries without the

consent of the head of the family, the latter may, within

one year from the day

of the" marriage,

exclude him or

—

—

50

her from the house-hold, or

he or she has entered

if

another house by the marriage, forbid his or her return to

it

consent of provides

the

parents, "

:

clause

first

But

completed fifth

rule

this

his thirtieth

year."

does not apply

The consequences

the consent of the

who

year or the

772

child

must

are in the

same

if

man

the

woman

has

her twenty-

of a marriage without

parents are stated in Articles 783

The parent may make

and 784.

the

to

of Article

For contracting a marriage, a

obtain the consent of the parents house.

As

of marriage.

case of dissolution

in

application

to

a

Court of law for the annulment of the marriage within the period of six months from the

she

first

became acquainted

marriage, or within two

with

when he

time the

fact

years from the date

of of

or

the its

registration.

The reason of the family

another

is,

for requiring

that

member

is

it,

for

unless a

consent of the head

by the marriage of a male member*

added

to the household

;

or in case

member, one member

of marriage of a female to

the

is

lost

the wife enters the house of her husband,

man

marries a female head of a family, or

an adopted son marries the daughter of the persons

who have adopted

him,

in

which cases the husband

enters the house of his wife according to the provision of Article 788.

In

all

cases,

marriage brings about a

_ change

in the

51

—

household, and this

is

the reason assigned

at present for the existence of the rule

relating to the

permission of the heads of families.

But formerly, there was another, and no doubt more

As marriage was regarded

important, reason.

means

of obtaining a successor

as the

the sacra of the

to

house, the head of the house must guard against any

improper

The

alliance,

consent of the parents

also required

the parents,

by the new

who have

may be

heart,

Civil

the

in

same house

is

Code, chiefly because

the interest of their children at

upon

relied

good advice

to proffer

and to guard against any rash or unsuitable union and

because

them from the

the

But here, as

children.

consent of a house-head,

the

the rule

At

of

reverence which

is

different

a son's marriage

cessor to

That

it

due

;

to

the case of

original its

cause of retention.

consent was required, because

was the means of obtaining a suc-

continue

his

sacra

daughter, she passed out

and was

in

from the reason of

the parents'

first,

the

is

;

and

of the

in

of a

case of a

original household

initiated into the cult of her

was the supreme duty

the

husband's house.

man

to

marry

the purpose of obtaining the continuator of sacra,

be gathered from the Dialogue of Mencius

(:S-f-).

for

may

A

famous Chinese Emperor Shun (#), who was noted

— for

his

filial

piety,

—

52

married

obtaining

without

knew

consent of his parents, for he

that they

the

would

not countenance any union, and he could not marry if

he had asked

ing the

Mencius,

for their consent. "

act, said

in justify-

Shun married without informing

his

parents because of his anxiety lest he should have no posterity.

Superior

men

consider that his action under

the circumstances, should be

rule

he had

which existed before the Restoration

1868 clearly shows

of

if

myf^mm^^M^m=f&.nm^^)

informed them."

Another

regarded as

in

regarded by our old law. or military class

what

light

Formely,

marriage was

among

only the eldest son

"

"

Samurai

who was

the

presumptive heir to the house-headship, or his eldest son

who would become

the presumptive heir after him,

was allowed to contract marriage, and the younger sons could not lawfully

marry.

It

was the duty

every house-head, and his presumptive

hei-r

to

ot

marry

;

but there was no such necessity for the younger sons

who had no apparent hope of "

a

household.

Heyazumi

"

of ever

becoming the head

They were consequently

(^ISMfi) or "

called

dwellers in apartments."

Although Chinese laws and philosophy were troduced into

Japan

in

ancient times,

the

in-

famous

Chinese law prohibiting marriage between person bearing the same clan-name (IpJtt^K) was not adopted

in

.

—

53

—

those of our old Codes which were modelled upon the

Chinese digest.

The reason

of this remarkable devia-

from the ordinary course seems to be

tion

this

;

that

an ancestor only receives the sacra of his blood descendants,

(M^;^^) and

the

belonging to the same

marriage between

clan,

that

is

persons

between persons

descended from the same ancestor, was, perhaps, rather

be favoured than the

to

another the

alliance

a

person of

the marriage would be of

clan, for the issue of

unmixed blood of the

with

ancestor.

This exception to

the general adoption of the Chinese laws appears the

more remarkable, by reason

of the fact that the pro-

hibition against the adoption of a child clan,

which has existed and

was included

in

our old

still

from a different

exists in

Chinese law

Codes, almost without any

modification.

§

In the

6.

DIVORCE.

House-Law (Ko-riyo)

enumerated the famous Seven (-btH^^TfO.

The Code

of the Taiho

Code

is

Grounds of Divorce

says " For abandoning a wife,

there must be one of the following seven gr-ounds of divorce." 1

Sterility.

2.

Adultery.

—

54

—

3-

Disobedience to father-in-law or mother-in-law.

4.

Loquacity.

5.

Larceny.

6.

Jealousy.

7.

Bad

If

disease.

any of these grounds

may be

exist, the wife

aban-

doned, the husband signing the necessary deed which

must be countersigned by the nearest ascendants. any of these persons cannot

thumb may be made

place

in

mark

the

write,

If

of the

The

of signature.

enumeration of the causes of divorce shows plainly that

the

object

worship.

of marriage was the perJ>etuation of

The reason

of sterility being

made

the

first

ground of 'divorce scarcely needs explanation.

The

commentators of the Taiho Code say that

here

sterility

does not mean actual barrenness, but the failure of

male

The marriage being

issue.

contracted

special object,' and that object failing,

to dissolve the union.

A

man

it

was, in

moral obligation to his ancestors to do Adultery of divorce

;

is

fact,

a

justifiable

under a

so.

recognised by most nations as a ground

but the reasons of

considerably in ancient and the eyes of the Taiho Code,

of the act

was

for

itself,

it

its

recognition

modern

differ

legislations.

In

was not the immorality

but rather the apprehended danger

of the confusion of blood,

whereby a person not

in

— reality related

55

—

the ancestor might succeed to the

to

worship.

The

Code may be

Taiho

was the

a

similar

cause.

The

diseases seems to have been

some

known, and the

polluted

to

attributed

hereditary nature of early

the

of the grounds mentioned in

last

fear of ancestor's blood

becoming

chief cause of incurable disease being

recognised as a ground of divorce.

According to the new divorce are recognised

;

Civil

Code, two kinds of

Consensual and

Judicial, the

former being effected by the arrangement of parties, while the latter

granted by law on various grounds

is

of the Code.

The

majority of the grounds mentioned in the Taiho

Code

which are specified

do not

in

Article 813

a place in the

find

new Code, and bigamy,

adultery, desertion, cruelty or gross insult, tion to theft,

punishments

for certain offences

condemna-

such as forgery,

embezzlement, sexual immorality, disappearance

from residence specified.

etc.

are the principal grounds of divorce

Besides the grounds already mentioned, a

judicial divorce

is

allowed in a case in which an adopted

son has married the daughter of the persons

adopted him, and they, adoption.

for

Under such

some

who have

reason, break off the

circumstances,

the

man

is

entitled to dissolve the marriage.

From

the

comparison of the grounds of divorce

mentioned the

new

the Taiho

in

Code,

Civil

it

56

-

Code and those enumerated will

in

be seen that the law of

divorce has undergone a great change, and the present

law has only a slight connection with Ancestor worship, except the

when

I

ground, which, as

last

come

to

will

be explained

speak of adption, derives

origin

its

from Ancestor-worship.

§

Perhaps relation clearly

male

7.

ADOPTION.

no department of jurisprudence

in

between

Ancestor-worship

shown than

in

the

and

is

more

law

law of adoption.

the

Failing

adoption was the most general method of

issue,

providing for the continuity of Ancestor- worship.

It

was, as Fustel de Coulanges says, " a final resource to

escape the

much dreaded

of a worship."

misfortune of the extinction

Death without an

heir was, as

said above, considered to be the greatest

So, in case

of the

failure

of male

filial

issue,

it

I

have

impiety.

was con-

sidered the duty of a house-head to acquire a son

by

adoption.

Many

of

the

European

legislations

which allow

adoption limit the age of the adaptor, the majority of

them, such as French,

Italian,

Austrian and

German

—

—

57

codes, fixing the lowest limit of an adoptor's age at

The House Law

fifty.

that a person "

among

Code provides

of our Taiho

having no child " may adopt one from

his relatives

within the fourth degree of kinship,

whose age does not exceed

which might have

that

been attained by a son of the adoptor's own body. According to some commentators of the Code

no

child "

"

having

here means that the adoptive father should

have reached the age of sixty years or tbe adoptive

mother in

having male

fifty years, without

Now,

issue.

regard to limiting the age of an adoptor, there

is

an

apparent agreement between modern European legislations

and our ancient Code

the object

;

but

of that limitation,

resemblance

is

for

the

there

is

look closely into

shall

consolation

no necessity

find

that the

European laws allow

marriage, and as long as there issue,

we

we

only superficial.

adoption chiefly

if

is

for

of

a

childless

a hope of having allowing

adoption.

But our old Code looked at the matter from another point of view. issue of blood,

As long that

is

as

any hope of having a male

the

direct

descendant of his

ancestor existed, the head of a house should not permit a person of

more

distant

successor to the sacra.

relationship

to

become the

This rule took another form

during the Shogunate of the

Tokugawa

family.

In

order to prevent the extinction of a house by the

-

-

58

sudden death of a house-head who had no son, any

man

A

adopt a son. ,

and

fifty

bed

;

or

"

was allowed

over the age of seventeen years

to

person between the ages of seventeen

years could even adopt a son on his death-

and

event was called " Kiu-yoshi

this

quick adoption."

But

he

if

failed

"

in his

{^M-^) duty of

providing for the continuity of his house until after he

had attained the age of

he was threatened with

fifty,

the dreadful consequence of the extinction of his house in the

event of

" quick adoption

of

If

fifty.

his "

dying

without male issue, for

was not permissible

he did not provide

the ancestor's sacra early in the hope of male

issue,

he

for

the age

the succession to

even

life,

after

if

he

still

had

incurred the risk of the

extinction of his house and the forfeiture of his feudal

The

property.

prohibition

of death-bed

adoption

not in force to-day, and has not, therefore, been corporated

in the

On

new Code.

is

in-

the contrary. Article

848 allows a person to make an adoption even by testament.

The

old and the

new law seem on

this

point to contradict each other, but the spirit of both

the same.

They both had

for their object sists

in

this,

and the

that

the

is

the perpetuation of house

difference

between them con-

one wished to make people

provide for the succession

early in

life

by attaching

severe penalties to the neglect of that precaution, while

— other

the

desires

—

59

chance of a house-

avoid the

to

by

worship becoming extinct

freely

countenancing

adoption.

With regard tor,

both the laws of the

new

Code agree

Civil

I

have

Tokugawa Shogunate and our in

giving the widest scope to

The Taiho Code

adoption. as

to the lower limit of the age of the adap-

said,

fixed the limit at sixty,

but the laws of the

Tokugawa Shoguns

allowed and encouraged any childless person over the

age of seventeen, and even, by special permission, heads of houses under that age, to adopt a successor Article

who

837 of the new

Civil

and

Code allows any person

has attained his majority to adopt another person.

European laws allow adoption only it is

;

in old age,

because

intended for the consolation of childless marriages,

while Japanese people,

in

law countenances adoption by young

order that the

possibility

worship

a

of

becoming extinct may be obviated.

As

to the difference of ages

the adopter and the adopted, tions, following the

which must exist between

many European

rule of the

Eoman

law

"

legisla-

adoptio

naturam imitatur," requires that the adopter should be older than the adopted at least

For

instance,

that there years,

by the age

German, Austrian and

shall

be

at

and the French

least the Civil

Code

Italian

of puberty.

laws require

difference of eighteen

requires the difference

—

6o

years between

oijifteett

Japanese law does not

— But

them.

this respect,

in

follow the principle of

strictly

the imitation of nature, in order to give wider freedom

and greater security

to adoption

The Taiho Code

of worship.

and the adopted should be "

{1^W%%^^)

for the continuance

required that the adopter to

fit

be father and son

and the commentators of the Code

;

was

that as a person over fifteen years of age to

marry

in

accordance with that Code,

and son

father

"

means

say,

qualified

to

fit

be

that there should exist at least

But

the difference oi fifteen years.

followed in later days.

"

"

rule

this

was not

Tokugawa

In the time of the

Shogunate, the adopter was only required to be older than the adopted, but frequent deviations were to this

by

rule

allowing a

special

permission,

notably a decree

house-head under seventeen years of age

to arrange an adoption,

and another by which even an

older person might be adopted as a son. of the

new

Civil

Code provides

that a

Article

any person who

it

younger than

to the age of the adopted,

our law.

in

is

Even a baby

838

person cannot

may

adopt one older than himself, although he

As

made

adopt

himself.

no

limit

can be

has been fixed adopted,

and

even frequently happens that two families agree to

adopt an expected child as soon as

843

of

the

Civil

Code runs

as

it is

born.

follows

:

—

Article " If

the

person to be adopted

his or

6i

is

under

fifteen

years of age, the

same house may consent

parents in the

on

—

—

her behalf."

In

to the adoption

respect again, there

this

is

between our law and that of European

a difference

countries, for,

according to the

act of parties,

and as a general

adoption

latter,

rule a person

is

an

under the

age of consent cannot be adopted.

That the object of adoption was the perpetuation of Ancestor- worship strict rule that

may

also

be inferred from the old

kinsman could

only a

The Taiho Code

(^0^^).

limited

From

kindered of the fourth degree. the Taiho Criminal

down

to us,

body who

it

to within the

the remains of

that a penalty of one year's penal

upon one who adopted a son

servitude was inflicted clan,

adopted as a son

Code {'^^W), which have come

we know

from a different

he

and one of fifty floggings

assisted him,

for

any-

This prohibition against the

adoption of a person not related in blood, seems to have

been observed It

derives

its

till

the time of the

Tokugawa Shogunate.

origin from the belief that " the spirit does

not receive the offerings of strangers." There

enacted

in

the ist year of

that adoption

is

a law

Genua (%?0j 1615 A.D.)

must be made from persons of the same

clan-name, that of the adoptor.

is

from the descendants of the ancestor This

rule,

as

well as the prohibition

of " quick adoption " before mentioned,

was so

strictly

— many

enforced that

on account of the

"

vassals or result

was

that those "

Ronin

who had

could not, and -would not

by

agriculture

They

or

their

lost

"

;

and

"

(MA)

often incited insurrections

members

or

became

of

and

seditionaries.

and joined in the

com-

in civil

beginning of

The government soon saw

that the relaxation of this strict law

of adoption

maintain peace

In the 4th year of Keian

The

salary.

they could, earn a living

commerce,

necessary in order to

their

lost their feudal salary, if

Tokugawa Shogunate.

consequence

in

feudal

motions which. were very frequent the

extinct

and thousands of

forfeited,

samurai

the military class

became

feudal lords' houses

failure of heirs

were

their estates

—

62

(^$)

(165

the famous plot of Yui-no Shosetsu

1

in

was

the country.

A.D.) soon

(^#jE9)

after

to over-

throw the Tokugawa ShSgunate, an important modification

was introduced

into the

that time, adoption from different clans

forbidden, but the

who had no clan,

although

permission different

in

amended law enjoined

strictly

that a

man

case

of failure of a suitable person,

might be obtained to adopt a person of

Although the law of adoption was

amended

substantially the till

was not

son should adopt one from the same

clan.

revised and

From

law of adoption.

the end of the

several times, this rule remained

same more than two hundred

Tokugawa Shogunate.

The

years,

rigorous

-

-

63

rule of limiting an adoption only to persons of the

clan-name practically

lost its force

of the just-mentioned proviso, and

been adopted

in the

in

the laws

failure of male

by the introduction it

has not, therefore,

new Code.

Another requirement found

of

of adoption,

many

Code

down

to the

Article 839

having a male child who

is

to the headship of a house

But

rule

this

adopting a son

of the Taiho

that a

man had

present day, and the

for

provides that

of this rule before.

There

(^^-f )

clear

is

There

there is

is

is

A

person

does not apply to the case of the

purpose of making him the

The

object

from what has been pointed out

no necessity

for

adopting a stranger,

a son to succeed to the house-headship.

one form of adoption

already stated,

"

not allowed to adopt a

is

called "

or " adoption of son-in-law." the

law considered a

even though he had a daughter. continuators of worship. in offering

new

the legal presumptive heir

husband of a daughter of the adoptor."

when

be

also retains that rule with, however, certain

modifications.

son.

to

the absolute

is

The House-law

isstie.

is

This rule has been uniformly observed from

ancient times Civil

which

countries,

Code only allowed adoption provided no son.

same

Muko-yoshi

As

man

"

has been childless,

Males were the only

A common form of expression

congratulations upon the birth of another

_ among

person's child

us

Kotoni go-nanshi de,"

"

is

congratulate you the more, as the child

" I

A

-

64

mother who has given

to a son

bii-th

her relatives and friends for her

i^M

"

is

a son."

by

praised

is

meritorious deed,"

tegara) in having brought forth a successor to the

house

for formerly

;

was a

it

that only males

strict rule

could

become house-heads, and perpetuators

cult.

Those who had daughters only were,

of the

therefore,

but

it

was necessary

blood of the ancestor to be,

if

possible, continued in

obliged to adopt a son

In

house.

the

person as

his

such cases, a house-head

adopted

daughter's husband. place

at

the

;

If

same

son

is

is

fit

selects

to

be

a his

adoption and marriage take

time,

This form of adoption

who

for the

it

very

is

called " muko-yoshi.'"

common and

is

recogniz-

ed by the new Civil Code (Art. 839 C.C. and Art. 102 of the

Law

of Registration.)

But the marriage of the

adopted son and the daughter of the adoptive father

may for,

take place subsequently to the act of adoption,

although Article 769

of the Civil

Code

prohibits

marriage between collateral blood relations within the third

degree

brothers

marriage.

and

A

of

kinship,

sisters

person

collateral

by adoption

who

is

relationship

no bar

to

of

their

has a daughter frequently

adopts a son with the expectation that the adopted son should marry his daughter

when they grow

up,

and

in

-

65

most cases the parents' wishes are

where the

parties

do not wish

In cases

fulfilled.

to marry, dissolution of

adoption very often takes place, either, because the

adopted son thinks that

his duty

it

thedaughter may remain

to leave the house, so

in

it

and marry a second

adopted son, thus preserving the blood of the ancestor house

in the

;

or,

because the adoptive father desires

the dissolution from the

The

rules as to the

same motive.

necessity of obtaining the con-

sents of house-head and parents, and the consequences

of the violations of those rules being nearly the as those in

the case of marriage,

Civil

do not consider

I

necessary to repeat them here.

same it

(Art.

750,845,857

the

adopted son

Code.)

The

effect

acquires the child

same

(Article

original

of

adoption

that

position as a natural-born legitimate

He

860, Civil Code).

relinquishes the

house and worship and enters into the house

of the adopter, taking the

of the

is

latter

(Article

house-name and clan-name

860,

861,

Civil

The

Code).

consequence of his acquiring the status of an actual son and entering the house of the adoptive parent that he

becomes the

legal

presumptive heir

is,

to

the

be

laid

headship of the house.

From what

down

I

have

stated,

it

may,

as a general rule that adoption

I

think,

had

its

origin, in

66 Ancestor-worship

among

practice

—

and the stronger the

;

the people, the wider

belief in that

scope

the

is

allowed for adoption by law.

§

THE DISSOLUTION OF ADOPTION

8

The law shows a

close connection

between the

Two

adoption and Ancestor-worship. tion

recognized by

are

of adoption also

relating to the dissolution

the

institution

kinds of dissolu-

Code

Civil

of

the

;

one,

Dissolution by Consent, and the other, Dissolution by Judicial Decree.

Adoption may be dissolved

for

any cause, provided

that the parties mutually agree, but for dissolution an action

its

compulsory

must be brought by one of the

parties

on the basis of one of the grounds specified

Article

866 of the

Civil

Code.

I

will

in

only mention

the two grounds for dissolution, which have a direct

bearing on Ancestor-worship. " if the

One

of

them

adopted person commits a grave

is

that

fault

of a

nature to disgrace the family-name or ruin the house-

property pareAt tive tie

"

may ;

{%M)

of the adoptive house,

the adoptive

bring an action for dissolution of the adop-

the reason for this rule being that the

name

of

— the ancestor's house

The

tie.

is it

the house which

is

ancestor

and

and

it is

not only his

religious duty to

adoptive house

adopter alone, nor

and

sacred,

is

legal right but his moral

the

—

67

is

dissolve

not the house of the

the house, of the adopted, but

adopter inherited

the

will leave

his descendants.

to

duty of every house-head to preserve

from It

is

his

the

and leave

it,

it

it,

unblemished.

Another ground

" or

reference to " muko-yoshi

Code has

son-in-law," and

to

the case

adopted son with Kajo If

mentioned

dissolution

for

of the

in

" adoption of

marriage of an

or the " house-daughter."

(^^)

the adopted son married the daughter of the adoptor,

and divorce or annulment of that marriage takes an

the

action

for

the

dissolution

adoption

of

place,

may be

brought by one of the parties (Article 866, Civil Code).

The reason

of this last rule

who

that

is

if

the adopted son,

is

in

most cases

remains

in

the adoptive house and perhaps takes a

the

legal

presumptive

heir,

second wife from another family, the true blood of the ancestor

will

not

be continued

"adoption of son-in-law", as

custom based on the desire the ancestor in the family, "

in

house.

the

have said before, was a

I

to retain the

and

if

true blood of

the marriage of the

house-'daughter " with the adopted son

the intention of the adoptor

is

The

is

dissolved,

thereby thwarted.

This

—

—

68

fule corresponds to that relating'to

dissolution of mar-

riage which allows judicial divorce,

when,

in

of " adoption of son-in-law," or in a case

adopted son

is

married to the

"

the case

when

house-daughter

",

the the

dissolution of adoption takes place.

§

SUCCESSION.

9.

of succession seems to have passed through

The law

three stages of evolution

;

firstly,

the succession of sacra,

secondly the succession of status and thirdly the succes-

Each stage of development, how-

sion of property.

ever, did not form a later

distinct period

was gradually evolved out of the

of performing

but the

itself,

by the

earlier

In ancient times the duty

process of differentiation.

the

in

and continuing the worship rested on

head of a house, and

the property of a

exclusively belonged to him.

He

house

exercised authority

over the members of his house, because he was the continuator

of the ancestral sarca, and, in one sense,

the representative of the

property because authority

and

it

was

ancestor.

left

by the

He owned ancestor,

his

and the

property of a house-head rested on the

worship of ancestors.

In those times, continuation of

"

-

-

69

house-worship formed the sole object of inheritance.

But

in the

course of time, the authority of the house-

head which the

at

members

of the

came

property,

comprehended both power over

first

to

house and rights

by

be considered

over houseitself

in

law.

Afterwards the two constituent elements of the authority of the house-head gradually began to be separately considered, until, at

last,

property came to be regarded

as a distinct object of inheritance.

Now, of the if

Law

to " the

important duty

is

a provision that

The "

official

the

" to

to

the

Code

this

" to succeed to the

is

impor-

the most important."

that, at this time, the continuation of

principal

object

Ances-

of succession.

middle ages, the word " Katoku Sozoku

for succession,

in the

disease,

succeed a father and inherit the

(^^^i9.) or "the succession used

(yf^MM.) owing to

commentary

i^ji-^M) says

means

tor-worship was

Since

to

may be

to

sacra, for the matter of worship

appears

fit

and another presumptive heir

Riyo-no-gige

tant duty

not

is

may be

substituted.

"

"

i'^M'^)

he

committal of crime or

disinherited

"

Keishi-riyo

a presumptive heir of a noble family

the

It

"

Taiho-Code (701 A.D.) there

succeed

"

Succession

in the

time of

and

to hojjse-authority "

in the feudal period,

Tokugawa Shogunate,

was

especially

succession repre-

sented the continuity of the status of house-headship.

In later times "

was very

authority "

property as the

"

Katoku

70

"

which

sion

means

h'terally

frequently

used

" hotise"

for

house-

which formed the object of inheritance just " familia "

word

word "Katoku"

Roman

in

law was often used

This transition of the use of

to designate property.

the

—

indicates that the law of succes-

was gradually passing from the second to the

third

stage referred to.

Our

present law represents the stage of transition

from the period of the succession of status to the succession of property. zes

two kinds

headship or

"

The new

of succession

Katoku

Code

Civil

Succession

;

sozoku,"

and

tion

rules

remaining, which

show

Article

of continuing

the

to

that the founda-

worship

of

987 contains the following provision

The ownership

house-

But there are

of the succession to the house-headship

necessity

"

still

to

Succession

property or "Isan sozoku" {^W.^UM).

many

recogni-

is

the

ancestors. :

-

of the records of the genealogy of

the house, the articles used for house-worship and the family tombs constitutes the special right of succession to the headship of a house."

This important provision means that those things

which are

spfecified therein

inheritance.

form the special objects of

They cannot be bequeathed away, nor

can they be seized for debts.

_ Four kinds of recognized by the " \hft

71

heirs

new

to Civil

— the

house-headship " the

Code,

are

Legal Heir,"

Appointed Heir" "the Chosen Heir" and "the

The

Ascendant Heir."

legal heir

the order of succession,

who

house-head, house.

Among

are preferred to

is

is

first

in

the lineal descendant of a

same time a member of his

at the

lineal

who comes

descendants,

nearest kinsmen

more remote, males

to females,

and

legitimate children to illegitimate, seniors in age being

always accorded priority when they are equal respects (Art.

970, Civil Code).

Modern

in other

on

writers

law usually give as a reason for the preference of nearer to remoter kinsmen that the order of succession is

determined by the degree of

deceased relatives,

person

is

presumed

and

who

property.

also

to

affection

which the

have entertained towards

his

by the presumed intention of the

dies intestate as to the disposition

of his

For the preference of males over females

feudal reasons are often given.

These reasons

form the principal basis of our present law.

But here

again, the reasons for the existence of the rule

origin are not the same.

also

and

its

Originally, the nearest in

blood to the ancestors worshipped,

and

their

male des-

cendants were preferred, because they were considered to

be the

fittest

of ancestors.

persons to offer sacrifices to the

spirits

— "

legal heirs " are heres necessarius

The

allowed

—

72

renounce the succession

to

;

and are not

whilst other kinds

of heirs are at liberty to accept or renounce the inheritance, or to accept

be

shall not It is

it

liable for

with the reservation, that they the debts of their predecessors.

the bounden duty of descendants

are legal

and continue the sacra

heirs to accept the inheritance

The house-heads cannot

of the house.

who

bequieath

away

from them more than one half of the property (Art. 1

1

30, Civil Code), nor can they disinherit them, unless

there exists one of the grounds mentioned in Article

975 of the

Civil

ed there are

causes especially mention-

ill-treatment or gross insult to the

(i)

:

The

Code.

house-head, (2) unfitness for house-headship on account of bodily or mental infirmities, (3) sentence to punish-

ment

for

an offence of a nature disgraceful

to the

name

of the house and (4) interdiction as a spendthrift.

For these causes, a house-head may bring an action against his

presumptive heir with a view to

legal

depriving him of the rights of succession.

grounds mentioned

in

Code

the

rectly to Ancestor- worship

head, he

by

his

may

will.

is

no

and property of the house.

legal presumptive heir to a house-

appoint an

But

relate directly or indi-

and the necessity of main-

taining intact the reputation

In case there

All of the

this

heir,

either in his lifetime or

appointment ceases to be valid

— when he

—

73

adoption, for the latter will tive heir (Art.

become

his legal

presump-

Civil Code).

979

at the time of the death of a

If,

by

obtains a child in the course of nature or

house-head, there

is

neither legal heir, nor an appointed heir, the father of

the deceased, or,

there

if

is

no

father, or if

to express his intention, the mother, or,

he

is

unable

there are no

if

parents or both are unable to express their intention,

chooses an heir from

the family council

members order:-

of the ist,

the

house according to surviving wife,

daugJiter" 2nd brothers, 3rd

who

wife,

is not

if

sisters,

among

the

she

is

the

following

a " kouse-

4th the surviving

a house- daughter, and

finally 5th the

descendants of brothers and sisters (Art. 982,

lineal

Civil Code).

Now,

in tiiis also,

the desire for preserving the blood

of ancestors will be seen from the order in which the heir

is

chosen.

head comes that she

is

first

The

surviving consort of the last house-

in

the order of succession provided

a " hotise-daughter" but fourth

if

she

is

not

the descendant in blood of an ancestor of the house. If

heir,

iiead

there

is

neither a legal, nor appointed, nor chosen

then the nearest lineal ascendant of the last housesucceeds,

males

being

always

preferred

to

females between persons standing in the same degree of relationship.

(Art. 984, Civil Code).

— If

74

—

there are no other heirs

family

council

relatives

house,

must choose one

of the last house-head

househeads of

principal

above mentioned the

among

from

members

other

or

of his

branch-house or members of

or branch houses.

If

none of the persons

above mentioned be existing or able to succeed, then as a last resort, the family council

may

from among other persons (Art. 985,

From

Civil Code).

foregoing enumeration

the

kinds of heirs,

it

will

choose an heir

of

the

various

be seen that the law takes every

precaution against the contingency of a house becoming extinct

;

worship of

its

for,

with the extinction of the house, the

ancestors would

come

to an end.

APPENDIX. subjoin

I

the

translation

of

some

Household" (|i^!@!S%)

relating to the Marriages in the Imperial

which was published on the 25th of April 1900, the

which

connection

close

exists

the " Ordinance

articles of

show

as they will

between Ancestor-worship and

marriage.

Article

When

III.

of the Imperial

Marrige

b; reported to Kashiko Dokoro, Kworei

Den and

the

the agreement

Imperial

Jingu^, and

Messenger to the

for

ofiferring

Shin shall

sacrifices

Jimmu Tenno,^

Graves of

made,

is

the

Den be

shall

it

;i

and

sent to

Imperial

late

Father and the late Imperial Mother respectively.

Article

The

Imperial

Marriage

'shall

VI.

be reported

to

Kashiko Dokoro,

Kworei Den and Shin Den on the day when the ceremony takes place.

Article

The ceremony before the

of the

Imperial

VII.

Marriage

shall

be

Temple of Kashiko Dokoro, according

to

performed forms

the

specially prescribed.

I

,

Kashiko Dokoro

0-mi-kami; Shin

Den

is

is

the

Kworei Den the

Temple

is

Temple of the First Imperial Ancestor, Amaterasu the Temple of all other Imperial Ancestors and

dedicaterl

;

to the

Tarople of the First Imperial Ancestor at

worship of lother Is^.

3.

The

deities.

First

2.

Emperor.

The

The Emperor and Temples

IX.

Empress

shall present

Den and Shin Den when

ot Kvv-orei

Imperial Marriage

the

Article

Article

and

to

the

Empress

XII.

shall present

the respective Graves of Jirpmu

Father and the

Imperial Marriage

Mother

Imperial

late is

The ceremony

themselves to Jingu

Tenn5,

the late Imperial

the

ceremony of the

after

performed.

XV.

Article

ShinnS^ or 'VVo*

ceremony of the

finished.

is

The Emperor and

themselves to the

the

of

marriage

shall

of

Kwo

K\v6

Taishi,''

Taison,^

be performed before the Temple of Kashiko

Dokoro, according to the forms specially prescribed.

Article

The

XVIII.

provisions of Articles III, IV, V, VI, IX,

XI and XII

have corresponding applications to tne marriages of

Kwo

The

provisions' of Articles

V

XIX.

and IX

applications to the marriages of ShinnS,

I. is

shall

Taishi and

Taison.

Article

IX

Kwo

shall

The

shall [have^^^ corresponding

and the provision of Article

have corresponding application to the marriages of Wo.

Imperial Son

Heir-apparent.

3.

great-great-grandsons.

downwards.

who

is

Heir-apparent.

2.

The Imperial grandson who

Imperial male descendants, from Imperial sons to Imperial 4.

Imperial male descendants froni the

fifth

generation

m m

^

^ m m m n m m

m

m

^

iij

B\

^

m

m

^