Legal Hitory Review vol.42 (1992)
Summaries of Articles
 


Daughter-in-law and parents-in-law in the regulations on parricide in Edo-period

– In comparison to criminal laws in Tang and Ming –

by Yukiko HAYASHI

To which ascendant and in which degree was the punishment increased according to the regulations on parricide in Edo-period? Which was more heavily punished, a daughter-in-law who had killed her parent-in-law or a wife who had killed her own parent? The purpose of this paper is to throw light on the position of a daughter-in-law between the family into which she had married and the family in which she had been born, by investigating these problem in Edo-period in comparison to criminal laws in Tang and Ming.

According to the law of the Tokugawa Shogunate, the homicide for parent-in-law was punished a little more lightly than homicide for original parent, and on the other hand, a husband who had killed his wife's parent and a wife who had killed her husband's parent (parent-in-law) were equally punished. This rule is different from the criminal law of Ming, which inflicts the same punishment on a daughter-in-law who had killed her parent-in-law and a wife who had killed her own parent, and also from morality-books for women in Japan, for example Onna-Daigaku, which persuade wives to be filial to her parents-in-law as well as or more than to her own parents. And the trials in several clans to accept criminal law of Ming on parricide did not succeed.

From where carne such difference between Ming China and Tokugawa Japan, which were under same Confucianism? I think because wives in Japan had kept stronger connection to her original kinsfolk than in China, and they were regarded a little as a foreign element in her husband's kinsfolk.


On Hata Kiyokane of the Estate Officer (Geshi, ‰ºŽi) of Tōji Temple's Kamino Estate inYamashiro Province

–With Miyōshu-shiki (–¼ŽåE) Action (Souron, ‘Š˜_) pending pending from 3d Year of Ryakuou (—ïœä) to 4th Year Ryakuou –

by Kazuyoshi ITOH

In this essay, I consider the action, which the plaintiff, Hata Kiyokane brought in Kamino estate headquarters (Kamino-no-sho honjyo,ã–ì‘‘–{Š) against the defendant, Ryogon-in temple's priest Hankei (ž¿šŽ‰@‘m”Íœ¨) relating to claim for myōden in 3d year of Ryakuou (1340), 11th month, through ascertaining judicial principles appearing in their arguments.

The plaintiff claimed Kui-kaeshi (‰÷‚¢•Ô‚µ) according to Okibumi (’u•¶) and Shigai-tekitai (Ž€Š[“G›”). The former was judicial Principle of the right to demand recovery of the once donated land by parents to descendants. The latter was that of the right to exercise Kui-gaeshi over violations against regulations or house rules established by ancestors for the treatment of family wealth.

Then the defendant argued Tanin-wayo (‘¼l˜aäo) according to Yuzurijō (÷ó) and Gechi-ihai (‰º’mˆá”w). The former was judicial principle of negation of the right to demand recovery of the land Presented to the non-relatives without compensation. The latter was that of a punishment for violations against orders issued by a higher authority.

As a result, these judicial principles reflected rivalry between recoveries and non-recoveries for property.


A Study on the Plot of the Otsu Affair

by Tsutomu ARAI

An assault was made on the Czarewitch Nikolai by a policeman at Otsu, Shiga Ken, on May 11th 1891, although he had been assured of complete security before his visit to Japan by the Government of Japan. He received a wound on the head by a saber. It is usually said that the Japanese Government was most anxious that the offender should be put to death in fear of revenge by Russia, but notwithstanding its earnest desires and efforts, the Highest Court sitting at Otsu sentenced him to penal servitude for life on May 27th ill the exercise of its high and independent authority.

In my view, the Czar Alexander III did not want to claim any satisfaction whatever with regard to the affair in question. The Emperor Meiji fully appreciated the generosity of him. Any fear of revenge by Russia was gone. It is true that the Emperor wished that the offender who had attacked his exalted guest should be executed against existing laws. The Government made efforts to carry his wish into effect. Moreover the Emperor gave words to the judges that the offender had to be executed without delay. They were driven into a corner. Laws tended to retreat incase of the Emperor and his foreign guests in the Meiji era. Although the judges had the Constitution that the Emperor himself granted two years ago, they had to make up their minds to leave office so that they might give priority to laws.

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