THE LEGAL SYSTEM OF OLD JAPAN. By Prof. John H. Wig.more. II. VIS 7HEN we turn from the rural districts
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to the towns, we find, as has been said, that justice becomes somewhat more impersonal and inelastic. Formal litigation was in the mercantile communities, of course, more frequent. It has been said that the development of commerce undermined the feudal system in Europe. We may also be lieve that it contributed to the more compre hensive development of law. Tracing the same influence in Japan, we see that while it never became strong enough to affect the overthrow of feudalism (this came from quite other causes), it contributed to the devel opment of precise jurisprudence, as distin guished from mere custom, in the courts of the town magistrates. One example must suffice from the precedents of the Yedo courts. [6]
Memorandum of Consultation.
Sent to Supreme Tribunal, Bunsei Period, 10th yr. (1828) nth mo. 2d d., by Sakakibara, Town Magistrate of Yedo. Answered informally by Ishikawa, Temple Magistrate, 18th day. ( 1 ) Question. Ought not the successor of one who has suffered a sentence of banishment from his town to be liable for his predecessor's debts, provided a confiscation of effects has not accompanied the sentence? (2) Answer. We have received your ques tion. We have examined the precedents in regard to a defendant who has suffered local banishment, but there are none on that point. But we find, in Gembun, 4th yr. (1740) 10th mo., a consultation on the question whether a claim for money lent by a person sentenced to local banishment was to be regarded as extinguished, to which the Tri bunal answered that it was not (provided no order of confiscation of patrimony was included in the sentence), and that as one's sentence to local ban ishment does not affect his wife or his son, either the successor, if any, should possess all the claims
of the exile, or the exile himself, if no successor existed, should be authorized to cause his effects to be sold and the proceeds forwarded. Now, as the rights of a banished creditor are thus not lost, much less should a banished debtor's obligations be extinguished. In such a case we think that the successor ought to renew the instrument of debt in his own name; if none exists, the court should renew the instrument for the exile, and as soon as he has fixed his residence, require him to pay. It is true that in Kansei, 6th yr. (1794), where the defendant in an action before your pre decessor, Ikeda, had absconded pending trial, and in the absence of a precedent the successor was ordered to renew the instrument, the Tribunal decided that thereafter such renewal in case of an absconding debtor should not occur, but the claim should be extinguished. If we followed this anal ogy, we should here order the claim extinguished; but that course does not seem just, at least where there is a successor; and as the practice has usu ally been to have the plaintiff name the successor of the debtor in his declaration [where the original debtor has died before suit brought], so here we think it best, in case of an absconding pending trial, to order the successor to renew the instru ment in his own name and pay the debt. If you agree with our result, we hope that you will lay the matter before the full Tribunal, so that we may agree on a uniform practice for the future." (3) Letter from Ishikawa. Temple Magistrate, to Sakakibara, Town Magistrate. Bunsei, nth yr. (1829) 1st mo, 28th d. You consulted us in the nth month in regard to a debtor who has suffered local banishment. We answered according to the principle which we should like to see adopted for that case as well as for the case of absconding during a trial, and we understood that you were to consult the full Tri bunal. We shall be glad to learn your conclusion. (4) Answer. I did, as you say, consult you in regard to the question of an exile's debt, and your answer advised ordering its payment by the
