Legal Hitory Review vol.56 (2006)
Summaries of Articles

Barons' War and the Community of the Realm, 1258-65
by Keizo ASAJI
key words : Community of the Realm, Kingship, Feudal State, Parliament, Simon de Montfort
        The Community of the Realm composed by the reformer barons during the reform movement between 1258 and 1265 was regarded by William Stubbs as the expression of the collective nation of England. Since then several types of explanations have appeared to describe the image of the community of the realm in late thirteenth century England. This paper surveyed the meaning and usages of the phrase appearing in public documents in this period, for example king’s letters and writs, baronial provisions and documented agreement between the king and the barons.
        As a matter of fact the phrase as s governing body which consisted of the king and the baronial council of fifteen magnates did exist during the first phase of the reform movement between 1258 and 1260. Then, the unity of the baronial community was collapsed internally in 1260. After Simon de Montfort, earl of Leicester, seized the reign of the government in 1263, he gave a new meaning to the phrase and used it as his supporters body in which some earls, barons, many shire knights and some burgesses were included. Though he died in August 1265 in the battle of Evesham, his usage of the phrase was reused nine years later by the next king, Edward I, in 1275. The new king used the phrase as the body of the representatives of counties and boroughs sitting in the parliament together with earls and barons, i.e. all the supporters of the united government under the King.

The Publication of the Official Gazette And The Ability of Subjects to Understand Laws and Regulations : The Transfiguration of the Meiji Government and Its Promulgation System of Laws and Regulations
by Akio OKADA
Ukey words : Kanpou, Law Promulgating Journal, Cabinet at the Great Council of State, #94 official notice(Tassi)from the Great Council of State.

        The present Japanese gazette(Kanpou)system is based on Aritomo Yamagata’s Gazette Journal Plan(GJP), which was put into practice in 1883. However, before GJP, Sigenobu Ohkuma formed the Law Promulgating Journal Project(LPJP), and got the Emperor’s permission to put it into practice. When the coup d’etat occured in 1881, Ohkuma was dismissed and the LPJP vanished. Until quite recently the details of the LPJP could not be examined, because the archives concerned with the LPJP were missing after the coup d’etat. In 1992, these documents were found in storage at the National Archives. When the LPJP and the GJP are compared, it is clear that the GJP succeeded the LPJP and its identity is vividly alive in the context of the GJP. Through investigation and analysis into these documents, it can be said that the Japanese gazette system was ultimately derived from Ohkuma’s LPJP.
        So, the question is ; why was the GJP formed in the year 1883 ? The main reason for posing this question is #94 official notice(Tassi)from the Great Council of State(Dajoukan)in 1881. Before the issue of the official notice, every ministry could enact any kind of law and regulation which were belonged to its own jurisdiction independently. However the official notice ordered a change to the enactment system. All bills of laws and regulations that belonged to the jurisdiction of every ministry must have been drafted by it, and they must have been sanctioned and promulgated by the Great Council of State(Dajoukan).
        Consequently, this new system of enactment burdened the Great Council of State(Dajoukan)far more work than before. Also it made the traditional system of publication and promulgation of laws and regulations lose their validity because it was designed as the system by which every ministry enacted laws and regulations and it published and promulgated them by itself.
        This loss of validity had been the internal necessity in the machinery of the MEIJI Government for the new system for the publication and promulgation of laws and regulations and it forced the GJP to be brought in practice.

A Study of the Job of Edo Shogunate Oometsuke (大目付) in the Tenmei and Kansei Era : focusing on the procedure of Kakekomiuttae(駈込訴)
by Hideki YAMAMOTO
Ukey words : Oometsuke, Kakekomiuttae, Kakekominin, Rouju(老中), Three magistrates(Magistrate for Buddhist temple and Shinto shrine 寺社, town 町, calculation 勘定)

         The study of Oometsuke was started by Professor Taro Matsudaira and its analysis has been deepened from the various points of view in connection with the trial system of Shogunate and the functions of many posts which Oometsuke held as additional ones. However, it can be said that a fundamental study of Oometsuke is still inadequate. The present situation of study seems to need the elucidation of two problems. (1) To grasp the organization and structure of Oometsuke through primary historical records which are known to be transmitted in a reliable way. (2) Based on the grasp above, to clarify the concrete job of this official. The aim of this article corresponds to the latter.
         Kakekomiuttae taken up in this article is one form of illegal suit in the early modern times. That is why the Shogunate did not accept Kakekomiuttae in principle. However, when the petition includes contents which cannot be overlooked, the government received it and began the procedure. These facts are clarified by the study that intended to analyze the function of Rouju and Three magistrates. But Kakekomiuttae is brought not only to Rouju and Three magistrates, but also to Wakadoshiyori(若年寄)or Oometsuke, etc. Therefore, it is necessary to try to analyze how the various officials mentioned above coped with Kakekomiuttae. Was it proceeded by the similar method with Rouju and Three magistrates or by a different method ? If it was different, how was the actual procedure ? And it is also necessary to compare it with the handling of Kakekomiuttae by Rouju and Three magistrates and to find its position in the Shogunate system generally.
         The Shogunate established a special suit route through which officials could pick up various opinions from persons of every social position in the latter period of the Edo era. But it is also evident that these devise imposed an excessively heavy burden on duties of Oometsuke.

An Inquiry into the Usage of Monetary Penalty and the Local Finance in the Qing Dynasty
By Mika KITA
key words : Monetary Penalty, Fayin(罰銀), Confiscation, Qing(清)Dynasty, Local Finance

        This paper aims to shed light on the reason why the monetary penalty which was not explicitly stipulated in law did exist in Qing dynasty China, the way how it was implemented and what social contribution it actually exerted.
        The stipulations of monetary penalty were found in the law codes of ancient China but they have disappeared in the codes since Sui (隋)and Tang(唐)dynasties. In historical records of Qing dynasty, the sporadic existence of such words as penalty paid by silver(Fayin罰銀), penalty paid by threshed grain(Fami罰米), penalty paid by non-threshed grain(Fagu罰穀)is witnessed. This fact shows these penalties were frequently levied for peccadilloes. In this paper the entity of these penalties is described as monetary penalty distinguishing it from the penalty stipulated in modern penal codes since the end of the Qing dynasty.
        To collect monetary penalties in the Qing dynasty caused several delicate problems. In Xing-an huilan(刑案匯覧)were reported several cases where some functionaries who collected monetary penalties were accused of their deeds. The reason of accusation is that they collected too heavy penalty money without reporting the deeds to their superiors. Several judgments concerning the methods of collecting penalties by the emperors were available in historical documents. The crucial points of the judgments were the facts that the functionaries enriched themselves and that those who were levied monetary penalties committed suicide. The criticism for collecting the monetary penalties, itself, does not seem to constitute the main point of judgments.
        Inquiring into the cases recorded in Tiantai Zhilü(天台治略)which is a collection of the administrative documents of Tiantai County ,Zhejiang(浙江), at the end of the Kangxi(康煕)era, the author of this paper attempts to clarify how collected penalties and confiscated assets were utilized in the local finance.
        The author also tries to estimate how frequently these penalties were levied, how much an average penalty amounted to and how revenue from these penalties were able to contribute to the local finance.

Les conflits de juridictions et l'ancien droit de France : examen des cas pour la juridiction consulaire
Mots-clefs : Conflit de juridictions, France, Ancien Régime, juridiction consulai re, publication de la loi

        Cette étude propose une nouvelle approche du mécanisme de la justice sous l'Ancien Régime, en prenant pour objet des conflits de juridictions subis par une juridiction d'e xception qu'est la juridiction consulaire. En mettant au centre du sujet les conflits de juridictions, nous nous éloignons de la manière de les traiter comme simple anecdote ou accident, mais les considérons au contraire comme ayant leur procédure, logique et structure propres.
        Cette orientation a été grandement déterminée par la nature et l'intérêt des documents. En effet, les recueils édités au sein de la juridiction consulaire elle-même, dont notre source principale, le recueil consulaire de Paris, ont été conçus surtout af in de se défendre contre les attaques des autres juridictions. À cette fin, ils contiennent beaucoup de textes concernant les conflits de juridictions, qui nous permettent d'aborder la structure de ceux derniers.
        Notre première partie est consacrée à l'observation d'un cas concret. Nous examinerons ici la réalité et les détails d'un conflit de juridictions. Nous reproduisons en traduction, à cette fin, la totalité du texte d'une aff aire qui nous parvient. En reconstruisant la procédure du conflit entre juridictions, nous observons que les magistrats rendent des décision s en sorte que l'affaire se déroule devant leur propre juridiction& nbsp;; que les mesures consistent, d'une part, dans l'annulation des procédures auprès de l'autre juridiction et, d'au tre part, dans l'interdiction, accompagnée d'une menace de sanctions et adressée même aux auxiliaires de justice, de poursuivre devant celle-ci.
        Nous mettons en lumière, dans la seco nde partie, la procédure de la création et de mise en forme de l& #8217;institution consulaire. Il est à remarquer que la contestation envers le consula t de la part d'autres juridictions prenait la forme d'abord de la remontrance par le Parlement auprès du roi, puis, après lR 17;enregistrement et la publication de l'édit de création, se succè ;de en conflit de juridictions. L'enregistrement de l'édit pouvait être mis en jeu dans des conflits, requis devant diffé rents et plusieurs Parlements ainsi que devant les juridictions inférieure s. En effet, l'enregistrement constituait une scène où apparaît clairement la structure normative de l'époque, dans laquelle un édit royal pouvait finir par avoir plusieures versions d ifférentes, consacrées par de diverses juridictions. Cette caractéristique normative était une des causes même des conflits de juridictio ns.

Current State and Problems of Studies about Japanese Legal Reform under Allied Occupation after World War II
by Yuichi DEGUCHI
Ukey words : Modern Legal History of Japan, Study of the History of Occupation Period, World War II, Occupation of Japan, Postwar Revision,

         Sixty years have passed after the end of World War II and we have had many historical studies about postwar Japan. In addition, several studies from the viewpoint of modern legal history of Japan refer to this era. This article introduces studies about postwar revision as “the Study of the History of the Occupation Period” and researches into the origin of present legal system by legal scholars, to construct “Legal History of Postwar Japan” or “Legal History of Contemporary Japan”. As a basis, this article makes a brief sketch of “Occupation and Control” of Japan after World War II and analyses of legal feature of “Potsdam Decree”.
         Research of enactment process of Constitution of Japan has been progressed in this field, through the activities of the Cabinet Commission on the Constitution in 1950’s. In succession, because of declassification and regulation of both American and Japanese records, we have comparatively abundant results recently ; historical sketch with various viewpoints, substantial analysis of each article, diversified aspect of Occupant, criticisms against legitimacy of the research materials, etc. On the other hand, most of the legal fields barely start to reprint of Japanese records and use American records. This article introduces the present conditions of studies about legal reform according to the activity of Provisional Legislative Investigating Committee established in 1946.
         Recently, “the Study of the History of the Occupation Period”, especially about local system reform, educational reform, and economic reform show an active interest in process of enforcement of Occupation policy. To construct “Legal History of Postwar Japan” or “Legal History of Contemporary Japan”, we have to react these trend with refined historical method, in connection with examination of “Reception of American Law” under Allied Occupation.