Page:Harvard Law Review Volume 10.djvu/432

406 406 HARVARD LAW REVIEW. 3. Japanese Law.^ I. Etymology gives us no assistance, — except that the generic word for pledge, sJiichi^ is also used to-day, XVq pfand, to mean a forfeit in a game. But the two leading features of the forfeit-idea — ■ limited to the profits from money, while only under the rabbis was this extended to the profits of commerce and of industry (R., Ill, xxv). The Jews were originally (contrary to the popular opinion) in no sense a commercial or money-lending people ; they were a purely agricultural and pastoral people ; so that their emphatic opposition to the gains of the money-lender, like that of the. pastoral Arabs (in Mohammedan law) is easily understood. There were, however, recognized ways for the pledgee to evade the strict rule and obtain a profit on his lending. In the first place, the Mosaic prohibition would merely exclude the taking of interest as on the money loaned, and hence covered only ribith ketzoutah (specified interest), i. e. an express agree- ment to pay an interest by means of the r^j-profits. Thus, if nothing was said about interest, but the pledgee as possessor took the profits of the land, it was only abak ribith (imprint-on-the-dust of usury), in other words, de facto interest only; and as this was merely disapproved by the rabbis, not forbidden by Moses, it could be done ; much as Glanvil condemns the usurious mortgage, but admits that it is not prohibited in the King's Court. Nevertheless, this absolute enjoyment of the profits was not without its opponents in the Ghemara. One view was that a fixed sum yearly out of the profits should be set off against the principal, so that after a term of years the land redeemed itself. Another plan was to allow a five years' use without accounting, and thereafter to reckon the whole annual profits against the principal. By either of these two plans, the pledgor could not redeem within the period; but where no accounting at all was required, he could redeem at any time. Still another opinion was for a complete accounting of the annual profits from the beginning until the prin- cipal was paid (R., Ill, 2S4, Baba Metzia, 67). Thus these various expedients do not differ in their essence from those we have ob- served in Germanic law. They assume no different theory of pledge, and they illustrate merely the effort to compel the pledgee to restore an excess of profits. 1 Politically (though not socially nor artistically) Japan lingered a century or two behind feudal Europe in development; and the state of legal ideas at the Restoration of 1868 was not dissimilar to that of Northern France under Louis XIV., or of Germany in the time of Frederick the Great. A multitudinous variety in local usages still pre- vailed, and the centralized justice of the Shogunate had only a limited influence towards uniformity. The leading features of the customary law at that time have been recorded, though not with the detail that could be wished ; but this very variety has preserved the various stages of development of the pledge-idea, though it leaves the order of development to inference only. The legal documents and judicial precedents, how- ever, give us some evidence on this point, and justify more certain conclusions. Here, however, as in other systems, some features are fully represented in the sources, while upon others the data are meagre. The references following are to the Supplement to Volume XX of the Transactions of the Asiatic Society of Japan : " Materials for the Study of Private Law in Old Japan," Parts II and III, " Contract : Civil Customs" and " Legal Precedents, Loans," and Part V, " Property : Civil Customs," edited by the present writer ; the citations are by Part and page, with the name of the province of which the custom is recorded. The manuscript translation of Part VI, " Property : Legal Precedents," and Part III, Section III, " Contract : Legal Precedents : Pledge," not yet published, is referred to as MS. ;