Page:Japan by the Japanese (1904).djvu/341

earlier by the process of differentiation. In ancient times the duty of performing and continuing the worship rested on the head of the house, and the property of the house belonged exclusively to him. He exercised authority over the members of his house, because he was the continuer of the ancestral sacra, and in one sense the representative of the ancestor. He owned his property because it was left by the ancestor; and the authority and property of a house-head rested on the worship of ancestors. In those times the continuation of house-worship formed the sole object of inheritance. But in the course of time the authority of the house-head, which at first comprehended both power over the members of the house and rights over house property, came to be considered by itself 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, in the Succession Law of the Taiho Code, A.D. 701, there is a provision that, if a presumptive heir of a noble family is not fit to succeed to the ‘important duty’ owing to the committal of crime or to disease, he may be disinherited, and another presumptive heir may be substituted. The official commentary to this Code, ‘Riyo-no-gige,’ says: ‘To succeed to the important duty’ means to ‘succeed a father and inherit the sacra, for the matter of worship is the most important.’ It appears that at this time the continuing of ancestor-worship was the principal object of succession. Since the Middle Ages, the word ‘Katoku-Sozoku,’ or ‘the succession to house authority,’ was used for succession; and in the feudal system period, especially in the time of the Tokugawa Shogunate, succession represented the continuity of the status of house-headship. In later times ‘Katoku,’ which literally means ‘house authority,’ was very frequently used for ‘house property,’ which formed the object of inheritance, just as the word familia in Roman law was often used to designate property. This transition of the use of the word ‘Katoku’ indicates that the law of succession was gradually passing from the second stage 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. The new Civil Code recognises two kinds of succession—succession to house-headship, or ‘Kotoku-Sozoku’; and succession to property, or ‘Isan sosoku.’ But there are many rules still remaining, which show that the foundation of the succession to house-headship is the necessity of continuing the worship of ancestors. Article 987 contains the following provision: ‘The ownership of the records of the genealogy of the