The Wives' Legal Status in the Earliest Days of Meiji

Abstract

This essay was written to make way of my opinion reported in the 8th general meeting of Legal History Association, and for the purpose of comparing the legal status of wives with concubines before about the 10th year of Meiji.First, on the background of the purpose and the social function of the system of census registration in those days, I described how the legal status of wife and concubine was settled. It was generally considered that the census registers (in the 4th year) reflected.one's actual residence and the family relation, because the Meiji government had intention to make use of them for«census». Really, we can say, where one lives meant which census register one belongs to, that is, to move meant to enter from one census register in the other. So a registration of marriage or adoption meant only that one really joins the other household. In legal sense, therefore, marriage, adoption, divorce, …etc. were merely «social action without legal procedure», a registration did not change the legal value of marriage which had been given the social sanction as marriage by neighbors.Thus the status of wife and concubine (whose registration was officially established towards the 8th year) was fixed. Wife and concubine had common legal duty or responsibility of fidelity under the husband's authority.But the wife's status in the other aspects of family life was gradually composed by several proclamations, and so its registration was often required to get the official sanction about her status, in spite of the fact that concubine was still only under the responability of fidelity. Specially the famous Proclamation n°. 209 of Dajokan (_??__??__??_-Chief Administrative Authority) in the 8th year declared that the marriage of unregistered wives and concubines was regarded as null, and in effect those wives lost their rights as wives before judges. The purpose and social function of the system of census registration, however, had been kept, so by this proclamation the legal character of registration of marriage was not changed but influenced and pushed to become a formal evidence of marriage to judge if a woman has the rights as wives (-specially, of divorce) or not. I think we can say that the purpose of this proclamation was in regarding the unregistered marriage as ineffective, but merely legitimate. Since this time, only the legal resposability of fidelity has been important with concubine whose legal status was not connected with her registration.It was since the 10th year that the registration of marriage tended to express family relation abstractly keeping the original character to serve for census. Japanese family system of civil law is only a legal fiction based on the census regiters, where the notion of family (relation) is abstract and the wives' legal status can be formed, but her actual residence is not always found.