Society For Japanese Studies

Society for Japanese Studies
"Contracts" in Tokugawa Villages

Author(s): Dan Fenno Henderson
Source: The Journal of Japanese Studies, Vol. 1, No. 1 (Autumn, 1974), pp. 51-90
Published by: Society for Japanese Studies
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DAN FENNO HENDERSON
"Contracts"in Tokugawa Villages
This is a summaryof my recentunpublishedresearchon villageagree-

ments. It began as a reviewof a large numberof agreementsin their
original brush-writtenform from several dozen villages, and ended
as a translationof over fifty of them selectedto illustratea wide range
of typical private transactions,seven of which are found in the Ap-
pendix. The agreements,mostly dating from the nineteenthcentury,
were selected from records of eighteen different villages scattered
about Honshu. Since concern was mainly with the uses of these
agreementsin village life, we should considerat the outset the social
meaningof "agreement,"or more narrowly,"contract."
One school of thought,since at least as early as John Locke, has
held that government,if not indeed society, dependson contract-the
social contracttheory.Althoughfor reasonsto appearlater, the term
social "contract"is not felicitousfor our purposeshere because of its
technicalconnotations,still aspects of "social contracttheory"might
strike some chords of response in the Tokugawa village. Whether
social contracttheoryhas the whole truthor not, privateagreements,
oral or written,are a social necessityin any society;for social groups
would cease to be groupswithoutthem. Agreementspermeatesocial
communicationin gradeddegreesof volition-from explicit free con-
sent to tacit coercedacquiescence.Moreover,how and to what extent
agreementsare used in a given society will depend on its physical
environment,politics, economics,and social relations.So, one might
supposethat historianscould learn somethingabout a past society by
studyingits uses of agreementspreservedin the records.
Study of past agreements'has a special cogency in the case of
1. See Kansai Daigaku H6seishi Gakkai and Kansai Daigaku Keizai

Gakkai Keizaishi Kenkya-shitsu, ed., Osaka shiihen no sonraku shiryd, Vol. 3
(Sh6mon-shfi, mura-yakunin) (Osaka: Kansai Daigaku Shuppanbu, 1956),
51
52 Journal of Japanese Studies
Japan, perhaps,because as foreignershave frequentlynoticed, first,

the ways of the past have a pervasive,lingeringimportancethere and,
second,the modem Japaneseattitude2toward"contracts"is different
from the American, or even European, contractinginstincts. This
differencein attitudetowardscontractsdoes seem to persistin some
degreein many situationsin modernJapaneselife, especiallyin indig-
enous businesspursuits,and part of the difficultyin explainingit to
foreignlawyersand businessmenflows from a tendencyto slip (as I
have just done deliberately) from "agreement"to "contract"as if
they are the same thing.
Any Americanlawyer will have learned in his first year in law
school that the differencebetween an agreementand a contract is
that the contractis a special agreement-enforceablein court.3And,
thereforea contract is a justiciableagreement,meaning that rights
therein can be cashed-inat "court"by "pleading"of the aggrieved
"plaintiff,"by submitting"evidence,"with the help of a "lawyer,"
by following prescribed"procedures,"and by applyingthe substan-
tive "law"rules (i.e., by settingin motion the whole specializedpro-
fessional apparatusof justiciabilityin developed, modem, positive,
legal systems). So far, so good, for as we shall see even in Tokugawa
Japantherewere a few "justiciableagreements"in the villageswhich
could be enforcedin the overlord's"courts"4in ways analogousto
the modern contract litigation. Furthermorethe residual possibility
of litigationextramurallyhad a pervasiveeffect in graduallylending
the impartialrationalityof "law" to village relationshipsin varying
degreesfrom place to place and generationto generationduringthe
Edo period.
But the point is that there were a lot more "agreements"in
pp. 201-3; also Kamata Masatada, Nihon nochi shomon no kenkyii, (Gan-
shodo, 1944), p. 122.
2. See Hoshino Eiichi, "Gendai ni okeru keiyaku," 7 Gendaih5 206-70
(1966); Toshio Sawada, Subsequent Conduct and Supervening Events (Uni-
versity of Tokyo Press, 1967); Dan F. Henderson, Foreign Enterprise in
Japan (Chapel Hill: University of North Carolina Press, 1973), p. 291.
3. See E. Gerli & Co. v. Cunard S. S. Co., 48 Fed. 115, 117 (2nd Cir.,
1931) for a typical lawyerly statement of this distinction by Judge Learned
Hand: "but an agreement is not a contract, except as the law says it shall be,
and to try to make it one is to pull on one's bootstraps. Some law must impose
the obligation, and the parties have nothing whatever to do with that; no more
than with whether their acts are torts or crimes."
4. Hereafter reference to overlords' courts include Shogunate, daimyo,
hatamoto or other feudal courts.
Henderson: Tokugawa "Contracts" 53
Tokugawavillages than there were "contracts,"and that in a sense

the Japanese village took "agreements"more seriously than "con-
tracts,"while the opposite may, in a sense, be true among modem
Americanlawyers. These are differencesof history and culture;just
becauseJapaneseare not fully contract-consciousdoes not mean they
are not quite obligation-conscious.Hence the hypothesiswhich sug-
gested this study of village agreementsassumesthat probablyagree-
ments, because they were "enforceable"in the village, had a much
larger role in Tokugawavillages than could be understoodfully by
looking at "contractenforcements"in the overlords'courts as seen
throughthe overlords'availablelegal records. Though more readily
availablethan village records, overlords'materialsmight underesti-
mate as much as they illuminate the role of agreements in the
Tokugawavillage.
Perhaps an anthropologist'sapproachto enforcementof village
agreementswould yield, if not betterinsights,at least additionalones.
Whenpursuingtechniquesfor "socialcontrol"or the like, an anthro-
pologistoften findsthatvillagesenforceagreementsin fact, even when
it would be difficultfor a lawyerto identify the "court"or the "pro-
cedure" or even the "law" involved in that process. Perhaps this
socially coerced complianceis not "legal" enforcement,but if not,
we could call it "socialenforcement"withoutmuch loss. It was com-
pellingand effective.
From my earlierexperiencewith conciliation5(which after all is
dispute settlementby agreement), I came away feeling that village
level consensus-making(social enforcement) needed much more
illuminationfrom the bottom up and had been too often approached
from the top down, filtering inadequately through the Shogunate
materials,which dwindlealmost to nothingat the Deputy's (daikan)
"4court.'6In fact, the dearthof "judicialmaterial"on civil litigation,
concrete enough to enlightenus about the civil legal process in the
Deputy'scourt, is what raises the suspicionthat "contract"enforce-
ment was largely accomplishedin the village, and that the Deputy's
officewas mostlyconcernedwith tax or criminalmattersand involved
in civil disputesless frequentlyand in emergencies.If so, then one
must of course look at village materialsto explore the use of agree-
5. Having puzzled over the difficulties between anthropological "law" and
lawyers' law before, I cannot carry that analysis any further here. See
Henderson, Conciliation and Japanese Law (Seattle: University of Washington
Press, 1965), 1:55-56.
6. Henderson, Conciliation and Japanese Law, 1:128 ff.
54 Journalof JapaneseStudies
ments duringthe Edo period,since eighty per cent of the population

lived in villages,and since their work and lifestyleand thereforepre-
sumably their agreementswere quite different from those of the
townsmen,whose civil disputesmore often showedup in the shogun's
courts.7
But lookingat the villageagreementsthemselveshas its problems.
Of course, only documentedagreementscan now be studied,and as
noted, the few studies8which have been made are usually rather
specialized. Genuine private documents, printed or otherwise, are
scarce or when availableuncollatedand unclassified.9Scarcityalone
might persuadeone to give up on the early period, but actuallythe
later periodis more relevanthere anyway.
Even more troublesomeis the problemof selection-both selec-
tion of villages and specific agreements.Villages in the Tokugawa
periodwere neitherconstantnor fungible;they changedand differed
in many significantways which affectedthe kinds of agreementsthey
used. Their size, their location, their overlord'sstatus and situation,
7. Many townsmen's suits included farmers or warriors as opponents, of

course. For some fascinating statistics on the number of cases filed in Edo and
Osaka, see Kobayakawa Kingo, Kinsei minji soshb seido no kenkyii (Yfihikaku,
1957), pp. 8-10; (hereafter cited "Kobayakawa");also see Kaneda Heiichir6,
"Tokugawa jidai no tokubetsu minji soshWh, kanekuji no kenkyfi," 42 Kokka
gakkai zasshi (hereafter KGZ) 1934-84 (1928) (hereafter cited "Kaneda,"
42 KGZ 1934).
8. See Harafuji Hiroshi, "Kinsei saikenhoj6 ni okeru shosho no kiin6"4
Kanazawa h6gaku 77; Vol. 5, p. 195; and Vol. 6, p. 69 (1958-60), and see
his citations to the literature Vol. 4, p. 78 (hereafter, "Harafuji, Kinsei
saiken-ho.")
9. There are, of course, several repositories of genuine village documents
in Japan, notably the excellent collection readily available at Meiji Univer-
sity and the voluminous collection of the Ministry of Education, but I was
fortunate to be given free use of the collection assembled by my good friend
for over twenty years, the late Haruhara Gentar6 of the Osaka Bar. It includes
a large quantity of genuine documents from the Headman's offices of over
forty villages throughout Japan, and for my purposes the collection is useful,
not only because of its impressive bulk and coverage, but because Haruhara
Gentar6 was a lawyer interested in the concrete realities of village life, and
in collecting, he had a skilled eye for documented Tokugawa transactions and
records of disputes. Furthermore, he spent much time to have his documents
classified, repaired, and collated so that they can be identified and more
conveniently used. But must important for me was the special kindness of
allowing me to take documents, copy and use them at my convenience. I am
indebted to Haruhara Masako and Hiyama Sadae, the present custodians of
the collections, and widow and daughter respectively of the founder.
later their degree of participationin industry and commerce-all

create problemsthat affectedthe subject matter and form of agree-
ments.Particularlyclear is the contrast,for example,betweenvillages
in the commercial,industrialcomplex of small fragmentedfiefs in
the Kinai aroundOsaka (or the Kanto area near the seat of govern-
ment in Edo) and villagesin the larger,compact, outlyingbackward
fiefs underthe consequentlytightercontrolsof large daimyo.10Obvi-
ously, then, the villages from which my agreementswere drawn are
not to be regardedas "typical"in any precise methodologicalsense.
Nor of course can one look at all villages;comprehensivenessis the
only thing more unrealisticthan typicality perhaps. So the villages
canvassedhere were chosen because the records were adequatefor
the later Edo period and with few exceptions they are located in
variousruralareas of centralHonshu."-
Selectionof the specificagreementswas, like the villages, limited
also by the accessiblematerials,but still the goal was to find examples
of major kinds of the transactions,which the rural people of the
periodcustomarilyreducedto writingas aids to futurememoriesand
guides for future behavior.Though our samplingis not adequateof
course to support any definitivegeneralizationabout agreementsin
all or even a typical Tokugawavillage, there are importantthings
we can learn from them. So, I will only (1) summarizesome basic
informationabout the particularagreementsunderlyingthis study
and then suggest (2) some social "uses of agreements"in the Toku-
gawavillage, and (3) outlinethe essentialsof "contract"enforcement
in the law of the late Tokugawaperiod.
About the Agreements

The fifty agreementswhich I ultimatelyselected to translateare
genuine and came from the records of eighteen differentvillages in
the main island of Japan. Most of the records are preservedin the
HaruharaCollection.Specifically,the villages are listed as follows:
10. See Kozo Yamamura, "Toward a Reexamination of the Economic

History of Tokugawa Japan, 1600-1867," 33 Journal of Economic History
510-548 (1973) for examples. Also see other relevant works of Yamamura
and of Susan Hanley cited there.
11. Actually in the Haruhara Collection there are records from forty-odd
villages available, but the periods covered and the quantities and types of
records for each village vary.
Village (mura) County (gun) Province (kuni)

1. Any5ji Kurita Omi
2. Goda Naka Iwami
3. Hirazawa Ry5ke Ono Echizen
4. Joka Kariha Echigo
5. Jfigojo Motosu Mino
6. Kawashima* Chisei Kazusa
7. Kizu 6ji* Sonoaku Yamashiro
8. Komatsuji Ochi Iwami
9. Kuwashita Kume Mimasaka
10. Matsuo* Ibi Kazusa
11. Minobe* Motosu Mino
12. Narumi* Aichi Owari
13. Oshihara Nima Iwami
14. Sakai Nyfi Echizen
15. Shimo-Ujiie Nydi Echizen
16. Sonezaki Shinchi - Settsu
17. Temma-gumi Osaka Settsu
18. Utsunuki* Tama Musashi
* The original records for these villages are in the author's own Document
Collection in Seattle.
The agreementsfinallyselected are dated from 1683 to the very

end of the Edo period (1868), but the bulk of them are from the
period of matureTokugawainstitutions.
Their subjectmattermay be classifiedinto fifteen categoriesfor
convenience:waterrights,land sales, boundarylines, commons,loans
with or withoutinterest,loans with or withoutvariouskinds of secur-
ity, personalservices, agreementsconcerningfamily relations (such
as dowry, retirement,succession, sale-of-daughter,and prenuptial
agreements),agreementsconcerningthe headman'sselectionand per-
formance,inter-villageagreements(such as expense apportionment,
transportcosts, etc.), dispute settlement agreements,and apology
agreements.Problems involving the above subjects were generally
handled by agreement.Once agreementwas reached, it was then
documentedin a more or less standardform though much minor
variation occurred from transactionto transactionand locality to
locality.12 The standardizationreflected the growth of enforcement
12. Many formal variations of documenting agreements were collated and

recorded by travelling survey teams sent out by the Meiji government. They
were later published. See Minji kanrei ruishii (Classified collection of civil
customary practices), edited by Takimoto Seiichi (Hakut6sha, 1932) originally
compiled in 1883-84. These materials are also found in Nihon keizai taiten,
Volumes 49 and 50. For English, see John H. Wigmore, ed., Law and
Justice in Tokugawa Japan (Tokyo: University of Tokyo Press, 1969), Vol. 1,
Introduction; Vol. 2, Contracts: Civil Customary Law. These volumes are
possibilities in the courts, and was therefore important to legal

evolutiongenerally.
We need to recall some basic characteristicsof the Tokugawa
village itself. Subjectto the diversitynoted above especiallyaccruing
from later economicchanges,the ruralrice-producingvillage (mura)
of Tokugawatimes was a peculiarlybasic, self-containedunit of the
society, of the economy, and of feudal administrationsince it was
usually the smallest unit of enfeoffment.'3The village was thus a
group of people, their houses, and their fields, waterworks,forests,
and pastures. Free movementwas severely restrictedas was social
mobility,by meticulousregistries,and village ingressand egress were
limitedby the villageitself and the scarcityof tillableland, rendering
the village an exclusive and stratifiedgroup wherein typically (or
ideally from the standpointof overlords'policy) individuals,genera-
tion after generation,lived out their entire lives workingin the same
place with the same neighborsand associates.Such conditionsled to
a socialityand sociabilityinconceivablein more mobilecircumstances.
Most villages had been surveyed in the Bunroku (1592-96) and
Kan'ei (1624-43) periods. And the descendantsfrom landowners
(honbyakush6)registeredat the time of these early surveysgenerally
monopolizedofficial positions, controlledlater access to the village
and remainedsometimesfor centuriesthe elite of the stratified,rank-
consciouspopulace.Generallythis status and prerogatives(kakaku)
of the old families14in the village were supportedby the overlord.
Honbyakush6were distinguishedparticularlyfrom tenants (komae
or mizunomi-byakush6),who came later in dependentand subordi-
nate positionsfrom which they escapedonly with great difficultyover
the generations.15
based on work started by Wigmore in 1890 and partially published in Transac-
tions of the Asiatic Society of Japan (hereafter TASI) (1st Series) Vol. 20
(1892). In all, ten volumes are projected for publication by the University of
Tokyo Press based on manuscripts, some of which were edited originally in
the 1930's and early 1940's under the auspices of the Kokusai Bunka Shin-
kokai.
13. Some larger villages were, however, split between two (or sometimes
even more) feudal lords, and as such were called aikyu-mura.Especially in the
Kinai (Izumi, Kawachi, Settsu, Harima and Yamato), aikyu villages were
numerous. A simple description of the village system may be found in Ishii
Ryosuke, Nihon hoseishi gaisetsu (Kobund6, 1948), pp. 399, 440, and 444.
14. For the importance of family status (kakaku) see Kodama K6ta,
Kinsei nison shakai no kenkyui(Yoshikawa Kobunkan, 1953), p. 59.
15. Thomas C. Smith, The Agrarian Origins of Modern Japan (Stanford:
Stanford University Press, 1959), p. 173 emphasizes the changes in family
resources over the long term.
Also by the surveys,'6each wet (ta) and dry field (hatake) was
given a fixed area, a quality designation-indicating the surveyor's
judgmentas to its relativeproductivity-and an imputedyield (taka,
an estimatedproductivecapacityto which the tax rate was applied).
Then each field had a registeredowner responsibleto the village
headmanfor the tax, paid in the early years in kind (mainly rice),
but later often paid partiallyor wholly in money at a fixed rate to
convertrice to money.
But the villagehad some autonomyand remarkablesocial solidar-
ity withinitself, and the feudal overlordslooked, within each village,
only to the headman for payment of all of the tax due from his
villagers.'7 For, the village performedthe critical and sometimes
difficultfunction of dividingthis total tax (as well as village levies)
amongthe villagers.The headmanthen had responsibilityfor seeing
that the tax was paid into the village,then deliveredover to the over-
lord's warehouse.Efficientadministeringof the tax accountsby the
headmanwas a greatboon to the overlord,thus sparedthe burdenof
collecting from individual farmers. For these fiscal reasons, the
Shogunateand the daimyohad, initially,a stronginterestin nurturing
rice productionand bolsteringthe powerof honbyakushito encourage
efficientvillageautonomyand to insureinexpensivetax collectionand
the fiscal viability of their regimes (e.g., see Agreement No. 1,
Appendix).
Later in the Edo period, the role of land and rice diminished
somewhat,as cash croppingand village commerceincreased,causing
more tenant farming, when the extended family as a unit of rice
culture disintegratedunder pressureof growing market forces. But
the early dependenceon rice fixed several policies that even in the
nineteenthcenturycontinuedto influencethe form and substanceof
village agreements.'8For example, farmers were legally prohibited
from selling land,'9 so standardizeddocumentsdeveloped to imple-
16. See pictures and description in Ishii Ryosuke, Edo jidai manpitsu
(Inoue Shob6, 1959), p. 32.
17. For details of the Shogun's tax collection system, see Ohira Yfiichi,
"Edo bakufu daikan no ichi-kosatsu," 36 Hdgaku 1-55 (1972); also Ishii,
Edo jidai manpitsu (1959), pp. 216, 223, 275, and 278 have details of the
accounting records, presented simply with the author's usual clarity and
authority.
18. See Haruhara Gentar6, "Shamon-rui to shoshiki-shfi" in Kansai
Daigaku, ed., Osaka shfihen no sonraku shiry5 3:1-20 (1956); also Harafuji,
"Kinsei saiken-hM,"4 Kanazawa hogaku 100, note 2 for citation to Edo period
form books for drafting proper documents.
19. Osadamegaki,gekan, Article 30. English translation: John C. Hall, 41
ment the fictitious loan/mortgage/default device (dappo koi) to

enable owners to alienate land. Farmers were officiallyencouraged
to be frugal and discouragedfrom moving from the land or from
their village, though in fact they did move to town, later in some
numbers,in response to wage opportunitiesand labor demands of
the towns and cities.
Conversely,the overlord'slaw, if precise and intensive in tax
mattersat the village level, was not intendedto reach the individual
farmerwithin the village in private civil matters;the village was to
care for its own and see that its membersperformedin accordance
with custom their duties to each other. This shallow reach of the
overlord'scivil law (as opposedto criminallaw) meant in fact much
decentralizationof legal jurisdictionand much village autonomyand
independence,especiallyif we suppose that the tax was often not as
onerous as sometimesportrayed,because gradually,as yields, recla-
mation, and tax exemptionsincreased, some leeway in disposal of
resources privately and in commercial dealings did occur and in-
creased with the passage of time. The extent of the general (and
de facto lighteningof the tax burden is a controversialissue, as is
the extent of village autonomy,20but there is much evidence in our
villagesto supportthe view that the imputedyield (taka) was much
lower than the actualharvestin the late Edo period,both because of
betterfarmingmethodsand better harvests,and because of reclama-
tion of new lands for cash crops.
As to villageautonomythereis little doubtthat, in privatematters
between villagers,the village itself was authorized,indeed required
by overlordlaw, to regulateits internalaffairsthroughits officials.2'
Much of this self-regulationwas embodied in agreements,and the
fundamentalprincipleof autonomy(in this sense) profoundlyaffected
the use of agreementsand the enforcementof them in the event of
dispute; it is no exaggerationto say that they became a means of
governanceby consensus (see below).
(Pt. V) TASI 713 (1913). See Takeyasu Shigeharu, "Tahata eidai baibai
kinshi-rei to sono igi," Osaka furitsu daigaku keizai kenkyii (No. 16); and
review thereof by Ishii Shiro, 12 Hoseishi kenkyu 256 (1961).
20. See for the issues, Hayashi (Ode) Yukiko, "Kinsei somp6 to ryo-
shuken," Hosei ronshu (Nagoya) (No. 18) 1-32 and (No. 19) 73-129 (1962)
and Hayashi Yukiko review of article by Masahiko Uesugi, "Kinsei somp6 no
seikaku," Minshushi kenkyfu (No. 7) 22 (1969) in 21 Hoseishi kenkyui 226
(1971).
21. See Maeda Masuharu, "Ryoshuh6-jo no keibatsuken to mura seisai to
no kankei," in H6seishi Gakkai, ed., Keibatsu to kokka kenryoku (1960),
p. 101.
In a word,the systemdid not encouragecivil petitionsto superior

authorityabove the village level. When such a petition did occur, it
seldom went beyondthe first instance (Deputy), makingthe Deputy
the first,as well as final "court"of appeal.But as noted, the workings
of the Deputy's court in civil disputes, unfortunately,is a subject
about which we know too little. The same lack of knowledgeapplies
to civil litigationin the many domainsof the daimyo.
The sketch above suffersfrom the usual oversimplificationsim-
posed by brevity, but it will help to understandthe context of the
agreementsscrutinizedin this study. The rural village was the home
of about 80 per cent of the late Tokugawapopulationof 25 to 30
million people. The rest of the people (about 20 per cent) lived in
varioustowns;most of the majorones were castle towns (jfkamachi)
which served as the seats of the feudal governmentsof the Shogun
(Edo, Kyoto, and Osaka) and major daimyo (Kanazawa,Nagoya,
Sendai, Kagoshima,and others). These towns, as centers of govern-
-ment and accompanyingcommerce,were inhabitedby large groups
of townsmen (chonin) and warriorsdrawnfrom the lands and con-
centratedthere. They constitutedan elite (or wealthy) element with
differentsocial statuses, roles, work, interests, and tastes than the
rural majorityin the villages. As such, the towns generatedmany
kinds of sophisticatedtransactionsand agreements,often quite dif-
ferentin substancefrom village agreementstreatedherein.The "town
agreements"were mostlycommercialand financialand often between
merchants,or merchantsand warriors.It was for them that the money
suits (kanekuji,see below) were developedfor enforcementof their
businessclaims. Jurisdictionalrules were such that town transactions
were more frequently suitable for court enforcementthan village
agreements,and thereforemore akin to a legally enforceable"con-
tract"of modernusage. Hence, they are quite anothersubjectto be
treatedon anotheroccasion.22
Distinguishedas they should be from the towns, we emphasize
again that ruralvillageswere not all the same. Also in the late Edo
period, they did have their own commercialactivitiesof some scope,
especiallyin the Osaka and Edo vicinities.Most villages had special
problems,internaland external,arisingfrom history, location, size,
22. Kobayakawa Kingo, p. 529 notes that the typical villagers' (murakata)
suit was the land dispute (ronsho) and that of the townsmen (machikata),
the money suit (kanekuji). We are emphasizing that typically litigation in the
Edo courts, where kanekuji constituted the bulk of the case load, was not
ordinarily available to a rural Tokugawa villager, because of jurisdictional
problems (see text below).
and social composition.For example, Anyoji and Utsunuki had all

the transportaccountingproblems of an assisting village (sukego)
because they each adjoined one of the great post roads; Komatsuji
had the opportunityto supplycharcoalto the nearbyShogunatesilver
mine; Minobe, bounded on one side by a fluctuating,wide riverbed,
had perennialboundarydisputes.23Variationsflowingfrom theirloca-
tions in differentkinds of fiefs were also important.All of our rural
villages are on the island of Honshu. Some of them (e.g., Minobe,
Jiigoj6, Oshihara,Komatsuji,and Goda) were in the Shogun'slands;
others (e.g., Matsuo, loka, Anyoji, and Narumi) were in daimyo
domains (han) of various kinds (e.g., Narumi: go-sanke; Matsuo:
fudai; Anyoji: kamon, etc.). One village (Utsunuki) was in the fief
of a Bannerman(hatamoto).
TokugawaUses of Agreements
To recapitulate,we have suggestedthat some Tokugawavillage
agreementswere instrumentsof "governanceby consensus";written
and filed with the village officialsin standardform and phraseology
they were a formaltype of social communication-a way to integrate
purposes, or organize efforts, to store informationand to achieve
understanding.The rural village was often rather small with only a
few hundredpeople and, as an economicand social unit, was largely
self-containedand with little ingress and egress of persons; the vil-
lagerswere thus engagedin a kind of daily life of remarkableimmo-
bility and consequentsocial density; this quality of village life did
change somewhatover time, but still immobilityremainedits out-
standingfeature.
In part, Tokugawasocial densitywas a functionof the rice cycle,
with intense demandsfor intramuralcooperationin planting,irrigat-
ing, and harvestingrice in response to rigoroustiming imposed by
nature.In part social density was, however,a productof the overall
"feudal"regime,becausethe village was the basic taxpayer,required
to meet fixed annual tax deliveries to the overlord, entirely from
intramuralresources.
Moreover,the village was chargedby the regimewith the obliga-
tion to serviceits own needs includinginternalgovernanceand adjust-
ment of civil disputes.Or, stated in legal (and artificial) terms, this
was a profoundlypervasivedelegationof authorityto the village to
23. There is such a Hy6j6sho judgment dated 1680 for Minobe village
boundaries in my collection.
get it to attend to its own business.As a matter of jurisdiction,the

Tokugawavillagewas empoweredand obligatedby the feudal author-
ities to manageits own internalaffairs,in accordancewith its custom-
ary law with minimalintrusionsfrom the law of the overlord(hatto)
so long as the tax was paid.24To encourageself-reliance,the overlord
denied the village access to his courts or police for enforcementof
civil law, except in cases verifiedby the headman'sseal.25My evi-
dence here is meageras to concretepractice,but my guess would be
that such petitions as there were, would have been the subject of
intramuralconciliation.Perhapsvillage sanctionsmighteven be used
againstuncooperativeparties,in an effortto agreeupon and document
a settlementwith which the villagers could live in the future. Also
the reversetactics sometimesoccurredwhere threatof suit was used
to bring an opponentin line (see No. 2). Despite reluctanceto sue
and attemptsto conciliate and keep the dispute in the village and
settle it there, still the impressionI have from reading the village
documentsthemselvesis thattherewas morepetitioningto the Deputy
than prior generalizedaccounts might indicate. Also, one does not
find much evidenceof the fear of officialdomamong the villagesthat
some secondarysourcesmightlead one to believe was widespreadin
ruralJapan.
With this backgroundin mind, one is forced to consider again
the usefulnessof our legal language-even such basic categories as
"private"and "public."Privacy must have been most difficult to
come by, especiallyin the smallerTokugawavillages.Of course some
transactions,such as family arrangementsand loans, were more
"private"than others; for example, our agreementNo. 3 (success
loan), 4 (succession/adoption/marriage),and 5 (prenuptial). Oral
agreementsthere were, apparentlyeven enforceableones:216 informal
24. Actually it is closer to the mark to recognize that the Shogunate, like
other premodern governments, never did have the power or resources to
impose its rule on all details of the daily life of the farmers; so this delega-
tion might be better seen as actually an acceptance of administrativeweakness,
just as the harshness of the criminal law was a sign that its bark was worse
than its bite.
25. Ishii Ry3suke pointed out, in his review of my Conciliation and
Japanese Law, in 83 KGZ 1369 (1966), and in 2 Law in Japan 216 (1968),
that the requirement that the headman seal a villager's petition to the Deputy
was only to identify the petitioner as registered in the village, not to make the
headman's approval necessary to suit. I agree, but given the acknowledged
duty to conciliate, I expect it amounted to much the same thing in fact.
26. See kon'i no aidagara, Harufuji, "Kinsei saikenho," S Kanazawa
hJgaku 207 (1959); and Nakada Kaoru, Tokugawa jidai no bungaka ni
mietaru shio6 (Meijid6, 1935 reprint), p. 31 (te-uchi).
writtenagreements,not officiallysealed or recorded,were also prob-

ably used in some volume (No. 5). And, there were indeed "private
matters"(nakamagoto),includingjoint enterprises,theatricalpromo-
tions, and mutual financing (mujinkin), which were not deemed
appropriatesubjectsfor suit by Shogunatepolicy, and thereforewere
rejectedat court (see below). But the written "private"agreements
of our study were nearly all signed by third parties and reportedto
the village offices to insure future enforcement (note No. 5 as an
exception); so formaland meticulouswas this witnessingand record-
ing that one hesitates even to label these as "private"dealings. As
noted, some of the agreements,rigorouslysealed by communaldigni-
taries, should be regardedas public instrumentsof consensualgov-
ernance,ratherthan simplyprivate agreements.
To pursue further this emphasis on consensual governance,we
find, first, that there are a number of agreementswith a "constitu-
tional" importance.For example, there are several (No. 6 is an
example) where the method of selection and the position of the
headmanare decided,in a "constitutive"sense, by agreement.Others
redefineofficialduties and rightsof the village members.Intervillage
agreements,related to boundaries (or related taxes), may also be
regardedas constitutivein a broad sense. When consensualsolution
failed, only then were village boundariesset by superior authority.
Many "legislative"functions were also achieved by this sort of
documentedconsent, such as transportrules and use of commons
(No. 7). Budgeting and auditing problems were also handled by
agreements,as were fiscal difficultiesof the village, eitherin financing
tax paymentsor village expenses. Similarly,village agreementswere
used to finance social welfare End relief measures in a variety of
circumstances,and they were used sometimes to refinance village
temples.
In the "judicial"sphere (dispute settlement), agreementsplayed
even a heavier role in governance,for officiallynurtured,negotiated
settlementsdocumentedby agreement(wabijoandsumikuchishomon)
for the futurewere such a predominantmeans of resolvingconflicts27
that "adjudication" occurredonly as an extrememeasure(see below).
Even criminalmatterswere compromisedat the villagelevel and kept
from becominga "public"matterwith the overlords(No. 2).
Continuallydiscussing, communicating,and reporting within a
27. Henderson, Conciliation and Japanese Law (1965), Vol. 2, Ch. 6;

Otake Hideo, "Kinsei suiri sosh6h6 ni okeru 'naisai' no gensoku," 1 Hoseishi
kenkyii 183-212 (1951).
small fixed group resulted generally in a village consensus-as a

means of governanceand a way of life. And the impressionthat re-
mains from workingwith village documentsand vicariouslyexperi-
encingthe underlyingactivitiesis one of profoundsocial (as opposed
to legal) efficacyin the process;village problemswere such face-to-
face personalmattersand their solutionsso consensualand agreeable
that one almost instinctively,when describingthe process, puts the
English legal terms in quotes-"legislative" or "adjudicative"or
"constitutional,"even "procedural"or "substantive"to signal the
clumsinessof such conceptualbaggage from another milieu.28Also
one often gets the same impression when encounteringmodern
Japaneselegal terms being used to describe these same Tokugawa
agreements.29 Even more inept seem the emotive jargonof the many
Marxistsin Japaneseacademiawho work extensivelyin Tokugawa
village studies.30
But language and concept are not the whole problem;perhaps
even more troublesomeis the awkwardperspective,noticed above,
which accrues from a tendency in the past to look predominantly
from the top down (i.e., throughShogunatematerials) in order to
see the village insteadof looking directlyat the village itself through
its own materials-to the extent possibleat this late date. In the past,
distortionof the criminalaspectsof village life may have come from
looking at the village througha screen of Shogunallegal materials
(the Osadamegaki,Ofuregaki,Oshiokireiruishuiand the like), which
on theirliteralface are more Draconianthan in real life the overlords
were able (or indeedintended) to be, at least in the later period.For
instance, there were, of course, many more apprehendedacts of
adulteryin the villages (see No. 2) than there were decapitationsin
response thereto, even though the Shogun said: "If you commit
adultery,you will be beheaded."3'And even when the authorities
banisheda man from the village, he might in fact make his peace
there and come back (No. 8). Inadequateas this samplingof agree-
ments may be, it still lends to village dealingsa certainconcreteness
28. See my more detailed discussion of these language (and conceptual)
problems, Henderson, Conciliation and Japanese Law, 1, Ch. 3.
29. Kaneda Heiichir6, Kinsei saikenhb, Shih5 shiry6, (No. 298) 1948,
262 pp.
30. See Yamamura, "Towards a Reexamination ." for citation to repre-
sentative sources with Marxist colorations of one sort or another.
31. Osadamegaki, gekan, Article 48; in English see 51 (Pt. V) TASJ 741
(1913), John C. Hall's translation. There were, however, Shogunal legal
provisions which also recognized the parties' rights to settle adultery grievances
privately.
worth savoringand balancing against the impressionsgleaned from

officialdecrees.
It is because of problemsof perspectives,concept, and language
that I have up to this point called these documents "agreements"
and not "contracts"(or even Japanese keiyaku). As noted above,
"contract"is a term that, especially to lawyers (as opposed to lay-
men), means an enforceableagreement,and that means enforceable
in "court," either by "specific enforcements,"or "compensatory
damages,"or "recissionand restitution,"or other "remedies."These
"remedies"are all ordered by "judges"in accordancewith "law"
(substantive rules) after a "suit," handled by "civil procedures"
manipulatedby "lawyers."Such legal trappingsdid not much burden
the agreementsof Tokugawavillagers,even though they used agree-
ments ratherpervasivelyin their daily lives, and even on occasion
sought extra-muralaid in resolvingdisputes arisingfrom them.
To pursue this point a step further, contemporarylawyers not
only take contractsto court; they also advise clients and draft con-
tractsso that lawsuitscan be avoided.But, if need be, lawyer-drafted
contractscan be enforcedin court. Indeed, part of a contract'svalue
springsfromits presumedenforceability,thus enhancingperformance.
In that sense the performance-minded client and the breach-minded
lawyer have a common purpose. But still the present-daylawyer's
emphasis on contract enforcementsets him apart from his client's
predominantconcern for performance,and consequentemphasison
the communicative,coordinating,predictivefunctions of a contract
to facilitate a common course of future action between the parties.
Comparing the foregoing contemporaryinsights to Tokugawa
village agreements,the point is, of course, that in the village the
emphasis,on the performance/enforcementspectrum,was weighted
very heavily on the side of securing voluntary performance,and
"court"enforcementwas but the remotestpossibility.We will explore
that remotenesslater.
To ensureperformancethere was greatingenuityin the documen-
tation, and in creatingdevices for self-enforcementby the creditor32
32. See Kaneda Heiichir6, "Kinsei no shiteki sashiosae keiyaku," 14
H6sei kenkyii (Nos. 3 and 4) 110-36 (1946). Although contracts for credi-
tor's self-help in case of breach were improper by the late Tokugawa period,
these articles show that they did exist. Haruhara Gentarb, "Kikimimi 'hasan-
nin' monjo," 17 Hbritsu no hiroba (No. 5) 50-52 (1964). Note the functional
similarity of the witnessing and recording done by the village headman and
the modern system of notarial deeds, upon which judgment for a sum
certain may be entered without further proof. See Koshonin-h5 Articles 35 and
36, and Code of Civil Procedure, Arts. 559-60,
or substituteperformancefor the debtor.Essentialfacts of the trans-

actions were acknowledged,attested,and recordedto avoid the dif-
ficultiesof contentiousassertionslater. If the debtor later could not
pay or perform,then there were third parties indisputablyobligated
as guarantors,and they too were constrainedby the same communal
pressuresto perform,if possible.33Indeed, the;outstandingfeatureof
legal draftsmanship,clear from these Tokugawaperiod documents
themselves, is the skill with which such devices were employed,
perhapsbecauselegal remedieswere largelyunavailing.
Still, in TokugawaJapanthere were public enforcementmethods,
and we need to considerthem next. But we need to view enforcement
firstfromwithinthe village-social enforcement.Almostall "contract"
enforcementoccurredin the village, I believe, and it was not "legal"
enforcementin our latter-daylawyers'usage. The solutionwas rather
by psychologicaland communalpressures,and by conciliationof the
sort that we have suggestedanthropologistsseem better equippedto
deal with thanlawyers.34It is difficultnow to illuminatepast processes
within the village with concrete descriptionsbecause the remaining
sources availabletell more of results than of process. But "social"
enforcementwithinthe village was probablyas effectiveas any legal
enforcement,and should not be depreciated.Breach was surely a
seriouscommunitymatter,because,as is clear on their faces, most of
these agreementswere communal affairs, witnessed, guaranteedby
relativesand third parties, and filed with the headman;furthermore,
the partiesnot only usuallyknew each other intimately,but everyone
the partiesknew, knew each other and probablymost of each other's
dealings.Furthermore,debtorscould not move away from the enmity
and disrespectflowinginevitablyfrom a promisebroken.
33. See John H. Wigmore, Law and Justice in Tokugawa Japan, 2:6-10
saying not all sureties were actually liable if the principal debtor defaulted.
It varied by custom from place to place.
34. "Social" as opposed to "legal" enforcement implies some stipulatory
definition of "law" on my part in favor of "positive law" of course. Lawyers
and anthropologists,especially, have experienced mutual difficultiesin the past,
in understanding the "law" of each other in the premodern communal con-
text. Earlier I have suggested that inchoate functional analogues to the lawyer's
fully developed and specialized apparatus of justiciability are indeed identi-
fiable in primitive societies and that this might be called a regime of "anthro-
pological law," because it takes a trained anthropologist to ferret it out and
make it understandable to the rest of us. See Henderson, Conciliation and
Japanese Law, Vol. 1, Ch. 3. Here I want to emphasize that what I call
"social enforcement" (akin to "anthropological law") was important, and
indeed "enforcement."
Henderson: Tokugawa"'Contracts" 67
So we can suppose that enforcementwas first implementedby

individualpsychologicalinstinctsto conform.Furthermore,one may
suppose that breach seldom occurredexcept from necessity, and in
such cases therewere few issues of disputedfacts to deal with because
the documentsstated the backgroundand most everythingelse was
common knowledge.Amicable settlementwould depend on finding
what would be acceptableto the creditor,short of full performance,
and within the future capabilitiesof the embarrasseddebtor. If the
debtor was dishonest,tricky, or mean, the village could find a way
to sanctionhim by ostracismor the like.35Village sanctionwas very
seriousin an immobilelittle society.
But the partieswere not left to their own devices entirelyeither;
the village throughits spokesmenbeginningwith the five-mangroup
presumablybecameinvolvedbefore a disputeburstout of the bounds
of the village. Indeed, "feudal"policy throughoutJapan encouraged
the village throughthe elders and headmanto settle disputes;most
settlementswere achievedby negotiation,conciliation (atsukai) and
agreement(see No. 2). Only if the conflict was irresolvableby the
village or mediatorswould a petition be brought to the overlord's
local office, duly verifiedby the headman;when "social"enforcement
failed, legal recoursemightbe sought.We need also to consider,as a
second stage, this legal kind of contractenforcementbeyond the vil-
lage upward, whereinthe authorityof the overlord was invoked in
case of breach.In special circumstances,contractswere "justiciable"
in the Tokugawa"courts,"but from the villagers'perspectivethese
possibilitiesmust have appearedquite remote.
ContractEnforcement
Why were the overlords' "courts"but remote possibilities for
satisfactionof claims of the ordinary Tokugawa villager? If three
featuresof the immenselycomplex system of Tokugawajurisdiction
(shihai)36 are kept in mind from the outset, it is easier to grasp
contractenforcementfrom the bottom up as it may have appeared
to the Tokugawavillagerfaced with a nonperformanceproblem.First,
exclusivejudicialauthorityto decide all civil disputesarisingbetween
35. See Maeda Masaharu, "Ryoshuh-j6 no keibatsuken to mura seisei to

no kankei," in HOseishi Gakkai, ed., Keibatsu to kokka kenryoku (Sabunsha,
1960) 101; and Fuse Yaheiji, "Mura hachibu no sosh6," 23 Nihon hogaku
(No. 3) 376-89 (1955).
36. Kobayakawa Kingo, (1957) is still the most detailed work on this
subject; in English, Henderson, Conciliation and Japanese Law, Vol. 1, Ch. 4.
partieswithina single fief, of which there were hundreds,was rigor-

ously delegated to the fief-holderhimself (i.e., daimyo, hatamoto,
etc.) with little or no rightof appealby the partiesfrom his decision.
So most of Japanwas beyondthe reach of Shoguncourtsin contract
disputes, because the daimyo and hatamoto settled them without
recourse.
Second,even withinthe Shogun'slands (in a sense the largestfief,
i.e., one-seventhof Japan), the Deputy (daikan) office, not the Edo
ConferenceChamberwas the court of last resort,because no appeal
of a Deputy's decision was providedfor villagers in the usual civil
matter. The same system may have prevailedin larger daimyo do-
mains as well. But absent a right to appeal, the villagers' "court"
(first and final) was the Deputy's office throughoutthe Shogun's
lands, except for diversitycases to be discussedbelow.37There are
two points to mentionhere though: (1) in case of a Deputy'smal-
feasance,petitionswere authorizedand a Plaint Box was installedin
Edo to receivethem; (2) appealswere sometimesthrustupon higher
officials illegally (osso) and even though the penalties prescribed
against illegal appeals were heavy, the penalties were often not
imposed.38
Third, as we explained in detail above, even the lowest feudal
authority(Deputy) furtherdecentralizedjusticein "contract"matters
to the village itself. Rather than cherish the nightto adjudicate,the
prevailingofficial attitude at all levels of feudal authoritywas that
civil disputesshouldbe settledby the villagersthemselves;they were
only officiallynoticed as a matter of grace, not right. This extreme
decentralizationof justice in the Tokugawaregime contrastssharply
with the more familiarexperienceof feudal Europe. Except for un-
usual cases, "contract"enforcementin feudal Japan for the villagers
was sought, not even in the Deputy's "court,"but in his own com-
munity.
This is but an aspect of the broadersystem, which I have called
37. The most detail on the Deputy's handling of suits (criminal) is found
in Hiramatsu Yoshir6, Kinsei Keiji sosh3ha no kenkyii (S~bunsha, 1960),
p. 460; see also Nagayama Usaburo5,Hayakawa daikan (Gannando, 1971
reprint of 1929 edition); Ishikawa Junkichi, Edo jidai daikan seido no kenkyfi
(Nihon Gakujutsu Shinkakai, 1963); and Watanabe Ichir6, ed., Hikone-han
Setagaya daikan kinjiroku (Yoshikawa Kobunkan, 1961); Murakami Tadashi,
Edo bakufu no daikan (Shin-jinbutsubraisha, 1970).
38. Two examples noted in my reading: Nagayama, Hayakawa daikan,
p. 584; Wigmore, 1:110. The former involved a protest against an official
change in the rate by which the rice tax was converted to money for payment.
See also Yamamura, p. 527 (1973) on this kind of petition.
a rule of status: as a status group the farmersorganizedas a village

were subjectto standardizedlegal control and taxes; but by the same
implicationof their status, they were "empowered"(or they were
"free") to managetheirprivateaffairsconsistentwith their customary
law and regulations.
But there were some contract cases settled by recourse to the
"courts."Given the three principlesof decentralizationof justice, the
villager's chance to litigate his contract claim outside the village
existed mainlyin the three followingsituations:
1. The Deputy for the overlord would accept a petition and
renderjudgment(saikyc) even betweenpartiesfrom the same village,
if the disputehad become too much for the village to handle and the
headmanendorsedthe petition.Usually the Deputy simply mediated
and got the mattersettledwithouta judgment.
2. The Deputywould accept a villager'spetitionagainsta defen-
dant from anothervillage in the same fief, if the village officialsalso
endorsed. Similarly,petitions where the whole village itself was a
party against anothervillage in the same fief would be accepted by
the Deputy. Actually this was a common type of suit to reach the
overlord'scourt, but more often involved were boundariesand com-
mons, ratherthan contracts.
3. In diversity disputes (shihai chigai), a lawsuit was the
usual way to settle a dispute. The ShogunateConferenceChamber
(Hyojotsho) in Edo was authorizedto accept these diversity suits
(where the partieswere from entirelydifferentfiefs, not just different
villages). Sometimesdiversitywas caused because the parties were
under the supervision (shihai) of differentShogunal offices. These
ConferenceChambersuits requiredboth the prior endorsementof
the petitioner'svillage officialsand then the fief officialsbefore they
would be accepted in Edo (or Osaka).39
In the Kinai and Kanto areas diversitysuits, involving villagers,
were quite numerous. Our agreementsbetween parties within the
same village, therefore,must be distinguishedrigorouslyfrom those
between partiesfrom differentfiefs or villages, when consideringthe
possibilitiesfor a suit. Intramuralcivil suits were relatively scarce.
This prior discussionfinallybringsus to the village contractlaw
as enforcedby lawsuits (kuji) in the Edo courts,40and deliberately
39. See an interesting step-by-step description of Edo litigation as ex-
perienced by a farmer and recorded with some detail in his diary and also
other case records in Nakada Kaoru, 3 Hdseishi Ronsha 753-904; Henderson,
Vol. 1, Ch. 6.
40. Tokugawa civil litigation has not been studied as much since World
this topic is taken up last after much tracing of the path from the
village to the court (bugyd or hyofjosho)in Edo, especiallytryingto
view that path from the eyes of the petitionerratherthan from the
eyes of the judge.Supposethen that we have a villagerwith a diversity
case based on an agreementsigned by a debtor from, for example,
anotherdaimyodomain.Our petitionerhas done his brushand paper
work,collectedhis seals from headman,daimyo,and bugy6,travelled
by shank'smarefromvillageto Edo, and is ensconcedin an inn espe-
cially licensedto house and vouch for itinerantlitigants (kuji yado)
and ready for his "day in court."4'What are the special features of
Tokugawacontractlaw and enforcementrelevantto such an agree-
ment?
The core of law for contractenforcementin Tokugawajurispru-
dence was encompassedwithin a hierarchyof gradedproceduresfor
four categoriesof claims:
Land (and water) suits (ronsho)42
Main suits (honkuji)
Money suits (kanekuii)
Mutualaffairs(nakamagoto)
We say "gradedprocedures"because under Shogunatepolicy,
land claimsdeservedmorejudicialprotectionthanthe claimsinvolved
in main suits;and claimsin main suits deservedmore protectionthan
War II as the criminal law. The leading study is still Kobayakawa Kingo,
Kinsei minji sosh5 seido no kenkyfi, Maki Kenji, ed., (Yfihikaku, 1957). This
is a reprint of most of Kobayakawa's pioneering articles published in Hogaku
rons5 before and during World War II. Also for a simple summary of civil
procedures see Kobayakawa Kingo, Nihon kinsei minji saiban tetsuzuki no
kenkyii in Nihon h5ri sosho, Vol. 18 (Nihon Hori Kenkyfikai, 1942) 141 pp.
Particularly interesting recent articles related to contract litigation are:
Harafuji Hiroshi, "Aitai sumashi-rei k6," Kanazawa daigaku hobunagkubu
ronshfi, hokei hen (No. 2) 1-32 (1955); Harafuji Hiroshi, "Kinsei saikenho-j6
ni okeru sh6sho no kin6," 4 Kanazawa hogaku (No. 2) 77-116 (1958), 5 id.
(No. 2) 47-79 (1959); 6 id. (No. 1) 35-68 (1960); and Ishii Ry6suke,
"Meyasu tadashi, aitai sumashi-rei oyobi nakamagoto-kinsei saiken-h6 no
setten," in 1 Kikui sensei kentai ronshui: Saiban to ho (Yfihikaku, 1967)
pp. 49-107 (hereafter, Ishii, "Meyasu tadashi").
41. In Edo litigation the "judge" (bugyo) was an administrative officer,
for whom trial of cases was but a side duty. There was, in other words, no
separation of executive and judicial powers. Actually the detailed handling
of cases-evidence, testimony, records, searching for applicable precedents
and decrees-was done by clerks (tomeyaku, etc.) under the bugyo. When
we use the terms "judge,""court,""trial," these features of the Edo judiciary
must be borne in mind. There was no independent court in the modern sense.
42. Kobayakawa, p. 418 (1957).
those in money suits. So the proceduresand remedies used by the

court to assist the petitionerin realizinghis due were quite adequate
to enforce a land claim; somewhatless so for a main suit; and quite
toothlessfor moneyclaims.Excludedentirelywere some contract-type
claims involved in mutual affairs (nakamagoto), which for policy
reasonswere not accordedjudicialenforcementat all (toriagenai).43
The well-protectedland claims were the typical suits broughtby
villagers to protect land titles, boundaries, commons, and water
rights.Whererice was the base of the public fisc, it is not surprising
that these disputeswere accorded the top protectionin the courts.
And, of course,if villagesfrom two differentfiefs had a boundary(or
otherland) or waterdispute,they could get it settledin Edo, provided
theirvillage and fief officialsendorsedthe complaint.But we are con-
cernedhere with contracts,which fell into the two categoriesof main
suits and money suits;these two categoriesincludedmost of the con-
tract claims justiciable in Tokugawa times. So the differencesin
remediesaccordedto main suits and money suits are most relevant
to our subject.The chief differenceswere as follows:
1. Most important,in money suits the judgmentorderedpayment
by limited money (kirigane) installments;whereas in main suits,
stricterlump-sumpaymentwas orderedon a day certain.
2. The initial endorsement(after presentinga petition) for a
money suit usually containedinstructionsto first conciliate.That for
a main suit ordinarilydid not.44Since endorsementsignified accep-
tance of the suit, it was essential to determineimmediatelyafter a
petition was presentedwhetherit was a main suit or a money suit.
3. Compromiseof a pending suit could be done by petitioner's
seal alone in a money suit; both had to seal a main suit settlement.
4. The occasionalPrivateSettlementDecrees (aitai sumashi-rei)
declareda moratoriumonly on court enforcementof money claims.
5. Dates at court for handlingthe two categorieswere different.
The real differences,then, which weakened the protection of
money suits were (1) pressureto settle before trial, (2) the dilatory
paymentschedulefor judgments,and (3) the occasionalmoratoriums
(aitai sumashi-rei)duringwhichthe courtswere orderednot to accept
43. Osadamegaki, gekan, Article 33. See Kaneda Heiichirb, "Waga

kinseihoi ja no 'nakamagoto',"46 KGZ 545-63, 683-708 (1932).
44. Ishii, 83 KGZ 1369 says that endorsements for both main and money
suits required preliminary conciliation in diversity suits where one party was
from Edo as with the "nanuka uragaki" as prescribed by Osadamegaki,
gekan, Article 1.
and enforceany money claims incurredprior to a certaindate at all.

These occurredin 1661, 1682, 1685, 1702, 1719, 1746, 1789, and
1842 with differingconditionsattached.45
For contractlaw, then, we need to know the "substantive"rules
used to separatethese two kindsof contractclaims called "mainsuit"
and "moneysuits."46Essentially,claimswere classifiedas moneysuits
if they included,besidesprincipal,a claimfor interest.Also, unsecured
claimswere often money claims, even when no interestwas charged.
In fact, some authoritysuggeststhat historicallythe lack of security
may have been the most essentialelementof a money suit.47Secured
claims (withoutinterest) were main suits.
Taken as a whole, this complexof Tokugawarules and remedies
for contractenforcementresemblesmuch the Englishforms-of-action
at the earlycommonlaw courts.As Sir HenryMaineput it, "substan-
tive law has at first the look of being graduallysecretedin the inter-
stices of procedure."48 And contemplatingTokugawacontracts,it is
hard to imaginea better example of the conceptualinadequaciesof
the procedural/substantive classificationin attemptingto analyzeearly
legal growth.Are these rules separatingmain from money suits sub-
stantiveor procedural?Do they tell us what contractsare enforceable,
or do they, instead,tell us how claims are enforced?
Be that as it may, by settingup two contractcategoriesand pro-
viding much weaker remedies for one of them (money suits), the
Shogunate perpetuateda system for legislatively favoring certain
interestsover others by simply classifyingthem as main suits. The
distinctionhad its beginningwith the Mutual SettlementDecree of
1702, but it became a clear division between 1706 and 1719. Still,
it was not specificallydealt with in the Osadamegaki(1742), and the
distinctiondid not reach its mature form until 1767 when lists of
main suits and money suits were embodiedin a ConferenceChamber
resolutionas follows:49
45. See Ishii Ry5suke, also Harafuji Hiroshi, both cited in Note 40 above.
The 1719 decree outlawed suits on future money claims too, until 1729.
46. Kaneda, Kinsei saiken-h5 (298 Shih5 shiry5) (1948), and Kaneda,
"Tokugawa jidai no tokubetsu minji sosh6h&-kanekuji no kenkyfi," 42 KGZ
1934-84 (1928) and 43 id. 1136-64 and 1423-45 (1929). These are still the
most detailed work on contract law and money suits. Also for main suits, see
Kobayakawa, p. 543.
47. Ishii, "Meyasu tadashi," p. 73.
48. Sir Henry Maine, Dissertation on Early Law and Custom, p. 389
(1883).
49. Minji kanreishfi, sosh5 no bu in ShihO shiry6 (No. 216), p. 80-81
(1936).
LIST OF HONKUJI
(From Minji kanreishti,sosh6 no bu 80-81 [1936]
Shiho shiryd,No. 216)
1. Shichichi Land pledge.
2. Sakutoku Land owner'sshare of crop.
3. Kaiazuke-mai Rice boughtand stored (with another) after
full payment. (Buyer's claim for the rice
againstthe custodian).
4. Yokin (azuke-kin) Deposit money (claim againstthe custodian
of money).
5. Kyakin Wage money (here the employer pays in
advance, then, if the laborer fails to work
out his term, the employer'sclaim for re-
imbursementof wages advanced is called
kyakin).
6. Tana-date Shop evacuation (owner's claims against
lessee to vacate).
7. Zatsu yokin Miscellaneousmoney (litigant'sclaimagainst
the village for expenses in excess of food
and lodging while in court. Also seems to
have covered other miscellaneousexpenses
incurredfor another).
8. Yuzuri-kane Grants of money (usually from parent to
childrenor the like).
9. Ie-shichi House pledge.
10. Shiki-kin Lessee'smoneydepositedwithlessor (money
deposited as guarantee to lessor against
loss or damagecaused by lessee).
11. Hikioi-kin Liabilitymoney (claim for moneylost from
employee's default or the like, usually the
principalsuing the guarantor).
12. Ryogae-kin Money changer'smoney (claim for money
depositedwith the changer).
13. (Uoba) Ukeoi-kin Money deposited with lessor of a fishing
place.
14. Kawase-kin Money on a bill of exchange (claim based
on a bill of exchange).
15. Yagu todokori Claimfor returnof furnishingslent.
16. Kosakutodokdri Delay in deliveryof tenant'srent.
17. Funadokodeiri Suits regardingboats (lease or mortgage,
etc.).
18. Funshitsu-butsu Owner'sclaim for lost goods.

19. Kaitoriokikaezu Stolengoods boughtup and not returned.
20. Iekurato uri- Claim for a house or storehousesold and
watashi-kin transferred(actually mortgagedbut in the
form of a transferto the lender).
21. Kakoyataimaekin Claim for wages advancedto sailors.
22. Kamiyuidokonara- Suit regardingmortgageof the business to
bini mawari-basho do hairdressingat a hairdresser'sshop or
at severalplaces.
23. Ginsatsuhikikae Claim concerning the exchange of Silver
Certificates.
LIST OF KANEKUJI
1. Urikake-kin Claims for money due on goods sold (on
credit, but no interestrecoverableon these
claimsin Edo).
2. Jisan-kin Claimfor returnof dowry.
3. Tezuke-kin Claimfor returnof earnestmoney.
4. Tatekae-kin Claimfor moneypaidfor another'saccount.
5. Senno-kin Claim by taxpayerfor tax rice paid in ad-
vance (and for interestthereon).
6. Kakiire-kin Claims for money lent (with a mortgage
securityand interest).
7. Kankin Claim for money lent by the blind (well
protectedwith securityand high interest).
8. Shid6-kin Claims for money lent by temples (these
were most fully protected).
9. Shiire-kin Claim for money lent for stock of goods.
10. Tanachingin Shop rent.
11. Kashi-kin Loan money.
12. Fushin-kin Claimsfor constructionmoney.
13. Ritsukiazuke-kin. Deposit money with interest.
14. Ritsukisadame Money on a bill of exchange with fixed
kore aru kawase- interest.
kin
15. Shiokuri-kin. Claims for money lent (to warriors).
16. Kome hikiate Loan money securedby rice.
kashigin
17. Nempu-kin Claims for money lent to be repaid by
annual installments(recognizedin 1759).
18. Ginsatsuhikikae Claimsfor redemptionfor silver certificates

(bills).
19. Shokunintema Claimsfor wages of artisans (also employ-
er's claims for wages advanced).
20. Chidai-kin Claim for land rent (on which a house has
been built by the lessee).
21. Sonryo-kin Claim for rent (sonryo) for personalprop-
erty.
22. Kome tezuke-kin Claim for returnof earnestmoney paid on
rice purchase.
23. Uma daikin Claimfor price of a horse.
24. Hanryotodokciri Claimfor delayin payingfor meals (board).
25. Tema-chinmae- Claim for wageslent in advance.
gashi
26. Magirawashiki Claim for wages mistakenlypaid (treated
kyikin tadashi as wages lent in advance).
tema-chinmaegashi
ni junsu
27. Sho dogu azuke- Claimfor wagespaid in advanceand money
kin chingin paid on depositof tools.
28. Sho d.3gu-rui Claim for money lent on mortgageof vari-
shomonni kingin ous tools.
kashi
29. Shobutsuuriwa- Claimfor money lent securedby bill of sale
tashishomonni documentcoveringvariousgoods.
to kinginkashi
30. Hairyoyashiki Claimfor money lent securedby mortgages
chidaitana-chin on house rents or land rents on residences
kinsu kashi receivedfrom the Shogun.
Additions and some shifting between the two lists of claims

occurredup until 1843, or even later, but we need not trace those
details here. The significantpoint is that in the precise definitions
distinguishingthese fifty-oddclaims, as well as in the precise defini-
tion of the line between main and money suits, lay much of the
substantiverefinementsof Tokugawa contract law. The precision
of definitioncame from the need to classify the kind of transaction
involvedin a petitionin order to take even the first step in handling
it; namely, the endorsementon the back (uragaki), which required
conciliation,if it was a money suit, but did not requireconciliation,
if it was a main suit. The requiredelementsof each of the fifty-odd
suits are difficultto trace in the materialsremainingtoday. It would

be a great advanceif actual contractdocumentscould be found and
publishedcorrespondingto each of the main suits, and also to each
money suit.50
Importantconsequencesflowedfrom the immediateneed to clas-
sify the claim in a petition. It required a preliminaryproceeding
calledExamination-of-the-Petition (meyasu-tadashi)in orderto deter-
mine whetherthe petition and documents (shomon) were sufficient
to support a right to sue (soken). The examinationwas done by
clerks (tomeyaku), not the "judge"(bugy5) himself,and it was done
ex parte before the petition was accepted.In other words, it was in
our terms an administrative,not a judicial, proceeding.The clerks
checkedformal aspects, such as the name, identity,and residenceof
the plaintiff,the name of the suit (kujimei), and approvalsof officials.
But errorsof form could ordinarilybe corrected,withoutseriousloss;
the crux of the examinationwas the scrutinyof the contract docu-
ments becauseenforceabilitydependedon a properlydrafted,sealed,
and witnesseddocument: (1) the petition would not be acceptedat
all, nor the defendantsummoned,withoutthis ex parte determination
that the documentwas properand embodiedone of the listed claims;
(2) only after the documentof agreementwas examined,could the
clerks decide whetherit was a main suit or money suit, and hence
how to endorsefor treatmentprocedurallyduringtrial. Much ingenu-
ity was displayedin documentsof the period in tryingconsciouslyto
make money claimslook like main claims.
Also, many otherwisevalid documentsembodyingmoney claims
were periodically denied court enforcement (toriagenai) by the
Mutual SettlementDecrees. In such cases, the parties were encour-
aged to work out a private settlementinstead of suing. Since these
decreesonly appliedto certain money suits, the Examination-of-the-
Petitionhad the additionalfunctionof screeningout any such claims.
The same may be said of the so-calledMutualAffairs (nakamagoto),
which were excluded in the Osadamegaki(1742) from the list of
justiciablecontracts.
Some stressis placed on the Examination-of-the-Petition because
it explainsmuchof the concernfor properdocumentationof contracts
and the careful attentiongiven in the late Tokugawaperiod to stan-
dardform books for draftingcertainof our village agreements.There
50. Still the most detail is found in: Nakada Kaoru, 2 HMseishironshii
523 (1943) for pledges (shichichi) and mortgages (kakiire); Kobayakawa, for
honkuji; Kaneda, 42 KGZ 1934 (for kanekuji).
simplywas no contractin a justiciablesense unless it was embodied

in a document,correctlydrafted,sealed, and preserved.Some have
pointed out that the contractdocumentwas only a conditionto the
right to sue, not a condition to the substantiveright; others have
viewedthe documentas essentialto the creationof both the rightand
the remedy.5'The same distinctionis made betweenthe right and the
remedy in the case of money suits barred from the courts by the
MutualSettlementDecree; the underlyingclaim was said to be still
valid, thoughunenforceable.The Shogunateorderedwould-beplain-
tiffs to settle their claims privately,and in fact imposed penalties on
defendantswho intentionallydelayed settling.52So presumablyif the
claim were voluntarilypaid to the creditor,the paymentswould not
be a gift;nor could the debtorclaim a returnof the paymentbased on
"unjustenrichment"or the like because even if not actionable,the
underlyingpromisewas valid in substantivelaw.
Some of the policy underlyingthese legal issues is intriguing,but
not entirelyclear.53Most basic, it seems, was the fact that Shogunate
law began as a minimalassertionof authorityto protecta new power
structure,and as such its chief manifestationswere in the criminal
law used to vindicatethe new regime. Given the thin distributionof
Tokugawapersonnelthroughoutthe whole of Japan then, it would
have been sheerunenforceablepretensionfor the Shogunto presume
to replacefor daily dealingsthe village customarylaw with Edo rules,
except in special instances. Actually it never crossed the Shogun's
mind. If this is a fair statementof the situation,then the Shogunate's
policy of expectingthe village to handleits own civil disputesso long
as it paid the taxes may be understoodas more of a necessitythan a
policy. Actuallythe Shogunaterules seemed to rationalizethe policy
in termsof virtue.Privatepromiseswere based not only on voluntary
acts but on interpersonaltrust (jitsui), and problemsof nonperfor-
mance should be handled on the same basis without involving the
officials.54From this position flowed also the specific principle that
the Shogun'scourts took cognizanceof contract suits strictly as an
avocation (yogi) and as a matterof grace,55not because the parties
51. See Harafuji, "Kinsei saikenh6," 4 Kanazawa h6gaku 92, where he
agrees that the document is a prerequisite to a right to sue, but states that it
does not itself give rise to the substantive contract right; it can subsist without
documentation, even though it may not be enforced.
53. These policy issues have been discussed recently in Ishii, "Meyasu
tadashi,"p. 74, and Harafuji, "Kinsei saikenh6," 5 Kanazawa hogaku 202.
55. Harafuji, p. 200.
had a right to a "day in court," hence the unctuousphraseologyin

the pleadings(osorenagara,etc.).
But it is at this point in the interpretationsof Edo contractpolicy
that views differ sharply.Ishii Ryosuke has made a persuasivecase
that simple Shogunalhostility to money claims flowing from some
"feudal"impulseto penalizemerchantsand favor warriorsis not the
whole answer.56Actually,while the Shogunatedid find some money
dealingsinappropriatefor warriorsto engagein (e.g., mujinkin),the
same transactionswere recognizedas proper in substantivelaw for
the commoners-merchantsand farmers.These claimswere valid and
should be settled up privately. Indeed, if the debtor intentionally
repudiatedhis obligationwhen he could pay, relying on plaintiff's
inability to sue, the Shogunate prescribed criminal penalties,57 even
thoughit would not acceptthe suit for civil enforcement-because of
the MutualSettlementDecrees intermittentlyin force.
If this was the generalphilosophy(or situation),then the policies
of rejecting money claims on occasion (and generally refusing to
accept mutual affairs) may be explainedsimply as attemptsto deal
with an overwhelmingflood of money suits. The decrees were used
to solve the problemsof court congestion.Some interestingstatistics
tend to supportthis view. For example,in 1782 therewere 4,263 suits
(kuji) in the two Osakatown commissioners'offices,and in Edo the
town commissionershandled,in 1718, a total of 33,037 suits (kuji).58
Such a large numberof adversaryclaims tends to supportthe view
that the decreesrejectingmoney claims were issued in part, at least,
to solve a problemof acute congestionin the courts. If so, then the
argumentthat the Shogunatedid not intend therebyto use its power
affirmativelyin derogationof commercialinterestsis plausible.This
does not explain the choice of money claims alone for wholesale
rejectionthough. To this, the answeris that money claims were in-
creasing and so numerous that statisticallythe other claims were
insignificant.
This view deserves serious consideration,at least as a portion
of the truthbehindthese important,if still somewhatobscure,legisla-
tive measuresaffectingcontractsrunningthroughoutthe latter half
of the Edo period.Some weightis addedto the positionby the reforms
56. Ishi,, "Meyasu tadashi," p. 74.

57. These penalties were, for example, explicitly provided for in the 1719
Mutual Settlement Decree (which incidentally was, exceptionally, made appli-
cable to future money claims as well until abolished in 1729). See Ishii,
"Meyasu tadashi,"p. 65.
58. Kobayakawa, pp. 8-10.
in 1842 and 1843 wherebyjudgmentsin money suits were taken off

of the old dilatoryand toothless installmentpaymentsschedule and
made lump sum obligations.Those reforms, despite the difficulties
they engendered,were candid recognitionof the importanceof com-
merce, of the importanceof credit in commerce,and the importance
of judicial enforcementto support business credit arrangements.59
On balancethe "classstruggle"approachto the Shogunate'scontract
enforcementpolicy is simplistic and the policy is fortunatelybeing
reconsideredin all of its complexity.
Conclusions
We havetriedhere to pointout the analogiesas well as the distance

betweenTokugawavillage agreementsand the modem lawyer'scon-
tract, not only in time and place but in concept and uses as well.
While noting the distinction between "agreement"and "contract"
(a justiciableagreement),we have stressedthe importanceof agree-
ments in early social organizationeven thoughthere do not yet exist
enforcementagenciesidentifiableby lawyers as "courts."Courts and
judgestravela long evolutionaryroad before they become specialized
and independentenough to be recognized as "courts"in modem
parlance.But agreementsserve many functionsanalogousto contract,
and indeed get enforced, long before independentcourts evolve to
enforce them as "contracts."Thus, along the evolutionaryroad in
Tokugawatimes we find much "confusion"(by applicationof our
trainedconceptualhindsight)of (1) administrativeand judicialfunc-
tions and (2) substantiveand procedurallaw (rights and remedies),
as well as confusionof legal and social solutionsto daily humanprob-
lems. My suggestedrule-by-statusseems to serve as a useful concept
to relieve some of the confusion.
Consideringhow agreementswere used in the village, three points
stand out: (1) they were pervasivelyused in all aspects of life;
(2) many types of agreementswere standardizedas to form and
meticulouslyexecuted so that they could be enforced;and (3) most
significantlythey were signed or sealed by village officials,relatives,
and neighborsas custodians,recorders,guarantors,and witnesses so
that manyformal "private"agreementshad a public aspect and were
indeed instrumentsof such villagewideconsequencethat I have sug-
59. For the discussion sparked by Town Commissioner Torii Kai-no-kami

in bureaucratic circles in Edo in 1843, see Tokugawa jidai minji kanreishfi,
dosan no bu (192 Shih5 shiry3, 1935), pp. 13-32.
80 Journal of JapaneseStudies
gested that they were in fact methods of consensual governance,

performingsomethinglike constitutive,legislative, or judicial func-
tions. Given the tight interdependenceand immobilityof most vil-
lagers, one suspectsthat social pressurewas enough to enforce the
consensualarrangementsembodied in the usual multi-partyvillage
agreements.
But therewas contractlaw in TokugawaJapanalso, and contracts
were enforcedin the Shogun'scourts. The contractlaw grew up in
the interstices of the proceduresfor deciding how or whether to
accept (and if so, what kind of) contractclaims for enforcementin
the Edo commissions.The resultantrules distinguishedbetween con-
tract claims on two levels: (1) the acceptablecategories (main suit
and moneysuit) were distinguishedbetweenthemselvesand from the
unacceptableclaims (either nakamagoto,or claims excluded by the
occasionalmoratoriums,aitai sumashi-rei);and (2) dozens of spe-
cific kinds of transactionswere definedand classifiedfor enforcement
within the two main and money suit categories.A review of these
lists of claims falling into the main suit or money suit categorieswill
remindus that the Edo courtsservicedEdo, a very largecity by world
standardsof the time, and many of the claims listed were of a kind
whichoccurredat the commercialcenters(includingOsaka) and only
involvedthose villageswithinrangeof them.
The division between main suits and money suits was the most
advanceddefinitionof contract claims in the Tokugawa system of
litigation.As noted, there were eventuallytwo lists of concretekinds
of claims-one for main suits, and the other for money suits. The
criteriafor dividingthem was whethersecuritywas given; if not, it
was a money claim. Also importantwas whetherthe claimbore inter-
est; if so, it was a money suit. If there was both securityand interest,
it was usually a money claim, but actually, the lists were changed
somewhatby additionsor shiftingclaims from one to the other.
A hierarchyof gradedenforcementproceduresdevelopedin the
context of decidingwhat kind of enforcementhelp should be given
to what kind of creditors;this was because, in Shogunal policy,
creditorswith main suit claims deservedmore help than money suit
creditors,especially when the flood of claims requiredrejectionof
some (hence the moratoriumslimited to money claims).
At the point of intake, two criticaldevices were used to sort out
the severalclasses of claims: (1) a preciselycorrectdocumentdefin-
ing the claim was required before the complaint was acceptable;
(2) to determinewhether the complaint was thus acceptable, the
petition had to pass through an examination (meyasu tadashi),
whereinclerks confirmedadministrativelythe adequacyof documen-

tation and determinedthe type of claim (thus the type of enforcement
procedures). Money claims, for example, were subjectedto proce-
dures for prior conciliation,and, if tried later, only received a judg-
ment orderingpaymentby dilatoryinstallments.
But fascinatingas the contractlitigationmay be, the most impor-
tant questionwas not what documentationmight "standup in court."
Rathera betterquestionwouldbe: what would stand up betweenthe
parties or in the village. For breach prevention, self-enforcement,
and social enforcementseem to have overshadowedlitigation as a
"contract"remedy. In this sense, the aphorism often mouthed by
lawyersthat "a right without any remedy is a meaninglessscholasti-
cism,"60was, in a sense, true in TokugawaJapantoo, but the remedy
did not necessarilycome from the courts. It usually came from one's
statusgroup.
UNIVERSITY OF WASHINGTON
60. Learned Hand in Wood & Selick, Inc. v. Compagnie Generale Trans-
atlantique, 43 F. 2d 941 (C. A. 2nd Cir., 1930).
APPENDIX
Subject: Sale of mountainland for reclamation

Date: 1867 (Hare) 3rd month
Place: Anylfi Village,KuritaCounty,Omi Province
Paper Concerning Transfer of Reclaimed Mountain Land On the East

Side:
From east toward the south: 71 ken
(1 ken = 1.987 yds.)
On the west toward the south: 60 ken
But to the south is the boundaryof the Zeze domain
(Honda: 60,000 koku)
On the south side toward the west: 23 ken
On the north side toward the west from the east: 25 ken
Thus includingthe above land area (tambetsu).
W 60 ken
S 23 kei N 25 ken
E 71 ken
But as to the above, the access is the road for oxen and horses,along
the south side of the pond (tameike).
At this time the overlord'soffice has a suggestionto the effect that, since
a low hill might be reclaimed [as a field], the villagers should proceed
to do it. But since it is difficultfor the villagers to effect a new reclama-
tion, this will certify that you [Isohachi]will buy up all of our individual
land holdings and do the reclaiming.Thus you will do so, but without in
any way causing trouble to the villagers. As to the above we will not at
any time cause you any inconvenienceconcerningpassage [to and from].
If there is anyone who plans to cause difficultyor in any way obstructs
you in the slightest, he will be immediately instructed by the village
officials, and there will be no hardshipsat all borne by you.
82
Furthermore,even though you are from another village, up to now you

have been just like a resident to our villagers, and from now we will
regard you as a villager without any reservations.
However, no matter what happens on this [mountain]land (jisho) there
shall be no hardshipfor you, as above the villagers have all assented and
join in deliveringthis paper (issatsu). In case there is anyone who violates
this, there will be not a word of objection, if then you make a petition
to the lord (ryoshu) using this paper.
For a later day, we so attest by this Document (shomon) of Conveyance
of newly opened mountain land (shinkai).
Date: 1867 (Hare) 3rd month
Ourplace (jimoto): Any6ji
Farmers' representative(sodai): Ichiemon
Elder: Sakichi
Elder: Denemon
Headman: Mataemon
[Addressee:]Ohashi village: Isohachi

[A companiondocument embodies Isohachi'spromises to Anyoji parties.]
2
Subject: Apology and agreementconcerning son's acts of adultery
Date: 1835 (Sheep) 1st month
Place: Utsunuki Village, Tama County, Musashi Province
Paper [of apology] for Faults

At this time, the affair of your wife, RyQ, and my son, Magoshir6, has
been continuing on. Since this is an offense which furthermorehas been
committed over and over again, you have already brought it up (hikiai)
with us saying that you intend to submit a suit (soshd) to the superior
authorities, and realizing that you are quite correct (go-mottomo) and
that we are without excuses, this is a great embarrassment (tUwaku)
for us.
Therefore, this will certify that we have made a request to the village
officials and finally, by your good graces, it has been settled that Jiemon
will be set up as my successor [in the place of Magoshiro],' or otherwise
1. The father,Rokur6emon,seems to be retiredwith the offender,Mago-

shir6, as his presentsuccessor,but they herebyagreedto removeMagoshirb
and madeJiemon the successor;Jiemon is probablya youngerbrother.
Magoshiro will be charged (uttaeide) at the office of the authorities

(yakusho). Also, we, from Rokuroemon down to sons and grandsons,
agree to have no relations with him hereafter, and we have specially re-
ceived the understandingof this arrangementfrom the village officials.
For this we are very happy (kietsu) and grateful without measure for
having settled this matter discreetly. As for Magoshir6, I will give him
to understanddefinitelythat he is not to enter my house again.
For a later day, we so attestby this Paper of Faults.
Date: 1835 (Sheep) 1st month

Principal (honnin): Rokuroemon
Guarantors (ukenin): Masubei
Ch6bei
Bunjir6
Rokubei
Goemon
[Addressee:] San'emon-dono
Subject: Agreement to forgive a debt until the debtor succeeds in life

(shusse)
Date: 1826 (Dog) 7th month
Place: Kizu iji Village, ScirakuCounty, YamashiroProvince
Success Document
Silver: 20 kamme
In addition, interest for delay: 5 kamme, 911 momme, 2 bu
Total principal and interest: 25 kamme, 911 momme, 2 bu
Against the above, Gold 1 ryi5 and Silver 7 kamme have at this time
been repaid.
Remainder:2 Silver 18 kan, 846 momme, 7 bu
This will certify that the above remainder in silver has been certainly
borrowed.
From times past, I have been engaged as a wholesaler of cloth (kiji
donya) and for years have done business with you. By the above pro-
cedures I have recently mortgaged (kakiire) a house (ieyashiki), which I
own, as security (shichibutsu), and at that point I borrowed silver
secured by the house with your kind help. But because of my default
2. Fromthis the gold/silverrate seemsto havebeen 1 ryb for 64 momme,

5 bu silver.
(Iurachi) in repayment, you submitted it to suit (shusso), and now

with special leniency, you forgive (yosha) me as above [specified],and I
am very grateful.
Thus, because of the silver which you have advanced, I will repay all
of the balance of silver due in this document (sho5mon)in due course,
when I may succeed in future affairs (shusse).
For a later day, I so attest by this deed (shlusatsu).
Date: 1826 (Dog) 7th month
Kihei of Okinaya, from Kizu Oji village
Yasubei of Okinaya, from Kizo Oji village
Witness, Kyushichi of Sarashi-ya,from Kizu Oji village
[Addressee:] Gohei of Takamiya-ya
Subject: Agreement on adoption of a son, househead succession and

marriageto daughter
Date: 1810 (Horse) 2nd month
Place: Sakai Village, Nya County, Echizen Province
Memorandum of Discussion Concerning House Succession (ie-sozoku)

Now, as provided by the ancestors, both parents [of Tami] want to
arrangea marriagebetween Chozaemon and Tami, and with Ichiroemon
(Hirasawa village) mediating, they consulted with Chozaemon,3 but
Ch6zaemon did not agree and, after consultations for several days be-
tween Ichiroemon and the relatives, they reassembled all relatives and
by full discussions within the whole household (kanai-ft; [extended
family]), they decided as follows:
1. Ch6zaemon says: I am very obligated and grateful for the kindnesses
of both parents [Kyaemon and Otsui; he was raised in their household],
and even though I have caused many troubles up to now, still their
understandingand offering to make me their successor in charge of the
household is, I think, really too much. But even though I preferred to
have Kichigoro made the househead, and therefore could not at first
agree myself, I finally had to agree after both parents insisted again and
again. Therefore, there is no need to dwell on the past, and in the future
3. This was apparently a marriage decided by the bride's (Tami's) grand-

parents while she was a child, or even before born, and the idea was to have
an adopted son come into the house as a husband/son and become househead
(kach5).
I will endeavor to perform well in all respects (mimochi taisetsu), and

needless to say, I will revere both parents (k5k5) and live in harmony
with Tami as husband and wife. If, needless to say, I or Tami-samasay
unreasonablethings, I hope both parents, of course, and one of the rela-
tives in the village will speak out with their various objections. And if
we do things in violation of the statutes (hatto) of the higher authorities
or display other misconduct, both parents and the households should let
us know what they think.
2. Tami says: Since Chozaemon declined the succession to our house,
I was very miserableand planned to go to Fukui and serve (hok5), but I
am much relieved because the wedding has been arranged by further
discussions.And I will treat my husband Ch6zaemon with great respect
and go out of my way to be agreeable to him; I will observe the pro-
prieties toward both parents and we will live happily in the household,
and strive for self-discipline in my station in life. If in my husband's
mind I am unsuitableor I am guilty of selfishnessor misbehavior,I will
depart from the household myself without argument.
3. As for Kichigor6, he objected to having Chozaemon made the
househead but, since it was so decided by the ancestors (senzo) and
his parents disagreedwith his position on the matter, he had no choice
but to go along with Chozaemon's succession and accept the division
(shiwake) of property as decided by the ancestors, without resistance.
4. As for both parents, they are relieved and very happy to have the
matter settled as the ancestors had decided. Besides, if any of the three,
Ch6zaemon, Tami, or Kichigor6, violates these understandings, the
parents should definitely let their objections be known. In that connec-
tion, if anyone continues to act selfishly, all of the village relatives (mura
ikka-chri) should consider the matter and decide what advice to render
in the circumstances.However, even after both of us have died, we want
to have this matter continue as decided above.
At this time, the above was preparedby Ichiroemon and the village rela-
tives as written before in accordancewith the intention of the ancestors,
so both sides should put aside all the complicationsof the past and in the
future the parents should be considerateof the children, and the children
should observe filial proprietiestoward their parents, and Chozaemonlive
happily with Tami and be affectionate toward Kichigor6. Tami should
emphasize respect for Chozaemon as her husband, and be sympathetic
toward Kichigoro. Kichigor6 should respect Chozaemon and Tami as he
would his parents.
Besides following the above arrangements,we want to conduct ourselves
as one family and continually live in harmony in the household with
attention to life hereafter.
If there should be persons misunderstandingor violating the above, the
matter should be decided (sabaki), and they should be instructed (sata)

in accordancewith this agreement.At such time there should be not even
a word of resentment.
For a later day, we so attest by delivery of this Document with family
seals (kanai ingy6).
Date: 1810 (Horse) 2nd month
From Sakai Village:
Parent: Kyuemon
Mother: Otsui
Son (adopted): Chozaemon
Daughter: Tami
2nd Son (jinan): Kichigoro
[Addressee:]Relatives (from same village):

Yozaemon
Setobei
Yomoshichi
Subject: Husband's prenuptial agreement to pay 1000 ryd, if he

divorces his prospectivebride
Date: 1861 (Bird) 5th month
Place: Narumi Village, Aichi County, Owari Province
Paper4}
As we are about to marry, I promise to grant you 1000 ry6 of gold, if,
in the end, I divorce you.
For reference, I so attest by this document.
Date: 1861 (Bird) 5th month
Kojima Ryoemon
[Addressee:]Omura
4. This document was the basis of a complicated dispute eventually taken

to the Owari daimy6's court, which referred it to a go-between for settlement.
The wife (Omura) was divorced, but she also committed adultery, so in the
end there was a set-off, and she got nothing. It started with Omura wanting
a divorce, and the grandmother submitted the suit, perhaps hoping to recover
and share in the 1,000 ry6 promised in the event of divorce.
Subject: Agreementbetween village farmersand new headman

Date: 1867 (Hare) 11th month
Place: Komatsuji Village, Ochi County, Iwami Province
[Summary:This is in an agreementby farmersof Komatsujiwith Yashird

(shoya of another village) agreeing on his acceptance of the shoya posi-
tion in Komatsuji at the same time he remains as sh5ya of his other
village.]
MemorandumRecording a Proposal (Sashiire mosu negai)
Komatsuji of the Kokonoka-ichi group5 has a position for a headman
(sh5ya) and for a long time has needed one, but there was no one to ask
to fill the position [probably because of divisiveness] in the village
caused by the fact that many workers and merchantswere asked to work
in the nearby silver mines and failed to pay their share of taxes, and
therefore the village has shared a headman from another village. So
since year before last, we have requested your service as headman, and
you have served until this year. However, at the end of the 8th month
of this year you have asked several times that your name be withdrawn
from the position, but even though the villagers together have had
various discussions,it has been difficultto find a successor.Then Inazumi
Chiigoro and Ishibur6 Ryoemon together have asked that you re-accept
the position on a long-term basis, provided that all of the past bad
examples be discontinued and that the village sincerely as a whole pro-
ceed without quarreling.
This you have accepted, and we are very grateful.
In addition, the village farmers, needless to say including the tenant
farmers (mizunomi-byakushd),agree to discontinue the past bad prece-
dents (akurei) and hereafter restore sincerity in all matters and pay the
village's share of taxes strictly in accordance with the village officials'
instructions.
If there are future delays in performingunder the regulations (fure), we
will have absolutely no objections if you report to the Deputy's office
(Daikan's honjinsho).
For these purposes the villagers have fully discussed these matters, and
for later remembrance,we so attest by delivery of this jointly sealed
(ren'in) memorandum.
5. Komatsuji was one of several villages in a formal group called

"Kokonoka-ichi-gumi,"organized for mutual help (these often had a chief
of headmen, ijbya).
Date: 1867 (Hare) 11th month

Farmers of Komatsuji Village, Ochi County, from the Kokonoka-ichi
group, individually:
We have discussed the above matter and, with our joint seals, confirm
that it is without error:
Go-between (tachiai-nin) of Oshihara-mura:
Inazumi Chfigor6
Ishibur6 Ry6emon
Chief Farmer (tobyakush5): NakamurayaKiemon
[Addressee:]Long-term headman (eikin shoya): Yashir6
Subject: Agreementto establisha village forest

Date: 1775 (Sheep) 2nd month
Place: Matsuo Village, Ibi County, Kazusa Province
Paper Submitted
As village grasslands: from Inamura Tsuchi-na-sawa (azana) to
Taemon's tea field (chabatake), then to the ridge (mine) road, and to
the swamp at the foot of the mountain (suso), land previously owned by
Shirozaemon. It has been decided at this time, after discussion in the
village, to buy the above lands for 3 ry6 and establish a village forest,
including the occasional pine trees. Hereafter, it is strictly forbidden to
cut even the undergrassor the dead trees. If anyone violates the rule and
cuts trees he will be given a fine (kasen) of 1 kammon. Also, if anyone
from another village, or, of course, from our own village is seen cutting
trees and is not reported,the same fine will be applied.
The above should be discussed in the village and strictly observed.
For a later day, we so attest by this documentjointly sealed (ren'in).
Date: 1775 (Sheep) 2nd month.
From Matsuo Village:
Yozaemon
Kanemon
Shir6zaemon
Zembei
Kimbei
Shichibei
Taemon
Tarozaemon
Headman: Zenzaemon
[Addressee:]

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"Contracts" in Tokugawa Villages

"Contracts"in Tokugawa Villages

This is a summaryof my recentunpublishedresearchon villageagree-

1. See Kansai Daigaku H6seishi Gakkai and Kansai Daigaku Keizai

Japan, perhaps,because as foreignershave frequentlynoticed, first,

Tokugawavillages than there were "contracts,"and that in a sense

ments duringthe Edo period,since eighty per cent of the population

7. Many townsmen's suits included farmers or warriors as opponents, of

later their degree of participationin industry and commerce-all

About the Agreements

10. See Kozo Yamamura, "Toward a Reexamination of the Economic

Village (mura) County (gun) Province (kuni)

The agreementsfinallyselected are dated from 1683 to the very

12. Many formal variations of documenting agreements were collated and

possibilities in the courts, and was therefore important to legal

ment the fictitious loan/mortgage/default device (dappo koi) to

In a word,the systemdid not encouragecivil petitionsto superior

and social composition.For example, Anyoji and Utsunuki had all

get it to attend to its own business.As a matter of jurisdiction,the

writtenagreements,not officiallysealed or recorded,were also prob-

27. Henderson, Conciliation and Japanese Law (1965), Vol. 2, Ch. 6;

small fixed group resulted generally in a village consensus-as a

worth savoringand balancing against the impressionsgleaned from

or substituteperformancefor the debtor.Essentialfacts of the trans-

So we can suppose that enforcementwas first implementedby

35. See Maeda Masaharu, "Ryoshuh-j6 no keibatsuken to mura seisei to

partieswithina single fief, of which there were hundreds,was rigor-

a rule of status: as a status group the farmersorganizedas a village

those in money suits. So the proceduresand remedies used by the

43. Osadamegaki, gekan, Article 33. See Kaneda Heiichirb, "Waga

and enforceany money claims incurredprior to a certaindate at all.

18. Funshitsu-butsu Owner'sclaim for lost goods.

18. Ginsatsuhikikae Claimsfor redemptionfor silver certificates

Additions and some shifting between the two lists of claims

suits are difficultto trace in the materialsremainingtoday. It would

simplywas no contractin a justiciablesense unless it was embodied

had a right to a "day in court," hence the unctuousphraseologyin

56. Ishi,, "Meyasu tadashi," p. 74.

in 1842 and 1843 wherebyjudgmentsin money suits were taken off

We havetriedhere to pointout the analogiesas well as the distance

59. For the discussion sparked by Town Commissioner Torii Kai-no-kami

gested that they were in fact methods of consensual governance,

whereinclerks confirmedadministrativelythe adequacyof documen-

Subject: Sale of mountainland for reclamation

Paper Concerning Transfer of Reclaimed Mountain Land On the East

Furthermore,even though you are from another village, up to now you

[Addressee:]Ohashi village: Isohachi

Paper [of apology] for Faults

1. The father,Rokur6emon,seems to be retiredwith the offender,Mago-

Magoshiro will be charged (uttaeide) at the office of the authorities

Date: 1835 (Sheep) 1st month

Subject: Agreement to forgive a debt until the debtor succeeds in life

2. Fromthis the gold/silverrate seemsto havebeen 1 ryb for 64 momme,

(Iurachi) in repayment, you submitted it to suit (shusso), and now

Subject: Agreement on adoption of a son, househead succession and

Memorandum of Discussion Concerning House Succession (ie-sozoku)

3. This was apparently a marriage decided by the bride's (Tami's) grand-

I will endeavor to perform well in all respects (mimochi taisetsu), and

matter should be decided (sabaki), and they should be instructed (sata)

[Addressee:]Relatives (from same village):

Subject: Husband's prenuptial agreement to pay 1000 ryd, if he