396 COMPARATIVE LAW 



three families instead of one. But the Japanese house is never 

 dissolved at the death or abdication of a house-head and is 

 succeeded by one person, all other members remaining alieni 

 juris as before. 



(3) According to the present Japanese law, a woman may become 

 a house-head, and if she marries, she may continue to be the 

 house-head and have her husband as a house-member under her 

 power, provided such intention is expressed at the time of the 

 marriage. (Civil Code, art. 736.) Under Roman law, however, 

 a woman could never exercise authority even over her children. 



(4) According to Roman law, when a woman married, she always 

 entered the husband's family and passed into the power of 

 another; but according to Japanese law the husband enters the 

 house of his wife in case of the marriage of a female house-head, 

 and also in case of the adoption of a son-in-law or "muko- 

 yoshi," which I will explain later on; so that the famous maxim 

 of Roman law, " Mulier est caput et finis familiae," a woman 

 is the beginning and end of the family, does not apply to 

 Japanese. 



(5) Patria potestas was among the Romans an institution of 

 private law, and it is so with us at the present time. But before 

 the Restoration, it was an institution of public law as well 

 as of private law, as I will explain when I come to speak of the 

 decay of the house-system. 



XII. House-headship and Parental Power 



From the nature of the double bases of the Japanese family law 

 it follows that a person may have two capacities, one as a member 

 of the legal house, and the other as a member of the wider group of 

 kindred. Thus, a person may be a house-head or a house-member, 

 and at the same time he may be a son. In such cases, if he is the 

 son of a house-head, he is placed under the house-head's power and 

 under the parental power of the same person; if he is a son of a 

 house-member who is himself under the power of the house-head, 

 he is under the power of two persons, the house-head and the father. 

 But if the house-head is a minor, and his father or mother is a house- 

 member, the former is under the parental power of the latter, while 

 the latter is subject to the authority of the former. In such cases 

 conflict or inconvenience which may arise from mutual subjection 

 to one another is avoided by the provision of art. 895 of the Civil 

 Code, according to which the parent exercises the house-head's 

 power on behalf of the minor house-head. 



Of the two bases of the Japanese family law, the house and the 

 kindred, more weight is always laid on the former than on the latter, 

 except in the two instances of the duties of support and maintenance 



