Scribd Logo
Upload

Welcome to Scribd!

  • 7hiramatsu TokugawaLlaw

    Uploaded by

    Nur Nadzirah
    151 views25 pages
    f

    Original Title

    7Hiramatsu-TokugawaLlaw

    Copyright

    © © All Rights Reserved

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    f

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    151 views25 pages

    7hiramatsu TokugawaLlaw

    Uploaded by

    Nur Nadzirah
    f

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    of 25
    TOKUGAWA LAW* Voshiré Hiramatsu Kinseihd, IWanasti-xoza NIHON nents (Vol. U1 [Xinsei 3) 332-378 (1976), Contents"* Introduction 1. Structure of Law 1. Feudal Law ‘A. Shogunate Law a Legislation Buke shohatto Mourning Ordinance Proclamations b. Professional Law Compilations of Decisions Kujikata Osadimegab Law Books B, Domain Law 2. Commoner's Law A Village Law BL Block Law zl HL. Enforcement of Law 1. Penal Powers AL Revenge Against Enemies B. Daimyo Autonomy C.Inquisitorial Proceedings 2. Private Authority A. Deeds BL Main Suits and Money Suits C. Adversary Proceedings and Conciliation Univesity, De Bend triat Advisory Board el 2 LAW IN JAPAN: AN ANNUAL [vol 14st IML, Special Features of the Law 1. Legislation AL Land and Men BL Status and Law 2. Professional Law A. General and Particular B. Form and Substance 3. Commoner’s Law A. Autonomy and Control 1B. Discrimination and Equality Conclusions Intropucrion, ‘According to the orthodox view, the law of the recent [Tokugawa] era was unified by the law of the military houses (bukekd), but this is not accurate The Tang-styled system (ritsuryé) and the law of the Court Nobles (hugehd) also continued to have an important function in the national system in the ‘Tokugawa period, just as it had had in the past, In the frst place, the law of the court nobles was actually quite alive in the Kyoto imperial court, and constituted a legal system in opposition to the law of the military houses, Next, the law of the court nobles as the successor of the ritsury® system preserved its conceptualized legal system. Since the military houses drew tupon the ritsuryé system far the legitimacy of their political conte, in that sense the law of the court nobles was even of a superior order ta the military Jaw. Historically the only law which could encompass control of the land and people of the whole country was the riteury3 system, Military law was the law fof lord-and-vassal and the law for control of the specific dornains based upon it, From the beginning it never had the character of # unified national law Since the middle period (chilsei), military Iaw had gradually permeated the whole country, and in the Tokugawa era finally in actuality it hecame the law. of the whole country, but it could not overcome its origins, The law of the court nobles, parallel to or transcending the law of the military houses, ‘remained of essential importance te an understanding of the national structure jn the Tokugawa period. This essay can only indicate the nature of this problem Leaving the law of the court nobles aside, the Tokugawa law can, from the standpoint of authority (o contrel, be divided broadly inta the law of the feudal lords (or fewal law) (ryéshaka) and commoners law (ninshiha). The feudal law of the era can be further substivided into the taws of the Shogunate, the laws of the daimyo, and the laws of the bannermen, which can be termed military feudal law, and the laws of the court-nobles and temples and shrines, which are also feudal law. In the main a this essay we will consider from among these feudal laws only Shogunate law and daimyo law, the so-called on) TOKUGAWA LAW 3 omain law (hampé). Feudal law can be further divided from the standpoint of legal formation into legislation (seiteiha) and professional law (hard), The legal professionals made, applied and maintained what we call here profes: sional law. But in pee-modern Japan this refers to the rules applied by the various officers and offices administering justice Geibon).” In this series (Ka Wikon Rebishi) the "recent era” is regarded as beginning ot fater than the fall of the Murornachi Shogunate (1573) and as continuing ‘up to the limperial Restoration (1867) In this essay we will deal with the law wler the rule of the Tokugawa Shogunate (1603-1867), and we will divide Q to two periods at the point of the overall establishment of the Kujikato Osadamegaki (1742) by Shogun Yoshimune. It seems appropriate, in surveying the structure, operation and special character of this law to put the emphasis on the latter half of the Edo period when the law of the era was most developed. 1. Tue Structure oF Law 1. Feudal Lew: Shogunate Law end Domain Law awa Shogunal and domain law was derived directly from the “law of * or provincial law (bunkoku-ha) of the Sengoku period, (1467-1873). This law was characterized by codes which resembled legisla tion, but almost none of these codes, as such, were adopted hy the lords of the ‘Tokugawa era. The text of the Sera hatto in the Hitoyoshi domain which was cited and applied even in the latter half of the Edo period is a rare exception Even the Jinkaishi of the house of Date which was in force in the periods of ‘Tanemune and Harumune (1536-1570) was finally forgotten, and by 1680 when a retainer, Murata Chikashige, presented copy to (Date] Tsunamura, its existence had become unknown.) 3 comprehensive ling of sours of the Iw wf the yee orto tn) RVOSURES ‘Manon WOSesHH CAILISU {General tuner of Japanese legal istry) 60-47 SAbwnsha, 190) Fors recem work. see Ovane Hiroe and Mant 1 Nino WOSESHH Uapanese legal Nistor) 17=82 (Sein shin Shins, 979) 7 Leading works dscusog special fetes of Tokupawn aw ave: Natasa Kors, KE than (Bisellany soem lel MBSE ERY IAA} 141Eh Tannoaw Masao, Nowow noses vo vonusisse (Special characteris of Japanese egal hover) omar Shoten, 14x Into Vosimimsa, Now wreseind wo nent (Sway flaw af Japan's rece ‘er ekutabe-sha, 1973), bl Shia, Aint ne hd Atased (Lawl the Fees fe andthe tional sete in hit Shird cy Niwot xmoainO-st NBC) (Letorcs on the history =f ern Japanese ln Sein sin Shins, 1972), DF, Henderson, The Eeeation of Toke ‘ow in Jatt and M. Jansen, eds. Stupies we rue Insreruriona. avon oF Exnty suvene Jara 203-239 tvisstow Ur Pee, 1980 1 Saro Serstem, ISEUCHT Youmnsver, and Mowoae Reso ed. CuO {0 moxt-#aiO (nn (Collection of hie material onthe lew ofthe ml ee hoe a of wat howses, No. 1 biographical inveduction 410 danas Shoten, 1968) 1 Cost ‘Sey hana ss (oles nto hough ofthe idle erties Nao 330 Ye UUwarani Shaten, 1072, te the explanation ieret) by Lied Shar Kowavasv Minos Daveene jets) wo KENKYU (Studs of the ‘iwealsnGr of the Date howe) Se. (Ssbansha, 1970: Nakada Kaoru, Haheroshi shinshibimedy mi tate, 8 Ose OSH) ‘Colleion of esays on gat hits 459-296 thesia Sevens 1913 art swan 4 LAW IN JAPAN: AN ANNUAL, ions accompanying the establishment of the Shog: reduced the role of provincial codes, But in fact this prior the Tokugawa Shogunate-domain law. Undoubtedly law built upon and was a further development of 1¢ case of the Shogu concerning "matters of children's the Imagawe kana-mokuroky cover derived from the Litt of Korhi Statutes (Koshi hatto shidai), the so-cal House Law of Takeda] Shingen (Shingen kaki), This was further w 19 the above mentioned Edo machijii sadame of the approval and provisions for revenge against enemies (kotaki venge of wile (megata-uchi) were creations of the provi ‘Shogunate law later used them. We can point out the following as clea provincial Iaw to Tokugawa Shogunate lords, organs of administration and conteol were ect immself. The ease in legislation caused further house law and house precepts [kakun]). S political officials were divided from the adi law was then developed by the professional administration of justice. Standards of cot became separate from norms of justice, and standards of sumed in the professional law and continued to evolve. Thi the developing feudal law, including both legislation and professional law, t customary commone! i among the folk, was weakened al tended to be repealed by fief law. Fourthly as a result of stcengthening (mibum chitsujo), an ig in the in legislation AL Shopunete Law The word “shogunate” (bokufu) was not official. When referring to its potential power over the whole country, it was called "Go-kigi" or and when referring to it ass fief lord it was called “go-tate” or “gosie.” TOKUGAWA LAW s ial eases or, a8 with other fet tkafa) or the Tike. In the To- (ha) in a narrow sense included the lor’ lexi ly @ tneaning of basic, permanent, widely-kno ive appli jomary to say “Great 2) oF “established law of oF the like. ‘The Shogunate law adopted reximes of Oda and Toyot ideyoshi over the rei), “statutes” (hatte), fe) or “provisions” (radame). Also “charter” Gmoku) of les" (j6) were terms used to Fe legislation was a p the same time a kind of prohibit statute will be carried out” indicated imposition of punishment, In 40 far as legislation made in the name of the feudal lord himself is concerned, the Shogun’s orders were limited to special cases and times, and it was quite exceptional for him to issue person. ance of app | and embodying lent, General orders handed down by the Shogun himself, he time of fetsuna, were issued to the officials, officers or vassals in the form of a command certificate (gechij6) on the signature of the Shogun or by his black seal, But thereafter, excepting army orders following the traditional teen for campaigns led by the Shogun, statute (hetto) type provisions, centered form of a direct order bearing the vermilion seal of the Shogun. the type (of provisions] called the Treasured Legacy in One Hundred Ai (Go-wij6 tohdzo-irihyakbo} ed by Teyasu and, ‘and the accepted view is that they are com. originated in about the Kansei period ly suspected that a buddhist priest had! a han her they even reflect the general Tokugawa legal Buke shokotto: The group of hatto of the early Edo period were forused on otganitation and control of lies and were therefore con “Tokugawa state system, For i the sense that they peror and court nobles, there was 6 LAW IN JAPAN: AN A UAL [vol ia the Kinchd kata gojémoku; for the daimyo, the Buke shohatto; for the bbannermen (hatamoto), the Shoshi hutto; and for the temples ancl shrines, ‘court, the feudal ligious entities, and vassals as their objects, these hatte. we ic. They were completed from leyasn's Genna peciad (1615-1624) and Tetsuna’s Kambisn period (1661-1679), Shogunate law, the Auke shohatto was highly important, as is implied boy the fact that to s2y simply “the ordinance” arei) was a way of referring, to 1, To reflect the development of law and the Shogunate control structure, we can set up three periods: (1) from Ieyasu to Tenebu; (2) from Yoshimune to leyoshi; and (3) thereafter. The first was the period of establishinent and perfection of the Buke shohatto, The inital stage of this frst period was the Genna Ordinance (Genna-rei) (1615). Its chief points were the horizontal discipline between daimyo, their mutual exclusivity, and the poliey ta divide an isolate them. These provisions took the daimyo as an individual com ‘mander and sought to control his conduct. The second stage war emits 1635 ordinance in nineteen articles. It sought to strengthen discipline in the hierarchy of Shogun and daimyo and to restrict the daimyo's power as the lord of his fief. The third stage was Tsunayoshi's Tenno-rei of 1683, The hostile opposition between Shogunate and daimvo was no longer taken as a premise, rather it looked to the aptitude of the daimyo as a local officer and as a link in the countrywide control of the Shogsnate, ls legal interference jradually receded, and its coloration as a moralistic charter deepened. The fourth stage was Arai Hakusekis New Ordinance in the Haei period (1710), Progressing a step further, it conceptualized the Shogunal authority, and tried to establish ethical and legal standards for the Shogun and daimyo as con- fucianist governors. The authoritative and consensual character of the Sho- gun's telationship to the daimyo, which inhered in the Auke shohatto, was abstracted, and it was purified as a charter for administrators of the realm, the provinces and the counties ‘Voshimune, in the second period, started a precedent for future generations by going back to the Tenna-rei and adopting its form. He took the Tenna-rei as the standard for the national structure. The tenures of lesada and Ternoc in the third period, saw the Buke shohaito shaken by troublesome relations with the Imperial Court and foreign countries, and the abolition of the lation and alternate-annual-service tani kétai) system. Actually it lost its elfectiveness. As we can see above, in the first period the Buke shohatio had a real raison d'etre: the second period saw its purpose accomplished, and it Lccame formalized and routine; in the third period it lost its effectiveness. The Shothi hatto was consolidated with the Buke shokatto after the Tenna.rei (1683), this corresponded with the integration of the daimyo and hanuermen as distinct officials and bureaucrats. ‘The Buke thohatto was the shogun’s direct enactment and order. Accord- ingly. in Tetsugu’s time it could not be issued [as a personal order] because of his early death, and in the case of letsuna, who became Shogun when he was a minor, it was necessary (o wait for him to reach majority. The Buke shohatto was mainly made up of orders and prohibitions, but there were also 198i TOKUGAWA LAW ? permissive rules in accordance with status such as systems of dress and riding in palaguins, ‘There were also so-called consensual items concerning master and subordinates such as adoptive children and deathbed adoptions. The les that the daimyo had to comply with “standards of skill in administra- Inandle affairs of his Gef with integrity and not allow the territory to jorate were general provisions without precise standards of eval re the daimyo's stalus responsibilities were marshalled and stipsiated he standpoint of Shogunal conteal af the daimyo, such provisions could Le used most effectively, Mourning ordinance (bubki-rydk: The “Mourning Ordinance” regulated the system of mourning which required a fixed period of austere dress after the death of a close relative, Wt fixed the scope of relatives. which included loptive parents and adoptive sons, as well as inlaws and the like, and Irgally organized the discipline within the cooperative living group by degrees ‘of rank and respect. Accordingly it stipulated by degree the duties of grieving. ‘and domiciliary confinement based on canons of confucian ethics and shamanistic taboos, At least the mourning period, and also probably the system of mourning dress, were only nominal, but [the mourning evles} were national basic law of the place forall warriors as individuals. Tsunayoshi frst prepared it, and in 1684 established it after obtaining the assistance of Tayashi Nebuats, Hitorai Vugen, Kinoshita Junan, Kikkawa Koretara nnd other confucianiste and shintoists, Alter there corrections and revisions, ‘Yoshimune in 1736 saw it through its final enactment. At this time although Hayashi Nobumitsu had joined in, Senior Councillor Matsudaira Nobutoki hhad assumed leadership and was critical of Hayashi Daigaku-no-kami, saying. “the confucianists too are mistaken”, But already the Mourning Ordinance hha left the hands of the confucianists and become daily administrative romtine, Excepting the Emperor, nobles and others of the Imperial caurt and persons concerned! with Shintoism, the Mourning Ordinance was applied 10 All warriors, and the Shogun also observed it. Rather than calling it legislation by the Shogun’s order, it might be better understood as being established by cthico-legal standards. As such the Shogunate sought to have the Afourning Ordinance thoroughly understood, and for the purpose of making the text clear and simple, it permitted publication, ater passing it through censorship. Proclamotions (fure or furegaki: The general form of Shogunal pecermeal legislation (or individual enactments) might be called! ws" fur, ‘Sureaki or furegoto), ‘Une enactinent and promulgation of such proclamations was not a matter of fixing a standard, and then creating condi Could be read and applied as needed. Rather it was characteristic of prt ‘mations that they could be used by the Shogunate as direct orders, prohib- ons oF instructions to individuals. They might be called public-instuctive oF lactic Law. Accordingly, their premise was that they might natunlly soon be forgotten, oF a5 a commissioner himself in Temps ruishii said, “Vou should also forget proclamations, ia year goes by!" This is the reason that the same thing was proclaimed repeatedly. In instances where the scope of the ad zy ‘ LAW IN JAPAN: AW ANNUAL [vol 14:1 Aressees was narrow, they were called “directives” (o-tosshi), usually when addressed to officers or officials. There were also instances when they were used as a professional legal circular (suru) oF instruction dkunet) to be kept secret from wutside the unit (as explained below. Proclamations were discussed and decided in the workroom (go-yébeye) and decame Iexislation by the Shogun’s approval Gaike}. ‘The Obuyuhitin tumigashira participated in the inquiries and drafting, but in most eaves the policy preferences of the Senior Council and other authorities were expressed, and the real power figures themselves sometimes did drafts. For promulga. tion, copies were made by the Omote-yihitsu. These were written on a piece of paper and generally called “memoranda” (hokitsuke). In cate of coun. Luywide proclamations, some 400 copies were made and distributed by usual channels of control (shikai). If addressed to daimyo, the Great Inspectors delivered it to daimyo mansions, or the depusty-during-absence (rust) was called to the Senior Councillor's residence and took delivery. Ranks of ban. nerman or lower received them from either the Great Inspector or Inspectors depending on their official duties. Most directives (tasshi) were addressed to the Three Commissioners, and the Senior Councillor either handed them over directly at the castle, of through the chief of the personal attendants (débo eashira). Further copies of proclamations were made in the domains and the like, and in the usual case circulated down to the terminal officials of villages and (town) blocks, “Notice Boards" (kétatsu) were 2 type of proclamation, but the Shogunate Fequired that all feudal lords put these up, As countrywide permanent laws, addressed to the general people, of whatever lord or status, these were close to what might be called « fundamental Inw for the populace. Aiming at making them exentially countrywide law, the wording was reconsidered and made uniform in 1711 on the occasion of the Korean Embassy mission, The major ‘ésatsu were the “Parent and Child and Brothers Notice," the "Poizon Drug Notice,” the “Freight Charge Notice,” the “Christian Notice," the “Arion Notice,” and also the “Forceful Petition and Rioting Notice” (1770). It's snid of some of these Aésatsu that, exposed to the wind and rain, it was “as if they (Whe authorities} wanted them to become an ashen empty board” (Wank! Tokugowa-shi). But these standardi—follawing the same wording for a cen tury and a hall—came to be like natural law in the consciousness of the Beople and permeated the flesh and bones. Proclamations accumulated with time, but they were not all the same as to the scope of persons or territory ‘© which they were to be applied. ‘The Shogunate's countrywide authority included matter related to ethics and rel gion, foreign alfairs, trade, currency, uansport, weights and measures, sake Deewing and others, and the Shoginate compiled respect for these trom all feudal lords. At times [countrywide] Notice Boards were put up, oF proclamne tions circulated, Others were limited to the Shounate lands 25 controlled by the Shogun in his capacity as a feudal lord, The renowned "Ordinance Prohibiting the Permanent Sole of Fields" (Dempata citai baibai kinshi-rei) of 1643, oF the “Kei'an Proclamation” (1649) were both issued for Shogunal lands only. The contents of proclmations were in large part orders and ont] TOKUGAWA LAW a prohibitions, and they were thus standards for behavior, Usually they did not provide a specific penalty. These [penal] standards of justice were profes sional law and generally kept secret within the offices. The matters controlled were at one end very inuch in the dhamain of ¢ Ja the other end very rauch police-like and administrative; and the latter matters were more de tailed, It may be said that the contact point of both was the “Frugal Ordinances” (kenyoku-rei) {or sumptuary laws]. Most administrative matters weer concerned with tax caleton, and pale administration of fram, Ses, and prevention of crime and the Hike, and with pie and justice Inner conrering the apprehension, investigation and atest of ciniens IAnotver mass of them dalt with the formality accompanying the, anna Cems and eGquete of the Shogunate, One type af precamaton was the “Town Proclamation” iswed by the Town Commission tothe area-obacown (machichat), Inthe case of Eo, they were canfied assure exceponaly ised by the Senior Council, and "Summary Town Procamations” Gein rmach-bare issued solely hy the Town Commision, bat ely the ater was a town preciamation i the narrow sete. lst twn prelanatons wer cow cerned with the details of enforcing the sure, ov with cncrete admins Tetiatve cules n the form of proclamations, were standards of prob tion or overs and werent the grantor rcopition of igh subjectively for Ue benefit the addrser, As for mates outside of the scape af ders and prohibitions here ould be various derers of permissive terminology a aren im the authorities, such as. dovasyourplese anim, tolerate (mokunin), im or approve; and lumping these topether, "dorryou peas” (ate hide). its ot dsressing” Urashibaren), of "Ht doesnt mater” ame nav), Within thi scope there was what might be called a sphere of benef Eetvity for indiviuals and someting cow to the quay of 3 righ could Chis ers of leilation alone wnclled hts and rerdoms were ouside Of law” Amongst these, the things which the ‘Shopunate permited were alters which the individual could segue for relatively strony, and were 1 Wb Rods, 16 ne 4 a on ofthe method of pubic nnovee- men afew, Junsuve nesses, cate eros Juriprunce dato (1) 0-84 ("Naa Ho, Rast mle sgicence of tice Mo, 10KANAz4s ican svonuwcanunu ronan thet hen (Caen sf ear a the Kaname Unveriy acty lew and lneusre prt an lew tod econ (903). ra Hivos Regehen huh neste (Toe charts of otieews of he Kage orn, } Raauawn Snivanmanurcanone noon ahh) 5h ‘Dil. Shves Sempre wettion ond tate i tly Tatrgene Dopan, 28 Uaavano soonnas on Aatine Sravies 15 06 ‘rit ed honk pocamaton Yor ae Tanavanes Se and os Rese oramons tan, none, Fee ano, Mirek, Fenne and Tempo ULegat Hoy Avec 11 wes abana, 193-61, Concerning own Sond jmoxo tard ot rater covening the Shoe [1646-187 through 1163 pens homo onstpora snoea, 160, Osan sn Hine ofthe cy of Osa a 10 LAW IN JAPAN: AN ANNUAL [Vol tact expressed as “permission to have names and the sword country study” or "matters of public license” and the like. Agsin, where the Shogunate stated that a certain action should be taken; for exampie. if it said that “a decision should be rendered on a petition” or "if tere is definitely a document, it will be taken up and settlement will he ordered” and the Hike, these were representative cases where a cause of action has been given to aa idual. This is a so-called public commitment (kéyaku), and though the vidual bad absolutely no right to demand performance from the Shop pate, we can say that the Shogunate usually honored these on the Basis of the morality and discretion of statesman, b. Professional Law (hinaha) Concerning the professional law of the Shogunate, two periods were impor- lant as starting points. One was 1661-1673 (Kambun Period), when [the Shogunal} organization was established, and the second was 1751-1764 (otek period), which marked the expansion and refinement af the profes sional law. {tn 1661 the special edifice for the Conference Chamber was built, and 1668 marked the discontinuance of decisions by the Senior Council itself and the beginning of the transition from the Chamber as a feudal court of elder vassals and commissioners to the Chamber-in-bank comprised of the Three Commissions as a professional legal office (kansho). It was in 1685 that the Chamber's recording clerks Woneyaku) came 10 be appointed exclusively from the staff of the Finance Commission, Before that we ean stippose that {he lesser staf ofthe various commissions were in fact appointed a: recording ‘clerks, and itis said that in the Kambun era (1661-73) they began to have the recording clerks make records of the hearings.* The writing of many of the important compilations of Shogunal precedents also started in the Kambun period, and toward the end of the Genrokt: period (1688-1704), and in the first years of the Héei period (1704—1711) they first began to edit and com the precedents. By the Shitoku period (1711-1716), the trend toward shifting the actual coniduct of the hearings from the commissioners to the inferior officers was effectuated, and by then the condition has arisen, lamented in ‘Arai Hakuscki’s autobiography, “Told Round a Brushwood Fie" (Ovitahe shibo no ki}: “Hearings were entrusted to people called Chamber recording clerks and the like.” Alter 1754 with the-final completion of the Kujihate Ozadamegaki theres: tec abbreviated Osademegoti) the growth of professional law around the Osadamegaki was remarkable, and the increase and accuniwlation of legal Fecords of compilations of precedents were quite striking after the Hane: peviod (3751-1763). The installation of the Chamber Reeording Clerks" F nance Group-Chief (Hyajisho tomcyahu kunjé humigathira) as head olfral af the professional-legal staff was also in 1758. In the main, there were two lines of officials in the legal staff of the central Shogunate, First, officials of the Finance Commission formed the hub of the “approval for foreign TA opis of tie Te anitaion Hoses monsav (Compilation of exnys om legal insiatins. 120-1231 ekg, 100), 19811 TOKUGAWA LAW " apa replete trade promotable {comm within and were ot andere to othe aes. They ‘Charge of the lcm "In the main, the former (Chamber in Bank}, the Temple and Shrine Commision, he Commission had wo special olfce 2 Hmanarsu Vestn, Rivne) KEI) SOMHDNO Wo KEWRYD (A shay ofthe lw of ein rocedure Inthe seent ex, eaB-AS1, SS5-S68 (Shins, 190. ¢/ ce jemorandumn” (kakitrwke) was a. ge -suji o-kobitsuke- became what we call here professional ating staff authority, jomefaki] and “as for the domain, in all inces unified rules” [see Temps ] were advocated, but minor differences in each office could not be avoided. In principle, professional and it was, normal for officials participating to take an oath on assuming office binding them to protect these secrets TOKUGAWA LAW ions of Decisions: ‘The Chamber was burned i n an investigation conducted in 1726 before the Genroku Period f Chamber decisions. The two books which have Osadamegaki. The Hankacha, which was the record of criminal hearings in the Nagasaki Commission offices, was begun in 1666 and continued until 1867, It totalled 145 fair to say that it simply mirrored Edo practice. 2 the compiling of the Saikyo “ LAW IN JAPAN: AN ANNUAL [Vol 14st from 1698 with entries up to 1868, ‘The registry remains in two large fasci- les. Alter the Osadomegaki was established, classified! compilations of Chamber consultations were regularly made, which were in substance collections of criminal decisions. These were called the "Classified Collection of Precedents ‘on Executions” (O-shioki reiruishi). Their level of jurisprudential argume ‘was high and also the structure and classification excellent, thus displayin the zenith of Tokugawa professional case law. They were compiled five times, of which the first four remain: 1. Old Compitation (Korwishs), 1771-1802 2, New Compilation (Shimruishi), 1803-1814, 3. Continued Compilation (Zekuruishi, 1815~ 1826, 4. Temp Compilation Tempé-ruishi), 1827-1838. The fifth, probably called the "New New Compilation" (Shin-shinruioki, 1840-1852 was burned and lost in the Kant earthquake of 1923." One wonders if the fact that the O-shioki reiruishi began in 1771 was not some- hhow related to the circumstance that a fire again spread to the Chamber i 1772 and burned most of its records. The Book of Precedents for Supetiors with audience privileges): (j= orabini buke reisho; see 3 Kinsei hései shiryéshit) was a compi lation of criminal decisions classed and compiled, which gave summaries of decisions concerning warriors and dated from 1956 to 1811. I hhave been completed at the end of the Tempo period (1830-1844), ‘The above citations give only the major compilations of decisions. The documents of professional law which were taken over by the new Mei overnment from the Chamber alone amounted to a mass in all of over 7000 documents and 1500 charts exu), and most of these were records of decisions and precedents. We can suggest wo special characteristics of these compilations of deci- sions. One was the fact that the growth of decisional law was concerned with dispositions (hanketsu) of penal cases: one sees almost no similar phenomenon in civil hearings (minji saibon). Second, the case law was limited to a development of much subllety, which centered on the theory of penal applica- tion in the Osademegoki and precedents. This theory took as its premise the result (ie., the existence of criminality) rather than considering questions of whether of not a crime was to br found (that is, problems of conviction or acquittal. This in turn was based upon the “theory of liability for result” and the framework of hearings in the penal law.'? u atthe KyOste KyoRat (Asin fr Reform, Tabyd), 14 Inner RvOxer, ed. O-noort arnursnd (Clawied collection of qreedeats an eee ‘on 18 vel eho Shoppe, 1971-74, Miure Hiroshi, Uskinawartary hn (Lot materi flea hintry of the recent eal te ZOKU-nORenH Mo RENKD (See 9” Stidy of Legal History 1589-1459 (wena Shoten cept, 1950. 1S) For etampe of the develagmet ons aw, sce iruba Hide, Tebugane babe si eherssSbatewen (The cre of wealing ods under the peal law af the Toke Shop fate), 25 Hats newer (Stuies of leplfatttins) (on. 2, and 4; Miamat Yooh, Toure bet hihi oer seldnichenre ni ore Mine height a0 henna (Tel nd 1981] TOKUGAWA LAW 1s Nujikata Osadamegahi: The Kujikete Osadomegaki was, (rom a formal point of view, legislation (iteihd). But expecially the Second Hook (ekan) was eventually circulated outside [of government) and was regarded as a separate code. However, its character may be considered rather to be that of decisional and professional law. The distinction between the cules and decisions of the Osedamegaki, Second Hook, is not clear. Most of the contents of the Second Book are decisions transformed into absteactions and rules. The year of the ion is given in the articles by marginal notations. It may be said that the megaki, along with the Osedamegoki ni soeséré rcisho, simply listed up int decisions as such, Also the Kajé ruitem (see Tohugowe hinrciké, fan assemblage of the legislative materials of the Osadomegoki, gathered up the original precedents (toto-rei) constituting the materials of the Osedomegaki. In interpreting and applying the Oradamegaki, frequently the meaning was found by tracing back to these original precedents. Further- more alter the establishment of the Osadamegaki, the norms for hearings were ranked as follows: first, the Osadamegaki, then “appropriate precedents” (até and then “analogous precedents” (ruiei). Thus the Osodamegaki was only preferred aver other decisions. It was no more than a so-called “precedent-among-precedents.” ‘The Oradamegaki, including both the First Book and the Second Book, was a so-called secret cade: “Outside the commissions, it must not be seen. Outside of the official agencies concerned with hearings, it was not to be seen Ly the public. The Oradamegaki, as well as the inseparable Book of Prece- dents of Executions for Temples and Shrines Uisha-bate o-shicki reitho; see Tokugowa hinreiké, bebkan), the Kej5 ruiten, and the Shavitsw (see also in bektan), and also Gist the O-shioki reiruishit and then the compilation of decisions of the Chamber and Three Commissions were not shown outside of the agency, of to Commissioners of Distant Provinces and the like. The basis ‘of the secrecy of the Osedamegoki was that by origin it wax but under- standings (kokoroe) and guidance Gunsoku) for “various officials of the com- missions.” This was one reason why the Oredemepaki, as professional law, was a secret document outside the agency. Secondly, by concealing the penalties, the general populace would be intimidated, and the policy reason was to make people shun crime, This was justified by the confucianist political idea (from Rongo (Taihaku)]} to the effect that "You should make the people depend on you; but you should not explain the reason,” meaning thal the key to proper gavernance was not to inform the people, but only to induce Uheie trust, Also in the Dain hikom (1841) this phrase is cited, showing that it hhad become a public policy by 1841. Concerning this problem, the Osadomegaki was in the formative stage in the Ath month, 1742, when the inner passage was written inte the Oxadamegabi, and probably we chould also Consider that it stil retained the character of an unfinished draft until some time later the peal nw of the Tokugawa shogunte—atutiy of the hisry of pel Ln he eet 8, tated wn juical precedent 6 Kowa canal tassnt Journal ofthe Asso of Pll #8 Social Scemer’) tno 5,6, 1, 1, UN and vol 86 (nm. 5.6. Th 6 LAW IN JAPAN: AN ANNUAL [Vol et Yashimune, under the influence of Cainese law of the Ming and Ching penal codes (ris), pushed the compilation of the Osedamegaki forward, ‘working closely with Kano Hisamichi, his liaison aide (soba completion should be divided into three stages. First was the formal comple tion of the draft and inner notation of the Osodamegaki, dated the 27th day, third month, 1742. At this time the order (gechi) {rom Senior Councillor ‘Matsudaira Norisato was granted in response to the comprehensive request by the frst committee appointed in 1740, comprised of Makina Sadamichi, Ishikawa Masatomo and Mizuno Tadanobu. In the 4th month, the above date and the secrecy wording were written in In the second stage, the actual (preliminary) completion took place, and in the sixth month there was a reshuffle of personnel. This second committee included Ooka Tadasuke in place of Makino. Continuing the editing, espe- cially in 1743, the "Report of the Sth month, 1743" supplied the tiles of articles, and the revision and reconsideration of phrasing were completed, Actually the revisions after the following 9th month were called supplements (suka), and these supplements occurred intermittently until 1754. In the third stage, Senior Councillor Matsudaira Takemoto recognized in 1760 that at hearings (saiban) the Osedamegaki as a code should prevail over decisions, and in result, gave the final confirmation of the Osadamegaki of 1754 with its 81 articles in the First Book and 103 articles in the Second item in 1767 by the same Takemoto also meant that the content of the Qzadomegaki was entirely settled. The need for a duty of secrecy was especially strong in the legislative and formative draft, and the demands from the code's professional law aspects were strong. This explains the secrecy wording of the draft of 1742 (3rd month). The task of searching for the so-called original text as of the time of ‘enactment in 1742 is not very meaningful. After the legal provisions were fixed, they came to have code-like authority: in other words after the profes- sionals stressed this to the outside, it cate to be an accepted thing by reference to confucian concepts.” But the secrecy of the Osodamegaki began to erode, probably because the professional officers copied the originals in the commissions and used them in their work. We can suppose that by the Kansei period (1789-1801) books already copied were circulated in the domains and even among the populace ‘Among the circulating copies, there were books with 103 articles and others ‘with 100 articles, and for the Second Book, the popular title, Oradamegaki ‘hyakkajé, was coined. In 184i, 6th month, there was a case in which ishient was meted out by the Chamber to a bannerman, Quo Gonnojd, ankétal, 1972), Explanation tidal KARI, MEIN DAIGAKY MEIJI WARUBUTOUEAN MeMPD (Anowal feport of Mri Us ‘Museum of Cee) TV, VI in Expansion iu Regie, DavcO 0 DAY MAMIE ANOCUM wo sEDEATEU sONOTA (FI mlcllany from the Ede peed —the ie ofthe Shan snd other thing) 159-187 (Sieh Nippbha, 1987 17 Hlumawarsu Yosuind, 0p, cit note 15 at S40-555, Ocuno Hixorony, Temow Cotnonmeeats HO KENNYD Study of athens af the Onedarenahi Sakai Shoten, 1967), vai] TOKUGAWA LAW ” who inverted the Osadameraki oyeso-kyakkajé and the like in a folding book and published it under the ttle of Aobyoshi or Tonai bukwra. Thus under Shogunal law the Osadamegoki was to be kept as. secret code. But under the pressure ofthis case in the fall ofthe same year (1841), the Chamber made up thirteen sets of four fascicles, each of which included the entire Osadamegaki under the tile of Dain hikan in the posture of “not public and not private,” of half public and half private, and lent them to the Chamber-recorsting-

    You might also like