A History of the Japanese People Part 23

Her reign, however, was not entirely free from the family strife which too often accompanied a change of sovereigns in j.a.pan's early days. In addition to his legitimate offspring, Kusakabe, the Emperor Temmu left several sons by secondary consorts, and the eldest survivor of these, Prince Otsu, listening to the counsels of the Omi Court's partisans and prompted by his own well-deserved popularity and military prowess, intrigued to seize the throne. He was executed in his house, and his fate is memorable for two reasons: the first, that his young wife, Princess Yaman.o.be, "hastened thither with her hair dishevelled and her feet bare and joined him in death;" the second, that all his followers, over thirty in number, were pardoned--rare clemency in those days. Prince Otsu is said to have inaugurated a pastime which afterwards became very popular--the composition of Chinese verses.

SLAVES

The most important legislation of the Empress Jito's reign related to slaves.* In the year of her accession (690), she issued an edict ordering that interest on all debts contracted prior to, or during the year (685) prior to Temmu's death should be cancelled. Temmu himself had created the precedent for this. When stricken by mortal illness, he had proclaimed remission of all obligations, "whether in rice or in valuables," incurred on or before the last day of the preceding year. But Jito's edict had a special feature. It provided that anyone already in servitude on account of a debt should be relieved from serving any longer on account of the interest. Thus it is seen that the practice of pledging the service of one's body in discharge of debt was in vogue at that epoch, and that it received official recognition with the proviso that the obligation must not extend to interest. Debts, therefore, had become instruments for swelling the ranks of the slave cla.s.s.

*The senmin, or slave cla.s.s, was divided into two groups, namely, public slaves (kw.a.n.ko ryoko, and ko-nuhi), and private slaves (kenin and s.h.i.+-nuhi).

But while sanctioning this evil custom, the tendency of the law was to minimize its results. In another edict of the same reign it was laid down that, when a younger brother of the common people (hyakusei) was sold by his elder brother, the former should still be cla.s.sed as a freeman (ryomin), but a child sold by its father became a serf (senmin); that service rendered to one of the senmin cla.s.s by a freeman in payment of a debt must not affect the status of the freeman, and that the children of freemen so serving, even though born of a union with a slave, should be reckoned as freemen. It has been shown already that degradation to slavery was a common punishment or expiation of a crime, and the annals of the period under consideration indicate that men and women of the slave cla.s.s were bought and sold like any other chattels. Doc.u.ments certainly not of more recent date than the ninth century, show particulars of some of these transactions. One runs as follows:

Men (nu) 3 Women (hi) 3 -- Total 6

2 at 10000 bundles of rice each 2 at 800 bundles of rice each.

1 at 700 bundles of rice.

1 at 600 bundles of rice.

----- Total 4900 bundles

1 man (nu) named Kokatsu; age 34; with a mole under the left eye Price 1000 bundles of rice.

The above are slaves of Kannawo Oba of Okambe in Yamagata district.

Comparison of several similar vouchers indicates that the usual price of an able-bodied slave was one thousand bundles of rice, and as one bundle gave five sho of unhulled rice, one thousand bundles represented fifty koku, which, in the modern market, would sell for about six hundred yen. It is not to be inferred, however, that the sale of freemen into slavery was sanctioned by law. During the reign of the Emperor Temmu, a farmer of s.h.i.+motsuke province wished to sell his child on account of a bad harvest, but his application for permission was refused, though forwarded by the provincial governor.

In fact, sales or purchases of the junior members of a family by the seniors were not publicly permitted, although such transactions evidently took place. Even the manumission of a slave required official sanction. Thus it is recorded that, in the reign of the Empress Jito, Komaro, an asomi, asked and obtained the Court's permission to grant their freedom to six hundred slaves in his possession. Another rule enacted in Jito's time was that the slaves of an uji, when once manumitted, could not be again placed on the slaves' register at the request of a subsequent uji no Kami. Finally this same sovereign enacted that yellow-coloured garments should be worn by freemen and black by slaves. History shows that the sale and purchase of human beings in j.a.pan, subject to the above limitations, was not finally forbidden until the year 1699.

THE MILITARY SYSTEM

It has been seen that the Emperors Kotoku and Temmu attached much importance to the development of military efficiency and that they issued orders with reference to the training of provincials, the armed equipment of the people, the storage of weapons of war, and the maintenance of men-at-arms by officials. Compulsory service, however, does not appear to have been inaugurated until the reign of the Empress Jito, when (689) her Majesty instructed the local governors that one-fourth of the able-bodied men in each province should be trained every year in warlike exercises. This was the beginning of the conscription system in j.a.pan.

THE ORDER OF SUCCESSION OF THE THRONE

That the throne should be occupied by members of the Imperial family only had been a recognized principle of the j.a.panese polity from remotest epochs. But there had been an early departure from the rule of primogeniture, and since the time of Nintoku the eligibility of brothers also had been acknowledged in practice. To this lat.i.tude of choice many disturbances were attributable, notably the fell Jins.h.i.+n struggle, and the terrors of that year were still fresh in men's minds when, during Jito's reign, the deaths of two Crown Princes in succession brought up the dangerous problem again for solution. The princes were Kusakabe and Takaichi. The former had been nominated by his father, Temmu, but was instructed to leave the reins of power in the hands of his mother, Jito, for a time. He died in the year 689, while Jito was still regent, and Takaichi, another of Temmu's sons, who had distinguished himself as commander of a division of troops in the Jins.h.i.+n campaign, was made Prince Imperial. But he too died in 696, and it thus fell out that the only surviving and legitimate offspring of an Emperor who had actually reigned was Prince Kuzuno, son of Kobun.

To his accession, however, there was this great objection that his father, though wielding the sceptre for a few months, had borne arms in the Jins.h.i.+n disturbance against Temmu and Jito, and was held to have forfeited his t.i.tle by defeat and suicide. His a.s.sumption of the sceptre would have created a most embarra.s.sing situation, and his enforced disqualification might have led to trouble. In this dilemma, the Empress convened a State council, Prince Kuzuno also being present, and submitted the question for their decision. But none replied until Kuzuno himself, coming forward, declared that unless the principle of primogeniture were strictly followed, endless complications would be inevitable. This involved the sacrifice of his own claim and the recognition of Karu, eldest son of the late Kusakabe. The 14th of March, 696, when this patriotic declaration was made, is memorable in j.a.panese history as the date when the principle of primogeniture first received official approval. Six months afterwards, the Empress abdicated in favour of Prince Karu, known in history as forty-second sovereign, Mommu. She herself was honoured by her successor with the t.i.tle of Dajo-Tenno (Great Superior).

ENGRAVING: ONE OF THE ORNAMENTAL GATES USED IN j.a.pANESE GARDENS

ENGRAVING: SWORDS

CHAPTER XVI

THE DAIHO LAWS AND THE YORO LAWS

THE FORTY-SECOND SOVEREIGN, THE EMPEROR MOMMU (A.D. 697-707)

THE Emperor Mommu took for consort a daughter of Fuhito, representative of the Fujiwara family and son of the great Kamatari.

She did not receive the t.i.tle of Empress, that distinction having been hitherto strictly confined to spouses chosen from a Kwobetsu family, whereas the Fujiwara belonged to the s.h.i.+mbetsu. But this union proved the first step towards a practice which soon became habitual and which produced a marked effect on the history of j.a.pan, the practice of supplying Imperial consorts from the Fujiwara family.

THE DAIHO LEGISLATION

On Mommu's accession the year-period took his name, that being then the custom unless some special reason suggested a different epithet.

Such a reason was the discovery of gold in Tsus.h.i.+ma in 701, and in consequence the year-name was altered to Daiho (Great Treasure). It is a period memorable for legislative activity. The reader is aware that, during the reign of Tenchi, a body of statutes in twenty-two volumes was compiled under the name of Omi Ritsu-ryo, or the "Code and Penal Law of Omi," so called because the Court then resided at s.h.i.+ga in Omi. History further relates that these statutes were revised by the Emperor Mommu, who commenced the task in 681 and that, eleven years later, when the Empress Jito occupied the throne, this revised code was promulgated.

But neither in its original nor in its revised form has it survived, and the inference is that in practice it was found in need of a second revision, which took place in the years 700 and 701 under instructions from the Emperor Mommu, the revisers being a committee of ten, headed by Fuhito of the Fujiwara family, and by Mahito (Duke) Awada. There resulted eleven volumes of the Code (ryo) and six of the Penal Law (ritsu), and these were at once promulgated, expert jurists being despatched, at the same time, to various quarters to expound the new legislation. Yet again, seventeen years later (718), by order of the Empress Gensho, revision was carried out by another committee headed by the same Fujiwara Fuhito, now prime minister, and the amended volumes, ten of the Code and ten of the Law, were known thenceforth as the "New Statutes," or the "Code and Law of the Yoro Period." They were supplemented by a body of official rules (kyaku) and operative regulations (s.h.i.+ki), the whole forming a very elaborate a.s.semblage of laws.

The nature and scope of the code will be sufficiently understood from the t.i.tles of its various sections: (1) Official t.i.tles; (2) Duties of Officials; (3) Duties of Officials of the Empress' Household; (4) Duties of Officials in the Household of the Heir Apparent; (5) Duties of Officials in the Households of Officers of High Rank; (6) Services to the G.o.ds; (7) Buddhist Priests; (8) the Family; (9) the Land; (10) Taxation; (11) Learning; (12) Official Ranks and t.i.tles; (13) The Descent of the Crown and Dignities of Imperial Persons; (14) Meritorious Discharge of Official Duties; (15) Salaries; (16) Court Guards; (17) Army and Frontier Defences; (18) Ceremonies; (19) Official Costumes; (20) Public Works; (21) Mode of addressing Persons of Rank; (22) Stores of Rice and other Grain; (23) Stables and Fodder; (24) Duties of Medical Officers attached to the Court; (25) Official Vacations; (26) Funerals and Mourning; (27) Watch and Ward and Markets; (28) Arrest of Criminals; (29) Jails, and (30) Miscellaneous, including Bailment, Finding of Lost Goods, etc.*

This "Code and the Penal Law" accompanying it went into full operation from the Daiho era and remained in force thereafter, subject to the revisions above indicated. There is no reason to doubt that the highly artificial organization of society which such statutes indicate, existed, in outline at all events, from the reign of Kotoku, but its plainly legalized reality dates, so far as history is concerned, from the Daiho era. As for the rules (kyaku) and regulations (s.h.i.+ki), they were re-drafted: first, in the Konin era (810-824) by a commission under the direction of the grand councillor,* Fujiwara Fuyutsugu; next, in the Jokwan era (859-877) by Fujiwara Ujimune and others, and finally in the Engi era (901-923) by a committee with Fujiwara Tadahira for president. These three sets of provisions were spoken of in subsequent ages as the "Rules and Regulations of the Three Generations" (Sandai-kyaku-s.h.i.+ki). It will be observed that just as this remarkable body of enactments owed its inception in j.a.pan to Kamatari, the great founder of the Fujiwara family, so every subsequent revision was presided over by one of his descendants. The thirty sections of the code comprise 949 articles, which are all extant, but of the penal laws in twelve sections there remain only 322 articles.

*Tarring, in the "Transactions of the Asiatic Society of j.a.pan."

It may be broadly stated that the Daika reformation, which formed the basis of this legislation, was a transition from the j.a.panese system of heredity to the Chinese system of morality. The penal law (ritsu), although its Chinese original has not survived for purposes of comparison, was undoubtedly copied from the work of the Tang legislators, the only modification being in degrees of punishment; but the code, though it, too, was partially exotic in character, evidently underwent sweeping alterations so as to bring it into conformity with j.a.panese customs and traditions. Each of the revisions recorded above must be a.s.sumed to have extended this adaptation.

The basic principle of the Daiho code was that the people at large, without regard to rank or pedigree, owed equal duty to the State; that only those having special claims on public benevolence were ent.i.tled to fixed exemptions, and that not n.o.ble birth but intellectual capacity and attainments const.i.tuted a qualification for office. Nevertheless j.a.panese legislators did not find it possible to apply fully these excellent principles. Habits of a millennium's growth could not be so lightly eradicated. Traces of the old obtrude themselves plainly from between the lines of the new. Thus the "Law of Descent" (Keis.h.i.+-ryo), which formed the thirteenth section of the code, was a special embodiment of j.a.panese social inst.i.tutions, having no parallel in the Tang statutes, and further, while declaring erudition and intelligence to be the unique qualifications for office, no adequate steps were taken to establish schools for imparting the former or developing the latter. In short, the n.o.bles still retained a large part of their old power, and the senmin (slave) cla.s.s still continued to labour under various disabilities.

That several important provisions of the Land Code (Den-ryo) should have fallen quickly into disuse will be easily comprehended when we come presently to examine that system in detail, but for the neglect of portions of the Military Code (Gumbo-ryo), of the Code of Official Ranks and t.i.tles, and of the Code relating to the Meritorious Discharge of Official Duties, it is necessary to lay the responsibility on the shoulders of the hereditary n.o.bles, whose influence out-weighed the force of laws. It may indeed be broadly stated that the potency of the Daiho code varied in the direct ratio of the centralization of administrative authority. Whenever feudalism prevailed, the code lost its binding force. In the realm of criminal law it is only consistent with the teaching of all experience to find that mitigation of penalties was provided according to the rank of the culprit. There were eight major crimes (hachi-gyaku), all in the nature of offences against the State, the Court, and the family, and the order of their gravity was: (1) high treason (against the State); (2) high treason (against the Crown); (3) treason; (4) parricide, fratricide, etc.; (5) offences against humanity; (6) lese majeste; (7) unfilial conduct, and (8) crimes against society. But there were also six mitigations (roku-gi), all enacted with the object of lightening punishments according to the rank, official position, or public services of an offender. As for slaves, being merely a part of their proprietor's property like any other goods and chattels, the law took no cognizance of them.

OFFICIAL ORGANIZATION

Under the Daiho code a more elaborate system of administrative organization was effected than that conceived by the Daika reformers.

In the Central Government there were two boards, eight departments, and one office, namely: (1). The Jingi-kwan, or Board of Religion (s.h.i.+nto). This stood at the head of all, in recognition of the divine origin of the Imperial family. A j.a.panese work (Nihon Kodaiho Shakugi) explains the fundamental tenet of the nation's creed thus: "If a State has its origin in military prowess, which is essentially human, then by human agencies also a State may be overthrown. To be secure against such vicissitudes a throne must be based upon something superior to man's potentialities. Divine authority alone fulfils that definition, and it is because the throne of j.a.pan had a superhuman foundation that its existence is perennial. Therefore the Jingi-kwan stands above all others in the State." In another, book (Jingi-ryo) we find it stated: "All the deities* of heaven and earth are wors.h.i.+pped in the Jingi-kwan. On the day of the coronation the Nakatomi performs service to the deities of heaven and the Imibe makes offerings of three kinds of sacred articles."

*The eight Kami specially wors.h.i.+pped in the Jingi-kwan were Taka-mi-musubi, Kammi-musubi, Tamatsume-musubi, Iku-musubi, Taru-musubi, Omiya no me, Miketsu, and Koto-s.h.i.+ro-nus.h.i.+.

Thus, though the models for the Daiho system were taken from China, they were adapted to j.a.panese customs and traditions, as is proved by the premier place given to the Jingi-kwan. Wors.h.i.+p and religious ceremonial have always taken precedence of secular business in the Court of j.a.pan. Not only at the central seat of government did the year commence with wors.h.i.+p, but in the provinces, also, the first thing recorded by a newly appointed governor was his visit to the s.h.i.+nto shrines, and on the opening day of each month he repaired thither to offer the gohei.* Religious rites, in short, were the prime function of government, and therefore, whereas the office charged with these duties ranked low in the Tang system, it was placed at the head of all in j.a.pan.

*Angular bunches of white paper stripes, representing the cloth offerings originally tied to branches of the sacred cleyera tree at festival time.

(2). The Daijo-kwan (called also Dajo-kwari), or Board of Privy Council. This office ranked next to the Board of Religion and had the duty of superintending the eight State departments. Its personnel consisted of the prime minister (daijo-daijin or dajo-daijin), the minister of the Left (sa-daijiri), and the minister of the Right (u-daijiri).

(3). The Nakatsukasa-sho, or Central Department of State (literally, "Intermediate Transacting Department"), which was not an executive office, its chief duties being to transmit the sovereign's decrees to the authorities concerned and the memorials of the latter to the former, as well as to discharge consultative functions.

(4). The s.h.i.+kibu-sho, or Department of Ceremonies. This office had to consider and determine the promotion and degradation of officials according to their competence and character.

(5). The Jibu-sho, or Department of Civil Government, which examined and determined everything concerning the position of n.o.blemen, and administered affairs relating to priests, nuns, and members of the Bambetsu,* that is to say, men of foreign nationality residing in j.a.pan.

*The reader is already familiar with the terms "Kwobetsu" and "s.h.i.+mbetsu." All aliens were cla.s.sed as Bambetsu.

(6). The Mimbu-sho, or Department of Civil Affairs. An office which managed affairs relating to the land and the people, to taxes and to forced services.

(7). The Gyobu-sho, or Department of Justice.

(8). The Okura-sho, or Department of Finance.

(9). The Kunai-sho, or Imperial Household Department.

(10). The Hyobu-sho, or Department of War.

(11). The Danjo-dai, or Office of Censors.h.i.+p, This office had the duty of correcting civil customs and punis.h.i.+ng and conduct on the part of officials. In the year 799, Kwammu being then on the throne, a law was enacted for the Danjo-dai. It consisted of eighty-three articles, and it had the effect of greatly augmenting the powers of the office. But in the period 810-829, it was found necessary to organize a special bureau of kebiis.h.i.+, or executive police, to which the functions of the Danjo-dai subsequently pa.s.sed, as did also those of the Gyobu-sho in great part. These two boards, eight departments, and one office all had their locations within the palace enclosure, so that the Imperial Court and the Administration were not differentiated.