The Tokugawa Shogunate: 265 years of peace, isolation and prosperity
Beginning of the Tokugawa Shogunate
In the late 16th century, Japan was made up of feudal colonies ravaged by civil wars among territorial lords. The northern and eastern portions of the country had not yet been effectively subjected to control of the emperor in Kyoto and continued to be an obstacle to centralized rule. Through a series of strategic alliances and victories in battle, Ieyasu Tokugawa, a daimyo (i.e., feudal nobleman) in eastern Japan, seized power and relocated the capital to Edo (Tokyo) in the east of Japan. Tokugawa, was named shogun (head general or generalissimo) by the emperor and shortly thereafter relegated the emperor and the nobility into powerless figureheads.[i] Tokugawa and his successors ran the country for 265 years in a period characterized as peaceful and productive and unhampered by the civil wars dominant up until this period. During this time there were some important developments that helped shape the legal system as well as the culture for years to come.
There were two periods of significant legislative activity, the first at the beginning of the Tokugawa bafaku or shogunate[ii] (i.e., administration) and the second around the mid-1700s.[iii] In the former, shortly after Ieyasu had taken over country, Ieyasu’s son, Hidetada[iv], as successor shogun exerted power over the emperor and the nobility in Kyoto.[v] Hidetada made a visit to an assembly of the Kuge (court nobility) and after a meal and entertainment, had the “Laws for the Kuge” read aloud in the court.[vi] The gist of the laws were that the nobles were to occupy themselves in study, extensive instructions were provided to wear specific dress based on their status, and any violations of which they would answer to the shogun and not the emperor. This was the first time that a shogun had asserted judicial control over the emperor.[vii] The presiding elder and other nobles and lords, perhaps relieved at being able to maintain their position of status albeit powerless, signed the decree and pronounced the laws admirable and free from defect or grounds of objection.[viii] The nobility signed the rules into law and consequently signed away any power they had to take back the empire.
In addition to the Laws for the Kuge, Hidetada under the guidance of his father, devised methods and strategies to preserve the longevity of the shogunate. The shogun ruled directly over Edo and the surrounding areas but to ensure control over the more remote domains, Hidetada distributed the Laws for the Buke (i.e., daimyos) the gist of these laws being the prevention of interaction or alliances between domains, the prevention of gatherings or uprisings, and an annual pilgrimage of the daimyos to the capital.[ix] These laws were amended many times but the gist of ensuring allegiance to the Shogun and preventing the possibilities of uprisings in the more rural domains, remained the same.[x] In the area that the shogun ruled directly, laws on tablets were posted in six public localities in Edo which pertained to the common man.[xi] These laws seemed to focus on a code of behavior to ensure tranquility of the commoners. For example, one law required that relatives be affectionate to one another and servants told to diligently follow the orders of their masters.[xii] In other examples, quarrels and wrangling were eschewed. [xiii]
In addition to the legislative enactments, The Tokugawa bafaku considerably restricted foreign trade and intercourse and outlawed Christianity.[xiv] The culture therefore developed with limited outside influence thereby preserving the power of the bafaku.[xv]
The second period of legislative activity occurred in 1742 under the rule of the eighth Shogun, Yoshimune.[xvi] Yoshimune was fabled as a man of exceptional ability and high character and he introduced many reforms in the administration of government.[xvii] Under Yoshimune’s rule, The Edict in 100 Articles was created as a compendium of legal procedure for use in the Courts of Justice.[xviii] The compendium was however, not addressed to the people subject to its provisions and deliberately kept from their knowledge.[xix] The idea behind this was that the bafaku had distributed the laws to the nobility, buke and gentry and for a ruler to address directly the lower classes (i.e., farmers artisans and merchants) would have been an act of extreme condescension not in the social order at the time.[xx] Therefore, legal commands to commoners were promulgated by magistrates.
As to the content of the Edict in 100 articles, the bulk of it is old custom dating back to the 12th century, the beginning of the feudal society.[xxi] The code included consecutively numbered sections, however, there is no clear logical arrangement as to the subjects handled. The subjects cover a wide range of procedural and substantive law, civil and penal and detail the punishments for each of the various offenses.[xxii] As characteristic of feudal systems, the punishments were generally harsh. Unique to the bafaku was a wide range of punishments and the ability of the magistrate to aggravate or mitigate the prescribed punishment.
The feudal system propagated during the Tokugawa bafaku was not particularly unique but was surprisingly peaceful and enduring in comparison to the many years of civil wars that preceded the reign. Some major factors that contributed to the success of the Tokugawa bafaku was the strict class system, legislation of pacification, methods of legal administration, and isolationism.
The Class system
The population where categorized in seven classes beginning with the kuge (court nobility) in Kyoto who maintained their position of running the imperial court but as mentioned above had no influence on the bafaku.[xxiii] The daimyo[xxiv] and military nobility (samurai) lead the feudal colonies followed by the common people categorized as farmers (hyakushô), artisans (shokunin) and merchants (shonin). The last two classes were that of the priesthood and the outcasts (eta and henin).
In the Feudal hierarchy the shogun acted as the lord over all of the hans (feudal colonies) and under him were the Daiymos (approximately 260) who were the lords of the hans.[xxv] In the daimyo’s oath to the shogun, the daimyo pledged to loyally respect the institution of the shogunate and to obey any regulations issued from the bafaku.[xxvi] Every time a new shogun took office, all of the daimyos were summoned to the capital and the laws for the buke were read aloud.[xxvii] Some sources indicate that the wives and the children of the daimyo were retained in Edo by way of hostage and the daimyo themselves were required to spend a certain amount of time every year in Edo.[xxviii],[xxix] Aside from this, the feudal lords could to a large extent rule in their respective domain as they saw fit.
There were various status classes within the daimyos. One division concerned the nature of the han (e.g., lord of a castle, lord without a castle, etc.). Other classifications reflected the relationship of the daimyo with the shogunate family, e.g., kamon were near relatives, and fudai were hereditary vassals of the shogunate family.[xxx] Daimyo status was assigned by the shogun and could be rescinded if the daimyo had no heirs, was a poor administrator or at the shogun’s pleasure.[xxxi]
Samurai was a term used to describe a military lord in the service of a daimyo.[xxxii] The non land-owning samurai were a hereditary class of warriors many of whom depended upon a daimyo for housing and salary. In return, the samurai pledged to the daimyo his duty of personal service in war and protecting the lord upon his journeys.[xxxiii] In general the samurai monopolized all public posts.[xxxiv] The samurai also held ordinary jobs such as policeman, scribes, bookkeepers and foot soldiers but were required to maintain their customary role to bear swords, walk with a specific gait, keep certain hair and dress and speak in a certain manner such that they could be easily recognized. The administration may have believed that by maintaining the military form, the integrity of the military institution as well as the agility of the samurai would not be corrupted by the common “paper pushers.” [xxxv]
The samurai were essentially a biologically closed class with limited exceptions.[xxxvi] The samurai could lose their status by forfeit of by faults and some exceptional commoners could gain samurai status for life.[xxxvii] A major goal of samurai was to have a son or alternatively to adopt a son to receive title of samurai, otherwise the lord would confiscate tenure.[xxxviii] Having a son, however, did not guarantee the succession of title as it was up to the discretion of the lord to renew samurai status in male heirs. For the lower foot-soldiers it was far from guaranteed that a son would inherit the samurai status. While there were ideological reasons set forth for denying heirs samurai status such as the danger of allowing the incompetent to inherit the title, the motivation seems largely for financial gain and notoriety of the lord as daimyo’s could gain influence and wealth by granting new tenure to samurai and charging a fee.[xxxix] If the title did not descend to the son of a samurai, the family of the land-owning samurai would have their land confiscated.[xl]
All samurai had special rights such as the exclusive right to carry swords and to strike down and even kill those who offended him.[xli] It is unclear how often this right of the samurai was actually used and was seemingly a relic of the times of conflict.
The farmers made up approximately 80-90% of the 25-30 million people in Japan during the Tokugawa reign.[xlii] The farmers were ranked immediately below the samurai and daimyo, however, in reality, many lived in extreme poverty.[xliii] About 50% of the farmer’s produce was taken from him as a land tax.[xliv] In addition a produce tax was levied on all of his produce.[xlv] There were disparities, however, among the quality of life of the farmers as there were wealthy farmers who took advantage of the poorer farmers.[xlvi] One source emphasized the extreme hardships placed on the poor farmers by the wealthy farmers and the tax system to a point that a term was coined for those who lived on water alone and some practiced infanticide when children could not be fed.[xlvii] Farmer uprisings were not uncommon during the early years of the bafaku but harsh persecution of the leaders eventually deterred these uprisings.[xlviii] Alternatively, the farmers found ways negotiate for better quality of life or abandoned their lands, although this practice was forbidden, and migrated to Edo to find jobs.
Farmers ranking in the hierarchy just below the nobility is peculiar given that they were reportedly greatly exploited by the daimyo and bafaku. Farming, however, was considered a noble occupation in part given the emphasis placed on Confucian beliefs that only primary producers add to society’s wealth as well as the relationship between the “rice machine” and the “war machine” that evolved in Japan.[xlix]
The merchants and artisans belonged to the class right above the outcasts (eta). The merchants and the artisans together made up approximately 8% of the population but they gathered the majority of the economic power.[l] This may be in part due to the much lighter taxes they received in combination with a societal need and desire for consumables in the time of peace. The merchants presented a problem for the bafaku’s restriction on association with other hans as there was a need for trade of important commodities such as credit, rice, soy, paper, silk, medicines, miso, dried fish, sake, pots and pans and printed matter between the hans.[li] Recognizing theses needs, the bafaku permitted merchants to form commercial associations locally and nationally in the form of guilds which ultimately made the class very well connected and wealthy.[lii] There was an honor code associated with artisans and merchants during the bafaku that was equated with the samurai code of honor emphasizing hard work and integrity.[liii] In many cases the merchants were the creditors of the daimyo and held considerably more power than the farmers above them in social status.[liv]
The priests were important figures in family and village life and were responsible for keeping a register over the affairs of every family.[lv] The priest recorded births, deaths, local and national festivals.[lvi] The register was a control mechanism of the bafaku which allowed for the oversight of all affairs of the family.[lvii] Some priests were considered quasi-samurai status.[lviii]
The eta and the henin were at the bottom of the status system.[lix] They were hereditary scavengers and were despised by the other groups for superstitious reasons.[lx] The eta typically made military goods such as leather armor.[lxi] The henin was a statute to which one could be condemned to or pardoned from to commoner status.[lxii] Henin reportedly had the job of torturing law offenders. Laws during the Tokugawa bafaku discriminated against the henin and eta and they were allegedly used as scapegoats for the economic problems in the later years of the bafaku.[lxiii]
Local Law Administration
As mentioned, the legal structure in each of the hans varied due to the discretion afforded to the daimyo. That said, there were some widely accepted practices throughout country.[lxiv] The systems generally contained a number of checks and balances enforced by the bafaku to ensure that no one official in the han retained too much power over the people.[lxv]
In general, the bafaku in Edo or the daimyo in each han appointed multiple magistrates for each county and one or more daikan (or deputies) for each of the administrative districts in the counties of the han or Edo.[lxvi] The magistrate was appointed by the daimyo and had to be a samurai of close ties to the Tokugawa family.[lxvii] He had under him a staff of assistants, e.g., tax collectors, clerks, superintendants of public works. The magistrate was in full charge of the civil affairs of the county. He could pass final judgment on appeal from the daikan, in all cases except for grave crimes which had to be decided in Edo.
The daikan was appointed by a chief minister of the daimyo of the han and had to be of samurai rank. Assistants to the daikan were appointed by the magistrate on the recommendation of the daikan and in each district there was an inspector whose duty was to observe and report on the actions of the daikan to the treasurer of the han serving as a check on the power of the daikan. The daikan attended to such things as assessment and collection of taxes, lending of rice and public works and was in constant contact with the village officers.
Under the daikan was one or more headmen and deputy headman to rule each city ward or village.(c117) The headmen was a layman but took care of distributing tax quotas on individual households, publication of laws and decrees, distribution of access to common assets, firefighting, and police. The headman could also sentence criminals on the spot and sanction fines, beating or expulsions although the headman’s powers of enforcement were very limited. From the viewpoint of the daikan, the headman was responsible for the conduct of the peasants, payment of taxes, regulation of rules and preservation of peace in the community. From the viewpoint of the villagers, the headman was their representative in their relations with the daikan and the bafaku. Other layman officers within a village might be the chief of companies who looked after the laborers of public works and the elders or village representatives. None of the layman officials except for the chief headman received a salary but many received an exemption from the land tax.
Below all of these administrators and perhaps the foundation for the stability of the system was the five-families group (goningumi). The head of every household was obliged to join with four other heads of household and each family was mutually responsible for the other. If one member of the goningumi failed to pay a tax, the other families were forced to make up the difference or receive punishment. The goningumi system was highly effective through a combination of peer pressure and fear of dishonor to discourage criminal and even shameful or disrespectful activity. In the goningumi, one person served as the chief and his seal was required in any transaction made by a member of the five families. This structure became engrained in Japanese society and was reportedly resurrected during the second world war to pressure the Japanese citizenry to mobilize to join the war effort.
The goningumi was not new to the Tokugawa administration but served a particularly stabilizing force when combined with the Tokugawa policies (B44). In the case of a disagreement between members of the goningumi, the heads of families met to discuss and resolve the issue which generally resolved any minor disputes. In one cited example, a man accused on abusing his wife would be invited to a dinner party with the heads of the family. The food and drink were thought to promote good feelings and making a settlement easier. If the man refused to stop or was a repeat offender, the members of the goningumi might ostracize him or report him to a higher authority such as a headman. Ostracism was often sufficient to bring a member of the goningumi into compliance and it was not, the dispute was considered to be disreputable. People involved in disreputable disputes would be avoided by others in the community such as in the case of finding a spouse for one’s child thereby serving a strong incentive to resolve disputes at the goningumi level.
For disputes that could not be resolved by the goningumi, the headman might be called upon to decide. If the litigants refused to accept the decision of the headman, the case could be brought to the daikan. The daikan was trained as a judge and so competent to dispense legal justice, however, his powers were greatly limited. The daikan could rule in civil actions in which both plaintiff and defendant were in his district but in some cases only after sentencing after consulting with the finance magistrate. In criminal cases when the accused was in his jurisdiction, the daikan could handle the case and sentence after consulting with the finance magistrate. The daikan was limited to imposing corporal punishment up to 50 blows and most if not all punishments required written permission from the finance magistrate. Appeal from the decision of the daikan was generally not available unless there was a miscarriage of justice such as an official involved with the case was charged with corruption or where the daikan delayed unconscionably the deciding of a claim.
The limitations on the power of justice in the hans were that capital punishment required approval from Edo, in cases of repeat offenders the case would be sent to the bafaku authorities, and a resident of a han who committed a crime in bafaku territory (Edo and vicinity) the case was tried by bafaku and daimyo carried out the punishment. The other category that would be tried by bafaku were cases involving citizens on different hans.
Bafaku administration of law
Outside of the jurisdiction of the han, for example, in cases where both the plaintiff and the defendant were not in the same han, the case was handled by the bafaku. In such instances, both criminal and civil suits were recognized and the judicial counsel could determine in some cases if a case was a relatively minor crime that is should be a civil case or a more serious offence like rebellion was automatically a criminal offense. Criminal cases pertaining to rebellion, manslaughter, robbery and arson were prosecuted by the bafaku only and always in the form of inquisitory proceedings which are discussed in further detail in following sections.
The bafaku had four courts with separate jurisdictions: 1. The chamber of decisions having jurisdiction in criminal cases in which persons of importance were involved or in civil cases where the residents resided in bafaku territory, the case was between parties from different hans, and all cases falling under more than one bafaku court; 2. Temple Magistrates having jurisdiction over temples and shrines and suit brought by residents of hans outside Kanto against residents of Edo; 3. Town magistrates of Edo having jurisdiction in civil and criminal cases in Edo; and 4. Finance Magistrates having jurisdiction in civil and criminal cases in bafaku territory outside Edo and in Kanto. The chamber of decisions took original jurisdiction in all cases involving residents belonging to different jurisdictions analogous to diversity jurisdiction in American civil procedure.
The chamber itself delivered final judgment, usually in accordance with the recommendation of the trial magistrate. The chamber had three magistrates and met six times a month with three meetings being formal. At formal meetings, high officials such as the shogun’s attendant, the governor of Kyoto, castle-commandant of Osaka and others were expected to attend.
In a civil case, when the court was determined, the plaintiff would present his case with evidentiary material, a summary to the competent court’s registrar. The register would review the material for compliance with formalities and the plaintiff would then deliver the attested materials to the defendant’s ward or village office. The papers were delivered to the defendant and he was given a period of time to respond to the complaint. The plaintiff’s court then set a date for the hearing. On the hearing day, both parties appeared before the judge and stated their cases. The court clerk, who was familiar with the cases, then questioned the parties in front of the judge until the facts were established. The judge then made and announced the decision which was final. If the parties happened to reconcile outside of court before the decision was announced, the judge had to approve of the decision otherwise it was not valid.
Civil proceedings were heard at the discretion of the judges. The cases were often classified as “real cases” which were issues that interested the government such as tenures, leases and mortgages or alternately “money cases” which were cases that involved unsecure money transactions were of less interest to the court. The court would hear the former cases with care and note precedent but the latter cases were treated with less care or thrown out. (C155) The money cases were deemed unworthy of trial as they reflected merchants trying to increase their wealth and did not advance the goals of the governing class.
When it came to cases of interest to the court, such as water rights, the samurai officials were sent out to look at the situation and bring the parties into reconciliation. After a decision was issued, the court would check back to see if, for example, the water had taken another course in which case if there was still disagreement, the case could be taken before the officials again.
Criminal proceedings could start on the basis of accusation, policeman’s report or be initiated by the judge, for example, for contempt in civil cases. Under the Tokugawa tribunals, the only valid proof of guilt was the accuser’s own confession, taken down in writing and formally sealed by him. Proceedings began in a similar manner to civil cases but at any point in the trial, if the judge felt that a confession had not been reached, he could institute torture against the defendant using what was termed an inquisitory proceeding as mentioned above. In the application of torture, no distinction in class were recognized as a samurai was treated the same as a farmer. The torture in criminal trials was instituted in four stages of increasing magnitude, namely: 1) scourging; 2) hugging the stone; 3) the lobster; and 4) suspension. (A267)
In scourging the suspect’s arms are twisted behind his back and gradually pulled up to the shoulders. The suspect is then beat on the shoulders, back and buttocks with a scourge made of split bamboo swathed with tightly twisted hemp. There was no fixed limit on the number of strokes. If the suspect made it through this and did not confess, in hugging the stone, he was forced to kneel on a bumpy platform with his back against a post and tied to the post. Granite slabs weighing approximately 107 lbs were then piled on his knees one at a time to illicit confession. The infliction continued up until the point when the life was endangered, this being when the extremities started turning black. The next stage of torture when the first two failed to extort a confession was the lobster. The arms are twisted behind the back and tied up by the shoulder blades. Then the legs were tied together in front and pulled up to the chin and the front and back pulled together as tightly as possible and the suspect left for three or four hours. The final stage of torture to force a confession was suspension, where the suspect is hung up by his arms twisted up behind his back by his shoulder blades.
When a confession had been reached, a report of the hearings was made by the clerk and given to the suspect to sign agreeing to the content. The clerk wrote a draft judgment and the judge sentenced on that basis. The sentence was carried out immediately with no possibility for appeal. It is unclear as to what would become of the alleged criminal who would not confess either due to innocence or otherwise. Presumably, since it was at the judge’s discretion to start the torture proceedings, if he felt that the defendant was innocent and a confession was not needed, the inquisitory proceedings would have been avoided. It seems, however, that false convictions in this system must have been common.
Punishments for Crimes
The 100 edicts are instructive as they are essentially a compilation of case rules and punishments for the benefit of the magistrates. Similar to the system in Imperial China, the punishments were proscribed in the edicts, however, the court had discretion to aggravate or mitigate the punishment proscribed based on the individual. It has been asserted that the Japanese system took into consideration the whole person in trying offences and prescribing punishments. The variety of punishments would seem therefore to reflect the customization of the punishment to the crime as the courts had a broad array of punishments to choose from with mitigation and aggravation of punishments an option up to the court.
Minor punishments included banishment to islands such as Oshima, Hachijo or Miyake which also included the confiscation of the culprit’s lands, houses and personal property. Below this was deportation to certain areas outside the city (always including the province in which he resided and the province where the crime was committed) proscribed on three levels depending upon the severity of the offense, i.e., major, medium and minor deportation. When samurai were deported they were escorted outside the city and his sword returned to him. Each of the punishments of banishment and deportation could be raised to the next highest level) and one charged with major deportation and the punishment could also be mitigated. For example, a person punishable by medium deportation may have his sentence aggravated to major deportation or a person punishable by banishment may have his sentence mitigated to major deportation.
Fines to the extent of one-half or two thirds of the assessed value of the offender’s land may be imposed. Imprisonment was another punishment that could be substituted with enslavement if any one wanted the services of the culprit. More serious fines could be imposed based upon the offender’s means or in proportion to the village tax. In cases where the culprit is of limited means, he may be handcuffed instead.
In handcuffing, the shackles are fastened onto the culprit and sealed with paper. The seal is to be examined every fifth day and in cases of handcuffing for one hundred days, the seal is to be examined every second day.
Tattooing was performed on all prisoners by the eta and was generally in the form of black markings on the upper arm. The form of the marks varied according to locality and nature of crime. Those who attempted to escape were marked with a line on the upper and lower arms. For particularly bad offenders, the tattoos were made on the forehead.
Seclusion was a samurai punishment that required an offender’s home gate and shutters to be shut and “he may pass out through the side wicket at night time in a manner not to attract attention.” The law proscribed that the in the event of an illness, a doctor could be called to visit at night and in the event of a fire in the neighborhood, “measures necessary to prevent the house catching fire may be taken.” If the safety of the house is threatened by fire, the inmate may withdraw from the house and the circumstances must be reported.
For more serious offences, crucifixion, gibbeting, burning, decapitation (pubic or private) or bastinado or flogging. Crucifixion was to be carried in specified locations or at the scene of the crime and a placard describing the crime was placed near the corpse. Gibbetting, decapitation, and burning were similarly carried out either in specified city locations or at the scene of the crime and in some cases accompanied by the confiscation of the culprits lands, house-plot, house and belongings. Following public decapitation, the commoner corpses could be used by the samurai for sword practice. Specific crimes such as killing an adversary in a fight would not subject the decapitated corpse to sward practice. Bastinado was ordinarily 50 blows or 100 in severe cases to the culprit’s shoulders, back and buttocks avoiding the spine so that he may not faint.
Death by pulling of the saw allowed involved exposure of the culprit in a public square and any person who, detesting his crime, is willing to pull the saw or saws cutting off his head was at liberty to do so. It seems that this practice was largely discontinued as the public rarely if ever participated in this torment.
A samurai who attacked or killed those who offended him would be investigated and had he acted unjustifiably, he would be punished, occasionally with death by decapitation. (C123) Decapitation of a samurai was done by a friend after the self-inflicted seppuku (cutting of the belly). Samurai could not be punished as a commoner by sawing off the head, crucifixion, being boiled or burnt at the stake.
Interesting crimes and punishments
The hundred edicts reflect a codification of years of case law and tradition and are an interesting window into common criminal offences and punishments. Some codified areas are more detailed with multiple rules dealing with different permutations of offences, e.g., gambling, mortgaging land, adjudication in money debt cases, punishments on defaulting or runaway servants, robbery and theft, killing and wounding, arson, and adultery. We can presume that these were among the more highly litigated issues based upon the range of rules and remedies prescribed.
In the rule entitled “Punishment for farmers who persist in urging [complaints] against their daimyo and afterwards band together and run away,” the ringleader is to be beheaded and the village headman sentenced to major deportation. The whole body of farmers would be fined in proportion to the tax assessment of the village. If there was injustice in the daimyo’s orders the punishments may all be mitigated by one or two degrees and if the farmers had paid their taxes to date, it is not necessary to inflict serious punishment. If the farmers had banded together with other village farmers to make a disturbance and the headman tried to stop the movement or refused to join it, than the headman shall receive a money reward and may be elevated to samurai status. But if the circumstances were not very serious, the headman would only get a money reward.
In another rule entitled Of sending out adopted Daughters into service as prostitutes, suits regarding commoners who send out their adopted daughters to become prostitutes will not be entertained by the courts even when brought by the true parents. The rule further states the fact of giving away of a daughter to a commoner by the true parents implies that such may have been the intention of the actual parent.
In the punishment for adultery, a wife who commits adultery is to be decapitated and the adulterer is to be decapitated. If the husband kills both the wife and the adulterer and the facts are clearly proven, he is not punished. I the husband kills only the adulterer, and the wife escapes alive, she should be decapitated once caught. If the adulterer escapes, however, the husband is free to do as he likes with the wife. If an attempt is made to commit adultery against the will of the wife and the husband kills the man attempting adultery, both the husband and wife are free from culpability. A woman who without getting a written divorce from her husband goes as wife or concubine to another man is to have her hair shaved off and to be sent back to her parents. The rule also points out that in all cases of punishments for adultery no distinction is to made between a wife and a concubine.
Gambling was another highly codified offence in the edicts. Some exemplary rules in the Punishment of Gambling for Stakes, of Dicing and of Holding Lotteries included the dice-owner in gambling with dice and the house-holder are both to be banished. Anyone who makes loaded dice is to be tattooed and severely flogged. Persons found engaged in “hand in eye” gambling (i.e., guessing, for a wager, whether the number of some small things held in the other person’ closed fist is odd or even) are to be banished. The occupant of a house used for gambling, and the owner of the house occupied by the dice-thrower, are each to be fined in proportion to their means and to be handcuffed for 100 days.
Finally a particularly strange punishment is described in the rule “Of pickling in salt the corpses of the worst criminals. For those who murder their master or parent or for the transgressor of a barrier or a treasonable conspirator, the corpses of the culprits who have committed suicide to escape punishment are to be pickled in salt and then punished. Perhaps the punishment of the corpse was related to the religious beliefs against desecration of a corpse.
“Harmony is to be valued and an avoidance of wanton opposition is to be honored” --Prince Shotaku, 604 AD
Japanese society beginning in the Tokugawa era and continuing to this day is a culture relatively free of conflict and crime relative to other societies in general and particularly in comparison to similar industrialized nations.[lxviii] Some hypothesize that the dangerous natural environment of Japan encourages a culture of cooperation and peace, others have put forth the theory that the pacifist culture is the result of policies and brutal conditioning under the Tokugawa bafaku.[lxix]
Peace was achieved in the Tokugawa bafaku through a number of strategic policies many of which were shaped by the influence of Confucianism. Although not new to Japan in the Tokugawa bafaku, Ieyasu adopted Confucianism as his official philosophy and proceeded to mold Japanese culture under its teachings.[lxx] Confucianism emphasized humanism and particularly valued etiquette, filial piety (respect for one’s elders), loyalty and altruism, among other things. Confucianism also stressed the value of scholarship and learning.
His strategy for propagating and enforcing pacifism manifested in multiple ways, the most prominent was usurping the nobility, the laws created against conflict and the nature of the enforcement and the restriction on trade. Ieyasu immediately recognized a potential source of strife and conflict from within the shogun and that was the threat the nobility class posed.[lxxi] He dealt with this in what one might see as an ingenious solution. One the one hand, the nobility were allowed to keep their status and lifestyle while on the other hand, the rules for the kuge focused all of the nobility efforts on scholarship and etiquette. Therefore, the nobility class were kept relatively content to continue to live a privileged life and the tradeoff of learning and dress were not particularly objectionable placating the nobility in their figurehead positions. By all appearances, the social order was maintained and so unrest among the people was avoided by this seemingly peaceful exchange of power.
Another site of possible strife was the feudal colonies further from Edo that the shogun feared could rise up relatively unnoticed by the bafaku and challenge the shogun. First, the laws for the buke regulated the interaction between the feudal colonies reciting “no social intercourse is to be permitted outside of one’s own domain”, “if an a neighboring domain innovations are being hatched or cliques being formed the fact is to be reported”.[lxxii]
The administration recognized that within the han strife could arise on the basis of disparities in wealth or associations among families. The laws for the buke, therefore, emphasized frugality, and prevented political alliances by marriage.[lxxiii] Residential castles could be repaired but the matter had to be reported and no structural changes could be made as “crenelated walls and deep moats (of castles) are the causes of anarchy.”[lxxiv] The law further recites that samurai are to practice frugality as “those who are rich like to make display, whilst those who are poor are ashamed of not being on par with the others.”[lxxv] The law goes on to state that there is no other influence as pernicious to social order as this wealth disparity. In the law restricting marriage, the harmonious blending of In and Yo (yin and yang in Chinese culture) is stressed because “ to form cliques, i.e., political parties, by means of matrimonial connections is a source of pernicious stratagems.”[lxxvi]
Interestingly, while conspicuous consumption even among the noble class was largely prohibited, the han remained largely stratified. Similar to the laws for the kuge, dress was legislated for the buke so that there was a clearly visible distinction between the classes.[lxxvii] Particular materials such as silk, could only be worn by lords.[lxxviii] It appears that the administration considered the class system highly important to the success of the bafaku but they eschewed the inevitable repercussions of a class system, namely large disparities in the wealth or living conditions among the classes.
The laws for the buke laid out a relatively limited scope of statutes for enforcing the peace in the han and throughout the country. While they changed over the years, one remarkable feature is they left the remainder of the ruling decisions, e.g., structure and administration of the laws in the han, to the daimyo as long as they did not interfere with the bafaku. The bafaku likely believed that by affording the daimyo the right to retain rule over his han, the daimyo, some of whom may have even been adverse to Tokugawa prior to his reign, would honor the courtesy of the bafaku in allowing them to remain in a position of leadership. But the administration could not rely on mutual courtesy alone and put into place some additional measures to ensure allegiance by the daimyo to the Shogun. First, the daimyo was required to maintain residence in the capital for a period of time every year and in some reports the daimyos family was required to live in the capital as a sort of hostage of the bafaku. The daimyo also had to report to Edo periodically to hear the rules for the buke read aloud. On these pilgrimages to the capital, the daimyo could only bring a small number of his people with him to prevent the amassing of potential anarchists in the capital. The bafaku also retained judicial control for serious offences in the hans and offences involving parties of different hans.
Another way that the bafaku prevented uprisings in the han was to close down the ports of Japan to prevent the importation of weapons or any technology for that matter from other countries and the immigration of others to Japan. This isolation from the rest of the word was not absolute as at least one port remained open in Hokkaido. However, this limited contact with the outside world did accomplish the bafaku’s goals of blocking Christian missionaries who could divide the people on ideological grounds as well as blocking the importation of weapons which could be used in potential uprising. Christianity was strictly outlawed and Buddhism made the official religion. All residents had to register with their local temple to ensure compliance with this rule. Without these outside influences, the trade within Japan of agriculture and artisanal works flourished as did the artisanal trades themselves. Without the strife of the previous generations, the society was focused intently on work and productivity rather than civil war.
For Edo and the surrounding area, the bafaku ruled directly and ran similarly to the hans. Laws for the common folk were posted throughout Edo with an emphasis on pacifism. For example, the first law, said that “all relations from parents and children, elder and younger brothers, husbands and wives downwards must be affectionate toward one another and be compassionate towards their inferiors down to the lowest; and those who have masters over them must be diligent in the performance of their services.” Another law eschewed quarrels and wrangling and if such occurs “there must be no assembling of bystanders.”
The policies afforded a 265 year reign relatively free from civil unrest in Japan but that was not the end of this peaceful period. Japan remains to this day to have extremely low crime rates which may be traced in part to the Tokugawa policies, organization and laws.
[i] Hall, J. C., Japanese Feudal Law, University Publications of America, Inc., Washington, D.C. (1979), 75.
[ii] While bafaku and shogunate are interchangeable, bafaku is more commonly used in the texts to describe the shogun’s administration and so will be used exclusively here. Bafaku is a broad term used to define both the administration of the shogun but is it also used to describe the area ruled directly by the shogun as apposed to one of the feudal colonies.
[iii] Id. at 74.
[iv] After Ieyasu’s takeover, he very quickly turned power over to his son while he became the chief advisor and architect to the bafaku.
[v] Id at 77-78.
[vii] Id. at 79.
[viii] Id. at 78.
[ix] Id. at 100.
[x] Id. at 100-120.
[xi] Id. at 132.
[xiv] Oda, H., Japanese Law, Butterworth & Co. Ltd., London (1992), 22.
[xv] Trade with the Portuguese, Spaniards, Dutch, British and Chinese had developed since the 16th century. Christianity came to Japan at about the same time and had become popular in among some of the territorial lords.
[xvi] Hall, J. C., Japanese Feudal Law, University Publications of America, Inc., Washington, D.C. (1979), 145.
[xix] Id. at 148.
[xxi] Id. at 145-146.
[xxii] Id. at 146.
[xxiii] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 6.
[xxiv] It appears that all daimyo held samurai status.
[xxv] The term han appears to be interchangeable with fief and diamiate in the texts but I will use only han for clarity.
[xxvi] Hall, J. C., Japanese Feudal Law, University Publications of America, Inc., Washington, D.C. (1979), 98.
[xxvii] Id. at 104.
[xxviii] De Becker, J. E., Elements of Japanese Law, University Publications of America, Inc., Washington, D.C. (1979), 4.
[xxix] Other sources do not indicate that the family of the daimyo were kept in Edo but that the daimyo spent every other year in Edo.
[xxx] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 7.
[xxxi] Steenstrup, C., A History of Law in Japan Until 1868, E. J. Brill, Leiden, The Netherlands (1991), 113.
[xxxii] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 6-7.
[xxxiii] Id. at 11.
[xxxiv] Steenstrup, C., A History of Law in Japan Until 1868, E. J. Brill, Leiden, The Netherlands (1991), 123.
[xxxv] Id. at 112.
[xxxvi] Id. at 124.
[xxxvii] Id. at 130-131.
[xxxviii] Id. at 133-134.
[xxxix] Id. at 131.
[xli] Id. at 123.
[xlii] Id. at 122.
[xliii] Id. at 125.
[xliv] Id. at 117.
[xlv] Id at. 118.
[xlviii] Id. at 119.
[xlix] Id. at 125.
[l] Id. at 122.
[li] Id. at 121.
[liii] Id. at 124-125.
[lv] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 32.
[lviii] Steenstrup, C., A History of Law in Japan Until 1868, E. J. Brill, Leiden, The Netherlands (1991), 124.
[lix] Id. at 127.
[lxiv] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 17.
[lxv] Steenstrup, C., A History of Law in Japan Until 1868, E. J. Brill, Leiden, The Netherlands (1991), 115.
[lxvi] Wigmore, J. H., Law and Justice in Tokugawa Japan, University of Tokyo Press, (1969), 19.
[lxix] Durlabhji, S., Japanese Businesses: Cultural Perspectives, State University of New York Press, Albany (1993), 57.
[lxx] Steenstrup, C., A History of Law in Japan Until 1868, E. J. Brill, Leiden, The Netherlands (1991), 111.
[lxxi] Hall, J. C., Japanese Feudal Law, University Publications of America, Inc., Washington, D.C. (1979), 75.
[lxxii] Id. at 100.
[lxxiii] Id. at 101.
[lxxv] Id. at 103.
[lxxvi] Id. at 102.
[lxxvii] Id. at 102-103.