Japan by the Japanese/Chapter 24

It is but thirty-five years since the government of Japan was in the hands of the Tokugawa Clan, and the country was divided into over 270 small independent States, each under the semi-military rule of a feudal lord holding his authority from the Imperial Court.

The legal system to-day is vastly different from what it was then. The change has been gradual, and the successive stages of development may be traced in the history of the country during the past three decades. In the main, the present enlightened system is derived from Occidental nations, but the power of assimilating Occidental ideas Japan owes to nobody; it is the native genius of her people.

Two thousand five hundred and sixty-two years have passed since the inauguration of Jimmu-Tenno, founder of the Empire of Japan. Throughout that long period of time the nationality of Japan has remained intact, notwithstanding the vicissitudes of government through which she has passed. At times the real governing power has been transferred to the hands of subjects, yet they have always held that power as commissioners of the ruling Sovereign, and from the very foundation of the empire the distinction between Sovereign and subject has been clearly preserved.

In the ancient records is to be found a decree which Ama Terasu Omi Kami (Great Goddess of Heavenly Light), an ancestress of Jimmu-Tenno, addressed to her grandson: ‘This fine rice-producing country is destined to be the kingdom in which our descendants shall reign; you, grandson, fix your station and reign thereover.’ Ama Terasu Omi Kami was named also Hatsu Kumi Shirasu Tenno, or First Reigning Empress. Prince Yamato-take-no-Mikoto (died A.D. 13) said: ‘I am a son of the Emperor Otarashi-hiko-Oshiro-Wake, who resided in the palace of Hishiro at Makimuku, and who governs ​the country of Eight Great Islands.’ On his accession to the throne, the Emperor Mommu (A.D. 697–707) declared: ‘As long as Emperors shall beget sons, We shall, each in succession, govern the Country of Eight Great Islands’; and the same Emperor also said: ‘We shall reduce the realm to peace, and bestow Our loving care upon Our beloved subjects.’

Such, briefly, is the principle by which each Emperor has been guided on his accession to the throne. Latterly the phrase ‘O-Yashima-Shiroshima Sumera-Mikotot’ (the Emperor reigning over and governing the Country of Eight Great Islands) has come to be used as a regular formula in Imperial proclamations. Herein we may trace the source of the text of the Constitution contained in Article I.: ‘The Empire of Japan shall be reigned over and governed by a line of Emperors which shall remain unbroken to all time.’

From the beginning of the Empire the changes which have taken place in the legal system may be divided into three periods. Of these, the first, extending from the date of Jimmu-Tenno’s accession to the throne (B.C. 660) to that of Ko-toku Tenno (A.D. 645), was the era of a stringent legal system, which for the following 1,300 years contained no provisions for dealing with any foreign element. At this time ancestor-worship was religiously carried on, and was one of the Government’s most important concerns. A special pontifical office existed in the central Government, but locally pontifical functions were discharged by general administrative Governors.

Offices of Government, both central and local, were then almost exclusively filled by succeeding members of various clans, according to their genealogical importance and social standing. Even the ranks of the military profession were recruited entirely from the members of two or three clans and from their retainers, while other clans, again, monopolized the chief industries. The head of a clan had absolute and unlimited power over all his followers. The finances of the Imperial Court were derived mainly from the revenues of its territory and from contributions or gifts from clansmen and foreign countries, but later a few trifling taxes were imposed.

About this time agriculture began to be carried on. The private possession of land was common, and this led to the evil of absorption of property by the wealthier and more powerful clans. The provisions of the criminal code dealt chiefly with offences against ecclesiastical rites, and as a rule penalties were light. A ceremony of purification came into vogue whereby the polluted bodies of offenders might be cleansed and then blessed by the deity.

The second period extends from the accession to the throne ​of Ko-toku Tenno to the beginning of the Meiji era—that is, from about A.D. 645 to thirty-five years ago. It again may be subdivided into two parts, the first of which ends in A.D. 1200. In this period the principle of the centralization of administration prevailed, and portions of the Chinese legal system were freely adopted. (China was then in the flourishing age of the Tung Dynasty, and under it her administrative organization and legal system were undoubtedly as highly developed as at any other time in history.)

The principal points on which the new system differed from the old may be briefly indicated. The pontifical office, or Board of Ecclesiastical Rites, was placed on the same footing as the Government (the highest administrative office). Under the Government were established eight departments, somewhat like the Ministerial departments of the present day, but with this difference, that the modern Ministry constitutes the Government itself in all its branches, and forms the Cabinet, with general control of the national affairs. The departments of former days were under the direction and superintendence of Government. The country was divided into prefectures, districts, and villages, each of which had its chief officer to supervise ecclesiastical rites and act as general administrator. The residents of every five houses formed a union which was locally self-governing, but was jointly responsible to the State. Hereditary tenure of office was abolished, and all were eligible for appointment according to ability, regardless of class distinction. The hereditary principle was set aside also in professions and trades, in which all were now free to engage. The military system was revised and conscription introduced. One third of all men above the age of twenty, except public officials and infirm or sickly persons, were liable for military service. Private occupation of land beyond space required for places of residence was prohibited, and a severe blow was thus dealt at the evil of absorption. All the land within the realm was recognised as national property, and everyone, from Prince of the blood to peasant, received his allotted piece of ground, which remained his during his life, and at his death reverted to the State. No sale or bequest of land was permitted, and its owner had power to let it to another for one year only. Certain lands were set aside for the maintenance of various temples and shrines, and strict supervision was exercised over the Buddhist priests. A land tax and a kind of per capita tax were for the first time levied. The national income was augmented by rents derived from letting State property and interest on money loans from revenue. Schools were established in the capital and its neighbourhood, pupils from which were afterwards selected by Government for office by means of ​competitive examination. A system of communication was organized in order to facilitate intercourse between the central Government quarters and district offices. The criminal and civil laws—the latter containing minute regulations concerning the family—were both codified.

It will thus be seen that the legal system of the second period made fundamental alterations in the older system. In some of its essential points, however, the ancient system of Japan remained unchanged. The ranking of the pontifical office on the same level with Government as the highest authority, in especial, is not adopted from the Chinese system, while in laws relating to the family much of the former system was preserved; but it was in the predominance of principles adopted from the Chinese that the State found its way towards progress and enlightenment. Development in the matter of jurisprudence was one of the main features, but this again began to decline in the course of time, not being suited in all respects to the national circumstances of Japan. For one reason, in a country where the prosperous pursuit of agriculture had led to the vigorous practice of individual land tenure, great difficulty was found in applying the principle of nationalization of the land. Again, the power of clans was so great and hereditary succession so widely recognised that the appointment to office of men of capacity was very difficult, and public posts soon came again to be monopolized by the influential classes. The custom of allotting land fell into disuse, and private occupation of large tracts by the more powerful clans and the guardians of temples and shrines again became common. The reformed military system was so ineffectually applied that the Government had only the strength of some powerful clan to rely upon in case of need, and this had the inevitable consequence of increasing the power of the military class. At last the right of civil administration itself fell into the hands of the military class, and thus was prepared the way for the feudal system.

During the last part of the first division of this era the influence of the central Government gradually declined. The stronger members of the military class seized control of the respective local divisions, often waging war one upon the other in order to acquire each other’s territory. Amongst the military classes, the member who was strongest and most capable of preserving peace within the realm took the reins of government, with authority from the ruling Sovereign. Thus commissioned, he would establish a separate central Government under the designation of Bakufu, otherwise the Government of Shogun or Generalissimo; and from that date onward the actual ruler was the Shogun, who has been supreme in all ​State administration with the exception of the pontifical office. The Sovereign Ruler was a personality deemed too sacred and apart for connection with affairs of general administration, which were thus vested in the Shogun, the ruler always retaining the sovereignty in his own hands. The Shogun then allotted districts of country to such retainers as were deemed worthy to hold them, and clansmen who had made allegiance were permitted to remain in possession of their property in a state of vassalage. Such vassals were, however, allowed by the Shogun to exercise practically unbounded powers of administration throughout their territory, but always under the strict supervision of the Bakufu.

Amongst many dynasties of Shoguns, that of the Tokugawa—lasting from A.D. 600 to some thirty-five years ago—was the one which most efficiently established the feudal system. No other Shogunate ever approached this either in duration or in excellence of organization.

The legal system of the Bakufu relied mainly on custom and usage, but its few written laws were of a thoroughly practical nature. Although many of these regulations had their source in Chinese practices, much of the formal written code of the Chinese legal system, predominant in the first half of this period, ceased to exist in the second. Its influence in Japan, however, has until recent days permeated the national legal theories. The fundamental principle underlying the written laws of the Tokugawa Dynasty was that ‘The people should obey the law, but should not know the law.’ Most of the written code was consequently kept secret, and few were acquainted with it beyond those directly concerned in its administration. The most important part of this written code was that which treated of relations between the Imperial Court and the Bakufu or Shogunal Government, and the relations of the Bakufu with the local vassals or daimyo. Another important division of it became celebrated as ‘The Tokugawa Dynasty’s One Hundred Articles,’ of which the penal code of the present day is an almost identical reproduction, and it was on these hundred articles that the feudal lords modelled their own penal codes for use within the boundaries of their respective domains.

As regards its political constitution, the Bakufu, although it held in its hands the real power of administration, was obliged to make representations to the Crown either before or after the act in any urgent case of national importance. It remained the privilege of the Emperor to appoint the Shogun or Generalissimo, to grant degrees of honour, to determine the names of the years (bestowing titles such as ‘Meiji,’ which signifies ‘brilliant tranquillity’), to approve the inauguration ​of new Buddhist temples, and to appoint or depose Buddhist officials. The Bakufu Treasury or Shogunal Court had to contribute a fixed amount, in money and rice, towards the Imperial revenues, and for the maintenance of lords and dignitaries in the service of the Court at Kyoto.

All rights relating to foreign intercourse and military administration, the issue of coin and working of gold, silver or copper mines, and all matters concerning Buddhist or Shinto places of worship—generally all affairs of national importance were in the hands of the Bakufu. The jurisdiction of the capital and all other other places of consequence was also administered by the Bakufu through agents appointed as local Governors. Territory other than the above was, as has been stated, in the possession of retainers of the Tokugawa Clan, or in that of other feudal lords who had sworn fidelity to the dynasty. To these lords, who numbered over 270, was entrusted the internal administration of their domains, as if each were an independent State. The wives and children of such lords were, however, obliged by the Bakufu to reside in Yedo—now Tokyo—so that their presence in the capital might be security for the fidelity of the lords. The Bakufu in addition enforced the attendance of each lord at their Court in Yedo for a fixed period every year. In the event of any lord being guilty of grave default, his territory was forfeited. All territorial lords were under obligation to supply horses and arms in time of war, and funds for military expenditure in time of peace; while they were also liable for the expense of any engineering works on a large scale which the Bakufu might at any time desire to carry out. Finally, there was no restriction to the power enforced by the Bakufu over the feudal lords, subject always to the superior authority of the Tokugawa Clan.

Two important points in the legal system of the Tokugawa dynasty may be mentioned. The first is found in the severe restrictions in all matters of foreign intercourse imposed by the Tokugawa Dynasty from considerations affecting the welfare of the Government. To the same motive was due the prohibition of Christianity in the country.

The second deals with the system of social policy. In order to meet the evil of the absorption of large tracts of territory by a few of the more powerful clans and families, it has been previously shown that, in the former period, a system of allotment of land in equal portions came into force. But in the end this method proved a failure. Under the Tokugawa Dynasty, the people were divided into classes, such as Bushi (warriors), Heimin (common people), and the like. To the Bushi so many measures of rice were allowed, and they were prohibited from engaging in trade or any money-making occupation. On the ​other hand, the Heimin, or common people, were not allowed to enter the military or civil professions, but were expected to engage in commercial pursuits. The sale of landed property was strictly prohibited, lest it should lead to a recurrence of the former evil of absorption. Several trades were set aside as monopolies, and outside competition was not permitted, and a system whereby relatives and neighbours were obliged to support each other came into force. On the whole, it was intended that every person should have a peaceful living secured to him, and that none should try to attain a condition unwarranted by his circumstances. Hence, for nearly 300 years, until the dawn of the era of Meiji, a period of unparalleled tranquillity prevailed.

The third period is distinguished by the introduction of Occidental systems. At the beginning of this period the ancient ideas were still so much in force that the organization of the central Government and the criminal code were nearly identical with those of the second period, when adaptations from the Chinese system were in vogue. Public opinion, however, has come to be taken into consideration with regard to the organization of the Government, and a new legislation has been derived from customs prevailing amongst the Western nations.

The reformation of 1868 was due mainly to the patriotic action of the chiefs of feudal States within the realm, and in the result the new Government has had to rely on these same patriots for the enforcement of all measures which have been undertaken by it. It was in July, 1871, that the feudal lords were deprived of all administrative authority. The whole realm was then reapportioned into districts and prefectures under control of the central Government, in place of the former feudal States and territories, and the foundations of the new Government were thus made secure. The next step was the revision and amelioration of the military system, and of all matters relating to finance, communication, education, banking, and judicature, according to models found in European countries and the United States of America.

No point was left untouched by revision, and all relics of feudalism or class privilege were swept away by the eager adaptation of Western methods.

The Restoration of 1868 was indeed a step of unparalleled importance in the history of our nation. As the reaction from such a great event, there were disturbances here and there throughout the kingdom, and some untoward happenings, but none of any importance compared with the sudden advance which divides the past from the Meiji era. Many obstacles to the change of administrative system have been encountered ​during the short reign of new methods, but nothing daunted His Majesty the Emperor Mutsuhito from pursuing the work of reform in accordance with fixed principles, aided by such distinguished men as Okubo, Kido, and Saigo, who are responsible for the present condition of progress in its first stage.

In June, 1873, the first annual Budget was published, and since 1875 annual accounts have been issued. In April, 1895, the Senate and Court of Cassation were instituted, the systems affecting legislation and judicial administration being meanwhile revised. In July, 1878, Fu or Ken (Provincial) Assemblies and Town or Village Assemblies were established. March, 1880, saw the official installation of a Board of Audit. In July of the same year the Penal Code and Code of Criminal Procedure were promulgated.

In October, 1881, an Imperial decree proclaimed that an Imperial Diet should be held, dating from the twenty-third year of Meiji (1890). In February, 1889, the Constitution of the Empire of Japan, the House Law, and the Law of Finance, were published, and in June, 1890, the Law of Administrative Adjudication—all these laws coming into force from the date on which the Imperial Diet was to be held (November of the following year).

Meantime there were promulgated several important laws relating to the organization of the central Government; the organization of cities, towns, and villages; and the organization of Fu or Ken; along with the Civil Code, the Commercial Code, the Code of Civil Procedure, and the revised Code of Criminal Procedure. The Civil and Commercial Codes, however, were found still to contain inconvenient provisions, so the date of their taking effect was postponed in view of further revision, to be decreed by the Diet at the session of the same year. Subsequently, in order to meet shortcomings generally felt in commercial circles, the more important provisions of the Commercial Code—such as laws relating to companies, bills and notes, and bankruptcy proceedings—were made effective. At the same time the revision of the Civil and Commercial Codes was undertaken by a Committee specially appointed for the purpose in March, 1894, and these two codes in their revised form have already come into force. The Penal Code, the Code of Criminal Procedure, and the Code of Civil Procedure, likewise in turn came to be revised by the same Committee. The first two of these codes have now been completely revised for submission to the Diet. Considerable revision was made not only in laws concerning the jurisdiction of the Judicial Department, but also in those relating to general administration. The administration laws especially required unification in accordance with more enlightened ​principles, since, although they had been modified before this date, they were yet full of variations to suit their sphere of operation, owing to their having previously been entrusted to the efficiency of local Governors.

The legal system of Japan has thus made great progress since the date of the Restoration. At the time of its commencement, in the organization of central Government as in the criminal laws, the influence of the Chinese system was predominant; but the legal methods of Europe have now been taken into consideration in the revision of all systems as required. Amongst all the European legal systems which have been introduced into Japan, our authorities have shown no prejudice in favour of one over the other. In the Judicial Department the jurisprudence of France and Great Britain have hitherto been most freely adopted. The provisions of the Civil Law, with the exception of a few statutory clauses, are based mainly on custom; but, owing to the difficulty of ascertaining local customs in the changed circumstances brought by the Restoration, it has been found necessary in adjudication to take into consideration the legal provisions of France and England. More recently, much of the German system of jurisprudence has been adopted amongst the more popular adaptations from France and England, while in public law the jurisprudence of that country has been pre-eminent in our system since the earliest days of the Restoration.