| Legal Hitory Review vol.43 (1993) | ||
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| Summaries of Articles | ||
Statutes of Riot in the Later Middle Ages
by Kaoru KITANO
Among liveries, maintenances, arbitrations and forcible entries, “riot” is seemingly one but not important factor of the “bastard feudalism”. Because of the relative scarcity of the statutes regulating riots, because of the accepted understanding that they were some social-wide happenings by common people like “Peasants' Revolts” and “Jack Cade's Rebellions”, very few historians have paid their attentions to riots.
Actually, riots were not rare in England in the later middle ages. Riots were normal and not necessarily serious ingredients of the daily life of gentry, especially those who were more interested in their property rights than their participation in political affairs. This is not easy to understand from the surface of one or two statutes “of riot”. However, once they find out the inner connections between the statutes of riot and each set of the statutes of liveries, maintenances, forcible entries, and, indeed, of novel disseisin, and also the connections among themselves, men can easily be persuaded of the real position and meanings of riots in the late medieval society.
In this essay, I have set the main focus upon the inner connections among those seemingly separate and independent statutes. Some attention and labor was put, in course to find out those connections, on the contents of each statute and the development of each set of statutes.
Indemnity System and Inherent Law in Ancient Japan
– Regarding the Property Penalty and House Burning Practice Seen in “Nihon Shoki (ϊ{I)”, “Kojiki (ΓL)” and Historical Documents in China –
by Akira HASEYAMA
This article considers the inheritance and change of Chinese law in ancient Japan, principally on the problem of indemnity system.
First of all, Section 1 covers the considerations on the atonement account by the property dedication as seen in “Nihon Shoki (ϊ{I)”.
Conventionally, such theory had been prevailed that the indemnity system chiefly by the property punishment existed also in Japan. This theory had been based on the legends as a proof that a person who braved a crime of treason against sovereign power was escaped from his death by dedicating to the power the land and people possessed by him. However, as a result of reconsideration, it has been now made dear that these legends were just created all at the stage of “Nihon Shoki (ϊ{I)” compilation as a tale to explain the origin of “Miyake (Τq)” and “Nashiro (Όγ)”.
Therefore, death punishment was enforced to the crime of treason as a rule even before “Ritsuryo (₯ί)” system and the confiscation of property is considered to have been executed additional punishment.
This does not mean naturally that the indemnity system was not existed at all in Japan before “Ritsuryo” system. According to Chinese historical documents such as “Gishi Wajinden (ι°u`lB)”and “Zuisho Wakokuden (δ@`B)”, it is known that the practice similar to the indemnity system was existed in Japan in about 3rd to 6th centuries in connection with the theft crime.
Accordingly, Section 2 covers the considerations on the process that the practice similar to indemnity system in ancient criminal law in Japan was excluded from official punishment of the ancient state and was gradually united to non-indemnity criminal system on the model of Chinese “Ritsu”.
In regional community, when a certain action was taken that damaged to the community, a person concerned was required to dedicate his property as “Harahe (βP)”. This practice is said to be a kind of indemnity system in a wide sense. After “Taikano Kaishin (ε»όV)”, government prohibited such private practice and, at the same time, established unique criminal law different from the criminal law in Chinese sense. This makes us suppose that unique and inherent law was generated in Japan, although Chinese law was inherited. Section 3 adds the considerations by taking example of burning punishment (house burning) from the viewpoint of inheritance and change of the law.
In the ancient criminal law of China, burning punishment was executed generally by burning the man as a retaliatory punishment against the murder of relative when he did it. In Japan, there were many examples of burning the house of criminal as a punishment for the crime of treason against sovereign power.
In ancient criminal law of China, there were also examples of destroying the house of criminal against the crime of treason. But such examples were rare. Besides, this punishment was executed by destruction by all means but did not use fire, Japanese ancient tradition for burning the house not only destroying it is considered to have had incantational character to cut off defilement caused by such crime, as different from that of China.
To sum up, the house burning in Japan has the character of inherent law with the change by conception of crime in Japanese manner, although it has a far origin from Chinese law.
Thus, Japanese ancient criminal law was not specially isolated law, but had been developed in the East Asian law system with the center in China and such inherent law had been newly created in the process of the inheritance and change of Chinese law. This is the conclusion through all the description of this article.
The Position and Method of Legal History
– Can we innovate in legal history of Japan? –
by SAIKAWA Makoto
We could not obtained from the author
the agreement for the reprint of this summary on the web-page, sorry.
On AKUTO actions (banditry) seen from a viewpoint of the orders and the commands of the Kamakura Shogunate and on several questions concerned with the suppression policies enforced on AKUTO offenders (banditti) by the Kamakura Shogunate
by Atsushi SHIMOZAWA
In this essay, first, I try to make a conceptualization of the word AKUTO that was repeatedly used in the orders and the commands of the Kamakura Shogunate. It is presumable, I think, that in the prime of the Kamakura Shogunate, in other words, through the latter three quarters of the thirteenth century, the word AKUTO continued to be used as a term of criminal law. Assumably it implied more or less four kinds of criminal acts; that is to say, was equivalent to four types of crimes, such as YOUCHI (burglary), GOTO (robbery), SANZOKU (brigandage), and KAIZOKU (piracy). I think it nearly correct that there is no doubt about this in the light of the articles (Article 3 and Article 32) of the SHIKIMOKU (alias dictus JOEI-SHIKIMOKU or, rather, GOSEIBAI-SHIKIMOKU), the fundamental statute of the Kamakura Shogunate. Moreover, I must point out a fact of some importance that with the passage of time, especially with the decline of the Kamakura Shogunate in the fourteenth century, as types of criminal acts, the categories of the concept AKUTO enlarged comprehensively, and in consequence the primary usage of the word AKUTO came to reduce its dearness. In the last stage of the Kamakura period, it came to be remarkably difficult to regard the AKUTO acts as those mere criminal, which came under the four types, namely, YOUCHI, GOTO, SANZOKU, and KAIZOKU. (I don't think that it came to be utterly impossible to regard the AKUTO acts as such, though.)
Secondly, depending upon historical materials, I try to inquire into several questions concerned with the suppression policies enforced on the AKUTO offenders by the Kamakura Shogunate. As a result, I think, I manage to make a few facts of some importance nearly clear. The facts are as follows. The first is that, in the Kamakura period, the AKUTO act was considered as a very grave offense that could be ranked with MUHON (rebeldom) or with SETSUGAI (murder), and it was known to the people who belonged to the Kamakura Shogunate and their contemporaries as a crime that deserved DANZAI (punishment), which had to be executed by means of any penalty of the three types, namely, SHIZAI (death Penalty), RUZAI (banishment), and SHORYO-MOSSHU (forfeiture of estate). The second is that the competence and the duty to arrest the AKUTO offenders were mainly imposed upon SHUGO (sheriffs appointed by the Kamakura Shogun) and JITO (bailiffs in manors appointed by the Kamakura Shogun); but actually this scheme of arresting the AKUTO offenders could not obtain the desired results, because the SHUGO and the JITO were apt to neglect to fulfill their duties. (Moreover, they even sheltered the AKUTO offenders on occasion.) The third is that the Kamakura Shogunate tried to cope with AKUTO-HOKI (infestation of banditti) through AKUTO-KEIGO (guard against banditry), in other words, it set up TONOI-YA (sheds for night watch) and KEIGO-YA (sheds for vigilance) allover the country, not to speak of KAGARI-YA (sheds equipped with torch-light) in Kyoto and Kamakura, as a line of the chain of its suppression policies, in order to advance the apprehension of the AKUTO offenders. And the fourth is that the Kamakura Shogunate designed to make the most of FUBUN (rumors) about the AKUTO offenders as the information relating to them with gathering KISHO-MON (written oaths) from GOKENIN (the Kamakura Shogun's vassals). In short, the Kamakura Shogunate devised so much variegated countermeasures against the AKUTO offenders, nevertheless, it could not eradicate them after all. On the other hand, the AKUTO offenders went on increasing in number from day to day.
The “double rule” of the ferry route in the Edo-period
– On the Uchida and the Okoshi ferry routes in the Owari-han feudal domain –
by Yoriko HAYASHI
Most scholars have suggested that the control of the five highways and other routes throughout Japan by the Shogunate invaded the rights of feudal domains. However, each feudal domain also had some control over their part of each route, resulting in a double rule over the routes. This paper proposes to look at the “double rule” over the ferry portions of the routes by comparing a ferry route under Shogunate control with one that was not.
I analyzed the two ferries on the Kiso-river in the Owari-domain. One of these was the Uchida-ferry on the Inagi-route, which was not under Shogunate control. The other, the Okoshi-ferry on the Mino-route, was under Shogunate control and was often used by people in the privileged class, including feudal lords traveling to and from the capital, under the alternate attendance system. Because of the high rank of the travelers along the Okoshi-ferry route, and the heavier traffic there in general, the Owari domain provided more ferryboats, allowances for the ferrymen, etc. for the Okoshi-ferry than the Uchida-ferry. Moreover, travelers of the highest rank, called “Gochiso-daimyo” were allowed to cross for free. On the other hand, the only services that the Shogunate provided for the Owari ferry routes, were patrolling the routes, making the Owari domain install “Kosatsu” bulletin boards, and giving advance notice of the movement of high-ranking persons. A later Shogunate, however, provided some exceptional financial assistance to the Okoshi-ferry route, but the Owari domain embezzled part of the funds.
To sum, the Shogunate established an indirect, rough control of the important ferry-routes in the domains, while each domain kept direct supervision over them, resulting in a kind of “double rule” over some routes.
The Feature of Subjects in the Kē-Jŭ (Θ§) System of the Ming Period
– concerning the introduction of a judicial decision (»κ) –
by Masahiro Wada
The feature of the subject in Kē-Jŭ system of the Ming period is that judicial decisions were adopted instead of the poetry. From the first, Zhū Yuán Zhāng wanted to exclude such a false sentence as has danger that fact would be hidden, and he demanded sincere learning. That judicial decision was adopted instead of the poetry by Zhū Yuán Zhāng was also because he wished that a government official should have a deep understanding for the Confucian morals and the administrative ability.
Judicial decision of the Ming period can be descended from Pàn (») of the Táng Period, or from Duàn Àn (fΔ) of the Xīn Kē Míng Fă Kē that was established by Wáng Ān Shí, who claimed sincere learning in 1069 (Xī Níng 2 Nián). However, Dēng Kē Lú of Xiāng Shì₯Huì Shì in the Ming period does not show us an example answer on judicial decision. Accordingly, its contents seem to have derived from an annotated edition of Lú Lì which was published for the use of any government official, clerk, students preparing for an examination of Kē-Jŭ in the late Ming period.
Judicial decision was adopted in the Xiāng Shì of Ming period as one of the Kē-Jŭ system, and the most frequently used clause was set at Jiā Jing (Γυ) – Wàn Lì (δέο) era of the late Ming period, Lĭ Lù (βX₯) “Jìn Zhĭ Yíng Sòng (Φ~})”. When we study this clause in the annotated edition of Lù Lì (₯α), we can find that «Zhāo Nĭ (΅[)» and «Pàn Yŭ (»κ)» are very important. The first step of the «Zhāo Nĭ»is an acknowledgment of suspicion toward Zhào Jiă that welcomed and sent off their superiors as well as Qián Yĭ which accepted welcome and send-off of Zhào Jiă. The second step is to make the original bill of culpability ([θ=f₯R). The third step is to make the original bill of punishment (c)which imposes Penalty of Zhàng (ρ) ninety to the principal and an accessory.
In all cases, the examples of the «Pàn Yŭ» regarding “Jìn Zhă Yíng Sòng”, are composed of from one hundred to one hundred forty two letters. When we analyze each phrase in judicial decision, we can easily find that, in all cases, it shows an antithesis of eight crotches. In short, Pàn Yŭ = “Jìn Zhĭ Yíng Sòng” refers to the historical cases and admonishes the government official that observed or deviated the rules on the welcome and send-off as a matter of courtesy at administration of justice. It also, regarding the application of a law, requires to make up a literary composition full of flowery rhetoric which consists of eight crotches on wording the acknowledgment of suspicion as well as the judgment of a punishment.
Set questions of judicial decision are frequently adopted in the late Ming period. Such a feature seems to be relevant to the conflicts of the Jŭ Hé (§N)₯Kăo Chá (l@) of Fŭ₯Àn (₯Β) for the local government official that have been actualized in Jiā Jing – Wàn Lì era.