II. THE LAW

The first code—Group responsibility—Punishments

The legal system of Japan was a vigorous supplement to private assassination and revenge. It had its origins partly in the ancient usages of the people, partly in the Chinese codes of the seventh century; law accompanied religion in the migration of culture from China to Japan.²¹ Tenchi Tenno began the formulation of a system of laws which was completed and promulgated under the boy Emperor Mommu in 702. In the feudal epoch this and other codes of the imperial age fell into disuse, and each fief legislated independently; the Samurai recognized no law beyond the will and decrees of his Daimyo”²²

Until 1721 it was the custom of Japan to hold the entire family responsible for the good behavior of each member, and, in most localities, to charge each family in a group of five with responsibility for all. The grown sons of an adult who had been condemned to be crucified or burned were executed with him, and his younger sons, on coming of age, were banished.²³ Ordeal was used in medieval trials, and torture remained popular, in its milder forms, till modern times. The Japanese used the rack on some Christians, in vengeful imitation of the Inquisition; but more often their subtle minds were content to bind a man with ropes into a constrained position that became more agonizing with every minute.²⁴ Whippings for trifling offenses were frequent, and death could be earned by any one of a great variety of crimes. The Emperor Shomu (724-56) abolished capital punishment and made compassion the rule of government; but crime increased after his death, and the Emperor Konin (770-81) not only restored the death penalty, but decreed that thieves should be publicly scourged until they died.²⁵ Capital punishment also took the form of strangling, beheading, crucifixion, quartering, burning, or boiling in oil.²⁶ Iyeyasu put an end to the old custom of pulling a condemned man in two between oxen, or binding him to a public post and inviting each passer-by to take a turn in cutting through him, from shoulder to crotch, with a saw.²⁷Iyeyasu laid it down that the frequent resort to severe punishments proved not the criminality of the people so much as the corruption and incompetence of the officials.²⁸ Yoshimune was disgusted to find that the prisons of his time had no sanitary arrangements, and that among the prisoners were several whose trials, though begun sixteen years back, were still unfinished, so that the accusations against them were forgotten, and the witnesses were dead.²⁹ This most enlightened of the shoguns reformed the prisons, improved and accelerated judicial procedure, abolished family responsibility, and labored sedulously for years to formulate the first unified code of Japanese feudal law (1721).