Chapter 16

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 title of Empress, that distinction having been hitherto strictly confined to spouses chosen from a Kwobetsu family, whereas the Fujiwara belonged to the Shimbetsu. But this union proved the first step towards a practice which soon became habitual and which produced a marked effect on the history of Japan, 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 Tsushima 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 Shiga 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 (shiki), the whole forming a very elaborate assemblage of laws.

The nature and scope of the code will be sufficiently understood from the titles of its various sections: (1) Official Titles; (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 Gods; (7) Buddhist Priests; (8) the Family; (9) the Land; (10) Taxation; (11) Learning; (12) Official Ranks and Titles; (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 (shiki), 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-shiki). It will be observed that just as this remarkable body of enactments owed its inception in Japan 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 Japan."

It may be broadly stated that the Daika reformation, which formed the basis of this legislation, was a transition from the Japanese 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 Japanese customs and traditions. Each of the revisions recorded above must be assumed 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 entitled to fixed exemptions, and that not noble birth but intellectual capacity and attainments constituted a qualification for office. Nevertheless Japanese 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" (Keishi-ryo), which formed the thirteenth section of the code, was a special embodiment of Japanese social institutions, 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 nobles still retained a large part of their old power, and the senmin (slave) class 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 Titles, 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 nobles, 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) lése majesté; (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 (Shinto). This stood at the head of all, in recognition of the divine origin of the Imperial family. A Japanese 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 Japan 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 worshipped 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 worshipped in the Jingi-kwan were Taka-mi-musubi, Kammi-musubi, Tamatsume-musubi, Iku-musubi, Taru-musubi, Omiya no me, Miketsu, and Koto-shiro-nushi.

Thus, though the models for the Daiho system were taken from China, they were adapted to Japanese customs and traditions, as is proved by the premier place given to the Jingi-kwan. Worship and religious ceremonial have always taken precedence of secular business in the Court of Japan. Not only at the central seat of government did the year commence with worship, but in the provinces, also, the first thing recorded by a newly appointed governor was his visit to the Shinto 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 Japan.

*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 Shikibu-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 noblemen, and administered affairs relating to priests, nuns, and members of the Bambetsu,* that is to say, men of foreign nationality residing in Japan.

*The reader is already familiar with the terms "Kwobetsu" and "Shimbetsu." All aliens were classed 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 Censorship, This office had the duty of correcting civil customs and punishing 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 kebiishi, or executive police, to which the functions of the Danjo-dai subsequently passed, 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.

LOCAL ADMINISTRATIVE MACHINERY

For administrative purposes the capital was divided into two sections, the Eastern and the Western, which were controlled by a Left Metropolitan Office and a Right Metropolitan Office, respectively. In Naniwa (Osaka) also, which ranked as a city of special importance, there was an executive office called the Settsu-shoku--Settsu being the name of the province in which the town stood--and in Chikuzen province there was the Dazai-fu (Great Administrative Office), which had charge of foreign relations in addition to being the seat of the governor-generalship of the whole island of Kyushu. In spite of its importance as an administrative post, the Dazai-fu, owing to its distance from the capital, came to be regarded as a place of exile for high officials who had fallen out of Imperial favour.

The empire was divided into provinces (kuni) of four classes--great, superior, medium, and inferior,--and each province was subdivided into districts (kori) of five classes--great, superior, medium, inferior, and small. The term "province" had existed from remote antiquity, but it represented at the outset a comparatively small area, for in the time of the Emperor Keitai (A.D. 507-531), there were 144 kuni. This number was largely reduced in the sequel of surveys and re-adjustments of boundaries during the Daika era (645-650), and after the Daiho reforms (701-704) it stood at fifty-eight, but subsequently, at an uncertain date, it grew to sixty-six and remained permanently thus. The kori (district) of the Daika and Daiho reforms had originally been called agata (literally "arable land"), and had been subdivided into inaki (granary) and mura (village). A miyatsuko had administered the affairs of the kuni, holding the office by hereditary right, and the agata of which there were about 590, a frequently changing total as well as the inaki and the mura had been under officials called nushi. But according to the Daika and Daiho systems, each kuni was placed under a governor (kokushi), chosen on account of competence and appointed for a term of four years; each district (kori) was administered by a cho (chief).

MILITARY INSTITUTIONS

In the capital there were three bodies of guards; namely, the emon-fu (gate guards); the sa-eji-fu and the u-eji-fu (Left and Right watches). There was also the sa-ma-ryo and the u-ma-ryo (cavalry of the Left and of the Right), and the sa-hyogo-ryo and the u-hyogo-ryo (Left and Right Departments of Supply). These divisions into "left" and "right," and the precedence given to the left, were derived from China, but it has to be observed in Japan's case that the metropolis itself was similarly divided into left and right quarters. Outside the capital each province had an army corps (gundan), and one-third of all the able-bodied men (seitei), from the age of twenty to that of sixty, were required to serve with the colours of an army corps for a fixed period each year. From these provincial troops drafts were taken every year for a twelve-month's duty as palace guards (eji) in the metropolis, and others were detached for three-years' service as frontier guards (saki-mori) in the provinces lying along the western sea board.

The army corps differed numerically according to the extent of the province where they had their headquarters, but for each thousand men there were one colonel (taiki) and two lieutenant-colonels (shoki); for every five hundred men, one major (gunki); for every two hundred, one captain (koi); for every one hundred, a lieutenant (ryosui), and for every fifty, a sergeant-major (taisei). As for the privates, they were organized in groups of five (go); ten (kwa), and fifty (tai). Those who could draw a bow and manage a horse were enrolled in the cavalry, the rest being infantry. From each tai two specially robust men were selected as archers, and for each kwa there were six pack-horses. The equipment of a soldier on campaign included a large sword (tachi) and a small sword (katana or sashi-zoe) together with a quiver (yanagui or ebira); but in time of peace these were kept in store, the daily exercises being confined to the use of the spear, the catapult (ishi-yumi) and the bow, and to the practice of horsemanship. When several army corps were massed to the number of ten thousand or more, their staff consisted of a general (shogun), two lieutenant-generals (fuku-shogun), two army-inspectors (gunkan), four secretaries (rokuji), and four sergeants (gunso). If more than one such force took the field, the whole was commanded by a general-in-chief.

APPOINTMENT AND PROMOTION

The law provided that appointment to office and promotion should depend, not upon rank, but upon knowledge and capacity. Youths who had graduated at the university were divided into three categories: namely, those of eminent talent (shusai); those having extensive knowledge of the Chinese classics (meikei), and those advanced in knowledge (shinshi). Official vacancies were filled from these three classes in the order here set down, and promotion subsequently depended on proficiency. But though thus apparently independent of inherited rank, the law was not so liberal in reality. For admission to the portals of the university was barred to all except nobles or the sons and grandsons of literati. Scions of noble families down to the fifth rank had the right of entry, and scions of nobles of the sixth, seventh, and eighth ranks were admitted by nomination.

OFFICIAL EMOLUMENT

Remuneration to officials took the form of revenue derived from lands and houses, but this subject can be treated more intelligently when we come to speak of the land.

THE PEOPLE

According to the Daiho laws one family constituted a household. But the number of a family was not limited: it included brothers and their wives and children, as well as male and female servants, so that it might comprise as many as one hundred persons. The eldest legitimate son was the head of the household, and its representative in the eyes of the law. A very minute census was kept. Children up to three years of age were classed as "yellow" (kwo); those between three and sixteen, as "little" (sho); those members of the household between sixteen and twenty, as "middling" (chu); those between twenty and sixty, as "able-bodied" (tei), and those above sixty as "old" or "invalids," so as to secure their exemption from forced labour (kayaku or buyaku). The census was revised every six years, two copies of the revised document being sent to the privy council (Daijo-kwan) and one kept in the district concerned. It was customary, however, to preserve permanently the census of every thirtieth year* for purposes of record, and moreover the census taken in the ninth year of Tenchi's reign (670)** was also kept as a reference for personal names. To facilitate the preservation of good order and morality, each group of five households was formed into an "association of five" (goho or gonin-gumi) with a recognized head (hocho); and fifty households constituted a village (sato or mura), which was the smallest administrative unit. The village had a mayor (richo), whose functions were to keep a record of the number of persons in each household; to encourage diligence in agriculture and sericulture; to reprove, and, if necessary, to report all evil conduct, and to stimulate the discharge of public service. Thus the district chief (guncho or gunryo) had practically little to do beyond superintending the richo.

*This was called gohi-seki; i.e., comparative record for a period of five times six years.

**It was designated the Kogoanen-seki, from the cyclical name of the year.

THE LAND

The land laws of the Daiho era, like those of the Daika, were based on the hypothesis that all land throughout the country was the property of the Crown, and that upon the latter devolved the responsibility of equitable distribution among the people. Rice being the chief staple of diet and also the standard of exchange, rice-lands--that is to say, irrigated fields--were regarded as most important. The law--already referred to in connexion with the Daika era but here cited again for the sake of clearness--enacted that all persons, on attaining the age of five, became entitled to two tan of such land, females receiving two-thirds of that amount. Land thus allotted was called kubun-den, or "sustenance land" (literally, "mouth-share land"). The tan was taken for unit, because it represented 360 bu (or ho), and as the rice produced on one bu constituted one day's ration for an adult male, a tan yielded enough for one year (the year being 360 days).*

*The bu in early times represented 5 shaku square, or 25 square shaku (1 seki = 1 foot very nearly); but as the shaku (10 sun) then measured 2 sun (1 sun = 1.2 inch) more than the shaku of later ages, the modern bu (or tsubo) is a square of 6 shaku side, or 36 square shaku, though in actual dimensions the ancient and the modern are equal.

The theory of distribution was that the produce of one tan served for food, while with the produce of the second tan the cost of clothes and so forth was defrayed. The Daika and Daiho legislators alike laid down the principle that rice-fields thus allotted should be held for a period of six years only, after which they were to revert to the Crown for redistribution, and various detailed regulations were compiled to meet contingencies that might arise in carrying out the system. But, of course, it proved quite unpracticable, and though that lesson obviously remained unlearned during the cycle that separated the Daika and the Daiho periods, there is good reason to think that these particular provisions of the land law (Den-ryo) soon became a dead letter.

A different method was pursued, however, in the case of uplands (as distinguished from wet fields). These--called onchi*--were parcelled out among the families residing in a district, without distinction of age or sex, and were held in perpetuity, never reverting to the Crown unless a family became extinct. Such land might be bought or sold--except to a Buddhist temple--but its tenure was conditional upon planting from one hundred to three hundred mulberry trees (for purposes of sericulture) and from forty to one hundred lacquer trees, according to the grade of the tenant family. Ownership of building-land (takuchi) was equally in perpetuity, though its transfer required official approval, but dwellings or warehouses--which in Japan have always been regarded as distinct from the land on which they stand--might be disposed of at pleasure. It is not to be inferred from the above that all the land throughout the Empire was divided among the people. Considerable tracts were reserved for special purposes. Thus, in five home provinces (Go-Kinai) two tracts of seventy-five acres each were kept for the Court in Yamato and Settsu, and two tracts of thirty acres each in Kawachi and Yamashiro, such land being known as kwanden (official fields), and being under the direct control of the Imperial Household Department.

*Called also yenchi--These uplands were regarded as of little value compared with rice-fields.

There were also three other kinds of special estates, namely, iden, or lands granted to mark official ranks; shokubunden, or lands given as salary to office-holders; and koden, or lands bestowed in recognition of merit. As to the iden, persons of the four Imperial ranks received from one hundred to two hundred acres, and persons belonging to any of the five official grades--in each of which there were two classes--were given from twenty to two hundred, females receiving two-thirds of a male's allotment. Coming to salary lands, we find a distinction between officials serving in the capital (zaikyo) and those serving in the provinces (zaige). Among the former, the principal were the prime minister (one hundred acres), the ministers of the Left and Right (seventy-five acres each) and the great councillor (fifty acres). As for provincial officials, the highest, namely, the governor of Kyushu (who had his seat at the Dazai-fu), received twenty-five acres, and the lowest, one and a half acres. Governors of provinces--which were divided into four classes (great, superior, medium, and inferior)--received from four acres to six and a half acres; an official (dai-hanji), corresponding to a chief-justice, had five acres; a puisne justice (sho-hanji), four acres; an officer in command of an army corps, four acres, and a literary professor (hakushi), four acres. Grants of land as salaries for official duties were made even to post-towns for the purpose of defraying the expense of coolies and horses for official use. Finally, there were koden, or lands bestowed in recognition of distinguished public services. Of such services four grades were differentiated: namely, "great merit" (taiko), for which the grant was made in perpetuity; "superior merit" (joko), which was rewarded with land held for three generations; "medium merit" (chuko), in which case the land-title had validity to the second generation only, and "inferior merit" (geko), where the land did not descend beyond a son or a daughter. It is worthy of note that in determining the order of eligibility for grants of sustenance land (kubunden), preference was given to the poor above the rich, and that the officials in a province were allowed to cultivate unoccupied land for their own profit.

TAXATION

There were three kinds of imposts; namely, tax (so), forced service (yo or kayaku) and tribute (cho). The tax was three per cent, of the gross produce of the land--namely, three sheaves of rice out of every hundred in the case of a male, and two out of sixty-six in the case of a female. The tribute was much more important, for it meant that every able-bodied male had to pay a fixed quantity of silk-fabric, pongee, raw-silk, raw-cotton, indigo (675 grains troy), rouge (the same quantity), copper (two and a quarter lbs.), and, if in an Imperial domain, an additional piece of cotton cloth, thirteen feet long. Finally, the forced service meant thirty days' labour annually for each able-bodied male and fifteen days for a minor. Sometimes this compulsory service might be commuted at the rate of two and a half feet of cotton cloth for each day's work. Exemption from forced labour was granted to persons of and above the grade of official rank and to their families through three generations; to persons of and above the fifth grade and to their families for two generations; to men of the Imperial blood; to the sick, the infirm, the deformed, females, and slaves. Forced labourers were allowed to rest from noon to 4 P.M. in July and August. They were not required to work at night. If they fell sick so as to be unable to labour out of doors, they were allowed only half rations. If they were taken ill on their way to their place of work, they were left to the care of the local authorities and fed at public charge. If they died, a coffin was furnished out of the public funds, and the corpse, unless claimed, was cremated, the ashes being buried by the wayside and a mark set up. Precise rules as to inheritance were laid down. A mother and a step-mother ranked equally with the eldest son for that purpose, each receiving two parts; younger sons received one part, and concubines and female children received one-half of a part. There were also strict rules as to the measure of relief from taxation granted in the event of crop-failure.

IMPORTANCE OF DAIHO LAWS

What has been set down above constitutes only a petty fraction of the Daiho legislation, but it will suffice to furnish an idea of Japanese civilization in the eighth century of the Christian era a civilization which shared with that of China the credit of being the most advanced in the world at that time.

ENGRAVING: HATSUNE-NO-TANA (A Gold-lacquered Stand or Cabinet)

ENGRAVING: STATUES OF SHAKA AND TWO BOSATSUS IN THE KONDO OF THE HORYU-JI