Transactions of the Asiatic Society of Japan/Series 1/Volume 3/Part 2/The Legacy of Iyeyas
THE LEGACY OF IYEYAS.
BY
W. E. GRIGSBY, Esq., B.A.
Of Balliol College, Oxford, and of the Inner Temple.
Professor of Law in the Imperial University of Yedo.
Read before the Asiatic Society of Japan,
at Yedo, on 30th June, 1875.
———o———
Iyeyas, deified under the title of Gongen Sama, the founder of the Tokugawa dynasty, left, after a busy life spent first in attaining power and then in consolidating it, the treatise which forms the subject of this essay.[1] The translation used by me is that of Mr. Lowder, published at the beginning of last year. It has seemed to me that a few notes on it, with illustrations from the laws and customs of other nations, might be of some service in determining the place of Japan with respect to Comparative Law. The Legacy of Iyeyas is the most original monument which Japan has produced in the way of Legislation. Unlike the other Codes before the rise, and after the fall, of the Shogunate, it is purely native in its character, with scarcely any mixture of foreign elements. It contains the leading principles of the system which ruled Japan till a few years since, and it has given to the Japanese institutions, in spite of the debt they owe to China, a stamp peculiarly their own.
The subject seems to divide itself naturally into three parts:—The first is, the condition of society which is represented to us in these pages; the second, its nature and character considered as a code with illustrations from other systems of law; the third, its nature as a manual of suggestions bequeathed by Iyeyas to his successors. 1.—We shall first enquire into the state of society depicted by the Legacy of Iyeyas.[2] The following remarks are only a commentary and paraphrase on chapters 42 to 50 in this book. The basis of Japanese life then, as now, was the family. The Japanese family was a corporation. the most characteristic mark of which was its perpetuity. The Paterfamilias, head of the family, had a power similar, in nearly all respects, to the Paterfamilias at Rome. Like him, the Jtpanese Father had complete power over the persons and property of his children. He could do as he pleased with both, fettered only by that custom which is the great hindrance to despotism in all early communities. But if his rights were great, his liabilities were great also; he was responsible for all the ill-doings of any of his family. But the Japanese family was not what we understand by the word. It was often not natural but artificial. That is to say; persons whom we should exclude from the family were admitted into it; and those who would find a place in it were sometimes excluded from it. In other words, adoption on the one band, and emancipation or the sending away of a son from the family on the other, were in constant practice. Adoption in Japan, differed from that in Rome. In Rome adoption was resorted to for the purpose merely of enlarging the family: in Japan it was solely employed to perpetuate the family. A man with no male heir was allowed to adopt a child from another family who filled there exactly the same position as the natural child would have done. In early times it was the rule that an adopted son must be of the same name as the adopting parent. If the adopting parent had a daughter, the adopted son married her, there being in this respect a difference from the practice in Rome, where the natural tie of brother and sister was held to be formed and marriage therefore was illegal. In both Rome and Japan, adoption followed the course of nature. Only an adult was allowed to adopt, but in Japan if the head of the family were himself an infant he could adopt. This practice was so much resorted to in Japan for two reasons. The earliest and most important was a religions one; adoption prevented the extinguishment of the ancestral sacrifices (sacra gentilicia) and the consequent disgrace which would have fallen on the family. The second reason will be considered when we speak of feudalism. The second method which rendered the family artificial was the practice of Kiuri or Kando, the sending away a son from the family, a custom analogous to emancipation in Rome, with this difference that in Rome emancipation seems to have been bestowed on a favourite son to release him from the bondage of the paternal power, while in Japan a son was only sent away if be were of an irredeemably bad character.
We next come to marriage. Marriage in Japan was not a contract between the parties or a religious institution, but a handing over of the bride to the family of the husband by her own family. Marriage was allowed, or rather enjoined, in the case of a man at the age of 16, of a woman at 13. A wife passed completely under the control of her husband, both as to her person and property, subject to reference to a council of family relations. So far we have considered the family in its internal aspect. But each family was connected with other families, as in early Rome and Greece, and thus about 50 great clans were formed, of which the four principal were the Gen, To, Pei and Kitsu. All the families of these clans were descended from a common ancestor or claimed to be so. There were certain sacrifices peculiar to each of the families. Certain dignities also were confined to certain families: thus the Shogunate was the properly of the “Gen” family, and we find that the Rulers of the Hojo family and Nobunaga never assumed the title, though they wielded the power of Shogun, because they did not belong to the “Gen” clan. In the same way the office of Prime Minister was confined to the “To” or Fujiwara family. Up to this point, we find in Japan a condition of society analagous to that formerly existing in Italy and Greece from about 1,000 B. C. to the year 500 of the Christian Era. In both we have family as the unit of civilization. But that which is peculiar to Japan, and that which as such makes the study of Japanese institutions interesting to the student of comparative Law is that, with this primitive form of society remaining unchanged, we find a system which did not arise in Europe till about the 11th century A.D., the system of feudalism. Into the causes which gave rise to feudalism in Japan it is not the purpose of this essay to enquire. Suffice it to remind you, that here feudalism, or the holding of land on condition of military service, received perhaps its most elaborate developement, as it was affected by those causes which modified it in Western Europe—the Church and the Empire. The following seems to have been the condition of society in this respect at the time of Iyeyas. At the head the Shogun. Below him about 360 Daimios, each with a territory of greater or less extent which he farmed out to his samurai or vassals in return for military service: land so held was called koku. In the greater daimiates these vassals underlet their lands on the same conditions; in other words sub-feudation was common. This military service was incumbent on every one who held lands; and so far was this theory carried that a vassal who was not able to perform the service by reason of age or sickness, abdicated in favour of his son. Since lands were only held on condition of military service, if a vassal died and left no male children, the lands escheated to the lord. This naturally extended the practice of adoption, and thus in time it came to be considered that to prevent forfeiture of estate was the only reason for adoption, although doubtless the religious one was always the deepest: even if a man died without leaving any children, natural or adopted, by a legal fiction the property was retained, since his death was concealed till permission was given by the lord for him to adopt a son; and only after this permission was given, his death was announced. Not only escheat, but forfeiture, as in England, was incurred, if the vassal proved faithless to his lord. Each Daimio lived with his retainers in a walled town; while the other three classes of society, the agriculturists, the artizans, and the merchants, lived outside—the farmer in different parts of the territory, the latter in the Joka, or space immediately below the wall. This is illustrated by the relative position of the patricians and plebians in the early Latin communities, in which the patricians lived on the arx or hill, and the plebeians on the low ground beneath it. For instance: the commons in Rome lived in the Suburra at the foot of the Capitoline Hill.
Again we find in Western Europe the exact contrast to this arrangement; for in it the barons and their retainers lived in the country, and the commons in the walled towns, protected by which, commercial interests grew and expanded. Each daimiate was isolated and provided all things necessary for it from within itself, thus realising the idea of independence which the Greek states strove in vain to accomplish. Thus the other three classes were necessarily found in each daimiate, and the members of these clans remained as a rule unchanged. Still there was never a caste system in Japan; there was no religious barrier between each class. The condition of things was the same as in ancient Egypt and was produced by the same instinctive tendency which we find always present in antiquity, to abide in the old ways as much as possible.
2.—Such is the condition of society in Japan as pictured to us in the “Legacy of Iyeyas.” Family life formed the basis upon which, (as it seems to us incongruously) a superstructure of feudalism had been reared. A code of laws for such a community must necessarily omit much that we at the present time consider to be essential, and lay much stress on what we consider unimportant. But, on the other hand, it bears a striking resemblance to all the early codes, to the laws of Solon and Lycurgus, the 12 Tables; to the Mosaic, and the early Teutonic codes.
From an analysis of the “Legacy of Iyeyas” the following results have been obtained. The work consists of 100 chapters in no logical sequence. Sixteen chapters consist of moral maxims and reflections 55 are connected with polities and administrations 22 refer to legal matters and in 7 Iyeyas relates episodes in his own personal history. The Legacy of Iyeyas then resembles other early codes in the following particulars. First, is makes no sharp distinction between law and morality, between the duties of the citizen and the virtue of the man. The man who obeys the law is virtuous, he who disobeys it is vicious and low. It is the province of the Legislator to inculcate virtue; accordingly sixteen chapters of this short lecture are moral maxims quoted apparently from the sages Confucius and Mencius. Secondly, what is termed Substantive Law is nearly omitted. Since human life within the daimiate was regulated by custom, not by agreement, there was hardly any intercourse between different daimiates, since the only property of any importance was land, and no will was allowed; all that we chiefly understand by law, all that embraces the main bulk of modern law,—the law of contracts, the law of personal property, of will, commercial and maritime law, find no place in this code. In this respect too, there is an exact parallel between this and other early codes. On the other hand great stress is laid on criminal law, including offences and the different punishments allotted to each, and the law relating to landed property; on the law relating to the status of persons and of classes, to etiquette and ceremonial, to tables of rank and precedence, to political administration and government. In these points, especially the latter, minute details are entered into, and this with a particularity which is striking when compared with the poverty of the code in respect to those matters which seem to us most important in a system of law. A third point of similarity between this and the other ancient codes is, the provision it makes for the exercise of private vengeance, of personal satisfaction for injuries done. As the power of government is comparatively weak, the individual does not, (as he does in more advanced societies) give up his right to take satisfaction in his own hands. Thus we find in this code that he whose father or lord has suffered from violence may revenge himself in a prescribed period, on giving suitable notice. We have a parallel to this in the elaborate provisions of the Mosaic code with respect to the avenging of blood. Another point of similarity is the stress this code lays on class distinctions. Society in early stages is unequal, and early codes by reducing these distinctions to writing render them more sharp and distinct. Such expressions as “A girded sword is the living soul of a samurai”—“The samurai are the masters of the four classes” must have increased the self-importance of those who read them, and added much to the already overweening pride of the military class in Japan. But there is one great difference between this and all other early codes, viz, its secrecy. It was in express terms forbidden to be promulgated; the perusal of it was only allowed to the “Gorejiu” or chief concillors of state. This is so unlike all our ideas of Law that it is difficult for us even to imagine a state of things in which people are judged by laws of which they are not only ignorant, but purposely kept in ignorance. The question at once arises how can people obey laws if they do not know their nature? But we have a parallel in the history of the Aryan race previous to the foundation of the codes so often mentioned. We find in Greece and Rome at the beginning of their history that the knowledge of the laws and their administration was confined to the aristocratic class, and that the first struggle of the commons was to force the knowledge from them, a struggle which ended in these codes being reduced to writing and promulgated. Had writing been unknown in Japan at this epoch, the parallel would have been complete; the only difference is, that in the one case the laws were unknown, because not written; in Japan, though written, they were yet to be unknown. The explanation of the matter is to be found in the fact that early communities custom has absolute away. The magistrates are, as Iyeyas says, reflectors of the mode of Government, they do in reality what English judges do in theory—interpret, not make, the law. Any additions made to the old customs, (as in the case before us) were to reach the multitude, as it were, by filtering down to them through the magistrates, who alone would be conscious that they were new: to the multitude they would only be slight modifications of the customs they had always observed. And indeed regarded as a code of laws, this seems to have been the character of the work before us. Iyeyas only claims to be a transmitter, not a framer, of the law; his work is rather a compilation, than a creation, a selection from old, not a series of new laws.
3.—If then in so far as it is a code of laws the originality of the Legacy of Iyeyas does not appear, the question then remains in what respects the genius of Iyeyas has manifested itself? For there can be no doubt that the Shogunate after his time was a very different thing from that it was before it. The Legacy of Iyeyas is original in so far as it contains maxims of government in accordance with which the successors of Iyeyas were to rule. It is this aspect which modern historians have thrown into most prominence,—a circumstance which renders a detailed account of his policy unnecessary here. I shall only mention what I consider the leading principles. The position of the Shogun to the Mikado was to be one of reverential homage. The Shoguns were in no way to interfere with the Mikado’s theoretical supremacy, but to strengthen it in every way. The same respect was to be paid to the relatives of the Mikado and to the old court aristocracy. This was contrary to the policy of the former Shoguns, especially of the Ashikaga family, who seem to have treated the Mikado with rudeness or contempt. Secondly, as toward their superiors, so toward their inferiors were the Shoguns to behave with courtesy and consideration. All insult and tyranny was to be avoided, the weight of power was not to press harshly. This maxim is kindred to that one which is the keynote of the Polities of Aristotle, and the neglect of this, as shown in insolence to inferiors, was the rock on which the governments in nearly all ancient communities struck. This caution is perhaps the best proof of the consummate knowledge Iyeyas had of human nature and of his greatness as a master of statecraft. Another recommendation of Iyeyas was that the place of government of the lesser Daimios should be frequently changed. The motive alleged for this was for the prevention of misgovernment; but the real reason undoubtedly was that they might not acquire local influence, and so endanger the power of the Shoguns. It was similar in its purpose, though not in the means employed, to the policy adopted by William the Conqueror in portioning out the territories of his barons among several counties. In England, this plan was completely successful; in Japan it failed, because the Shoguns never dared to enforce this measure in the case of the greater daimios, who were the only ones to be dreaded. The best feature of the policy of the Shogunate was torbe the endeavour to maintain peace in the Empire as far as possible. “To assist the people, says Iyeyas,” is to give peace to the Empire.” Japan harrassed for centuries by intestine feuds, was finally to be at rest under the strong government of the Tokugawa Shoguns; just as to the Roman world, wearied out with constant strife, the establishment of the Empire under Augustus gave for centuries peace. These are the leading principles handed down by Iyeyas to his successors. Feudalism and the Shogunate have fallen together; and the policy of Iyeyas, but a few years since of such importance to the politician, is now of interest to the student of history only.
A number of Japanese gentlemen were present and appeared to take much interest in the proceedings, and several ladies raced gthe meeting with their attendance.
The Chairman stated that the first business was to read the minutes of the last meeting; but the Corresponding Secretary explained that the minute book was in the custody of the Recording Secretary who resides in Yokohama and that the reading of the minutes must be postponed till the next meeting it Yokohama. Mr. Dallas was then requested to act as Recording Secretary for the meeting.
Mr. W. G. Aston then read a paper “On an ancient Japanese Classic,” at the conclusion of which the Chairman remarked that the Society was much indebted to Mr. Aston for his paper, as being quite different to anything that had hitherto been laid before this Society. The light thus thrown on the manners and habits of Japanese nearly a thousand years ago was most valuable; but one point that had particularly struck his attention was the touching manner in which the writer of the diary referred to the loss of his daughter, while the dry humour running through so many of his comments shows that he was not a morose nor a melancholy man, but one who could turn even annoyances into pleasantry.
In reply to Mrs. Chaplin Ayrton Mr. Aston explained that the Go-hei are the strips of white paper to be seen in all the Shintô temples, and that they are usually taken to be an emblem of purity; but professed himself unable to satisfy Mr. Ayrton as to the meaning of the twist in the strips of paper.
Mr. Syle inquired whether there was any satisfactory evidence that the Go-hei were symbolical in the way mentioned, and also as representing, in their form, the appearance of lightning;—yet further, if there was any play on the word kami, as used to mean Deity. If so, then the Japanese had attained to a felicity of symbolism very remarkable, by exressing Puruty, Fire and Deity, all combined in a simple form.
Mr. Aston remarked that as the Go-hei were originally made of cloth not paper, he thought it improbable that any emblematic meaning was to be found in the fact that the word for paper, kami is also the word for deity.
Sir Harry Parkes pointed out the value of Mr. Aston’s paper as introducing us to a very important unexplored branch of study—the ancient literature of Japan—one that must be studied if the history of Japan and even if the present scheme of administration were to be understood. He begged Mr. Aston to give the meeting some account of this literature.
Mr. Aston explained the chief characteristics of the old language and literature as compared with those of modern times, and recommended strongly the study of the Japanese ancient classics which, he said, far surpassed in value anything which Japan bas produced in later times.
Mr. W. E. Grigsby then read a paper “On the Legacy of Iyeyasu.”
The President in expressing the pleasure that the two papers had given him, remarked on the contrast of the latter, which was of comparatively modern origin, with the sketch of ancient life which Mr. Aston had presented.
Mr. Aston thought that a warm welcome should be given to Mr. Grigsby’s paper. It was the first instance that he was aware of, of a scholar having given this Society the benefit of his attainments in his own special subject as applied to the kindred subject among the Japanese. He considered that the production of this paper argued well for the future of this Society, and hoped that it might be the precursor of others.
Sir Harry Parkes was disposed to question the authenticity of the so-called Legacy of Iyeyas and its legislative value. He believed the Japanese, in earlier days before power was usurped by the military class, had done better things in the way of law-making.
Mr. Syle remarked that the problem was an exceedingly interesting one which was presented by the actual national character of the Japanese—so permeated with Chinese ideas (as shewn in the Legacy of Iyeyas,) and yet continuing so little affected by it that the general result has been a type of character very unlike the Chinese—in some points, strongly contrasted with it. There must have been some very strong original element to have resisted the foreign influence so resolutely; and it will be a matter of great satisfaction if such investigations as we have in both the papers just read should lead to the ascertainment of what that element was. Mr. Syle then proposed that the special thanks of the Society be given to Mr. Aston and Mr. Grigsby.
Sir Harry Parkes and Dr. Murray rose simultaneously to second the motion which was carried unanimously.
Mr. Syle announced that the Society was extending its relations in Europe, and that he had received from Italy, Austria and the United States, valuable exchanges for the Society’s Journal. He also suggested that as the library of the Society was constantly increasing, additional facilities be given to members for obtaining access to it.
Mr. Grigsby supported the suggestion and gave an amusing account of his failure on a recent occasion to gain admittance to the library, even at an hour when it was supposed to be open.
Mr. Syle moved that the Council be invited to consider the desirability of making the meetings at Tokiô monthly, and added that it might be a question whether it would not be well to have a Local Secretary.
Sir Harry Parkes thought this was much too important a matter to be left to the Council. The Annual General Meeting to receive accounts &c., would shortly be held, and he considered that this would present a suitable opportunity for the discussion of this question.
M. Aston suggested that the advertisement of the meetings should also state the heads of the questions to be brought forward.
Mr. Ayrton repeated the suggestion he made last year that notice of the meeting should be printed on post cards and sent to every member.
Sir Harry Parkes said that the Council had considered this suggestion, which was a very excellent one, but that besides the labour of having 150 post cards addressed there was the question of what it would cost to have them printed. The Society is neither numerous nor rich. The members of the German Society pay $10 entrance and $25 a year, while those of this Society pay no entrance fee and only $5 a year.
Dr. Murray thought that the time had arrived to increase the subscription. He considered it impossible and absurd to attempt to carry on this Society with a subscription of only $5. He therefore proposed that in future the subscription be fixed at $10.
Mr. Aston seconded this motion, which will be brought before the Annual Meeting already referred to.
Some discussion then took place about the date of the next Meeting, but it was decided not to change it from the fixed date, namely 14th July.
The Meeting then adjourned.- ↑ Doubts have been cast on the authenticity of this document by those competent to form a judgment; but as it is conceded that, if not the actual composition of Iyeyas, it yet embraces his policy, and is of historical value, the question of its authorship is of slight importance; I shall assume it is what it purposes to be.
- ↑ Every legal system tells us much of the past life of the nation for which it was framed, since laws are a natural product and not an artificial creation.