4
Village Autonomy

In effect, the village had the security of the administrative state along with the freedom of the outlaw.
John Owen Haley

Village autonomy has two major components: financial and juridical. Japanese historians have given little consideration to the former, analyzed in chapter 2, in their debate about whether or not (more often than the degree to which) Tokugawa villages were autonomous. Their discussion has centered on the juridical aspect of village powers, judicial and prosecutorial, as found in village regulations.^[1] Between roughly 1900 and 1950 a number of village laws were made available in about half a dozen compilations, mainly the work of legal scholars. Then, starting in the 1960s some historians began using these documents to examine the relationship between village and state, questioning the legal scholars' assumption of village autonomy.

Hozumi Nobushige, one of the drafters of the Civil Code, and Miura Kaneyuki pioneered the study of the goningumi system around 1900, no doubt inspired by the same concern that made the late Meiji (and Taisho) government promote "local self-government." This research produced several volumes of goningumi regulations, edited by Hozumi Nobushige and Shigeto^[*] , father and son, in 1921 and 1944, and Nomura Kanetaro^[*] , also in 1944. To these works should be added Maeda Masaharu's studies, especially his 1952 analysis and compilation of village codes , which were different from the goningumi laws because,

Epigraph: Haley, Authority without Power , 61.

[1] For an overview of this historiography, see Kadomae Hiroyuki, "Kinsei no mura to kinseishi kenkyu^[*] ," Rekishi koron^[*] , no. 95 (1983): 94-101; Uesugi Mitsuhiko, "Kinsei sonpo^[*] no seikaku ni tsuite," Minshushi^[*]kenkyu^[*] , no. 7 (1969): 80-106, esp. 80-81; and idem, "Kinsei sonrakuron." See also NRT 3:401-5.

according to Maeda, they developed mostly independently from the laws ordered by the extravillage authorities.^[2]

This first phase of research has made available some six hundred village laws and two hundred village codes. In the multivolume histories published by every prefecture for the last twenty years and in the innumerable local histories promoted by the even more recent furusato bumu^[*] , or boom of hometown-ism, hundreds of additional village regulations, as well as statistical analyses of them by region, can be found.^[3]

The first generation of scholars, with the exception of Maeda, were legal scholars trained in the German formalist tradition. For them the mere existence of these village laws constituted proof of a tradition of self-government. But while such an interpretation was of service to the Japanese state's attempt to revitalize local self-government in the interwar decades, it conveniently overlooked the fact that goningumi laws had undeniably been an important instrument of central control over local life during the Tokugawa period.

Maeda, on the other hand, subscribed to the autonomy thesis in perhaps less radical terms but for opposite reasons. Village codes or rules (okite ), he argued, locating their origin and archetype in the famous codes of Nakano, Sugaura, Imabori, and other corporate vil-

[2] Scholarly attention was drawn to village laws as soon as historical interest in the Tokugawa village as such was developed with Fukuda Tokuzo's^[*]Die gesellschaftliche und wirtschaftliche Entwickelung in Japan , Munchener volks-wirtschaftliche Studien (Stuttgart: J.G. Cotta, 1900), an economic history of Japan published in German before it was published in Japanese. These works on village laws are: Hozumi Nobushige, Goningumi seido (Yuhikaku^[*] , 1902); idem, Goningumi seidoron (Yuhikaku^[*] , 1921); idem, comp., Goningumi hokishu^[*] (Yuhikaku^[*] , 1921); Hozumi Shigeto^[*] , comp., Goningumi hokishu^[*]zokuhen , 2 vols. (Yuhikaku^[*] , 1944); Nomura Kentaro^[*] , Goningumicho^[*]no kenkyu^[*] (Yuhikaku^[*] , 1944). The compilation by Nobushige contains the documents he used for his first two books. Shigeto^[*] , Nobushige's son, compiled two more volumes, to which he added indexes for all 477 laws contained in both father's and son's compilations. Nomura's study contains another 121 laws. Maeda Masaharu studied 216 village codes m his Nihon kinsei sonpo^[*]no kenkyu^[*] (Yuhikaku^[*] , 1952) and "Ho^[*] to sonraku kyodotai^[*] : Edo jidai ni okeru sonpo^[*] o chushin^[*] ni," in Hoken^[*]shakai to kyodotai^[*] , ed. Shimizu Morimitsu and Aida Yuji^[*] (Sobunsha^[*] , 1959), 169-214.

[3] Kanzaki Naomi, for instance, recently analyzed 143 village laws of the old Musashi province (today's Gunma prefecture) in "Musashino-kuni no sonpo^[*] ," Tama no ayumi , no. 65 (1991). Examples of similar studies are idem, "Kozuke^[*] kuni no sonpo^[*] ," Gunma bunka , no. 225 (1991): 39-55; Yokota, "Kinsei sonraku"; and Uesugi, "Kinsei sonpo^[*] ."

lages from Omi^[*] province, some of which dated back to the mid fifteenth century,^[4] constituted an independent tradition. The overlord-generated goningumi regulations (the goningumicho^[*] zensho, "preamble to the goningumi roster"), called here village laws , adopted many items from these customary codes (especially from the end of the seventeenth century), which in turn took on many formal and substantial features of these laws over time.^[5] Maeda's rather tenuously argued thesis of village autonomy and its postwar critique by scholars such as Kodama Kota^[*] ,^[6] mostly in the form of polemical counterassertions, made clear the need to examine closely how these two kinds of village regulations were related to each other and to extravillage authority. Two scholars addressed these questions in the 1960s: Uesugi Mitsuhiko, who compared laws and codes for content and form, and Oide^[*] Yukiko, who focused on the juridical status of the codes.^[7]

Village Laws and Village Codes

Using fifteen categories, Uesugi compared the content of all of Maeda's village codes with a good number of Hozumi's village laws and concluded that, given an overwhelming similarity, the village codes functioned to supplement overlord law as expressed in the village laws of the goningumi rosters.^[8] He pointed out that no village code contradicted any overlord stipulation (to which we shall return), but he also warned, following Maeda, that neither these codes nor the laws covered all aspects of village life; the more extensive laws reflected village life

[4] Ten of the twelve pre-Tokugawa village codes Maeda looked at are from Omi^[*] province (Nihon kinsei sonpo^[*] , "Sonposhu-hen^[*] ," 1-15); for a translation of some of the Imabori codes, see Tonomura, Community and Commerce , 198-207 passim.

[5] Maeda, Nihon kinsei sonpo^[*] , 7-9, 18.

[6] For some critiques, see Uesugi, "Kinsei sonrakuron," 176; and idem, "Kinsei sonpo^[*] ," 81 n. 6.

[7] Uesugi, "Kinsei sonrakuron"; Nanba Nobuo, "Hyakusho^[*] ikki no hoishiki^[*] ," in Seikatsu, bunha, shiso^[*] , ed. Aoki Michio et al., Ikki, 4 (Tokyo Daigaku, 1981), 45-88; Oide^[*] Yukiko, "Kinsei sonpo^[*] to ryoshuken^[*] ," (Nagoya Daigaku) Hosei^[*]ronshu^[*] , nos. 18 (1961): 1-31 and 19 (1962): 73-128; Mizumoto, "Kogi^[*] no saiban," 283-316; Mizubayashi Takeshi, "Kinsei no ho^[*] to saiban," in Chusei^[*]no ho^[*]to kenryoku , Chuseishi^[*] koza^[*] , 4 (Gakuseisha, 1985), 144-71.

[8] Uesugi, "Kinsei sonpo^[*] ," 86-87. The village codes were more detailed in certain areas, for example, rules to implement attendance at village council meetings, tribute collection, sharing of commons (use of mountains and water), regulations of festivals, and penal matters.

only as it related to overlord interests.^[9] After the 1720s the codes' form and language conform closely to the overlord laws, and a good number of them stress the need to obey the laws.^[10] According to Uesugi, if there was resistance against overlord power as Maeda argues, there are no signs of it in the texts of the village codes.^[11] Over time, village codes came to look more like the lords' laws in form and content, growing lounger in response to lordly expectations, especially in sumptuary matters. Oide^[*] presents a more detailed picture of the relationship between village codes and laws, using as her basic data Maeda's and Hozumi's compilations. She first addressed the question of origins and saw an increasing trend of lordly influence in the codification of village codes, especially in the second half of the Tokugawa period.^[12]

The overlord's interference took various forms. It was most pronounced when the codes were a direct response to an order from above. A striking example of such lordly initiative is the drafting in 1827 of a lengthy village code for the Kanto villages that were grouped into leagues, kumiai . Regional village leagues, linking dozens of villages, developed in the last decades of the eighteenth century.^[13] Sometimes a third party outside the village (usually a headman from a neighboring village) was made to participate in the process. This occurred frequently in Mino province in the late Tokugawa period on the occasion of recalls of headmen.^[14] More often, villages proceeded to draft codes on their own with regard to a specific overlordly regulation. Other villages presented their codes to the lord on their own initiative. Thus, the "officialization" of village codes was not simply the result of explicit coercive power from above. It was just as often sought from below by local officials adopting a submissive posture, wanting to ingratiate themselves with the authorities by delivering voluntary proof that they were "within the law."

[9] Ibid., 88; Maeda, Nihon kinsei sonpo^[*] , 59.

[10] Uesugi, "Kinsei sonpo^[*] ," 88-90.

[11] According to Uesugi (ibid., 88), Maeda argues that village codes reflected villagers' resistance ("Ho^[*] to sonraku kyodotai^[*] ," 211-13), although Maeda speaks only of areas of autonomy, especially in matters of justice.

[12] Oide^[*] , "Kinsei sonpo^[*] ," 11-19.

[13] For the text of the 1827 code, see Maeda, Nihon kinsei sonpo^[*] , no. 128 (159-66). On these village leagues, see Anne Walthall, "Village Networks: Sodai^[*] and the Sale of Edo Nightsoil," Monumenta Nipponica 43, no. 3 (1988): 279-303.

[14] Oide^[*] , "Kinsei sonpo^[*] ," 112-23.

What was the legal status of these village codes? Officially, the bakufu acknowledged Shikitari yaburi , the breaking of custom, as a legal ground for suits, but in several lists of "civil" court cases compiled during the Tokugawa period, Oide^[*] could find only a single case based on that claim and one other case that explicitly argued a breach of a village code .^[15] Obviously, infractions of village codes were almost never brought before the overlords. In other court cases, overlords acknowledged village codes if these supplemented their own laws without contradiction. The greatest claims for autonomy, however, have to do with village policing and penal powers, which received detailed attention in many codes.^[16] What was the bakufu's attitude toward village justice?

In a rare explicit statement on the matter, a response to a query of 1829 on whether a village could impose fines for gambling beyond those stipulated by bakufu law, the superintendent of finances (kanjobugyo^[*] ), who also functioned as the overseer of litigation, revealed that the bakufu did not forbid village justice but silently acknowledged it as a secondary and separate form of justice , not as the lowest echelon of its own judicial machinery. In practice, village justice was allowed in matters the bakufu did not or could not handle. Local administrators, however, could deal with village disputes kokoro jidai , "as they saw fit."^[17]

From this we can conclude a general tendency on the part of the bakufu as well as the locals to keep things within the village,^[18] often through the mechanism of conciliation and apologies. This tendency created room for potential conflict, because certain serious crimes had to be reported upward, for example, manslaughter, arson, even theft and gambling. Obviously not all thefts were reported, although bakufu, domain, and village laws all stipulated that they be reported.^[19] When

[15] Ibid., 24. This is case no. 58 (dated 1781) from the 160 cases collected in what was left after the Tokyo earthquake (1923) of the Saikyodome (Record of judgments), cases that came before the bakufu's supreme court, the Tribunal, or Hyojosho^[*] . The other two collections perused were the Mokuhi (Private articles) and the Kujiroku (Record of suits).

[16] Maeda, Nihon kinsei sonpo^[*] , 93-149; Uesugi, "Kinsei sonpo^[*] ," 93-94.

[17] Oide^[*] , "Kinsei sonpo^[*] ," 75-76.

[18] Maeda, Nihon kinsei sonpo^[*] , 31, 116.

[19] For the bakufu's general law, see article 56 of the Kujikata osadamegaki of 1742, in TKKk 3:189; for an English translation, see Hall, "Japanese Feudal Laws III," 755. For reference to domain laws and village laws, see Oide^[*] , "Kinsei sonpo^[*] ," 78-79.

gambling became a serious problem in the second half of the period, the bakufu explicitly allowed local punishment: in 1723 the bakufu proclaimed that it was no longer necessary to report gambling in bakufu and daimyo domains of the Kanto area, and the law was extended to the whole country in 1788.^[20]

That villages had certain penal powers did not mean that they were free to apply any kind of punishment. Death penalties were strictly forbidden, although Mizumoto has found village codes in Echigo that listed the death penalty among possible punishments for about fifty years in the second half of the eighteenth century, an extremely rare case according to Mizumoto.^[21] Maeda reports one village law in 1621 that prescribed the death penalty for gambling "after obtaining the opinion of the overlord."^[22] And we shall soon see that the village codes of Hozu stipulated that (village) samurai could cut down peasants who offended them.

Banishment, or tsuiho^[*] , was allowed when its application was not "private" or arbitrary: permission had to be secured in advance from intendants; sometimes, however, reporting it after the fact made it legal.^[23] There was one way of banishing people that was not labeled tsuiho^[*] : a person could be legally taken "off the [population] roster" (chogai^[*] ) in response to a request by village officials or relatives, which resulted in loss of residence and legal status for the person in question. Banishment might also consist in expelling a person to a location just beyond the village border and letting him or her live (or die) there in a makeshift shelter. Shinzo^[*] in chapter x was a victim of both removal from the roster and expulsion beyond the village. Perhaps the most well known form of village punishment is ostracism (murahachibu ), whereby a person was cut off from social interaction and most mutual help. This particular form was generated by the village itself. It is found only in village codes, not in village laws.

Throughout the period, village codes relied on overlord authority—"borrowed" its power, so to speak—by stipulating that any infringement of the codes would be reported to the lord. Oide^[*] sees a gradual

[20] Oide^[*] , "Kinsei sonpo^[*] ," 82.

[21] Mizumoto, "Kogi^[*] no saiban," 295.

[22] Maeda, Nihon kinsei sonpo^[*] : "Kenkyu^[*] ," 103; "Furoku," 16.

[23] Oide^[*] , "Kinsei sonpo^[*] ," 85-87. See also article 26 of the goningumi rules of 1662 from Shimo-Sakurai, Kita-Saku district, Shinano, in appendix 3.

merging of the two kinds of justice, lordly and village justice. Punishments became lighter; physical punishments (banishment or mutilation) tended to become rarer from the middle of the period onward and were replaced by fines; increasingly, crimes were reported beyond the village. With the rural crisis of the nineteenth century, the village leadership was no longer able to handle village affairs and came to rely on the overlords to resolve conflicts, thereby increasing considerably the time and energy intendants spent adjudicating disputes.

Class and Status Codifications

I mentioned earlier that the bakufu's main status codification related to the separation of warrior rulers from commoner subjects. It did not legislate status differences among peasants aside from setting the village officials (murakata , "village persons") apart from the rest of the peasantry, from amongst whom those responsible for the tribute were singled out as titled peasants. This legislation, however, is not to be found in the bakufu's best-known (but secret) code of 1742, the Kujikata osadamegaki , or in the famous rural administrative regulations for intendants from the Kan'ei period (the 1640s), but in the goningumi laws. That is where the overlords' expectations were made clear to the mass of commoners.

Many of the stipulations concerning tribute payment, open information about each peasant's share of the tribute, and the village budget (which was discussed earlier and for which I referred to bakufu legislation addressed mainly to intendants) were incorporated into village laws very early on. This can be seen, for instance, in the expansion of successive versions of goningumi regulations for the same village. Appendix z offers the translation of one of the earliest village laws in bakufu territories (twenty-one articles), from Shimo-Sakurai, in Kita-Saku, dated 1640. The second extant version, from ten years later, consists of forty-seven articles, twenty of them from the bakufu's nationwide directions for villages, issued twelve months earlier, in 1649/2 (see appendix 4).^[24] By 1662 this village law, now comprising fifty-six articles, had acquired the form it would have for the next two hundred years (see appendix 3).

[24] See Hozumi Shigeto^[*] , Goningumi hokishu^[*]zokuhen , 1:28-36; cf. TKKz 5:159-64 (no. 2789, arts. 28-47). On the controversy concerning the historical status of this famous edict, see appendix 4.

Before turning to these village laws, however, we shall examine perhaps the most famous of the shogunal Keian edicts, the one of 1649, which was issued for all villages in the realm. Status is hardly an issue in the edict. Only article 16 deals with it by prescribing cotton as the only fabric to be used by peasants (see appendix 4), a typical sumptuary regulation that under the guise of ethics (frugality) pretends to regulate economics (consumption) but in fact targets politics by codifying status.^[25] Economic production and well-being per se are given far more emphasis. A basic concern is the maintenance and reproduction of the means of production, that is, the peasants: they should be fed more when labor is more demanding (art. 10), keep in good health (art. 22), maintain collective productivity through mutual help (art. 29), and so on. Much advice is given about ways to increase productivity and wealth. Among the items included are how to select grains (art. 6); injunctions to sharpen hoes and sickles once a year (art. 7); how to build toilets to collect manure (art. 8); the necessity of supervising the labor force, planning around the weather (arts. 11, 12), and disposing of surplus children (art. 18); encouragement to make a profit (arts. 5, 21) and raise one's standard of living by being business-minded (shoshin^[*] , akinagokoro ) (art. 17).These were all things peasants did of their own accord, one would assume, but here they become the object of bakufu "national" legislation.

Economic well-being (shinsho^[*] ), its improvement, and its social reward in the form of respect (art. 30), as well as the scorn that can be a product of its absence, are major themes of the edict (arts. 2, 17, 30, 35). Economic well-being is seen as the basis of morality, because poverty leads to crime, a process described as an alarming cascade of worsening conditions: "poverty may cause illness, warp the mind, cause one to steal, violate the law, wind up in prison, receive the death penalty, be crucified," to which is added an ominous "etc." (art. 32). This is an interesting "economization" of virtue in the same alarmist terms the Confucian scholar Yamazaki Ansai (1618-82) used to characterize the inevitable fall from one evil thought into the abomination of abominations, the killing of the lord.^[26]

[25] During the seventeenth century in Kishu^[*] domain, village group headmen were allowed to wear pongee; headmen and elders could use silk only in collars; and peasant dress was limited to cotton (see Hirayama Kozo^[*] , Kishu-han^[*]nosonpo^[*]no kenkyu^[*] [Yoshikawa kobunkan^[*] , 1972], 185).

[26] Ooms, Tokugawa Ideology , 220, 223, 247.

In some sixteenth-century writings virtue was quantified and externalized through its identification with calculation and foresight in the management of people by lords.^[27] In Ansai's neo-Confucianism, virtue was politicized and internalized in terms of the values of respect and silent loyalty.^[28] In these village regulations, it was given an economic and social slant. Article 31 looks very much like a transposition into an economic key of the famous passage in the Great Learning that describes the expansion of the ruler's virtue throughout the realm. Here, however, the source is not the ruler but any subject whose creation of wealth will be imitated within the village, in neighboring villages, in the province, and in neighboring provinces. Another crucial virtue, filial piety, is transformed in a similar way: "No matter how devoted one may be to one's parents, it is difficult to be filial when one is in misery (fuben )" (art. 32). This was one way that Confucianism reached the masses. Buddhism and even folk belief in curses are marshaled in the Kita-Saku version of this edict to enjoin peasants to take great care of their horses and bulls (art. 14).

Social status and standing are unambiguously linked to economic well-being: people will start to respect you, be nice to you, and even promote your official status from a lower seat (in shrine associations and councils) to an upper seat if you improve your material conditions (art. 30). We know from chapter 3, however, that village practice was altogether a different matter: status was used to hold off competitors for political power who were agitating on the basis of their economic achievements.

Status issues were far more prominent in village laws and village codes than in the Keian edicts. The prohibition on wearing anything but cotton appeared in Shimo-Sakurai's village law (art. 10 [see appendix 2]) in 1640, a year after it was proscribed by the bakufu in its Kan'ei edict. In the next extant edition of that law (1662 [see appendix 3]), a sartorial status distinction is made between headmen and peasants (art. 10), and it is stressed that one should not exceed the bounds of one's status on ceremonial, that is public, occasions (art. 12). Moreover, the first article presents a hierarchized list of people, from house owners to servants, and so on, down to outcastes and nonhumans. Elsewhere too

[27] Ibid., 24-25.

[28] Ibid., 219-20, 247-48.

(arts. 2, 9, 22) the religious types are lumped together with the outcastes and criminal elements.

In numerous other village laws , similar concerns with status are expressed beginning around the mid seventeenth century. Rules stress the forms of greeting and behavior that peasants (even former samurai) should use in the presence of samurai.^[29] Small peasants were to observe a specific etiquette in their dealings with the village leaders.^[30] Interestingly, the latter stipulation dates from the end of the century, when the small peasants, who had come into their own economically, were agitating for higher status within the village.

Status maintenance, however, is threatened not only by disrespect. Self-assertive behavior can be an expression of economic security: many elements of material culture—specifically, as Weber notes, modes of consumption—function as status signifiers. Hence, regulations in this area reveal where threats to status distinctions developed. "In the building of houses, at weddings, funerals, regular village council meetings, behavior and dress should be according to previous regulations and one should not make light of status in anything" (1684, 1697). Permission was needed to build new-style houses (1698). Umbrellas and geta might keep one dry when it rained, but peasants could not use them; instead they had to make do with straw hats and, presumably, straw sandals (1828, 1838). "Only taka-holding peasants entered on the land surveys can build structures with gates, walled fences, and eaves; branch houses of kin that have such features may keep them, but from now on this will not be allowed" (1767).^[31] Similar status-related prohibitions can be found also in village codes . To cite one rather late example from 1832, cotton was prescribed for all seasons, and silk was forbidden, as were haori coats; umbrellas were only for officials; geta and leather-soled sandals were forbidden; and sake consumption was to be limited to one or two sho^[*] , that is, two to three liters.^[32]

These regulations, whether generated from within the village as codes or without as laws, were normative attempts to protect social and

[29] Hozumi Shigeto^[*] , Goningumi hokishu^[*]zokuhen , 1:33 (1650), 68 (1679).

[30] Ibid., 1:235-36 (1698).

[31] Ibid., 1:129 (1684), 222 (1697), 236 (1698); 2:1159 (1828), 1193 (1838); 1:407 (1767).

[32] Maeda, Nihon kinsei sonpo^[*] , no. 137 (177-78).

economic positions via status signs whose symbolic power rested on their being relatively rare. Such regulations were, perhaps, less necessary in the early period, when extended families prevailed and hierarchy was so obviously tied to gradations of economic dependency that proper behavior was instilled through a socialization that could dispense with written codes. However, the obvious leveling effects of the commercialization of the peasant economy necessitated codification that generated differences.

When it was dissociated from the status holders' shrinking economic base (landless titled peasants), status ceased to function as an obvious sign of class value (except as a déclassé one). The draining of the economic, however, revealed (and created) the political, now the shrunken signified of status. Hence the struggle between, on the one hand, status holders (old titled peasants) revalidating their now purely symbolic capital by reference to ancestry (when this status value was certified in land survey records) and, on the other, challengers (new economically autonomous peasants) appealing to the same logic that had created status as an expression of economic autonomy, which they now possessed, and had given political voice, which they were now being denied.

Since village codes were drafted by the village elite, it is not surprising that from the beginning some of them quite explicitly reveal a clearly defensive "class" effort to preserve privilege, status, and power, as well as their economic base. Such strategic class-based linkages, however, are hard to demonstrate if one limits oneself to the textual study of codes. Links can best be established by focusing one's research on a village or region whose socioeconomic structure can be identified. Very few historians have engaged in this kind of research, but there are at least two such studies on which we can rely: Igeta Ryoji's^[*] , for the village of Hozu in Tanba (near Kyoto), and Oide^[*] Yukiko's, for the Mino region (Gifu).^[33] They reveal a village structure different from the three studied so far (the corporate village, the village dominated by dogo^[*] , and the cooperative village).

[33] Igeta Ryoji^[*] , "Hokenteki^[*] sonraku kyodotai^[*] to mura okite: Tamba-kuni Hozu-mura gomyo^[*] shudan^[*] no sonraku shihai," Doshisha^[*]hogaku^[*] (1960-62): 58 (1960): 52-78, 61 (1960): 80-109, 62 (1960): 27-56, 65 (1961): 23-45, 70 (1962): 66-98, 75 (1962): 87-108; idem, Kinsei sonraku no mibun kozo^[*] (Kokusho kankokai^[*] , 1984); Oide^[*] , "Kinsei sonpo^[*] ."

Strategies for Elite Reproduction: Hozu Village, 1500S—1900

The Hozu locale (in Kameyama domain, Tanba province, which today is part of the township of Kameoka, some fifteen kilometers, across the mountains, west of Kyoto) consisted administratively, at least from the 1580s, of two villages, a northern (Kita-) and a southern (Minami-) Hozu, which together constituted a large community. In 1749 it numbered 376 households with 2,068 koku. Kita-Hozu's 125 households formed one kumi, while Minami-Hozu's 251 were divided into three regional kumi. In addition, there was a fifth kumi, a gomyo^[*] ("five names [shoots]"), that was not regional, but comprised a number of households in both villages. The gomyo^[*] households (24 in 1616; 53 in 1669; 61 in 1801; 83 in 1872)^[34] each bore the family name of one of the five village founders, and they called themselves samurai throughout the Tokugawa period.^[35] Officially, in the eyes of the overlord in Kameoka (less than two kilometers away), they were titled peasants (otonabyakusho^[*] ). In addition to and separate from these five kumi there was a community of outcastes concentrated mainly (in 1872, 69 of the 74 households) in Minami-Hozu.^[36]

In Tanba there were many groups like the gomyo^[*] , samurai of the soil who maintained their family identity well into the Tokugawa period.^[37] What was unusual about the gomyo^[*] was that, at some point in the sixteenth century or perhaps later, these families had consolidated into an organization that maintained itself until the Meiji period

[34] Igeta, "Hokenteki^[*] sonraku," 58:59-60. Hayashi Motoi has a different reading for gomyo^[*] , namely, gobyo^[*] (see Hayashi Motoi, Kyoho^[*]to Kansei , Kokumin no rekishi, 16 [Bun'eido^[*] , 1971], 395). I am following Igeta, who did the original research, and he confirmed the reading gomyo^[*] .

[35] Igeta, "Hokenteki^[*] sonraku," 58:55-56.

[36] For data on the outcaste population of Hozu, see Igeta Ryoji^[*] , "Kinsei koki^[*] no buraku sabetsu seisaku," Doshisha^[*]hogaku^[*] 110 (1969): 28-49 and 111 (1969): 53-84, esp. 54 and 66 for the population data; idem, "Mikaiho^[*] burakumin no iriaiken," Minshoho^[*]zasshi 78, suppl. no. 1 (I979): 201-16; and idem, "Mikaiho^[*] buraku to iriaiken: Kyoto-fu^[*] Kameoka-shi Hozu-mura no baai," Doshisha^[*]hogaku^[*] 136 (1975): 101-44.

[37] For instance, neighboring Umaji was ruled by two such families called ryomyo^[*] ("two names") (see Igeta, Kinsei sonraku , esp. chap. 2; see also Igeta Ryoji^[*] , Ho^[*]o miru Kurio no me: rekishi to gendai [Kyoto: Horitsu^[*] bunkasha, 1987], 89-101).

Plate 3.
Hozu Village. From the bank of Hozu River, facing north, midway
between Hozu and the castle town of Kameoka. Photograph by author.

when they formally incorporated. The gomyo^[*] was clearly an institution set up to defend class interests against other classes of villagers, such as the bond servants (genin) employed by these households and the small peasants, who were kept small for over two hundred years. The threat against the reproduction of this local upper class came from social change that took three successive forms. First, as landed samurai these families lost institutional support from the overlords, who did not recognize village samurai. Second, economic growth enriched the small peasants and led to the emancipation of many bond servants. Finally, the gomyo's^[*] own reproduction, if not checked, would weaken their economic base if with each generation holdings were divided among new branch families. This class succeeded in meeting these challenges until the nineteenth century. Because these families ruled the two Hozu villages, their strategies inform the village codes, which reveal where normative defenses had to be erected.

The 1636 "village" code, eleven short, one-line articles, was explicitly called "Rules for the Genin Peasants of Minami-Hozu" (the ones

for Kita-Hozu are not extant).^[38] All the articles are prohibitions to prevent status pollution: genin peasants cannot wear swords or leather-soled sandals, use umbrellas, or go by samurai names; children should not address their parents as toto (dad) and kaka (mom); a genin peasant cannot refer to himself or herself as midomo or to others as ore ; anyone rude in the company of samurai shall be cut down.

The last three rules need some explanation. Toto and kaka are children's terms, obviously devoid of reverential connotations. One can only guess why they constituted a problem in the eyes of these village samurai. Perhaps these samurai sensed that, as Bourdieu has remarked, "concessions of politeness ... always contain political concessions"^[39] and thus felt that they needed to dictate intrafamily behavior—the personal is political. Midomo and ore are status- and rank-marking personal pronouns, the former used by samurai to refer to themselves, the latter used for inferiors.^[40] Thus, genin peasants were not to speak or behave as equals to "samurai," a privilege the gomyo^[*] , who perceived themselves as samurai, preserved for themselves. This contrasts sharply with articles one finds in numerous village laws expressing the overlord's point of view that former samurai, which legally the gomyo^[*] were, are to be treated as peasants.^[41]

The article affirming the samurai's right to cut down peasants encourages the swift action that had become outlawed by Ieyasu's rule of 1603 that "the killing of peasants for no reason (muza to ) should be stopped, but if [a peasant] is guilty, he should be caught, arrested, and punished in accordance with a verdict by shogunal officers (bugyojo^[*] )."^[42] The samurai of Hozu village, one presumes, were not only going by a pre-Tokugawa practice: they were codifying it explicitly in 1636, an unusual example of a code contradicting lordly law.

[38] Igeta, "Hokenteki^[*] sonraku," 58:58.

[39] Bourdieu, Logic of Practice , 69.

[40] Nowadays, ore is used only as first-person pronoun; in Tokugawa times, however, it was also used as the third-person pronoun for inferiors. For midomo , see the entry in Kojien^[*] (Iwanami shoten, 1955); for ore , see the entry in Daijiten , 13 vols. (Heibonsha, 1934).

[41] Hozumi Shigeto^[*] , Goningumi hokishu^[*]zokuhen , 1:33 (1650), 68 (1679).

[42] The rule outlawing the killing of peasants "for no reason" was the last article of a seven-article decree issued by Tokugawa Ieyasu (the only one he issued about local governance) (see Kodama Kota^[*] and Oishi^[*] Shinzaburo^[*] , eds., Kinsei nosei^[*]shiryoshu^[*] , vol. 1, Edo bakufu horei^[*]1 [Yoshikawa kobunkan^[*] , 1966], 1).

Slow economic growth made genin potential buyers of land. In order to control the transfer of land out of gomyo^[*] hands, "village" rules were issued in 1691 (and again in 1731 and 1746) prohibiting the sale of paddies and fields to genin; they could acquire only homesteads with garden plots of dry fields. Similar economic restrictions were instituted against the outcastes elsewhere. Other sartorial regulations in Hozu, such as the prohibition against wearing leather-soled sandals, are also identical to those imposed on outcastes. In Hozu, therefore, which also had an outcaste community, small peasants, even taka holders, were treated like outcastes in a number of respects.^[43]

There were no restrictions on land sales among peasants. A samurai unable to find a samurai buyer and wanting to sell to a peasant had first to report the price to the samurai council, whose directions for the sale had to be followed; that is, the council set the price. In 1759 a new regulation forbade others than samurai to fish with nets in the Hozu River. The river was also the source of additional wealth through the rafting of logs, but the village samurai had a monopoly on this business too.^[44] Although by the mid Tokugawa period they lost to the overlord their control over the use of the mountain, they still had a monopoly on the use of the commercially very valuable standing trees.^[45] These "samurai" clearly constituted an economic class, both objectively, since they were the important landowners and entrepreneurs of sorts, and subjectively, because they were very conscious of the interests that bound them together, which they defended through status and commercial legislation that denied the small peasants economic opportunities.

In the eighteenth century, class differentiation occurred slowly within both the dominant and the dominated class in the two Hozu villages: the greatest holdings—between 1596 and 1636 two samurai had increased their holdings from 56 and 65 koku to 75 and 104 koku, respectively—leveled off to 50 koku, and peasants came to hold land. Yet the two groups remained distinct economically: the gomyo^[*] holdings clustered in the 5-20-koku bracket. In the 1720s and 1730s a number of peasants became very small owners (see table 18 for Kita-Hozu),

[43] Igeta also makes this point in his "Kuchi-Tanba chiho^[*] no hisabetsu shuraku^[*] ," in Zenkindai Kyoto no burakushi , ed. Buraku mondai kenkyujo, Kyoto no buraku mondai, 1 (Kyoto: Buraku mondai kenkyujo, 1987), 122.

[44] Igeta, "Hokenteki^[*] sonraku," 58:60-61, 65:44, 24-25.

[45] Igeta, "Mikaiho^[*] buraku," 104-5.

but they clustered in the category of less than 1 koku. In the following decades, however, many became landless again, although the overall number of peasant owners remained at a higher level than before the 1720s. In striking contrast to Kodaira village (analyzed in chapter 3), where titled peasants became economically indistinguishable from non-titled peasants, the gomyo^[*] in Hozu succeeded extraordinarily well in maintaining economic supremacy. Socially too the two groups remained distinct. There was no intermarriage between the village samurai and the rest of the village population, although there were numerous intermarriages between peasant owners and genin and fudai.^[46]

Gomyo^[*] strategically regulated landownership, so that the non-gomyo^[*] peasant population (genin and small peasants) consisted only of very tiny holders, who thus had to become servants and tenants to the gomyo^[*] as a group. The restrictions on land sales were only one part of this overall strategy. In 1748 rules forbade villagers to become tenants

[46] Igeta, "Hokenteki^[*] sonraku," 58:65, 61:92, 101

or seek employment elsewhere. The gomyo^[*] thus kept wages for servants low and rents for tenant farmers high. In 1781-82 all this was challenged by demands that the wages of women servants and of rafters employed in the logging business be increased, that the prohibition against service in other locales be lifted, that land rents be lowered, and, aiming at the heart of the system, that treating peasants as hereditary vassals be stopped.^[47] We shall return to this crisis shortly.

In order to prevent the downsizing of their holdings, the village samurai started practicing single inheritance by one son around 1700. The other siblings, to whom the prohibition against outside employment obviously did not apply (the "village" rules were for the non-gomyo^[*] ), left the village to seek employment as servants or engage in trade in Kyoto or Osaka and eventually return with their own assets.^[48] This is interesting because the survival of older patterns of authority and power is usually considered characteristic of "backward" areas; in the Kinai region these patterns are usually said to have disappeared rather early. In the present case, however (which was not exceptional in southern Tanba), the proximity to Kyoto and Osaka was an important factor in making the reproduction of these relations possible.

The small peasants responded to this class organization of the village samurai or landlords by forming their own, as a religious (nenbutsu ) sodality. The first documented trace of its existence dates from 1733, but it may have been formed earlier. Although it was divided geographically into several kumi, this organization spanned the two villages and functioned as an official institution to defend the small peasants in their confrontations, physical or legal, with the gomyo^[*] . The village authorities, that is, the gomyo^[*] , acknowledged the peasants' organization as a semipublic institution, since they corresponded with it and allowed its representatives to testify in suits involving peasants. Other villages in the area, such as Umaji, had similar organizations, which, although structured "horizontally" as fellowships, nevertheless had their own hierarchy.^[49]

[47] Igeta, "Kinsei koki^[*] seisaku," 111:71. The "label" fudai , as opposed to the "reality"—a contrast perhaps best understood again as tatemae versus honne—had disappeared from records after the 1750s; these were mainly newcomers from outside who had been living with gomyo^[*] households since the 1720s (idem, "Kuchi-Tanba," 120).

[48] Igeta, "Hokenteki^[*] sonraku," 62:35-36.

[49] Ibid., 61:105-9.

In 1781/6 an incident among a few villagers soon developed into a confrontation between the two classes.^[50] One day a few young peasants walked through the village wearing leather-soled straw sandals. A couple of gomyo^[*] members from Kita-Hozu berated the young men for breaking village regulations by wearing rain gear and beat them up. The angry victims rallied the support of the nenbutsu sodality and went to the house of one of the assailants, where they were denied an audience. Then the peasants decided to boycott the gomyo^[*] by refusing to work for them in the fields and in a business of fruit products owned by one of the gomyo^[*] .

The gomyo^[*] ordered an end to the boycott because it interfered with their livelihood, but the peasants refused because the whole affair, they argued, was the result of the other side's unreasonable behavior. The assailants admitted to having beaten up the young men but thought their behavior had been justified because the latter had broken the rule forbidding peasants to wear leather-soled straw sandals. Such incidents obviously were symptoms of other economic and social tensions and signaled the start of the various demands mentioned earlier. In the 1780s Hozu and the Tanba region, like much of the rest of the country, witnessed peasant disturbances.^[51]

Although they had maintained their economic dominance (see table 19), by 1800 the gomyo^[*] were under considerable pressure from the peasants, who for over a decade had been challenging their authority in the various ways described. At the same time, the financially strapped domain lord came to rely on the gomyo^[*] for "loans." The gomyo^[*] exploited this situation to enhance their members' status within the village in the following way.

The domain had a number of schemes (five of which were implemented within the domain) to borrow money from the peasants and from other sources of revenue in Kyoto and Osaka.^[52] Two of those schemes are relevant for the present discussion. The first one consisted in obtaining individual loans from wealthy peasants. Thus, in 1764 and 1800 the daimyo borrowed a total of 45 kanme (copper currency equal to 1,000 mon ) from three wealthy Hozu villagers (with combined hold-

[50] Ibid., 70:67-68.

[51] Anne Walthall discusses the unrest in Hozu following this "sandal incident" (Social Protest , 109-11).

[52] Igeta, "Hokenteki^[*] sonraku," 75:89-97.

ings of 227 koku). In addition, loans were obtained from whole villages in the form of advance tribute payments. As always, repayment was a problem, redemption was postponed, interest rates were lowered, and so on.

The bulk of these loans, private and communal, were shouldered by the large landowners. Unlike the other villages in the area, which were receiving interest payments with return of the principal postponed, "Hozu village" generously forfeited its principal (and thus also the interest payments). But the gomyo^[*] samurai-landowners wanted something in return from the lord for the real capital they had provided him: symbolic capital. They requested official recognition of their samurai pedigree as goshi^[*] (landed samurai), which of course they had always considered themselves to be, this no doubt in order to shore up their position within the village. A hundred years earlier decrees had explicitly forbidden the wearing of swords by peasants and adopting the title goshi.^[53]

[53] Igeta, "Kuchi-Tanba," 124.

The lord, however, aware of the frictions and tensions between this group and the common peasants, was wary of further accentuating class differences by making them official; he therefore proposed allowing thirty non-gomyo^[*] village notables, like the leadership of the nenbutsu confraternity, to wear haori (ceremonial coats, a status marker). The gomyo^[*] objected strenuously and got their way. For the lord, there were only titled and common peasants; ancestry did not play a part, since membership in these groups normally shifted over rime. Moreover, the gomyo^[*] would not be genuine landed samurai, but cash samurai who had bought their status. The gomyo^[*] , however, wanted the peasants to be officially their vassals (kerai).

Another point of friction with the lord developed when he "discovered" that all gomyo^[*] households formed one single separate kumi, while all other peasants were grouped in their own kumi. (Since Hozu was only a fifteen-minute walk from the castle, this "discovery" two hundred years into the Tokugawa period is not to be taken too literally.)^[54] The gomyo^[*] were supposed to form the leadership of each kumi; otherwise some peasant households would acquire a semihereditary position as kumi heads, resulting in a new status next to that of the titled peasants. From the lord's point of view, village government consisted of village officials, kumi heads, and peasants, and the status system contained only rifled and small peasants. The lord, however, was in no position to follow through on the principles he had announced in the negotiations with the gomyo^[*] , and he wound up recognizing for thirty-nine members of the gomyo^[*] a venerable samurai pedigree going back over three hundred years to Hosokawa Takakuni (1484-1531). Similarly, in neighboring Umaji, under a bannerman, thirty-nine of its "titled peasants" became landed samurai in 1807, and two years later the remaining twenty-two were also promoted, for reasons not unlike those in Hozu.^[55]

Within a year of their promotion as officially certified landed samurai, the gomyo^[*] had to deal with a consequence of a scheme they had resorted to in order to control their peasant tenants, who had been agitating for lower rents. For some time, possibly since the agitation in 1781-82, the

[54] This is not to suggest that Hozu was governed by the same house throughout the entire Tokugawa period. Hozu had six different overlords during the seventeenth century. In 1702 the Aoyama daimyo and finally, in 1748, a Matsudaira house came to rule the fifty-thousand-koku domain of Kameyama (from the castle town by that name, now Kameoka).

[55] Igeta, "Kuchi-Tanba," 124.

gomyo^[*] had been renting land to the outcastes as a countermove against some small peasants who had gone on a rent strike in order to press their demand for lower rents. These renters had refused to continue renting some low-quality fields. The gomyo^[*] had simply replaced them with outcaste tenants. In Umaji, which had had no outcaste community, the ryomyo^[*] ("two names"), a group like the gomyo^[*] but consisting of two lineages, imported thirty-three outcaste households in 1808 for similar reasons. These were pure peasants, who did not engage in the removal of dead cattle, a job that was taken care of in the area by five other outcaste communities, one of which was Hozu's.^[56]

This heightened the tension between the outcastes, who were now also strikebreakers, and the peasants, who had seen their boycott come to naught. The tension erupted into violence when, in 1802, peasants repeatedly destroyed the grass and firewood that the outcastes had gleaned from the commons, which the outcastes needed for their fields.^[57] The disputants were reconciled, but violence erupted some six times in the summer of 1808, forcing the outcastes to take legal action first with the Hozu leadership, then with the domain. In 1811 this led to a settlement that favored the outcastes by increasing their portion of the commons, and this was followed by an additional increase in 1815. But the peasants had already scored against the outcastes in 1809: "in order to avoid trouble in this time of tension," the outcastes were not to deliver their rice tribute on the same day that the peasants delivered theirs.

In this conflict with the peasants, the outcastes found allies in the village leadership, that is, the gomyo^[*] , and the overlord. It is clear, however, that the gomyo^[*] played the outcastes off against the peasants in order to keep rents high and that the lord supported this policy because the solidity of his tribute base, namely, the gomyo's^[*] economic well-being, depended on it.

This outcastes' increased access to mountain land was strictly limited to foraging for agricultural use: none of the collected material could be sold, and no (commercially valuable) standing trees could be cut down. Moreover, based on the Meiji data (see table 20), it appears that the

[56] Ibid., 97.

[57] The following information is culled from Igeta, "Kinsei koki^[*] seisaku," 111:55, 61-65, 71-72, 77, 81; and idem, "Mikaiho^[*] burakumin," 209-12. See also his "Kuchi-Tanba."

share of the area of mountain land available per household was heavily slanted in favor of the peasants, in a ratio of zoo to 28, or roughly 4 to 1, a ratio that remained unchanged throughout the nineteenth century. In 1909, as a result of activism by the burakumin descendants of the outcastes, this ratio was changed, to 4 to 3. But it was only in 1961 that equality was achieved, at least in terms of land. Igeta suggests, however, that in terms of quality of mountain land, discrimination continued to persist.^[58] Although Igeta does not mention this, it may very well be that some of the disproportion in the common land available for use to

[58] "Mikaiho^[*] buraku," 108. A famous case for the clear right of access to commons by burakumin was settled in the Niboku court (Nagano) as late as 1973, when it was decided that, contrary to earlier arguments, burakumin were indeed full members of rural communities, with equal rights, and did not constitute separate, nonagricultural communities. Hozu outcastes were involved in litigation for over a century and a half (see Igeta Ryoji^[*] , "Meiji koki^[*] no kenri toso^[*] no ichi jirei: Mikaiho^[*] burakumin no byodo^[*] iriai yokyu^[*] ," in Nihon kindai kokka no ho^[*] kozo^[*] , ed. Nihon Kindai Hoseishi^[*] Kenkyukai^[*] [Bokutakusha, 1983], 482-514. On the Niboku case, see Igeta, "Mikaiho^[*] buraku," 101-6; and Aoki Takahisa, "Niboku iriaiken jiken to hanketsu no igi," Buraku mondai kenkyu^[*] 40 [1973]: 34-70). Frank Upham kindly alerted me to the existence of these modern cases.

peasants and to outcastes is to be explained by the fact that shares may have been calculated by holding size rather than per household.

Through a number of devices and strategies, a clearly identifiable class of samurai-landowners succeeded in securing its survival as a class for some three centuries. In part these village samurai resisted overlord authority by maintaining a posture of samurai vis-à-vis the peasants whom they continued to rule as vassals. On the other hand, they also relied on the overlord, who acknowledged their dominant position as titled peasants, and they succeeded in forcing him to officialize their position further by granting them the title of landed samurai, which they had coveted for some two hundred years. Village regulations were an important means to preserve this class's economic preeminence, and status was an effective weapon to maintain class difference.

Village legislation was put into the service of similar overt class interests in Mino province, as Oide^[*] Yukiko has demonstrated. There the peasants were divided between kashirabyakusho^[*] ("head peasants," i.e., titled peasants) and wakibyakusho^[*] ("side," or regular, perhaps marginal, peasants). The former held a monopoly on village power and relied on a variety of customs that set them apart from the others: they had their own protective deities (ujigami) and wedding ceremonies, and they did not marry across class lines. Such an upper-class peasantry, with its marks of distinction, was found throughout the province, whatever the jurisdictional character of the overlords—daimyo domains, Tokugawa houseland, or intendant territories.^[59] The familiar scenario of economic growth threatening the preeminent position of the dominant fraction of the peasant class also played itself out here. The village codes of this entire region were almost exclusively concerned, not with cultivation, but with maintaining the relationship of domination between the two classes.

Who were these titled peasants? They defined themselves either as families who were registered on Hideyoshi's survey; or as landed samurai "since the ancient past" privileged to have surnames, wear swords, and have their own protective deities; or quite straightforwardly as large property owners. Descent and ownership, however, were not sufficient to defend them against the economic threats that would eventually erode their distinction as a class. Hence the reliance on sumptuary vil-

[59] Oide^[*] , "Kinsei sonpo^[*] ," 111-14. The next several paragraphs are based on ibid., 113-22.

lage codes controlling consumption, specifically its most visible form: houses. Almost universally there were detailed building codes prohibiting regular peasants from having gates at their residences or entrance-ways, roofs with eaves, or rooms with ceilings.

To these were often added other limitations, for example, on public display of wealth: stone tombstones were prohibited, as were cremation huts and the use of palanquins. None of this legislation regulating status came from the overlords, although they generally acquiesced in it. As in Hozu village and the Tanba region, this system did not meet any serious challenge until the first decades of the nineteenth century (1800-1840), although related incidents occurred sporadically from the 1630s.

Increasingly, with the rising number of infringements, class and status conflicts were less likely to find a solution in the divided villages. The overlords distanced themselves as much as they could from these problems and insisted on in situ conciliation. For this purpose they relied more and more on the mediation of the leaders from surrounding villages. They also began to inquire into the content of the village codes, and they even had these same leaders from other villages preside over the drafting of new codes for problem villages. Needless to say, such village regulations are hard to reconcile with the standard image of Tokugawa villages as consensual and autonomous communities. Even from the beginning these regulations were not based on communal consensus, and they lost their autonomous character as well when they were redrafted by nonvillage members.

In the (very) long run, the struggle to maintain status regardless of economic reality was lost. Ultimately, regular peasants bought their privileges from the lord: six of them offered to pay three hundred ryo^[*] to be reclassified as titled peasants; in Ogaki^[*] domain (100,000 koku) the lord even decreed that all peasants be promoted to that status in 1867.

Igeta sees the Hozu pattern of status manipulation as distinct from the more familiar dogo^[*] and corporate villages; and it should be added that they were also different from the cooperative villages of Fukuyama. Without the pyramidal, paternalistic structure of villages tying individual households to individual magnate landlords, a whole "incorporated" class of large landholders kept another class of very small landholders dependent as a group; many tenants had multiple "landlords," with whom they interacted as a group. This, Igeta suggests, was typical of the mountainous parts of the larger Kinai region (including South

Tanba, Yamato's Yoshino district, Omi^[*] , Kii, Settsu, Wakasa, and Mino).^[60] However, historians have traditionally contrasted villages in Kinai to dogo^[*] villages, which were typical of the central regions, the Kanto and the northeast, as corporate villages having more fraternity-like miyaza organizations in which the hierarchy of large and small landholders was not directly related to patterns of domination. Igeta surmizes that this may have been typical only of the plains around the capital. Elsewhere, in the mountainous parts, old village elites were able to neutralize the pressure for change prompted by economic growth: the mechanism of status legislation was directed at a small peasantry, to whom the elite were not necessarily linked in a one-to-one landlord-tenant relationship.

Ostracism (Murahachibu)

Murahachihu, perhaps the best-known village-specific penal measure, was absent from lordly legislation. There were multiple ways of getting rid of undesirable community members—banishment, disinheritance, stripping of "civic status," and so on—all of which had to be sanctioned by supravillage authorities in the form of prior requests or at least post factum reporting. Ostracism, however, was purely a village affair. It was the result of a decision made "by the community" to sever all social intercourse with a member and cut the household off from almost all mutual assistance. According to one popular interpretation of the term (which literally means "eight parts [out of ten]"), those ostracized could count on community assistance only for two "parts" of community life, namely, fire and funerals, but not for the other eight: coming-of-age ceremonies, weddings, memorial services, births, sickness, floods, travel, building and repairs (e.g., roof thatching).^[61] In addition, ostracized members would not he greeted and were not allowed to participate in meetings or festivals. In other words, it meant social and economic ruination.

In the following case we shall look at the process of ostracism and glimpse the tensions that crisscrossed village life. This case is unusual and of special interest because the victim initiated a suit with the bakufu

[60] Igeta, Ho^[*] o miru , 95.

[61] Akutsu Muneji, "Mura gitei ni tsuite no ichi kosatsu^[*] : toku ni seisai sadame no shojirei," Gunma-kenshi kenkyu^[*] 25 (1986): 99.

Plate 4.
Rethatching a Roof, Mera Village, Minami-Izu, Shizuoka Prefecture,
1964. Community assistance was needed for the work but was denied when the
household was ostracized. Photograph by Haga Hideo, courtesy of the Haga
Library, Tokyo.

authorities and the case was settled in court.^[62] This incident took place in Sasaemon village in Musashi province, a medium-sized village of 1,000 koku with some seventy households (now part of the town of Sugito in the eastern part of Saitama prefecture), located along the highway to Nikko^[*] in a large bakufu territory of over 110,000 koku, which an intendant administered from Edo. The incident started at the end of 1827/2 and was resolved with surprising speed—in just two months' time—at the intendant's office in Edo.

The plaintiff was one Chojiro^[*] , who because of ill health was allowed to be represented by his son Kichitaro^[*] . There were nineteen defendants, including the headman, kumi heads, and titled and nontitled peasants. Chojiro^[*] was probably a well-established peasant; he even had a branch house, which was headed by Takejiro^[*] , a kumi head in another village. Chojiro^[*] belonged to the Terabori kumi but was closely related both

[62] Fuse Yaheiji, "Shiryo^[*] : Mura hachibu no sosho^[*] ," Nihon hogaku^[*] 23, no. 3 (1957): 96- 109.

geographically and socially to two other kumi. The defendants were spread over Chojiro's^[*] own kumi and a fourth one, the Tosho kumi, a sign that the community was probably divided.

At noon on 1827/2/23 three village members—Kyujiro^[*] , Shigeshichi, and Seijiro^[*] —visited Chojiro^[*] at his home and insisted that he immediately repay them loans totaling more than five ryo^[*] . Kyujiro^[*] and Shigeshichi lived in Chojiro's^[*] kumi, while Seijiro^[*] lived in the Tosho kumi. Kyujiro^[*] was "homeless" (mushuku) or not registered anywhere. He had been punished with medium banishment for some crime, which meant that his home and land had been confiscated and that he was not allowed to travel to or reside in any of a number of provinces, including the one where Sasaemon village was located. He was an illegal resident, an offense punishable by maximum banishment.^[63] He lived with and worked for Shigeshichi's father. Seijiro^[*] , who was registered in a village of another district, was married to Sen, daughter of the Tosho kumi's head. He and his wife had gone to live with his in-laws after causing some trouble with his own parents in his native village.

When he was confronted by the trio, Chojiro^[*] expressed great surprise and did not recall anything about the loans. A quarrel ensued, and the three alleged creditors decided to help themselves to some bales of rice and other things. A fight broke out, and they started destroying tools and farming implements. One of Chojiro's^[*] sons ran off to the branch house to alert Takejiro^[*] . Soon after Takejiro^[*] arrived on the scene, about a dozen peasants from Chojiro's^[*] kumi appeared, led by the kumi head. Now negotiations started. Chojiro^[*] was ready to pay off two of the three claimants, leaving the "homeless" out of the bargain. The headman, however, was adamant that Kyujiro^[*] be part of the settlement negotiated by the whole gang of villagers. Thus Chojiro^[*] was forced to pay over three ryo^[*] , rather than the claimed full debt of five ryo^[*] , a debt he never acknowledged. It was Takejiro^[*] , from the branch house, who put up the money.

That was not the end, though. Two days later a gang of twelve young men from Chojiro's^[*] kumi appeared at his doorway and shouted that he had been ostracized. When Chojiro^[*] asked why, they did not

[63] Light banishment was accompanied by confiscation of land; medium banishment by confiscation of land and homestead; maximum banishment by confiscation of land, homestead, and household effects (see Tsukada Takashi, "Kinsei no keibatsu," NNS 5:97).

answer, but turned and left, hurling insults at him as they went out. Then the Tosho kumi head, Seijiro's^[*] father-in-law, and three other members of that kumi came, and they also declared him ostracized. Chojiro^[*] , now outlawed by two of the four village kumi, including his own, looked for mediation to the headman, one of whose main tasks was to settle intramural disputes before they became lawsuits. Once again, the headman stubbornly refused to intervene, which left Chojiro^[*] only one recourse, namely, to lodge a suit with the intendant, even though his chances of receiving any response other than an order to settle the matter internally were slim.

The suit was drawn up according to the required format and presented a clever argument, which is why Fuse Yaheiji, the scholar who discovered it, thinks that Chojiro^[*] may have relied on the legal expertise of a suit inn (kujiyado ) in Edo. The suit document acknowledged that matters such as these were usually settled out of court in order to avoid lawsuits but stated that the present issue was not a frivolous one, because the intendant's immediate interests were at stake. The main argument was that ostracism would prevent Chojiro^[*] from producing tribute or from performing horse corvée on the Nikko^[*] road (which was of particular importance to the bakufu, since it led to Ieyasu's shrine). The result was a quick summons for the defendants to appear by 10:00 A.M. on 3/28 at the intendant's office in Edo. They were to bring a written reply to the accusations (which would be read to the plaintiff) for a confrontation with the plaintiff; otherwise they would be found guilty and fined accordingly.

From the settlement document drafted a month later, we can reconstruct what happened at the hearing. First of all, the illegal "mura lien," Kyujiro^[*] , was not included. There were a total of sixteen defendants with an unrelated village headman as their spokesman. Another village headman functioned as mediator between the defendants and the sole plaintiff, Chojiro's^[*] son Kichitaro^[*] . Kichitaro^[*] maintained that the money dispute and the ostracism were related. The defendants not only denied such a link but also denied that any declaration of ostracism had ever taken place! Typically, the mediator forced both parties to acknowledge that they each were in the wrong. The mediator considered the money matter to have been resolved before the trial, since the debt had already been paid off, although not to the complete satisfaction of the three claimants. Therefore, the plaintiff withdrew his accusation of a linkage. The defendants admitted to the declarations of ostracism and agreed to

write an apology and reinstate the plaintiff as a fully privileged community member. As was customary at such settlements, both parties agreed that the suit had been settled and that no new suits would follow.

The affair had split the village into two camps, illustrating, perhaps, Oide's^[*] thesis that while there were many instances of intravillage settlements made by extravillage authorities in the early period, toward the end of the Tokugawa period village divisions often ran so deep that recourse to outside authority became increasingly necessary.^[64] That village ostracism was open to abuse is obvious, but it was not until the year after the case just discussed that the bakufu began to regulate it, forbidding young people to initiate it.^[65] An indication, perhaps, of increased village strife, other cases must have drawn the bakufu's attention at the time. Ostracism, like banishment, was a solution that created more problems, producing bankrupt peasants, "homeless" types, and vagrants, which had been a serious concern of the authorities since the eighteenth century.

As far as the details of the above case are concerned, there are obscure areas that raise unanswerable questions. Chojiro^[*] denied liability, and yet his branch house was willing to pay off the alleged debt. We do not know the reason for this turnabout or the nature of the pressure Chojiro^[*] put on Takejiro^[*] to forward the money. There are also overtones of gang behavior and extortion, perhaps fueled by the marginal members of the village, who seem to have received protection. Yet it is also unlikely that the three so-called creditors would have wholly fabricated their claims. They and their young supporters may have created an atmosphere of opportunity for Chojiro's^[*] enemies within the village to settle old scores; the headman does not appear to figure among his friends.

Indeed, the headman deliberately allowed things to escalate, first by refusing to allow the illegal resident Kyujiro^[*] to be excluded from the settlement negotiated at Chojiro's^[*] doorstep and then by letting the ostracism stand. He did this even though he apparently lacked the support of half the village and he might get into trouble during the course

[64] See, e.g., Yamamoto Yukitoshi, "Kinsei shoki no ronsho to saikyo: Aizu-han o chushin^[*] ni," Kinsei no shihai taisei to shakai kozo^[*] , ed. Kitajima Masamoto (Yoshikawa kobunkan^[*] , 1983), 79-127.

[65] Fuse, "Murahachibu," 107-9.

of the interrogations if the matter of Kyujiro's^[*] status were to surface. He may have been responsible for the fact that no mention was made regarding Kyujiro^[*] that might alert the intendant, which makes one wonder what he held over Chojiro^[*] that kept the latter from playing that card: could it have been the threat to force payment of the remaining two ryo^[*] ?

Ostracism was different from banishment (tsuiho^[*] ), whereby one was expelled from the village; however, the two were similar in that ostracism was in effect intravillage banishment. Extravillage banishment could be triggered by a vote whereby someone was declared, without any material proof, to be the perpetrator of some crime. One case will illustrate this point.^[66]

In Iwaya village (Tanba province), a certain Shohyoe^[*] reported the theft of some of his belongings to the village officials, who decided to take a vote in the village on who the thief might be. The ballot pointed to Rokuzaemon, who lived across the street from the victim; Rokuzaemon, however, had absconded before he could be punished. He was sentenced in absentia to banishment of five ri (20 km) beyond the village, with the proviso that if he returned home and was reported, the father of the fugitive would not resist his whole family's banishment. Three years later the son returned secretly. When he was discovered and reported, a powerful village elder interceded with the village council on the man's behalf and succeeded in having the entire family's banishment suspended. The son, however, had to leave again.

After her son's second expulsion, the mother started slandering Shohyoe^[*] , who, although a victim of a theft, had been the source of the family's suffering for a crime that had not even been proven. Again the family was reported to the village officials; an "investigation" was launched, and it was decided that the woman had become deranged and was thus not accountable for what she had been saying. A year and a half later (1717/5), however, Shohyoe^[*] and his wife, finding life unbearable, moved to the other part of the village, which since 1664 had been divided between two jurisdictions. This example introduces another form of village justice, one based on the results of the ballot box.

[66] Taoka Koitsu^[*] , "Murahachibu to tsuiho^[*] ni tsuite," Chihoshi^[*] kenkyu^[*] 12 (1954): 4-6.

Fighting Crime by Popular Vote (Irefuda)

Tokugawa villages, so the generalization goes, were ruled by consensus, not by the democratic principle of majority rule. In his study of Japanese law, published in 1991, Carl Steenstrup is quite categorical about what he calls "the Japanese custom" in this regard: "Decision by majority was only known among monks in monasteries. It is an Indo-European custom, the basis of 'democracy'; and in Japan only became temple practice, because of the import of the monks' rules (vinaya ) from India. The Japanese custom is to discuss, until agreement is reached. And if no agreement, no decision."^[67] Kodama Kota^[*] , however, who wrote the entry "irefuda" for the first volume of the Kokushi daijiten (1979), mentions that election of certain officers by vote was practiced in various sectors of society: for certain positions at the imperial court, in Kato^[*] Kiyomasa's domain (1562-1611), in the Pure Land sect, and often for the election of village officials but also for the allocation of newly developed paddy, the assignment of village corvée in connection with the alternate attendance system or public works, and the setting of prices for goods.^[68]

Consensus in Tokugawa villages was not a universal, communal consensus. Many historians of peasant societies have romanticized it by taking at face value a decision making that presents itself as consensual agreement. Others, pointing to its representational function, understand consensus to be a ploy to consolidate elite power by making dissension within that elite seemingly less real (because not publicly voiced).^[69]

[67] Carl Steenstrup, A History of Law in Japan until 1868 (Leiden: E.J. Brill, 1991), 132; the emphasis is in the original, and Steenstrup cites no sources.

[68] KDJ 1:828. Anne Walthall mentions an occasion in a village when six women signed ballots used for voting upon village officials ("The Life Cycle of Farm Women in Tokugawa Japan," in Recreating Japanese Women , 1600-1945, ed. Gall Lee Bernstein [Berkeley: University of California Press, 1991], 68-69).

[69] James Scott's Moral Economy of the Peasant (New Haven: Yale University Press, 1976) is representative of this romantic view of village politics in general, which Irokawa Daiichi shares in regard to the Tokugawa peasantry (see his "Survival Struggle of the Japanese Community," Authority and the Individual in Japan: Citizen Protest in Historical Perspective , ed. Victor Koschmann [Tokyo: University of Tokyo Press, 1978], 257-58). Samuel Pop. kin, in The Rational Peasant (Berkeley: University of California Press, 1979), is specifically skeptical of "consensus decision making" (58-59). Carol Gluck, who emphasizes the practical local exploitation of ideology in her Japan's Modern Myths: Ideology m the Late Meiji Period (Princeton: Princeton University Press, 1985), shares Popkin's perspective in this respect but winds up refracting ideology through the play of very localized interests to the point that its specific power evaporates; yet trees can have a forest effect.

Whatever the interpretation of "consensual" decision making, one important area of life was decided on by vote in many villages, the fight against crime. Upon the recurrence of some crime such as arson or theft, a vote could be taken on the identity of the putative offender. The person who received the majority of votes (together with his kin and neighborhood presumably) would then be incriminated, as would anyone who did not participate in the vote.^[70] A number of village codes refer to the procedure as irefuda (also read nyusatsu^[*] ), or "putting a tag [ballot] in [a box]."^[71] Recently Ochiai Nobutaka has looked into this practice in northeastern Japan more systematically.^[72]

Villages were not allowed to punish crimes of arson and theft, but they were empowered to search for the criminals and apprehend them. With regard to arson, Ochiai reports the following case from Higashi-Kami-Isobe village (Kozuke^[*] province, in present-day Gunma prefecture). After several instances of arson over the span of a year, the following decision was made at the end of 1777 by six headmen of the fief, six kumi heads, and nine peasant representatives. A vote would be taken concerning the possible perpetrator and the "winner" would be thrown in jail; his daily ration of five go^[*] (0.9 liter) of rice was to be provided at village expense. If the fires continued, however, a second vote was to be taken and the new "winner" jailed. If the real arsonist were caught, he was to be handed over to the authorities, and the suspect already in custody would be freed by the decision of the village officials.

A certain hapless Seigoro^[*] was thus voted into jail, though not without the protest of his family and kin. One of the six headmen consulted with his colleagues and the lord of the fief and then filed a petition with the fief's commissioner of finance for an investigation into the damage suffered by the village, since this had hindered the performance of their highway portage corvée. A number of officials from other villages and

[70] For a case in Imabori that probably dates from 1639, see Tonomura, Community and Commerce , 206 (no. 290).

[71] Maeda, Nihon kinsei sonpo^[*] , 45-46.

[72] Ochiai Nobutaka, "Kinsei sonraku ni okeru kaji, nusumi no kendanken to shinpan no kino^[*] ," Rekishi hyoron^[*] , no. 442 (1987): 63-84.

Buddhist priests were involved as go-betweens; the case went to Edo and was settled out of court a year later in 1778/3. Nevertheless, the lord's authority upheld the decision already made by the village.

Crimes like arson and theft, especially when they recurred, in small lineage-based communities might easily lead to feuds between groups of families. To prevent such intravillage vendettas, it was foremost necessary to remove any possible justification for retaliation against putative criminals. This logic may explain the recourse to balloting, which provided at least the semblance of a restoration of order, an effect that may also have been obtained by the mere talk of resorting to a ballot, or by postponing the counting of ballots. Moreover, the victim of the ballot was most likely to be someone with few allies in the village, who would thus divert and diffuse more serious interlineage tensions.

While in principle arson and theft had to be reported and the suspect punished by the overlords, and villages certainly in principle had no power to impose the death penalty, unlike some corporate villages in pre-Tokugawa times, historians are finding more and more exceptions. As already mentioned, Mizumoto reported the only cases he knew: some villages that had the death penalty in their codes for a few decades in the late eighteenth century. Ochiai reports several codes stipulating the stoning of arsonists, followed by the burning of the arsonist's house and the expulsion of his or her family or, if the arsonist fled, the stoning to death of a family member.^[73]

The village of Higashi-Kami-Isobe also had to deal with thieves. In 1786, a group of 132 peasants in Higashi-Kami-Isobe asked its six village headmen and seven kumi heads to consider allowing searches of homes for stolen goods. This option was weighed but postponed until a new theft took place, when a request for a search would be submitted to the village officials. If the culprit were found, he would be fined or put to death; if he were not caught, a vote would be taken and the highest vote getter fined. Here again we have the assumption of the right to impose the death penalty. This clause also appears in a village code of 1723 in Mino province. Following the theft of rice a half-year later, a house search was approved by the village officials; the suspected thief was caught and fined 15 kanmon , but he was not reported to the authorities. Such searches could be made by the victim himself, the vil-

[73] Ibid., 67.

lage officials, or the whole village and were sometimes conducted over several villages, depending on the local custom or the nature of the case.

As mentioned by Kodama, voting was practiced also for the election of village officials. In such cases, however, ballots were signed! It is not difficult to imagine what this meant in terms of village power alliances, but sodanfuda^[*] ("consultation balloting") or collusion was forbidden. The same prohibition held for crime voting, although it seems that in that case the ballots were not signed; scratching the ballot was sufficient according to some village regulations. Sometimes swearing oaths before the gods and drinking holy water (a practice also followed at the beginning of ikki, or uprisings) were required prior to balloting, the peasants swearing that they would not be swayed by "favoritism or prejudice." The setting at a Shinto shrine, the taking of an oath, and drinking of holy water were by no means common, but point to a religious origin. And indeed, anonymous voting has ancient roots and was widely practiced in antiquity and medieval Japan, as the medieval historian Seta Katsuya has demonstrated.^[74]

Rakushogisho^[*] ("dropped written oaths [before the gods]"), as they were then called, were also used to anonymously identify a criminal. Some of these "oracles" were not votes but single anonymous accusations dropped in front of shrines. Since these were viewed as signs from the gods having no link to the profane world, if one was picked up, the finder was obliged to implement it.

Anonymous accusations were frequently posted on walls and were a means to openly denounce corruption at temples or to reveal plots. Nevertheless, posted denunciations were outlawed in antiquity and also by the pre-Tokugawa bakufu authorities,^[75] who preferred to pursue criminals through their own courts, where, incidentally, they also relied on oracles to solve unclear cases. The Tokugawa village practice of irefuda (which Seta does not mention) undoubtedly has its origins in these rakushogisho^[*] . In Tokugawa times, however, the "election" of criminals (in contrast to that of officials) was not only initiated by the village but also ratified and even ordered by the overlords.

On 1696/12/27 three bales of tribute rice were stolen from the village storehouse in Fuse village, Shimosa^[*] province (Chiba prefecture). Two days later 131 peasants and the village headman and kumi leaders

[74] Seta Katsuya, "Shinpan to kendan," NNS 5:58-86, esp. 65 ff.

[75] Ibid., 59, 61-62.

decided to resort to a vote; the winner would be banished. Guards were stationed throughout the village to prevent collusion, and oaths were required. After the ballots were counted, two peasants were banished, and three others, who received only one or two votes, were condemned to house arrest. Two of the latter fled to a temple, the Buddhist priest interceded on their behalf, and their sentence was suspended. The fields of the two who were banished became village property, and their houses, horses, tools, firewood, and other belongings were distributed among the family members. All this for the theft of three bales of rice. But this was no ordinary rice: it was the lord's tribute rice. The results were reported to the lord, who may very well have put pressure on the village to find a culprit.

There were numerous variations on the ways penalties were calibrated to the ranked outcome of the ballot or the number of votes received. In descending order, those who received the highest number of votes might be fined five kanmon plus ambulatory exposure, and those who received the second and third highest number might be fined three and one kanmon, respectively. Or those with fewer than five votes might be declared not guilty, and so on. This system had the additional effect of putting on notice those community members whom "public opinion" judged to be of somewhat questionable character.

In the early period, punishments for thefts were very harsh, banishment without mutilation, which rendered a person a hinin, or registered beggar, being among the lightest. But even in 1711 there were villages where the criminal would be expelled after his ears and nose were first cut off, marking him forever, in a most visible way, as a criminal. It seems to have been the custom, at least in the early period and in some locales, not to physically mutilate female offenders but to strip them and parade them through the village, subjecting them to what one could call gaze mutilation.^[76] Of course another possibility was ostracism; or making convicted thieves wear red caps, or ring bells at weddings and funerals (very public occasions) until the next thief was caught (which could be weeks, months, or years), or treat the village to three sho^[*] (5.4 liters) of sake every year on a particular date; or even assigning them field guard duty until the next thief was arrested. These measures ingeniously mobilized time to protract indefinitely the effect of public exposure (yet another form of punishment, usually limited to three days).

[76] Tsukada Takashi, "Kinsei no keibatsu," 96.

Plate 5.
Exposure of a Thief. This form of village punishment usually lasted
three days. Stolen bamboo shoots lie next to culprit. Woodblock print, c. 1745,
from Miyatake Gaikotsu, Shikei ruisan , Miyatake Gaikotsu chosakushu^[*] , 4
(1985). Reprinted with permission from Kawade shobo^[*] shinsha.

If theft was a crime, so was not reporting it, perhaps according to the same logic that informed crime voting: it neutralized reasons for private intravillage vendettas by moving them into the public sphere. In some villages, if a theft came to light that had gone unreported, the victim received the same treatment as the thief: banishment. And many village codes specified rewards for reporting thieves to the village authorities, which leads one to believe that although nonreporting was a serious problem for the officials, it was looked upon positively by the common peasant. And there was often opposition to the practice of irefuda. Otherwise why would some village rules stipulate that those who argued against it be treated as if they were guilty of the crime itself?

That crime voting often only created new problems was well understood by the peasants, hence their maneuvering to postpone the vote and perhaps increase their efforts to find a criminal. To accommodate such concerns, some villages decided not to open the ballots after the first vote, but to resort to a second vote after a new occurrence and then combine the results of both ballots. It was often the village officials who favored the voting procedure and the common peasants who resisted it. The latter often saw in it a weapon officials wielded as a means of control over the ordinary peasants. After all, the voting occurred in the presence of the officials, who were immune to the result because the victim was never an official.^[77]

In 1769 in Tomikura village (Shinano) there was a rash of thefts, and the village officials conducted investigations in several neighboring villages. Then a rumor was started, most likely by these other villagers, that the thief was in Tomikura itself. Thus a decision was made by "all the village officials" and "all" the peasants to proceed with a vote, apprehend the largest vote getter as the thief, and confiscate his homestead and fields. In order to thwart possible opposition, it was also decided that if the designated criminal did not abide by the rules (one assumes by fleeing or suing), then the village officials would take their suit against the seventy-six peasants of the village for obstructing village justice to the shogunal authorities.

This was hardly the much-heralded self-determining practice of autonomous villages: the officials invoked the specter of a suit to enforce their will. And there are other instances of the village leadership's in-

[77] Ochiai, "Kaji, nusumi no kendanken," 79.

voking the mobilization of shogunal authority (including the possibility of torture) to confront the rest of the peasants with crime voting. While the village leadership allied itself thus with the overlords, the peasants often fled to temples for asylum or sought to stop suits brought against them by the leadership and the overlords.

Just as Oide^[*] saw the increasing convergence of village laws and lordly laws throughout the second half of the Tokugawa period, Ochiai has documented a similar trend in the practice of village justice. One example of this trend is yet another case from Higashi-Kami-Isobe village. In the aforementioned arson case of 1771 extramural authorities became involved mainly because of the protests leading to a suit by relatives of the jailed Seigoro^[*] . In the far less serious case of theft in 1786, the matter was resolved intramurally, and the voting was postponed as a last resort, the village exercising its right to conduct house searches instead. When the culprit was found in this instance, he was fined, but he was not reported to the authorities. In a new village regulation from 1838, however, the only solution set forth for theft was the most extreme one: if the village authorities heard rumors (fubun^[*] ) about thefts from fields, they would immediately proceed to a vote, the result would be reported to the bakufu, and the "guilty" would be banished from the village.

The reform of the village leagues instituted in the 1820s in the Kanto area strengthened further this convergence of village and lordly justice. In such village leagues, after the 1820s, voting no longer took place in a single village, but was conducted throughout the village league as a whole. Thus, when a theft occurred in one village, a vote would be taken in all the villages and the winner would be reported to the bakufu.^[78]

It seems that at this point the village had abandoned any claims for self-governance in the area of penal jurisdiction. Confronted with increased social problems, the village leadership increasingly functioned in reality, if not in principle, as an executive branch of the overlords. This may suggest an answer to a question Anne Walthall raised in her article on village leagues.^[79] Walthall represents the leadership of these village leagues as supporting "peasant interests," although some peasants must have been served better than others, since historians have

[78] Ibid., 81.

[79] Walthall, "Village Networks," 286.

stressed fractional divisions among the peasantry. She then raises the question why, unlike in earlier cases of village protests, no league leadership was ever punished by the bakufu. If the above practice in penal matters is any indication, the answer may well be that the bakufu had no reason to doubt that the village leadership was doing its bidding.

Another aspect of penal jurisdiction that should be mentioned is the categories of people who were not subject to village justice, even if they were residents. Registered blind people, registered beggars, and out-castes were status marginals who were not attached juridically to villages, districts, domains, or townships. They were subject to regional (e.g., the Kanto, with its center in Edo, or the Kinai around Kyoto) or national jurisdictions of their status organization. Intrastatus civil and criminal matters of these groups were handled by Danzaemon in Edo, for beggars and outcastes of most of eastern Japan, and by Kengyo^[*] in Kyoto, for all the registered blind.^[80]

Justuce by Ordeal

Pinning down a criminal by voting after taking an oath before the gods gave the outcome the character of a divine verdict—one whose numinous power suffered serious entropy later in the period, as we have seen. Genuine ordeals, however, were still used on a number of occa-

[80] Henderson, Conciliation , 1:91; Tsukada, "Kinsei no keibatsu," 102-4. Danzaemon and Kengyo^[*] , originally names of persons, became hereditary title names attached to the respective leadership positions. Although Kengyo^[*] meted out the death penalty as late as 1696, his powers seem to have gradually weakened in the second half of the Tokugawa period. In the Goshioki saikyo cho^[*] , a list of 974 cases of punishments of prisoners (divided into 231 categories) between 1657 and 1699, Tsukada Takashi has found two clear instances in which the Kengyo^[*] decided in favor of the death penalty (Tsukada, "Kinsei no keibatsu," 103-4). The first instance, in Edo in 1683, involved an accomplice in an affair another man was having with the wife of a blind man. The blind husband had killed the accomplice and wounded the adulterer. Although the law permitted a husband to kill his wife and her lover if he caught them in the act (Hiramatsu, Kinsei keiji soshoho^[*] , 581), the blind man was nevertheless entrusted to his zato^[*]nakama guild (the guild for the registered blind), perhaps because he had killed the accomplice and not the adulterer. The guild asked Kengyo^[*] in Kyoto to have him wrapped up in a mat (sumaki ) and drowned. He was handed over to Kengyo^[*] , who had him executed that way. (This punishment, absent from the bakufu's quite elaborate penal code, seems to have been used often by yakuza as a private death sentence [KDJ 8:141].) The second case, in 1696, concerned a blind arsonist from Echigo (Niigata) who was sentenced to be burned at the stake in Edo.

sions in the first half of the seventeenth century, precisely when overlords were trying to monopolize the exercise of violence, wresting away penal powers for serious crimes from local power holders, whose practice they declared a "private" and illegal justice. Since ordeals were still practiced well into the Tokugawa period, one might assume that they were local "illegal" affairs. Yamamoto Yukitoshi, however, has presented a number of incidents from Aizu domain that clearly show that this was not the case.^[81] The overlords often permitted trial by ordeal, sometimes ordered such trials, and even adjusted their own verdicts according to the results of subsequent ordeals. It should be noted that all of Yamamoto's cases concern conflicts between villages and that many of these intervillage disputes revolved around new borders drawn as a result of the murauke system. In some cases, common forage land was divided among five villages each belonging to a different overlord.

The first case concerns a dispute of 1619 between two villages, Tsunazawa and Matsuo, about the use of a mountain area commons. The conflict had escalated into an armed confrontation that resulted in one death. The domain took several depositions, made arraignments, and dispatched investigators, but the facts could not be established. This was in the middle of the winter. In midsummer, with tensions at a peak, the two villages were ordered to resort to a fire ordeal in the presence of a domain official and villagers from the area.

As it turned out, the lord, unable to determine the common border on the mountain, had arbitrarily decided on one. The villages, however, had refused to accept his decision, and it was they who had requested the ordeal, which took place at the Shinto shrine of a neighboring village. No one from Tsunazawa dared volunteer to hold the red-hot iron, so that it was up to the headman to step forward after making a short farewell speech, as if he did not expect to survive the ordeal, as the saying goes. His opponent was a burly fellow who had no qualms about volunteering. Both donned ceremonial dress, received the kumanogoohoin^[*] (a talismanic document from the Kumano shrine used for oaths), with which to grasp the iron, and approached the fire (see pl. 6). The domain official lifted the red-hot iron out of the fire (with tongs, one presumes) and handed it over to the contestants. The headman grabbed it three times and then put it aside. The burly representative of

[81] Yamamoto, "Kinsei shoki no ronsho," 107-21. The next several paragraphs of this section are based on ibid.

Plate 6.
Kumanogoohoin^[*] . A talisman dated 1538/10/27 from the Kumano
shrine, used for oaths. The image on the front (top ) represents five Sanskrit letters
formed by the shapes of seventy-five birds, messengers from the Kumano
gongen , centered around a pearl bearing the stamp of the Cattle King (goo^[*] ), a
reincarnation of the life-giving (ubusuna ) gods. The oath was written on the
back. From Miyaji Naokazu, Kumano sanzan no shiteki kenkyu^[*] , Miyaji Naokazu
ronshu^[*] , 3 (Soyosha^[*] , 1985). Reprinted with permission from Miyaji Harukuni,
Tokyo.

Matsuo, on the other hand, dropped it in the fire, having been burned by the talisman, which had instantly burst into flames. He lost, and what happened next explains the headman volunteer's initial reluctance and his swan song before submitting to the ordeal: the loser's hands and feet were cut off, and he was buried, his tomb serving to mark the new border between the two villages. These are the details Yamamoto found in the Aizu gazetteer account written two hundred years after the event, in the early nineteenth century. The colorful details aside, the lord, his own solution having been rejected, granted the petition for an ordeal.

The most recent ordeal discovered by Yamamoto dates from 1653 and took place in Echigo (Niigata) to settle a mountain-use dispute between two groups of villages, numbering four and three villages, respectively. A suit had been filed, but the dispute continued. A couple of months after the suit was filed, the two village group headmen decided to seek the advice of the gods. An agreement was drafted on the back of a kumanogoohoin^[*] and was signed with the names and blood seals of the ten representatives who would take the test. The talisman was burned, its ashes mixed with dirt from each border claimed by the two parties, and the mixture then swallowed by the ten representatives. The agreement was that whoever got sick after seven days and seven nights would lose the match. This was probably unlikely to happen, hence the Solomonic proviso that if no one became sick the new border would be midway between those claimed by the two parties. During a tense week of observation the contestants showed no symptoms. The new border was fixed as agreed upon and ratified by the domain authorities. Yet thirteen days later the results of the ordeal were reconfigured by the two village group headmen, who declared one side the loser. The shogunal authorities reversed the original decision, and a new map was drawn up according to the final results of the ordeal.

Settling otherwise unresolvable village disputes by ordeal was quite common prior to the Tokugawa period. Yet enthusiasm for decisions by ordeal may have been on the wane. In a village in Omi^[*] , for instance, rules drawn up in 1606 and 1607 rewarding volunteers for the red-hot iron ordeal handsomely with a land grant of twenty koku, tax-exempt in perpetuity, point to the need of incentives to recruit volunteers. Moreover, given the formidable presence of overlord authority after 1600, we see how gradually this way of local dispute resolution lost ground. Nevertheless, to perceive ordeals as irrational survivals from

medieval times that were fundamentally incompatible with Tokugawa practice, would be too simple.

Admittedly, the outcome of an ordeal has more in common with a court verdict—both produce a winner and loser—than with the prevailing Tokugawa solution of punishing both parties in violent quarrels (kenka ryoseibai^[*] ), a form of martial justice, or with its peacetime equivalent of conciliation, in which both sides usually shared the blame. In this sense, ordeals are of the same order as medieval court practice. On the other hand, ordeals also signal abdication of worldly authorities in juridical decisions about right or wrong; they restore order by diffusing tensions through the mechanism of scapegoating. In the above two examples, the bakufu each time reversed its decision; the merits of the cases did not matter as long as peace was restored in one way or another, a stance typically taken by the courts throughout the Tokugawa period. At the village level also, a similar practical logic prevailed when balloting produced a scapegoat.

Loopholes and Legal Maneuvering

Thefts had to be reported to village authorities, but the very codification of this expectation and the penalties for failing to follow it point to peasant reluctance. Village authorities in turn, had to report thefts to the overlords, as virtually all village laws required, but often this did not happen. The death penalty was supposed to be a prerogative of overlords, yet historians continue to discover village codes, and not only from the beginning of the period, that recorded it as a dreaded possibility.

Laws are not always observed, and it is not uncommon to judge the significance of laws by how often they are used. It is argued that since Tokugawa edicts were issued again and again, they were ineffective and thus insignificant. Other legal historians who have studied the codes, however, hold the opposite view, assuming that the norms of the codes reflect practice. Rather than refute these views by argument, it is perhaps best to counter them by looking at actual practice. Thus the question is not whether villagers circumvented some laws—they did, hence the need to reiterate them—but how. Evidence of such circumvention will provide some access to the level of villagers' law consciousness. At least it will reveal some points of resistance to lordly law,

which is relevant in relation to the question of village "autonomy." We shall proceed again by looking at some cases.

The murauke system of subcontracting the village for purposes of tribute and internal governance created a setting in which under certain circumstances the village, which was set up to do the overlord's bidding, could instead rally around its own interests. When villages did so openly, the issue was likely to receive a hearing from the overlords. When something else was envisioned, however, secrecy was important. Such cases most likely left few documentary trails. The first traceable examples of such secrecy are from corporate villages that from pre-Tokugawa times had a high degree of independent governance.

In 1591, while the land survey was in progress in Imabori (Omi^[*] province), the village members signed a double pledge: (1) that they would pay the full tribute, and if any household absconded, the five neighboring households would shoulder the arrears; and (2) that if their tax petition was not accepted, "we the villagers, will flee and we are all of one mind to do so; if anyone acts against these decisions, we will dissociate from him or her as pledged."^[82] Another document, from Nakano corporate village in the same area, dated 1638, is a combination of a pledge and a village rule, recording a measure taken by the villagers against a possible reassessment adding new fields to the cadasters. It stipulates that none of the 107 signatories would reveal hidden paddies, not even to their wives or children.^[83]

By Tokugawa times, villages had to officially acknowledge in writing that they had received overlord directives, a requirement that seems not to have existed in medieval times.^[84] How could this acknowledgment and practical consequence be circumvented, since ukeru ("to receive") implied that ignorance of the law was no valid excuse?

The ninth stipulation of an overlord directive, dated 1658/10/9, to

[82] Tonomura, Community and Commerce , 167, 205. For a similar measure, taken in the context of a tax appeal, see ibid., 203 (no. 468); and Ishio Yoshihisa, Nihon kinseiho^[*]no kenkyu^[*] (Bokutakusha, 1975), 12.

[83] Tonomura, Community and Commerce , 180; Yokota, "Kinsei sonraku," 144, 155. Henderson reports a case from 1832 in which six villages in Mino province jointly agreed to protect their grassland against conversion into fields, resisting all such applications no matter where the proposed reclamation might be located (Henderson, Village "Contracts ," 179-82).

[84] Yokota, "Kinsei sonraku," 155; the example that follows is from 155-57. See also Tonomura, Community and Commerce , 185-86.

the same Nakano corporate village ordered the abrogation of village credit unions (tanomoshiko^[*] ). The directive was acknowledged as received by the village kumi's signatures as well as by a separate letter of receipt by the headman, dated 11/10. A corroborating letter of receipt by the kumi, dated 11/16, was addressed to the headman. However, two weeks later, on 12/2, the kumi addressed another document to the headman in which they stated that since compliance with the overlord's order would cause financial hardship (even for paying tribute), they had decided to continue the operation of the credit union secretly. If, however, this leaked out and the village leaders were summoned by the lord, the whole village would go to the lord, explain that it was not their fault, and apologize.

The reason the lord gave for his abolition decree was that there was too much eating and drinking at credit union meetings. In the document of the kumi, vowing the secret continual, on of the credit union, it was stipulated that henceforward self-restraint would be exercised in this matter. Thus, they selectively decided to interpret the law's intent by complying with the lord's> reason and otherwise disregarding the order. It is interesting not only that the kumi resisted the lord's> order but that the kumi did not think that it would be possible to negotiate openly with the lord over a point that on the surface seems quite reasonable. The sense must have been strong that one could not force authority to acknowledge mistakes. For this reason, the shogunal courts never issued a verdict of innocence in criminal cases. So that this outcome would be assured, before the court hearing proper a "preliminary investigation" with or without torture produced a written admission of guilt from the suspect.^[85]

In 1659/10 the prohibition was reissued, but that was the last time the overlord legislated on the matter; he seems to have tacitly accepted the credit union's existence after that. Yokota, the scholar who researched this case, based this conclusion on the fact that in 1677, when

[85] In contemporary Japan, with only one lawyer per 9,300 people, in contrast to one lawyer per 360 people in the United States, police investigations continue to play a far greater role in the process of convicting suspects than prosecution lawyers do. Prosecution proceeds only after the police have gathered enough evidence to ensure a conviction, so that the conviction rate is more than 98 percent (Leslie Helm, "A Long Haul for Japan's Plaintiffs," Los Angeles Times , January 14, 1991, A12; Teresa Watanabe, "Japan Casts Envious Look at U.S. Crisis Management," ibid., May 7, 1995, A10-A11).

a dispute between two groups of villages from two different districts broke out concerning credit union funds, one party considered bringing a suit before the authorities.

Vicarious responsibility was a cornerstone of overlord law. That this caused resentment, jealousies, and complicated human relations at the village level is not difficult to imagine. It is surprising, however, to find a village code that flatly states that everyone will be held responsible for his own portion of the tribute and that no help will be forthcoming from the rest of the village. This is what one historian found in the 1759 edition of the code of Ichijoji^[*] village (Yamashiro province).^[86] The relatives, the kumi, and the village were supposed to take over fields of households of orphaned minors, as clearly spelled out in standard village laws (see appendix 3, art. 40). In Mochizuki (Kita-Saku, Shinano) the intendant got involved in such a case in the late 1680s.^[87] A certain Sotaro^[*] died, leaving a son too young to work the fields, but relatives were reluctant to step in. The village officials, unable to find a solution, queried the intendant, who ordered the obvious: the son should be raised by some relative, and the fields taken care of collectively by all the relatives. But that was precisely the problem. Upon receiving the order, the relatives got together to decide whether to comply. Two of the half-dozen relatives refused to affix their seal to the order and were summoned to the intendant's office for a good scolding. Even so, one of the two recalcitrants held out and refused to affix his seal. There are no further data to allow one to pinpoint the problem or know what happened to the one relative who held out. He may have had good reasons for refusing to be part of the solution, and the intendant may have felt that five relatives out of six were sufficient to take care of the fields. It is interesting, however, to find peasants pondering whether to follow an intendant's order, some of them categorically refusing to comply.

This sort of resistance is of a different order than the uprisings (ikki) on which American historians have so often focused; nevertheless, it illustrates the disregard with which peasants could treat lordly authority. In large-scale confrontations, according to admittedly romanticized

[86] Katada Seiji, "Kinsei sonpo^[*] no henshitsu ni tsuite: Yamashiro-kuni Atagogun Ichijoji^[*] mura no baai," Chihoshi^[*]kenkyu^[*] , no. 34 (1958): 33.

[87] Ozaki Yukiya, "Shinshu^[*] no nomin^[*] to buraku," Mochizuki no burakushi , no. 4 (1978): 41-42.

and heroicized accounts, the peasants spoke their mind quite bluntly.^[88] Such uprisings were condemned by the rulers as illegal conspiracies (toto^[*] ). When, during the ikki of 1754 in Kurume domain, the daimyo's officials tried to tell the peasants that the prohibition of "conspiracies" was the foremost law of the realm (tenka dai ichi no gohatto ), the peasants who heard this, the record tells us, "burst out laughing, asked why the officials appeared today, beaming with authority and full of contempt for the people, reading to us orders high up from horseback, to us who are waiting here holding authority in high esteem and observing the laws. We know that the prohibition of conspiracies is the foremost law of the land. But the lord indulges in debauchery...."^[89]

Banishment was a punishment that sometimes needed to be concealed. Banishment itself was not completely forbidden, but its arbitrary application was (for a village law, see appendix 3, art. 26). However, since banishment resulted in the disappearance of a name from the population register, the effect of its application was hard to hide. From headmen's notes or diaries we learn how this could be done.^[90]

In 1757 a village guard caught a woman stealing rice from a field. The village decided to follow precedent and sent her into exile. According to the principle of vicarious responsibility (enza), her husband deserved the same punishment, but since he was absent (being in service elsewhere) he was forgiven. The house, however, was put up as collateral for the yearly tribute, and its effects were given to the guard. The woman's banishment was handled as follows. She was kept on the population rosters until she had settled somewhere else. Then she was handed a certificate of leave, and her brothers had to sign a sworn agreement never to allow her in the village again. Thus, on record it appeared as if she had moved. Obviously, such tricks worked only as

[88] Herbert Bix (Peasant Protest ) cites sarcastic statements peasants allegedly addressed to samurai, such as the following: "Since they [inspection officials] are so skilled in local affairs, we wish to learn from them how to grow rice" (79); "Since you officials think that 'peasants' are particularly useful beings, we wanted m let the samurai do the hard work of peasants and see for themselves how profitable we are" (94); "We don't need your kind to look after US" (179).

[89] Nanba, "Hyakusho^[*] ikki no hoishiki^[*] ," 76. This is an important article on the people's consciousness of the law related to the ikki , which is beyond the scope of the present study.

[90] The following examples are from Mizumoto, "Kogi^[*] no saiban," 306-8.

long as nobody in the village reported them—which would have been done at the risk of all sorts of informal reprisals.

A diary from 1826 reveals the following strategy to hide a banishment by making it appear as if the person in question had absconded. A culprit had been caught by guards from a different village, and his village council had decided to kick him out but instead reported him as missing. As was usual in such a case, the domain ordered a search for the fugitive, which the village feigned to conduct, and then reported the culprit as still missing. After a second search (usually lasting thirty days) was conducted, he was again declared missing and was then officially declared nagatazune (literally, "long search"), that is, homeless (mushuku, or nonregistered). As it turned out, the man returned to the village five years later gravely ill, died soon thereafter, and was quietly buried at the local temple.

As we saw in Ken's case in chapter 1, local officials could collude with district magistrates or intendants, who tried as far as possible to avoid becoming involved in dispensing justice. If "private consultation" (naibun nite ) among themselves led to the conclusion that "village justice" might reestablish order, then both parties would benefit from adopting it even if the solution might bend official policy. Why would overlords so readily relinquish their authority? What was the logic of such practice?

Law as Tatemae

Mizumoto has found a document from 1751 that may shed light on these questions.^[91] It is a memo (kojo^[*]no oboe ) from a village group headman to an intendant's assistant from Takada domain (Echigo province, Niigata prefecture). It seems to be an exchange of opinion between two local intermediary officials from the village and the district intendant office.

On 1751/7/17 a peasant had been seen returning from the fields with stolen rice. An investigation had followed, and a confession that included four other thefts as well had made the situation serious enough to report to the village group headman. Thus it had become a matter for the domain's court (gosaho^[*] ). The village group headman, however, had his own ideas about how to proceed. Thinking it might be better to get

[91] Ibid., 309-10.

rid of this habitual troublemaker altogether, he wanted to change the village headman's report into a request for banishment. Hence, the village group headman's request for the private opinion (gonai-i ) of the intendant's assistant on this course of action.

The document implies that although in principle only the court should deal with thefts, the village group headman suggested a solution that would spare the court the trouble of dealing with the particulars of the case, leaving the actual legal process up to the village. Mizumoto finds further support for this interpretation by quoting Hiramatsu Yoshiro^[*] , the great authority on the Tokugawa penal system:

Private and public law were mixed together in the following sense. The principle governing punishment and pleading by defendants in civil lawsuits, which not only aims at solving the disputes between litigants but at the same time is satisfied with establishing "shogunal authority" (goiko^[*] ), permeated not only criminal trials but also the execution of the penalty. And this is sometimes the case also for minor misdemeanors and especially for criminal cases involving private interests.^[92]

Officially (tatemae), the shogun and daimyo proclaimed a monopoly on juridical matters, but their primary concern certainly was not social justice nor even the maintenance of overall public order as such. They were preoccupied foremost with safeguarding their authority. Therefore, they silently tolerated "private justice," as long as it was not publicized and did not openly challenge that authority. This two-sided stance affected the status of village codes and village justice.

The Lawless Village

According to John Haley, the Tokugawa village was "an institutional structure that in allowing evasion of official legal controls also promoted external deference and internal cohesion"; it had "the security of the administrative state along with the freedom of the outlaw,"^[93] The application of the outlaw metaphor to Tokugawa villages may at first

[92] The quote is from Hiramatsu, Kinsei keiji soshoho^[*] , 837.

[93] Haley, Authority without Power , 61. Haley further develops the thesis that the Tokugawa village pattern of justice and the peculiar relationship between communities, on the one hand, and the authorities and the law, on the other, discussed as "law as tatemae ," still govern life in modern Japan (187-190). Mizumoto also discusses the tatemae aspect of Tokugawa law in his "Kogi^[*] no saiban," 308-12.

seem problematic. Haley uses it only to convey a strong sense of the weakness of centrally controlled mechanisms of law enforcement in the village. The metaphor is appropriate in another way as well, however. Although all villages had laws and codes, village life as it is revealed by the various cases studied often appears to have taken place in an outlaw world, or at least in a world in which the world of Kurosawa's Yojimbo^[*] was a possibility.

The general propensity on the part of both extra- and intravillage authorities to keep things within the village, and the structural setup that made this possible, is perhaps the main reason for the impression of the "lawless village." This mutual avoidance had two results. On the one hand, the semblance (tatemae) of internal harmony had to be maintained so that overlords would feel content to leave villages alone. On the other hand, this left the exercise of power unchecked. The gomyo^[*] in Hozu and similar groups elsewhere had a free hand in securing their lasting domination by putting themselves "outside the law" that they wrote for fellow villagers and imposed on them.

The main concern of local wielders of power was that conflicts might develop to the point of alarming the overlords. As a preventive gesture to keep the overlords out, the local power holders often deferentially submitted to the lords the codes they had written to demonstrate that they were "within the law" of the lord. In a prophylactic move to keep the villagers contained, the village authorities discouraged them from initiating lawsuits by painting those who did as troublemakers in village regulations (compare the negative tone regarding lawsuits in appendix 3, arts. 16 and 54, with the earlier, neutral stance in appendix 2, art. 19). Obviously, individuals seeking access to overlord authority did not use it only as the only means for contesting local powers through suits and petitions. Local authorities invoked the image of overlord intervention as a last resort, "borrowing" extramural power to avoid actually activating it, to keep (themselves) on top of things. Aside from actual collusion (in Ken's case), the local authorities sometimes threatened lawsuits or presented the specter of torture in the lord's court.

If one keeps in mind that villages were informal power fields where the competition was often between lineages, one may perhaps start to perceive in a new light some of the practices discussed in this chapter—ostracism, crime voting, and the measures taken against collusion in casting ballots. As Chojiro's^[*] lawsuit illustrates, ostracism was not always initiated by a "unanimous village," but often by intravillage

factions, to the point that the bakufu limited its use in the nineteenth century. In villagers' minds, solutions to unresolved crimes often tended to be structured along lines of splits in the community. Crime voting may have been a solution to prevent such situations from being used for settling old scores. The posting of guards throughout the village to prevent "consultation balloting" suggests that such a scenario is not far-fetched. Similarly, unreported crimes might lead to retaliations or vendettas against one's enemies as the putative perpetrators; hence the pressure to make the nonreporting of crimes a crime.

From this perspective, villages no longer resemble autonomous, harmonious, egalitarian communities. Rather, like social formations anywhere, they constitute spaces where groups of people, households, or lineages vie for positions hierarchized by class, status, and law using the weapons of class, status, and law.