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.