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4 Village Autonomy
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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]


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


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-


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


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).


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-


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


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]

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