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But he too died in
696, and it thus fell out that the only surviving and legitimate
offspring of an Emperor who had actually reigned was Prince Kuzuno,
son of Kobun.

To his accession, however, there was this great objection that his
father, though wielding the sceptre for a few months, had borne arms
in the Jinshin disturbance against Temmu and Jito, and was held to
have forfeited his title by defeat and suicide. His assumption of the
sceptre would have created a most embarrassing situation, and his
enforced disqualification might have led to trouble. In this dilemma,
the Empress convened a State council, Prince Kuzuno also being
present, and submitted the question for their decision. But none
replied until Kuzuno himself, coming forward, declared that unless
the principle of primogeniture were strictly followed, endless
complications would be inevitable. This involved the sacrifice of his
own claim and the recognition of Karu, eldest son of the late
Kusakabe. The 14th of March, 696, when this patriotic declaration was
made, is memorable in Japanese history as the date when the principle
of primogeniture first received official approval. Six months
afterwards, the Empress abdicated in favour of Prince Karu, known in
history as forty-second sovereign, Mommu. She herself was honoured by
her successor with the title of Dajo-Tenno (Great Superior).

ENGRAVING: ONE OF THE ORNAMENTAL GATES USED IN JAPANESE GARDENS

ENGRAVING: SWORDS



CHAPTER XVI

THE DAIHO LAWS AND THE YORO LAWS

THE FORTY-SECOND SOVEREIGN, THE EMPEROR MOMMU (A.D. 697-707)

THE Emperor Mommu took for consort a daughter of Fuhito,
representative of the Fujiwara family and son of the great Kamatari.
She did not receive the title of Empress, that distinction having
been hitherto strictly confined to spouses chosen from a Kwobetsu
family, whereas the Fujiwara belonged to the Shimbetsu. But this
union proved the first step towards a practice which soon became
habitual and which produced a marked effect on the history of Japan,
the practice of supplying Imperial consorts from the Fujiwara family.

THE DAIHO LEGISLATION

On Mommu's accession the year-period took his name, that being then
the custom unless some special reason suggested a different epithet.
Such a reason was the discovery of gold in Tsushima in 701, and in
consequence the year-name was altered to Daiho (Great Treasure). It
is a period memorable for legislative activity. The reader is aware
that, during the reign of Tenchi, a body of statutes in twenty-two
volumes was compiled under the name of Omi Ritsu-ryo, or the "Code
and Penal Law of Omi," so called because the Court then resided at
Shiga in Omi. History further relates that these statutes were
revised by the Emperor Mommu, who commenced the task in 681 and that,
eleven years later, when the Empress Jito occupied the throne, this
revised code was promulgated.

But neither in its original nor in its revised form has it survived,
and the inference is that in practice it was found in need of a
second revision, which took place in the years 700 and 701 under
instructions from the Emperor Mommu, the revisers being a committee
of ten, headed by Fuhito of the Fujiwara family, and by Mahito (Duke)
Awada. There resulted eleven volumes of the Code (ryo) and six of the
Penal Law (ritsu), and these were at once promulgated, expert jurists
being despatched, at the same time, to various quarters to expound
the new legislation. Yet again, seventeen years later (718), by order
of the Empress Gensho, revision was carried out by another committee
headed by the same Fujiwara Fuhito, now prime minister, and the
amended volumes, ten of the Code and ten of the Law, were known
thenceforth as the "New Statutes," or the "Code and Law of the Yoro
Period." They were supplemented by a body of official rules (kyaku)
and operative regulations (shiki), the whole forming a very elaborate
assemblage of laws.

The nature and scope of the code will be sufficiently understood from
the titles of its various sections: (1) Official Titles; (2) Duties
of Officials; (3) Duties of Officials of the Empress' Household; (4)
Duties of Officials in the Household of the Heir Apparent; (5) Duties
of Officials in the Households of Officers of High Rank; (6) Services
to the Gods; (7) Buddhist Priests; (8) the Family; (9) the Land; (10)
Taxation; (11) Learning; (12) Official Ranks and Titles; (13) The
Descent of the Crown and Dignities of Imperial Persons; (14)
Meritorious Discharge of Official Duties; (15) Salaries; (16) Court
Guards; (17) Army and Frontier Defences; (18) Ceremonies; (19)
Official Costumes; (20) Public Works; (21) Mode of addressing Persons
of Rank; (22) Stores of Rice and other Grain; (23) Stables and
Fodder; (24) Duties of Medical Officers attached to the Court; (25)
Official Vacations; (26) Funerals and Mourning; (27) Watch and Ward
and Markets; (28) Arrest of Criminals; (29) Jails, and (30)
Miscellaneous, including Bailment, Finding of Lost Goods, etc.*

This "Code and the Penal Law" accompanying it went into full
operation from the Daiho era and remained in force thereafter,
subject to the revisions above indicated. There is no reason to doubt
that the highly artificial organization of society which such
statutes indicate, existed, in outline at all events, from the reign
of Kotoku, but its plainly legalized reality dates, so far as history
is concerned, from the Daiho era. As for the rules (kyaku) and
regulations (shiki), they were re-drafted: first, in the Konin era
(810-824) by a commission under the direction of the grand
councillor,* Fujiwara Fuyutsugu; next, in the Jokwan era (859-877) by
Fujiwara Ujimune and others, and finally in the Engi era (901-923) by
a committee with Fujiwara Tadahira for president. These three sets of
provisions were spoken of in subsequent ages as the "Rules and
Regulations of the Three Generations" (Sandai-kyaku-shiki). It will
be observed that just as this remarkable body of enactments owed its
inception in Japan to Kamatari, the great founder of the Fujiwara
family, so every subsequent revision was presided over by one of his
descendants. The thirty sections of the code comprise 949 articles,
which are all extant, but of the penal laws in twelve sections there
remain only 322 articles.

*Tarring, in the "Transactions of the Asiatic Society of Japan."

It may be broadly stated that the Daika reformation, which formed the
basis of this legislation, was a transition from the Japanese system
of heredity to the Chinese system of morality. The penal law (ritsu),
although its Chinese original has not survived for purposes of
comparison, was undoubtedly copied from the work of the Tang
legislators, the only modification being in degrees of punishment;
but the code, though it, too, was partially exotic in character,
evidently underwent sweeping alterations so as to bring it into
conformity with Japanese customs and traditions. Each of the
revisions recorded above must be assumed to have extended this
adaptation.

The basic principle of the Daiho code was that the people at large,
without regard to rank or pedigree, owed equal duty to the State;
that only those having special claims on public benevolence were
entitled to fixed exemptions, and that not noble birth but
intellectual capacity and attainments constituted a qualification for
office. Nevertheless Japanese legislators did not find it possible to
apply fully these excellent principles. Habits of a millennium's
growth could not be so lightly eradicated. Traces of the old obtrude
themselves plainly from between the lines of the new. Thus the "Law
of Descent" (Keishi-ryo), which formed the thirteenth section of the
code, was a special embodiment of Japanese social institutions,
having no parallel in the Tang statutes, and further, while declaring
erudition and intelligence to be the unique qualifications for
office, no adequate steps were taken to establish schools for
imparting the former or developing the latter. In short, the nobles
still retained a large part of their old power, and the senmin
(slave) class still continued to labour under various disabilities.

That several important provisions of the Land Code (Den-ryo) should
have fallen quickly into disuse will be easily comprehended when we
come presently to examine that system in detail, but for the neglect
of portions of the Military Code (Gumbo-ryo), of the Code of Official
Ranks and Titles, and of the Code relating to the Meritorious
Discharge of Official Duties, it is necessary to lay the
responsibility on the shoulders of the hereditary nobles, whose
influence out-weighed the force of laws. It may indeed be broadly
stated that the potency of the Daiho code varied in the direct ratio
of the centralization of administrative authority. Whenever feudalism
prevailed, the code lost its binding force. In the realm of criminal
law it is only consistent with the teaching of all experience to find
that mitigation of penalties was provided according to the rank of
the culprit. There were eight major crimes (hachi-gyaku), all in the
nature of offences against the State, the Court, and the family, and
the order of their gravity was: (1) high treason (against the State);
(2) high treason (against the Crown); (3) treason; (4) parricide,
fratricide, etc.; (5) offences against humanity; (6) lÚse majestÚ;
(7) unfilial conduct, and (8) crimes against society. But there were
also six mitigations (roku-gi), all enacted with the object of
lightening punishments according to the rank, official position, or
public services of an offender. As for slaves, being merely a part of
their proprietor's property like any other goods and chattels, the
law took no cognizance of them.

OFFICIAL ORGANIZATION

Under the Daiho code a more elaborate system of administrative
organization was effected than that conceived by the Daika reformers.
In the Central Government there were two boards, eight departments,
and one office, namely: (1). The Jingi-kwan, or Board of Religion
(Shinto). This stood at the head of all, in recognition of the divine
origin of the Imperial family.



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