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A History of the Japanese People by F. Brinkley

Thus the Law of Descent Keishi ryo


*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) lese majeste; (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. A Japanese work (Nihon Kodaiho Shakugi) explains the fundamental tenet of the nation's creed thus: "If a State has its origin in military prowess, which is essentially human, then by human agencies also a State may be overthrown. To be secure against such vicissitudes a throne must be based upon something superior to man's potentialities. Divine authority alone fulfils that definition, and it is because the throne of Japan had a superhuman foundation that its existence is perennial. Therefore the Jingi-kwan stands above all others in the State." In another, book (Jingi-ryo) we find it stated: "All the deities* of heaven and earth are worshipped in the Jingi-kwan. On the day of the coronation the Nakatomi performs service to the deities of heaven and the Imibe makes offerings of three kinds of sacred articles."


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