Page:The Green Bag (1889–1914), Volume 04.pdf/436

 The Legal System of Old jfapan. were to be found, partly in statutes, partly in local custom, and partly in the precedents and practice of the courts. In the latter realm the development of these ideas by reasoning from analogy played as clear, if not as important a part as in Anglo-Saxon jurisprudence. It was, in Japan, the judges themselves who accomplished this develop ment, not, as, in some nations, an order of jurisconsults or of religious advisers. The precedents were not all in the shape of de cisions directly rendered in controversies. There were, first, the general precedents es tablished by the Supreme Tribunal (Hyojosho), in council assembled. The decision, however, usually took the shape of a vote upon a proposition submitted by a single judge, who was in doubt and had no prece dent to guide him, or wished to change an existing rule; for the chief members . were magistrates already exercising an im portant original jurisdiction of their own. Secondly, judges of equal rank but separate jurisdiction often consulted one another on knotty cases, and agreed thereafter to follow a certain rule mutually decided on. Thirdly, a daimyo from a distant fief (having inde pendent judicial powers) sometimes con sulted one of the chief judges of the Central Government, the Shogunate. Fourthly, the Supreme Tribunal often passed resolutions asking the approval of the Council of State (the controlling ministry who exercised the virtual power in the Shogun's name) for certain rules, deemed to be of special im portance, this approval usually following as a matter of course. Finally, there were sundry minor ways in which precedents were added, and legal ideas expanded. The Council of State sometimes consulted the Supreme Tribunal on a point of law; and, what is still more interesting, a merchant was frequently asked to advise the tribunal as to the bearing of a commercial custom. I have said that appeals were discouraged. But these consultations of one judge with another, or of the Supreme Tribunal with one of its members, practically took the

405

place which appeals occupy with us; for where any really doubtful question arose, a judge was ready enough to seek advice or put the responsibility of decision upon his superiors. On the whole, then, while it is sometimes difficult to define the exact line at which the system of justice in a people ceases to de serve the name of jurisprudence, and is to be esteemed as merely customary or arbi trary, there can be no doubt that Japan under the old regime belonged to. the higher category. Whether its national system, freed from the bond of feudalism, would have shown a capacity for development equal to some in the West, is an attractive question. But the logic of events has established West ern laws here too firmly to allow, us to ex pect ever to see an historical solution of it; and our present lack of knowledge makes it impossible as yet to hazard an opinion upon what might have been. From this attempt to sketch some chief features of indigenous Japanese justice, I pass to a few details, concerning the judges, courts, and legal methods in general. The administration of justice was not con fided to a separate governmental department (a characteristic of which European States still show strong traces), and an enumera tion of the grades of administrative officials would include most of the judicial ones also. It must be noted, too, that we have to deal in reality with a number of petty States, not merely a single judicial system. Feudalism kept the country divided under a number of powerful nobles; and although these were not politically independent of the Shogun, the Viceroy of the Emperor at Yedo, the Shogun was theoretically only ptimus inter pares as regarded every matter on which he did not choose to legislate in the name of the Emperor, and thus the judicial functions of the powerful daimyo not friendly to the Shogun (as well indeed as of some others) were exercised for the most part quite inde pendently. In many matters of inheritance and marriage in noble families, political