Page:The Green Bag (1889–1914), Volume 04.pdf/437

 406

reasons had induced the Shogun to legis late, and, as we shall see, the Supreme Tribunal of the Shogunate took cognizance of disputes between different federal lords and between vassals owing diverse alle giance. But in ordinary civil and criminal matters there was a practical independence varying in degree according to the influence of the fief. The immediate possessions of the Tokugawa family (in whose line the Shogunate power descended after 1603) em braced a little less than one third of the national territory; but, as Herr Rudorff has suggested, the indirect influence of their legislation and judiciary must have been great, and one may say, speaking roughly, that Tokugawa jurisprudence was valid as a type, for at least one half the country.1 The first Tokugawa Shogun, Iyeyasu (1603-1616), and his grandson Iyemitsu (1632-1652) occupy, with reference to the political and legal unification of the country, a position similar to that of William I. and Henry II. in England. But they were never able to achieve the results which the Eng lish monarchs produced, and this lack of thorough union was the most important in fluence in keeping the feudal spirit every where alive. The materials for the study of legal development in the various fiefs still lie hidden in the storehouses of the noble families; and some slight acquaintance with the Tokugawa system is all that is at present attainable. We may be sure, however, that in this portion of the empire Japanese juris prudence reached its highest development. 1 Herr Rudorff, in his essay on " Rechtspflcge unter den Tokugawa "( Mittheilungen d. Deutschen Gesells. Ostasiens, 1888), thinks that this influence penetrated with more or less effect to all parts of the country, his chief reasons being the similarity of administrative arrangements in the Shogunate dominions and some Western fiefs, and a sup posed incorporation of the general legal ideas of the nation in certain Tokugawa codifications. As to the former, it is more probable that the Western fiefs, being the older, furnished models to the Tokugawas; as to the latter.it is certain, from the evidence of collections of customs and precedents, of which Herr Rudorff was probably not aware, that the codification in question represented only the Toku gawa jurisprudence.

After 1650 the Tokugawa Shoguns were for the most part faineants, and the real power lay with the Council of State (Goroju), the Shogun's advisers. Decrees, ordinances, and regulations emanated from this source, and reference was often made to the Council on judicial matters. But practically the highest judicial tribunal was the Chamber of Decisions (Hyojosho), finally constituted about 1634. The work ing members of this Supreme Tribunal were the Town Magistrate of Yedo, the Temple Magistrate, and the Magistrate of Treasury Lawsuits. Each of these in his capacity as a magistrate of original jurisdiction, dealt with special classes of litigation, — the Town Magistrate with suits involving merchants of Yedo (practically all Yedo commoners); the Temple Magistrate, with all questions involving the priesthood, chiefly disputes over temple-lands; and the other magistrate, with all important contro versies over taxes, etc., as well as with dif ficult cases reported for decision from the provincial officials, whose duties were pri marily fiscal. But at stated times the ses sions of this court were attended by one of the Council of State, and on other occasions by one of the Censors, rather by way of in spection than as a sharer in the proceedings. The Shogun himself twice a year appeared at the session. The regular sessions occurred thrice a month, — on the second, twelfth, and twenty-second days, with continuances, when necessary. Besides the appellate juris diction, already mentioned, in case of cor rupt decisions or delayed justice, the Supreme Tribune had original jurisdiction in disputes between subjects of different fiefs, between a subject of an ordinary fief and a subject of the Tokugawa dominions, between Tokugawa subjects belonging to different magisterial jurisdictions, between different daimyo, and in cases of treason or of crimes by high officials. But the lines were not strictly drawn, and this enumeration is only substantially correct. So far as concerns the development of the