Joei Code

Asian History Japan

RULE BY THE KAMAKURA SHOGUNATE

Minamoto no Yoritomo's assertion of power over Kanto came in different stages. While he was still a minor power in Izu, he successfully captured a shrine estate, and denied continuation of commission to the previous corrupt holder. In this, he skilfully used a secret edict issued by Prince Mochihito to impress on others the legitimacy of his claim (Document 21). He won his victory over the Heike in 1183, and the following year he established his capital in Kamakura. The establishment of Samurai-dokoro (which was charged with the task of controlling the gokenin, and had jurisdiction over military and police affairs, Document 22), Kumon-jo (which kept public documents, and had jurisdiction over political affairs, Document 23, renamed Mandokoro in 1191), and Monchu-jo (court of judicature, Document 24) followed. These were at first his private house organs, but eventually developed into the core of the bakufu organization.

Karnakura successfully extended its sway over the entire country by gaining the right to appoint Protectors (shugo J and Stewards (jito J outside of Kanto (Document 25). In this way, Kamakura could administer or otherwise interfere in the affairs of shoen across the country, giving the former both a stronger economic base and greater political power.

25 Appointment of Protectors (Shugo) and Stewards (Jito), 1185 [First year of Bunji, 1185], eleventh month, 12th day. [Oe Hiromoto proposes the posting of Protectors and Stewards.]... Because of the seriousness of Kanto of the present developments,and because the constant attention which these developments require is a source of great inconvenience, the ex-official of Inaba, Oe Hiromoto has addressed Yoritomo as follows: "The country has fallen into decadence. Men possessed of the devil run rampant. There are rebels in our land whom it has not been possible to destroy. But in the eastern provinces peace and order have been achieved because of Your Lordship's presence. Elsewhere, however, violence is apt to occur. It would be a detriment to the people and an expense to the provinces if, in each instance, soldiers from the east must be sent out to restore order. Accordingly, if, on this occasion, Your Lordship could take action in the provinces and appoint Protectors and Stewards for each provincial office and shoen, there would be nothing to fear. Such a request should be made immediately to the throne.?Yoritomo was greatly pleased, and it was decided to pursue this proposal. This wise counsel has strengthened the bond between His Lordship and his minister.

28th day. [The right to post Protectors and Stewards and to levy a commissariat rice tax is requested of the ex-sovereign.]

The evening Lord Hojo made a representation to the court through Yoshida Tsunafusa, regarding the appointment of Protectors and Stewards uniformly in all provinces, and the levying of a commissariat rice tax of 5 quarts (sho) per tan on all lands [i.e., 0.05 of a bushel on every 0.245 of an acre], whether public or private. As for the latter, the levy would apply irrespective of their ownership by powerful officials or influential families. Twelfth month, 21st day. [Yoritomo elaborates on the role of Stewards.] It has been declared that private domains in the various provinces shall come entirely under the control of Kanto. Previously those who called themselves Stewards were probably retainers of the Heike who had assumed the role without imperial approval. Or they had been given this title by the Heike and were stationed on the lands of the Heike. Also, civil governors and ryoke have been known to station Stewards on their lands as a personal favor to their retainers. As a result the governors and ryoshu who have dispensed private favors are now empty-handed and dismayed. Now that the control of shoen is uniform throughout the provinces, there need be no anxiety among ryoshu and legal guardians of shoen.

26 Goseibai Shikimoku ?Formulary for the Shogun's Decision of Lawsuits, 1232 "

1. The shrines of the gods must be kept in repair; and their worship performed with the greatest attention....

2. Temples and pagodas must be kept in repair and the Buddhist services diligently celebrated....

3. Of the duties devolving on Protectors (shugo) in the provinces. In the time of the august Right General [Yoritomo's] House, it was settled that those duties should be the calling out and despatching of the Grand Guard for service at the capital, the suppression of conspiracies and rebellion and the punishment of murder and violence (which included night attacks on houses, gang robbery and piracy). Of late years, however, deputies (daikan) have been taken on and distributed over the districts (kori or gun) and counties (go) and these have been imposing public burdens (kuji or all forms of taxation) on the villages. Not being Governors of the provinces (kuni no tsukasa or kokushi), they yet hinder the work of the province: not being Stewards (jito) they are yet greedy of the profits of the land. Such proceedings and schemes are utterly unprincipled.

Be it noted that no person, even if his family were for generations vassals (gokenin) of the august House of Minamoto is competent to impress [people] for military service unless he has an investiture [to the land] of the present date.

On the other hand, it is reported that inferior officials (geshi) and managers of shoen in various places make use of the name of vassals (gokenin) of the august House as a pretext for opposing,the orders of the Governor of the province or of the ryoke. Such persons, even if they are desirous of being taken into the service of the Protectors, must not under any circumstances be included in the enrolment for service in the Guards. In short, conformably to the precedents of the time of the august General's House, the Protectors must cease altogether from giving directions in matters outside of the hurrying-up of the Grand Guards and the suppression of plots, rebellion, murder and violence

In the event of a Protector disobeying this article and intermeddling in affairs other than those herein named, if a complaint is instituted against him by the Governor of the province or the ryoke, or if the Steward or the folk aggrieved petition for redress, his downright lawlessness being thus brought to light, he shall be divested of his office and a person of gentle character appointed in his stead. Again, as regards deputies, not more than one is to be appointed by a Protector.

4. Of Protectors confiscating the property of persons on account of offenses, without reporting cases of crime.

When persons are found committing serious offenses, the Protectors should make a detailed report of the case [to Kamakura] and follow such directions as may be given them in relation thereto; yet there are some who, without ascertaining the truth or falsehood of an accusation, or investigating whether the offense committed was serious or trifling, arbitrarily pronounce the escheat of the criminal's [fields, gardens, houses and other property] and selfishly cause them to be confiscated. Such unjust judgments are a nefarious artifice for the indulgence of license. Let a report be properly made to us of the circumstances of each case and our decision upon the matter be respectfully asked for, any further persistence in transgressions of this kind will be dealt with criminally....

5. Of Stewards in the provinces detaining a part of the assessed amounts of the annual rent (nengu).

If a plaint is instituted by the holder of the rights to shoen (honjo), alleging that a Steward is withholding the annual rent (nengu) payable to him, a statement of account will be at once taken, and the plaintiff shall receive a certificate of the balance that may be found to be due to him. If the Steward be adjudged to be in default, and has no valid plea to urge in justification, he will be required to make compensation in full.... If the amount be greater than he is able to pay at once, he mll be allowed three years within which to discharge completely his liability. Any Steward who, after such delay granted, shall make further delays and difficulties, contrary to the intention of this article, shall be deprived of his post.

6. Governors of provinces and ryoke may exercise their normal jurisdiction without referring to the Kanto [authorities].

In cases where jurisdiction has heretofore been exercised by the Governor's offices, by shoen, by Shinto shrines or by Buddhist temples on behalf of the holder of the rights to shoen (banjo), it will not be necessary for us now to introduce interference. Even if they wish to refer a matter to us for advice, they are not permitted to do so....

The proper procedure in bringing a suit is for the parties to come provided with letters of recommendation from their own honjo. Hence persons who come unprovided with such letters, whether they be from a province, a shoen, a shrine or a temple, have already committed a breach of dori (propriety or practical reason) and henceforth their suits will not be received in judicature.

7. Whether the fiefs (shoryo) which have been granted since the time of Yoritomo by the successive Shogun and by Her Ladyship the Dowager Masako are to be revoked or exchanged in consequence of suits being brought by the original owners.

Such fiefs having been granted as rewards for distinguished merits in the field, or for valuable services in official employment, have not been acquired without just title. And if judpnent were to be given in favor of someone who alleged that such was originally the fief of his ancestors, though one face might beam with joy, the many comrades could assuredly feel no sense of security. A stop must be put to persons bringing such unsettling suits.

In case, however, one of the grantees of the present epoch should commit a crime, and the original owner, watching his opportunity, should thereupon bring a suit for recovery of possession, he cannot well be prohibited from doing so....

8. Of fiefs which, though deeds of investiture are held, have not been had in possession the actual right (chigyo) through a series of years (nenjo). With respect to the above, if more than twenty years have elapsed since the present holder was in possession, his title is not to be enquired into and no change can be made, following herein the precedent established by the Yoritomo House. And if anyone falsely alleging himself to be in possession, obtains by deceit a deed of grant, even though he may have the document in his possession it is not to be recognized as having validity.

11. Whether in consequence of a husband's crime the estate (shoryo) of the wife is to be confiscated or not. In cases of serious crime, treason, murder and maiming, also banditry, piracy, night-attacks, robbery and the like, the guilt of the husband extends to the wife also. In cases of murder and maiming, cutting and wounding, arising out of a sudden dispute, however, she is not to be held responsible.

14. When a crime or offense is committed by deputies, whether or not the principals are responsible.When a deputy is guilty of murder or any lesser one of the serious crimes, if his principal arrests and sends him on for trial, the master shall not be held responsible. But if the master in order to shield the deputy reports that the latter is not to blame, and the truth is afterwards found out, incriminating him, the former cannot escape responsibility and accordingly his fief shall be confiscated. In such cases the deputy shall be imprisoned....

Again, if a deputy either detains the annual rent (nengu) or contravenes the laws and precedents even though the action is that of the deputy alone, his principal shall nevertheless be responsible....

15. Of the crime of forgery. If a samurai commits the above, his fief shall be confiscated; if he has no investiture he shall be sent into exile. If one of the lower class commits it,he shall be branded in the face by burning. The amanuensis shall receive the same punishment....

18. Whether, after transferring a fief to a daughter, parents may or may not revoke (kuikaeshi) the transfer on account of a subsequent estrangement. A group of legal scholars avers that though the two sexes are distinct as regards denomination, there is no difference between them as regards parental

benefactions and that therefore a gift to a daughter is as irrevocable as to a son. If, however, the deed of assignment (yuzurijo) to a daughter were held to be irrevocable she would be able to rely upon it, and would have no scruples about entering upon an undutiful and reprehensible course of conduct. And fathers and mothers, on the other hand, forecasting the probability of conflicts of opinion arising, must beware of assigning a fief to a daughter. Once a beginning is made of severing the relation of parent and child, the foundation h laid for disobedience and insubordination. In case a daughter shows any unsteadiness of behavior, the parents ought to be able to exercise their own discretion accordingly. When the question is understood to rest on this foundation the daughter, induced by the hope of the deed of assignment being confirmed, will be loyal [to the bakufu] and punctilious in the discharge of her filial duty; and the parents, impelled by the desire of completing their fostering care, will find the course of their affection uniform and even throughout.

19. Of persons, whether related or not, who have been reared and supported, afterwards turn their backs on the descendants of their original masters.... When persons have rendered some loyal service to their masters, the latter, in their abounding appreciation of the spirit so displayed have in some cases handed them an allocation-note and in other cases have granted them a deed of enfeoffment. Yet they pretend that those grants were merely free-will gifts and take a view of things opposite to that taken by the sons or grandsons of their first master, with the result that the tenor of the relations to each other becomes very different from what it ought to be.... When such persons forget all at once the predecessor's benefaction, and act in opposition to his son or grandson, the fiefs which were so assigned to them are to be taken from them and given back to the descendant of the original holder.

20. Of the succession to a fief when the child, after getting the deed of assignment, predeceases the parents. Even when the child is alive, what is to hinder the parents from revoking the assignment? How much more, then, are they free to dispose of the fief after the child has died; the thing must be left entirely to the discretion of the father or grandfather.

21. Whether when a wife or concubine, after getting an assignment from the husband, has been divorced, she can retain the tenure of the fief or not. If the wife in question has been repudiated in consequence of having committed some serious transgression, even if she holds a written promise of the by-gone days, she may not hold the fief of her former husband. On the other hand, if the wife in question has a virtuous record and was innocent of any fault and was discarded by reason of the husband's preference for novelty, the fief which had been assigned to her cannot be revoked.

22. Of parents who when making a disposition of their fief, pass over a grown-up son whose relationship with the parents has not been severed. When parents have brought up their son to man's estate, and he has shown himself to be diligent and deserving then, either in consequence of a stepmother's slanders or out of favoritism to the son of a concubine although the son's relationship has not been severed, suddenly to leave him out and without rhyme or reason make no grant to him, would be the very extreme of arbitrariness. Accordingly when the designated heir comes of age, one-fifth of his fief must be cut off and assigned to any older brother who is without sufficient means....

23. Of the adoption of heirs by women. Although the spirit of the [ancient] laws does not allow adoption by females, yet since the time of the General of the Right [Yoritomo] down to the present day it has been the invariable rule to allow women who had no children of their own to adopt an heir and transmit the fief to him. And not only that, but all over the country, in the capital as well as in the rural districts there is abundant evidence of the existence of the same practices. It is needless to enumerate the cases. Besides, after full consideration and discussion, its validity has been recognized, and it is hereby confirmed.

25. Of vassals in the Kanto who married their daughters to Court nobles (kuge) and assigned fiefs to them, thereby diminishing the sufficiency of the public services. As regards such fiefs, although they were assigned to daughters and thus became alienated, nevertheless the assessment for public services must be imposed thereon in accordance with the holders?rank and standing. Even though when the father was alive the son-in-law's fief may have been, as a matter of favor, exempted, after his death, service must be insisted on. If presuming on the dignity of his position, the holder of such a fief omits toperform personal service, the said fief must be for long withheld from him. In general, there must be no obstinancy as regards public services, which are equally required of all in the Kanto.... After this, if anyone still makes difficulties, he is not to have the right (chigyo) to the fief.

26. Of revoking an assignment to one son, after a bakufu writ of assurance (ando no kudashibumi) has been granted and then making the assignment to another son. That matters of this kind are to be left to the discretion of the parents has been already practically laid down in a preceding section. Hence even when a bakufu writ of assurance has been granted to confirm the intent of the first deed of assignment, yet if the father changes his mind and decides to assign the fief to another son, it is the subsequent deed of assignment which is to take effect, and an adjudication for that purpose is permitted.

37. Of vassals of the Kanto applying to Kyoto for side offices such as the superintendentships (uwatsukasa) of estates. This practice was strictly forbidden in the time of the Minamoto House. Of late years however, some persons, following the bent of their own ambitions, have not only disregarded the prohibition, but have entered into competition with others seeking to obtain the same appointment. Henceforth anyone found indulging in such ill-regulated ambition shall be punished by the escheating of the whole of his fief.

38. Of Steward General (sojito) hindering the functions (shiki) of the myoshu who were properly within their own domains. When one who has been placed in general charge of a district as Steward General endeavors to encroach upon villages which are distinct and separate therefrom, under the pretext of their being within the district under his charge, will be deemed culpable. In such a case, an Instruction will be issued to him stating that,... if the Steward forms-unlawful designs against the myoshu,and places unjustifiable hindrances in the way of his performing his functions (shiki), an Instruction will be issued to the myoshu empowering him to pay the taxes to the Government directly (i.e., bypassing the Steward altogether).

39. That those desirous of obtaining office or rank [from Kyoto] must have a written recommendation from the Kanto.That those who have performed a meritorious service and are desirous of being raised in rank therefore should be recommended [by us to the Emperor] is an established and impartial mode of proceeding; and there is consequently no need to prescribe regulations about it....

40. Of Buddhist clergy within the Kamakura Domain striving at their own option to obtain ecclesiastical positions and rank.

Inasmuch as it leads to the deranging of the due subordination in the hierarchy, the practice of applying at will [to Kyoto] for preferment is in itself a source of confusion and furthermore entails undue multiplication of higher ecclesiastical dignities....

Henceforth if anyone should in the future apply for preferment without first having received our permission he shall, if he be the incumbent of a temple or shrine, be deprived of his benefice. Even if he belongs to the clergy specially attached to the chaplaincies of the shogun he shall nevertheless be dismissed.

Should, however, one of the Zen Sect make such an application, an influential member of the same sect will be directed to administer a gentle admonition.

41. Of slaves and unclassed persons.

[In cases of dispute respecting the ownership of such persons] the precedent established by the august Right General's House must be adhered to; that is to say, if more than ten years have elapsed without the former owner having asserted his claim, there shall be no discussion as to the merits of the case and the possession of the present owner is not to be interfered with. Concerning the children born to the slaves, although certain qualifications were established by the previous laws, the precedent set at the time of Lord Yoritomo must be adhered to, i.e., a boy is to be awarded along with his father, and a girl may be awarded along with her mother.

42. Of inflicting loss and ruin on absconding farmers under the pretext of punishing runaways.

When people living in the provinces run away and escape, the ryoshu and others, proclaiming that runaways must be punished, detain their wives and children, and confiscate their property. Such a mode of procedure is quite the reverse of benevolent government. Henceforth such must be referred [to Kamakura] for adjudication, and if it is found that the farmer is in arrears as regards payment of his annual rent (nengu) and levies, he shall be compelled to make good the deficiency. If he is found not to be so in arrears the property seized from him shall be forthwith restored to him, and it shall beentirely at the option of the farmer himself whether he shall continue to live in the fief or go elsewhere.

48. Of buying and selling fiefs. That those who have inherited a private estate from their ancestors may under stress of necessity dispose of it by sale is a settled law. But as for those persons who either in consequence of accumulated merit or on account of their personal exertions have been made the recipients of special favors from the bakufu ?for them to buy and sell such at their own pleasure is a proceeding that is by no means blameless. Henceforth, it certainly must be stopped. If nevertheless, any person, in disregard of the prohibition, disposes of a fief by sale, both the seller and the buyer shall be equally dealt with as guilty.

Solemn Oath

That questions of right or wrong shall be decided at meetings of the Council (hyojoshu).Whereas a simple individual is liable to make mistakes through defect of judgment, even when the mind is unbiased; and besides that, is led, out of prejudice or partiality, whilst intending to follow reason (dori), to pronounce a wrong judgment; or again, in cases where there is no clue, considers that proof exists; or being cognizant of the facts and unwilling that another's shortcomings should be exposed, refrains from pronouncing a judgment one way or the other; so that intention and fact are in disaccord and catastrophies afterwards ensue.

Therefore, in general, at meetings of the Council, whenever questions ofright or wrong are concerned there shall be no regard for ties of relationship, there shall be no giving-in to likes or dislikes, but in whatever direction reason (dori) prevails and as the inmost thought of the mind leads, without regard for companions or fear of powerful Houses, we shall speak out. Matters of adjudication shall be clearly decided and whilst not conflicting with reason (dori) the sentence shall be a statute of the whole Council in session. If a mistake is made in the matter, it shall be the error of the whole Council acting as one. Even when a decision given in a case is perfectly just it shall be a constitution of the whole Council in session if a mistake is made and action taken without good grounds, it shall be the error of the whole Council acting as one....

Furthermore, when suitors having no color of right on their side fail to obtain a trial of their claim from the Court of the Council and then make an appeal to one of its members, if a writ of endorsement is granted by him it is tantamount to saying that all the rest of the members are wrong. Like as if ?, we were one man shall we maintain judgment. Such are the reasons for these articles. If even in a single instance we swerve from either to bend or to break them, may the gods Brahama, Indra, four Deva Kings, and all the gods great and small, celestial and terrestrial of the sixty odd provinces of Nippon, and especially the two Incarnations of Buddha (gongen) in Izu and Hakone, Mishima Daimyojin, Hachiman Daibosatsu and Temman Dai Jizai Tenjin punish us and all our tribe, connections and belongings with the punishments of the gods and the punishments of the Buddhas; so may it be.

Accordingly we swear a solemn oath as above. First year of Joei [1232], seventh month, 10th day.(Signed by) Hojo Musashi no Kami Taira Ason Yasutoki (and twelve other Council members)