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This episode we explore the setup of the government, talk about the Asuka Kiyomihara Codes started in this reign, and some examples of law and order.
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Welcome to Sengoku Daimyo’s Chronicles of Japan. My name is Joshua, and this is Episode 145: Law and Order in the Reign of Temmu
The sound of struggle could be heard, as a man, hands bound behind him, was roughly brought into the courtyard by several sturdy men. They thrust him roughly to the bare ground in front of the pavilion. The man’s clothes were disheveled, his hair was unkempt, and his right eye was swollen shut. He was a stark contrast from the four officials standing over him, and even more from those who stood in the pavilion, above, prepared to dole out judgment. A clerk was handling the paperwork at a nearby desk, but the court official already knew this case. He had read the reports, heard the testimony of the witnesses and, to top it all off, he had read the confession. It seems it had taken some coercion, but in the end, the criminal before him had admitted to his wrongdoing.
And thus the official was able to pronounce the sentence with some sense of moral clarity. After all, if this man was innocent, why would he confess? On the other hand, if he were truly innocent, how would he even have come to their attention? Even if he was not guilty of this crime, if he had been such an upstanding citizen, why would his neighbors have accused him in the first place?
One way or another, justice was being done.
We remain—for at least the next couple of episodes—firmly in the reign of Ohoama, aka Temmu Tennou. There is a lot more in this reign, and we are reaching a period where we won’t be able to cover nearly as much as previously, so we’ll have to summarize some things, but there is still a lot here to discuss. Last episode we looked at what was happening outside of the court. This episode we turn our attention back to the center, and specifically, what law and order meant in Ohoama’s time.
This period is called the Ritsuryo period, and as the name indicates, it is characterized by the set of laws and accompanying penal codes, the ritsu and the ryo. Most of these codes are no longer extant, only known to us by other sources which contain only fragments of the originals. But it was this adoption of a continental style of law that seems to most characterize this period. So this episode, we are going to look at the project Ohoama kicked off to establish one such law code —possibly even the first actual—for Yamato, as well as some of the examples of how law and order were enforced.
In Episode 143 we talked about Ohoama’s historiographical project, which kicked off in the third month of 681 and culminated in the very chronicles we have been poring over. However, a month before that, we see the start of a different and likely more immediate project, as the sovereign ordered work to begin on a new legal code. This task was decreed from the Daigokuden to all of the Princes and Ministers -- who were then cautioned to divide it up and take it in shifts, since after all, they still needed to administer the government. And so this division of labor began.
The code would take years to compile, so, like so many of the ambitious projects of this reign, it was not quite ready by the time of Ohoama’s death in 686. In fact, it wouldn’t be promulgated until 689, and even then that was only the “Ryou” part of the “Ritsuryou”—that is to say it contained the laws, the “ryou”, but no the penal code, or “ritsu”. Still, we are told that the total body of laws was some 22 volumes and is known today as the Asuka Kiyomihara Code. It is unfortunately no longer extant—we only have evidence of the laws based on those edicts and references we see in the Nihon Shoki, but it is thought by some to be the first such deliberate attempt to create a law code for Yamato. We do have an earlier reference to Naka no Ohoye putting together a collection of laws during his reign, known as the Afumi Code, but there is some question as to whether that was actually a deliberate code or just a compilation of edicts that had been made up to that point. These various codes are where the “Ritsuryo” period gets its name, and the Asuka Kiyomihara Code would eventually be supplanted in 701 by the Taihou code—which is one of the reasons why copies of previous codes haven’t been kept around. After all, why would you need the old law code when you now have the new and improved version?
This also means that often, when we don’t have other evidence, we look to later codes and histories to understand what might be happening when we get hints or fragments of legal matters. The Chronicles often make note of various laws or customs, but they can be sparse on details. After all, the main audience, in the 8th century, would be living the current law codes and likely understood the references in ways we may have to work out through other sources.
As for the Kiyomihara Code, there are further notes in the Chronicles that seem to be referencing this project. Besides the obvious—the new laws that were promulgated through various edicts—we see a few entries sprinkled throughout that appear to be related to this project. First, I would note that in the 10th month of the same year that they started the project, 681, there was issued an edict that all those of the rank of Daisen on down should offer up their admonitions to the government. Bentley notes that Article 65 of the Statutes on Official Documents provides a kind of feedback mechanism via this admonitions, where anyone who saw a problem with the government could submit it to the Council of the State. If they had a fear of reprisals they could submit anonymously.
This entry for the 10th month of 681 could just refer to a similar request that all those who had a problem should report it so it could be fixed, but in light of several other things, I would also suggest that it was at least in line with the ongoing efforts to figure out what needed to be figured out vis a vis the laws of the land. Later, in the 8th month of 682 we see a similar type of request, where everyone from the Princes to the Ministers were instructed to bring forward matters suitable for framing new regulations. So it looks like that first year or so there were, in a sense, a lot of “listening sessions” and other efforts going on to give deliberate thought to how the government should operate.
A few days later in 682 the Chronicles tell us that the court were working on drawing up the new laws, and as they did so they noticed a great rainbow. Bentley suggests that this was an auspicious sign—even Heaven was smiling on the operation.
So we know that there was lawmaking going on. But what did these laws actually look like? This episode we are going to look at both criminal law – crimes and punishments, and gow they could be mitigated as well as those laws that were less about criminal activities and more about how the state itself was to be run.
As I just stated, a lot of the laws and edicts are not necessarily about criminal activities. Many of them are about the government and how it works—or at least how it is supposed to work. Some of this helps to reveal a bit about the theoretical and philosophical underpinnings of this project. That said, I’m not always sure that Ohoama and his officials were necessarily adherents to those philosophies or if they saw them more as justifications fro their actions. And, in the end, does it matter? Even if they weren’t strict Confucianists, it is hard to argue that Confucian theory didn’t loom large in their project, given its impact on the systems they were cribbing from. Furthermore, if we need to extrapolate things that go unsaid, we could do worse than using Confucianism and similar continental philosophies as our guide, given what we see in the record.
A particularly intriguing record for understanding how that government was supposed to work is a declaration that civil and military officials of the central and provincial governments should, every year, consider their subordinates and determine what promotions, if any, they should receive. They were to send in their recommendations within the first ten days to the judges, or “houkan”. The judges would compare the reports and make their recommendations up to the Daibenkan—the executive department of the Dajokan, the Council of State. In addition, officers who refused orders to go on various missions for the court were ineligible for promotion, unless their refusal was specifically for genuine illness or bereavement following the loss of a parent.
This feels like an important note on how the whole bureaucratic appointment and promotion system worked. It actually follows early ideas of the meritocratic bureaucracy that was at the heart of how the government was supposed to work. It isn’t quite the same as magistrates roaming the land and seeking out talented individuals, but it still demonstrates a promotion system that is at least nominally about the merit of the individual and not solely based on personal patronage—though I’m sure the sovereign, the sumera no mikoto, or tennou, could still issue promotions whenever he so wished.
And as cool as I find all that to be, I think the piece that I find particularly fun is the fact that they had to specify that only a “genuine” illness was a valid excuse. That suggests to me that there were people who would feign illness to get out of work. In other words, faking a sick day is nothing new and you could totally have a ritsuryo version of “Ferris Buehler’s Day Off”.
This meritocratic idea seems to be tempered a bit a few years later, in 682. We see an edict that not only describes the language and character of the court ritual, but also talking about verifying the lineage and character of anyone who applies for office. Anyone whose lineage was found to be less than sufficient would be declared ineligible, regardless of whatever else they had done.
And this is the tension of trying to overlay a theoretical system, based on the idea of merit, on a hereditary aristocracy. In a meritocracy, one wouldn’t blink twice at a person from a “lesser” ranked family making their way up and above those of “superior” families. Then again, you probably wouldn’t have families ranked in a hierarchy, anyway. I feel like we’ve touched on this in a past episode, somewhere, but it isn’t the last time we’ll be talking about this. After initially adopting the system as it theoretically should be, the cultural pressures of the elite nobles would start to shape the government into something that was not quite so threatening to the power of those elite families. After all, those families held a lot of power—economic, political, and otherwise—and, as elites throughout history have done, they would do whatever they could to hold onto that power.
This is actually something we see on the continent. Whatever sense of justice or equality may have lay at the heart of the theory behind good governance, it was always going to be impacted by those with resources and the familial connections that bind people together. For instance, it was the wealthy who would have the money and leisure time to be able to hire tutors, acquire books, and spend time studying and learning—something that is hard to do if you have to help your family work in the fields. And the court would always be a place of politics, which was fueled by wealth and connections. No doubt, if you asked someone of the time, they would say that the “correct” thing to do would be to work your way up from the bottom, starting from a low ranked position and climbing up based on their good deeds. That’s all well and good, but then we see preference given to the highest nobles, with their own progeny getting a jump on things by being automatically placed higher in rank. With only a finite number of positions in the government, this meant that climbing through the ranks would be almost impossible at some point, as there just weren’t enough positions for those qualified to take them.
This is an all-too-common problem, regardless of the actual system of government. The powerful and wealthy have always had a leg up—though sometimes more than others.
That isn’t to say that those less fortunate were always ignored. For instance, early in his reign, Ohoama made a decree to divide the common people—those who were not members of the royal family, so not princes or princesses—into three different classes, Upper, Middle, and Lower, all based on their wealth or financial status. Only the two lower groups were eligible for loans of seed rice, should they need it. That isn’t so different than a lot of modern, means-tested government assistance programs, when you think about it. The idea of breaking up groups into an “Upper”, “Middle”, and “Lower” category is found elsewhere—Bentley notes Article 16 of the Statutes of Arable Land dividing up families who planted mulberry. “Ryou no Shuuge”, a 9th century commentary on the Yoro law-code, notes that, at least by that time, the three categories were based on the number of people in a given household, not just the total wealth, it would seem.
Other decrees help us understand the make-up of the court, such as decree in the 8th month of 679, with the sovereign requesting that various houses send women to work in the court. Bentley notes that this is very similar wording to Article 18 of the statutes of the Rear Palace, where the sovereign’s consorts lived. He also mentions a note in Ryou no Shuuge stating it was specifically women from noble families in the capital city and nearby who were employed for low-level tasks in the palace.
Continuing with the ordering of the government, in the third month of 681, Ohoama went to the well of the New Palace—the Nihi no Miya—and he ordered the military drums and other instruments to be played. In the continental style, music was an important part of the military, with certain instruments and tunes that would be played for a variety of purposes. It is unclear that the archipelago had such a detailed history of military music, and so it seems that this is in emulation of the continental practice.
Then, in the 5th month, Ohoama had to crack down on another practice that was apparently taking off with the various public functionaries. As we noted, earlier, public functionaries were reliant on their superiors, the judges, and then the Council of State for their promotion. However, some appear to have found another way to garner favor, and that was through female palace officials—those working in the private quarters. Those palace officials would have access to the sovereign and his families—his queen and various consorts. And of course, if Ohoama heard good things about a person, then perhaps he would put them forward for promotion. At the very least, if that person’s name came forward, it might be well thought of. And so public functionaries had taken to paying their respects to the women working in the palace. Sometimes they would go to their doors and make their case directly. Other times they would offer presents to them and their families. This was clearly not how the system was intended to work. As such, Ohoama told everyone to knock it off—should he hear about anyone trying this in the future, then the offenders would be punished according to their circumstances.
Of course, I would note that this only would be a problem if the individuals were caught. If the rest of Japanese history—heck, world history—is anything to go on, then humans are going to human and the court was no doubt deeply steeped in political maneuvering of all kinds. I imagine that this practice never fully stopped, but it probably stopped being quite as blatant—for now.
Continuing with the development of how the government operated, we get the entry for the 28th day of the 3rd lunar month of 682. It starts with various sumptuary laws, with Princes down to public functionaries no longer wearing specialized caps of office—effectively getting rid of the idea of “cap-rank”. They also would no longer wear the aprons, sashes, or leggings that were part of the previous outfit. Likewise the Uneme and female palace officials would no longer wear the elbow-straps or shoulder-scarves. This appears to have moved the court closer to what the continent was wearing at the time, with belted garments based on clothing not too dissimilar from what was found across the Silk Road, to be honest.
They also discontinued all sustenance-fiefs for Princes and Ministers. Those had to be returned to the State. Presumably their salaries would then come from any stipends associated with their rank, instead. This doesn’t seem all that connected with the other edict, focused on clothing and rank, except that is part of the further centralization of power and authority—all taxes were to go to the central government and then get parceled out, and everyone—or at least those in the court—were to conform to a standard uniform. That said, for all that it may have been the intent, as we shall see, the court would never fully get rid of the idea of privately held tax land—it would just take different forms over time.
Later, we get more sumptuary laws, some about what the people of the court would wear, but others that were more general. Sumptuary laws are laws specifically focused on controlling things such as expenditures or personal behavior—including what one wore and how they expressed themselves--and they are generally made to help order society in some way. There were a lot of cultures where purple, for instance, was reserved for royalty—often because of how expensive it was and difficult to make. Wearing an expensive purple fabric could be seen as an expression of wealth—and thus power—and that could feel like a challenge to those in power themselves. It probably also meant that there was enough dye for the royal robes and it was not nearly so scarce.
In other instances, we see sumptuary laws to call out people of certain groups. Some laws are to distinguish an in-group, and others to call out a group to be set apart from society. Other such laws were made to distinguish between social constructs such as caste or gender. Even today we have a concept of “cross-dressing” as we have determined that certain clothing or styles are seen as either more masculine or feminine, and there are those who call out such things as somehow perverting society. And yet, the clothing is simply pieces of fabric, and what may have been considered masculine or feminine in one time or place may not bee seen as such in another.
In this case, the sumptuary laws in question focused on hairstyles. Ohoama decreed that all persons, male or female, must tie up their hair—they couldn’t leave it hanging down. This was to be done no later than the last day of the year—the 30th day of the 12th lunar month, though it could be required even before that. We are also told that women were expected to ride horses in the saddle similar to the way men did. This appears to mean they would sit astride a saddle, with their legs on either side, and not in something akin to side saddle. This also likely meant that women riding horses would want trousers, similar to what men wore, at least for that part of it. Trying to wear a long skirt with your legs on either side of a horse does not strike me as the most comfortable position to put yourself in, not that people haven’t figured it out over the centuries in various ways. Indeed, in some Tang statuary, women are often depicted riding horseback with trousers.
In the 9th month of 682 we get a fun entry. Well, I find it amusing. We are told that the practice of ceremonial crawling and kneeling was to be abolished and that they would adopt the ceremonial custom of standing, as had been practiced in the Naniwa court. And a part of me thinks of some old courtier who was having trouble with all of the kneeling who was suddenly very happy with this new ordinance. On the other hand, it is fascinating to think of the other implications.
First, we are being told that there was a custom of standing at the Naniwa court, while in Asuka there was a tradition of ceremonial crawling and kneeling. Bentley’s translation makes it apparent that this was specifically as you entered through the gates: that you would bow and then crawl through the entranceway.
I’m assuming that the standing custom was based on continental tradition, since that seemed to be what the Naniwa palace was built to emulate, and that in returning to Asuka they were partaking in a more local ritual—though I’m not entirely certain as I just don’t have enough information to know at this point. Aston does claim that it was custom in the Tang court, though I’m not sure of his source for that.
In 683 we get more information on how the court functioned. We are told that there was a decree that all persons of rank in the Home Provinces were expected to present themselves at Court at some point in the first month of each quarter. You were only excused if you were sick, at which point an official would need to send a report up to the judicial authorities.
So every noble in the Home Provinces had to travel to the court once every four months. And if they couldn’t, they need to be able to produce the equivalent of a doctor’s note, saysing so.
We aren’t told why this was implemented. I suspect that there had to be some compromise between nobles being at and working at the court and going back to their hometown to also keep an eye on things there. It is possible that there were plenty of people who just weren’t coming to the court unless they had to—living off their stipend, but not necessarily doing the work. So this may have been a “return to office” type order to make sure that people were there, in the “office” of the court at least once every four months.
This brings to mind the Edo period practice of alternate attendance, or Sankin-koutai, where daimyo would have to attend on the Shogun for a time and then could return home. Of course, that was also done as a means to drain their coffers, and I don’t believe this was meant in quite so punishing a manner.
Having a permanent city, where the nobles had houses in the city, would likely fix these issues, allowing the court to be more regularly staffed. Sure enough, that same decree included the decree that there would be a Capital City at Naniwa as well as other places, while the work at Nihiki, on what would become the Fujiwara capital, was already underway.
Speaking of the capital, that work would require labor and people to oversee it. In 10th month of 684, we see a note that gives us a glimpse into the management of corvee labor, as Prince Hatsuse and Kose no Asomi no Umakahi, as well as officials down to facilities managers, 20 people in all, were set up as corvee labor managers for the royal region.
Next, let’s talk criminal matters. What kinds of things were people being accused of or what laws were being set up to constraing the activities of individuals.
We’ll start by looking at how justices was handled, generally speaking. Some of it seems almost obvious, like in 675, when we are told that the sovereign ordered that nobody—whether a minister, a functionary, or a citizen—should commit an offense lest they be punished accordingly. ‘But what was happening previously to make such a proclamation necessary?
On the one hand, I suspect that this was a warning to the elites of the archipelago more than anything else, especially those who might not have been in direct fealty to the Yamato sovereign previously. Those elites farther out in the provinces were probably used to a looser hand, and fewer consequences for their actions. Back in Taika years, in the late 640s, just as everything was kicking off, the court had had to bring the hammer down on the governors and various kuni no miyatsuko, local elites who had been doing things their own way. I suspect this was just a similar attempt to bring people into line and a reminder of who actually wore the hakama in this administration.
It also seems to be a straightforward statement that the law applied to every person—or at least every person outside of the sovereign, himself. That was likely a novel idea for many people, where those in positions of power were likely able to get away with murder, quite literally, because who was going to stop them? We’ve seen how many of the more powerful families controlled what were essentially private armies.
At the same time, 675 is before these new formal law codes and punishments were in place. Presumably there was tradition in place and some understanding that the sovereign could declare laws and punishment, but I also wonder if this isn’t part of the reason that they felt that centralized, authoritative, written law codes were required in the first place. After all, communicating laws and punishments verbally across the archipelago, even with the potential for written edicts, likely relied a lot on local administrators to interpret the edicts and figure out what was going on.
This seems to align with an edict from the 10th month of 679, which decried that there were many people guilty of crimes and violence hanging around the capital. This was blamed on the Princes and Ministers, since the edict claimed that these high officials heard about it but didn’t do anything, instead treating it like a nuisance that was too much trouble—or perhaps too personally expensive—to do anything about. Alternatively, those same princes and ministers would see people that they knew were guilty, but they didn’t want to go through the trouble of actually reporting them, and so the offenders could get away with it. The proposed solution was to exhort those in higher stations to punish the offenses of those beneath them, while those of lower stations were expected to remonstrate with their superiors when those superiors were rude or violent. In other words, if everyone just held everyone else accountable, then things would work out.
This seems like a great sentiment, but I have to imagine that there was something more beyond the high-minded ideals. Again, I suspect that it was probably as much Ohoama putting people on notice. Still, this seems aspirational rather than definitive.
A clear example of the kind of thing that was being prohibited is likelye the decree about fishermen and hunters, who were forbidden from making pitfalls or using spear traps or similar devices. Also, from the beginning of the 4th month until the 13th day of the 9th month, no one was to set fish-weirs, or himasakiri—an unknown device, but probably another type of fish trap. Ohoama also prohibited the eating of cattle, horses, dogs, monkeys, or chickens. Other animals, including boar, deer, fish, etc., were all fair game, as it were.
The prohibition on traps is likely because they were a hazard to anyone walking through the area. In the Tang dynasty they did something similar, but they did make exceptions for hunters in the deep mountains, who were supposed to put up signs warning any travelers. As for the weirs and himasakiri, whatever that might be, I have less context, but likely it did have some reasoning—possibly similar to our modern concepts of having certain seasons for various types of fishing. Fish weirs do create obstructions, and between the 4th and 9th lunar months Japan does see the summer monsoon rains—could that be the reason? Tsuyu, or rainy season, is often around July to mid-June, today. Or perhaps there is another motivation for that particular prohibition.
As for the eating of various animals—of the animals listed, all but the monkeys are domesticated animals who generally weren’t considered as food animals. Cattle were used for working the fields, horses were ridden, and dogs were used for hunting. I wonder if monkeys were just too close to people. The chicken prohibition may seem odd to us, today. The word for chicken, “niwatori”, literally means garden bird, though the Nihon Shoki uses something more like “barn door bird”. We know that cock-fighting was a thing in later periods, and that chickens were associated with Amaterasu, possibly for their legendary habit of crowing as the sun comes up. We can also note the lack of some animals, like cats, from the list. Perhaps cats were never in danger of being seen as a food source, or perhaps cats just weren’t as prevalent at the time—we know cats were around from at least the Nara period, but there isn’t much evidence before that. There are examples of bones thought to be from a cat from the Yayoi period found on Iki island, but it is hard to say from that if they were fully established across the archipelago. Still, I do find it curious they are not on the list.Continuing on, we later see where see the court issued an edict that prohibited the cutting of grass or firewood on Mt. Minabuchi and Mt. Hosokawa. Furthermore they prevented any indiscriminate burning or cutting on all of the mountains in the Home Provinces. This feels somewhat religious—after all, the mountains were often considered the domain of the kami. Perhaps there were some religious restrictions. On the other hand, some of it sounds like they were trying to just ensure that with a growing population they didn’t denude the mountains around the capital.
This whole incident brings to mind problems that occurred in and around Chang’an, the western Tang capital. The palace itself—not to mention all of the houses and temples—took so much wood that it was a drain on the nearby forests. And that is without taking into account the simple harvesting of wood for cooking fires, tools, etc. In fact, the logging industry of that time devastated the local environment, meaning that they had to travel farther and farther to find suitable wood for the monumental buildings they wished to create. It is also thought to have contributed to various natural disasters in and around the capital. Perhaps Yamato was worried that unrestricted logging in the Home Provinces could likewise cause problems? Or was that simply an added benefit gained from the idea that mountains were sacred spaces?
Later in the 10th month of 679, there was an edict determining sumptuary rules for monks clothing, as well as what kind of retinue could accompany them when they went out. We talked about this back in Episode 142. That same month, there was an edict that, while monks and nuns might normally be expected to stay at a temple—such as in the quarters identified in the ruins of Kawaradera—that it became a problem when older monks became bed-ridden. After all, if they couldn’t leave their bed, then one can only imagine how it must have been. Not to get overly graphic, but they couldn’t exactly make it out to the latrine at that point, either. So it was determined that if an elderly monk were to reach the stage that they were bed-ridden, and unlikely to recover, then the temple would seek out relatives or laypersons to help build a hut or two in vacant spaces on the temple grounds. There, the sick and bed-ridden monks could be cared for in a more sanitary manner.
Now the way this is written, on the one hand it seems they were worried about ritual purification as much as anything, but I imagine that this was also practical. After all, as you get all of those monks living together, one can only imagine that disease and illness could easily spread in those close quarters. So separating those who were quite sick only makes sense, like an early form of quarantine.
A lot of these prohibitions seem to be fairly practical. Don’t put traps where people could accidentally fall into them. Don’t chop down the nearby forest—we may need that later. And even: don’t leave a sick or elderly monk in a crowded dormitory situation.But what about the penal codes?
If you lived in the latter part of Temmu’s reign and you did violate one of the rules mentioned above, or one of the many others at play, what would happen to you, and how did that vary based on your place in society?
Unfortunately, most of what we get on this is kind of bare bones. We often see the punishment, but not t he crime. We are just told that someone was found guilty, or condemned. Take, for example, the Buddhist Priest, Fukuyou, of Asukadera, who was condemned and thrown into prison. We aren’t told what he did to deserve confinement, but it wouldn’t last long. Apparently Fukuyou cut his own throat, ending his life, rather than face other consequences or live with the shame of whatever crime he had committed.
By the way, the term “prison” here is interesting. We certainly see people being imprisoned in some way, shape, or form—locked up and unable to freely travel. That isn’t exactly the same, however, as a prison complex or system. There may have been buildings used a jail—a temporary holding facility while the actual punishment was determined. And we also see the equivalent of house arrest. Later, there would be formal “prisons” set up for the detention of individuals, who were often then forced to labor as part of their punishment. However, they had many other forms of punishment, many of which required much fewer staff. After all, a prison requires that you have guards constantly watching the prisoners to make sure nothing gets out of hand. Instead, you could just exile them to an island or even just another province, with a lot less manpower.
A less drastic punishment was handed out back in the 4th month of 675, when we are told that Tahema no Kimi no Hiromaro and Kunu no Omi no Maro were both forbidden from attending the court—for what purpose we aren’t immediately told. However, six days later, Kunu no Maro was held accountable for offering resistance to a royal messenger—maybe the one who communicated that he was banished from the court. As a punishment, he was stripped of all of his offices and dignities. Both Tahema no Hiromaro and Kunu no Maro appear to have been pardoned at a later date, though we aren’t sure when. It could have been one of the various general amnesties—and we’ll talk about that in a moment. Hiromaro passed away in 685, but he was provided a posthumous promotion in rank and is noted for his efforts supporting Ohoama during the Jinshin no Ran. Meanwhile, Kunu no Maro—also known as Abe no Kunu no Maro is seen delivering a eulogy in 686. Perhaps somewhat ironically, he did so on behalf of the Office of Punishments—later the Keimu-shou, or Ministry of Punishment. These actions certainly seem to be at odds with them being punished, let alone banished from the court.
We also see an example where Prince Womi, who was of the 3rd princely ranks—even higher than Prince Kurikuma, whom we discussed last episode—was guilty of some kind of offense and banished to Inaba. One of his children was also banished to Izushima and the other to Chikashima. Aston suggests that this means Ohoshima and Chikashima may be in Hizen. Again, very little to go on as to what was happening, though it seems that all three were punished together and sent away from each other, perhaps so that they could not plot or scheme together. Later amnesties would probably have resulted in pardons for them.
Speaking of pardons—the punishments that we are speaking about all appear to be permanent, other than imprisonment, which may have been more of a temporary situation. It wasn’t like being sent away for so many years. However, on the other side of the coin was the option for a pardon or amnesty. While I imagine that the sovereign could always provide a pardon directly, we more regularly see general amnesties declared, sometimes with very specific guidelines.
One of the most illuminating such instances, and possibly where Kunu no Maro and Tahema no Hiromaro were pardoned, came in the 7th month of 676. That month the court issued a general amnesty, likely to increase the merit accrued to the State through an act of mercy and forgiveness, given the drought and famine that had been reported earlier that summer. Perhaps paradoxically, this act of leniency gives us an interesting view into the types of punishments that were made, as well as how severe each was considered. The amnesty mitigated all sentences of death, enforced servitude, or the three classes of banishment, and they would all be mitigated by one degree. So anyone sentenced to death would instead just become enslaved. Those who were sentenced to enslavement would be banished to a distant province. Those banished to a distant province would only be banished to a province at a medium distance. Banishment to a medium province would be downgraded to a nearer province. And Banishment to a nearer province would be downgraded to banishment—or removal—to a place in the same province. For anyone who committed a crime for which they would be removed to a place in the same province—or for any lesser crime—would be completely pardoned, whether or not the crime was actually known. So you couldn’t be held responsible, retroactively.
This gives us a kind of hierarchy to use as far as the kinds of punishment that might be handed out. Of course, there are also a few others, which I generally assume were considered lesser. For instance: banishment from the court, or being stripped of government rank, that sort of thing.
There was a caveat that this amnesty would not apply to those who had already left for their place of banishment—nor, obviously, to those who had already been executed. So if you had already settled in to your new life, this amnesty didn’t exactly matter. This could be where Tahema no Hiromaro and Kunu no Maro were pardoned and thus allowed to find their way back into the court’s good graces. On the other hand, others probably wish that this amnesty happened a bit later—one month later, to be exact. We are told that Prince Yagaki, the current viceroy of the Dazaifu, was accused of some offense and banished to Tosa, in Shikoku. As usual, the record does not feel the need to tell us what the offense was or try to justify it anyway.
This is all well and good, but what exactly did the justice system look like? How were criminals accused, and how would they investigate and prove your guilt? In the 11th month of 682, we see a rather detailed description of how trials and punishment were to be carried out. For any offense against the law, whether it was in the palace or the court, it would be immediately examined, and nobody was allowed to conceal information about it. If the offense was grave enough, then the next step would depend on the rank of the individual. For individuals of high birth, their guilt would be reported to the court, presumably for whatever punishment they deemed appropriate from there. For others, they would be arrested. If they resisted arrest, then the palace guards would be sent after them. A typical punishment was flogging, which was not to go beyond 100 blows. Finally, if the individual were clearly guilty, but yet continued to profess their innocence, then that would be considered perjury and added to their sentence.
It should be noted that in East Asia at this time, there was no concept of innocent until proven guilty. If you were accused of a crime, then it was up to you to prove that you were innocent. It was not uncommon for an arrest to occur, and then for the authorities to then torture a confession out of the individual. Since they already had assumed the individual’s guilt, this was just meant to get them to admit it. Even into modern times, Japan has had a high conviction rate, but there are accusations that this is simply because of the presence of coerced confessions. A coerced confession helps to demonstrate that the system is correct, and working as designed, whilst protestations of innocence call into question the validity of the system.
There is another type of guilt and punishment—and leniency, for that matter—mentioned in the 6th month of 677: We are told that the Yamato no Aya no Atahe were considered guilty of the “seven misdemeanors”, which seems like it is more an indictment of their moral failings rather than any kind of direct criminal behavior. Furthermore, they were accused of pushing back against the rightful sovereigns from the time of Kashikiya Hime down to the time of the Afumi court. This would seem to indicate that they had been supporting the Soga and the Afumi court, but if so, I wouldn’t say that the Chronicles help to clarify it in any way. Perhaps they just were willful and not showing the right amount of loyalty to the throne. Whatever they did, Ohoama was none too pleased, but he also didn’t want to completely destroy the uji. Instead, as a compromise, he offered them clemency for any past actions, pardoning them, but also claiming that if they stepped out of line again, then their offense would be unpardonable. This whole entry is a vibe. It is less of a punishment and more of a sword of Damocles being set up above them.
Several years later, in 682, we see the Yamato no Aya being granted the title of Muraji. In consequence of the appointment, the entire household—all the men and women alike, presented themselves to the court. They rejoiced and praised Ohoama, thanking him for raising them in status. This doesn’t feel like a normal entry—it isn’t like every family was coming into court and giving thanks every time that a promotion was handed out. This feels like classic “kissing the ring” to get back into good graces with someone who was, effectively, an autocratic ruler. While there was a bureaucracy, based on everything we’ve seen Ohoama had bent it largely to his will by appointing family members and other members of the elite princely class—those with at least nominal familial connections—to positions of power and authority.
And with that, I think we will bring this episode to a close. Next episode we’ll finish out this reign with a few projects and various other miscellaneous events.
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Thank you, also, to Ellen for their work editing the podcast.
And that’s all for now. Thank you again, and I’ll see you next episode on Sengoku Daimyo’s Chronicles of Japan.
References
Bentley, John R. (2025). Nihon Shoki: The Chronicles of Japan. ISBN 979-8-218634-67-4 pb
Gui, Wanrong, jin shi 1196 & 桂萬榮, jin shi 1196 & Gulik, Robert Hans van, 1910-1967. (2007). Crime and punishment in ancient China : T'ang-yin-pi-shih = Tang yin bi shi / [translated with an introduction and notes by] R.H. van Gulik. Bangkok, Thailand : Orchid Press. ISBN 9789745240919
Aston, W. G. (1972). Nihongi, chronicles of Japan from the earliest times to A.D. 697. London: Allen & Unwin. ISBN 0-80480984-4.
