THE TESTAMENT OF IYÉYASŬ."THE Legacy of Iyéyasŭ" is a document whose authenticity is yet to be proved. It purports to be the testament of the founder of the last shōgunate; but a thoroughly critical examination of its claims has not, I believe, been made. It is certain that it was not popularly or generally known in Japan, nor ever reckoned as within the body of standard legal literature. It was translated into English (thirty-seven pages print) by Mr. J. F. Lowder, some years before its publication by him in Yokohama, in 1874. The title of the pamphlet read thus: "The Legacy of Iyéyas (deified as Gongen-sama): a Posthumous Manuscript, in One Hundred Chapters, translated from three collated Copies of the Original," printed at The Japan Herald office.
Dr. Walter Dixon, also, in his work on Japan, gives (chapter vii.) another version, with notes and comments. W. E. Grigsby, Professor of Law in the Imperial College in Tōkiō, in a paper read before the Asiatic Society of Japan, has given a scholarly analysis of the document, showing especially its similarity to most ancient law codes, such as those of Solon and Lycurgus, the Twelve Tables, the Mosaic, and the early Teutonic codes. He terms it "the most original monument which Japan has produced in the way of legislation," with which compare Dixon, pp. 269, 270. Whether authentic or not, it embodies the policy of Iyéyasŭ, is a mirror of feudalism, and is of great historic value.
The work consists of one hundred sections, in no logical sequence, and difficult to determine in the original. Of these, sixteen consist of moral maxims and reflections, which are quotations, or intended to be such, from Confucius and Menedus; fifty-five are connected with politics and administrations; twenty-two refer to legal matters; and in seven Iyéyasŭ relates episodes in his own personal history. No sharp distinction) is made in it between law and morality, between the duties of the citizen and the virtue of the man. The man who obeys the law is virtuous; he who disobeys it is vicious and low. It is the province of the legislator to inculcate virtue. All that we understand by law - all that embraces the main bulk of modern law, the law of contracts, of personal property, of will, commercial and maritime law - finds no place in this code. This arose from the fact that human life within the dalmiōate was regulated by custom, not by agreement; and there was hardly any intercourse between the various daimiōates, because the only property of any importance was land, and no will was allowed. On the other hand, great stress was laid on criminal law, the law relating to landed property, the law relating to the status of persons and classes, to etiquette and ceremonial, to tables of rank and precedence, and to political administration and government. On these points, especially the latter, minute details are entered into with a peculiarity which is striking, when compared with the poverty of the code in respect to those matters which seem to us most important in a system of law. Another of the many points of similarity to ancient codes of law, notably the Mosaic, is the elaborate provisions with respect to the avenging of blood and personal satisfaction for injuries done. The individual does not, as in more advanced societies, give up his right of private vengeance. Great stress is laid on caste dis tinctions, which are made more sharp and distinct by reducing them to writing, and thus perpetuating the unequal stages into which early society is divided.
Professor Grigsby further remarks that there is one great difference between this and all other early codes, viz., its secrecy. It was in express terms forbidden to be promulgated. The perusal of it was only allowed to the chief councilors of State (rōjiu). How can people obey laws if they do not know their nature? A parallel is found in the history of the Aryan race. In Grecce and Rome, at the beginning of their history, the knowledge of the laws and their administration was continued to the aristocratic class, and the first struggle of the commons was to force this knowledge from them - a struggle which ended in these codes being reduced to writing and promulgated. The parallel is not complete in respect to writing. In the, case of Greece and Rome, the laws were unknown because not written: in Japan, though written, they were yet to be unknown. In early communities, custom has absolute sway. The magistrates, as IyU+E9yasŭ says, are the reflectors of the mode of government; they interpret, not make, the law. Any additions to the old customs were to reach the multitudes by filtering down through the magistrates, who alone would be conscious that they were new. To the multitude they would only be slight modifications of the customs they had always observed. As a code of laws, this was the character of the testament of Iyéyasŭ, who claims merely to be a transmitter, not a framer, of the law. His work is a compilation, not a creation; a selection from old, not a series of new, laws.
The "Legacy" is invaluable in representing to us the condition of society in feudal Japan. The basis of Japanese life, the unit of civilization, is the family, which is a corporation, the most characteristic mark of which was its perpetuity. The head of the family held a power similar, in nearly all respects, to that of the paterfamilias at Roule, having complete power over the persons and property of his children, and doing as he pleased with both, fettered only by that custom which is the great hiliderance to despotism in all early communities. But his liabilities were equally great with his rights. He was responsible for all the illdoings of any of his family. A Japanese family was not, however, what we understand by the word. It was often not natural, but artificial. Persons whom we should exclude from the family were admitted into it, and those who with us are constant members were sometimes excluded from it. Adoption (yoshi ni naru) on the one hand, and emancipation, or the sending-away (kandō suru) of a son from the family, on the other, were in constant practice. In Rome, adoption was employed merely to enlarge the family; in Japan, solely to perpetuate it. The son adopted by a man having) no male heir filled exactly the place of a natural child; and, in early times at least, he must take the name of the adopting, parent. If the, adopting parent had a daughter, the adopted son married her, becoming heir himself, in which respect the Japanese custom differed from the Roman, which held that the natural tie of brother and sister was formed by adoption, and hence. their marriage was illegal. Only an adult could adopt; but if the head of the family were an infant, he could adopt. This practice was often resorted to in Japan for two reasons - the religious and the Feudal; to prevent tile extinguishment of the ancestral sacrifices, with the consequent disgrace to the family; and because the land, being held only on condition of military service, if a vassal died leaving no male children, the lands eseheated to the lord. The second method which rendered the family artificial were the expulsion and disinheritance of a son from the filmily, which, however, were only effected when he was of an irredeemably had character.
Marriage in Japan, which was allowed - rather, enjoined - in the case of a man at sixteen, of a woman at thirteen, was not a contract between the parties or a religious institution, but a handing-over of the bride to the family of her husband by her own family, she passing completely under the control of her husband, both as to person and property, subject to reference to a council of family relations.
So far the internal aspect of the family. Each family, however, was connected with other families, as in early Greece and Rome; and thus about fifty great clans were formed, of which the four principal were the Minamoto, Fujiwara, Taira, and Sulgawara, all the families of which were, or claimed to be, descended from a common ancestor. Certain sacrifices were peculiar to each, and certain dignities confined to certain families. Thus the office of kuambaku was monopolized by the Fujiwara, and the shōgunate by the Minamoto clans (the families in succession being, the line of Yoritomo, the Ashikaga, and the Tokugawa). This condition of society was analogous to that in Italy and Greece from 1000 B.C. to 500 A.D. But what is peculiar to Japan is that, with this primitive form of society remaining unchanged, we find a system that did not arise in Europe till about the eleventh century A.D. Thus the superstructure of feudalism was reared on the basis of the family - an incongruous social edifice, as it seems to our minds.
In Japan, then, at the time of the formation of the code, the mikado and the imperial court were above, and not included in, the theory of feudalism, at the head of which was the shōgun, and beneath him the daimiōs, each with a territory of greater or lesser extent, which he farmed out to the samurai, or vassals, in return for military service. In the greater daimiōates these vassals underlet their lands on the same conditions; in other words, subfeudation was common. A vassal not able, by reason of age or sickness, to perform this service abdicated in favor of his son. If a man died without leaving any children, natural or adopted, his property was retained for him by a legal fiction, for his death was concealed till permission was given by his lord for him to adopt a son, and only after such permission was given was his death announced. The necessity of having an heir, that the vassal's land might not escheat to the lord, but be kept in the vassal's family, greatly extended the practice of adoption. If the vassal proved faithless to his lord, both escheat and forfeiture were incurred.
The leading principles of Iyéyasŭ's policy are thus summarized : The position of the shōgun to the mikado was to be one of reverential homage. The shōguns were in no way to interfere with the mikado's theoretical supremacy, but to strengthen it in every way, and show all respect to the emperor's relatives, and the old court aristocracy. Secondly, toward their inferiors the shōguns were to behave with courtesy and consideration. All insult and tyranny were to be avoided, and the weight of power was not to press too harshly. The neglect of this principle, as shown in insolence to inferiors, was the rock on which the governments in nearly all ancient communities struck. This caution proves the consummate knowledge of human nature and the profound mastery of state-craft possessed Iyéyasŭ. Another recommendation of Iyéyasŭ was, that the government of the lesser daimiōs should. be frequently changed. The motive alleged for this was the prevention of misgovernment; but the real reason was, that they might not acquire local influence, and so endanger the power of the shōguns. This was similar in its purpose to the policy adopted by William the Conqueror, in portioning out the territories of his barons among several counties. In England the plan was completely successful; in Japan it failed, as we have seen, because the shōguns never dared to enforce the measure in the case of the greater daimiōs, who were the only ones to be dreaded. The best feature of the policy of the shōgunate was to be the endeavor to maintain peace in the empire as far as possible, or, in the words of Iyéyasŭ, "to to assist the people to give peace to the empire."