THE HISTORIOGRAPHICAL INSTITUTE THE UNIVERSITY OF TOKYO

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#16
16. JUDGMENT OF THE SHO-GUN'S COURT ON NOBUTADA
VS. JO-SHIN, 1250
(Iriki-in docs.; also KK, I, and SK, IV.)
THIS document affords an example of the administration of justice at the highest feudal court,
namely, the court of the sho-gun at Kamakura; and the decision was signed, as were all judgments
which were rendered by the same tribunal, by the Regent(Shikken) and his associate(Ren-sho, Co-
Signer), both of the Hojo family, who were the real though not titular heads of the feudal
government. This distinguished treatment was accorded the case because it lay between an actual
and a former go ke-nin, and, furthermore, because one of them was a ji-to. If neither party had
been a warrior, the case would have gone to a domanial or a civil court; if both had been simple
go ke-nin, the matter would have been referred by the local ji-to to the court of the sho-gun's
deputies at Rokuhara, Kyoto, for their jurisdiction in the second instance embraced Kyushu, the
abode of the present litigants. Their dispute was adjudged at the sho-gun's feudal court, since it
involved the question whether one of the disputants was still, as he claimed, his direct vassal; and
at the suzerain's highest court, because one party was, besides being his immediate tenant, his
official agent who otherwise might be ordered himself to hear in the first instance disputes arising
between go ke-nin in his district.
It is also important to note that the case concerned a landed interest. In the feudal administration
of justice in this period, more civil questions seem to have been dealt with, as a matter of fact,
than the criminal, and, of the former, none were held more important than questions of rights on
land.¹ The reasons for this state of things are evident: the go ke-nin's real rights had to be guarded,
for upon them depended his capacity for rendering his feudal services; also, since he often held
shiki in domains controlled by the nobility or religious institutions, whichi were beyond the power
of the sho-gun, delicate questions about land naturally arose with frequency between the non-
feudal domanial lord and the feudal tenant, and needed to be adjusted by the feudal magistrates
with scrupulous justice to all parties.
Now let us sketch briefly the judicial procedure of civil cases followed by the feudal court of
the period.² The plaintiff(so-nin, accuser) presented in writing his charges(hon so-zho, the original
letter of accusation, or hon ge-zho, the original letter of petition), together with all the documents
supporting his claim(gu-sho, muniments), to the sho-gun's administrative office(man-dokoro) or
to his judicial office(mon-ju sho); the latter was in origin simply the judicial bureau of the former.
The petition was taken up by the recently created³ board of Recorders(hiki-tsuke shu), twelve or
thirteen in number, including special men learned in the law and go ke-nin, divided in three⁴
groups each of which had its appointed days of session; one of the Recorders not related⁵ to either
of the parties was chosen by lot as the Commissioner(bu-gyo) over the case. A writ of enquiry
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(mon-zho) ordered the defendant(ron-nin, refuter) to answer the charges, which were at the same
time shown him exactly in the form in which they had been presented by the plaintiff; whereupon
the defendant stated, likewise in writing, his refutations(to-zho or chin-zho, called sho, first),
along with the documents(gu-sho) upholding his argument. If the charges(mon) and answers(to),
or, accusation(so) and refutations(chin), and the documents presented by both parties, did not
clearly establish the claim of either, a second matching of letters ensued, then a third, but rarely
a fourth. If a personal examination and the confronting of the parties with each other(tai-ketsu)
were, as in the present instance, deemed necessary, a summons(meshi-zho or meshi-fu) was issued.
If a litigant lived near the court, the summons would be repeated three times with an interval of
seven days between one and another, till he came forth; if he still failed to make his appearance,
the case might be decided by default.⁶ If he resided far, a sufficient time, sometimes as long as five
months, might be allowed for his journey. In the meantime, the arguments and the documents had
been scrutinized by all the Recorders. The parties were examined orally, once by the Commissioner,
and then by all the Recorders. The latter retired apart and recorded their opinions, and, if necessary,
a third examination of the parties was held during this process. The findings of the Recorders
were carefully set down and referred to the higher tribunal known as the Councillors(hyo-jo shu),
comprising fifteen or sixteen jurists and warriors, the former serving for life or by heredity and
the latter being often changed. Now was held a deliberation by all the Councillors, with the
Recorders also present, and, according to the order previously determined by lot, each Councillor
expressed his opinion of the case, which was recorded. Till about 1200, the sho-gun was often
present, and even judged, at this gathering, but now the Regent always presided. If the Coun-
cillors considered the findings of the Recorders ill-advised, they were returned to them for recon-
sideration. If the two bodies concurred, the Commissioner drafted the judgment and subjected it
to revision. The final letter of decision(ge-chi) was personally signed by the Regent and his
associate, and was handed down by the Recorders to the winning party. Thus ended the judicial
procedure of the sho-gun's court(go sei-bai, official sanction). The procedure in the second instance
at the deputies' court at Rokuhara, Kyoto, was similar.
The whole process was despatched with reasonable promptitude, a quality which was emphasized
by the authorities. If an unreasonable delay occurred on the part of the Commissioner, the parties
might appeal directly to the Recorders or the Councillors.⁷ After the coming of the parties to trial,
the examinations were held and the decision was granted with commendable speed.⁸
If either party saw an error in judgment, he could ask for its revision, and, if the request was
deemed reasonable, the Councillors ordered the Recorders to reconsider(fuku-kan) their findings.
But these were the same Recorders; different examiners could be had only under exceptional circum-
stances. Though an appeal could be carried from the reluctant Recorders to the special Commissioner
on Appeals(yesso bu-gyo), who would then secure the sho-gun's order for a revision, again the
revisers were the same Recorders.
Nor were witnesses admitted, unless the arguments of the parties and their documents were
inconclusive; and the number of witnesses, when allowed, was restricted to two or three.
Throughout the entire procedure the chief reliance was placed upon written records; the match-
ings of charges and answers and the examination of the parties and witnesses were all designed to
call forth, elucidate, and supplement the evidence of the records. This was a procedure, one would
say, far in advance of that followed in Europe at the corresponding stage of feudal development:
the survivals of the judicial combat and of the excessive formalism of the oral trial which still
continued more or less to characterize Occidental justice find no parallel in the Oriental. This
state of things may be explained, in part at least, by the important fact that Japan had, in her
civil government at the imperial capital and in th provinces, adopted the civilized procedure of
China, and had been applying it, lamely as it may be, for five centuries; that, although the feudal
rulers at Kamakura held their own ideas of justice and evolved their own procedure, they were
nevertheless influenced in many a detail by the principles and the manner of justice to which the
nation had so long been accustomed. The idea, for instance, that private justice was incompatible
with public welfare, and the custom to depend upon authentic records as chief evidence in civil
trials, were among the heritages the feudal court had received from the civil. The warrior-judge
could hardly unlearn these well-tried usages and ideas and revert deliberately to methods of verbal
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conventionalities or of decision by duel, if indeed there had obtained such customs in Japan, which
may be doubted. It may be said that something of what European feudalism learned from the
Roman and canon laws after it had passed its maturity. Japanese feudalism inherited from Chinese
and imperial institutions at its birth.
It is also worthy of note that the principle which played an important role in European feudal-
ism, that the lord owed justice to the vassal, was also in operation, in fact though perhaps not in
law, during the Kamakura period (1185-1333) of Japanese feudal history, at least between the
sho-gun and his direct vassals. Without attempting to seek the origin of this principle, we cannot
help noting the lively sense of justice and equity which was entertained and was rigorously and
scrupulously applied by the suzerain and the regent at Kamakura. The robust and stern justice with
which they dealt with affairs which were brought before their courts, often at the expense of their
own feudal interests, has justly been commended by men of later ages. Perhaps the regent, who was
but a peer of all the barons over whom he exercised a real control, needed to justify his powers by
an impartial administration of law; perhaps also he felt obliged to follow and improve upon the
noble example set by the first sho-gun Yoritomo. It is altogether unlikely, however, that the giving
of justice was generally regarded in Japanese feudalism, as it was in the European, as an integral
part of the feudal contract between lord and vassal. However that may be, the popularity and
influence of the regent largely coincided with the success with which he carried out the principle.
When the later regents relaxed their self-control and loosened their sense of justice, their power
waned and the government of Kamakura rapidly declined. At the time of the following document,
we find the regent at the best of his judicial probity and also at the height of his influence.
It is remarkable that the feudal regime, relying, as it did, on customary law, and dispensing
justice among a comparatively limited number of persons, naturally evolved a system of judgment
by peers. We have seen that both the Recorders(hiki-tsuke shu) and the Councillors(hyo-jo shu)
included go ke-nin who sat beside men learned in law and who were frequently changed; in the
lower courts, the judges were almost exclusively warrior-peers and comprised few or no specialists
in law. Perhaps judgment by peers is consequent on all true feudal regimes, but it must be said that
in Japan, though the fact was present, the idea was never consciously and fully formulated, and,
accordingly, the system was not as clearly established as in any of the European feudal countries,
and failed to bear fruit beyond the restricted sphere of its application. We surmise that this dif-
ference was in no small measure due to the difference in the intial condition under which feudalism
rose in Europe and in Japan. There, the participation in judgment by fellow-citizens of the litigants,
like the Rachimbourgs, had characterized the early Frankish period, and so the general idea may
have influenced the procedure in the feudal court so far as the feudal classes were concerned. Here,
in Japan, on the contrary, the Chinese system of law which had ruled her judicial life had no room
for judgment by peers: the government had been purely bureaucratic, that is, by officials set apart
as a class distinct from the remainder of the nation, and the administration of law had been merely
a part of the paternalistic rule exercised by that class; when it had been assisted in the higher
courts by specialists in law, the latter also were officials. If judgment by peers obtained partially in
feudal Japan, it was but natural that it should, following a period of centralized bureaucracy, be
weaker as a principle than in France, where the idea had been inborn in the race and practised for
centuries. However, in Japan, too, the practice, though partial, might perchance in the course of
time have gained force and become strongly established, had it not been for the fact that a general
neutralization of this and other great feudal principles took place under the artificial, centralized
rule of the Tokugawa sho-gun after 1600. It would seem that Japan has lost as much as she has
gained through the bureaucratic government and the Tokugawa rule, which, respectively, preceded
and followed the feudal ages. See, also, our Summary of Points, C-I-c-iv,vi, and vii; D-I-a and b;
D-V.

"IN regard to the myo-shu shiki in dispute between Yoshida Iya-taro Nobutada,⁹
the myo-shu of To-no-hara in Iriki in, and Shibuya Goro bo Jo-Shin, the ji-to.
"Upon trying the aforesaid case by confronting the parties the one with the other,
Nobutada stated: This shiki was held by his father Nobutoshi by heredity; since it
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was customary for go ke-nin in this kuni to keep their holdings¹⁰ even when they did
not carry kudashi-bumi,¹¹ Nobutoshi held the myo-shu shiki without challenge, during
the time of the late U-dai-sho,¹² although Chiba no suke had been granted the so
ji-to¹³ [shiki]; but when, at Katsusa no suke Hidetane's¹⁴ dismissal, in the fourth
year of Kwan-gen [1245], the various myo-shu visited him, in order to pay him their
respects, he seized Nobutada's shiki under the pretext that he did not visit him;
thereupon, as [Nobutada] desired to present his case [before the sho-gun's govern-
ment], the present ji-to Jo-Shin said that he would compose the matter by a compro-
mise,^14a and accordingly Nobutada gave him a statement under oath; and yet Jo-Shin
broke the agreement and molested [the shiki]; etc. Jo-Shin stated: since the afore-
said myo-shu shiki was under the ji-to's control,¹⁵ Nobutada, though he was appointed
thereto during Hidetane's time by his deputy, was during the same time also dis-
possessed; when Jo-Shin received [the ji-to shiki of] the aforesaid in, he restored
Nobutada, as he came forth and wrote his oath; but since he [subsequently] opposed
him, he had dispossessed him; etc. Now, according to Nobutada's oath of Ho-ji 1st
year 8th month 5th day¹⁶ presented by Jo-Shin, Nobutada would not obstruct the
income^16a of the ji-to of Iriki in, and, since Nobutada had been reinstated, he would
not turn against the ji-to and bring his complaint to the higher powers; etc. Though
Nobutada avers that [the myo-shu shiki] was not under the ji-to's control,¹⁵ Jo-Shin's
claim has reason when he says that, since Nobutada did not bring suit at the time of
Hidetada's seizure, but wrote his oath after confiscation and was reinstated by the
present ji-to Jo-Shin, [the shiki] should be under the ji-to's control.¹⁵ Therefore, the
said myo-shu shiki should, both in accordance with the precedent during Hidetane's
time and by reason of Hidetada's oath, be under the ji-to's control. In pursuance of
the command of the Lord of Kamakura, the decree(ge-chi) is [granted] thus.
"Ken-cho 2y. 4m. 18d. [20 May 1250]. Sagami no kami, Taira no Ason,¹⁷ (mono-
gram).
"Mutsu no kami, Taira no Ason,¹⁸ (monogram)."

¹ Hagino Yoshiyuki, in Ho-sei ron-san, 1056.
² The following account is based upon many judicial documents relative to specific cases; articles
of the Jo-ei shiki-moku, the feudal enactment of 1232; examples in the Adzuma-kagami, annals of
the feudal court at Kamakura, passim; the Sa-da mi-ren sho; the Jo-ei shiki-moku sho; the Bu-ke
myo moku sho, chap. 133 and 135; Hagino Yoshiyuki, Kamakura zhi-dai no sai-ban te-tsudzuki,
in the Ho-sei ron san, 1055-1080; Ikebe Yoshikata, Ni-hon ho-sei shi, 577-592, 602-612; Kurita
Hiroshi, Kamakura shoku-kwan ko, manuscript, chap. 3; etc.
³ In 1249, according to the Kwan-to hyo-jo den.
⁴ After 1252, five groups, with subsequent changes.
⁵ An order of 1240 defined the degrees of relationships thus debarred. The measure was designed
to preclude possibility of prejudice in favor of one's relative.
⁶ The Jo-ei shiki-moku, c.35.
⁷ This kind of appeal was called tei-chu; the Jo-ei shiki-moku, c.29; Hagino, 1078-1079.
⁸ The Sa-da mi-ren sho.
⁹ Nobutada was one of the signers of the oath of 1247 (No.15). He had assumed for his family
the name of a place, Yoshida, near Miyasato, where he probably lived.
¹⁰ Sho-ryo; the term applied alike to land and to its various shiki.
¹¹ Kudashi-bumi, literally, a letter handed down, was an official order from any higher power;
here, from the sho-gun's government sanctioning a possession. Cf. No.25, n.6.
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¹² Minamoto Yoritomo, the sho-gun, who held for a time the title U-konoe no tai-sho, general
of the right imperial body-guard, abbreviated as U dai-sho.
¹³ I.e., ji-to general. Chiba no suke Tsunetane, the illustrious go ke-nin, was already in 1186
(see No.8, n.47) gun-zhi of five of the yose-gori of Shimadzu sho; from the land report of 1197
(No.9), we see that he was ji-to over five yose-gori, and that Iriki in was one of those five. The
word so(general) was, in the usage of the period, not always all-embracing, but sometimes com-
prehensive merely of several.
¹⁴ Hidetane was great grandson of Tsunetane. In the summer of 1247, just before the date of
Nobutada's oath to Jo Shin at Iriki, Hidetane's kin the Miura were suspected of treason by the
Hojo regent; Hidetane was involved in the general downfall of the family, and died in Katsusa,
near Kamakura.
^14a That homage in this period was not infrequently repudiated by the vassal, as in this example,
saying that the relation entered into was only one of compromise(wa-yo), may be inferred from
Article 19 of the Jo-ei shiki-moku, of 1232, which reads:
"Of those men, whether near or distant, who having been reared and supported, afterwards
turn their backs on the descendants of their original masters.
"Of persons who were dependent [on a lord], those who were affectionately treated were
perhaps sons, or else personal attendants(ro-zhu). When those persons served their lord with
loyalty, the latter, in his abounding appreciation of the spirit so displayed, have in some cases
handed them deeds of grant and in other cases have given them letters of devise. Yet they pretend
that these were matters of compromise(wa-yo), and oppose the sons or grandsons of their original
master. This is an exceedingly unreasonable procedure. While they sought favor, they behaved as
[the lord's] sons or served as his personal attendants; when their loyalty waned, they either
assumed other names or conceived hostility, and soon forgot the favors of the deceased lord. If
there be any who oppose the descendants of his original lord, the domains that were devised to
him shall be taken away from him and given over to the descendants of the original lord."
¹⁵ Shin-shi, literally, progress and stop, meant control. The word shin-tai, progress and regress,
was also used in the same sense.
¹⁶ No.15.
^16a See No.15, n.4.
¹⁷ Hojo Tokiyori, the Regent, well-known as a wise administrator and just magistrate.
¹⁸ Hojo Shigetoki, the Co-Signer.