In his new book on Punishment and Power in the Making of Modern Japan, Daniel Botsman mentions that it became customary in the Edo period to report the theft of goods or money which exceeded 10 ryō in value as being worth nine ryō two bun and three shu. Apparently, this grew out of a growing public realization that the One Hundred Articles, a set of unpublished legal guidelines for punishment compiled under the direction of the eighth shogun, Yoshimune (1684-1751), recommended a death penalty for theft of amounts greater than 10 ryō while lesser amounts were punished with a combination of flogging and tatooing. “This practice could not have continued without the acknowledgment and support of Bakufu officials, who routinely recorded this obviously fictional figure in their official reports.” (46, he cites Hiramatsu Yoshirō’s Edo no tsumi to batsu 86-7 for this)
The legal articles themselves are supposed to be “secret” and official copies only available to higher Bakufu officials, but it looks as though unofficial copies were circulated widely among bureaucrats and Botsman cites one study by a Takahashi Satoshi in which a wealthy peasant named Gin’emon was able to secure a private copy of the laws at a “legal inn” (kuji yado) in Edo where he was staying to represent his village in a murder case. (34)
Together, these snippets are interesting for two reasons. On the one hand it loosens up a bit our perception of a completely mysterious legal regime administering the lives of people who had to depend on the grotesque examples of previously punished criminals described on signposts for their legal knowledge. Secondly, not only do we see examples of serious information leakage, but a fascinating example of how reports of crime were tailored precisely to limit punishments.
Now we would call that “prosecutorial discretion.” I picked up the book at the AHA, and it’s pretty much #1 in my “read because it actually looks interesting” pile….
I’ve just been reading–and posting a couple items from–Reinier Hesselink’s Prisoners of Nambu, which has a fascinating take on “prosecutorial discretion” at the level of Tokugawa foreign policy.
Jonathan – It is indeed very interesting, and a fun (though often grotesque) book to read. Joel, thanks for mentioning that. For those of you who don’t know his excellent site, here is a link to the posting he is referring to:
http://faroutliers.blogspot.com/2005/03/who-made-tokugawa-foreign-policy.html
A very, very late addition (because I missed this post earlier): in England and Wales from the 16th (and earlier) to 19th centuries, the theft of goods worth less than 12 old pence, ie a shilling (petty larceny), was punished by whipping; the theft of goods worth more than that was grand larceny and punishable by death. There is now overwhelming evidence that juries at trials would routinely give discretionary verdicts: they would find someone guilty of theft (of goods sometimes valued at several shillings or even more) only ‘to the value of’ 6 or 10 pence: it was clearly a fiction and they were deciding that while the defendant was guilty and should be punished, the crime did not warrant hanging.
Sharon – fascinating…looks like this tendency was something of a global phenomena!