afterward lent so rare a charm to Japanese existence. But during two hundred years of peace, prosperity, and national isolation, the graceful and winning side of this human nature found chance to bloom; and the multiform restraints of law and custom then quickened and curiously shaped the blossoming,--as the gardener's untiring art evolves the flowers of the chrysanthemum into a hundred forms of fantastic beauty.... Though the general social tendency under pressure was toward rigidity, constraint left room, in special directions, for moral and aesthetic cultivation.

In order to understand the social condition, it will be necessary to consider the nature of the paternal rule in its legal aspects. To modern imagination the old Japanese laws may well seem intolerable; but their administration was really less uncompromising than that of our Western laws. Besides, although weighing heavily upon all classes, from the highest to the lowest, the legal burden was proportioned to the respective strength of the bearers; the application of law being made less and less rigid as the social scale descended. In theory at least, from the earliest times, the poor and unfortunate had been considered as entitled to pity; and the duty of showing them all possible mercy was insisted upon in the oldest extant moral code of Japan,--the Laws of Shotoku Taishi. [345] But the most striking example of such discrimination appears in the Legacy of Iyeyasu, which represents the conception of justice in a time when society had become much more developed, its institutions more firmly fixed, and all its bonds tightened. This stern and wise ruler, who declared that "the people are the foundation of the Empire," commanded leniency in dealing with the humble. He ordained that any lord, no matter what his rank, convicted of breaking laws "to the injury of the people," should be punished by the confiscation of his estates. Perhaps the humane spirit of the legislator is most strongly shown in his enactments regarding crime, as, for example, where he deals with the question of adultery--necessarily a crime of the first magnitude in any society based on ancestor-worship. By the 50th article of the Legacy, the injured husband is confirmed in his ancient right to kill,--but with this important provision, that should he kill but one of the guilty parties, he must himself be held as guilty as either of them. Should the offenders be brought up for trial, Iyeyasu advises that, in the case of common people, particular deliberation be given to the matter: he remarks upon the weakness of human nature, and suggests that, among the young and simple-minded, some momentary impulse of passion may lead to folly even when the parties are not naturally depraved. But in the next article, [346] No. 51, he orders that no mercy whatever be shown to men and women of the upper classes when convicted of the same crime. "These," he declares, "are expected to know better than to occasion disturbance by violating existing regulations; and such persons, breaking the laws by lewd trifling or illicit intercourse, shall at once be punished without deliberation or consultation.* [*That is to say, immediately put to death.] It is not the same in this case as in the case of farmers, artizans, and traders." ... Throughout the entire code, this tendency to tighten the bonds of law in the case of the military classes, and to loosen them mercifully for the lower classes, is equally visible. Iyeyasu strongly disapproved of unnecessary punishments; and held that the frequency of punishments was proof, not of the ill-conduct of subjects, but of the ill-conduct of officials. The 91st article of his code puts the matter thus plainly, even as regarded the Shogunate: "When punishments and executions abound in the Empire, it is a proof that the military ruler is without virtue and degenerate." He devised particular enactments to protect the peasantry and the poor from the cruelty or the rapacity of powerful lords. The great daimyo were strictly forbidden, when making their obligatory journeys to Yedo, "to disturb or harass the people at the post-houses," or suffer themselves "to be puffed up with military pride." [347] The private, not less than the public conduct of these great lords, was under Government surveillance; and they were actually liable to punishment for immorality! Concerning debauchery among them, the legislator remarked that "even though this can hardly be pronounced insubordination," it should be judged and punished according to the degree in which it constitutes a bad example for the lower classes (Art. 88).* As to veritable insubordination there was no pardon: the severity of the law on this subject allowed of no exception or mitigation. The 53rd section of the Legacy proves this to have been regarded as the supreme crime: "The guilt of a vassal murdering his suzerain is in principle the same as that of an arch-traitor to the Emperor. His immediate companions, his relations,--all even to his most distant connexions,--shall be cut off, hewn to atoms, root and fibre. The guilt of a vassal only lifting his hand against his master, even though he does not assassinate him, is the same." In strong contrast to this grim ordinance is the spirit of all the regulations touching the administration of law among the lower classes. Forgery, incendiarism, and poisoning were indeed crimes justifying the penalty of burning or crucifixion; but judges were instructed to act with as much leniency as circumstances permitted in the case of ordinary offences. "With regard to minute details affecting individuals of the inferior classes," says the 73d article of the code, "learn the wide benevolence of Koso of the Han [Chinese] dynasty." It was further ordered that magistrates of the criminal and civil courts should be chosen only from "a class of men who are upright and pure, distinguished for charity and benevolence." All magistrates were kept under close supervision, and their conduct regularly reported by government spies.

[*Though even daimyo were liable to suffer for debauchery, Iyeyasu did not believe in the expediency of attempting to suppress all vice by law. There is a strangely modern ring in his remarks upon this subject, in the 73d section of the Legacy: "Virtuous men have said, both in poetry and in classic works, that houses of debauch, for women of pleasure and for street-walkers, are the worm-eaten spots of cities and towns. But these are necessary evils, and if they be forcibly abolished, men of unrighteous principles will become like ravelled thread, and there will be no end to daily punishments and floggings." In many castle-towns, however, such houses were never allowed--probably in view of the large military force, assembled in such towns, which had to be maintained under iron discipline.]

[348] Another humane aspect of Tokugawa legislation is furnished by its dictates in regard to the relations of the sexes. Although concubinage was tolerated in the Samurai class, for reasons relating to the continuance of the family-cult, Iyeyasu denounces the indulgence of the privilege for merely selfish reasons: "Silly and ignorant men neglect their true wives for the sake of a loved mistress, and thus disturb the most important relation.... Men so far sunk as this may always be known as Samurai without fidelity or sincerity." Celibacy, condemned by public [349] opinion,--except in the case of Buddhist priests,--was equally condemned by the code. "One should not live alone after sixteen years of age," declares the legislator; "all mankind recognize marriage as the first law of nature." The childless man was obliged to adopt a son; and the 47th article of the Legacy ordained that the family estate of a person dying without male issue, and without having adopted a son, should be "forfeited without any regard to his relatives or connexions." This law, of course, was made in support of the ancestor-cult, the continuance of which it was deemed the paramount duty of each man to provide for; but the government regulations concerning adoption enabled everybody to fulfil the legal requirement, without difficulty.

Considering that this code which inculcated humanity, repressed moral laxity, prohibited celibacy, and rigorously maintained the family-cult, was drawn up in the time of the extirpation of the Jesuit missions, the position assumed in regard to religious freedom appears to us one of singular liberality. "High and low alike," proclaims the 31st article, "may follow their own inclinations with respect to religious tenets which have obtained down to the present time, except as regards the false and corrupt school [Roman Catholicism]. Religious disputes have ever proved the bane and misfortune of this Empire, and must be firmly, suppressed." ... But the seeming liberality of this article must not be misinterpreted: [350] the legislator who made so rigid an enactment in regard to the religion of the family was not the man to proclaim that any Japanese was free to abandon the faith of his race for an alien creed. One must carefully read the entire Legacy in order to understand Iyeyasu's real position,--which was simply this: that any man was free to adopt any religion tolerated by the State, in addition to his ancestor-cult. Iyeyasu was himself a member of the Jodo sect of Buddhism, and a friend of Buddhism in general. But he was first of all a Shintoist; and the third article of his code commands devotion to the Kami as the first of duties:--"Keep your heart pure; and so long as your body shall exist, be diligent in paying honour and veneration to the Gods." That he placed the ancient cult above Buddhism should be evident from the text of the 52d article of the Legacy, in which he declares that no one should suffer himself to neglect the national faith because of a belief in any other form of religion. This text is of particular interest:

"My body, and the bodies of others, being born in the Empire of the Gods, to accept unreservedly the teachings of other countries,--such as Confucian, Buddhist, or Taoist doctrines,--and to apply one's whole and undivided attention to them, would be, in short, to desert one's own master, and transfer one's loyalty to another. Is not this to forget the origin of one's being?"

[351] Of course the Shogun, professing to derive his authority from the descendant of the elder gods, could not with consistency have proclaimed the right of freedom to doubt those gods: his official religious duty permitted of no compromise. But the interest attaching to his opinions, as expressed in the Legacy, rests upon the fact that the Legacy was not a public, but a strictly private document, intended for the perusal and guidance of his successors only. Altogether his religious position was much like that of the liberal Japanese statesman of to-day,--respect for whatever is good in Buddhism, qualified by the patriotic conviction that the first religious duty is to the cult of the ancestors, the ancient creed of the race.... Iyeyasu had preferences regarding Buddhism; but even in this he showed no narrowness. Though he wrote in his Legacy, "Let my posterity ever be of the honoured sect of Jodo," he greatly reverenced the high-priest of the Tendai temple, Yeizan, who had been one of his instructors, and obtained for him the highest court-office possible for a Buddhist priest to obtain, as well as the headship of the Tendai sect. Moreover the Shogun visited Yeizan to make there official prayer for the prosperity of the country.

There is every reason to believe that within the territories of the Shogunate proper, comprising the greater part of the Empire, the administration of [352] ordinary criminal law was humane, and that the infliction of punishment was made, in the case of the common people, to depend largely upon circumstances. Needless severity was a crime before the higher military law, which, in such cases, made no distinctions of rank. Although the ring-leaders of a peasant-revolt, for example, would be sentenced to death, the lord through whose oppression the uprising was provoked, would be deprived of a part or the whole of his estates, or degraded in rank, or perhaps even sentenced to perform harakiri. Professor Wigmore, whose studies of Japanese law first shed light upon the subject, has given us an excellent review of the spirit of the ancient legal methods. He points out that the administration of law was never made impersonal in the modern sense; that unbending law did not, for the people at least, exist in relation to minor offences. The Anglo-Saxon idea of