Kirisute gomen (a privilege granted to samurai warriors) (切捨御免)
Kirisute gomen, as well as the rights to bear a surname and to wear a sword, is one of a warrior's privileges in the Edo period. It is also called "burei-uchi."
In modern ages, when a warrior put townspeople or farmers to a sword because he was unbearably insulted by them, he was not punished. It was clearly written in the additional condition of Article 71 of "Kujigata-osadamegaki" (the law of Edo bakufu), the law decided by the Edo Bakufu in those days.
It was considered a type of justifiable defense to protect the honor of warriors and it did not mean a punishment to the insult itself.
According to the commonly accepted theory, under laws that predate the modern age in Europe and modern legislation, justifiable defense or violation of the sanctity of life in order to protect one's honor was not accepted from the viewpoint of legal equilibrium. (Before the modern age, however, it was possible to redeem one's honor by dueling.)
On the other hand, it was considered that helping to protect warriors' honor and dignity by Japanese Kirisutegomen kept the social order, of which warriors were at the top. It is considered that Kirisutegomen was admitted from that viewpoint.
Since it was a type of justifiable defense, usually warriors did not give the finishing blow to his offender(s), although the latter would die eventually. Kirisutegomen should be done immediately to an offensive act and Kirisutegomen to an offensive act that had been done before was punished.
After killing offenders with a blade
After killing an offender with a blade, the warrior should immediately report it to an office. The warrior had to take responsibility for killing someone regardless of what circumstances he faced, and he was ordered to stay at home for more than twenty days. The blade used for killing was temporarily confiscated as evidence for the investigation. An offensive act had to be proven and a witness to prove it was required. Like this, the conditions for application were strict.
If the killing was not admitted as Kirisutegomen, for example, because of the absence of a witness, the warrior was punished. In the worst case, the warrior was not given Seppuku (suicide by disembowelment), the honorable death for warriors, but was beheaded and there was a possibility of Oie-danzetsu (disassociation from the family line). So, while the warrior himself stayed at home, his family, servants and fellows looked for a witness desperately. When it was unlikely to find a witness, a lot of warriors killed themselves by disembowelment to keep their honor without waiting for the result of consultation (trial). When a warrior pulled his sword out for Bureiuchi but the offender ran away, the warrior was punished because his deed was considered a warrior's dishonor.
Any person who felt Joiuchi (kill of offender) or Bureiuchi (kill of dishonor) outrageousness was allowed to fight against or even kill his enemy using a short sword however overcoming their status distinctions were (even the enemy was his superior). When the attacked was a warrior and was attacked in Bureiuchi without resisting the attacker, he was punished severely as an 'imprudent person' since he was expected to be a soldier who worked for the protection of the nation and to conquer outside enemies (military and police power). Even when the attacked survived, he was severely punished, including deprivation of samurai class and confiscation of his house and household articles. Both the attacker and the attacked one had to fight desperately. When the superior conducted Joiuchi, he sometimes had his man have a short sword, instigated him, and immediately killed him using a blade.
Such a chivalrous attitude sometimes worked negatively. Saheiji TOMOKAI, a vassal of Owari domain bumped into a townsman on the street. Saheiji reproached the townsman, who tried to leave, ignoring Saheiji. Saheiji was unwilling to kill the townsman without any arms, tried to fight like by dueling and giving him his short sword.
However, the townsman ran away with the short sword, and went around saying, 'I've conquered Saheiji.'
Since Saheiji got a bad reputation, he was forced to run away. In order to save face, Saheiji found out where the townsman lived and killed not only him but also all the members of his family.
Any harmful deed toward a person of another domain could be regarded as hostile behavior to the suzerain to whom the killed person belonged, even if it was the result of Kirisute gomen, justifiable defense. When a warrior did harm to a townsman in Edo, directly-controlled land by the Bakufu, it could be regarded as an attempt of rebellion against the Tokugawa Bakufu. Because of this, it was recorded in many domains that official directives saying "You should respect yourself not to have trouble with townsmen," were issued many times, without directly mentioning Kirisutegomen. So, some townsmen who knew this situation, deliberately challenged warriors in order to try to act strong or play chicken.
When a warrior was seen insulted by a townsman without doing anything about it by his colleague(s), the warrior was denounced as 'a coward' and was punished as 'not having the samurai spirit.'
Therefore, a warrior had to avoid walking alone without his servant in order to avoid facing such shame on the streets. It was especially required that warriors should not enter a playhouse, where they were likely to have close contact with townspeople.
As shown above, although Kirisutegomen was admitted as a privilege granted to samurai warriors, it was impossible to use the privilege easily. Since there was a high probability that it would not be admitted as legitimate, few warriors actually conducted Kirisutegomen and few were admitted as legitimate.
Relationship between lord and vassal and Bureiuchi
When a lord killed his servant(s) who did something disadvantageous with a blade, it was called Bureiuchi (Joiuchi (killing of an offender)). In this case, servants included not only warriors but also non-warrior servants such as Chugen, manservants, and maid servants (theoretically, servants included day workers). Bureiuchi, which was based on the relationship between a lord and his vassals, was regarded as conducting a lord's punishment right to his vassals. The strict rules mentioned above were not applied to Bureiuchi, and the lord was not held criminally responsible for killing his vassal(s). However, when a lord was considered to have some problems in his ability to manage his vassals, he was sometimes regarded as 'unable to control his house' and given such punishment as retirement or house confinement. It was not a justifiable defense but a punishment, so the final blow was often given.