Sharitsu (law on pardon) (赦律)

Sharitsu is a law on pardon, which was enacted by the Edo Shogunate in 1862 during the last period of the Edo era in Japan. It should be noted, however, that the law had already been drafted in 1851.

Ever since the Ritsuryo law, various laws regulated pardons, but Sharitsu was the first law in Japan that specified limits and procedures of pardons.

Circumstances

In the Edo Shogunate the Seii Taishogun (literally, "great general who subdues the barbarians") had the supreme power to grant a pardon when either the Tokugawa Shogunate Family or the Imperial Family had an auspicious event, a calamity or held a Buddhist memorial service. It was then executed by the roju (senior councilors), hyojosho (conference chamber) or sanbugyo (three municipal administrators). Furthermore the temples Kanei-ji and Zojo-ji, which administered the memorial services of the Tokugawa Shogunate Family, were authorized to recommend a pardon.

This system had various problems, however, including that of pardons granted too frequently; of temples Kanei-ji and Zojo-ji that were supposedly apolitical were allowed to recommend pardons; of recommendations that only the family of a convict were allowed to ask for (thus it was hardly possible for convicts who had no relatives); and of obscure criteria for granting a pardon because the conference chamber discussed the propriety of each case separately. In 1772 the conference chamber (hyojosho) burned down in The Great Fire of Meiwa and all the documents on pardon were lost. In order to compensate the loss, the Shogun's retainers at the conference chamber complied the records on pardon collected in the Bunka period (1804-1818) into "Taisharitsu" and it was used as reference at the conference chamber, but it was not sufficient enough.

In 1851 the senior councilor Masahiro ABE called commissioner of shrines and temples Yasuori WAKISAKA (Tatsuno domain), finance commissioner Yoritaka IKEDA and South Edo magistrate Kagemoto TOYAMA (Kinshiro) and ordered them to lay down an official law on pardon. Abe aimed at establishing an impartial and precise standard in order to admonish the arbitrary granting and pave the way for an equivalent opportunity for all convicts to be granted a pardon. One more intention can be known by looking at the records of that time: by establishing a law on pardon, Abe intended to actually revise the law of the Edo Shogunate, the Kujigata-osadamegaki (literally, "book of rules for public officials").

The law of the Edo Shogunate was originally the law of the Matsudaira clan of Mikawa Province from the Sengoku period. With the subjugation of the land by Ieyasu TOKUGAWA it developed into a law on a nationwide scale. Its content was based on militarism that emphasized to suppress crimes by punishment and intimidation. Objectivism, which judges a crime based on accountability, was a strong factor. That is why punishments of the Edo Shogunate were inclined to be severe. The law of Ieyasu was the ancestral law, changing it could be regarded as a treasonable act which insulted Ieyasu and the Shogunate in the Confucian and conservative point of view. When the Kujigata-osadamegaki was enacted, it was partly moderated, but the law system of the Sengoku period was taken over unaltered till the last days of the Tokugawa Shogunate. Abe avoided a direct reform of the Kujigata-osadamegaki, as even a discussion about reforming it might stir up the conservatives, so he used pardon as a means of reducing the penalties provided in the Kujigata-osadamegaki, and by using such a roundabout method he intended to reform the Kujigata-osadamegaki as a result.

On behalf of Abe the three men thoroughly examined customary controversial points while referring to the "Taisharitsu." A scheme to mitigate actual punishments was incorporated, although former regulations on pardon remained as they were, but they were put together with conventional procedures in the hands of the council chamber, and Juveniles younger than fifteen who were formerly given severe punishments like banishment including cases where they were guilty only because of a relative's crime (enza) became eligible for pardon right away.

One year after the compilation started, however, the domestic and foreign situation became turbulent due to the arrival of the black ships and it postponed taking the law into effect, then Abe and Toyama died suddenly and the conservative Naosuke II seized the power, and as a result the law on pardon was practically consigned to oblivion. Eleven years after the compilation started, enforcement was suddenly ordered in March, 1862 (the third year of the Bunkyu era). It is pointed out that this sudden order might be relevant to the appointment of Yasuori WAKISAKA, who participated in the compilation of the law, as the senior councilor and to the so-called Bunkyu Reform of that time, but the particulars are still unknown.

Content

It should be noted first that punishments at that time were broadly divided into the followings: death penalty, long term expulsion like exile to an island and banishment, and punishments which were executed immediately after the verdict was passed, like beating and harsh scolding. Therefore, those who could actually be pardoned were mostly convicted persons who were exiled to an island or banished. Other possible cases of pardons were prisoners on remand, and claims for lost honor of dead samurai who had been punished with confiscation (kaieki, confiscation of land, stipend, and house) and of monks who were exiled from their sect as punishment (provided that only their religious qualification, not their official position or their stipend (rokudaka), could be retrieved).

It was also necessary to serve time for a specified time period. Convicts were eligible for a pardon after serving the specified period of term; namely, 11 years for banishment from one's residence (tokorobarai); 14 years for banishment from Edo (Edobarai); 17 years for banishment from Edo and its outskirts (Edo Juri Shiho Tsuiho); 20 years for light banishment (Keitsuiho); 23 years for medium banishment (Chutsuiho); 26 years for heavy banishment (Jutsuiho); 29 years for exile to a remote island (ento); 10 years for outcast; and 11 years for rehabilitation for Samurai and Buddhist monks.

Pardons were granted for children who were punished because of their father's guilt (enza) and for juveniles under fifteen years old where the punishment was not enforced yet, regardless of their term. A pardon was approved after a short time in cases which had little effect on society (for example, after six years where the requirement was eleven years); conversely, a pardon might not be approved in cases which had a big effect on society. A unique point of this law which reflected the historical background was that a pardon did not extend to "crimes on foreigners or crimes committed together with foreigners."