Legal Hitory Review vol.55 i2005j
Summaries of Articles


A Basic Study on the Judicial Reviews and Inspections of Cases by the Emperors in Medieval China
by Masahiro TSUJI

key words: Six Dynasties period, imperial garden, judicial review, inspection of cases, imperial prerogative
       
        This article considers the historical meaning of judicial reviews () and inspections of cases (^) performed mainly by the emperors in Medieval China, who tried to establish a new authority of their dominance.
        The first emperor who reviewed difficult cases sent from the judicial organs was Mingdi in the Wei () dynasty. He proceeded to a tall building named Tingsong-guan (V) for hearings, attempting to strengthen the authority of his new dynasty. The emperors of the Jin () dynasty gave careful attention to prisoners as inspection of cases at this building, which remained an important symbol of imperial prerogative.
        In the Southern Dynasties, the emperors periodically proceeded to the imperial garden named Hualin-yuan (ؗщ) for judicial hearings. Their purpose was also to establish and reinforce their prerogative. The venue for the imperial hearings ware temporarily moved to other buildings named Zhongtang () and Yuewu-tang ({) from the end of the Song (v) dynasty to the Southern Qi () dynasty, with the intent of reinforcing the power of the emperors. Wudi () in the Liang () dynasty tried to revive the judicial system of the Han dynasty and to institutionalize the inspection of cases at the prisons, delegating that work to the ministers.
        In the first half of the Northern Wei (k) period, the emperors who were decended from Tuoba () Turks delegated the practical affairs of judicial review to Chinese bureaucrats. After the capital of the empire moved from Pingcheng () to Luoyang (z), the emperors often made short trips around the palace ({) in a carriage accepting appeals (\׎) for reviews by themselves, as they headed to emphasize their prerogative. During the Northern Zhou (k) and Sui (@) periods, the system of imperial review clearly changed. The emperors reviewed cases in the palace court which was the center of the imperial administration.
        The emperors of the Northern Wei dynasty often gave careful attention to prisoners as inspection of cases when severe drought damage had occurred, as they were influenced by traditional Chinese thoughts including Zaiyi (Ј) doctrines. After the Northern Zhou period, the connection between the inspections and drought damages faded away. The inspection of cases was institutionalized in the Sui dynasty, and the emperors gave careful attention to prisoners at the palace, at the request of the Court of Judicial Review (嗝).


The Establishment of Rinji d|
by Natsuko Furuse


Keywords:Emperor, Rinji (a document concerning the personal edict of an emperor.), Hosho (a document acknowledging an order to be carried out.), Kurodo (a storehouse archivist in which imperial edicts and other records were kept.), Administrative office of a province or noble family

        Rinji d|is a member of the Hosho group of documents. Hosho was a letter-form document that was written by servants or lower-ranking officials that was used to convey the proclamations of higher authorities to lower authorities. Rinji was mainly reserved for imperial orders. This paper considers the processes that established Rinji , as well as the reasons behind Rinji fs importance in the eleventh century.
        First, it is important to focus on how imperial orders were transmitted during the eighth century. Documents from Shosoin q@ show us that orders from emperors, cloistered emperors and empresses were initially transmitted orally by those who first received the order. After oral transmission, officials then transcribed the order, so as to convey it to others. There seem to have been few documents dictated directly by an emperor, cloistered emperor or empress. It should also be noted that the documents made for the transmission of imperial orders were not necessarily in letter-form.
        During the period under the statutory system (Ritsuryo-sei ߐ), transmissions of imperial orders were usually carried out by Naishi-no-tsukasa i. A number of documents from Shosoin were recorded from the dictations of female attendants and nuns during this period. In the ninth century, imperial orders were transmitted by Naishi-sen . At that time, Naishi made oral transmissions of imperial orders, and in many cases it was after this oral proclamation that male officials issued documents concerning the imperial order.
        In the first year of the Konin-period (810), the office of Kurodo lwas established in the wake of the revolt of Kusuko q̕. The office of Kurodo expanded in size and function from the end of the ninth to the beginning of the tenth century, and as a result, the exclusive functions involving communication between the emperor and officials moved from the Naishi to the Kurodo.
        From the tenth century onwards, many cases can be found where the Kurodo were transmitting imperial orders and mediating messages to the emperor. Although in many cases these transmissions were made orally, there are some examples that show the Kurodo had documented imperial edicts in letters. Letters written by the Kurodo are quoted in some diaries dating from the middle of the Heian period. In the diary eGonkif wLx, for example, Kurodofs letters concerning imperial orders were occasionally referred to as eoose-gakif , which suggests that the documents were written in the style of a letter from a higher to a lower authority. Also, the diary eShoyukif wELx quotes letters in which the Kurodo wrote imperial orders with detailed instructions on business. On the other hand, later Rinji seldom contained such detailed instructions. Moreover, the letters of the Kurodo found in eGonkif and eShoyukif do not include the same closing phrases as seen in Rinji . On the other hand, the diary eSakeikif woLx, which was written during the period of Emperor Go-Ichijo , referred to letters that contained the same closing phrases as Rinji .
        The documents that were specifically known as Rinji originate in the reign of Emperor Go-Ichijo. Earlier Rinji resembled the letters of the Kurodo quoted in the previously mentioned diaries, since both had contents that were twofold - the private rituals of the emperor himself, and the official rituals and ceremonies held within the imperial court. Therefore, it appears that the style of Rinji as a document was established during the reign of Emperor Go-Ichijo. Comparing Rinji with the transmission of imperial edicts in the eighth and ninth centuries, it seems clear that the orders of the emperor were transmitted more directly, since in Rinji the orders were recorded in writing by the Kurodo, who received the order at first hand.
        In the background, behind the establishment of Rinji , were changes in the political system in the imperial court. Kan-gata and Kurodo-gata lwere established, following the reduction of Dajokan (the council of state, ) and the expansion of the office of the Kurodo. As a result, the political function of the imperial court began to undertake more family-administration roles. The administration offices of families were set in the offices of cloistered emperors and in those of third and upper ranking aristocrats. In these offices the orders of the lord at the head of the family were recorded in letters, which were called Inzen @ or Migyosho 䋳, and developed alongside Rinji . In the Middle Ages, Rinji , Inzen and Migyosho, together with Kudashibumi , were establishing their roles as documents issued by powerful families.


The Abolition of Portuguese Consular Court in Meiji Japan; the Incident before the Revision of the Unequal Treaty in 1894
By Emiko NAKAAMI

key words: Consular Court, Unequal Treaty, Extraterritoriality, Mutsu Munemitsu, Treaty Port
       
        In 1860, Japan concluded the amity and commerce treaty with Portugal. The treaty unilaterally gave Portugal various privileges including consular jurisdiction over its subjects within Japan. Although Tokugawa shogunate collapsed in 1868, the treaty itself was inherited by Meiji government. For Meiji Japan, two serious issues were how Japan could recover perfect territorial rights and tariff autonomy. As for the former issue, the important step was that Japan eliminated Portuguese Consular Jurisdiction in 1892, 2 years before the revised commerce and navigation treaty with England.
        This article shows the historical backgrounds and tries to interpret the meaning of the incident between Portugal and Japan in the process of the treaty revision with great western powers. In the late 19th century, the prosperity of Portugal was declining and Japan attached much more importance to the relationship with England, France, and Germany. However, according to the legal statistics at that time, there were a certain number of civil cases between Portugal and Japan. Portugal was often accused of the fragile consular court system by Japanese government. Especially, Portugal often used a part-time merchant consul rather than a full-time regular consul in its consulate. Japan was annoyed with the appointment of merchant consuls by western countries and strongly opposed that those merchant consuls worked as a judge in their consular courts. Japan claimed that the consular court should be tried preferably by a Judge who had adequate legal knowledge and skills or at least by a regular consul who was less influenced by the interests of the local community.
        In spite of repeated objections by Japan, due to the shortage of the administrative costs, the central government of Portugal decided to abolish its Consular General in Japan in 1892. This abolition led Japan to issue Imperial ordinance No.64, which declared to abrogate the privilege of Portugal consular jurisdiction over his subjects within Japan. At the same time, Japan paid the closest attention not to offend other western countries and exchange frequent correspondences with Japanese diplomatic offices abroad. Fortunately, England was indifferent to the dispute between Japan and Portugal. France, however, came forward to the negotiation table, as Portugal appointed Collin de Plancy, a French envoy, as a deputy consul. Japan, even under the pressure by Portugal, France and other western countries, tried Portugal subjects in Japanese courts soon after Imperial Ordinance No.64 but made every efforts to modernize the law and legal system so as to avoid the intervention by western countries. This incident also showed an example that Japan, with the issue of Imperial ordinance, succeeded eliminating a foreign consular court.