The Insufficiency of the Japanese Lawsby Montesquieu
EXCESSIVE punishments may even corrupt a despotic government as seen in Japan.
There, almost all crimes are punished with death because disobedience to the great Japanese emperor is reckoned an enormous crime. The question is not so much to correct the delinquent, as to vindicate the emperor’s authority.
- are derived from servitude
- come mainly from the emperor being the universal proprietor.
These render almost all crimes to be directly against his interests. They punish with death lies spoken before the magistrate a proceeding contrary to natural defence.
Even things which have not the appearance of a crime are severely punished= for instance, a man that ventures his money at play is put to death.
The Japanese are so amazingly obstinate, capricious, and resolute, as to defy all dangers and calamities. They seem to absolve their legislators from the imputation of cruelty, despite the severity of their laws.
But are men, who have a natural contempt of death, and who rip open their bellies for the least fancy; are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments?
The relations of travellers inform us, with respect to the education of the Japanese,
- that children must be treated there with mildness, because they become hardened to punishment;
- that their slaves must not be too roughly used, because they immediately stand upon their defence.
Would not one imagine that they might easily have judged of the spirit, which ought to reign in their political and civil government, from that which should prevail in their domestic concerns?
A wise legislator would have tried to reclaim people by:
- a just temperature of punishments and rewards
- maxims of philosophy, morality, and religion, adapted to those characters
- a proper application of the rules of honour
- the enjoyment of ease and tranquillity of life.
He might fear that the people would have been inured to the cruelty of punishments to the point that they would no longer be restrained by mild ones. In this case, he should gain his point gradually by mitigating such cruel punishments in particular cases, till he can extend this mitigation to all cases.
But these are springs to which despotic power is a stranger. It may abuse itself, and that is all it can do. In Japan it has made its utmost effort, and has surpassed even itself in cruelty.
As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.
This is the origin and spirit of the laws of Japan.
They had more fury, however, than force.
They succeeded in exterminating Christianity. But such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good polity, and they have shewn greater marks of their weakness.
We have only to read the relation of the interview between the emperor and the daimyo at Miako.
- There were so many people suffocated or murdered in that city by ruffians.
- Young maids and boys were carried off by force and were exposed naked in public places at unseasonable hours and sewed in linen bags to prevent their knowing where they were going
- robberies were committed in all parts
- the bellies of horses were ripped open, to bring their riders to the ground
- coaches were overturned in order to strip the ladies.
- The Dutch were told not to pass the night on the scaffolds if they didn’t want to be be assassinated.
The emperor abandoned himself to infamous pleasures. He lived unmarried and was consequently in danger of dying without issue.
The daimyo sent him two beautiful damsels. One he married out of respect, but would not meddle with her. His nurse sent the finest Japanese women to him, but all to no purpose.
Finally, an armourer’s daughter having pleased his fancy and they had a son. The ladies of the court were enraged to see a lowly person preferred to themselves, so they stifled the child.
The crime was concealed from the emperor, otherwise he would have deluged Japan with blood. The excessive severity of the laws hinders, therefore, their execution. When the punishment surpasses all measure, they are frequently obliged to prefer impunity to it.