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In 1895, the Chūō Shinbun serialised Sashimonoshi Meijin Chōji (Master Cabinetmaker Chōji) by noted oral storyteller (rakugoka) San’yūtei Enchō. Adapted from de Maupassant's Un Parracide, it tells of Chōji’s murder of his suspected parents. Chōji is declared innocent of patricide since the killing was, technically, retribution for the murder of his father. The alterations made to the original reflect engagement with debate over law reform and nostalgia for a neo-Confucian morality. In the same period, Australian-born rakugoka Henry Black, who affiliated with Enchō’s San’yū-ha guild of storytellers, also contributed to the Meiji law reform debate by adapting Western detective fiction to demonstrate European legal procedures. By examining references to legal practice in Black’s stories and in Enchō’s Sashimonoshi Meijin Chōji, this paper illustrates the contribution by professional storytelling to debate over law reform in the Meiji period. The debate encapsulated themes found in current discussion about law reform in Japan. Examination of the context within which law reform took place in the Meiji era contributes to a more nuanced understanding of the complex origins of current debates over law reform as Japan continues to harmonise its domestic laws with those of the rest of the world.

Key Words: law reform; Henry Black; rakugo; San’yūtei Enchō; Meiji period; sensation fiction

The notion of law reform in Japan is always hotly debated. The need to harmonise domestic laws with international laws or the laws of major trading partners often conflicts with domestic imperatives and sensibilities which many stakeholders can claim are mediated by tradition and history. In recent years Japan’s corporate governance laws have been in the spotlight as the country’s lawmakers tinker with structural change in an attempt to stimulate the economy (Nottage and Wolff 2005). Elsewhere Liberal Democratic Party and other conservative elements within and without the government have raised the possibility of reforms of family and education laws, in some instances managing to effect such change through legislation. Opponents argue that such changes radically alter the relationship between the individual and the state, posing challenges to the current status quo (Miyake Shoko 2006). Such debates reflect ongoing engagement with law reform in Japan. This engagement saw extraordinary impetus in the Meiji period (1868-1912) when a new civilian government, which had wrested power from the shogun, introduced a radical program of reform aimed at modernising the country with the major European constitutional monarchies as their template.

The Meiji-era law reform debate encapsulated many of the issues which continue to preoccupy law reformers today. These issues impinge on the extent to which Japan’s laws should be aligned with domestic needs and sensibilities or with the demands of the rest of the world. Today, the debate is carried out in the pages of the country’s broadsheet newspapers, the Internet, and in parliament. In the Meiji period, it was also carried out via newspapers, the newly constituted Diet, and at public meetings attended by intellectuals and wealthy farmers affiliated with the pro-democracy movement. But there was another venue for the debate. It was the vaudeville halls where between performances by contortionists and samisen players, professional storytellers (rakugoka) narrated serialised tales to audiences, many of whom could not read the difficult kanji characters of the contemporary broadsheets. At the height of the Meiji law reform debate in the 1890s, innovative storytellers introduced trial scenes and examples of Western law to edify and entertain.

One of the more unusual of these storytellers was the Australian-born Henry James Black. In 1894, well before its introduction to the Japanese reading public in translated form, Henry Black presented the elements of Charles Dickens’s Oliver Twist on stage and in the Yomiuri shinbun in an adaptation titled Minashigo [the orphan]. While Black’s version used Japanese names and culled extraneous subplots, it retained a key scene in which Oliver (as Seikichi) is arraigned before an English court on suspicion of pick-pocketing. Black’s didactic explanations of court procedure in Britain exceeded any provided in the original Dickens version. A significant number of Black’s other narrations from this period also contain references to English legal practice as well as comparisons between European and Japanese legal procedures.

A year after the publication of this story, Black’s mentor, the leading storyteller San’yūtei Enchō, also portrayed a dramatic trial scene in the story Sashimonoshi Meijin Chōji (Master Cabinetmaker Chōji). This story was based on the Guy de Maupassant short story Un Parracide (Patricide). Enchō’s story was serialized in the Chūō shinbun between 28 April and 5 June, 1895, and published in book form in October of the same year. Relying on a technicality only possible under an obsolete, but still popular, samurai code, Enchō showed how a self-confessed murderer could be judged innocent of the charge of patricide.

Both storytellers were astute judges of what would appeal to audiences given the contemporary popularity of mystery novels. They are also evidence of participation by these two prominent rakugoka in the on-going debate over legal reform in Japan involving the wholesale rewriting of the nation’s legal codes under the influence of English, French, and Prussian models. At the time, Enchō was the head of the leading San’yū guild (San’yū-ha) of rakugo to which Black, whose stage name was Kairakutei Burakku, also belonged.

Whereas Enchō’s story exhibits nostalgia for a pre-Restoration neo-Confucian morality, representing a challenge to the reforms, Black’s references to the law invariably emphasise Western legal practice as the model for a modern, civilised country. Both exemplify different aspects of the debate over law reform – on the one hand, the desire to retain aspects of the indigenous Japanese spirit, and on the other, an argument in favour of bringing the country’s laws into line with what were understood as the civilised norms of Western Europe. This paper analyses Enchō’s Sashimonoshi Meijin Chōji and the many references to legal procedure and law reform in Black’s narrations to illustrate the complexities of the Meiji-era debate over law reform and the manner in which professional storytellers facilitated the carrying of this debate to a mass audience.

Civilisation and Law Reform

Reform of the law and legal institutions was an important plank in Meiji-era (1868-1912) Japanese government attempts to revise the terms of treaties signed between Japan and a number of Western powers, including the United States and Britain, between 1858 and 1869. The treaties had subjected Japan’s external trade to tariffs imposed by the foreign treaty powers. They had also given foreigners extraterritoriality in a limited number of ports, guaranteeing them immunity from Japanese judicial control. These terms rankled with successive Japanese governments and motivated a decades-long drive to end the treaties (Hoare 1994, pp. 1-17; Jansen 1995, pp. 283-285). But as far as the Western powers were concerned, no revision of the treaties could occur until Japan modernised its laws, including its legal codes.

Perceived deficiencies in pre-Meiji Restoration legal practice included the non-existence of the profession of attorney (Noda 1976, p. 145).^[1] A neo-Confucian state philosophy meant many daimyō had used Chinese models for their codes, but although they had to ensure statutes did not contravene those of the central government (bakufu), legal procedures and penalties for crimes were not standardized across the country. Punishments also differed depending on rank (Steenstrup, 1996, pp. 121-123). Recent scholarship suggests however that in spite of such inconsistencies, a number of Tokugawa regime practices and institutions may have facilitated the post-1868 Meiji Restoration modernisation of Japan. In law and legal practice, for example, John O. Haley suggests that ‘the existence of analogous institutions, processes, and even norms in Tokugawa law’ ensured that ‘for the most part, Western legal institutions, processes, and even derivative legal rules proved to be easily integrated into the Japanese cultural and institutional matrix’ (Haley 1991, p. 70).

Nevertheless, the process of reform and integration entailed several decades of trial and error as interested parties debated, legislated, annulled and rewrote relevant laws and legal codes. To assist in the rewriting of the codes, the government imported overseas experts. They included Georges Bousquet, an advocat at the Paris Court of Appeal, who arrived in 1872, Gustave Boissonade, who was a professor at the Faculty of Law in Paris, and German constitutional expert Hermann Roesler. Boissonade’s impact was far-reaching. He remained in Japan for 20 years, assisting in the drafting of the penal and criminal procedure codes, ‘the first modern codes to be applied in Japan’ (Noda, 1976, pp. 44-53). In the early years of the Meiji period, many judges were also trained in English and French law so that even before the coming into force of newly written Japanese codes, French or English law became benchmarks for handing down rulings (Noda, 1976, p. 53; Hamilton and Young, 2001, pp. 2-10).

The influence of foreign experts and the parallel introduction of differing codes from Britain and France, contributed to debate over the extent to which newly framed laws and codes should reflect indigenous Japanese morality. Symptomatic of this debate was the mixed reception accorded the new civil code, which Boissonade had helped to compile. Promulgated in 1891, it was due to come into force in 1894, but in 1892, its detractors succeeded in postponing it (Noda, 1976, pp. 45-49). Haley’s assessment of the matter acknowledges a number of likely factors, including that it was a factional dispute between proponents of ‘English’ and ‘French’ schools of Western jurisprudence, that it was a reaction by traditionalists to the prospect of the loss of ‘traditional values and patterns of behaviour,’ or that it was a symptom of a struggle between ‘progressive internationalists’ and ‘ultranationalist political reactionaries.’

The evidence indicates that by the 1890s ‘esteem for French law had waned in Japan as in Europe as deference to German legal science (and German economic and military power) grew’ (Haley, 1991, p. 10).^[2] In the event, it was not until 1896, the year after publication of Enchō’s Master Cabinetmaker Chōji, that a new civil code covering general principles, real rights and obligations was enacted. And it was not until 1899 that one covering family law and succession was enacted. Important stumbling blocks were the provisions on family law and law of inheritance, which Hamilton and Young suggest ‘govern perhaps the single most important element that secures social stability over time and defines the persistence and continuity of an inherently indigenous identity.’ (2001, pp. 7-9).

A further revised penal code promulgated in 1890 eliminated discriminatory punishments based on social rank, affirmed that a crime and its penalty should be mandated under law, and enshrined the notion of the protection of private property (Hamilton and Young, 2001, p. 747). The reforms were a direct result of a new psychology of criminals as reformable humans, all attributable to new definitions of the self under the impact of the European natural rights philosophers. It is important to note however that the differences over the content of the codes were essentially ideological. It is not surprising therefore that rakugoka of such differing backgrounds as Enchō and Black should have taken divergent views of the debate.

In the long run, penal code reform amounted to a radical reorientation away from a pre-Meiji neo-Confucian morality toward a Western morality based on individual rights. The changes affected rights to property, with consequent implications for definitions of family, marriage, and citizenship within the nation-state. An indication of the extent of the changes is the fact that even the language of the law ‘was almost completely rewritten’ so that ‘in definition hardly a single term of Japanese legal language survived the transformation’ (Haley, 1991, p. 69). Pre-Restoration terminology was simply incapable of expressing many of the newly introduced concepts. It is hardly surprising therefore that rakugoka, whose stock-in-trade was the Japanese language, should also have engaged in the debate over the changes.

Carrying the Law Reform Debate to a wider audience

Henry James Black (Image courtesy of the National Library of Australia)

Henry James Black was one of the more remarkable members of the rakugoka fraternity in these years and his life is the subject of several studies in Japanese and English (Sasaki and Morioka, 1983; Kojima, 1997; McArthur, 2007a, 1992). Born in the British colony of South Australia in 1858, Black arrived in Yokohama with his mother Elizabeth in November 1865 (Asaoka, 1987). His father, John Reddie Black had arrived in Nagasaki^[3] two years earlier, and shortly afterwards found work as a newspaper editor in Yokohama. During his time in Japan, John Black was editor of the Japan Herald, the Japan Gazette, The Far East, and the Japanese-language newspaper Nisshin shinji shi. Accounts of Henry Black’s life indicate he spent the years prior to becoming a rakugoka in the company of newspaper staff, political activists, orators, and storytellers. Among early influences were his Freemason and journalist father’s nineteenth-century middle-class British liberalism, specifically a belief in equality before the law, as well as support for freedom of expression. Freemasons (Baigent and Leigh, 1990, p. 248) encouraged in members a belief in self-improvement and education (Black, 1990, p. 397), qualities which inspired many British and American expatriates in their approach to the task of bringing Western civilization to Japan (Black, 1968, [1] pp. 15-16). The presence of the Freemason’s insignia on a significant number of gravestones, including that of John Black, in the oldest section of the Yokohama Foreigners’ Cemetery, attests to the influence of Freemasonry among those of John Black’s generation who lived and died in Japan.

As a newspaper editor, John Black counted a number of bakumatsu and post-Restoration reformists among his acquaintances. These included members of the pro-democracy Freedom and People’s Rights movement. The movement was initially led by disaffected former samurai using the rhetoric of natural rights to garner support for campaigns for a representative assembly, local autonomy, and class equality. But its leaders were not revolutionaries. Many, including Itagaki Taisuke and Gotō Shōjirō, who were known to John Black, were as much interested in gaining political power from the ruling oligarchy as in enlightening the masses (Jansen, 1995, pp. 243-244). Adherents mostly favored a constitutional monarchy and endorsed the patronizing view of the educator and writer Fukuzawa Yukuchi that ‘liberal ideas such as freedom and independence had to be instilled in the people’ (Hane, 1983, p. 92). Nevertheless, the dialogue they initiated in the late 1870s attracted disaffected persons from outside the samurai class, including urban industrialists and some merchants. The issue of rice prices and land taxes^[4] also aggravated wealthy farmers (Jansen, 1995, p. 210), many of whom joined the movement, expanding its base to make it a ‘predominantly rural and increasingly mass-based movement’ (Bowen, 1980, p. 108). To extend the movement’s reach, its leaders established newspapers, and political parties and societies.

Between May and November 1879, at the request of several of these societies, John and Henry Black addressed a number of public meetings in and around Tokyo mainly on topics related to governance and the law. Henry Black was twenty years old at the time and had already proven his ability to address an audience in Japanese the previous year at the Yūraku Theatre in Kōjimachi at the request of his father’s acquaintance, the orator and retired naval officer Hori Ryūta.^[5] Their first engagement was a speech meeting of the Kun’yūsha at Yūrakuchō on June 1 at which they spoke on a theory of people’s rights (minkenron) (Oizuru, 1986, pp. 10-11). Subsequent topics included treaty revision, the pros and cons of a prison system, Napoleon,^[6] abolition of the Yoshiwara prostitution quarters, the demerits of opening up Japan, extraterritoriality, criminal procedures, cholera prevention, juries, governance (seitai ron), taxation, abolition of jails (kangoku kahatsu ron), trial by evidence (shōko saiban no setsu), rice price hikes, and the relationship between the people and government (jinmin to seifu no kankei). These topics encapsulated themes which Henry Black later addressed in his narrated stories.

But the path from speech making to storytelling was not straight. As opposition became more organized and more voluble, the government introduced increasingly draconian regulations pertaining to political gatherings, directly affecting Henry Black’s activities. The first of the measures, the Ordinance on Public Meetings (shūkai jōrei) promulgated on 5 April 1880, gave police power to regulate political parties and ban public meetings.^[7] Henry Black became the first foreign-born victim of the regulations when police intervened in early April during his speaking tour of Odawara on ‘the effects of a national convention’ and ‘the laws of conscription.’^[8] Police records indicate that 131 such political meetings were disbanded in 1881 and 282 in 1882. Many other meetings did not take place because police denied permits to the organizers (Vlastos, 1995, p. 248).

Seeking other outlets

Two months after this incident, on 11 June 1880, Henry Black’s father died. Henry was 21 at the time. He initially circumvented restrictions on addressing public gatherings by joining an officially sanctioned gundan (military stories) group led by the orator Hogyūsha Tōrin (Kurata, 1983, p. 96; Sasaki and Morioka, 1983, p. 139)^[9] ‘on the advice’ of former people’s rights movement activist Numa Morikazu.^[10] Gundan originated in the early Edo period when masterless samurai read war tales to audiences in towns. Their inspiration was the Taiheiki (The Chronicle of Great Peace) a fourteenth century war chronicle (Sasaki and Morioka, 1990, p. 5). The timing and circumstances of the decision to join a gundan group attest to Black’s enduring links to opposition movement members as well as the importance of oratory to the movement’s attempts to reach a wider audience.^[11]

Evidence for Henry Black’s enduring interest in legal procedure is found in the 7 March 1884 edition of Jiji shinpō, which reported that he was at the Tōkyō keizai saibanjo (Tokyo Court of Petty Sessions) ‘taking detailed notes with a view to producing one or two narrations.’ (Meiji no engei 3, p. 81).^[12] By the early 1880s, the advent of the telegraph, the development of stenography, and legislation granting reporters access to the courts facilitated rapid access to information about trials, allowing audiences and readers to participate vicariously in them. Courtroom dramas became a popular source of material for storytellers, novelists, and writers of serialized accounts of the trials in tabloid newspapers, allowing authors and readers to debate the outcome of a trial, well before any final sentencing (Mertz, 2003, p. 130).^[13]

Henry Black officially affiliated with the San’yū guild of storytellers in September 1890 at the age of 31. In March 1891, he took the professional name of Kairakutei Burakku on achieving shin’uchi (principal performer) status with the guild.^[14] This career move was symptomatic of growing links between proponents of democratic reform and the users of vernacular Japanese as a vehicle for reaching mass audiences. It was also a natural consequence of the impact of the government’s restrictions on freedom of assembly and of expression.

This process had accelerated after the government conceded to one of the movement’s principal aims in October 1881 by announcing its intention to produce a Constitution and convene a national assembly within the decade. The announcement splintered the pro-democracy movement, robbing it of much of its impetus. In the immediate aftermath, several key leaders formed their own political parties to further their aims.^[15] This began a period of intense political jostling, which ended with the dissolution of the Jiyūtō in the face of increased government suppression of its activities in late October 1884 (Bowen, 1980, pp. 228-289). The popular rights movement also suffered other setbacks by the late 1880s (Japan Illustrated, 1993, pp. 407-408).^[16] From the early 1880s, deflationary policies overseen by Finance Minister Matsukata Masayoshi had resulted in depression in the agricultural sector forcing widespread foreclosures among farmers (Japan Illustrated, 1993, p. 934).^[17] This and the consequent strengthening of a more conservative agricultural landlord class through their accumulation of dispossessed farmland (Suenaga, 1994, pp. 93-175) eventually robbed the movement of much support in rural areas.

While the more prominent participants reacted to the setbacks by establishing political parties, others sought alternative outlets for their ideas. Some began experimenting with political novels^[18] or participating in the socialist movement,^[19] while still others sought outlets via the stage. Yet others set up newspapers to campaign for their objectives (Twine, 1991, p. 127).^[20] This resulted in spreading the discourse on modernity to a wider, and by now better-educated audience. It was no coincidence therefore that Black’s career choice reflected these changes while remaining faithful to the spirit of his earlier public-speaking for the pro-democracy movement. The move into rakugo brought him into contact with a mainly urban, lower class mass audience. He was also able to make use of newspapers which extended his reach by printing his stories in serialized form. There is no clear evidence that Black participated in the use of drama to bring the pro-democracy message to mass audiences as some in the movement did via the phenomenon known as sōshi shibai in which activists appeared in plays with a political theme. He did, however, perform numerous roles in kabuki extracts in the mid- to late-1890s. And in an interview given in 1904, he cited an instance when he walked across 1684-meter Hirayu Pass with a group of entertainers traveling between Matsumoto and Takayama, stopping overnight in the hamlet of Hirayu (McArthur, 1992, pp. 220-224). This at least attests to his dedication to bringing entertainment to remote rural areas.

As a rakugoka, Henry Black’s audiences were different from those at the 1879 gatherings of the Freedom and People’s Rights Movement. New immigrants from the provinces had altered the demographics of the Tokyo audience at the venues where rakugoka appeared. The number of these theatres, known as yose, grew at a rate commensurate with that of the metropolis itself so that the years when Black was most active, prior to the advent of more modern sources of entertainment, particularly cinema, were a golden age for storytelling in Japan (Miller, 1997, p. 582). Tokyo had 163 yose in 1880, 120 in 1884, 199 in 1885, and 230 in 1886 (Sasaki and Morioka, 1990, pp. 251-252), the year of Black’s first full-fledged narration Kusaba no tsuyu [dew by the graveside], making rakugo one of the most prevalent forms of entertainment available ( McCullagh, 1902, p. 207).^[21]

Although most accounts of rakugo characterize it as an art of the common people, the prevalence of yose, accounts of attendance by intellectuals like Fukuzawa, and acknowledgement by writers such as Natsume Sōseki (Nobuhiro, 1986, p. 20) that rakugo influenced their work, attest to its wide-spread popularity during these years. Rakugo, with its low cost and absence of written instructions and rules for performers (Balkenhol and Sasaki, 1979, p. 156), had the flexibility to withstand censorship and cultural ossification. This allowed rakugoka to serve as agents of instruction, enlightenment, and mass entertainment. These same qualities of mass appeal and flexibility made it an ideal form of cross-cultural communication for Black in an era when reform frequently meant the introduction of Western themes and methods even in the entertainment industry.

Another key way Henry Black and other rakugoka reached a mass audience was via newspapers. With the nation’s political debate already centred in their editorial columns by the mid-1870s, and a rising literacy rate reflecting increasing school enrolments throughout the 1870s (Rubinger, 1986, pp. 210-213), newspapers began to attract increasing readership. In 1890, for example, although the press was the largest single medium for the transmission of ideas, Japan had only some 50,000 readers of daily newspapers (Huffman, 1997, p. 170), limiting political debate to an intellectual activity by an informed elite (Lehman, 1982, p. 247). By the mid-1880s, Japan had two types of newspapers, ōshinbun (major newspapers), which were elitist and focused on domestic and international issues including politics and of course legal reform,^[22] and koshinbun (minor newspapers), which focused on racy entertainment-oriented stories of scandal and gossip. Koshinbun used glossed characters to appeal to lesser educated readers with limited knowledge of kanji characters. Koshinbun printed the serialized stories or installment novels (shinbun shōsetsu) of rakugoka and other translators (Law and Morita, 2003, pp. 109-125). Many were adaptive translations (hon’an mono) based on English and French sources with translator-adaptors giving Japanese names to characters and places. This created hybrid, but liminal settings, enabling readers to identify more readily with the characters. The koshinbun also capitalized on the development of stenography (sokki) as an aid in the transcription of verbatim stories from the narrators. Initially for recording debates in the newly constituted Diet, newspaper and book publishers quickly applied the skill to the narrations of popular rakugoka to mass produce sokkibon (stenographic books) (Miller, 1997) versions of the narrations, which were popularized via lending libraries. Their low cost, thanks to the use of cheap paper, combined with the prevalence of lending libraries, meant that they reached a wide audience (Zwicker, 2006, pp. 66-67 and 90-92).

The first stenographic book (sokkibon) by a rakugoka was Black’s mentor San’yūtei Enchō’s hugely successful 1884 Botan dōrō (The Peony Lantern), adapted from a Chinese ghost story. Enchō’s subsequent successes in adapting Western novels from European sources persuaded Black that he could do the same (Sasaki and Morioka, 1983, p. 140).

These developments represented a diversification of the channels by which the ideas of narrators such as Black and Enchō reached a mass audience. On the other hand, the prevalence of yose in towns and cities combined with their low cost, guaranteed that rakugoka could reach a broad audience.

Henry Black’s claim that the rakugoka Gorin Ennosuke made the official approach on behalf of the San’yūha, because ‘a Western rakugoka is unusual’ (seiyōjin no rakugoka wa mezurashii), while the guild’s leaders San’yūtei Enchō I and San’yūtei Enchō IV readily agreed to the idea (Nishūbashi, 1905, p. 298),^[23] indicates that high-ranked guild members saw in the foreign-born Black the potential for innovation in the rakugo repertoire.

Newspaper reports show that foreign birth quickly made Black an object of curiosity. On his assuming the professional name of Kairakutei Burakku, the 24 March 1891 issue of Yamato shinbun described him as ‘the Englishman Black, promoted as the rakugoka with the different colored hair.’ Other papers praised his affinity for Japan. The 30 June 1891 edition of the Tōkyō asahi described him as a ‘clever fellow’ (kiyōna otoko) (Kurata, 5, p. 108) and the Hinode shinbun on the 8 August, 1891, described him as ‘not only well versed in Japanese affairs, but also no different in his command of the language than a Japanese, and possessed of a fine speaking voice’ (Kurata, 5 p. 114). One of the best accolades was in the 7 October 1891 Ōsaka asahi, which described him as ‘a species of Englishman raised in Edo’ (Kurata, 5, p. 116).

Henry Black’s foreign background explains his choice of English novelist Mary Braddon’s novella Flower and Weed as his debut story Kusaba no tsuyu [dew by the graveside]. Black was to become the pre-eminent rakugoka adaptor of foreign material, claiming by 1901 to have ‘translated no fewer than 14 English novels into Japanese’ (Kobe Weekly, 1901, p. 623)^[24] for narration. Black’s ability to translate from English to Japanese enabled him to use the then popular European detective and mystery genre. Braddon was just one of a number of British, French and American Victorian-era sensation novelists whose works were translated and popularized in Japan in the decade prior to Black’s achieving shin’uchi status. Translators such as newspaper editor and novelist Kuroiwa Ruikō and writers like Sutō Nansui (Nakajima, 1964, pp. 20-22) popularised sensation fiction, mainly in its detective novel form, giving it a wider mass audience than pure fiction.

Ronald R. Thomas has shown that in the West the genre had enabled the ‘modern subject to criticize the system in which it also functions as an integral part,’ enabling it to both reinforce and resist ‘the disciplinary regime it represents’ (Thomas, 1999, p. 13). Similarly in Japan, as Amanda C. Seaman notes, the genre’s ‘combination of storytelling and social awareness’ enabled its exponents to cleverly use its ‘narrative and conceptual resources’ to ‘depict and critique contemporary Japanese society’ (Seaman, 2004, p. 1). This explains why participants in the law reform debate were quick to realise the ideological potential of the genre. Its place in the epistemology of law in Japan at this time was demonstrated soon after the 1881 translation by Takahashi Kenzō of Samuel March Phillips’s Famous Cases of Circumstantial Evidence. The work details cases in the West, many involving a miscarriage of justice culminating in a death sentence. While the book was printed by the Justice Ministry for purely utilitarian reasons, it soon found a ready market in non-government book shops (Nakajima, 1964, pp. 17-18). Kuroiwa was one of the foremost users of the genre for ideological purposes. He achieved this by serialising adaptations of at least one (McArthur, 2007b), and possibly two, Braddon works to illustrate how even in Britain there could be a miscarriage of justice (Silver, 2003).^[25] In May 1893, Kuroiwa found it necessary to mount an editorial defence of the genre in his newspaper Yorozu Chōhō against claims that it would ruin the literary novel. Kuriowa argued the need for a distinction between the novel (shōsetsu) and the detective novel (tantei shōsetsu), enumerating the distinctive features of detective fiction (Itō, 2002, pp. 16-17). Throughout his career, Kuroiwa translated 75 Western novels, including works by Victor Hugo, Alexandre Dumas and Fortuné du Boisgobey.

In keeping with the precedent set in adaptive translations by translators like Kuroiwa Ruikō, Henry Black also gave Japanese names to characters and occasionally to places in his stories, and located the action in London or Paris. His choice of material, invariably drawn from European detective fiction, also gave him ample opportunity to demonstrate legal practice in Britain or France.

A prime example is Shachū no Dokubari [The Poisoned Pin in the Coach] , first narrated in 1891 (Burakku, 1892),^[26] where, in spite of his high social status, the retired businessman Mr. Yamada is jailed as an accomplice in the death of his niece Okatsu and conspiracy to kill her sister Onobu. Reflecting the new legal code framed with Boissonade’s help at around the same time as this narration, Black showed how French citizens were all equal before the same set of laws to which a judge could refer to determine sentencing. The story appears to be an adaptation of the 1881 tale Le Crime de l’Omnibus by French mystery writer Fortuné du Boisgobey. Black introduces a similar theme in the final scene of Eikoku Rondon gekijō miyage [story from a London theater] (Burakku, 1891) where the nobleman John Brown, who has escaped to Paris to avoid detection over his murder in London of the actor Sumerurii, is arrested by the detective Shiberia Deboato. The detective urges him to give himself up quietly, assuring him that he will have legal representation in a court trial, but Brown seizes a pistol and blows his brains out. The tale is an adaptation of Mary Braddon’s 1877 short story Her Last Appearance.

The issue of appropriate disposal of private property inherited by the female protagonist Onobu was at the heart of Shachū no Dokubari, reflecting the importance of the issue of women’s rights in the debate over law reform. At a relatively early point in Shachū no dokubari, Black tells the audience that there are many women in Europe who are ‘both young and rich.’

In Japan, one very much dislikes having a household name die out. People adopt if they have no child or if they have a girl, they take in a son-in-law (muko). In Britain, France, Germany and America, they do not worry about whether or not a household will die out. There are no laws there covering the taking in of adoptees and you cannot obtain a muko for a girl. (Burakku, 1892, p. 38)

Black goes on to explain that daughters in Europe are married off with dowries and that if a father dies, the daughter is within her rights to inherit the father’s fortune and can then take the money with her when she marries.

It was this radical notion of inheritance, the ability to pass on property from a father to a daughter rather than have such rights restricted to a first-born son or a male adoptee that was made possible under the new Meiji civil code. The new law ensured that on paper at least, the passing of property from the ie, which Haley defines as ‘greater family unit or house’ (1991, p. 84), to the first-born son was not necessarily the natural order of things. Prior to the Meiji period, household members inherited property only with the permission of the household head. The new Civil Code enabled household members for the first time to exercise their own, individual property rights. By the early 1890s, the right to dispose of property independent of the ie had become synonymous with modernity. The message Black’s audiences received from Shachū no dokubari was one of change in the power relationship between men and women. The Meiji state had legislated for modernity and in this case the beneficiaries were women. Onobu’s example was considered a foretaste of what was to come.

Court scene from Minashigo showing Seikichi arraigned at the bar.
Image courtesy of the National Diet Library

In Minashigo, Black mirrors Dickens’s interest in criminology displayed in Oliver Twist, where Nancy attends the court to try to find out what has happened to Oliver. In Black’s version, Nancy’s Japanese equivalent Omine’s incognito visit to the court affords Black an opportunity to inform his audience that in Britain the public is permitted to attend police committal hearings.^[27]

So Omine went. But Britain is different from Japan in that the public is allowed to attend police hearings. Not that police hearings are especially interesting. When it comes to a hearing in a court of capital offence, not only is just hearing the opinion of the public prosecutor (kensatsukan) and the argument of the defendant of interest, it could be quite a useful academic exercise. The police investigations involve a lot of trivial things hardly worth listening to, like a drunk getting admonished after sobering up and then getting fined for arguing, or someone going out for a bargain, getting taken into custody with a woman and being handed over to his landlord or his wife. But in any case, you can usually listen in on a police investigation. (Burakku, 1897, pp. 64-65)

In keeping with sensation fiction’s propensity to supply blueprints for negotiating modern life (Seaman, 2004, p. 2), Black’s narrations contain numerous accounts of the benefits of science and modern technology to the solving of crimes. In Shachū no dokubari when the art student Itō visits the morgue with Okatsu’s landlady to identify her body, Black uses the opportunity to instruct his audience on the relationship between modern forensic science and criminal law. Black also explains that cadavers are used by medical scientists if left unclaimed (Burakku, 1892, p. 69). In Iwade Ginkō chishio no tegata [The blood-stained hand print at the Iwade Bank], Black shows how swiftly the police can track Matashichi from London to the Liverpool docks 100 ri (equivalent to 393 kilometers or 244 miles) away, using the telegraph and telephone to convey information about him throughout the country.

But the only person suspected is Yamada Matashichi, who although he was greatly indebted to the danna, had not been present at around the time of the death. The police take details of his height, clothing, body shape and these are sent by telegram or phone from London Police station to all police stations in Britain. Liverpool is exactly 100 ri from London. Here where people get on and off the ships, there is a detective who spots what appears to be the man in the description. (Burakku, 1893, p. 51)

The murder scene in The Bloodstained Handprint at the Iwade Bank.
Image courtesy of the National Diet Library

Iwade Ginkō chishio no tegata is one of the best examples of Black’s use of science to solve a crime. In the story, the victim’s nephew Iwade Takejirō solves the crime by matching a blood-stained hand mark on a piece of paper from the crime scene to the hand of the bank’s janitor. Black’s elaborate aside on the use of fingerprints as acceptable proof of identity in China and Japan in the absence of carved seals (jitsuin) (Burakku, 1893, pp. 71-73) may have been inspired by his knowledge of the investigative work of Dr. Henry Faulds, a British missionary doctor who lived in Tsukiji and worked at Tsukiji Hospital in the 1880s (Morioka and Sasaki, 1983, p. 159). Black was also living in Tsukiji by 1885. In a paper titled ‘On the Skin-furrows of the Hand’, published in the British scientific journal Nature in 1880, Faulds stated that he was inspired to embark on his investigations after learning that Japanese potters frequently left their fingerprints on clay pots as a way of identifying their provenance (Faulds, 1880, p. 605). Black’s use of fingerprinting as a device in detective fiction appears to have been a world first. It preceded mention of it in 1893 by Mark Twain in Life on the Mississippi (Morioka and Sasaki, 1983, p. 159).

The contentious issue of abolition of Tokyo’s brothel quarter Yoshiwara, raised by Black in one of his 1879 talks, had been the subject of newspaper editorials at the time. Founded in 1617, Yoshiwara was one of the more high-profile outcomes of reforms instigated by the shogun Toyotomi Hidehoshi (1537-98) aimed at containing and licensing prostitution. Black incorporated the debate into his 1891 narration Eikoku Rondon gekijō miyage (Burakku, 1891). In discussing the dissolute behaviour of the story’s villain, Black noted the harm caused to families and society by men who squandered their money at the Yoshiwara. He also mentioned the tricks pimps and others used there to fleece customers and told listeners that the British parliament had passed a law banning gambling dens and brothels.

The practice of licensing brothels originated in pre-Meiji times in a number of feudal domains, but became nation-wide practice under the centralized government after the Restoration. Most brothel inmates in Tokyo, which was home to the largest single number of licensed prostitutes at the time (Tsurumi, 1990, pp. 181-182), were there because their parents were in dire economic straits. Long hours and lack of sleep left them subject to illnesses. Black’s condemnation of prostitution presaged similar press campaigns for revision of prostitution laws orchestrated by Christian groups in the late 1890s and the independent press in the early 1900s.

Extraterritoriality, another topic on which Black spoke in 1879, was a matter of direct concern to both John and Henry Black throughout their careers. As British citizens, both had cause to negotiate their way through Japanese laws. In 1872, John Black had sought an indictment against the carver of Japanese language wooden type for use in the production of his pioneering Japanese-language newspaper Nisshin shinji shi after the type carver failed to meet a production deadline (Aoyama et al, 1998, p. 32).^[28] Then in 1874, the government had legislated to remove the right of foreign citizens to edit Japanese-language newspapers, putting an end to his involvement with Nisshin shinji shi. Henry Black transgressed Japanese law on at least three occasions. The first, in 1881, was when a disgruntled Japanese complained to British consular authorities about his failure to return a sum of money (Yomiuri, 1881). The second was in 1880 when police used the Ordinance on Public Meetings to prevent him speaking in support of pro-democracy activists in Odawara. The third was in 1885 when the government ordered him to close an illegal sake still in Tsukiji (Jiji shinpō, 1885; Japan Weekly Mail, 1885).

Ironically, in the 1890s, the extraterritoriality laws which restricted the movement of a British citizen outside treaty ports, had begun to limit Black’s career. Newspaper reports indicate that by this stage Black had on occasions performed in Kobe, Osaka and Kyoto, but these cities were already among a select group of places in which foreigners were permitted under the terms of the unequal treaties. Although legally free to move around the treaty ports and certain parts of Tokyo, Black had to apply for permission to travel elsewhere. There is at least one documented case of his being refused permission to travel to Shizuoka Prefecture in 1891 to give performances (Tōkyō nichinichi shinbun, 1891).^[29]

Another obstacle was the government’s issuance on 15 August 1890 of Police Order No. 15 stating that special permission was required for yose performances by foreigners (Morioka and Sasaki, 1990, p. 251-252). It is not apparent whether the regulation was aimed directly at Black, but its immediate outcome was to place yose within the government’s extended purview with regard to foreign cultural influence. Within the context of the debate over the extent of foreign influence, this legislated attempt to restrict foreign influence in the arts represented a further step in the ascendancy by the mid-1890s of those who favoured a Japanese path to modernity (Waswo, 1996, 94).

Black’s status as a British citizen had become an impediment to his career opportunities. His solution was to undergo a marriage of convenience to a Japanese woman, a step which, when taken in April 1893, gave him access to Japanese citizenship. Reporting the marriage, the 24 May 1893 edition of the Chūō shimbun stated that Black’s new wife Ishii Aka was the 18-year old second daughter of Ishii Mine, a candy shop operator of Moto-hatchōmebori in Tokyo’s Kyōbashi-ku (Chūō shinbun, 1893).^[30] Upon marriage, Black was formally adopted into the Ishii family and acquired the surname Ishii.^[31]

Black’s mentor and head of the San’yūha, San’yūtei Enchō I, also responded to calls for reform by adapting from foreign sources. By the time Black encountered him, Enchō was considered one of the country’s most accomplished rakugoka (Yanō, 1965; Nagai, 1998). Enchō’s stories were often imbued with a strong moral tone reputedly because of a childhood interest in Zen Buddhism (Morioka and Sasaki 1990, pp. 252-254). His early hit, Botan dōrō [The Peony Lantern], derived from a Chinese ghost story (Ōta, 1998, p. 175). But reflecting contemporary fascination with Europe, many of his later borrowings came principally from France. These included Matsu no misao bijin no ikiume [A Beauty Buried Alive] in 1886 and Kōshōbi [The Yellow Rose] in 1887, which Morioka and Sasaki note are ‘said to be based on French novels,’ Meijin kurabe: Nishiki no maigoromo [Master Artists: The Brocade Dancing Robe], published in 1893 and acknowledged as an adaptation of Victorien Sardou’s La Tosca, (Morioka and Sasaki, 1983, p. 152; Nakagomi, 1998, p. 281) and Meijin Chōji [Master Cabinet Maker Chōji] (Okitsu, 1965, pp. 336-375),^[32] published in 1895.^[33]

Enchō’s 1885 Eikoku Kōshi George Smith no Den, about the life of a dutiful child in England, appears to have reached him via an unidentified scholar of Western studies and, according to Nakahiro (1979, cited Nakagomi, 1998, p. 281), to have originated in the British author Charles Reade’s novel Hard Cash. Of his narrations, Meijin Chōji, an adaptation of Guy de Maupassant’s Un Parricide is most closely identified with the law reform debate. It was based on a version of Un Parricide related to Enchō by the wife of novelist and essayist Arishima Takeo (1878-1923) who in turn heard the story from one of Arishima’s subordinates who was a scholar of French literature (Yanō, 1999, pp. 152-153). A number of other narrations probably owe their origins to foreign tales related to Enchō in the same manner without having undergone formal translation and without formal acknowledgement from Enchō (Nakagomi 1998). No adequate studies of the intertextual significance of these adaptations have been undertaken.

Although their sources are not always traceable today, other rakugoka followed suit. San’yūtei Ensa (1853-1909), for example, a disciple of Enchō, adapted Dickens’s A Christmas Carol (1843) as the narrated story Kōshi no matsuri.^[34] The story was published in Hyakkaen in March 1900 (Nakagomi 1998, p. 281).

De Maupassant’s Un Parricide and Enchō’s 1895 Meijin Chōji begin from a point at which the cabinet maker is at the peak of success and fame. Both portray his encounter with an apparently married couple who befriend him and become his benefactors. When the cabinet maker Chōji suspects that the couple are his own parents who abandoned him as a baby, he entreats them to admit that they are his parents. But when the couple deny they are his parents, Chōji kills them in a fit of righteous rage. Whereas de Maupassant’s version ends abruptly at that point by asking readers to make their own judgement, Enchō devotes considerable time to elaborating on the trial and the judge’s decision. In a sensational end to the trial, Enchō has Chōji go free on a technicality. In the final stages of the trial, the judge, an appointee of the shogun, reveals evidence that the woman, Oyanagi, whom Chōji killed, was indeed his birth mother. But the judge finds that Oyanagi had earlier forfeited any right to be considered his mother due to her having left his father for her lover, the man whom Chōji had also killed in the belief that he was his own father. Oyanagi and her lover arranged the proxy murder of Chōji’s father. As a result of these revelations, Chōji learns his real identity. The judge rules that the killings were not patricide, but amounted instead to Chōji’s justifiable avengement for the death of his father. In the de Maupassant version, there is no suggestion that any of the two victims might not be the killer’s parent. That complication is entirely Enchō’s invention.

Enchō set his story in the late Edo period, placing the date of Chōji’s apprenticeship to a cabinetmaker in 1803. There were interesting parallels between Chōji’s actions and the revenge killing in December 1880 by the ex-samurai Usui Rokurō of his father’s killer and Judge of the Tokyo Superior Court, Ichinose Naohisa. A novelisation of the incident by Saiga Ryūkō elicited considerable public sympathy for Usui, who in real life, was sentenced to life imprisonment rather than the death penalty and was released from prison ten years later. In a study of the incident, Mertz (2003, pp. 113-138) concludes that ‘whether Rokurō would live or die for his crime…was implicitly symbolic of the fate of Tokugawa Confucian ethics within the modernizing Meiji state’ (Mertz, 2003, p. 117). Similarly, Enchō’s imbuing of his story fifteen years later with Tokugawa Confucian ethics positions it as part of the debate over the merits or otherwise of the new legal codes. Under any strict interpretation of the new codes, both Rokurō and Chōji would have been summarily sentenced to death, but the appeal of their stories derived from sympathy and support for a still-popular Confucian ethic. In Chōji’s case, Enchō garnered audience sympathy for the aggrieved son whose act served as retribution for the murder of his father in the same manner as Usui Rokurō.

Unlike Black’s contemporary settings, Enchō’s choice of a pre-Restoration setting makes his tale an exercise in nostalgia and caters to proponents of the case for incorporating Japanese morality in the framing of new codes of law. The story is also one of several in which San’yūtei Enchō chose to use what Matilde Mastrangelo describes as the leitmotif of the meijin (artisan or master craftsman). Artisans embodied a set of idealized qualities which required them to be ‘humble, respectful of the discipline required by the elders, and constant in both their studies and their wish to improve.’ (Mastrangelo, 2002, p. 15) Enchō explains that Chōji became a meijin from the age of 28.

It is not even something passed from one generation to the other. Chōjirō was illiterate, but when it came to his job, among the rich, and even with the daimyō, he was sought after in all Edo. His cabinets were prized, but never to be found in a second-hand furniture shop. (Okitsu, 1965, p. 336)

Chōji’s meijin status appealed to nostalgia for a time when caste distinctions were clearly delineated, including between samurai and chōnin castes to which the artisans belonged. The inequitable but symbiotic relationship between chōnin and samurai is encapsulated in the relationship between the artisan Chōji and the judge who belongs to the samurai caste. Both play out their roles vis a vis the other as if it is the natural order.

The setting is clearly before Meiji legislation which eliminated what Carl Steenstrup (1996, p. 127) characterises as ‘the “quasi-son” relationship of the apprentice to his master.’ Chōji’s aberrant behaviour in killing Oyanagi and her lover, the two people he had thought were his parents, and then renouncing his relationship with his master went completely against Tokugawa convention, adding to the shock value of his actions as far as older members of Enchō’s audience were concerned. With a member of the samurai class ruling on the master artisan’s murder of a merchant and his wife, Enchō’s story further encapsulates the old tensions in Tokugawa society where ‘the law and morality were one. The highest value was obedience to the lord; next to that obedience to masters, parents and older kinsmen. Punishments for crime against these were spectacularly severe.’ (Steenstrup, 1996, p. 151) What’s more, Chōji’s slaying of the merchant class couple whom he assumed were his parents may also have helped garner him some degree of sympathy since under the Tokugawa code merchants were considered unproductive and were despised because of their wealth.

The proportion of the story devoted to Chōji’s trial suggests that Enchō placed great importance on the theme of law. Of the 40 pages devoted to the story in the volume used for this paper, some 12 pages, amounting to at least a quarter of the story’s length, are devoted to the trial proceedings (Okitsu, 1965, pp. 363-375). The scene is radically different from that narrated by Black in Minashigo. Whereas Black stresses the right of access by citizens to the court and equality of all before the law, Enchō describes in minute detail the dialogue between the protagonists so as to emphasise, through verb endings, the difference in status between the lowly defendant Chōji and his character witnesses from the cabinetmaking enterprise, and the benevolent, but condescending judge. The illustrations accompanying each story also highlight the differences. In Minashigo, the urchin Seikichi and the judge sit facing each other. Seikichi even has his hands placed on the bar. In Meijin Chōji, the defendants kneel abjectly on gravel with eyes averted and heads down while the judge sits, well above them, on a raised floor with comfortable tatami matting.

Although Black and Enchō were with the same San’yū guild of storytelling, their stories differed markedly. Although Black’s stories contained warnings about the negative impact of modernity and Westernisation, they remained forward looking and optimistic tributes to the plasticity of human kind in an era of rapid change and reform. They demonstrated a faith in science and human adaptability. They characteristically achieved this by portraying the minutiae of life in the modern metropolises of London and Paris, both of which lay at the centre of prototypical modern nineteenth-century European nation-states. These states exhibited all the attributes of industrialization, bureaucratization, increased speed and mechanization of transport and communications. These attributes, together with their rule of law, served as exemplars for Meiji-era Japan.

Henry Black’s affiliation with the San’yūha brought themes closely related to the modernity project, including the important one of law reform, to the rakugo repertoire. References in his narrations, in the years following affiliation with the San’yūha, to the topics of his 1879 speeches reflect the manner and timing of the transfer of such concepts beyond an educated elite to a broader audience in the yose or at home reading published versions of his stories. The fact that Enchō’s story with its backward glance at a feudal, more rigid past also achieved popularity at this time indicates that reform of the law was contested and debated by a wide spectrum of the population.

Although a new generation had begun a reappraisal of the place of indigenous culture by the late 1880s, references to law and the courts by Black and Enchō demonstrate that European prototypes of modernity were still the subject of curiosity and debate among yose audiences and sokkibon readers in the mid-1890s.

The struggle for democracy in the Meiji period extended beyond political parties and prominent leaders of the Freedom and People’s Rights Movement. It eventually reached audiences at yose and the readers of serialized novels by rakugoka. But many longed for a morality which was lost under the wave of new legislation designed to align Japan with legal frameworks associated with the West. That professional storytellers reflected this diversity of opinion in their narrations indicates that the debate over law reform extended to and involved the masses who flocked to yose.

The differences in approach between Black and Enchō encapsulate the tensions which persist to the present day in debate over law reform in Japan. This examination of the social setting and historical context within which law reform took place in the latter half of the Meiji era provides a more nuanced understanding of the complex origins of current debates over law reform as Japan continues to harmonise its domestic laws with those of the rest of the world. The harmonisation of laws across borders need not be a one-way process. There is even the possibility that interdependent contact with Japan through trade and other means could indirectly reshape laws in other countries. As Japan continues to engage with the rest of the world through such venues as the United Nations, the World Court and international conferences, an informed understanding of the historical origins of its laws is the first step in appreciating its potential impact on international law.

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Notes

1. According to Noda, attorneys were not needed since ‘individuals were not then considered as proper subjects of rights.’

2. Haley also notes (p. 70) that this ‘first phase’ of legal reform did not really ‘culminate until the enactment of the second Criminal Code in 1907, by which time all but the already predominantly German procedural codes had been redrafted along German lines.’

3. In his book Young Japan, John Black recalled that he visited Japan out of curiosity en route elsewhere when circumstances contrived to entice him to stay. According to an obituary in the Japan Chronicle of 11 October 1922, on the occasion of the death of Henry Black’s mother Elizabeth Black, John Black ‘arrived in Japan without having any intention of staying here.’ Hanazono Kanesada, in Hanazono Kanesada, ‘J.R. Black,’ Journalism in Japan and its Early Pioneers, (Osaka: Ōsaka Shuppansha, 1926), p.79, writes that John Black’s second son, John Black II claimed his father arrived in Japan in 1863.

4. In 1873, the government had promulgated a new law restructuring the old feudal land tax system. The new system rationalized tax assessment based on the value of farm land rather than on estimated rice production. Since the formula for calculating farm land values included assessments of land fertility and even commodity prices, the drastic overhaul of the taxation system led to a number of protests by farmers who disputed the valuations accorded their land by bureaucrats.

5. Henry Black had also earned a reputation as a capable protégé of the storyteller Shōrin Hakuen as a result of his narrations of the lives of Scottish King Charles and Joan of Arc at a Yokohama theatre the previous December.

6. Interest in Napoleon was inspired by European experiments in governance and legal codes. Louis Napoleon Bonaparte had become president of France in 1851, and the country’s emperor, Napoleon III, the following year. His administration was synonymous with Napoleonic law, improvements in the transportation network, and the hiring of city planner Baron Georges Haussmann (1809-1891), whose remodelled Paris, complete with grand boulevards and monuments was deemed appropriate to a modern metropolis. This inspired the Meiji government to attempt a similar reconfiguration of Tokyo.

7. On 12 April 1880, the Japan Daily Herald referred to an article in Mainichi shinbun (no date given) complaining that the meeting regulations were ‘quite inconsistent with the principles of law, for the character of a political discussion or lecture is to be judged by the police authorities, and police officers will have to know all that may, in a future time, happen to enter the minds of the members of a political society.’ Transcript in Harold S. Williams Collection, National Library of Australia.