Hisho's Birds

Chapter 3

Eikou had a visitor around midnight.

Hogetsu poked his head into the study. “I see you’re still hard at work.”

Afraid at first that the visitor was Seika, Eikou relaxed a bit. Some of the tension went out of his shoulders. Then he remembered Riri saying that Hogetsu should make it home today.

“Did you just get back? Riri is looking forward to seeing you.”

“Not just.” Hogetsu grinned. He was carrying a tray that held a tea set. “I spent a while with Riri. Seemed you were busy so I didn’t want to interrupt.”

“Ah,” Eikou said with a smile. Though Riri referred to Hogetsu as her brother, he wasn’t Eikou’s son. Hogetsu was his grandson.

p. 90

Before he turned fifty, Eikou was plucked out of local government service and elevated to the provincial bureaucracy and the Registry of Wizards. He and his first wife Keishi had two boys and a girl. At the time of his promotion, his eldest son and daughter were already adults and living independent lives.

When he was listed in the Registry of Wizards, they could have followed suit. But already married, they chose to remain on the land. Then, almost before he knew it, they had grown old and died.

At the time, his younger son was still living with him. He consequently graduated from the academy in Saku Province, became a civil servant, and was listed in the Registry of Wizards. He was currently a minister in Bou Province in the western region of Ryuu. His son—Eikou’s grandson—was Hogetsu.

Hogetsu’s father had sent him to Shisou to live with Eikou and attend the same provincial academy as his father. Hogetsu proved more accomplished than his father and grandfather and continued his education at the Imperial University. The year before he had graduated and become an imperial minister.

Have finally settled into an occupation, he’d taken a brief sabbatical to visit his father in Bou Province.

Hogetsu said, “Say, isn’t it about time you took a break?”

Eikou nodded. He got up and moved to the table by the window where Hogetsu had laid out the tea set. He said, “Sorry to put you to so much trouble.”

Hogetsu shook his head. “No problem. You’ve got a lot on your plate these days.”

Becoming an imperial minister had prompted a reexamination of his attitudes towards his grandfather. Hogetsu was an assistant secretary in the Ministry of Heaven (chiefly concerned with administration), specifically serving as an aide in the office of regulatory compliance in the Imperial Palace.

In terms of rank, his position made him a squire, a mid-ranked knight, at the bottom of the hierarchy of imperial ministers in the minor nobility. By contrast, Eikou was a justice in the Ministry of Fall. His rank was that of baron, and thus a member of the major nobility.

p. 91

Hogetsu poured the steaming tea into the cups. He said, “My big sister doesn’t seem to be in the best of moods.”

Hogetsu referred to Seika as his “sister.” Though his grandfather’s wife, she did appear more a member of his generation.

“She thinks I’m soft on Shudatsu.”

“I’m sure she didn’t mean it like that. But—this is a tough one.” Hogetsu gave Eikou a look that had the effect of changing the statement into question.

Eikou answered with a thin smile, “I can’t very well judge Shudatsu on sentiment alone. At least that’s what I tried to say. In any case, there is no verdict to hand down. The process hasn’t begun. It is true that at the end of the day, I will be the one sentencing him. Until then, I will consult fully with the prosecutors and investigators. This is no time to reach for conclusions. And whatever hunches I might be harboring are not for public consumption.”

Hogetsu nodded. “That is certainly the case.”

But there was still a question in his eyes. Eikou shook his head, bringing an end to that particular top of conversation. Hogetsu having just returned from his trip, Eikou asked about Bou Province and his father, though his heart really wasn’t in the conversational patter. That hard lump remained lodged in his chest.

It was certainly the case as well that Seika would prefer to haul Shudatsu off the gallows right then. Not only her. Most of the populace was of the same mind. Eikou was not deaf to public opinion. Purely as a matter of personal opinion, he did not disagree with the sentiment.

As an officer of the court, he had qualms about the death penalty. At the same time, the provincial courts had appealed the case to the imperial courts precisely because they had those same qualms.

p. 92

The problem hadn’t arisen with Shudatsu. The ruling emperor had sat on the throne for over a hundred and twenty years. During that time, for at least a century, no executions had been carried out.

No matter how heinous the crime, the sentence was inevitably indefinite imprisonment or life without parole. The death penalty still existed de jure on the books but was not available as a de facto option. This legal status quo had gone unquestioned until now.

“Has His Highness weighed in on the matter?”

The question brought Eikou back to the here and now. At some point in their conversation he’d gotten lost in his thoughts.

Hogetsu said with a hesitant smile, “It was His Highness who took the death penalty off the table. What does he have to say about the current case?”

“That—” Eikou started to say and then closed his mouth. The cool teacup rested in the palm of his hands.

“Sorry if I pressed the matter too far. Rest assured that whatever I hear here won’t leave this room.”

Hogetsu spoke in deferential tones and Eikou let out a long breath. Though a mere secretary, Hogetsu had graduated from the Imperial University and been chosen to serve in the imperial government. He was destined to rise to the high nobility. Eikou had to believe that Hogetsu had been read into the Shudatsu case, and also that he would grasp the dilemma Eikou was in.

“It’s not exactly clear.”

p. 93

“Not exactly clear?”

Eikou nodded. “His Highness did put a stay on the death penalty. Nevertheless, when the provincial and district courts hand down the same sentence, one would expect the kingdom to follow the established precedent, or at least give it all due consideration. We did request an opinion from His Highness and was told it was up to the Department of Justice to handle it.”

“The Department of Justice?” Hogetsu said dubiously.

“It’s hard to say whether he was simply referring to the stated role of the Department of Justice, or to all officers of the court, including everyone involved in the penal process. He probably meant to leave it up to the relevant employees in the Ministry of Fall. Too ambiguous a statement to tell. And as long as that stay on the death penalty exists, our hands are tied. Now is exactly the time I’d like to see an Imperial Rescript on the subject.”

“What about the minister and vice minister?”

Eikou shook his head. “The minister’s determined position is that the stay on the death penalty shall continue.”

“Without his approval, is there any point in going down that road?”

“Not necessarily. The verdict cannot be constrained by outside opinions. If His Highness did indeed leave the matter in our hands, then the department has the final word on the sentencing.”

p. 94

The department—and what does Chi’in-sama have to say on the matter?”

“He’s racking his brains, along with the vice minister.”

When the time came for a convicted man to be sent to prison, the question became what crime the criminal had committed. The clearer the offense, the better the punishment would fit the crime. During the “submissions” process, the chief investigator clarified the specifics of the crime and the sentence was applied.

The primary offenses Shudatsu had committed were murder, often premeditated murder. Moreover, many involved aggravated robbery resulting in the death of the victim that was in no way necessitated by the original crime. Shudatsu’s victims included old men, women and children who could not have forcibly resisted him.

Felonious murder for gain, with no other purpose in mind, and committed against the aged and infirmed, was a capital crime. Taken together with the number of offenses, these constituted “special circumstances” which rendered the accused illegible for considerations that might argue against application of the death sentence.

The sentencing judge could consider a reduction of sentence if the extenuating circumstances justified it. Shudatsu’s crimes involved no extenuating circumstances. The appropriateness of the death sentence was clear from the start.

However, the Imperial Ryuu had tabled that option, so convicts eligible for capital punishment were generally given hard labor along with prison time. Or when life and death issues were at stake from the start, life without parole was an equally plausible decision.

p. 95

Nevertheless, the people were all in favor of hanging him high. That a criminal like Shudatsu should be merely confined outraged everybody. The district and provincial courts each handed down the death sentence. With that precedent having been established, the public made known their unwillingness to accept anything but.

Invoking the words of the emperor on the subject would only redirect the attention of an angry public toward the officials invoking them. Depending on the circumstances, angry mobs were known to storm government offices. The outcry was sufficiently pronounced to make civil unrest a real possibility.

It would be equally hard for officers of the court to ignore the public outcry.

Eikou explained all this. Hogetsu said with a sympathetic grumble, “That definitely puts you in a tight spot.”

“It sure does,” Eikou sighed. He was indeed in a tight spot, and yet hearing Hogetsu echo his state of mind aloud felt like a rope thrown to a drowning man.

“My big sister makes a point of this as well, but public order in Shisou is deteriorating. Calls for the death penalty reflect the resulting anxiety. If an iron hand can’t restore public order, they fear things will only get worse.”

“You could be right.”

As a matter of fact, the crime rate in Shisou had increased of late. Not only in Shisou—law and order was suffering throughout the kingdom. In raw numerical terms, the change was slight. But the contrast with the expectations of a normally orderly society had the average person on edge. It was not unreasonable to connect it to the emperor’s doctrine of “enlightened rule.”

In short, the “punishment” part of crime and punishment was too forgiving.

p. 96

Eikou and his fellow officers of the court knew this. Based on the numbers alone, Shisou remained a peaceful place. Since the accession of the present emperor, the crime rate had gone down. Since executions had been put on hold according to the wishes of the emperor, in absolute terms, it had not gone up.

In particular, though increasingly banned abroad, the number of criminals had dropped drastically following the reinstitution of facial tattoos as a substitute for the death penalty.

It was thought that tattooing on the face of the convict might discourage him from reforming his character. Since being banned in Sou, other kingdoms had quickly followed suit. Imperial courts here and there had reconstituted the practice, but it was widely believed that tattooing was not humane.

The ban in the Kingdom of Ryuu had been in place for quite some time. And yet the emperor revived it. A second conviction was punished with a tattoo on the head. That way, the hair would cover it when it grew back. The criminal could conceal his past as a criminal.

Additionally, the tattoo would fade after ten years or so. The Ministry of Winter had specifically engineered “disappearing” ink with those properties.

The disappearing ink went on jet black. The color slowly lightened from black to navy blue, to light blue, purple, pink, and then disappeared. Though the color of the skin could affect this timeline, a convict who reflected on his sins and sincerely distanced himself from them could literally become an “unmarked” man.

p. 97

Upon a third offense, however, the tattoo was placed on a less easily disguised part of the body. The right temple on the third offense, the left temple on the fourth. Then below the right eye, then below the left eye.

Very few criminals collected a tattoo after the fourth offense. Or rather, criminals who reached that number were designated “wards of the state” and had parole revoked until all their tattoos faded or were otherwise sentenced to involuntary confinement.

A single tattoo in this disappearing ink was gone in a decade. Adding another before the decade was out extended that time period. The tattoo received after a fourth offense lasted at least thirty years. The other tattoos had their own balance of color and density. But if all were black when applied atop each other, they would last for the rest of a convict’s life.

And so the mark of a man’s sins could outlive the man.

At first, the concern was a man so marked would be persecuted by society, which might hamper his efforts at rehabilitation. Surprisingly enough, the opposite occurred. A reformed man patiently endured while the tattoos faded. And people in general accepted a fading tattoo as evidence of his determination and effort.

There was no way to lessen the stigma of a fresh and darkly-inked tattoo. But in the meantime, the government provided support and assistance. The tattoo steadily faded. Praise for good behavior from both the kingdom and his friends and neighbors accumulated to the credit of the reformed man, pointing him in a forward-looking direction.

In fact, the recidivism rate for convicts who had received the third tattoo dropped dramatically.

Consequently, even with the current ballyhooed decline in public order, the criminal element in Ryuu rarely reached the extremes of anti-social behavior found in to other kingdoms. In this regard, there was no real comparison with kingdoms that carried out the death penalty.

This was taken as evidence of the ineffectiveness of capital punishment, though people tended to compare their reactions to recent years with the now. It wasn’t like this not long ago, they could say and not be wrong.

p. 98

Hogetsu said, “Don’t you get the feeling that it’s not simply unrest that’s increasing, but that predators like Shudatsu are becoming more prevalent?”

Eikou sighed. “That is certainly what it looks like.”

“Shudatsu has been tried three times. He did not change his ways and instead added sixteen criminal counts to his record. The sense is that the penalties imposed up to now are not enough to dissuade hardened criminals like Shudatsu.”

“That could be the case.”

Although the kingdom did all it could to aid in the rehabilitation of convicted criminals, there would always be unrepentant felons who refused to reform, turned their backs on the assistance offered, and returned to a life of crime. Eikou was painfully aware of their existence.

“If penal servitude doesn’t do the job, then more severe measures must be taken. Isn’t that what it comes down to?”

“I wouldn’t hesitate giving Shudatsu a death sentence. The problem is capital punishment itself.”

Hogetsu reacted to Eikou’s statement with a puzzled expression.

“Applying the death penalty in this case means a de facto lift of the stay.”

Hogetsu still didn’t seem to grasp what Eikou was getting at.

p. 99

“Just as you said, there’s been a decline in public safety. Which is why I have serious doubts about restoring the death penalty.”

“Why’s that?”

“Think about it,” Eikou challenged him.

Hogetsu did. He winced at the thought that quickly occurred to him and averted his eyes.

Hogetsu gets it too. The why was another matter entirely. The recent downward trajectory of Ryuu had become clear. Youma proliferated, the weather worsened, and natural disasters increased. Insufficiently harsh criminal sentences were not the problem. When the fortunes of the kingdom declined, the hearts of men grew wild. Hence the increase in criminality.

Not only the crime rates, when it came to the administration of the government, Eikou increasingly felt an aura of discord. Projects and programs that once kept to the straight and narrow now steered themselves into the ditch. Reasons abounded, but that the kingdom itself was on shaky ground was commonly heard as well.

Especially at such a time like this, all prayed for their wise and celebrated emperor to choose the right way. But he seemed to have lost the desire to do so.

Hogetsu muttered, “I have to wonder what His Highness is up to these days.”

“You’re in the Ministry of Heaven. You’d be in the best position to know. What is on the mind of your fellow civil servants?”

“Hard to say. Only that his Highness appears in full possession of his faculties. He hasn’t strayed from the Way that anybody can tell.”

p. 100

“Except he is obviously not the same as before.”

Hogetsu nodded. “Keep in mind that I’m not the one saying this, but I have heard it said that His Highness is becoming incompetent.”

Eikou was about to rebuke for such careless talk, except he couldn’t deny that Hogetsu’s informant had a point.

Nobody could say the emperor was cruel or evil. Though some sovereigns did indeed oppress their subjects, Eikou saw no inclination by the Imperial Ryuu to do likewise. Nevertheless, something was deforming the body politic. The emperor’s grasp of statecraft was definitely weakening.

Eikou let out a long breath. “How His Highness is faring is not for us to know. As much as I wish to believe otherwise, the kingdom is deteriorating. That being the case, going forward, the hearts of men will only grow harder and beasts like Shudatsu will proliferate. If the death penalty is reinstituted now, I fear it will be mightily abused in the future.”

That was what truly worried Eikou.

Establish the precedent and henceforth any hesitation to apply the death penalty would disappear. In a world gone wild, with criminals like Shudatsu on the prowl, capital punishment would come into wider use. Remove the constraints and after that the slightest infraction could also earn the death penalty as the relative shock of the sentence faded.

p. 101

Following the imposition of the death penalty, serious crimes would demand heavier punishments, inevitably becoming as merciless and cruel as practiced in the Kingdom of Hou. Once capital punishment became the default, increasingly harsher sentences would only push the kingdom closer to the brink of total collapse.

Eikou explained this and Hogetsu nodded. “Yes, that definitely is a possibility.”

“Moreover, kingdoms on the downward slope inevitably use the death penalty to excess. Reinstituting it here and now will inevitably give the kingdom life and death power over its subjects. With the precedent thus established, a kingdom can ramp up the executions for whatever reason it finds convenient.”

And that is why he wished to avoid it at all costs.

Actually avoiding it wasn’t the problem. He had the emperor’s own words to fall back on: “Refrain from capital punishment.” Quote the emperor, sentence Shudatsu to prison, and be done with it. According to established practice, that was the right path to go down. But doing so would shake public confidence in the law.

In his mind’s eye, Eikou saw the cold look in Seika’s gaze. If he managed to avoid the death penalty, the next time things blew up between them, she would pack her bags and leave. And the people would do the same thing to the ministry in which he served. In a very real sense, a loss of respect for the law was just as dangerous as executions run rampant.

“So what are we going to do about all this?”

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