Hisho's Birds

Chapter 4

When Eikou arrived at the Department of Justice the next morning, Jokyuu (the sentencing magistrate) and Sotsuyuu (the clemency magistrate), were already in his chambers, looking equally distressed. An air of defeat hung about the room.

When the three of them convened together, their law clerks retreated to an adjacent office. The prison administrators and related personnel also excused themselves. The justice, sentencing magistrate, and clemency magistrate alone were responsible for the sentence to be handed down. Any external influences that might affect the decision were removed.

Even after the last clerk closed the door behind him, no one spoke for a while. Looking at their faces, Eikou didn’t have to ask why. Jokyuu and Sotsuyuu looked fit to be tied.

“Sitting here in silence won’t address the issue,” he finally felt compelled to say. “Let’s hear what the sentencing magistrate has to say.”

Jokyuu sighed. He was in his mid-thirties, by all appearances the youngest of the three. His job was to clarify the nature of the crime and recommend a punishment in accordance with the law.

“I haven’t anything important to add at this juncture. The district and provincial courts didn’t miss anything important. The provincial sentencing magistrate did a thorough job, admirably so. I see no reason to amend his report.”

p. 103

Eikou asked, “I take it you’ve met Shudatsu. What kind of a man is he?”

“A beast,” Jokyuu answered shortly, as if spitting it out.

Very much like they’d brushed up against a disgusting thing and wished not to touch it again, Eikou shifted the inquiry. “There are a few passages in the provincial report that could stand clarification. For example, the family that was murdered in that farming hamlet.”

When asked for a motive, Shudatsu simply said he had nowhere else to go. Not long before, he’d been spotted at the scene of a previous murder. He couldn’t stay in the city where he might be recognized. He decided to winter over in an uninhabited hamlet, except the hamlet he settled on turned out to be inhabited. So he killed inhabitants. True, normally nobody lived in a hamlet in the middle of the winter. But if he thought the residents might give him grief, why not find another deserted hamlet? Most around those parts were.

After Eikou spelled out the particulars, Jokyuu said, “Because no inhabitants meant no food and probably no cut firewood. He might have intended to hide out in a deserted hamlet, but seeing an occupied house, he rethought his options and figured that was the most convenient.”

p. 104

“So a crime of convenience?” Eikou muttered. “Makes sense. Shudatsu stayed in the house along with the corpses. Did the thought not occur to him to move to another house?”

“Because of the season, the bodies didn’t start to decay right away. He says he didn’t feel the need.”

Listening without chiming in, Sotsuyuu let out a long breath and shook his head. Eikou understood the feeling. But this was Shudatsu. No matter how sick and twisted, there was a certain logic to his actions. Yet too much didn’t add up.

“The Shunryou case. Why would a man with ten ryou in his pockets rob and kill Shunryou for nothing more than twelve sen?”

“I’ve got no answer to that question and no clear explanation from him, only excuses.”

“Do you think he’s hiding something? If he is, we need to find out what.”

“I don’t know. He blames the murder on the kid being a handful and raising a ruckus. When I asked why he went after him for twelve sen, the man only shrugged.”

“I see,” Eikou muttered. “The provincial magistrate decided on charges of aggravated robbery and felony murder. What do you think?”

p. 105

“I still have questions. Was the murder premeditated or did it occur after the fact? Was the theft of this small amount of money the intent from the start? If he killed the boy with premeditation, then felony murder is appropriate. If the intention was theft, he feared getting caught, and killed the boy because he resisted, the second count in the charge should be aggravated manslaughter.”

“What does the accused have to say for himself?”

“Only that theft was the intent.”

“If it wasn’t premeditated murder, and he feared the boy making noise and attracting attention, why not do the deed somewhere more off the beaten track?”

“Shudatsu claims that option wasn’t available. He knew Shunryou was going to a neighborhood store to buy peaches because he was passing by the shop when he heard the boy’s mother say as much.”

The boy was on his way out of the house. His mother called out to him to make sure he had enough money. Shunryou opened his hand to show her. One peach cost four sen. Three cost twelve. He had enough.

“Shunryou’s parents were by no means rich, certainly not enough to give Shunryou a regular allowance. If he wanted spending money, he had to do chores, help out around the shop. In exchange, he was paid one sen. He saved up twelve sen in ten days or so, and had a real hankering for peaches.”

Jokyuu related these details in a heartsick manner.

p. 106

“One for his little sister, two for himself, that’s what he wanted. So he pitched in and patiently saved up his change.”

Eikou nodded. Once again he felt that cold hard knot in his chest. Having saved up a whole twelve sen, then asked by his mother to make sure he had it, the child proudly showed it off. Eikou had no trouble imagining the smile on the boy’s face, and that on the face of the loving mother. The affectionate nature of the words they shared ultimately sealed the boy’s fate.

“Shudatsu overheard the conversation. If he hadn’t acted right then, Shunryou would have skirted that dark alleyway and soon arrived at the market. So Shudatsu tailed him and dragged the boy into the alley before he got there.”

“Except the lay of the land would have been obvious at a glance. There were potential witnesses all over the place. If he didn’t want the boy to cause a commotion and attract undue attention, mustn’t he have understood from the start that the robbery would lead inevitably to murder?”

Jokyuu agreed. “That is the natural conclusion. It would explain why the provincial magistrate appended felony murder to the charge of aggravated robbery. For me, though, something doesn’t add up. In the final analysis, I wonder whether Shudatsu followed Shunryou with murderous intent. Shudatsu strikes me as a sick man. He steals because he wants something and acts on that desire. Murder is a byproduct of his efforts to carry off the theft. That’s the conclusion I came to.”

p. 107

“Hmm,” Eikou murmured. It seemed to him that Jokyuu was splitting hairs. But he understood the reluctance to lump aggravated robbery together with felony murder.

In any case, they would have to settle the matter one way or the other. And when they did, they couldn’t very well write an impressionist decision based on their emotions. But for the time being, neither could they get hung up on the issue the first day of deliberations.

Eikou turned to Sotsuyuu. He appeared to be a man of sixty or so and projected the experienced manner of an older man, perhaps more than Eikou did. In terms of his actual age, he was the youngest of the three.

“What does the clemency magistrate think?”

The clemency magistrate considered mitigating circumstances in three categories: the age and mental competency of the accused, the role of negligence in the crime, and the consensus of popular opinion. He gathered details about the crime and the criminal that argued for leniency and presented them to the court.

The first category consisted of three parts: children younger than seven, the elderly older than eighty, and the mentally infirmed with insufficient powers of discernment.

Sotsuyuu started by pointing out that there was no debate about age or mental abilities. Both Eikou and Jokyuu agreed. “It would be equally difficult to argue that any of the crimes involved negligence.”

The category of negligence included the failure to anticipate than a willful activity would result in harm to people or property.

For example, a longshoreman who tossed a heavy package down from an elevated storage area that hit and killed someone below. The act would qualify as negligence if he did not know or could not anticipate that a person would be standing there.

p. 108

Also classified under negligence were accidents and acts of forgetfulness. As for the former, imagine that the longshoreman unintentionally dropped or dislodged the package, or clearly intended to avoid hitting anybody, but failed to correctly calculate the margin of safety.

As for the latter, the longshoreman could have known that the package might have struck someone below but in the meantime forgot they were there.

In any case, none of these conditions could be applied to Shudatsu.

Eikou let out a long breath. “So our real problem comes down to the consensus of popular opinion.”

Sotsuyuu nodded.

“Popular opinion” was compiled from three sources: the opinion of the local crowd, the opinion of the government (as expressed by the civil service), and the opinion of the kingdom as a whole.

If popular opinion argued for forgiveness, Sotsuyuu could plead for a lighter sentence. Accordingly, he sought out the views of the people, as well as those of the civil service all the way up to and including the Rikkan (the Imperial Cabinet).

“Nobody is in a forgiving mood. Not a soul. The people are uniformly calling for the death penalty and will settle for nothing less. The civil service is nearly the same, though a few are less than decisive on the issue. The Rikkan counsels prudence. Everybody counsels giving all due respect to His Highness’s wishes. More than a few do fear that rashly reinstating capital punishment might lead to its abuse.”

“Of course. We must thank the Rikkan for telling us to be prudent.”

p. 109

“Prudence aside, there is no consensus of opinion arguing for mitigation. Quite the contrary. The public is furious. The word on the street is that nothing short of execution is acceptable. If the justices have it in mind to offer leniency, they demand we hand Shudatsu over to them.”

“I see,” Eikou murmured.

There was no skirting the death penalty without considering the real possibility of riots breaking out. Riots could be suppressed, but there’d be no way to suppress anger toward the justices and toward the kingdom. Unreasonably attempts to do so would destroy confidence in the justice system and eat away at trust in the kingdom.

Eikou asked, “What about the relatives of the victims?”

It was not unheard of for relatives of the victims to request a pardon on behalf of the criminal. In these cases, the accused had repented of the crime, apologized to the victim, and, depending on the circumstances, expressed contrition with a commitment to make restitution. These steps could go a long way towards dampening public outrage.

“No such requests have been made. Shudatsu never reached out to the families of any of his victims. Rather, several families have petitioned to have him executed.”

No surprise there, Eikou thought.

“I can well imagine the anger of the bereaved. I doubt the execution of the accused will mollify it.”

“You’re right on that point. They’re unlikely to settle for a severed head. Next will come demands for punishments more cruel and unusual, as in Hou. Sixteen indictments for murder alone and twenty-three victims total. Next thing you know, we’ll be hearing calls for the twenty-three cuts of lingchi.

p. 110

A convict sentenced to lingchi was repeatedly cut with a blade until he died, at which point his head was severed on put on display. In other cases, the coup de grâce was delivered by means of beheading or cutting the torso in half with a battle axe.

The administration of lingchi varied by kingdom and dynasty. Cases existed of the number of cuts being set beforehand. Citing that as a precedent, some were said the number should be determined by the number of victims, or so Eikou had heard. The harsh forms of punishment employed in other kingdoms was a popular topic of conversation in Shisou these days, and which one would be most appropriate in Shudatsu’s case.

An indignant Jokyuu raised his voice. “How many of those calling for lingchi understand the gruesome methods it actually involves? It means carving away at the flesh with a small knife without causing death. Reveling in the pain and drawing it out. Avoiding the vital organs to make the pain last longer. There’s even a case of an emperor in another kingdom listing a convict on the Registry of Wizards to prolong the suffering. I’m sure there are those who want us to even do that.

“Except that none other than Shudatsu tortured other human beings with lingchi,” Sotsuyuu pointed out.

Jokyuu had no ready response. Shudatsu had indeed sliced a married couple to death. In order to get them to disclose the location of a hidden treasure, he first tortured the husband in front of the wife. He cut off the fingers one by one, then the ears and the nose. When the man finally collapsed from the pain and died, he did the same thing to the wife.

They both insisted from the start that no treasure existed. In fact, there was none. Everybody knew they’d sold a plot of land. The proceeds paid the tuition at a private preparatory school their son attended so he could get into the provincial academy.

p. 111

So they suffered and died for nothing.

“People are bound to object that since Shudatsu subjected innocent citizens to lingchi, how can it be inhuman when the tables are turned? They’ll point out that Shudatsu is the inhuman one and we have no right to so blithely talk about cruel and unusual punishment when applied to Shudatsu, like what was done to that innocent couple doesn’t really count.”

Eikou and Jokyuu sank into silence.

Sotsuyuu said, “I don’t think I could have found the words to persuade them otherwise.”

Jokyuu grumbled half to himself, “But Shudatsu wants to be put to death.”

Eikou gave Jokyuu a dubious look. Jokyuu looked back at Eikou and Sotsuyuu with a plaintive expression. “I’ve heard that if the sentence is life without parole, he’d prefer to be put down right then and there. In that light, doesn’t capital punishment become something other than a punishment, while imprisonment very much does?”

Sotsuyuu said in a flustered voice, “If you’re not just saying that, what’s the point of bringing it up? Even if that’s how Shudatsu feels, when he actually gets hauled off to the gallows, my odds are on him pleading for his life.”

“Probably so.”

p. 112

“Even if he remained stoic to the end, that would be his final bluff. I don’t believe that Shudatsu has no fear of death. No man faces the prospect of his own suffering and demise without a sense of dread. No matter how desperate his straits, that underlying aspect of human nature remains. Isn’t that at the root of our desperation to begin with?”

Jokyuu thought about it for a moment and shook his head. “Though Shudatsu may be bluffing, I don’t think he’s abandoned all hope. I could probably phrase this better, but even with his head on the block, I think Shudatsu will still be looking for a way to come out on top.”

Eikou didn’t quite grasp what Jokyuu was trying to say. Sotsuyuu didn’t seem to either. Jokyuu was the only one of them who’d sat face-to-face with Shudatsu and he was having a hard time finding the words.

The three of them were musing in silence when a flurry of footsteps and harried voices grew closer.

Daishikou, please wait.” The Daishikou ran the Ministry of Fall. The voice belonged to Chi’in, from the Department of Justice. “They are in the midst of deliberations. Not even the Minister—”

The door opened before Chi’in could finish. Minister Enga stood there, nearly apoplectic with rage. “What is the verdict?”

p. 113

Perplexed, Eikou knelt and bowed with his hands locked together in front of his chest. “Deliberations have only just begun.”

“Good,” responded Minister Enga. He took them all in with a glance. “Better to let you know beforehand. Capital punishment is off the table. That’s the one thing you must keep in mind.”

Eikou and the others exchanged glances. Of course, high-ranking government officials, including those in the Department of Justice, were known to speak their minds when deliberations commenced. Indeed, the clemency magistrate sought out their opinions, starting with the Chief Cabinet Secretary of the Rikkan and on down.

But the final product of the deliberations themselves was always left to the discernment of the justice and his two magistrates.

“Daishikou, you’ve exceeded your authority.”

Chi’in was understandably furious. Interfering in the deliberation process was not allowed. That included the Daishikou. The Daishikou or the Chousai or other ministers with superior rank could voice objections and confer with their colleagues and thereby force an appeal of the decision. But one time only, and they could not direct the substance of a decision beforehand..

The only exception was an imperial rescript issued by the emperor.

Struck by this thought, Eikou turned his attention to Chi’in. “Would this perchance be the express will of His Highness?”

p. 114

If so, then everything would make sense. But Chi’in shook his head. “His Highness told me he was leaving everything up to us. Specifically the three of you.”

“His Highness is not in his right mind,” Minister Enga said, pushing Chi’in aside. “Why all the prevarication at this juncture? Public opinion may certainly weigh on your minds but you cannot allow such reasons to deviate you from the rightful course.”

Minister Enga turned Eikou and his magistrates. “A prison properly used is a prison unused. Meaning the purpose of a prison is not to punish people but to eliminate the need for a prison in the first place. There is also the principle of prison abolition, that the proper rule of the people will reduce those discontented citizens who resort to crime and the necessity of the penitentiary system. It should go without saying that this represents an ideal the kingdom should aspire to. Ryuu has been progressing towards this goal. There is no reason to abandon it now.”

“Just how far is Ryuu progressing?” asked Sotsuyuu. “If that is the case, then what explains the appearance of a monster like Shudatsu? Perhaps he came at a time when we should be considering reform of the penal system instead.”

p. 115

“A public servant in the Department of Justice should not use a word like monster,” Enga stated flatly. “A criminal he may be, but Shudatsu is no less an imperial subject and a citizen. Words like monster serve only to dehumanize criminals that people do not understand. Reforming the criminal who has been relegated to less-than-human status becomes all but impossible.”

He has a point, Eikou thought, somewhat abashed, but Sotsuyuu refused to concede.

“A man who murders an eight-year-old boy for twelve sen is less than human.”

Sotsuyuu,” Eikou chided under his breath.

Sotsuyuu was in no mood to back down. Enga fixed Sotsuyuu with a steely glare. “Could not the appearance of incomprehensible criminals like Shudatsu be due to officials pre-judging them as less-than-human? Is it not just as likely that a convict with this inhuman label affixed to him would, when challenged to rehabilitate himself, instead hew to the label and choose to pursue a life of crime instead?”


“To begin with, has any criminal ever committed murder for a mere twelve sen? Shudatsu himself answered in the affirmative when questioned by the provincial investigators. Except they had already categorized him as less-than-human. Shudatsu likely told them what they wanted to hear. Regrettably, denigrating people thusly is how criminals are made.”

This time Sotsuyuu bit his tongue.

p. 116

“No matter how baffling Shudatsu’s murder of that child may be, there must be reasons particular to him. Bringing them to light will point the way to saving others like him. Do you not believe that reform and rehabilitation is possible?”

Jokyuu said, “With all due respect, Sir, Shudatsu himself said he had no particular reason.”

Enga shook his head. “That is only what he said. He may lack the ability to put his thoughts into words, even lack the ability to comprehend his own actions. Your job is to point him toward the light so that together you can find the words to articulate the reasons. When you henceforth sit in judgment of the wayward and the impenitent, this case will thus serve as a precedent in educating them on the proper course to take.”

Jokyuu had no response to that.

“Punishing criminals is not the job of the Department of Justice. We urge them toward reform and reflection so that they may regain their place in society. Never forget that.”

Enga gazed down at Eikou and the others. Eikou was on the verge of having his own say on the matter when he noticed Chi’in standing behind Enga, frantically gesturing for him to keep quiet. So he shut his mouth.

Chi’in stepped in front of Enga and said, “We shall give all due consideration to the Minister’s counsel.”

Enga nodded. “The death penalty alone is not allowed,” he declared and turned on his heels.

p. 117

Chi’in said nothing. He bowed low. Eikou and his magistrates did the same. They waited for the footsteps to fade away. When Chi’in raised his head, he couldn’t disguise the sour look on his face.

“The Daishikou likes to carry on like that, but you should perform your duties as precedent demands. Come to a verdict without being swayed by outside opinions.”


“None other than His Highness said to leave the matter up to the Department of Justice. There is no need to take into account the Daishikou’s mood.”

Sotsuyuu asked with no little apprehension, “Would you know whether His Highness has suspended his rescript to not use the death penalty?”

Chi’in frowned. “I don’t know.”

Sotsuyuu pressed, “When you say you don’t know—”

Chi’in shook his head. He motioned for them to them to sit down, then all but collapsed on nearby bench. Eikou wondered if Chi’in knew the bench he was sitting on was generally reserved for witnesses and criminals summoned to testify during deliberations.

p. 118

“I met in person with His Highness and asked if he could clarify precisely what he meant when he said he was leaving things to the Department of Justice. But I haven’t received a clear answer.”

Apparently, when Chi’in first sought an audience, the emperor believed he’d already made himself clear enough and no audience was necessary. But that only left Chi’in at loose ends, along with Eikou and his magistrates. Chi’in repeatedly asked for an audience, petitioning the Chousai and the Saiho before finally being granted one.

“Except His Highness simply repeated that the verdict was in the hands of the court. I asked whether the decision to ban capital punishment could be suspended and got the same answer. Should the court decide that the ban ought to be suspended, that would be fine.”

“Does that mean we can actively consider the death penalty in our deliberations?”

“I am in the process of clarifying whether delivering a verdict that includes the death penalty is acceptable.

Eikou was of two minds on the subject. Was His Highness leaving things up to the court because he trusted them to come to the right decision? Or was this simply a convenient way of dumping the whole thing in their laps? In fact, he hadn’t quelled his doubts from the first time he’d heard that “the verdict is in the hands of the court.”

Such statements were not the product of soul searching, certainly not a declaration of trust in the court—rather, was it not a euphemistic way of expressing his disinterest in the outcome?

He sighed despite himself. So did Jokyuu and Sotsuyuu. Maybe one of those sighs was closer to a groan.

p. 119

The emperor of Ryuu had built the current dynasty with over one hundred and twenty years of enlightened rule. Nevertheless, of late, he often did things that made his retainers shake their heads. Now and then he behaved with profound indifference toward the affairs of state.

The widespread fame and lofty reputation of the kingdom as a nation of laws were attributed to this enlightened ruler. And yet he often seemed to ignore the means by which such laws came into existence. He handed down decisions in a haphazard and offhand manner, seeking legislative options from his advisors that invalidated laws he himself had promulgated. However his advisors argued with him at such times, there was no guarantee they’d be listened to.

Chi’in took a deep breath and let it out. “In any case, His Highness said to leave things up to the court. So shut out the noise and work toward a verdict. I’ll support whatever sentence you hand down.”

“What about the Daishikou?” Eikou asked.

“The Daishikou being the Daishikou, he’ll have an opinion no matter what. You are in no way obligated to follow it. Moreover, especially in this case, given that His Highness has expressly left things in your hands, not even the Daishikou can block your decision. Although once I announce the verdict, the Daishikou may seek to persuade the emperor one way or the other.”

The possibility could not be dismissed out of hand. Enga was none other than the crown prince. That put him in a position to influence the Imperial Ryou at a personal level as well as through the customary channels.

p. 120

“Would he be able to prevail upon him?” Sotsuyuu asked in a low voice.

“Unlikely,” Chi’in answered shortly.

As Daishikou, Enga was called “the emperor besides the other one.” Naturally, the civil servants who said such things did so quietly among themselves.

Perhaps it was an expression the rivalry between Enga and the highly esteemed ruler that was his father. Enga certainly acted as if it were true. Declaring that the death penalty “off the table” was only the most recent example.

No matter the subject matter, whenever the emperor decided on a course of action, Enga carried on like it’d been his idea from the start. If a retainer expressed doubts about a decision, and the emperor took them to heart and subsequently changed his mind, Enga would not budge an inch.

The decision had already become Enga’s decision, with all the reason and righteousness vested in himself. He did not hesitate to declare that the retainer who had recommended such treachery and the emperor who had accepted it must be wrong.

Exploiting his privileges as crown prince, he would go so far as to barge into the emperor’s bedroom to insist on the rightness of a position he had taken.

Unfortunately, Enga was simply not as gifted a man as his father.

Without the emperor coming to a decision in the first place, he was incapable of making up his own mind. Far from it, he couldn’t even hold to an opinion of his own. Until the emperor spoke, Enga hemmed and hawed, trying to read his father’s mind. Then as soon as he made a decision, Enga championed it as if he’d been the one asserting it all along.

p. 121

Not satisfied with chasing after his father’s train of thought and making it his own, Enga had to go above and beyond in every instance, attaching addition arguments and padding out the accompanying opinions. Even there he was wont to merely restate the obvious without considering the real-world context, and in post hoc ergo propter hoc fashion, often mistook the premise of the original proposition.

While chattering on about the ideals of the judicial process, he remained blissfully unaware of his troubling propensity to violate the bedrock principle of judiciary independence. Just as he demonstrated no capacity whatsoever to integrate any other viewpoint into his own opinions. And perhaps this made sense, as none of his opinion were his own to start with.

As a consequence, no matter how Enga might prevail upon his father, not once had he succeeded. With a wry smile, the emperor remonstrated with his son, leaving him to insist in vain that he was the greater of the two.

Considering the available precedents, Enga’s persuasive powers were unlikely to move the emperor. In that case, the concluding arguments would be Eikou’s to make.

Jokyuu said with a strained sigh, “No disrespect intended, but why in the world did His Highness give Enga such an important post?”

Here was a man who, the words once having left his mouth, clung to his stated position and would not be budged from it. Political administration was a creature that must by necessary adapt to changing circumstances. That turned the ever-rigid Enga into a huge impediment for the civil servants working under him.

Regardless, the emperor placed Enga in positions of vital importance. Why not the Ministry of Heaven (Administration ) or the Ministry of Spring (Protocol), his retainers whispered amongst themselves. Instead he was given whatever he wanted, including critical portfolios like the Ministry of Earth (Education) and Ministry of Fall (Justice).

p. 122

Chi’in said with a sardonic smile, “Well, that’s parental affection, for you. Common sense can’t defeat those family ties.”

For any number of reasons, Eikou felt a dark mood descending on him. Enga’s presence weighed on his mind. He was as willing as any to pursue the ideals the courts represented. But when it came to the Shudatsu case, the problems lay elsewhere. That’s why he and his magistrates were left to rack their brains.

That the person holding the position of Daishikou had no comprehension of this fact was simply another burden they had to bear. Even as the emperor lost interest in his own administration, the gears of government creaked and grated, and the kingdom itself seemed to be falling apart.

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