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Bushido
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This article is about the Japanese concept of chivalry. For other uses, see Bushido (disambiguation).
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Japanese samurai in armor, 1860s. Photograph by Felice Beato
Bushidō (武士道, "the way of warriors") is a Japanese collective term for the many codes of honour and ideals that dictated the samurai way of life, loosely analogous to the concept of chivalry in Europe.
The "way" originates from the samurai moral values, most commonly stressing some combination of sincerity, frugality, loyalty, martial arts mastery, and honour until death. Born from Neo-Confucianism during times of peace in the Edo period (1600–1878) and following Confucian texts, while also being influenced by Shinto and Zen Buddhism, allowing the violent existence of the samurai to be tempered by wisdom and serenity. Bushidō developed between the 16th and 20th centuries, debated by pundits who believed they were building on a legacy dating back to the 10th century, although some scholars have noted that the term bushidō itself is "rarely attested in pre-modern literature".[1]
Under the Tokugawa shogunate, some aspects of warrior values became formalized into Japanese feudal law.[2]
The word bushidō was first used in Japan during the 17th century in Kōyō Gunkan,[3][4][5] but did not come into common usage until after the 1899 publication of Nitobe Inazō's Bushido: The Soul of Japan.[6] In Bushido (1899), Nitobe wrote:
"Bushidō, then, is the code of moral principles which the samurai were required or instructed to observe ... More frequently it is a code unuttered and unwritten ... It was an organic growth of decades and centuries of military career. In order to become a samurai this code has to be mastered."[7]
Nitobe was the first to document Japanese chivalry in this way. In Feudal and Modern Japan (1896), historian Arthur May Knapp wrote:
"The samurai of thirty years ago had behind him a thousand years of training in the law of honor, obedience, duty, and self-sacrifice ... It was not needed to create or establish them. As a child he had but to be instructed, as indeed he was from his earliest years, in the etiquette of self-immolation."[8]
Contents
[hide]
1 Historical development
1.1 Early history to 16th century
1.2 17th to 19th centuries
1.3 19th to 21st centuries
2 Tenets
2.1 Eight virtues of Bushidō (as envisioned by Nitobe Inazō)
2.2 Associated virtues
3 Modern translations
4 Major figures associated with Bushidō
4.1 Fictional characters
5 See also
6 References
7 External links and further reading
Historical development[edit]
This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. (May 2010) (Learn how and when to remove this template message)
Early history to 16th century[edit]
Many early literary works of Japan talk of warriors, but term bushidō does not appear in text until the Edo period.[9]
From the literature of the 13th to 16th centuries, there exists an abundance of references to military ideals, although none of these should be viewed as early versions of bushidō per se.[citation needed] Carl Steenstrup noted that 13th and 14th century writings (gunki monogatari) "portrayed the bushi in their natural element, war, eulogizing such virtues as reckless bravery, fierce family pride, and selfless, at times senseless devotion of master and man".[citation needed]
Compiled over the course of three centuries, beginning in the 1180s, the Heike Monogatari depicts a highly fictionalized and idealized story of a struggle between two warrior clans, the Minamoto and the Taira, at the end of the 12th century—a conflict known as the Genpei War.[citation needed] Clearly depicted throughout the epic is the ideal of the cultivated warrior.[citation needed] The warriors in the Heike Monogatari served as role models for the educated warriors of later generations, although the ideals depicted by them were assumed to be beyond reach.[citation needed] Nevertheless, during the early modern era, these ideals were vigorously pursued in the upper echelons of warrior society and recommended as the proper form of the Japanese man of arms.[citation needed]
The sayings of Sengoku-period retainers and warlords such as Katō Kiyomasa and Nabeshima Naoshige were generally recorded or passed down to posterity around the turn of the 16th century when Japan had entered a period of relative peace. In a handbook addressed to "all samurai, regardless of rank", Katō states:
"If a man does not investigate into the matter of bushidō daily, it will be difficult for him to die a brave and manly death.[citation needed] Thus, it is essential to engrave this business of the warrior into one's mind well."[citation needed]
Katō was a ferocious warrior who banned even recitation of poetry, stating:
"One should put forth great effort in matters of learning. One should read books concerning military matters, and direct his attention exclusively to the virtues of loyalty and filial piety....Having been born into the house of a warrior, one's intentions should be to grasp the long and the short swords and to die."[10][clarification needed]
Naoshige says similarly, that it is shameful for any man to die without having risked his life in battle, regardless of rank, and that "bushidō is in being crazy to die. Fifty or more could not kill one such a man". However, Naoshige also suggests that "everyone should personally know exertion as it is known in the lower classes".[10]
17th to 19th centuries[edit]
Miyamoto Musashi killing a giant creature, from The Book of Five Rings
Japan enjoyed a period of relative peace from 1600 to the mid-19th century. During this period, the samurai class played a central role in the policing and administration of the country.[citation needed] The bushidō literature of this time contains much thought relevant to a warrior class seeking more general application of martial principles and experience in peacetime, as well as reflection on the land's long history of war.[citation needed] The literature of this time includes:
Budo Shōshinshu (武道初心集) by Taira Shigesuke, Daidōji Yūzan (1639–1730)
Hagakure as related by Yamamoto Tsunetomo to Tsuramoto Tashiro.
Bugei Juhappan (武芸十八般)
A Book of Five Rings by Miyamoto Musashi
The Hagakure contains many sayings attributed to Sengoku-period retainer Nabeshima Naoshige (1537–1619) regarding bushidō related philosophy early in the 18th century by Yamamoto Tsunetomo (1659–1719), a former retainer to Naoshige's grandson, Nabeshima Mitsushige. The Hagakure was compiled in the early 18th century, but was kept as a kind of "secret teaching" of the Nabeshima clan until the end of the Tokugawa bakufu (1867).[11] His saying, "I have found the way of the warrior is death", was a summation of the focus on honour and reputation over all else that bushidō codified.[12]
Tokugawa-era rōnin, scholar and strategist Yamaga Sokō (1622–1685) wrote extensively on matters relating to bushidō, bukyō (a "warrior's creed"), and a more general shidō, a "way of gentlemen" intended for application to all stations of society. Sokō attempts to codify a kind of "universal bushidō" with a special emphasis on "pure" Confucian values, (rejecting the mystical influences of Tao and Buddhism in Neo-Confucian orthodoxy), while at the same time calling for recognition of the singular and divine nature of Japan and Japanese culture. These radical concepts—including ultimate devotion to the Emperor, regardless of rank or clan—put him at odds with the reigning shogunate. He was exiled to the Akō domain, (the future setting of the 47 Rōnin incident), and his works were not widely read until the rise of nationalism in the early 20th century.[citation needed]
The aging Yamamoto Tsunetomo's interpretation of bushidō is perhaps more illustrative of the philosophy refined by his unique station and experience, at once dutiful and defiant, ultimately incompatible with the laws of an emerging civil society. Of the 47 rōnin—to this day, generally regarded as exemplars of bushidō—Tsunetomo felt they were remiss in hatching such a wily, delayed plot for revenge, and had been over-concerned with the success of their undertaking. Instead, Tsunetomo felt true samurai should act without hesitation to fulfill their duties, without regard for success or failure.[citation needed]
This romantic sentiment is of course expressed by warriors throughout history, though it may run counter to the art of war itself. This ambivalence is found in the heart of bushidō, and perhaps all such "warrior codes". Some combination of traditional bushidō's organic contradictions and more "universal" or "progressive" formulations (like those of Yamaga Sokō) would inform Japan's disastrous military ambitions in the 20th century.[citation needed]
19th to 21st centuries[edit]
Recent scholarship in both Japan and abroad has focused on differences between the samurai caste and the bushidō theories that developed in modern Japan. Bushidō in the prewar period was often emperor-centered and placed much greater value on the virtues of loyalty and self-sacrifice than did many Tokugawa-era interpretations.[13] Bushidō was used as a propaganda tool by the government and military, who doctored it to suit their needs.[14] Scholars of Japanese history agree that the bushidō that spread throughout modern Japan was not simply a continuation of earlier traditions.
More recently, it has been argued that modern bushidō discourse originated in the 1880s as a response to foreign stimuli, such as the English concept of "gentlemanship", by Japanese with considerable exposure to Western culture. Nitobe Inazo's bushidō interpretations followed a similar trajectory, although he was following earlier trends. This relatively pacifistic bushidō was then hijacked and adapted by militarists and the government from the early 1900s onward as nationalism increased around the time of the Russo-Japanese War.[15]
The junshi suicide of General Nogi Maresuke and his wife on the death of Emperor Meiji occasioned both praise, as an example to the decaying morals of Japan, and criticism, explicitly declaring that the spirit of bushidō thus exemplified should not be revived.[16]
During pre-World War II and World War II Shōwa Japan, bushido was pressed into use for militarism,[17] to present war as purifying, and death a duty.[18] This was presented as revitalizing traditional values and "transcending the modern".[19] Bushidō would provide a spiritual shield to let soldiers fight to the end.[20] As the war turned, the spirit of bushidō was invoked to urge that all depended on the firm and united soul of the nation.[21] When the Battle of Attu was lost, attempts were made to make the more than two thousand Japanese deaths an inspirational epic for the fighting spirit of the nation.[22] Arguments that the plans for the Battle of Leyte Gulf, involving all Japanese ships, would expose Japan to serious danger if they failed, were countered with the plea that the Navy be permitted to "bloom as flowers of death".[23] The first proposals of organized suicide attacks met resistance because although bushidō called for a warrior to be always aware of death, they were not to view it as the sole end. Nonetheless, the desperate straits brought about acceptance[24] and such attacks were acclaimed as the true spirit of bushidō.[25]
Prisoners of war denied being mistreated and declared that they were being well-treated by virtue of bushidō generosity.[26] Broadcast interviews with prisoners were also described as being not propaganda but out of sympathy with the enemy, such sympathy as only bushidō could inspire.[27]
Tenets[edit]
Bushidō expanded and formalized the earlier code of the samurai, and stressed sincerity, frugality, loyalty, mastery of martial arts, and honour to the death. Under the bushidō ideal, if a samurai failed to uphold his honor he could only regain it by performing seppuku (ritual suicide).[28]
In an excerpt from his book Samurai: The World of the Warrior,[29] historian Stephen Turnbull describes the role of seppuku in feudal Japan:
In the world of the warrior, seppuku was a deed of bravery that was admirable in a samurai who knew he was defeated, disgraced, or mortally wounded. It meant that he could end his days with his transgressions wiped away and with his reputation not merely intact but actually enhanced. The cutting of the abdomen released the samurai’s spirit in the most dramatic fashion, but it was an extremely painful and unpleasant way to die, and sometimes the samurai who was performing the act asked a loyal comrade to cut off his head at the moment of agony.
Bushidō varied dramatically over time, and across the geographic and socio-economic backgrounds of the samurai, who represented somewhere between 5% and 10% of the Japanese population.[30] The first Meiji-era census at the end of the 19th century counted 1,282,000 members of the "high samurai", allowed to ride a horse, and 492,000 members of the "low samurai", allowed to wear two swords but not to ride a horse, in a country of about 25 million.[31]
Some versions of bushidō include compassion for those of lower station, and for the preservation of one's name.[10] Early bushidō literature further enforces the requirement to conduct oneself with calmness, fairness, justice, and propriety.[10] The relationship between learning and the way of the warrior is clearly articulated, one being a natural partner to the other.[10]
Other pundits pontificating on the warrior philosophy covered methods of raising children, appearance, and grooming, but all of this may be seen as part of one's constant preparation for death—to die a good death with one's honor intact, the ultimate aim in a life lived according to bushidō. Indeed, a "good death" is its own reward, and by no means assurance of "future rewards" in the afterlife. Some samurai, though certainly not all (e.g., Amakusa Shirō), have throughout history held such aims or beliefs in disdain, or expressed the awareness that their station—as it involves killing—precludes such reward, especially in Buddhism. Japanese beliefs surrounding the samurai and the afterlife are complex and often contradictory, while the soul of a noble warrior suffering in hell or as a lingering spirit occasionally appears in Japanese art and literature, so does the idea of a warrior being reborn upon a lotus throne in paradise[32]
Eight virtues of Bushidō (as envisioned by Nitobe Inazō)[edit]
The bushidō code is typified by eight virtues:[33]
Righteousness (義, gi)
Be acutely honest throughout your dealings with all people. Believe in justice, not from other people, but from yourself. To the true warrior, all points of view are deeply considered regarding honesty, justice and integrity. Warriors make a full commitment to their decisions.
Heroic Courage (勇, yū)
Hiding like a turtle in a shell is not living at all. A true warrior must have heroic courage. It is absolutely risky. It is living life completely, fully and wonderfully. Heroic courage is not blind. It is intelligent and strong.
Benevolence, Compassion (仁, jin)
Through intense training and hard work the true warrior becomes quick and strong. They are not as most people. They develop a power that must be used for good. They have compassion. They help their fellow men at every opportunity. If an opportunity does not arise, they go out of their way to find one.
Respect (礼, rei)
True warriors have no reason to be cruel. They do not need to prove their strength. Warriors are not only respected for their strength in battle, but also by their dealings with others. The true strength of a warrior becomes apparent during difficult times.
Integrity (誠, makoto)
When warriors say that they will perform an action, it is as good as done. Nothing will stop them from completing what they say they will do. They do not have to 'give their word'. They do not have to 'promise'. Speaking and doing are the same action.
Honour (名誉, meiyo)
Warriors have only one judge of honor and character, and this is themselves. Decisions they make and how these decisions are carried out are a reflection of whom they truly are. You cannot hide from yourself.
Duty and Loyalty (忠義, chūgi)
Warriors are responsible for everything that they have done and everything that they have said, and all of the consequences that follow. They are immensely loyal to all of those in their care. To everyone that they are responsible for, they remain fiercely true.
Self-Control (自制, jisei)
Associated virtues[edit]
Filial piety (孝, kō)
Wisdom (智, chi)
Fraternity (悌, tei)
Modern translations[edit]
Modern Western translation of documents related to bushidō began in the 1970s with Carl Steenstrup, who performed research into the ethical codes of famous samurai including Hōjō Sōun and Imagawa Sadayo.[34]
Primary research into bushidō was later conducted by William Scott Wilson in his 1982 text Ideals of the Samurai: Writings of Japanese Warriors. The writings span hundreds of years, family lineage, geography, social class and writing style—yet share a common set of values. Wilson's work also examined older Japanese writings unrelated to the warrior class: the Kojiki, Shoku Nihongi, the Kokin Wakashū and the Konjaku Monogatari, as well as the Chinese Classics (the Analects, the Great Learning, the Doctrine of the Mean, and the Mencius).
In May 2008, Thomas Cleary translated a collection of 22 writings on bushidō by warriors, scholars, political advisers, and educators, spanning 500 years from the 14th to the 19th centuries. Titled Training the Samurai Mind: A Bushido Sourcebook, it gave an insider's view of the samurai world: "the moral and psychological development of the warrior, the ethical standards they were meant to uphold, their training in both martial arts and strategy, and the enormous role that the traditions of Shintoism, Buddhism, Confucianism, and Taoism had in influencing samurai ideals".
Major figures associated with Bushidō[edit]
Asano Naganori
Imagawa Ryōshun
Katō Kiyomasa
Sakanoue no Tamuramaro
Honda Tadakatsu
Tokugawa Ieyasu
Torii Mototada
Sasaki Kojirō
Saigō Takamori
Yamaga Sokō
Yamamoto Tsunetomo
Yamaoka Tesshū
Yukio Mishima
Hijikata Toshizō
Miyamoto Musashi
Fictional characters[edit]
Spike Spiegel
Ogami Ittō
Samurai Jack
Roronoa Zoro
Auron
Cyan Garamonde
Miyamoto Usagi
Kenshin Himura
Jubei Yagyu
James Howlett
Colleen Wing
Drift (Transformers)
Ghost Dog
See also[edit]
Budō
Hagakure
Hana wa sakuragi, hito wa bushi
Japanese martial arts
The Unfettered Mind
Zen
Zen at War
References[edit]
Jump up ^ "The Zen of Japanese Nationalism", by Robert H. Shart, in Curators of the Buddha, edited by Donald Lopez, p. 111
Jump up ^ 'Tokugawa shogunate'
Jump up ^ Willcock, Hiroko (2008). The Japanese Political Thought of Uchimura Kanzō (1861-1930): Synthesizing Bushidō, Christianity, Nationalism, and Liberalism. Edwin Mellen Press. ISBN 077345151X. Koyo gunkan is the earliest comprehensive extant work that provides a notion of Bushido as a samurai ethos and the value system of the samurai tradition.
Jump up ^ Ikegami, Eiko, The Taming of the Samurai, Harvard University Press, 1995. p. 278
Jump up ^ Kasaya, Kazuhiko (2014). 武士道 第一章 武士道という語の登場 [Bushido Chapter I Appearance of the word Bushido] (in Japanese). NTT publishing. p. 7. ISBN 4757143222.
Jump up ^ Friday, Karl F. "Bushidō or Bull? A Medieval Historian's Perspective on the Imperial Army and the Japanese Warrior Tradition" The History Teacher, Vol. 27, No. 3 (May, 1994), pp. 340
Jump up ^ Nitobe, Inazō (1899). Bushidō: The soul of Japan.
Jump up ^ Arthur May Knapp (1896). "Feudal and Modern Japan". Retrieved 2010-01-02.
Jump up ^ "The Zen of Japanese Nationalism," by Robert H. Sharf, in Curators of the Buddha, edited by Donald Lopez, p. 111
^ Jump up to: a b c d e William Scott Wilson, Ideals of the Samurai: Writings of Japanese Warriors (Kodansha, 1982) ISBN 0-89750-081-4
Jump up ^ "The Samurai Series: The Book of Five Rings, Hagakure -The Way of the Samurai & Bushido - The Soul of Japan" ELPN Press (November, 2006) ISBN 1-934255-01-7
Jump up ^ Meirion and Susie Harries, Soldiers of the Sun: The Rise and Fall of the Imperial Japanese Army p 7 ISBN 0-394-56935-0
Jump up ^ Eiko Ikegami. The Taming of the Samurai: Honorific Individualism and the Making of Modern Japan. Cambridge, MA: Harvard University Press, 1995.
Jump up ^ Karl Friday. Bushidō or Bull? A Medieval Historian's Perspective on the Imperial Army and the Japanese Warrior Tradition. The History Teacher, Volume 27, Number 3, May 1994, pages 339-349.[1]
Jump up ^ Oleg Benesch. Inventing the Way of the Samurai: Nationalism, Internationalism, and Bushido in Modern Japan. Oxford: Oxford University Press, 2014. ISBN 0198706626, ISBN 9780198706625
Jump up ^ Herbert P. Bix, Hirohito and the Making of Modern Japan p 42-3 ISBN 0-06-019314-X
Jump up ^ "No Surrender: Background History"
Jump up ^ David Powers, "Japan: No Surrender in World War Two"
Jump up ^ John W. Dower, War Without Mercy: Race & Power in the Pacific War p1 ISBN 0-394-50030-X
Jump up ^ Richard Overy, Why the Allies Won p 6 ISBN 0-393-03925-0
Jump up ^ Edwin P. Hoyt, Japan's War, p 334 ISBN 0-07-030612-5
Jump up ^ John Toland, The Rising Sun: The Decline and Fall of the Japanese Empire 1936-1945 p 444 Random House New York 1970
Jump up ^ John Toland, The Rising Sun: The Decline and Fall of the Japanese Empire 1936-1945 p 539 Random House New York 1970
Jump up ^ Edwin P. Hoyt, Japan's War, p 356 ISBN 0-07-030612-5
Jump up ^ Edwin P. Hoyt, Japan's War, p 360 ISBN 0-07-030612-5
Jump up ^ Edwin P. Hoyt, Japan's War, p 256 ISBN 0-07-030612-5
Jump up ^ Edwin P. Hoyt, Japan's War, p 257 ISBN 0-07-030612-5
Jump up ^ "Bushido | Japanese history". Encyclopedia Britannica. Retrieved 2017-08-21.
Jump up ^ "ospreysamurai.com". www.ospreysamurai.com.
Jump up ^ Cleary, Thomas Training the Samurai Mind: A Bushido Sourcebook Shambhala (May, 2008) ISBN 1-59030-572-8
Jump up ^ Mikiso Hane Modern Japan: A Historical Survey, Third Edition Westview Press (January, 2001) ISBN 0-8133-3756-9
Jump up ^ Zeami Motokiyo "Atsumori"
Jump up ^ Bushido: The Soul of Japan
Jump up ^ "Monumenta Nipponica". Archived from the original on 2008-02-15.
External links and further reading[edit]
Oleg Benesch. Inventing the Way of the Samurai: Nationalism, Internationalism, and Bushido in Modern Japan. Oxford: Oxford University Press, 2014. ISBN 0198706626, ISBN 9780198706625
易經道 Yijing Dao, 鳴鶴在陰 Calling crane in the shade, Biroco - The Art of Doing Nothing, 2002-2012, 馬夏 Ma, Xia, et. al., [2]
"Bushido Arcade" a Contemporary translation of the Bushido [3]
William Scott Wilson, Ideals of the Samurai: Writings of Japanese Warriors (Kodansha, 1982) ISBN 0-89750-081-4
Training the Samurai Mind: A Bushido Sourcebook by Thomas Cleary 288 pages Shambhala (May 13, 2008) ISBN 1-59030-572-8 ISBN 978-1590305720
Katsumata Shizuo with Martin Collcutt, "The Development of Sengoku Law," in Hall, Nagahara, and Yamamura (eds.), Japan Before Tokugawa: Political Consolidation and Economic Growth (1981), chapter 3.
K. A. Grossberg & N. Kanamoto 1981, The Laws of the Muromachi Bakufu: Kemmu Shikimoku (1336) and Muromachi Bakufu Tsuikaho, MN Monographs (Sophia UP)
Hall, John C. "Japanese Feudal Laws: the Magisterial Code of the Hojo Power Holders (1232) ." Transactions of the Asiatic Society of Japan 2nd ser. 34 (1906)
"Japanese Feudal laws: The Ashikaga Code." Transactions of the Asiatic Society of Japan 1st ser. 36 (1908):
John Allyn, "Forty-Seven Ronin Story" ISBN 0-8048-0196-7
Imagawa Ryoshun, The Regulations of Imagawa Ryoshun (1412 A.D.) Imagawa_Ryoshun
Algernon Bertram Freeman-Mitford, 1st Baron Redesdale, Final_Statement_of_the_47_Ronin (1701 A.D.)
The Message Of Master Gokurakuji — Hōjō Shigetoki (1198A.D.-1261A.D.) Hojo_shigetoki
Sunset of the Samurai--The True Story of Saigo Takamori Military History Magazine
Onoda, Hiroo, No Surrender: My Thirty-Year War. Trans. Charles S. Terry. (New York, Kodansha International Ltd, 1974) ISBN 1-55750-663-9
An interview with William Scott Wilson about Bushidō
Bushidō Website: a good definition of bushidō, including The Samurai Creed
The website of William Scott Wilson A 2005 recipient of the Japanese Government's Japan’s Foreign Minister’s Commendation, William Scott Wilson was honored for his research on Samurai and Bushidō.
Hojo Shigetoki (1198-1261)and His Role in the History of Political and Ethical Ideas in Japan by Carl Steenstrup; Curzon Press (1979)ISBN 0-7007-0132-X
A History of Law in Japan Until 1868 by Carl Steenstrup; Brill Academic Publishers;second edition (1996) ISBN 90-04-10453-4
Bushido — The Soul of Japan by Inazo Nitobe (1905) (ISBN 0-8048-3413-X)
Budoshoshinshu - The Code of The Warrior by Daidōji Yūzan (ISBN 0-89750-096-2)
Hagakure-The Book of the Samurai By Tsunetomo Yamamoto (ISBN 4-7700-1106-7 paperback, ISBN 4-7700-2916-0 hardcover)
Go Rin No Sho - Miyamoto Musashi (1645) (ISBN 4-7700-2801-6 hardback, ISBN 4-7700-2844-X hardback Japan only)
The Unfettered Mind - Writings of the Zen Master to the Sword master by Takuan Sōhō (Musashi's mentor) (ISBN 0-87011-851-X)
The Religion of the Samurai (1913 original text), by Kaiten Nukariya, 2007 reprint by ELPN Press ISBN 0-9773400-7-4
Tales of Old Japan by Algernon Bertram Freeman-Mitford (1871) reprinted 1910
Sakujiro Yokoyama's Account of a Samurai Sword Duel
Death Before Dishonor By Masaru Fujimoto — Special to The Japan Times: Dec. 15, 2002
Osprey, "Elite and Warrior Series" Assorted. [4]
Stephen Turnbull, "Samurai Warfare" (London, 1996), Cassell & Co ISBN 1-85409-280-4
Lee Teng-hui, former President of the Republic of China, "武士道解題 做人的根本 蕭志強譯" in Chinese，前衛, "「武士道」解題―ノーブレス・オブリージュとは" in Japanese，小学館，(2003), ISBN 4-09-387370-4
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Article Three of the United States Constitution
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Article Three of the United States Constitution
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Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.
Contents
[hide]
1 Section 1: Federal courts
1.1 Number of courts
1.2 Tenure
1.3 Salaries
2 Section 2: Judicial power, jurisdiction, and trial by jury
2.1 Clause 1: Cases and controversies
2.2 Eleventh Amendment and state sovereign immunity
2.3 Clause 2: Original and appellate jurisdiction
2.4 Judicial review
2.5 Clause 3: Federal trials
3 Section 3: Treason
4 See also
5 References
6 Bibliography
7 External links
Section 1: Federal courts[edit]
Section 1 vests the judicial power of the United States in federal courts, requires a supreme court, allows inferior courts, requires good behavior tenure for judges, and prohibits decreasing the salaries of judges.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
Number of courts[edit]
Article III authorizes one Supreme Court, but does not set the number of justices that must be appointed to it. Article I, Section 3, Clause 6 refers to a Chief Justice (who shall preside over the impeachment trial of a President). The number of justices is fixed by statute at nine: the one chief justice, and eight associate justices.[1]
Proposals to divide the Supreme Court into separate panels have been made, but all have failed. Because all such proposals have failed, the Supreme Court has never ruled on the constitutionality of such a division. Chief Justice Charles Evans Hughes wrote, "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."
The Supreme Court is the only federal court that is explicitly mandated by the Constitution. During the Constitutional Convention, a proposal was made for the Supreme Court to be the only federal court, having both original jurisdiction and appellate jurisdiction. This proposal was rejected in favor of the provision that exists today. Under this provision, the Congress may create inferior (i.e., lower) courts under both Article III, Section 1, and Article I, Section 8. The Article III courts, which are also known as "constitutional courts", were first created by the Judiciary Act of 1789. Article I courts, which are also known as "legislative courts", consist of regulatory agencies, such as the United States Tax Court. Article III courts are the only ones with judicial power, and so decisions of regulatory agencies remain subject to review by Article III courts. However, cases not requiring "judicial determination" may come before Article I courts. In the case of Murray's Lessee v. Hoboken Land & Improvement Co. 59 U.S. 272 (1855), the Supreme Court ruled that cases involving "a suit at the common law, or in equity, or admiralty" inherently involve judicial determination and must come before Article III courts. Other cases, such as bankruptcy cases, have been held not to involve judicial determination, and may therefore go before Article I courts. Similarly, several courts in the District of Columbia, which is under the exclusive jurisdiction of the Congress, are Article I courts rather than Article III courts. This article was expressly extended to the United States District Court for the District of Puerto Rico by the U.S. Congress through Federal Law 89-571, 80 Stat. 764, signed by President Lyndon B. Johnson in 1966. This transformed the article IV United States territorial court in Puerto Rico, created in 1900, to an Article III federal judicial district court.
The Judicial Procedures Reform Bill of 1937—frequently called the court-packing plan,[2]— was a legislative initiative to add more justices to the Supreme Court proposed by U.S. President Franklin Roosevelt shortly after his victory in the 1936 presidential election. Although the bill aimed generally to overhaul and modernize all of the federal court system, its central and most controversial provision would have granted the President power to appoint an additional Justice to the U.S. Supreme Court for every sitting member over the age of 70½, up to a maximum of six.
The Constitution is silent when it comes to judges of courts which have been abolished. The Judiciary Act of 1801 increased the number of courts to permit the Federalist President John Adams to appoint a number of Federalist judges before Thomas Jefferson took office. When Jefferson became President, the Congress abolished several of these courts and made no provision for the judges of those courts. Judicial Code of 1911 abolished "circuit riding" and transferred the circuit courts authority and jurisdiction to the district courts.
Tenure[edit]
The Constitution provides that judges "shall hold their Offices during good Behavior." The term "good behavior" is interpreted to mean that judges may serve for the remainder of their lives, although they may resign or retire voluntarily. A judge may also be removed by impeachment and conviction by congressional vote (hence the term good behavior); this has occurred fourteen times. Three other judges, Mark W. Delahay,[3] George W. English,[4] and Samuel B. Kent,[5] chose to resign rather than go through the impeachment process.
Salaries[edit]
The compensation of judges may not be decreased, but may be increased, during their continuance in office.
Section 2: Judicial power, jurisdiction, and trial by jury[edit]
Section 2 delineates federal judicial power, and brings that power into execution by conferring original jurisdiction and also appellate jurisdiction upon the Supreme Court. Additionally, this section requires trial by jury in all criminal cases, except impeachment cases.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Clause 1: Cases and controversies[edit]
Main article: Case or Controversy Clause
Clause 1 of Section 2 authorizes the federal courts to hear actual cases and controversies only. Their judicial power does not extend to cases which are hypothetical, or which are proscribed due to standing, mootness, or ripeness issues. Generally, a case or controversy requires the presence of adverse parties who have a genuine interest at stake in the case. In Muskrat v. United States, 219 U.S. 346 (1911), the Supreme Court denied jurisdiction to cases brought under a statute permitting certain Native Americans to bring suit against the United States to determine the constitutionality of a law allocating tribal lands. Counsel for both sides were to be paid from the federal Treasury. The Supreme Court held that, though the United States was a defendant, the case in question was not an actual controversy; rather, the statute was merely devised to test the constitutionality of a certain type of legislation. Thus the Court's ruling would be nothing more than an advisory opinion; therefore, the court dismissed the suit for failing to present a "case or controversy."
A significant omission is that although Clause 1 provides that federal judicial power shall extend to "the laws of the United States," it does not also provide that it shall extend to the laws of the several or individual states. In turn, the Judiciary Act of 1789 and subsequent acts never granted the U.S. Supreme Court the power to review decisions of state supreme courts on pure issues of state law. It is this silence which tacitly made state supreme courts the final expositors of the common law in their respective states. They were free to diverge from English precedents and from each other on the vast majority of legal issues which had never been made part of federal law by the Constitution, and the U.S. Supreme Court could do nothing about that, as it would ultimately concede in Erie Railroad Co. v. Tompkins (1938). By way of contrast, other English-speaking federations like Australia and Canada never adopted the Erie doctrine. That is, their highest courts have always possessed plenary power to impose a uniform nationwide common law upon all lower courts and never adopted the strong American distinction between federal and state common law.
Eleventh Amendment and state sovereign immunity[edit]
Main articles: Eleventh Amendment to the United States Constitution and Sovereign immunity in the United States
In Chisholm v. Georgia, 2 U.S. 419 (1793), the Supreme Court ruled that Article III, Section 2 abrogated the States’ sovereign immunity and authorized federal courts to hear disputes between private citizens and States. This decision was overturned by the Eleventh Amendment, which was passed by the Congress on March 4, 1794 1 Stat. 402 and ratified by the states on February 7, 1795. It prohibits the federal courts from hearing any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.[6]
Clause 2: Original and appellate jurisdiction[edit]
See also: Jurisdiction stripping
Clause 2 of Section 2 provides that the Supreme Court has original jurisdiction in cases affecting ambassadors, ministers and consuls, and also in those controversies which are subject to federal judicial power because at least one state is a party; the Court has held that the latter requirement is met if the United States has a controversy with a state.[7][8] In other cases, the Supreme Court has only appellate jurisdiction, which may be regulated by the Congress. The Congress may not, however, amend the Court's original jurisdiction, as was found in Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803) (the same decision which established the principle of judicial review). Marbury held that Congress can neither expand nor restrict the original jurisdiction of the Supreme Court. However, the appellate jurisdiction of the Court is different. The Court's appellate jurisdiction is given "with such exceptions, and under such regulations as the Congress shall make."
Often a court will assert a modest degree of power over a case for the threshold purpose of determining whether it has jurisdiction, and so the word "power" is not necessarily synonymous with the word "jurisdiction".[9][10]
Judicial review[edit]
Main articles: Judicial review and Judicial review in the United States
The power of the federal judiciary to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself, is an implied power derived in part from Clause 2 of Section 2.[11]
Though the Constitution does not expressly provide that the federal judiciary has the power of judicial review, many of the Constitution's Framers viewed such a power as an appropriate power for the federal judiciary to possess. In Federalist No. 78, Alexander Hamilton wrote,
The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[12]
Others, however, disagreed, claiming that each branch could determine for itself the constitutionality of its actions.
A continuation of the text of Federalist No. 78 by Hamilton [below] counterbalances the tone of "judicial supremacists" who demand that both Congress and the Executive are compelled by the Constitution to enforce all court decisions, including those that, in their eyes, or those of the People, violate fundamental American principles.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.[12] [emphasis added]
Hamilton continues. . .
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.[12] [emphasis added]
Marbury v. Madison involved a highly partisan set of circumstances. Though Congressional elections were held in November 1800, the newly elected officers did not take power until March. The Federalist Party had lost the elections. In the words of President Thomas Jefferson, the Federalists "retired into the judiciary as a stronghold". In the four months following the elections, the outgoing Congress created several new judgeships, which were filled by President John Adams. In the last-minute rush, however, Federalist Secretary of State John Marshall had neglected to deliver 17 of the commissions to their respective appointees. When James Madison took office as Secretary of State, several commissions remained undelivered. Bringing their claims under the Judiciary Act of 1789, the appointees, including William Marbury, petitioned the Supreme Court for the issue of a writ of mandamus, which in English law had been used to force public officials to fulfill their ministerial duties. Here, Madison would be required to deliver the commissions.
Secretary of State James Madison, who won Marbury v. Madison, but lost Judicial review.
Marbury posed a difficult problem for the court, which was then led by Chief Justice John Marshall, the same person who had neglected to deliver the commissions when he was the Secretary of State. If Marshall's court commanded James Madison to deliver the commissions, Madison might ignore the order, thereby indicating the weakness of the court. Similarly, if the court denied William Marbury's request, the court would be seen as weak. Marshall held that appointee Marbury was indeed entitled to his commission. However, Justice Marshall contended that the Judiciary Act of 1789 was unconstitutional, since it purported to grant original jurisdiction to the Supreme Court in cases not involving the States or ambassadors[citation needed]. The ruling thereby established that the federal courts could exercise judicial review over the actions of Congress or the executive branch.
However, Alexander Hamilton, in Federalist No. 78, expressed the view that the Courts hold only the power of words, and not the power of compulsion upon those other two branches of government, upon which the Supreme Court is itself dependent. Then in 1820, Thomas Jefferson expressed his deep reservations about the doctrine of judicial review:
You seem ... to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.[13]
Clause 3: Federal trials[edit]
A nineteenth-century painting of a jury.
Clause 3 of Section 2 provides that Federal crimes, except impeachment cases, must be tried before a jury, unless the defendant waives his right. Also, the trial must be held in the state where the crime was committed. If the crime was not committed in any particular state, then the trial is held in such a place as set forth by the Congress. The United States Senate has the sole power to try impeachment cases.[14]
Two of the Constitutional Amendments that comprise the Bill of Rights contain related provisions. The Sixth Amendment enumerates the rights of individuals when facing criminal prosecution and the Seventh Amendment establishes an individual's right to a jury trial in certain civil cases. It also inhibits courts from overturning a jury's findings of fact. The Supreme Court has extended the protections of these amendments to individuals facing trial in state courts through the Due Process Clause of the Fourteenth Amendment.
Section 3: Treason[edit]
Main article: Treason laws in the United States
Iva Toguri, known as Tokyo Rose, and Tomoya Kawakita were two Japanese Americans who were tried for treason after World War II.
Section 3 defines treason and its punishment.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The Constitution defines treason as specific acts, namely "levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort." A contrast is therefore maintained with the English law, whereby crimes including conspiring to kill the King or "violating" the Queen, were punishable as treason. In Ex Parte Bollman, 8 U.S. 75 (1807), the Supreme Court ruled that "there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[15]
Under English law effective during the ratification of the U.S. Constitution, including the Treason Act 1351, there were essentially five species of treason.[citation needed] Of the five, the Constitution adopted only two: levying war and adhering to enemies. Omitted were species of treason involving encompassing (or imagining) the death of the king, certain types of counterfeiting, and finally fornication with women in the royal family of the sort which could call into question the parentage of royal successors. James Wilson wrote the original draft of this section, and he was involved as a defense attorney for some accused of treason against the Patriot cause.
Section 3 also requires the testimony of two different witnesses on the same overt act, or a confession by the accused in open court, to convict for treason. This rule was derived from an older English statute, the Treason Act 1695.[16]
In Cramer v. United States, 325 U.S. 1 (1945), the Supreme Court ruled that "[e]very act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses."[17] In Haupt v. United States, 330 U.S. 631 (1947), however, the Supreme Court found that two witnesses are not required to prove intent, nor are two witnesses required to prove that an overt act is treasonable. The two witnesses, according to the decision, are required to prove only that the overt act occurred (eyewitnesses and federal agents investigating the crime, for example).
Punishment for treason may not "work Corruption of Blood, or Forfeiture except during the Life of the Person" so convicted. The descendants of someone convicted for treason could not, as they were under English law, be considered "tainted" by the treason of their ancestor. Furthermore, Congress may confiscate the property of traitors, but that property must be inheritable at the death of the person convicted.
In Federalist No. 43 James Madison wrote regarding the Treason Clause:
As treason may be committed against the United States, the authority of the United States ought to be enabled to punish it. But as new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.
Based on the above quotation, it was noted by the lawyer William J. Olson in an amicus curiae in the case Hedges v. Obama that the Treason Clause was one of the enumerated powers of the federal government.[18] He also stated that by defining treason in the U.S. Constitution and placing it in Article III "the founders intended the power to be checked by the judiciary, ruling out trials by military commissions. As James Madison noted, the Treason Clause also was designed to limit the power of the federal government to punish its citizens for “adhering to [the] enemies [of the United States by], giving them aid and comfort.”"[18]
See also[edit]
United States constitutional criminal procedure
References[edit]
Jump up ^ 28 U.S.C. § 1
Jump up ^ Epstein, Lee; Walker, Thomas G. (2007). Constitutional Law for a Changing America: Institutional Powers and Constraints (6th ed.). Washington, D.C.: CQ Press. ISBN 978-1-933116-81-5., at 451.
Jump up ^ "Judges of the United States Courts – Delahay, Mark W". Federal Judicial Center. n.d. Retrieved 2009-07-02.
Jump up ^ staff (n.d.). "Judges of the United States Courts – English, George Washington". Federal Judicial Center. Retrieved 2009-07-02.
Jump up ^ "Judges of the United States Courts – Kent, Samuel B". Federal Judicial Center. n.d. Retrieved 2009-07-02.
Jump up ^ "Annotation 1 – Eleventh Amendment – State Immunity". FindLaw. Retrieved May 4, 2013.
Jump up ^ United States v. Texas, 143 U.S. 621 (1892). A factor in United States v. Texas was that there had been an "act of congress requiring the institution of this suit". With a few narrow exceptions, courts have held that Congress controls access to the courts by the United States and its agencies and officials. See, e.g., Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122 ("Agencies do not automatically have standing to sue for actions that frustrate the purposes of their statutes"). Also see United States v. Mattson, 600 F. 2d 1295 (9th Cir. 1979).
Jump up ^ Cohens v. Virginia, 19 U.S. 264 (1821): "[T]he original jurisdiction of the Supreme court, in cases where a state is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised, in consequence of the character of the party."
Jump up ^ Cover, Robert. Narrative, Violence and the Law (U. Mich. 1995): "Every denial of jurisdiction on the part of a court is an assertion of the power to determine jurisdiction...."
Jump up ^ Di Trolio, Stefania. "Undermining and Unintwining: The Right to a Jury Trial and Rule 12(b)(1) Archived July 5, 2011, at the Wayback Machine.", Seton Hall Law Review, Volume 33, page 1247, text accompanying note 82 (2003).
Jump up ^ "The Establishment of Judicial Review". Findlaw.
^ Jump up to: a b c "The Federalist Papers : No. 78". Archived from the original on 29 October 2006. Retrieved 2006-10-28.
Jump up ^ Jefferson, Thomas. The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820).
Jump up ^ U.S. Constitution, Art. I, sec. 3
Jump up ^ Bollman, at 126
Jump up ^ This rule was abolished in the United Kingdom in 1945.
Jump up ^ Cramer, at 34
^ Jump up to: a b Olson, William J. (16 April 2012). "Case 1:12-cv-00331-KBF Document 29-2 Filed 04/16/12 AMICUS CURIAE BRIEF OF VIRGINIA STATE DELEGATE BOB MARSHALL, VIRGINIA STATE SENATOR DICK BLACK, DOWNSIZE DC FOUNDATION, DOWNSIZEDC.ORG, INC., U.S. JUSTICE FOUNDATION, INSTITUTE ON THE CONSTITUTION, GUN OWNERS FOUNDATION, GUN OWNERS OF AMERICA, INC., THE LINCOLN INSTITUTE FOR RESEARCH AND EDUCATION, THE WESTERN CENTER FOR JOURNALISM, CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND, U.S. BORDER CONTROL, RESTORING LIBERTY ACTION COMMITTEE, TENTH AMENDMENT CENTER, CENTER FOR MEDIA AND DEMOCRACY, BILL OF RIGHTS DEFENSE COMMITTEE, PASTOR CHUCK BALDWIN, PROFESSOR JEROME AUMENTE, AND THE CONSTITUTION PARTY NATIONAL COMMITTEE IN SUPPORT OF PLAINTIFFS" (PDF). Friedman, Harfenist, Kraut & Perlstein, PPC. lawandfreedom.com. pp. 15–16.
Bibliography[edit]
Irons, Peter. (1999). A People's History of the Supreme Court. New York: Penguin.
This article incorporates material from Judicial Procedures Reform Bill of 1937.
External links[edit]
Kenneth R. Thomas and Larry M. Eig (Eds). (2014). The Constitution of the United States of America: Analysis and Interpretation., gpo.gov
CRS Annotated Constitution: Article 3, law.cornell.edu
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