LEGAL JAPAN
OUTLINE OF TOPICS: Justice in Old Japan; new codes; list of same;
crimes and punishments; convicts; police; arrest; trials; courts;
judiciary; prisons; legalized prostitution; crusade against social
evil; rescue homes, etc.—Registration.—Taxation.—Foreigners
under Japanese law; restrictions upon them.—Leasing
land.—Mines.—Railways.—Banking, insurance, etc.; kinds of
corporations; foreign associations; Japanese corporations.—Foreigners
in business.—Bibliography.
The difference between Old Japan and New Japan is quite clearly
evident when one comes to the study of law and jurisprudence. It would
be very misleading to affirm that the administration of justice was a
farce; and yet so-called legal decisions were too often arbitrary and
tyrannical. The feudal lords were too much inclined to visit summary
and cruel punishment on slight pretext; and altogether too few were
the men like Oöka, the justice and wisdom of whose decisions won for
him the title of “Japanese Solomon.” As a matter of fact, there was
in Old Japan, as Wigmore has abundantly shown,[115] “a legal system,
a body of clear and consistent rules, a collection of statutes and of
binding precedents.” The chief characteristics of Japanese justice
under the old _régime_, as indicated by Wigmore, were the following:
(1) Making justice “personal, not impersonal,” by balancing “the
benefits and disadvantages of a given course, not for all time in a
fixed rule, but anew in each instance,” and thus “to sacrifice legal
principle to present expediency”; (2) the feudal spirit, especially in
criminal law, as illustrated by the use of torture, humiliating forms
of procedure, and awfully severe punishments; and (3) the attainment
of justice, “not so much by the aid of the law as by mutual consent,”
by means of definite customs, applied, however, “through arbitration
and concession,” so that there was “a universal resort to arbitration
and compromise as a primary means of settling disputes,” and only a
_dernier ressort_ to the process of law. These characteristics should
be noticed, not merely on account of their historical value, but in
explanation of certain traits still prominent even in New Japan.
But Modern Japan is pretty well equipped with a system of new codes,
based on European models, yet showing some modifications to suit
Japan’s peculiar needs. This codification along Western lines was
strongly opposed by the conservatives, who insisted that national
codes, “interpreting national needs,” should be naturally developed in
due course of time. But this opposition was overcome by the demands
for treaty revision and the recognition of Japan in the comity of
nations; for Occidental powers would not remove their extra-territorial
jurisdiction and leave their nationals to the mercy of Japanese courts,
unless the laws were codified according to Western models.
A list of the new codes is taken, with slight modifications, from
Chamberlain’s “Things Japanese,” which has been especially helpful in
the preparation of this chapter.
The new codes resulting from the legislative activity of the present
reign are: (1) the Criminal Code and the Code of Criminal Procedure,
drafted by Monsieur Boissonade, on the basis of the Code Napoleon, with
modifications suggested by the old Japanese Criminal Law; these were
published in 1880, and came into force in 1882; the Code of Criminal
Procedure was, however, revised in 1890, in order that it might be
uniform with the Code of Civil Procedure, according to the provisions
of (2) the Law of the Organization of the Judicial Courts, promulgated
in the month of February, 1890, and put into force on November 1 of
the same year; (3) the Code of Civil Procedure, which went into effect
at once; (4) the Civil Code, and (5) the Commercial Code, which were
put into force in 1898; and (6) divers statutes on miscellaneous
subjects.[116]
There are, according to the Japanese Criminal Code, three kinds of
crimes, of two degrees, major and minor. The three kinds are: (1)
against the State or the Imperial Family, and in violation of the
public credit, policy, peace, health, etc.; (2) against person and
property; and (3) police offences. Major crimes are punishable by (1)
death by hanging; (2) deportation with or without hard labor, for life
or for a term of years; and (3) imprisonment on similar terms. Minor
crimes are punishable by fines and confinement with or without hard
labor. What are called police offences are punishable by small fines
running from 5 _sen_ to 2 _yen_, and by detention for from 1 to 10 days
without hard labor. In cases of capital punishment no public visitors,
only the necessary officials, are allowed to be present. Deportation is
usually made to the northern island of Yezo, to work generally in the
mines.
Convicts are easily recognizable by their “crushed strawberry”
uniforms, and are often seen in public; for convict labor, in the case
both of individuals and of gangs, is utilized by the authorities. In
fact, all prisoners, according to their abilities, are required to
labor nine hours each day in some kind of employment, either inside or
outside of the prison.
The Japanese policeman is one of the most interesting “characters”
of his nation. He is the successor of the _samurai_, who, in the old
_régime_, took upon themselves the duty of enforcing justice. He
possesses all the pomp and dignity of his knightly predecessor; and he,
too, carries a sword. All the people, from children up to grandfather,
stand in complete awe of him. And well may they be afraid; for in his
dealings, at least with the common people, he manifests no gentleness,
but by his dictatorial manners compels the utmost respect for himself
and the law. He seldom has to use force in making an arrest, unless in
the cases of the professional criminals; and he does not usually find
it necessary to use handcuffs, as a strong cord will serve his purpose
on ordinary occasions. He is more easily to be found, when wanted,
than the proverbial American policeman. He is poorly paid, but richly
faithful, and in every sense of the words upholds the dignity of the
law. His figure clad in white or blue uniform, respectively, for five
and seven months of the year, is familiar and welcome to foreigners,
because to them he is invariably kind and courteous.
When a person suspected of some crime or misdemeanor has been
arrested by the police, he is taken to the nearest detention station
and put through a preliminary investigation before the judge of the
local court. As this may be delayed, and bail allowed or not at
the discretion of the judge, accused persons are sometimes kept in
detention for a considerable period. No counsel is allowed at this
secret preliminary examination before a kind of justice of peace. The
latter, from the evidence, either dismisses the prisoner, or imposes a
suitable punishment, or remands him for trial before the proper court.
A trial in Japan, as in France, is of the “inquisitorial” type, and is
conducted by the judge (or judges) alone. “All questions by counsel
must be put through him. Counsel do not so much defend their clients
as represent them.” Witnesses are sworn, so to speak, by “a solemn
asseveration,” without “any religious sanction”; and this takes the
form of a written document “duly signed and sealed.” The government
is represented by the public procurator, who seems to combine in one
person the duties of inspector, grand jury, and prosecuting attorney.
Hearsay evidence is admitted; and circumstantial evidence has no small
influence.
Japanese courts are organized according to the French system, with
some modifications along German lines. They are four in kind, from the
Local Court, through the District or Provincial Court, and the Court
of Appeal, up to the Supreme Court. The local courts have jurisdiction
over police offences and some minor crimes; the district courts
conduct preliminary investigations and have jurisdiction over crimes;
the courts of appeal hear new trials; while the supreme court hears
criminal appeals on matters of law. Japanese courts are very solemn
places, with strict regulations as to costume, ceremony, and conduct.
The Japanese judiciary is, by this time, pretty much weeded out of
the old judges with antiquated notions, and consists very largely of
comparatively young men, educated in the modern systems. A graduate of
the Law College of the Imperial University may attain a seat on the
bench after three years as a probationary judge, and one examination;
other persons must pass two severe examinations. The salary of an
ordinary judge is small; and just after the Imperial Diet in 1901 had
failed to pass a bill for increase of their salaries, a large number
went on a strike! Judges are appointed for life on good behavior.
[Illustration: COURT BUILDINGS, TŌKYŌ, AND THE MINT, ŌSAKA]
The management of the Japanese prison system will bear favorable
comparison with that of any Western country; for it has undergone
considerable improvement of recent years, and is quite up to date. It
is rather amusing to recall the fact that, before the new treaties
came into effect, by which foreigners were to fall under Japanese
jurisdiction, considerable anxiety was manifested lest American
criminals, for instance, should suffer inconvenience in Japanese jails!
And it was a singular coincidence that the first crime committed
after the midnight when those treaties went into effect was by an
American, who committed a triple murder in Yokohama. But the trial and
treatment of Miller showed to the world that Japanese law and prisons
were entirely unworthy of the captious criticism that had been passed
upon them. With commodious buildings, extensive grounds, ventilated
rooms, gardens and shops for laborers, hospitals for the sick, bath
privileges, wholesome food, reading matter under certain limitations,
rewards for good behavior, part pay for labor, the Japanese prison,
especially the largest ones at Tōkyō, Yokohama, and other important
cities, must be acknowledged to hold high rank among the reformatory
institutions of the world.
This is, perhaps, as appropriate a place as any to introduce one
of the peculiar legal institutions of Japan, that is, the public
brothel. As is well known, the social evil is licensed, and therefore
legalized, in Japan; it is not merely not condemned, but actually
condoned. In Old Japan the young girl willing to sell herself to a
life of shame to relieve the poverty and distress of her parents would
be considered virtuous, because filial piety was regarded as a higher
virtue than personal chastity. Nor would the parents who accepted
such relief be severely condemned, because the welfare of the family
was more important than the condition of the individual. And even
in Modern Japan, in the eyes of the law, it is no crime to visit a
licensed house of ill-fame; and visitors to such places hand in their
cards and have their names and addresses registered, just as if they
were attending an ordinary public function. Nay more, an ex-President
of the Imperial University, and one of the leading philosophers and
educators of the day, has come out in public print and affirmed that,
from the standpoint of science and philosophy, he can see no evil in
prostitution _per se_. And when such licensed brothels are allowed near
Buddhist temples and Shintō shrines, it would appear as if those cults
were really culpable not to protest. Indeed, when the patriotic youth
of New Japan, wishing to pay homage at the most famous shrines of Ise,
are compelled to reach the spot by passing along a road lined on both
sides with legalized brothels, it looks as if official encouragement
to impurity was offered, or at least temptation was presented, to the
rising generation.
But Christianity has always taught, in Japan as elsewhere, that
prostitution, whether licensed or unlicensed, is a sin, and has sought
by various means to check this terrible evil. Formerly no girl was
able to escape from her awful slavery, no matter how much she desired
to free herself, except by permission of the keeper! But within the
past few years a campaign has been waged that has greatly weakened
the tyranny of the abominable system. A test case, bitterly fought at
every point, was carried up through all the courts to the highest,
and finally won by those who contended that a girl could not be kept
in a brothel against her will. Another test case, carried up to the
Supreme Court, and decided in favor of the keepers, to the effect
that the financial obligations of the girls are valid in law, has
given the reform movement a temporary set-back. But, in spite of all
obstacles and opposition, the crusade against the social evil has
achieved a large measure of success. About 14,000 girls have been set
free; the number of applicants for admission, as well as of unlicensed
prostitutes, has diminished; the number of visitors has so largely
decreased, that some brothels have been compelled to go into bankruptcy
and close up the business; public opinion has been aroused, and the
moral tone of society has been elevated and purified.
We must not fail to call attention to the fact that the destructive
work of this crusade has been supplemented by the constructive work
of establishing “rescue homes” under the auspices of the Woman’s
Christian Temperance Union, the Salvation Army, and other Christian
organizations. There is also a very large and successful Home for
ex-Convicts, conducted in Tōkyō by Mr. Hara, a Christian minister,
often called the “Howard of Japan.” This title might also be given to
Mr. Tomeoka, another Christian minister, who has made a special study
of penology and prison management, and is conducting both a “reform
school” and a “school for prison officials.”
Inasmuch as Japan is under a paternal government, the system of
registration is carefully and thoroughly employed. It is practically
ubiquitous and universal; and it is carried to such an extreme as to be
vexatious to Anglo-Saxons, especially to Americans. But to a Japanese
the _seki_ (register) is all important; it is the certificate of his
(or her) very existence, age, status, occupation, home (permanent or
temporary), and almost of the character of the individual. In case
of change of residence, this biographical sketch must be transferred
from one locality to another; and even in case of travel, or presence
in a hotel for a single night only, the guest must give an account of
himself to the proprietor according to certain blanks supplied by the
police. A foreigner is concerned with the following information by Dr.
Masujima, the eminent lawyer and jurist of Tōkyō:—
“A foreign householder who intends to stay for more than nine days
at one place in Japan, must, within ten days of his arrival, report
to the police regarding himself and persons in his company, stating
full particulars, ages, profession or other occupation, the place
from which they last came, their home domicile, and the relationship
of those persons with him; as well as the full address of the house
in which he lives, countersigned by the landlord, any changes in such
information to be treated in like manner from time to time.”
The subject of taxation is one which may well be mentioned in this
chapter, although it is scarcely profitable to devote much space
thereto. In Old Japan taxes were paid in kind, chiefly with rice; but
in New Japan they are payable only with cash. The system of taxation
is rather complicated and oppressive; and yet the people stoically
endure their burdens without indulging in the pastime of agrarian
riots. The land-tax of 3-1/3 per cent of the assessed value of the
land in the case of rural lands and 5 per cent in the case of urban
lands is a very important source of revenue, and has always been the
cause of great trouble in political circles. Other taxes are the
business tax, the income tax, the house tax, etc. The last mentioned
is the one which foreigners claimed to be exempt from paying, but the
Japanese government claimed to have the authority to levy; the question
has been submitted to arbitration, and is still _sub judice_. Under
the new treaties Japan has the right to levy duties on imports, and
thereby secures considerable revenue. In the list of articles exempt
from duties we find books, maps, charts, bullion, coins, cotton, flax,
hemp, jute, rice, wool, plants, trees, shrubs, etc.; and in the list of
prohibited articles opium and adulterations are most prominent.[117]
Inasmuch as the status of foreigners under Japanese law is a subject
of growing practical importance, we make extracts from an address
delivered by Dr. Masujima before the New York State Bar Association in
January, 1903:—
“The cases in which foreigners are restricted in the enjoyment of
private rights, are the ownership of land or Japanese ships, the right
to work mines, to own shares in the Bank of Japan or the Yokohama
Specie Bank, to be members or brokers of exchanges, to engage in
emigration business, or to receive bounties for navigation or ship
building. Any company must, in order to own Japanese ships, have
its principal office in Japan, and all members in case of a _Gōmei
Kaisha_, all unlimited liability members in case of either a _Gōshi
Kaisha_ or _Kabushiki Gōshi Kaisha_, and all directors in case of
a limited company, must be Japanese subjects. Otherwise foreigners
are as free as the Japanese to own shares in any Japanese commercial
companies organized by themselves alone, or in combination with
the Japanese, or to engage in any manufacture or other commercial
operations.
“Foreigners may hold a long lease of land to plant trees or erect
permanent structures, which may be arranged for an indefinite term
almost perpetual, such as one thousand years, or as long as may be
agreed upon. Such a holding is called superficies, and it is very much
like a long English lease, the only difference being that trees or
buildings do not, at the end of the term, revert to the landlord, his
right being only that of pre-emption at current valuation. The most
advisable way for the enjoyment of the actual and permanent holding
of land is for a foreigner to buy land himself through a Japanese, as
bare trustee, and to secure its superficies for the period of as long
a term as may be desirable for his purposes.
“Although no foreigners may work mines individually, they may be taken
on mortgage, and a company registered as a Japanese organization is
entitled to engage in mining; the theory is that foreigners as members
merge themselves in the entity of a Japanese corporation, although it
may be composed of foreigners exclusively.
“No railway or tramway business is allowed to be carried on unless by
a limited company and a concession for such purpose has to be secured
from the proper authorities. No such railway can be pledged, but it
may be hypothecated. Japanese pledge corresponds to English mortgage,
differing therefrom in that immediate transfer of possession and
holding the pledged property absolutely is essential. Hypothecation
does not carry possession nor the right of entry. This condition of
Japanese railway law has not satisfied capitalists as not affording
sufficient security to induce investment by them. There has been some
attempt to have this law altered, but it has not yet been accomplished.
“Banking, insurance, shipping, and all other kinds of commercial
business may be carried on in Japan by foreign companies by observing
the treaties and certain regulations, such as the registration
of their branch offices, their representatives or other matters
prescribed by law.
“There are two kinds of civil corporations, the one consisting of
persons associated together, and the other an estate of aggregate
property somewhat like a trust in English law, formed or established
for the purpose of religious worship, teaching, art, charity,
education, or any other object of public benefit, not aiming at the
making of a profit. Such a corporation can come in existence only with
the permission of the competent authorities, while Japanese commercial
corporations may be formed without it.
“No foreign association of persons or trust property is accorded
the same rights and privileges as are enjoyed by similar Japanese
corporations; such a foreign corporation has no standing whatsoever
in the Japanese courts, and the only way in which it could obtain
protection would be to appear in the individual names of its members,
just as used once to be the case in partnership actions. Purely
technical evidence must be procured and filed before any legal
proceeding can be initiated, and the best interests of the corporation
might easily be jeopardized. Some foreign religious societies have
sought to get themselves incorporated as Japanese corporations, but
failed. Japan has no State religion, and she is absolutely impartial
in religious matters. Any religious body so applying must be and show
itself to be a purely Japanese institution, free from all control of
any sort from its corresponding religious bodies in foreign countries.
Any legal connection whatever between the home body and Japanese
organization is a bar to such purpose.[118]
[Illustration: STATESMEN OF NEW JAPAN
ŌKUBO, SAIGŌ, KIDO, AND PRINCE IWAKURA]
“A Japanese corporation has almost as large privileges as a Japanese
subject. It can own land and exercise other rights not accorded to
individual foreigners. A corporation so organized may contain in its
ranks foreign members, but it must be of such a nature as not to be
under any danger of control of any kind from outside. Even after
incorporation, the charter will be forfeited should the policy of the
Japanese Government be at any time prejudiced by the conduct of a
corporation so sanctioned.
“If foreigners wish to do business in combination with the Japanese,
the best way would be to form a _Gōshi Kaisha_ or limited partnership,
they themselves carrying unlimited liability. To control a _Kabushiki
Kaisha_, or limited company, they should own more than half the
amount of capital, either by holding themselves or through their
own nominees, and shares should be tied up so as not to allow their
transfer without the consent of the board of directors. The advantage
of any business being organized as a Japanese corporation consists,
as the law now stands, in owning land and having the full rights of
Japanese subjects.”
It should be added here that many prominent Japanese continue to
urge that foreigners be allowed to own land, possibly under certain
restrictions; and that such a privilege is quite likely to be granted
before very long.
BIBLIOGRAPHY.
Suitable works of reference on this chapter are scarce. “The Yankees
of the East” (Curtis), chap, viii., and “The Real Japan” (Norman),
chaps. iii. and xi., furnish some material. Dr. Masujima’s papers
in the Transactions Asiatic Society of Japan on “The Japanese Legal
Seal” (vol. xvii.) and “Modern Japanese Legal Institutions” (vol.
xviii.) are quite instructive; and so is Longford’s “Summary of
the Japanese Penal Codes” in vol. v. Some specific references have
already been made in footnotes.
“Every Day Japan” (Lloyd) contains interesting material on these
topics. Hozumi’s “Lectures on the New Japanese Civil Code” and
“Ancestor Worship and Japanese Law” are very valuable.