A Handbook of Modern Japan

by Ernest W. Clement

BIBLIOGRAPHY.

“The Real Japan” (Norman), chaps. v., xiii.; “Advance Japan” (Morris), chap. xiii.; “The New Far East” (Diosy), especially chap. vii.; “Heroic Japan” (Eastlake and Yamada); “The Awakening of the East” (Leroy-Beaulieu), chap. ix; and “Japan in Transition” (Ransome), chap. xv.; “Japan Today” (Scherer), chap. xi.; “The Real Triumph of Japan” (Seaman); “Every Day Japan” (Lloyd); “Dai Nippon” (Dyer), chaps. vi., xvi., and xvii.; and “The Imperial Japanese Navy” (Janes).

CHAPTER XII
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.

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]

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.