In Korea with Marquis Ito

by George Trumbull Ladd

The extension of the educational system of Korea ought, therefore, for some time to come to be almost exclusively limited to these two lines—namely, to providing the barest elements of a modern education for all the children of Korea, and to the equipping and developing of the means for fitting the youths of both sexes for the most needed forms of public service. The time to spend large sums of money on the higher branches of a liberal culture has not come as yet for Korea. The present urgent need of the country is for men who will tend her fields and forests, develop her mines and manual arts and manufactures with intelligence; run her railroad trains with safety; who will occupy her magistracies with some knowledge of ethics and of law; and care for her sick and injured with skill in medicine and surgery. Colleges and universities for rearing scholars, authors, philosophers, or gentlemen of learned leisure with Government sinecures, can bide their time.

The deplorable condition of the Public Justice in Korea, from the beginnings of the history of the United Kingdom down to the present time, has been both assumed and illustrated in the preceding pages. It is difficult to give any adequate picture of this condition in few words. The restraints of a constitution or a recognized legal code have had no existence. Court and local magistrates have been alike, with rare exceptions, either inefficient or wholly corrupt. The administrative and judicial functions have not been distinguished, and both have been under the control of “influence,” and devoted to “squeezes” and bribes. Of this illegal and unjust condition the police and the army were, under the old system, the instruments. And whenever during these sad centuries of injustice an occasional monarch, or a few of the inferior officials, attempted reform, if in the one case the attempt was partially successful, the old condition soon returned; while the inferior official who wished to be more just than his colleagues, by this very attempt risked his position or even his head.

Among the reforms contemporaneous with the Chino-Japan war (1894), the remedy for the existing maladministration of justice in Korea naturally had a prominent place. Some of the forms of injustice then in common use—such as the bribing of judges and the punishment of accused persons without even the semblance of a trial—had no justification under Korean law, so far as law existed at that time. Other equally deplorable forms of injustice were, however, strictly legal;—as, for example, the infliction of penalties on the innocent relatives of a condemned criminal, and the imprisonment of the household of an official charged with extortion. In particular, the use of torture—barbarous in kind and extreme in cruelty—was in “full accord” with the legal system of the Ming dynasty in China, which formed the basis of the Korean code. Of the older forms of torture some, such as crushing the knee-caps, slitting the nostrils, applying pincers or hot irons, had already been in 1894 abolished by the Ming dynasty; but a great number of equally painful forms of torture were still legally in practice at that time. Among such were seating the victim on hot coals, driving splinters under the toe-nails, applying fire to the feet and hands, pounding the shins, and squeezing the ankles. On the eleventh of January, 1895, however, the Minister of Justice obtained the king’s assent to the abolition of all the more severe forms of torture except in capital cases. To enforce confession of guilt by beating with a stick was still to be allowed.[77]

The reforms promised and inaugurated in 1895, with respect to the improvement of the administration of justice, like all the other reforms of that time, scarcely went beyond the so-called “paper stage.” Some forms of torture were, indeed, no longer customarily practised; but on the whole the barbarous treatment of accused and convicted criminals was not greatly improved. In civil cases the practice of the Court and of the magistrates was never worse than during the period preceding the Russo-Japanese war. It was, as has already been shown ([p. 233 f.]), “an orgy of independence.”

In the opinion of Marquis Ito, when he became Resident-General, the primary and most important thing in the interests of the public justice was the discovery, systematizing, and promulgation of the “law of the land.” But how should this difficult task be accomplished? Or—as involving subordinate questions of great importance—upon what foundation of principles should the task be undertaken? In the reforms of 1894-95 the plans of the Korean and Japanese enthusiasts involved the sudden making of all things new. At once, a tolerably complete modern code was to be devised and forced upon the people of Korea. In accordance with these plans an abundance of legislation was enacted; but most of it was, of necessity, ineffective, since it was neither adapted to the present condition of Korean civilization nor ever honestly applied. At the present time in Japan and in view of the large increase of power given to the Resident-General by the Convention of 1907, there is a difference of opinion as to the proper procedure in the reform of the public justice in Korea. A certain party would repeat the mistakes of more than a decade ago. They would have the Japanese Protectorate secure the “entire adoption of the new Japanese Criminal Code, and in civil suits provide Korea with ‘an entirely new set of laws’ patterned after those of modern civilized nations.” This would be a comparatively easy matter, so far as the preparation of a code is concerned. But it would undoubtedly be relatively defective so far as the actual reform of justice in Korea is concerned. “The Resident-General,” says Mr. Stevens, “is manifestly determined to avoid this mistake, and to provide, in the first place, some adequate means for the enforcement of the law.” Meantime, the work of codification is proceeding cautiously. The first step in this work was directed toward the “law affecting real estate.”

“This law”—namely, the law affecting real estate—“has been taken up before all others, because, despite the fact that in the present economic condition of the country immovables form the most important object of ownership, Korea as yet possesses no law of any real efficiency to protect rights relating to real property. For instance, in selling and buying a piece of land or in mortgaging it, the parties concerned have nothing to go by but to follow the old custom of handing over and receiving the bunki, or title deeds, which are generally in the form of a file of documents vouchsafing the transaction. It so happens that the country is now flooded with forged bunkis, and there is really no security for property. For this reason, in July last (1906) the Resident-General caused the Korean Government to institute a Real Property Law Investigation Commission, and urged the investigation of established customs and usages pertaining to immovables, with a view to drafting with the utmost despatch a law of real property of a simple and concise character. The Commission made rapid progress in its work, and in consequence of this the Land and Buildings Certification Regulations (Imperial Ordinance) and the Detailed Rules of operation thereof (Justice Department Ordinance) were promulgated respectively on the 31st of October and the 7th of November following. According to the Regulations, in the case of transfer of land lots and buildings by sale, exchange, or gift, and in that of mortgaging them, the contracts are certified to by a Kun magistrate or Pu prefect; and a contract thus certified constitutes a full legal document, by virtue of which the transfer may be validly carried out without decisions of any law court. When, however, one of the parties to the contract happens to be an alien, not a Korean subject, the document needs to be additionally examined and certified to by a Resident, otherwise the document is lacking in legal efficacy. When neither of the parties are Korean subjects, certification by a Resident alone is sufficient. Simple as the law is, its effect is far-reaching. To give an instance, originally treaties with Korea took cognizance of a foreigner’s right to possess land only within the settlements and one ri zone around them, and hitherto all foreigners have experienced considerable difficulty in securing landed property in the interior of the country; but now, the above Regulations recognize the right of foreigners to possess land in the interior, and the result of their promulgation is the practical opening of the whole empire to foreigners.

“Following this line of action, the Real Property Investigation Commission is steadily working on laws of various descriptions, and it is expected that before long that body will be able to recommend some plan to place the land system of Korea on a solid and fair basis. As soon as the Real Property Law is drawn up and promulgated in a perfected form, the codification of other laws will be taken in hand.”[78]

The necessity for providing means effectively to enforce the existing and the newly to be enacted laws is obvious to any one who is acquainted with the methods of Korean justice down to the present time. This necessity becomes the more imperative on account of the condition of dissatisfaction and unrest which followed the Russo-Japanese war and the establishment of the Japanese Protectorate over Korea. It was further emphasized and brought to an acute form at the time when the abdication of the Emperor and the disbandment of the Korean army, on the one hand, exaggerated the alleged reasons for revolt, and, on the other hand, let loose the forces most ready and appropriate to make revolt effective. The experience in connection with the repeated attempts made to assassinate the Korean Ministry showed plainly enough that Korean police and military could not be depended upon to protect the rights or the lives of their own countrymen. Subsequent events showed that these same “minions of the law” were most dangerous to the property and lives of foreigners. Hence the imperative need of a reorganization of the police. On this matter of reform, the Report of the Resident-General discourses as follows:

In olden times Korea had practically no police system. Under the central Government there was indeed the “Burglar Capture Office,” while the provincial Governors were privileged to exercise police powers for the maintenance of peace and order. But the evil practice of selling offices being prevalent, the officials made it their business to extort unjust exactions, and the people enjoyed no security of life and property. In the year 503 of the Korean national era (1894) the “Burglar Capture Office” was closed and replaced by a “Kyöng-mu-chyöng” (Police Office), the latter being entrusted with the work of administering and superintending the police and prison affairs within the city of Seoul. The capital was then divided into five wards with a police station in each. Further, the Korean Government engaged advisers from among police inspectors of our Metropolitan Police Board, and put in force various laws and ordinances, defining and regulating the duties of the police force, besides adopting fixed uniforms for men and officers, all in imitation of the Japanese system. At the same time the “Kyöng-mu-koan” was created in the provincial Governor’s Offices, for the exclusive management of local police affairs. Since then numerous changes have followed, and the Japanese police advisers have been dismissed. In 1895 the Kyöng-mu-chyöng was abolished, and a new Department of Police was established. Then the police administration of the whole country was centralized in the hands of the Minister of Police. This innovation was, however, but short lived, and the Kyöng-mu-chyöng came to be resuscitated, the whole police system being now placed in the control of the Minister of Home Affairs. At that time, in virtue of her treaty with Korea, Japan not only took her own means of protecting her subjects residing in that country, but despatched police officials who were required in carrying out her rights connected with her Consular Courts. Subsequent to the Japan-China war, the number of Japanese resident in Korea steadily increased, and as years went by a similar change took place with regard to the number of our police attached to the Consulates, so that the latter had finally to have a regular police station within each Consular compound. Thus it happened that by the time of the Russo-Japanese war, Korea had come to have two police systems in force in the land. When the war broke out Korea engaged Japanese advisers for her police administration, and everything connected therewith, large or small, underwent changes in accordance with their views. At that juncture there was necessity, for military reasons, of introducing into Korea Japanese military police or gendarmerie, so that the country has since come to have simultaneously within her bounds three police organizations—namely, the native police, the Japanese Consulate police, and the gendarmerie.

On the establishment of the Residency-General, after the termination of the war, all three systems were brought under the unified control of the Resident-General, in such a manner as to promote the national tranquillity of Korea, each supplementing the work of the other. Under the new arrangement all ordinary police work is placed in the hands either of the Japanese or of the Korean police, to suit the needs of the localities concerned; while the gendarmes are to look after the higher class of police affairs or those relating to acts that tend to endanger the safety of the Korean Imperial House, or to defy the authority of the Korean Government, or to disturb the friendly relations between Japan and Korea. At one time the gendarmerie was divided into twelve sub-companies, and fifty-five detail stations were established for them. Under the new régime 184 men have been honorably discharged, having been retained in the service beyond their regular term, or belonging to the reserve. At the same time the number of detail stations was reduced to thirty-two. The need of augmenting the strength of the Japanese and native police being increasingly felt, measures are being steadily taken in this direction within the limits which the circumstances allow.