Mr. Buck to Mr. Hay.

No. 398.]

Sir: For the information of the Department, and as a matter of some importance, I have the honor to inclose herewith a copy of resolutions adopted at a meeting of foreign residents in Yokohama concerning the registration of titles of perpetual leases in the former foreign settlements there, together with a copy of a communication from Mr. John Lindsley, an American resident, transmitting the resolutions to Consul-General John F. Gowey; also the dispatch (copy) of the consul-general in forwarding them, and also a copy of my instruction to the consul-general in respect to the resolutions and the request made by Mr. Lindsley.

[Page 321]

Considering the information I had received as to the attitude of our people in Yokohama concerning the registration of titles of perpetual leases, upon the promulgation of the imperial ordinance No. 458 of the 27th of December last, which, at the time, was published and discussed in the newspapers, and the fact that no complaint had reached me, and no inquiry had been made in respect to the effect of the ordinance, I had assumed that the ordinance was regarded by them as measurably satisfactory, and was surprised that the American residents there should join with foreigners of other nationalities in passing the resolutions and that my efforts with the Imperial Government should be solicited in their behalf, without first hearing what, if anything, had already been done by me in the direction of their suggestions.

While the imperial ordinance No. 458 of December 27 last (copy inclosed with my despatch of the 29th of December, No. 392), in providing for the registration of titles of perpetual leases as “superficies” (perpetual leases), was not entirely satisfactory, yet, as stated in my dispatch No. 392, I regarded it as indirectly in accord with treaty provision.

I understand that the resolutions do not express the views of all American residents holding titles of perpetual leases in Yokohama, though they probably do of a majority of them, as the meeting passing the resolutions, I am informed, was fairly representative.

I have, etc.,

A. E. Buck.
[Inclosure 1.]

copy of resolutions passed at a meeting of land renters of the former yokohama foreign settlement, held on january 19, 1900.

It is resolved by this meeting of land renters of the former foreign settlement of Yokohama that the following facts be brought to the notice of the Imperial Japanese Government:

That although the revised treaties provide that the existing Government leases in perpetuity of foreign-settlement property shall be confirmed, steps have not yet been taken by the Government to confirm them, and the laws of Japan appear to contemplate their compulsory conversion into a new and different kind of right, which is called “superficies.”
That under existing laws the right of perpetual lease is not recognized, and since the coming into operation of the revised treaties the holders of such leases have been unable to sell or mortgage their land except on the terms of allowing the leasehold interest to be registered as a “superficies,” which they have been and are unwilling to do.
That the nonrecognition of what foreigners conceive to be a right plainly secured to them by their title deeds and by treaty has resulted in a general feeling of insecurity, and in stopping all sales and mortgages of former foreign-settlement property and is threatening such property with a very serious depreciation in value.
That in order to remedy the evils of the situation and to restore confidence it is most desirable that the Imperial Japanese Government shall at once confirm the aforesaid leases in perpetuity and make all necessary provisions for their recognition by law, and for the registration of them under a separate designation.
That properties held by foreigners in the former foreign settlements have been made subject to new conditions and taxes and charges from which in the opinion of this meeting the revised treaties were intended to exempt them.

And it is further resolved that copies of the foregoing resolutions be forwarded to His Imperial Majesty’s minister for foreign affairs through the usual channels.

[Page 322]
[Inclosure 2.]

Mr. Lindsley to Mr. Gowey, United States Consul-General.

Sir: Acting on behalf and by authority of a representative body of citizens of the United States of America, all of whom are holders of perpetual leases of property in the former foreign settlements, granted and confirmed by the Imperial Japanese Government in accordance with treaty stipulations, I have the honor to inclose a copy of certain resolutions passed unanimously at a duly convened and largely attended meeting of foreign landowners held in Yokohama on the 19th instant, in which the said citizens took part, and to request that the same be forwarded to his excellency the minister of the United States, in Tokyo.

It is hoped by American landowners that his excellency the minister of the United States will support the views expressed in the resolutions, and that he will use his good offices in assisting them to obtain the relief so necessary and so earnestly desired.

I have, etc.,

John Lindsley.
[Inclosure 3.]

Mr. Gowey to Mr. Buck.

No. 1685.]

Sir: I have the honor to inclose herewith a copy of a letter of this date addressed to me by Mr. John Lindsley, an American merchant of Yokohama, accompanying a copy of a resolution passed at a meeting of certain foreigners at Yokohama relative to land titles.

I have, etc.,

J. F. Gowey.
[Inclosure 4.]

Mr. Buck to Mr. Gowey.

Sir: I have to acknowledge the receipt of your dispatch No. 1685, of the 24th instant, inclosing a copy of a communication to you from Mr. John Lindsley with a copy of resolutions passed at a meeting of holders of perpetual leases of property in the former foreign settlement in Yokohama in respect to their titles. The resolutions set forth the leaseholders’ complaint that the Imperial Government has not yet confirmed their titles as provided by treaty, but have imposed new conditions in contravention of treaty stipulations and declare the necessity, for the protection of the leaseholders, that the Imperial Government should at once confirm titles and register them accordingly as perpetual leases; and in Mr. Lindsley’s communication the hope is expressed that I support the views given in the resolution and use my good offices to obtain the relief so necessary and so earnestly desired.

The American holders of perpetual leases in Yokohama in joining in passing the resolutions were not aware, it would seem, of what action I had taken to secure them protection of their property rights guaranteed by treaty, since, until the receipt of the resolutions and letter accompanying your dispatch, I have had no inquiry from any of them for information as to what I had done or proposed to do for their protection or request to take any action whatever in that respect.

That our fellow-citizens in Yokohama may know of what attention I have been giving to this important matter I proceed to give a resume of what has been done and the real situation in respect to registration of land titles as I understand it.

In September last, learning that a British subject holding a perpetual lease in Yokohama in the foreign settlement had been denied its recognition as such and was required to have it registered, if at all, as a superficies, anticipating that the same course would be taken in respect to registration of titles of American citizens, I addressed a note to the minister of foreign affairs, calling attention to the treaty stipulations prohibiting the imposition of any condition whatever in addition to those [Page 323]set out in the leases themselves, in which note I claimed that the registration of such perpetual leases at the Saibansho, by which, if I was rightly informed, such leases were to be registered as perpetual superficies, would, in my opinion, change the conditions of the original contracts of lease, inasmuch as a superficies, as I understood, restricted the holders of such lease to uses of the land in certain respect and—in some contingencies, though declared perpetual—would restrict the duration also and consequently impair the value of the property.

Before addressing the official note to the minister of foreign affairs I had in person earnestly expressed my views as to the registration of perpetual leases as superficies, and since have had several interviews with the minister, expressing my opinion of such a requirement as violative of treaty provisions. In all our interviews the minister has expressed himself as fully conceding that perpetual leases and their transfers must be registered without change of their conditions.

On the promulgation of imperial ordinance No. 458, concerning the registration of perpetual leases in question, he assured me then, as he has since, that, by that ordinance requiring such leases to be registered as superficies (perpetual leases), the Imperial Government made no change in the character of the titles whatever; that the courts must recognize the ordinance as providing for the registration of perpetual leases without change of conditions of such leases by the registration therein provided for; and that he would give me in an official note an explanation of the purpose and real effect of the ordinance as intended and understood by his Government, which note would be a duplicate of that already sent to the British minister. Awaiting the receipt of the minister’s note, which I now have, has caused some delay in acknowledging the receipt of your dispatch and in responding to the accompanying resolutions and the request of Mr. Lindsley.

To be accurate in giving the views of the Japanese Government in this matter, I quote from a translation of the minister’s note as follows:

“The Imperial Government is of the opinion that, though the rights of perpetual leases are registered as superficies according to the above-mentioned imperial ordinance (No. 329), such action is not in violation of the treaty; because it is provided in article 45 of the law for the operation of the civil code that, ‘As to a superficies created for an alien or a foreign legal person the provisions of the civil code apply only so far as it is not otherwise provided by treaty or regulation;’ therefore the right of perpetual lease, i. e., the right of superficies created for foreigners, is considered a kind of special superficies, and it is clear that it is not the right of superficies according to the civil code.

“Again, the interpretation given by the Imperial Government is, that even after the right of perpetual lease has been registered in accordance with the above imperial ordinance, the said title-deed has the same validity as before. However, that imperial ordinance was amended by imperial ordinance No. 458, of December 27, of last year, as appeared in the Official Gazette (copy of which is herewith inclosed), in which the words ‘perpetual lease’ were specially inserted in brackets after the word ‘superficies,’ by which it is made still more clear that the so-called right of ‘superficies’ is the right of ‘perpetual lease.’ It is provided therein also that the transfer of a perpetual lease can not be set up against a third party unless the fact of such transfer is indorsed upon the title deed, and that indorsements of transfer hitherto entered upon the title deed shall have the same effect as an indorsement made in accordance with the above ordinance. The validity of the title deeds having thus been confirmed, there is, in my opinion, no room left for such doubts as are expressed above.”

While the fact that the ordinance does not simply state that these titles are to be registered as perpetual leases by omitting the term superfices altogether may be disappointing, yet the fear expressed in the resolutions that the question may be raised in the courts as to whether such registration may not in effect impair the titles of perpetual leases seems to be met by the assurances and interpretation given by the Imperial Government, and should such question by any possibility be so raised treaty stipulations will control. No ordinance in respect to registration of titles can successfully impair rights specifically guaranteed by treaty; and in registering titles, as prescribed by the ordinance of December 27 last (No. 458), American citizens do not lose thereby any treaty right in respect to property so registered, the titles to which were originally guaranteed by the Imperial Government.

On communicating to American holders of perpetual leases in Yokohama what has been done the last four months concerning the registration of their land titles, I am confident that they will appreciate the fact that I have not been unmindful of their interests or have failed to make proper representations to the Imperial Government in their behalf in respect of their property rights as guaranteed by treaty.

Having already, before the receipt of the resolutions accompanying your dispatch, [Page 324]in conversation with the minister of foreign affairs, informally made reference to them as published in the newspapers, I do not see how I can do more at this time, or hereafter, than I have already done, unless some additional reason should appear requiring further representations to the Imperial Government, or unless so instructed by our Government, which has full information in respect to this matter.

I am, etc.,

A. E. Buck.