Mr. Buck to Mr.
Hay.
United
States Legation,
Tokyo
,
February 5,
1900
.
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.,
[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:
- 1.
- 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.”
- 2.
- 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.
- 3.
- 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.
- 4.
- 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.
- 5.
- 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.
Yokohama
,
January 24,
1900
.
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.,
[Inclosure 3.]
Mr. Gowey to
Mr. Buck.
United States Consulate-General,
Yokohama, Japan
,
January 24, 1900
.
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.,
[Inclosure 4.]
Mr. Buck to Mr.
Gowey.
Legation of the United States,
Tokyo
,
January 31, 1900
.
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.,
