Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1911
File No. 895.00/517.
The American Ambassador to the Secretary of State.
Tokyo, October 14, 1910.
Sir: The answer of the minister for foreign affairs to my note (No. 491) to him of the 20th ultimo, was received on the 6th instant, and I beg to transmit a copy herewith. This reply is not sufficiently definite in its promises, especially as regards the seventh clause of my note. Without waiting for further instructions and considering that the desire of the Department is already understood, I [Page 323] have ventured as of this date to write a further note (No. 502) to the minister for foreign affairs, a copy of which will be found herewith. * * *
I have, etc.,
The Minister for Foreign Affairs to the American Ambassador.
Tokyo, October 6, 1910.
Mr. Ambassador: I have the honor to acknowledge receipt of your excellency’s confidential note of the 20th ultimo, requesting information on certain questions growing out of the annexation of Korea to the Empire of Japan. Fully appreciating the friendly and sympathetic motives which prompted those inquiries, I have much pleasure in furnishing you the desired information.
- 1.
- The modern judiciary system of Japan has been put into actual operation in Korea to the extent that in all cases in which foreigners are interested as plaintiffs, defendants, or accused, the organization of the competent courts and the qualifications of the sitting judges are essentially the same as in Japan proper. For the determination of such cases the civil, criminal, and commercial laws, in operation in Japan proper are, with the exception of the provisions relating to immovable property, applied practically without qualification or material modification. So far as immovable property is concerned the rules and usages hitherto in operation in Korea are for the time being maintained. As regards judicial procedure the practice obtaining in Japan proper is as a rule correspondingly extended to Korea, subject to some exceptions of minor importance necessitated by local requirements. The foregoing system and procedure are, it should be added, the same as those applied in Korea in cases in which Japanese are parties in interest.
- 2.
- In making in the declaration to which your excellency refers the reservation “so far as conditions permit,” the Imperial Government had no specific rights and immunities in mind. The reservation was made out of abundant caution to meet circumstances which could not be wholly foreseen. There are some rights and immunities enjoyed by foreigners in Japan proper which in the nature of things it is impossible for the present at least to extend to foreigners resident in Korea. The case of immovable property is an instance in point. It being impracticable at the present time to apply in Korea the Japanese laws relating to immovable property, the rights enjoyed by foreigners in Japan proper in the matter of registration of real rights can not be extended to foreigners resident in Korea. The reply given to your excellency’s first inquiry is an answer as well to the question in the last sentence under this head.
- 3.
- As to the condition of Korean prisons: In cities and towns in which are established local courts (Chiho-saibansho), 8 in number, and their branch offices (Chiho-saibansho-shibu), 12 in number, prisons are now generally provided with sanitary and other necessary accommodations. The condition of prisons in Korea has engaged the serious attention of the Imperial Government ever since they undertook the administration of justice and prisons in that country by virtue of the memorandum of July 12, 1909, and new buildings fitted with modern improvements have already, in some places, been completed, while similar improvements of all prisons throughout Korea are in contemplation. If prisons in which convicts are to be detained are not in a satisfactory condition, the convicts may be removed to other suitable prisons by order of the competent authorities. In case of accused persons awaiting trial, changes in the places of their detention may be affected by transferring jurisdiction in the cases from one court to another. For that purpose a special ordinance is shortly to be promulgated. It is therefore open to the competent authorities, according to requirements in individual cases, to remove convicted and accused persons from unsuitable prisons or places of detention to those which are suitably equipped and maintained.
- 4.
- With regard to the general foreign settlements in Korea, the Imperial Government have decided to maintain for the present the status quo in such settlements [Page 324] in all matters of local administration, excepting those relating to police, and a decree to that effect was promulgated on August 29 last. In matters respecting police the Imperial Government have been obliged in the interest of peace, public security, and good order to assume entire control and direction. It will no doubt be necessary hereafter to incorporate those settlements with the general municipal system in operation in Korea. Before that step is taken however the Imperial Government will consult the powers concerned regarding the final disposition of the common funds and property belonging to such settlements. The Imperial Government are fully prepared, conformably to the first clause of the declaration above mentioned, to respect the rights in real property duly acquired by foreigners and attested under the regulations of October 31, 1906, relating to attestations for land and buildings.
- 5.
- Concerning other general measures designed to insure adequate protection for foreign interests in Korea, nothing of a definite character is at present under consideration. I need hardly assure your excellency, however, that it will be the constant and sincere aim of the Imperial Government to afford to all legitimate interests, foreign as well as national, in all parts of the Empire, full protection and security.
- 6.
- The Imperial Government, recognizing the complete freedom of faith, have no intention to depart in Korea from their established policy of extending due protection and encouragement to all religious missions engaged in educational and other commendable enterprises not prejudicial to the Government and administration.
- 7.
- It will be observed from the foregoing explanation that so far at least as foreigners are concerned, the administration of justice in Korea is assured under laws and by courts in actual operation, substantially conforming to those which now exist in Japan proper. Having regard to this situation, and considering also that the system of consular jurisdiction is wholly unsuited to the new condition of things in Korea, and believing that the continuation of that system would in the actual circumstances be contrary to well-established practice, the Imperial Government are fully satisfied that the revival of consular jurisdiction in Korea is both unnecessary and inadvisable. As regards the courts for the trial of American citizens and other foreigners, it would be impracticable to limit jurisdiction in such cases, by general provisions of law, to a few special courts. It has, however, already been explained that in dealing with cases in. which foreigners are parties the organization of the courts and the qualifications of the judges are virtually equal to those of Japan proper, and that it is open to the competent authorities to remove convicted or accused persons from one prison or place of detention to another as the actual circumstances may require. It is consequently believed that no case will arise in which those persons will be subjected to undue hardship and privation. It may be added that in matters connected with the administration of justice in Korea American citizens naturally enjoy the benefits of the judicial guarantee contained in the existing treaty between our two countries.
In conclusion, I permit myself to indulge the hope that your excellency’s Government will find in this note a satisfactory and convincing explanation of the questions raised, assuring the due protection of the interests of American citizens of Korea.
I avail, etc.,
The American Ambassador to the Minister for Foreign Affairs.
Tokyo, October 14, 1910.
Excellency: I have the honor to acknowledge the receipt of your note of the 6th instant on the subject of the procedure, civil and criminal, in Korea. Your frank reply to my inquiries has been read with sincere interest, and I have no doubt will meet with due appreciation at the hands of my Government.
Passing by, however, the early contents of your note, I desire to bring your attention to the seventh and last clause. You point out that “it would be impracticable to limit jurisdiction in such cases, by general provisions of Jaw, to a few special courts.” It was not my purpose to suggest an interference with the general features of the Japanese code which is to be applied in Korea—certainly your excellency’s Government can make any regulation as regards natives [Page 325] and Japanese that may be considered best. It was my desire simply to provide suitable protection to American citizens who might have legal interests in Korean territory. Your assurance that the local authorities will have power to remove convicted or accused persons from place to place, as circumstances may require, is not sufficiently reassuring. It is a matter of common observation that an appeal in such cases to the prosecutor or even to the court is likely to be met by refusal, and my purpose was to have suitable provision under which persons having business in the courts, civil or criminal, would have the affirmative right to demand a transfer of the procedure, preferably to Seoul. There are many jurisdictions where provision is made for a transfer under such conditions as you point out, but there are many others where the defendant may demand the removal by merely asking for the order, and the demand is not one subject to judicial consideration or denial. It is this right which, in my judgment, should be granted. I need not suggest a method, because that will rea’dily occur to your excellency.
It is sufficient to add that the privilege is of so high and important a character as to justify a convention, if no more simple legal method can be arrived at. I beg that your excellency will appreciate the importance which I attach to this feature of the matter and find a way to meet the wishes of my Government.
I avail, etc.,