File No. 894.4054/19
The Japanese Ambassador to the Secretary of State
Washington, July 25, 1917.
Sir: I have the honor to acknowledge the receipt of your note of July 7, inclosing copy of a letter dated June 27 from the Honorabel the Secretary of Labor relative to the admission of so-called Japanese “picture brides” to the United States.[Page 864]
The matter under discussion, having been confined from the outset, to the question of what evidence should be presented by Japanese wives unaccompanied by their husbands when applying for admission to the United States, I deem it inexpedient and that it serves no immediate good purpose to enter into a detailed treatment of the merits or demerits of the Japanese institution of marriage. Accordingly, I beg leave to repeat substantially the suggestions made in my previous notes and to request you to be good enough to exert your good offices to the end that the question which is essentially one of form and not of principle, be brought to a speedy and satisfactory solution. It is needless to state that my Government has not the least intention to unduly influence the administrative procedure of your Government in favor of Japanese immigrants but the peculiar character of the Japanese marriage in which the ceremony has no legal bearing makes the Japanese Government feel that the request for a special consideration of the matter will not be deemed uncalled for.
Judging from the nature of the notification and the value of the Koseki-tôhon (certified copy of the record of a particular family) or Koseki-shôhon (certified copy of the record of a particular individual) as evidence (vide post §§2, 3), I wonder whether it would not be most logical and feasible to require the “picture brides” to take with them such tôhon or shôhon in order to prove that the necessary procedure of marriage between them and the men in the United States has transpired, and to treat them as wives in the execution of the Immigration Law. The ceremony of the marriage is not legalized in the Japanese law (vide post §1) and therefore literally speaking the tôhon or shôhon carried by the “picture brides” with them do not come within the scope of the “convincing proof of the performance of the marriage ceremony” as provided for in the Immigration Rules of May 1, 1917. However, understanding that what the rules require is the proof of marriage which has legally transpired, I venture to conclude that the tôhon or shôhon may be taken as such in accordance with the spirit of the rules.
The arrangement that the “picture brides” carry with them certified copies of the notification of the marriage together with the tôhon or shôhon is not probably unfeasible (vide the Department of Labor note, paragraph “t”), and I shall be glad again to recommend to the Japanese Government the establishment of the practice, if it is the opinion of your Government that such be desirable. However, I rather wonder whether it is exactly logical for us to take such a course. The trouble occurs with regard to a woman married more than ten years ago (vide the Department of Labor note paragraphs “n” and “o”). When she is coming with her husband the question is simpler and could be handled in the manner indicated by the Department of Labor. It would, however, be impossible for such a woman to be admitted to this country when she is coming by herself to a United States port to join her husband and when she is illiterate withal. It may be ruled that she be admitted on the strength of the tôhon or shôhon alone, but this would be logically inconsistent as against the ruling with regard to the “picture brides,” since in the eye of the Japanese law there could be drawn no distinction between the ordinarily married wives and the so-called “picture brides”.[Page 865]
In face of these circumstances, it is suggested that if, for evidence’s sake, the United States Government opines that some other document than the tôhon or shôhon is necessary, the institution proposed by the Japanese Government of issuing at the hands of the local family registrar a new form of certificate proving the legal validity of a marriage be favorably considered by the United States Government (vide the Embassy’s note dated June 4, 1917). This certificate cannot be one of the marriage itself since it is not made at the time of its constitution. However, it could be made in such a form as would be more complete than the tôhon or shôhon as a legal evidence, issuing only in favor of the married couple and one copy at a time.
Having made a careful perusal of the note of the Department of Labor inclosed in your note under acknowledgment, I have noticed a few apparently misrepresented phases of the question which would, I am afraid, have an important bearing upon the final decision as to the course of procedure in handling the “picture bride” cases at American ports. Accordingly, I have deemed it appropriate to take this opportunity to record for the information of your Government several points of fact a major part of which have, I believe, already been explained by my staff in the course of oral discussions.
1. Referring to paragraph (c) of the note of the Department of Labor, I desire to make it unmistakably clear that a “picture bride” is not, in the eye of the law,
an unmarried woman who comes to a United States port and claims upon arrival that she has been sent for by a man in the United States who is desirous of marrying her at the port of her admission.
A marriage contracted between a woman residing in Japan and a man residing in the United States is no less legal and binding than a marriage contracted between parties residing within the same jurisdiction.
It has already been pointed out that according to the Japanese law, “a marriage takes effect upon its notification to the registrar” (Civil Code, Art. 775). So long as the parties to a proposed marriage contract satisfy the requirements that they are of marriageable ages (C. C., Art. 765), that they are not going to commit bigamy (C. C., Art. 766), that the time during which a woman is restricted against remarriage has expired (C. C., Art. 767), that they have not been parties to an adultery (C. C., Art. 768), that their marriage is not incestuous (C. C., Arts. 769,770,771); and that the consent of the parents or the family council has been given when such is necessary (C. C., Arts. 772, 773), the only thing the prospective husband and wife have to do to complete the marriage, so far as the law is concerned, is to notify either by parol or in the written form the family registrar of the district where the would-be bridegroom’s permanent domicile (hon seki) is situate. Upon the acceptance of the notification and the entry of the fact in the family registry record by the registrar, the legal procedure of the marriage contract is completely gone through and the marriage becomes effective from that date.
It is to be noted in this connection that the marriage ceremony is not at all considered by the Japanese civil code. Marriage has in Japan as in any other country been regarded as one of the most important of human affairs and very naturally certain ceremonies for [Page 866] its solemnization have been evolved. The most general form of the nuptial ceremony consists in the formal drinking of saké alternately by the marrying couple from the same cups three-times-three-nine-times (san-san-ku-do) in the presence of the go-betweens (nakôdo) and a boy and a girl of ten or twelve who act as attendants, and more recently also of the wedding guests. Formerly in Japan, as was the case in England and America in ancient days, acknowledgment of the parties, proof of cohabitation as man and wife, or general reputation resulting from the conduct of the parties, was all that was needed for a marriage to be recognized and protected by the law. However, since the enforcement of the Civil Code on July 16, 1898, the legal recognition and protection of a marriage has come to hinge solely upon the notification to, and acceptance by, the family registrar of the marriage contract. No provisions whatever as to the marriage ceremony for the solemnization and authentication of marriage corresponding to those prescribed in the statutes of the Western nations are to be found in the Japanese law. This mode of legislation has come to be adopted evidently for the reason that the formalities of the ceremony as established and sanctioned by the Japanese custom have nothing to do with religious rites or priests, Shinto shrine or Buddhist temples. It is, however, required that the couple who act as the go-betweens be present at the function, but the go-betweens are generally elected from among the friends of the prospective bride or the bridegroom. It is quite likely that the legislators did not see the practicability of placing the duties and responsibilities of a justice, judge, city recorder, priest or minister of the gospel upon the shoulders of such go-betweens who by no means make it a part of their calling to participate in nuptial ceremonies. It seems to have been seen fit to relegate such ceremonies to the realm of social and actual facts as much as the nuptial dinner or the honeymoon trip. Whether it takes place or not, the marriage is complete in the eye of the Japanese law when the notification of a marriage is made and accepted and from that date on all necessary and incidental effects of marriage will come into operation; such as, the entry into the “house” into which one is married (C. C., Art. 788); the inception of the relations of affinity; the obligation of the husband and wife to live with each other (C. C., Art. 789); the mutual duty of support (C. C., Art. 790); the husband’s obligation to act as the guardian to the wife when the wife is a minor(C. C., Art. 791); the right of annulment of a contract between the couple (C. C., Art. 792). Further, the wife will need to have the permission of the husband to receive or use principal (as distinguished from interest); to contract loans, or to stand surety; to do acts having for their object the acquisition or loss of rights relative to immovables or to important movables; to institute suits at law, make gifts, amicable settlements or arbitration agreements, to accept or renounce a succession, to accept or refuse a gift or legacy, or to make a contract putting her under any corporal restraint. (C. C., Arts. 12, 14). A crime of adultery (Criminal Code, Art. 183) may also be constituted in regard to a woman in this legal status.
All such rights and duties as pertain to the civil status of a wife are invested and imposed upon the so-called “picture brides” the moment the notification of marriage is accepted, simply because there is legally [Page 867] speaking no difference whatever between the “picture brides” and other brides who are married to bridegrooms living within the same jurisdiction.
It is noted that the Department of Labor has concluded that the Japanese legislators did not have in mind, in the least degree, a marriage contracted between parties living under separate jurisdictions but that
the ends of convenience have resulted in the establishment of a custom, based in part upon the provision of the code but extending much farther than the code ever contemplated, under which the recognition of the so-called “picture marriages” has come about (paragraph (p) of the note of the Department of Labor.)
It seems that the Labor Department has based this conclusion on the assumption that the marriage ceremony is in some manner essential for a marriage to be recognized and protected by the Japanese law. That this impression is entirely erroneous has, I feel sure, been amply elucidated by the above explanation of the constitution of marriage in Japan. The views expressed by certain Japanese that the nuptial ceremonies whether it be the san-san-ku-do, or Christian rites, by the “picture brides” and their bridegrooms are not to be dispensed with (ibid, paragraph (1)), are no doubt warranted and will be sympathized in by every Japanese of sense. However, these ceremonies belong, as stated before, to the realm of social and actual facts as much as the honeymoon trips, the sending of the gifts or the announcements to friends of the matrimony, and, in the Japanese law, they are not attributed with any legal meaning whatever. Moreover, when the Japanese system of marriage is clearly borne in mind, it will be easy to understand that the loci contractus play a decidedly less important part in marriage than in Western countries. There has been generally and especially in the higher stratum of society, at least until very recently, no association of young men and women, much less the paying of the addresses, prior to marriages. Marriage negotiations are more often initiated by the parents or intimate relatives of the marriageable men and women. After a most careful and mutual investigation about the character, ability and other qualifications of the parties concerned, the matter will finally be decided by the young people themselves. And it is by no means seldom that the prospective bride and bridegroom do not actually meet each other before the marriage negotiations have practically attained a definite stage. Naturally they are in most cases strangers in a sense when the marriage contract is formed. I shall refrain from dwelling at length upon the merit or demerit of this system of marriage in the present note. However, it would not be amiss to add that Japanese youths profit by the mature judgment of their parents or other relatives and are free from the dangers of rushing uncounseled into unhappy marital bondage, and that the Japanese do perhaps not marry so much on impulse as after a most serious consideration for their future life.
In view of such circumstances, it will be noticed that the loci contractus are not looked upon as an important factor in a marriage contract in the Japanese law, and that Article 777 of the Civil Code only prescribes a convenient method of making the notification of a marriage contracted between a man and a woman in a foreign country. [Page 868] This spirit of the provision may easily be discerned when it is noticed that it gives the contractors the choice of making the notification either to a Japanese diplomatic or consular officer stationed in that country or to the family registrar of the district in Japan where the prospective husband (in special cases, the wife) has his permanent legal domicile.
When the legal relations between the notification and the marriage under the Japanese law are made clear, there is needed no further arguments to satisfy ourselves that the “picture brides” are not the offspring of a custom arising out of convenience, and predicated partially upon the law but extending much further than the law ever contemplated, that they are as normally married as any other brides married “in the same sense and to the same degree” in any and every respect (vide paragraph (b) Department of Labor note).
The only difference between the “picture brides” and the other brides is de facto, not de jure. And when the usual, more or less unfamiliar, relations between a bride and bridegroom in Japan are remembered, it will be seen that the de facto difference reduces itself to the difference in the length of intervals between the notification of the marriage and the ceremony of the san-san-ku-do.
Such legal features of the marriage in Japan make it altogether unnecessary that the Department of Labor should entertain any fears as to the effect of its attitude toward the Japanese “picture brides” upon the handling of immigrants from certain European countries. (The Department of Labor note, paragraph (r).) Neither is there any cause for the apprehension that the “picture bride” is not being “brought to this country because of the personal desire of the man to have her as his spouse and helpmate in life.” (The Department of Labor note, paragraph (s).) The fact of which you are no doubt aware that those “picture marriages” have been showing quite satisfactory results socially and morally may be here adduced to affirm the above statement.
2. Another point which needs explanation is about the parties who are to make the notification of a marriage to the family registrar (or to a diplomatic or consular representative). The Department of Labor seems to be under the impression that the notification is sometimes made by some one other than the parties immediately concerned,—by the father of the bridegroom or by whoever happens to be the head of the “house”. (The Department of Labor note, paragraph (e).) This is erroneous, and it seems that this error has been occasioned from the peculiar Japanese custom which is now legalized, of affixing a personal seal under one’s name, written not necessarily by oneself but by anyone, instead of writing one’s own signature. This Embassy’s explanation was not accurate when it was explained that the notification must be personally signed and sealed by the parties and the witness. (The Embassy’s note, June 4, 1917.) The Japanese phrase, sho-mei natsu-in, which is used in the family registry law (Art. 44) should be translated into “writing the name and affixing the seal”. Such practice of employing a personal seal which is to be registered at the family registrar’s office in lieu of a signature in this and other countries is not restricted to the notification of a marriage or other matters of personal status, [Page 869] but it universally obtains, applying equally to any legal and business transaction. The affixing of the registered personal seal under one’s name written by anyone or in print is necessary and sufficient for such an act as drawing money from a bank. This system has the advantage of saving a great deal of trouble as when one has to write many signatures, when one will have to travel a long distance to set down his signature, or when a document will have to be sent a long distance for a signature, but it embarrasses one when he does not carry the seal with him, when he loses it, or when by carelessness he lets someone abuse it.
This time-honored custom in Japan of using seal-impression instead of signatures, has occasioned the promulgation of a law providing that aliens may use their signatures instead of the name-writing and seal-impressing (sho-mei natsu-in) (Law No. 50, March 10, 1900). The use of seals which thus entirely take the place of signatures, is also protected in the criminal code, which provides as follows:
Whoever shall have, with intent to use the same, fraudulently counterfeited the seal or signature of another person, shall be punished with penal servitude for a period not exceeding three years.
The same penalty shall be imposed upon whoever shall have made improper use of the seal or signature of another person, or used a counterfeit of the seal or signature of another person. (Art. 167.)
Be its merit what it may, this system enables a man resident in this country to perform a legal act in Japan by, for instance, sending his registered personal seal to his parents or any other person whom he trusts. Such cases might not be rare regarding “picture marriages,” but it is to be noted that it is the man residing in this country, the prospective husband, that is the actual agent of the legal transaction and not the father or any other person who affixes for him the seal to the marriage notification.
3. As to the nature and legal effects of the notification, they have been fully explained in the previous paragraphs of this note. It must, however, also be noted that technically the only permanent record of the acceptance of the notification is the entry in the family registry record, the written notification which is the commonest form (the impression of the Department of Labor expressed in paragraph (o) that the oral notification is commoner is erroneous), being monthly forwarded by the registrar to the local district court where it is to be preserved for ten years and then destroyed. (Family Registry Law, Art. 28, regulations relative to the preservation of documents in regard to the personal status, family register and temporary residence, Art. 4.) Therefore, the entry in the family registry record is a sufficient evidence of matters pertaining to personal status such as marriage so long as the husband and wife do not contradict it and the matrimonial repute is established among his friends and acquaintances. That certified copies of the entry are issued in two forms, to wit, first, copy of the entry for a family or “house” (Koseld-tôhon) and, secondly, copy of the entry for an individual (Koseki-shôhon), has been explained in my note of June 4, 1917, and alluded to in the beginning of this note.