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There was no possibility of delaying justice by carrying appeals from court to court.
But if we look to the commercial life of those days, we find a world of its own, though strictly confined within the limits of the Empire. There was a flourishing commerce between province and province, between town and town, and as this commerce continued its unbroken existence for centuries, there gradually arose settled forms and customs of doing business which may well be compared with the similar forms and transactions observed in other countries.
For instance: mediaeval Japan had its banking system, and you could through your banker in Yedo send and receive remittances to and from Nagoya, Osaka, Nagasaki, or any other city in the Empire. The trade was carried on by means of bills of exchange, bank notes, checks and promissory notes, and there existed a system of clearing accounts between the different banks. Indorsements were effected by abbreviated forms of the names of the parties and a regular chain of transfer was necessary for the negotiability of paper.
The solidity of commerce was further assisted by the special protection given to claims founded upon commercial paper by means of a summary proceeding heard at an early date, by a right of priority allowed to the holders of such paper in the realization of assets, and by the rigid enforcement of judgment more strictly and more promptly rendered than in the case of ordinary transactions. It shows that, however simple and primitive may have been the arrangements that existed in the samurai and rural classes, the mercantile community had already evolved for itself a system of commercial operations based entirely upon credit, and credit cannot exist
in any country unless it rests upon a solid foundation of law, equity and justice.
Those who took part in mercantile transactions were producers, carriers, wholesale dealers and brokers, the third playing the most important part in commercial transactions of those days as they advanced money to farmers and artisans. There existed various forms of mercantile agencies for the sale, purchase and shipping of goods.
Merchandise might be shipped against order or be consigned, and the consignors might themselves act as super-cargoes or masters. There existed certain practices for the receipt of goods, for bills of lading, for delivery alongside vessels, or otherwise, and modes of payment as settled by practice. The sale of goods might be held by auction, i. e., by written bids, or by oral bidding in an open-air market; agents who were consignors looked after the auction, and the goods were sold through brokers, whose credit or responsibility was guaranteed in a certain established form.
A Japanese Lloyd's laid down rules of average, rebate and payment, registered ships and their transfers, their speed, sails, capacity and all their particulars, together with the arrivals and departures of each vessel, which were checked by a certain ticket system. They issued a bill of lading describing the cargo and store separately. They examined the goods on arrival, estimated damages, and paid the freight. Averages and all other claims were investigated and settled by the office, all the parties mutually sharing in the losses, so that no one should suffer alone. The shipowner usually loaded up to four-fifths of the capacity, and the balance of space was left to the captain, who filled it up with miscellaneous cargo, out of which to pay himself and
his crew, he sharing the risk to the extent of freight secured for himself. He kept a log to enter jettisons, injuries to cargo and other casualties, as well as the occasions of putting into ports through stress of weather. Damages caused by rats, water and, other agencies or causes were paid for by the ship under certain rules.
Such was the state of law and justice and their administration previous to the revolution of 1868. The old bodies of Japanese law may have been crude and unsystematic, and utterly lacking in arrangement or method; but the nation, or at least the commercial part of it, had evolved for itself a system of credit, based on equity and justice. Here, I should remind those of you who are acquainted with the writings of your country about Japan, that they will recognize how much I am indebted to Professor Wigmore's study into the history of Japanese legal system.
If Japan has been thus left to work out her own system of law and jurisprudence, she would have had their continuous history, and the world would have been so much richer in comparative jurisprudence. But the exigencies of the times ordered otherwise. The year 1872 marks an epoch in the judicial history of Japan. For the first time a distinction was made between courts of law and executive officers for judicial affairs, and a system of graduated courts was inaugurated. In 1873 the rules of pleading were promulgated, and the forms for certain kinds of actions prescribed. A petition was to be clear and concise, without ambiguity or verbosity. Two years later a statute prescribed that decisions must be given according to the provisions of the law where such exists; if there is no statute, according to custom; if there is no custom, according to equity.
The rules thus stated in a few lines represented succinctly the whole of the Japanese law at that time, and, had we possessed a properly trained and gifted judiciary, they would have sufficed; for, if time had been allowed it, a system of jurisprudence, as complete as that of your Anglo-American law, would have grown out of this germ.
Popular and social convulsions hurried on changes, and legislation became a matter of urgent necessity. Japan came into contact with foreign nations, and foreign nations would not allow their citizens to come under the jurisdiction of a nation which had no recognized uniform bodies of law. The pride of the people was hurt by having as residents within their borders a body of foreigners who refused to submit to their laws, and thus a strong desire arose for the possession of codes.
The French codes were consulted and the Penal Code and Code of Criminal Procedure were adapted from France. The Civil Code, Commercial Code, and other auxiliary laws, were to be copied from her jurisprudence. That system of law was sought after simply because it was undoubtedly a system, although from our standpoint of legal conception it was no more symmetrical nor scientific than your laws, except that the laws of of the Code were tabulated together in so many articles. However, when the projects of these laws were placed before the public, they were subjected to severe criticism, and the present codes on advanced scientific bases were prepared and adopted instead. If the history had been otherwise, modern Japanese law would have had to go through a similar jural evolution to that of France, which would not have been any gain; for we should have had to be puzzled by the confused theory of the law
of nature and other like doctrines underlying the French Code.
The work of drafting the present codes was started on a new basis in the year 1890. The work of codification has been consummated and there are codes on all the important departments of law, all of which have been acquired by Japan within the last twenty years. The Codes of Criminal Law and Criminal Procedure were put into operation about twenty years ago, and are now about to be revised. The Code of Civil Procedure has been in force nearly ten years, the Civil Code and the Commercial Code have been administered since the year 1898. These two bodies of law have been followed by auxiliary laws to supply the link between the present and previous bodies of law. The codification was the result of Japanese legislation passed through the modern form of legislative institutions. Their examination should precede the study of the position in which Japanese law and jurisprudence now stand.
The written Constitution of Japan defines the polity of the State, the authority of the Sovereign, the functions of the Legislature, executive and judicial administration, and the rights and duties of subjects. Our Constitution. is an Imperial gift voluntarily and freely bestowed upon us by His Majesty. It was given, to use the statement published by the Emperor on the occasion of its promulgation nearly thirteen years ago, in consideration of the progressive march of human affairs along lines parallel to the advance of civilization, in order to give clearness to the instructions bequeathed by the Imperial founder and other august ancestors. His Majesty, therefore, undertook to formulate fundamental laws into express provisions, so that his posterity might have a clear guide, and his subjects a wider scope of action, in working for