« ПретходнаНастави »
ity as Mr. Webster said in his great speech delivered in the Senate February 16, 1835, on the power of patronage:
The unlimited power to grant office and to take it away gives a command over the hopes and fears of a vast multitude of men. It is generally true that he who controls another man's means of living controls his will. Where there are favors to be granted there are usually enough to solicit them; and when favors once granted may be withdrawn at pleasure there is ordinarily little security for personal independence of character. The powers of giving office thus affects the fears of all who are in and the hopes of all those who are out. Those who are out endeavor to distinguish themselves by active political friendship, by warm personal devotion, by clamorous support of men in whose hands is the power of award; while those who are in ordinarily take care that others shall not surpass them in such qualities and such conduct as are most likely to secure favor. They resolve not to be outdone in any of the works of partisanship. The consequence of all this is obvious. A competition ensues, not of patriotic labors, not of rough and severe toils for the public good, not of manliness, independence and public spirit, but of complaisance, of indiscriminate support of executive measures, of pliant subserviency and gross adulation. All throng and rush together to the altar of man-worship, and there they offer sacrifices and pour out libations till the thick fumes of their incense turn their own heads and turn also the head of him who is the object of their idolatry."
It may be asked what remedy for the evil complained of is suggested, and perhaps the answer to that should be left to those of greater experience and wisdom and greater constructive genius. Certain it is that the remedy must begin in a plan whereby Judges shall exercise, except
on extraordinary occasions, their judicial functions and render their judicial service in the districts wherein they are elected; thus deriving the full benefit of whatever virtue there is in the elective policy; thus maintaining in application the ideals of popular government; thus imposing upon the agency selected by the people those salutary restraints which a perfect responsibility to the people will impose.
In the debate upon the Judiciary plan in the Constitutional Convention of 1846, Samuel J. Tilden said:
In my judgment, if it had been proposed to constitute local judicatures competent to do the business of the people, to answer the demand of the people to carry justice to their own door and then organize a State Judiciary, small in number as it would be, I do not believe that any gentleman would have risen on this floor and presented this monstrous proposition of electing the State Judiciary, the Judiciary which is to represent the justice of the State,- by localities. It is a tyranny odious and unendurable to send into one district a Judge elected by another people. There is no responsibility to the people of any but one district with whom he will spend but one-thirty-second part of his time."
He illustrated his position and stated other objections of great length, and said he "would do all in his power to prevent Judges from other parts of the State being sent to sit in judgment on the interest of people of New York, to whom they owed no responsibility." (Debates, New York State Constitutional Convention, 1846, page 589.)
If this plan to confine Judges to service in the districts which elect them be found impracticable, an improvement at least can undoubtedly be made by cutting away
the last vestige of influence and dependence between the Executive and the Appellate Judiciary, and vesting the power of designation of such Appellate Judiciary in the Court of Appeals, which at least will have two of the greatest qualifications necessary to any branch of the government vested with such power of designation; that is, a competency to judge of the fitness of the men to be so designated, and a profound interest in the maintenance of an exalted standard in the judicial branch of the government. This will at least withdraw from the Executive a power too easily prostituted into personal and political service, and relieve the Bench of a dependence upon executive favor and its ensuing embarrassments, and will rid the State of a situation which is a reproach to its name and a peril to its orderly well-being.
I am sure you all join with me in thanking Mr. Littleton for his very able and very instructive paper. Gentlemen, I wish to present again to you particularly those who were not here yesterday, Dr. Masujima, of Japan, who is the guest of the Association during this meeting, and who spoke to us last night on Japanese Law in such an instructive and able manner. He has very kindly prepared for the Association a paper on "Japanese Law in Relation to the Status of Foreigners." I think it is the desire of the doctor that he should be accorded the privilege of simply submitting his paper and having it printed in our proceedings, and I know we shall all be delighted to have the privilege of reading and examining such a valuable paper, as it must be in that form. I wish to thank the doctor for preparing the paper for us and as I say to present him to you again this morning.
E. T. Lovatt, of New York:
Mr. President, I move that the paper be printed in the minutes and that a rising vote of thanks be tendered the doctor for the manifest interest shown in this Association and in taking this long trip to look upon us.
The motion was duly seconded and unanimously carried.
MR. PRESIDENT AND GENTLEMEN. I thank you for the honor afforded me in being your guest on this occasion and for the courtesies extended to me.
JAPANESE LAW IN RELATION TO THE STATUS OF FOREIGNERS.
Under the old
The new era of Japanese Law was inaugurated with the operation of the treaties now in force. treaties the subjects or citizens of each treaty power in Japan were governed by their own laws and were subject to the judicial control of their own authorities. This system created what is generally known as extra-territoriality, such as is still the case in China, Korea, Turkey and other Eastern countries. These privileges were defined by the respective treaties, which were almost identical in terms and served their joint purposes, the fiction of the most favored nation clause being taken as the standard of their application. Theoretically, their rights were limited, but practically they were unlimited, for their rights, privileges, and immunities were co-extensive with what they enjoyed in their respective home jurisdictions, the only limitation being that of locality. The area of their residence and movements was confined to certain quarters within open
ports and certain distances out of which they were not. allowed to travel without special permits.
The treaties were revised to abolish such an anomaly in the idea of law and sovereignty of an independent State, and Japan has adopted the theory of the "open door" as her national policy. All foreigners are welcomed to sojourn in her territory whether for business or the enjoyment of life. The standard of the policy was laid down in Article II of the Civil Code, which was promulgated partly for the purpose of the new treaties. The article says: "Foreigners may enjoy private rights except in so far as they are not prohibited by laws or treaties." Its perusal will at once show that the intention of the legislation is to accord to foreigners in Japan as liberal a treatment as possible. In this respect, there is no difference. between treaty and non-treaty subjects or citizens. The only exception is in the case of foreign laborers engaged in physical toil, those to serve as servants not being so regarded. Physical toil workers must obtain special permission from the local prefecteral authorities in order to engage in such occupations.
To know who is a foreigner is not simple. We may describe him by saying all those who are not Japanese subjects are foreigners, but it defines nothing, and their exact position is made clear, I think, only when we know who are Japanese subjects. Article XVIII of the Japanese Constitution prescribes that, "the conditions necessary for being a Japanese subject shall be determined by law." Such law has been supplied by special legislation in the form of the law of nationality put into operation since 1899, the same year in which the new treaties were put in force. That law lays down, in the first place, the principle that all persons born in Japan are Japanese subjects, and they acquire the status of Japanese subjects; if their