Office of the Historian

No. 386.
Mr. Bingham to Mr. Fish.

United States Legation, Japan,
Tokei, June 22, 1875. (Received July 24.)
No. 239.]

Sir: I have the honor to inclose herewith (inclosure 1) a copy of a communication from his excellency the minister of foreign affairs, Mr. Terashima, in which he informs me of the organization of the new judicial department, the daishinin, and transmits a copy of the regulations adopted for the government thereof and of the several courts.

Mr. Thompson has carefully translated the regulations, a copy of which is herewith (inclosure 2) inclosed.

I am, &c., &c.,

JOHN A. BINGHAM.
[Inclosure 1 in No. 239.—Translation.]

Mr. Terashima to Mr. Bingham.

Foreign Office, Tokei,
The 9th of the 6th month of the 8th year of Meiji.
No. 29.]

Sir: I have the honor to notify your excellency that the duties of the members of the daishinin, and of all courts, and the regulations governing their proceedings, have been established as shown in the accompanying printed pamphlet.

They have been promulgated under the title of proclamation No. 91, and I have much pleasure in transmitting them to you.

With respect and consideration,

terashima munenori,
His Imperial Majesty’s Minister for Foreign Affairs.

His Excellency John A. Bingham,
Envoy Extraordinary and Minister Plenipotentiary of the United States.

[Inclosure 2 in No. 239.—Translation.]

Proclamation No. 91.

The officers and duties of the daishinin, and of the various courts, are specified in the paper subjoined, and proclamation made accordingly.

SANJO SANEYOSHI.

DAIJO DAIJIN.

24th of the 5th month of the 8th year of Meiji.

Officers and modes of procedure in the daishinin and various courts:

I. Officers of the daishinin.

1. President.

A first-class hanji (or judge) shall fill this office.

(a)
As presiding judge of the supreme court, he shall direct the heads of each department, assign business, from time to time visit each court, hear and consider weighty and important matters, and communicate with the minister of the shihosho, (judicial department.)
(b)
As chairman of a deliberative body, when the opinion of the judges is divided, he is to decide in favor of the majority, and when there is a tie, he is to have the casting vote.

2. Hanji, (judges.)

(a)
The judges are to hear complaints in civil and criminal matters, set aside unlawful decisions, decide upon offenses against the country and important cases occurring [Page 815] in the intercourse between Japan and foreign countries, and also investigate the offenses of judges.
(b)
They shall review cases of capital offenses.
(c)
They shall consider, doubtful questions of law.

3. Sakan, (attaché or assistant.)

The assistant shall accept duty from the judge, make out reports, and keep records.

duties of the daishinin.

1.
The daishinin shall receive appeals in civil and criminal matters, set aside unlawful decisions of the superior and inferior courts, and be the means of giving uniformity to the laws of the whole land.
2.
After it has set aside an unlawful decision, it may refer the matter to another court to be decided. Also, if convenient, the daishinin may itself decide the matter.
3.
After a matter has been referred to another court to be decided, if the decision of that court and of the daishinin is not accepted, the daishinin may decide the matter directly. In such cases, the judges of the daishinin, having met and deliberated, shall decide the matter.
4.
When military and naval courts exceed the limit of their authority, the daishinin shall set aside their decisions and refer the matter to the proper court.
5.
The daishinin shall try the offenses of all judges, with the exception of contempt of court.
6.
It shall try all important cases of offenses against the country, and cases occurring in interconrse with foreigners, and important civil and criminal cases.
7.
It shall consider all reports of capital offenses referred to it from the various superior courts, and, having concluded as to the merits or demerits thereof, shall return the same. Cases which cannot be thus adjusted shall be discussed in assembly, the law shall be determined, and then they shall be returned.
8.
The decisions of the daishinin must be made by five or more judges sitting together; less than five together cannot decide a matter.
9.
Doubtful matters of law are to be examined by the daishinin.
10.
When the law is defective, the daishinin shall make provision to meet the defect, and refer the matter to the Emperor, through the minister of the shihosho, (judicial department.)
11.
The daishinin shall keep a record of decisions, of appeals set aside, of doubtful cases considered, and these, with the reasons assigned, shall be forwarded to the shihosho for publication.
12.
The classification or division of business is as follows:
(a.)
Civil cases.
(b)
Criminal cases.

superior courts.

I.—Officers.

1.
President. A judge, appointed by the Emperor, shall fill this office. He shall refer matters in controversy to each division, direct the head of each division, from time to time visit the courts, hear important and weighty matters, and communicate, with the minister of the shihosho and the head of the daishinin.
2.
He shall take into consideration what is convenient for the circuit courts within his district.

II.—Judges.

1.
They shall receive complaints within their district and decide upon them.
2.
They shall visit the fus and kens (large and small cities) in their district, and in each place decide the punishment of capital crimes.

N. B.—The circuit regulations will be given hereafter.

III.—Assistant judges.

1.
Shall receive business from the judge, and make preliminary examination.
2.
Shall follow the judge in his circuit, and shall sit with him.

Sakan, (assistants.)

The duties of the sakan are the same as the duties of the sakan of the daishinin, which see.

[Page 816]

Duties of the superior courts.

1.
Superior courts are to be located at four places, viz: Tokei, Osaka, Nagasaki, and Fukushima, to decide the cases of those who do not yield to the decisions of the fu and ken courts. (The limits of each district will be given elsewhere.)
2.
Superior courts have power to try capital crimes. The judge and assistant judge of each superior court, together, shall go forth and make the circuit of the district, and administer justice.
3.
In trying capital crimes, after the law has been well considered, a report of the case shall be made to the daishinin, and after having received its instructions is to be decided.
4.
They shall try cases involving punishment during life with hard labor, referred to them from the courts of the various fus and kens.
5.
They shall decide the case when lawyers within the district disagree as to what is the law.
6.
In civil cases even, when the court is opened, it is necessary for three judges to sit together.
7.
If one does not accept the decision of the superior court he cannot prosecute his claim further, but may appeal to the daishinin to have the judgment set aside.

Rules of the circuit courts.

1.
These are to be held in the fus and kens under the jurisdiction of the superior courts, to determine the punishment of capital crimes beyond the powers of the fu and ken courts.
2.
Such courts are to be held in each province twice a year. In cases of emergency this rule need not be observed.
3.
The president of thiscourt shall determine the frequency and order of such circuit courts, and, after consultation with the minister of the shihosho, (judicial department,) shall arrange them accordingly.
4.
The fu and ken courts shall make preliminary examination of capital offenders, obtain evidence, prepare a statement of the case, and wait for the opening of the court.
5.
In proportion as the extent of the district of the superior court is wide or narrow it shall be divided into two or three subdivisions, and two officials, one judge and one assistant, be sent to each.
6.
The judge of the circuit court of a fuorken, when he takes his seat, shall have, as assessors, two circuit court officials, making (with the judge) three in all.
7.
When a case has been heard the judge shall send a report to the daishinin for its approval or disapproval, which being sent down to the fu and ken courts, the case is to be decided accordingly.
8.
The time which an officer of the court will remain in any fu or ken cannot be determined beforehand, but must depend upon the amount of business.

fu and ken courts.

Officers.

President of the judges, (from the fifth to the seventh rank.) He is to correspond with the minister of the shihosho, the president of the daishinin, and the presidents of the superior courts. In other respects he is the same as a judge.

Judges.

These are to make the first examination of civil cases, and decide all those criminal cases involving confinement with hard labor, (for a limited time.)

Assistant judges.

These are to have duties assigned them by the judge, and supply his place when necessary.

Sakan, (attachés.)

The duties of the sakan of this court are the same as the duties of the sakan of the superior court.

Duties of the fu and Teen courts.

1.
One court is usually located in each fu and ken, to decide all civil cases and criminal cases punishable by confinement with hard labor. In those kens in which no court is located, the chihokan (governor of the province) shall act as judge.
2.
These courts shall make the first examination in all cases, great or small, which are tried in the fu and ken courts; after which the case can be carried to the superior court.
3.
Civil and criminal cases affecting foreigners, if unimportant, are to be decided at once; if important, to be heard in outline, and the outline reported to the minister of the shihosho.
4.
In capital cases, they shall prepare evidence, retain the prosecutors, and await the circuit judge.
5.
In cases involving punishment for life, a statement is to be prepared and submitted to the superior court, after which the case is to be decided.

General rules regulating the office of judge.

1. From the daishinin downward to the fu and ken courts, judges from those of the first to those of the seventh rank are appointed.

From the superior courts downward, assistant judges, from assistant judges of the first to those of the fourth rank are appointed.

(An assistant judge of the first rank is an officer of the eighth rank.)

2. A session of the daishinin shall consist of five or more judges, one of whom shall be appointed president.

A session of the superior court shall consist of three or more persons, one of whom shall be appointed president.

When the number of judges in the superior court is not sufficient, an assistant judge may sit, but not two assistant judges.

3. The president thus appointed shall convene, conduct, and adjourn meetings.

4. The president of the judges has power to direct this president.

5. Separate places may be appointed for hearing civil and criminal cases separately, or one court may hear both at different times, according to the urgency of the case. The uniting or dividing the two classes of civil and criminal cases must be regulated by considerations of convenience; when divided, the number of judges must be complete, and when not complete, the number must be made up.

6. When a case has been heard and is about to be decided, the judicial officers shall leave their places, and, having consulted, a majority shall determine the case. If there are three, two shall determine; if there are five, three or more shall determine it. When there is no majority, as when three have all different views, or when, of five judges, two hold to one view and two to another, the president shall decide the case as he sees fit.

7. The president of the daishinin and presidents of superior courts shall visit the various places of holding courts, both civil and criminal, and may perform the duties of the acting judge, in which case the acting judge shall relinquish his place and assume that of an ordinary court officer.

8. Great offenders and cases hard to be investigated shall undergo preliminary examination.

This examination shall take place elsewhere, with closed doors, being conducted by the court official and a secretary, who, having made out a report, shall refer the matter to the court.

9. If, after the matter has been referred to the court, the evidences of guilt are not yet clear and sufficient, the presiding judge may hand him over to another officer to undergo another examination.