INTRODUCTION

The document which follows is the English version of an address prepared by Mr. Miyaoka and read in French before the Société de Législation Comparée at its meeting held in Paris on November 20, 1924. Mr. Miyaoka was addressing a body of European jurists, but since in this country there is no general and accurate knowledge regarding the law of Japan as to the right of Japanese to expatriate themselves or as to the right of foreigners resident in Japan to hold land, his exposition cannot fail to interest the people of the United States.

Mr. Miyaoka speaks with the authority of an international lawyer of distinction who, in the summer of 1918 as the invited representative of the Bar of Japan, addressed both the American Bar Association and the Canadian Bar Association on the occasion of their respective annual meetings.1 During the summer of 1924 Mr. Miyaoka again visited the United States and Canada and was the guest of the American Bar Association. It was on his return journey to Japan through Europe that he prepared in Paris the address which follows, although time did not permit him to remain in Paris to deliver it in person.

It will be recalled that in 1917 the Imperial Japanese Mission, headed by the distinguished statesman, Viscount Ishii, visited the United States. At a luncheon given in New York in honor of this Mission on October 1, 1917, Mr. Elihu Root made the following statement. He said:2

"For many years I was very familiar with our own department of foreign affairs, and for some years I was specially concerned in its operation. During that time there were many difficult, perplexing, and doubtful questions to be discussed and settled between the United States and Japan. During that time the thoughtless or malicious. section of the press was doing its worst. During that time the demagogue, seeking cheap reputation by stirring up 1See Publication No. 16, Division of Intercourse and Education, Carnegie Endowment for International Peace. November, 1918.

*International Conciliation No. 124, March, 1918, pp. 103-104.

the passions of the people to whom he appealed, was doing
his worst. There were many incidents out of which quar-
rels and conflict might have arisen; and I hope you will all
remember what I say of them: I say that during all that
period there never was a moment when the Government of
Japan was not frank, sincere, friendly, and most solicitous,
not to enlarge but to minimize and do away with all causes
of controversy. No one who has any familiarity at all with
life can be mistaken in a negotiation as to whether the one
with whom he is negotiating is trying to prevent or trying to
bring about a quarrel. That is a fundamental thing that
you cannot be mistaken about. And there never was a
more consistent and noble advocacy of peace, of interna-
tional friendship, and of real good understanding, in the
diplomacy of this world, than was exhibited by the repre-
sentatives of Japan, both here and in Japan, during all
these years in their relations to the United States. I wish
for no better, no more frank and friendly intercourse be-
tween my country and any other country than the inter-
course by which Japan in those years illustrated the best
qualities of the new diplomacy between nations, as dis-
tinguished from the old diplomacy between rulers."

This statement by a former Secretary of State of the United States who also, while Senator, served upon the Committee on Foreign Relations, is of interest now in view of the discussion that has recently taken place both in the United States and in Japan consequent upon the preparation and passage of the American Immigration Act of 1924. In no small degree this discussion is colored by the suspicions and resentments that naturally result when there is a lack of understanding of the national rights and national customs of both countries. Mr. Miyaoka has in this paper helped to clarify some points of the law of Japan which are important and significant, and his address is a contribution toward that frank presentation of views which is essential if there is to be an intelligent understanding of a complex and difficult international situation. NICHOLAS MURRAY BUTLER

New York, December 31, 1924

"The full text of this Act together with an analysis of it was published in International Conciliation, No. 202, September, 1924.

THE JAPANESE LAW OF NATIONALITY

AND

THE RIGHTS OF FOREIGNERS IN LAND UNDER THE LAWS OF JAPAN

BY TSUNEJIRO MIYAOKA

I have the honour to lay before you a report on the provisions of the Japanese law of nationality with such historical background as might make the subject at once intelligible and interesting. It has also seemed to me that in view of the wide-spread misapprehension on this subject as well as on the rights of foreigners in land in Japan, those two subjects might with advantage be discussed together.

GENERAL HISTORICAL SURVEY

The law, the provisions of which I wish to explain to you, is the Japanese law N° 66 of the year 1899. En passant, it may be observed that Japanese statutes or "acts of parliament," are known as law N° so and so of such and such year. A new serial number is started with the advent of every new year. Several amendments were introduced into that law by law N° 27 of 1916, but law N° 66 of 1899 as so amended is called the Law of Nationality of 1899. The original law of 1899 was promulgated on the 16th of March and came into operation from April 1st of that year. It is erroneous to suppose that until that law was enacted there was no law of nationality in Japan, for no nation can exist without some rules by which the question as to who are nationals and who are not can be determined. It is true there was no comprehensive statute dealing with the conditions, the acquisition and loss of nationality, but just as the Common Law of England existed before the decisions of judges made clear what such laws were, there were some definite juridical conceptions by which the national status of a Japanese was determined, and a statute promulgated-if I remember correctly in the year 1873, enunciated those conceptions in some very definite manner. I am much handicapped by the fact that I am not carrying with me books containing statutes that have been

repealed and are no longer in force. A historical survey, quite accurate in detail, is therefore impossible for me to make, but this is a subject which has so long claimed my attention that I feel safe in discussing the provisions of the laws that antedated the enactment of the Law of Nationality of 1899.

ACQUISITION OF NATIONALITY BY BIRTH,

ADOPTION OR MARRIAGE

The law of 1873 declared, and I wish to reiterate that there may possibly be an error of a year or two when I say "1873",—that a foreign woman marrying a Japanese becomes a Japanese subject and, on the other hand, a Japanese woman who marries a foreigner ceases to be a Japanese subject. So far as Japan was concerned that law presumed that the wife would acquire her husband's nationality. In Japan the law of marriage which creates the relation of husband and wife is closely related to the laws governing the relation between the house-head of a family and the members thereof. The Japanese family is a patriarchal institution in which not only the relation of a father and a mother to the child, but the relation between the man or woman who is the house-head to the members under his or her paternal authority, has to be considered. Thus Article 732 of the Civil Code of Japan provides that all relatives of a house-head who are in that house, as well as their consorts (that is wives or husbands of the members of the family) are members of the same house. The "house," as used in the family law of Japan, does not mean the architectural construction. It means the institution called the "house." Thus Article 733 of the same Code provides that a child enters the house of his or her father, and that a child whose father is unidentified enters the house of its mother. The relation of a father to a child is determined by Article 820 of the same Code which declares that a child conceived by a wife during the time marital relations exist shall be presumed to be the child of the husband. The relation of father and son is one thing. The question as to the family to which the child belongs as a member is another question. The husband referred to in Article 820 of the Civil Code may not be the head of the family himself, he may be a member of his father's or his grandfather's family, or of his elder brother's family. In that case, the husband not being the house-head of the family the law must necessarily state into what family the child does enter; and