unassisted by nautical assessors. Having found its way into the Statute Book, at the instance, probably, of interested shipowners, it was reluctantly adopted by the Admiralty judges, and has ever since been the despair of Admiralty practitioners, owing to the confusion and inconsistencies of the Acts relating to pilotage. Though it has a superficial appearance of justice, it has in practice worked great hardship and injustice. If the recent Conference results in nothing else, it will have done no small good if it abolishes the defence of compulsory pilotage. That gone, the whole subject of compulsory pilotage will once more come to the front, and we shall see whether the system can stand without the questionable support which it has so long received from interested shipowners.

Besides the subjects above mentioned, the Conference disposed of two minor matters of procedure. It was agreed (1) that a protest should not be a condition precedent to bringing an action, and (2) that an action for collision must be brought within two years. The results already attained are of importance, and the unanimity with which the resolutions were passed is remarkable. Whether the consequential changes in the municipal laws of the countries affected are made forthwith or not, it is certain that the resolutions of the Antwerp Conference will have to be reckoned with in any future legislation upon the subject of collision.

A Conference is to be held next year in London, and there a question of greater and more far-reaching importance than any yet dealt with will come forward for discussion-namely, whether the liability of shipowners for collision should be limited, and if so, to what amount and in what way. This subject was started at Antwerp, but it was found to be a thorny one, and the matter was postponed for further discussion. At present the law of England is quite at variance with that of the Continent. In England the liability is measured by the ship's tonnage: £8, or in certain cases £15, multiplied by the ship's tonnage, gives the limit; and the resulting amount is payable whether the ship survives the collision or not. Upon the Continent the limit of liability is the value of the wrong-doing ship after the collision; and the shipowner can always escape personal liability by abandoning his ship and freight. If the ship is sunk by the collision, nothing can be recovered. The discussion at Antwerp disclosed a strong difference of opinion between the English representatives as to whether the English rule is desirable even for Englishmen.

The liability under English law is heavier than that under foreign law, which is said to press hardly upon English sufferers by collision who have to resort to foreign courts. Upon the other hand, the continental law, by which the possibility of recovering anything depends upon the accident whether the guilty ship sinks or swims, was characterised as unreasonable and unjust. The discussion showed that this question of limitation of liability will be a difficult one to deal with. The difficulty is the greater because there is no logical basis for fixing the liability at one sum rather than

another. Shipowners of all countries are agreed upon one point onlynamely, that some limit must be put to their liability. But why this should be so is not clear; and it may become necessary to consider the wider question, Why should the liability be limited at all? Why should shipowners require a special law for their exclusive benefit and protection, whilst all the rest of mankind are content to be liable to the uttermost farthing for all the damage they or their servants may negligently do to others? The enormous sums now at stake upon the sea, the vast liability which a trifling act of negligence may entail, and the impossibility of ensuring by any amount of care ashore proper care and caution on the part of seamen at sea are the reasons assigned for the special protection given by the law to shipowners. On the Continent this protection extends even to contracts entered into by the master on behalf of the shipowner. It may be doubted whether this anomalous law has been altogether beneficial either to the public or to shipowners; whether it would not be better in the long run for all parties to allow the ordinary law to apply to negligence at sea as well as to negligence on shore. The wholesome rule that a man shall make full compensation for damage done by the negligence of his servants has been found by the experience of ages to be necessary for the protection of those who are liable to suffer by their carelessness. To measure his liability by the size of the instrument with which the damage is done, as we do in England, and to discharge him from all liability if the instrument is lost in the process, as they do on the Continent, reminds one more of archaic forms of law than of modern principles of justice.

THE PROGRESS OF THE JUDICIAL SYSTEM OF JAPAN.

By T. OKAMURA, LL.D. (TÖKIO), M.J.S., ETC. Of the Tokio Bar and of the Middle Temple; late President of the Yokohama District Court.

(Reprinted by permission from the Journal of the Japan Society.)

THE object of this paper is chiefly to give a short account of our judicial system and its progress since the Restoration of the Imperial Authority in 1869. But in order to do so I am obliged to make some reference to the judicial system under the Tokugawa Government; for even after the Restoration it had a marked influence for a certain period, and unless we have some knowledge of it we are unable to see how far our judicial system has made progress.

Unfortunately, however, the judicial system under the Tokugawa Government is not very well known, owing to the want of reliable books and papers, as all judicial matters were kept secret at that time. Thus my knowledge of this subject is necessarily limited, and I can only give a few scattered details.

At the outset, I may state positively that the judicial system under the Tokugawa Government was entirely unaffected by any European forms of procedure, even after the country had been thrown open to European civilisation. As on all other branches of our institutions, China had a great influence, and laws and customs were more or less affected by Chinese morals and literature. When Chinese civilisation was first introduced into Japan, our ancestors tried to adopt Chinese laws and customs, as we now adopt those of Europe. The elaborate codes, known as Ritsu, Rei, Kaku, Shiki, were mere reproductions of Chinese laws of the Tong Dynasty. Although these laws were actually used for a certain period, the feudal system acted as a bar to their operation. In fact, the feudal system had exactly the same effect in Japan as it had in Europe: it completely prevented any organised system of law. What we therefore find under the Tokugawa Government are a few scattered rules for the punishment of crimes, and very few for civil matters. Under the feudal system, besides the feudal lords or Daimios with the Shōgun at their head, there was a marked distinction between the

Samurai class, or warriors, and the Heimin class, or common people. Trade or commerce was the business of the latter class, and consequently developed very little. Land was the property of the lord, and peasants were serfs attached to the land. Hence there was hardly such a thing as what we now call an individual right of property. Even the right of life and death, or Jus vitae necisque, if I may use the Latin expression, might be said to have been in the hands of the lord as it had been in the hands of the paterfamilias at Rome. Each feudal lord had almost absolute power in his domain, though it is said that in cases of an important nature, regulations issued by the Tokugawa Government had to be observed. Hence there must have been different laws in different provinces.

The customs and regulations which I now mention are those of the Tokugawa Government.

The most remarkable feature is that there was little or no distinction between law and morals. The Confucian theory of morals was freely adopted. Those who have read the autobiographical works of the celebrated Arai Hakuseki will be quite convinced of the truth of my statement. He was the greatest statesman, economist, and scholar of his time-added to which he had the honour of being the first Japanese who learned a European language and wrote about Europe. Having been the teacher of the fifth Shōgun and an adviser of the Government, his opinions were frequently asked in order to decide civil and criminal cases, when new and important questions had arisen. His answers were always wise, and did much good to the country. Perhaps some of the ladies and gentlemen present may have heard of the celebrated case of the 47 Rōnins who in retaliation killed the enemy of their master. Retaliation itself was not forbidden by law. Thus public opinion was much inclined in their favour. The Government was at a loss how to decide the case. The opinion of the celebrated Chinese scholar Ogin Sorai was asked, and he answered that however praiseworthy the deed might have been as an act of the Samurai, a breach of the public peace could not be tolerated; and if such a deed were left unpunished, deeds of a much graver nature, perhaps even affecting the dignity of the Shōgun, might be committed. He seems to have answered like a lawyer. Hence those Rōnins were sentenced to commit harakiri.

There was also no demarcation between judicial and executive offices. The prime minister (Gotairo), other ministers (Goroju), the director of the ecclesiastical bureau (Jishabugio), the director of the treasury bureau (Kanjobugio), the governor of the city (Machibugio) were all judges, and sat on the bench to try civil and criminal cases. Under these judges there. were Shiroheyaku, or assistant judges, and Tomeyaku, or clerks; who were actually judges, as their recommendations were generally adopted by the superior judges. Hence, in later days of corruption, these semi-judges had very great power, and were much dreaded by the people.

Civil and criminal trials were conducted privately, and the knowledge

of law and practice became secret in the hands of the officials, just as the knowledge of the Roman law and practice had once been sacred in the hands of the patricians till Cnaeus Flavius, a clerk of the court, betrayed the secret.

One most remarkable rule in criminal trials was that no prisoner could be convicted and punished for his crime unless he made a full confession. No doubt this rule was adopted with a benevolent motive; and by a full confession was meant a voluntary confession. But as torture was permitted to be employed at the discretion of the judge, the rule was much abused to extort confessions. Many innocent persons might succumb as victims to the rule, while many desperate criminals might escape scotfree. But it must be admitted that even then judges who resorted to torture were considered to have been bad judges. The name of a judge, Ooka yechi zen-no-Kami, is much revered even now because he seldom resorted to the horrible means of torture. The Tenichibo trial was the cause célèbre of Tokugawa trials. It was through skilful examinations and much pains taken in order to collect important evidence that Ooka obtained a full voluntary confession from the pretender to the heirship of the Shōgun. His reputation as a judge rests on many remarkable and even exaggerated stories. But I am informed that he was an honest and straightforward judge, who always took pains in trying his case lest he might convict the innocent.

In the trial of civil cases the most remarkable rule was what is called Meyasutadashi, or preliminary examination. It was the duty of the clerks of the court to examine whether a case was properly made up for trial. They would not mind rejecting the case on a mere technicality of forms. In short, the law and practice became quite as technical, or, if I may use the expression of Sir Henry Maine, quite as "rigid" as in any other system known in the history of law. You will be much surprised to hear that there were half a dozen ways of writing the Japanese words of respect, On and Sama, which latter is equivalent to the English word Sir or Mr.; and if the poor petitioner did not use the proper word according to the rank of the officer addressed, his case would instantly be dismissed, as once in England a prisoner was acquitted on the ground that the indictment did not state a shoe instead of a pair of shoes, because the prisoner stole only one shoe. Another prominent rule was that judges should try to effect a compromise between contending parties. In a very small proportion of cases was the whole case tried. The court would hear some evidence, but would advise the parties to come to terms. This, too, is a wise rule. But parties would sometimes be forced to go on in order to show the ability of the judge.

In civil and criminal cases the judgments were always written, and some of them were very elaborate, the trial having been conducted with much skill and precision. I heard a case of a dispute concerning the