Issues | LAW OF THE LAND

How the last czar shaped Japan's courts

by Colin P.A. Jones

Contributing Writer

A quarter century before his fateful encounter with the hail of Bolshevik bullets that killed him and his family in a Yekaterinburg basement in 1918, Russia’s last czar, Nicholas II, was a tourist in Japan.

He was not just any tourist, of course, and his visit precipitated an incident that could have led to war but ultimately helped lay the foundations for judicial independence in Japan — such as it is.

On May 11, 1891, while still crown prince, Nicholas was visiting western Japan. Returning from a day trip in Otsu near Kyoto, Tsuda Sanzo, one of the policemen who was supposed to be guarding him, suddenly jumped onto the future czar’s rickshaw and slashed him with his sword. Quick action by no less than the crown prince of Greece, who was with the entourage and whacked Tsuda with his stick, prevented further harm to Nicholas. Fortunately, Tsuda’s sword was a poorly made Western-style sabre rather than a Japanese katana, so the one blow that did land did not cause serious injury.

Although Nicholas survived, this was an incident of potentially existential significance to Japan. His transportation to Japan had been Russia’s Pacific Fleet, which was anchored at Kobe and in an easy position to start blowing things up once the crown prince was back aboard. Compared to other European powers at the time, other than being geographically massive, Russia was something of a basket case: Yet it was still capable of beating Japan, which wasn’t far into its program of increasing its military and industrial power. It would be two more decades before Japan was able to prevail — barely — over its much larger neighbor in the Russo-Japanese War. The attack on Nicholas in 1891 was thus a crisis of such magnitude that Emperor Meiji himself immediately boarded an overnight train to be in Kyoto where the prince was resting at the Imperial palace before moving to the safety of a Russian warship.

Tsuda’s assault was also a national embarrassment. Japanese sent thousands of telegrams to the prince. A seamstress committed suicide in front of the Kyoto prefectural government building in contrition and the village of Kaneyama in Yamagata Prefecture prohibited people from using the names Tsuda or Sanzo.

As for Nicholas’ assailant, he had been captured alive and it became a matter of national importance that he be put on trial, convicted and executed with all due haste. Japan’s still fragile government feared that anything less might fail to assuage Russia and result in a disastrous war of retaliation or demands for massive financial compensation.

In this respect the incident came at a particularly tricky time. Japan’s new Constitution had only come into effect the previous year, as had the law organizing the courts under it. Japan’s first “modern” (i.e., European-modeled) penal code had a slightly older provenance, dating back to 1880.

Troublesome technicalities

Conveniently, the code contained an article mandating the death penalty for anyone who harmed or even attempted to harm members of the Imperial family. Inconveniently, it clearly only applied to the Japanese Imperial family. Attempts to kill anyone else were only punishable by a maximum of imprisonment with labor for an undefined term.

There was a jurisdictional difference, too. The French-modeled Supreme Court of Judicature — the highest court under the Meiji Constitution — had first and final jurisdiction over trials involving crimes against members of the Imperial family. Lesser offenses were tried through the local courts with appeals to higher courts.

The Meiji oligarchs quickly set about trying to ensure the right interpretation of law would be applied by the appropriate court to achieve the correct result: Tsuda’s prompt conviction and execution. The day after the incident Kojima Korekata, chief judge of the Supreme Court of Judicature, had a meeting with Prime Minister Matsukata Masayoshi and other members of his Cabinet, which had been formed just a few days earlier. Kojima was asked his views on the case and encouraged to accept that Tsuda could be prosecuted for attacking a member of “an” imperial family, since the penal code didn’t clearly limit its applicability to the Japanese monarchy.

Kojima demurred: The language of the statute clearly indicated it applied only to “royals” without references to their “Japanese-ness” — such references had, in fact, been presented in the draft penal code but removed on the grounds they were redundant. Cabinet members persisted with the type of arguments autocrats always use when the law is inconvenient: “Yes, the law is the law, but it won’t mean much if the country is destroyed because we followed it.”

The next day, Kojima gathered the other judges of his court to discuss the applicability of the penal code to Tsuda’s case. They all agreed with his view that it was impossible to interpret it so as to apply the more severe punishments to attacks on non-Japanese royalty.

This was not the end of the story. Over the next two weeks a bitter struggle ensued between the executive branch and the judiciary. Kojima was summoned again by the prime minister and asked to cooperate in ensuring Tsuda’s trial was handled the desired way. Kojima resisted, pointing out that insofar as he would not be on the panel of seven judges that would actually conduct the trial, he had no authority to interfere with its conduct. Moreover, he had conducted a survey of the criminal law of Western nations and found no instances where an interpretation such as that demanded by the prime minister were possible.

Matsukata changed his tack, ordering the minister of justice (whose ministry had administrative jurisdiction over the courts) to convince at least some of the judges who preside over the trial to do the right thing. Several wavered, but the rampant factionalism of the day may have had an impact. The political spoils of the Meiji Restoration were generally shared by a coalition of leaders oligarchs from the three feudal domains principally responsible for engineering it: Choshu (Yamaguchi), Satsuma (Kagoshima) and Tosa (Kochi). Key government posts were monopolized by people from these regions well into the 20th century.

Backroom negotiations

However, the judicial system may not have been regarded as important, with posts held by people from other parts of Japan. Kojima himself was born into a samurai family from the domain of Iyo in what is now Ehime Prefecture. Similarly, of the seven judges on the panel that would try Tsuda, only one was from Satsuma, the rest from domains outside those of the ruling cabal.

These judges were subject to intense advocacy about how they should rule, with Kojima on one side and much of the government on the other. The government’s arguments in favor of bending the law so Tsuda would die were simple — national survival was at stake. Kojima’s arguments against were more nuanced, sometimes wandering into the sphere of foreign policy: The legitimacy of the nation’s nascent judiciary would be irrevocably harmed, it would make Japan appear weak to foreign nations and it would insult the Emperor to elevate other monarchs to his level in applying the law.

Unhindered by the uncertainty over the applicable law, the procurator general (the nation’s top prosecutor) notified the Otsu District Court that Tsuda would be prosecuted for attempting to harm a royal and tried in the Supreme Court of Judicature. The Otsu court duly closed down its arraignment proceedings against Tsuda on the grounds it lacked jurisdiction.

Because Tsuda had sustained injuries such that he was unable to travel to Tokyo, the seven judges of the Supreme Court of Judicature traveled to Otsu to try him there. The trial was held on May 27, just two weeks after the attack. The lightning speed with which it proceeded was understandable, though it helped that Tsuda freely admitted to everything and had been planning to commit suicide after he murdered Nicholas anyway.

The courtroom in Otsu was cramped, not being designed for such weighty adjudications. The trial was closed to the public in any case, and Japan at this point in time had no jury.

Tsuda was questioned by the judges and prosecutors and defense counsel argued long and inconclusively over which provision of the penal code should apply. Nonetheless, the court was able to render its judgment the same day: Tsuda would be imprisoned indefinitely. According to the court, for purposes of the penal code, Nicholas, the future last czar, was the same as everyone else; the punishments the prosecutors sought were not available.

Although the court spared his life, Tsuda obligingly died of pneumonia in prison a few months later. The following year, Kojima was forced to resign in disgrace after he and several of the judges who heard the case were disciplined for having been found gambling with geiko in a high-class ryōtei (restaurant) — institutional grudges persist in Japan. For his part, Nicholas went back to Russia and succeeded to the throne in 1894.

The Otsu incident is regarded as one of the high points in the history of Japan’s modern judiciary, an instance of a court deflecting government pressure to decide a certain way in the name of political convenience. Whether things have improved much since then is sometimes debatable. Personnel exchanges between the courts and other branches of government still render the supposedly constitutional “separation of powers” a questionable thing. In 2008, research into U.S. diplomatic archives revealed that while hearing a 1959 case involving the constitutionality of U.S. bases in Japan, the chief judge of Japan’s Supreme Court was giving regular briefings to the U.S. ambassador. What other discussions could be taking place behind closed doors even today?

Colin P.A. Jones is a professor at Doshisha Law School in Kyoto and primary author of “The Japanese Legal System” (West Academic Publishing, co-authored with Frank Ravitch). The views expressed are those of the author alone.