by Dr. Bill Mihalopoulos

My recent article “Liberty, the Maria Luz Incident and the liminal legal status of Chinese indentured labourers and Japanese licensed prostitutes” in Past & Present No. 268 (August 2025) focused on the celebrated Maria Luz Incident (1872), which involved Chinese labourers on board a Peruvian ship anchored in the Japanese waters of Yokohama. The resulting 1872 Japanese court ruling rendered null-and-void the service contracts that bound those labourers to eight years of service. And the ensuing release of Japanese licensed prostitutes from their ten-year indenture contracts was an unforeseen consequence of that ruling.

The prevailing academic opinion is that the legal ruling of the Maria Luz Incident was the seminal moment when rights talk was introduced to Japan. The Japanese ad hoc tribunal, it is said, freed the Chinese labourers from indentured servitude in Peru and for the first time (temporarily) emancipated Japanese women from sexual servitude by attaching the metaphor of slavery to the domestic issue of licensed prostitution. What has captivated scholarship on the Maria Luz case is what the ruling signified for Japan’s modernization makeover. Was this the watershed moment when modern Japan invested in notions of personal rights, justice, and equity?

Image from “Yokohama kōeki seiyōjin nimotsu unsō no zu/Western traders loading cargo in Yokohama” by Utagawa, Sadahide, 1807-1873, prints published 1861. Images via Library of Congress: https://www.loc.gov/pictures/item/2002700230/

“Liberty, the Maria Luz Incident and the liminal legal status of Chinese indentured labourers and Japanese licensed prostitutes” departs from existing scholarship in a subtle but fundamental way. I chose a different route by looking at the “prehistory” of the Maria Luz Incident. Namely, the difficulties mid-nineteenth century free labour ideology faced in differentiating the line between facilitation and coercion when it came to indentured labour migration. The article investigated the contingent processes and complex chain of specific events and conditions that crystallized around the Maria Luz Incident:

• The abolition of slavery in British possessions
• The creation of mixed commissions to adjudicate the legality of slave ship captures
• The normalization of indentured labour as ‘free labour’ in the British social imaginary by reducing the freedom offered to South Asian and Chinese labourers to the choice to enter service as a wage labourer
• A Britain that saw itself as the embodiment of modernity and civilization, which had abolished slavery in its territories and was duty bound to carry that message around the world
• And the actions of British diplomatic and legal representatives in East Asia who saw the events unfolding in the Yokohama foreign settlement as an opportunity to disrupt the Macao trade in Chinese labour because of the arbitrary use of force and physical restraint during transit from Macao to Cuba and Peru.

The Maria Luz ruling was not predicated on any abstract ideas of freedom and human rights. The ad hoc tribunal was convened to clarify who owned the labour of the ship’s human cargo, and to determine whether the captain’s use of force and physical restraint to discipline the indentured workers in transit was justified. Moreover, the judgement of the Japanese court was recognized as legally valid because all foreign and domestic officials involved in facilitating the hearing accepted as uncontested fact that the Japanese legal system was compatible with the principles of British common law. This was eight years prior to the Meiji Criminal Code (1880) and twenty-six years before the Meiji Civil Code (1898) were enacted to render Japan’s legal framework compatible with Western legal systems!

The release of Japanese licensed prostitutes from their contracts in 1872 was an unintended consequence. It was a course of action taken by the Japanese government to make that legal fiction that Japanese law was compatible with British common law into reality. The reforms in Japanese licensed prostitution carried out by the Japanese government in 1873 grafted the notion of consent used in British common law for indentured labour contracts onto the procedures of existing nenki hōkō ((limited time debt bondage) service employment contracts. The result was that the validity of contracts between women and brothel owners began and ended with the signed contract between both parties based on the British common law principle of law as the effect of a transaction. The legal principle that recognized contractual transactions as voluntary acts that produce specific legal outcomes, which the law then recognized and enforced.

Image from “Yokohama kōeki seiyōjin nimotsu unsō no zu/Western traders loading cargo in Yokohama” by Utagawa, Sadahide, 1807-1873, prints published 1861. Images via Library of Congress: https://www.loc.gov/pictures/item/2002700230/

The next stage of my research, if my status as independent researcher allows, is to examine the interplay of new forms of legal and religious knowledge introduced to Japan between 1890 and 1905 by Japanese evangelical Christian associations and the emergence of new demands for the abolition of licensed prostitution. These new forms of legal and religious knowledge, it is argued, enabled Christian abolitionist activists to challenge the legality of licensed prostitution by claiming it was a chattel slavery because the contracts between licensed prostitutes and brothel owners robbed the women of their right to free cessation (jiyū haigyō).

The working hypothesis is that the line between facilitation and coercion became especially blurred over the regulation of licensed prostitution in prewar Japan because of the coexistence of two incongruous legal approaches that nevertheless shared the same legal lexicon and common law provenance.

Japanese interpretation of consent in contract followed British common law prescript that limited freedom to the specific and narrow understanding as the choice to enter service. This utilitarian legal approach treated licensed prostitution as a technical matter in terms of the right balance between control and freedom, focusing on benefits over harm. The freedom for females to enter service contracts with brothel owners was deemed a necessary liberty for individual women who had no other recourse in dealing with the precariousness that came with insecure employment and deteriorating social conditions.

Japanese Protestant abolitionists advocated a postbellum United States legal approach that perceived the fundamental function of law and legitimate government as protecting the sovereign and inalienable property rights of individuals. This was a rights-based approach that defined contract freedom as the foundation of all rights and an expansion of choice. This rights-based legal approach challenged contracts drawn on the precedent set by the Maria Luz ruling on the grounds that the contracts violated the natural right of women to quit their employment at will, and thus were nothing less than a form of sexual servitude. Japanese evangelical Christians championed this legal approach because it resonated with and amplified the immense spiritual and social importance they placed on free will, the importance of personal decisions in shaping one’s spiritual life, and the public implications of private choices when it came to liberating Japanese society from the power and bondage of sin.

Lastly, the set of questions pertaining to Japanese prewar licensed prostitution system and what constituted the dividing line between consent and coercion, freedom and slavery, remain live even today. The examples below indicate how they frame and fan the fires of the sexual/slavery military ‘comfort women’ controversy in the twenty-first century.

Example One

On 31 January 2007, Californian Congressman Mike Honda, a third-generation Japanese American, introduced Resolution 121/IH to the US House of Representatives. The bill called on Japan to apologize for forcing women into wartime sexual slavery and to “formally acknowledge, apologize, and accept historical responsibility . . . for its Imperial Armed Force’s coercion of young women into sexual slavery, known to the world as ‘comfort women,’ during its colonial and wartime occupation of Asia and the Pacific Islands . . . .” The House passed an amended bill on 30 July 2007.1

Resolution 121/IH drafted by Honda reformulates the prewar Japanese evangelical rights-based approach to address the sexual slavery/military “comfort women.” While also emphasising the public implications of private choices when it came to liberating Japanese society from the power and bondage of past sin.

Example Two

The response of Japanese politicians to the resolution as it made way through the various House committees was defiant. None more so than the comments made by Nakayama Nariaki, March 1, 2007. A former education minister from September 2004 to October 2005, Nakayama was the leader of a 130-member-strong clique within the ruling Liberal Democratic Party that successfully erased all mention of the comfort women from junior-high school history texts authorized by the Education Ministry. Nakayama asserted that the women who worked the comfort stations were not coerced but were “professional prostitutes” who “voluntarily” entered a service employment contract that established an employer–employee relationship between the women and the “private contractors to provide a basic service.” Nakayama compared the “running of the [military] brothels to college cafeterias run by private companies, who recruit their own staff, procure foodstuffs and set prices.”2 Thus the private contractors, not the Japanese government, bore culpability for alleged abuse at that occurred in the war zone field brothels during the Asian-Pacific War.

In his response to Resolution 121/IH, Nakayama utilises the very specific and narrow understanding of consent and choice adapted by Japanese law since 1873 from British common law prescripts the defined freedom as the liberty to enter service.

Footnotes

^{1Kinue Tokudome, “The Japanese Apology of the ‘Comfort Women’ Cannot Be Considered Official: Interview with Congressman Michael Honda,” Japan Focus, posted May 31, 2007. http://japanfocus.org/products/topdf/2438}

^{2Mike Honda, “Comfort Women,” Congressional Record Volume 153, Number 38 (Tuesday, March 6, 2007), Extensions of Remarks, Pages E465–E466, https://www.govinfo.gov/content/pkg/CREC-2007-03-06/html/CREC-2007-03-06-pt1-PgE465-4.htm}

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