fugitive offenders of British nationality whose surrender is applied for by their own authorities in Japan, the position may be misconstrued to our prejudice by the foreign journalists who are retained by Japan to espouse her cause against foreign Powers, and more especially against Great Britain.
J. H. GUBBINS,
London, December 5, 1892.
Minutes.
(Signed)
These arguments seem to strengthen the view that we should have a Treaty. 1. It seems very unfair that whilst Japan is ready in her own way to extradite our criminals, we should refuse to give up hers, under proper safeguards. We cannot now give them up without a regular arrangement containing the restrictions of the Extradition Act.
2. I do not see how the desire of Japan to regulate the matter by Treaty can fairly be considered an encroachment; it is certainly an advance, but one which seems to me, subject to Mr. Fraser's opinion, to be of a conciliatory and enlightened character.
H. G. B.
I do not think that Mr. Gubbins' conclusions, though quite just in themselves, and perfectly natural as coming from a person of his special experience, need be held to militate against the proposed Convention.
December 8, 1892.
No. 6.
Minutes.
H. FRASER,
I HAVE kept these papers (which involve to my mind a very serious and important question of principle) until now in the hope that I might find an opportunity of going thoroughly into them and of writing a Memorandum which might deal with the subject in some detail.
The amount of current and pressing work, however, makes this chance become daily more remote, and as I hear that Mr. Fraser is becoming impatient, it will, I think, be best that I should now send these papers on with such few general observations as I can offer, without any further and more careful consideration.
I still entertain the objection I have already expressed to the extension of Extradition Arrangements and machinery, which are only meant to be applied between this country and civilized nations, to countries in which Her Majesty possesses extra-territorial jurisdiction. The existence of such extra-territorial jurisdiction is incompatible with the full recognition of the country in which Her Majesty exercises it as a civilized nation either by Her Majesty's Government or by the Governments of other European Powers, and the continuance of a system of extra-territorial jurisdiction is really only to be justified on the same ground as that upon which it was originally assumed, viz., that the code or system of law and its methods of administration prevailing in the country is unsuited to European ideas of justice and is not such as Her Majesty can permit her subjects to be justiciable under.*
As far as Japan is concerned it may doubtless be said that she is now practically a civilized country. I agree; and it is precisely for that reason, as it seems to me, that we have already agreed, and that other Great Powers have already agreed, that so soon as Japan shall have adopted a legal system based broadly on the general principles which are common to the legal systems of civilization, we will surrender our extra-territorial jurisdiction and allow British subjects to become solely justiciable by the Japanese national Tribunals.
When this comes to pass, then, as it seems to me, will arrive the natural moment for concluding an Extradition Treaty with Japan.
That it is likely to come to pass shortly is the more reason for not lightly creating an inconvenient precedent to which Turkey, China, and other Eastern nations can appeal if we grant to Japan, under present circumstances, that which they—although technically still on a similar footing with Japan—do not possess.
Sir H. Bergne says that the principle against which I am protesting has been already conceded in the case of China. It appears that informal negotiations, with the details of which I am not familiar, did take place between this Office and the Chinese Legation. My objections, if and so far as they are sound ones, apply with equal force to these negotiations and would certainly have been stated if the matter had earlier come to my notice. I think it not unlikely, moreover, that if and when the draft Treaty had come before either the Law Officers or the Lord Chancellor (which it never did) they might possibly have raised objections of a similar kind. I should certainly have thought that it would have been prudent to consult them—and thus to make sure that the ground was clear of legal obstacles—before commencing negotiations; and I think that before we proceed further with the Japan negotiations it will be wise to take the present Law Officers' opinion.
I had an opportunity of discussing this question in the abstract (without reference to the particular case of Japan) with Mr. W. E. Hall a little time ago and I am confirmed in the view I had already expressed by finding that he entirely concurred in it. His opinion was of course given practically off hand, but I know no one to whose view on such a matter I should attach greater weight.
I have little doubt that the Legal Advisers of the Japanese Government at the time of the Campos case (who they may have been I have no idea) attached great importance to the considerations to which I have adverted. The Japanese Government were then most persistent in their endeavours to get us to admit that the fugitive offender was handed over by them to us in extradition and not returnable by mere process of English Municipal Law under the Fugitive Offenders Act.
Their object seems to me to have been sufficiently plain, as will be seen from my Minutes on that case as soon as I saw the papers, which was at a very late stage of the affair, however.
These Minutes were naturally quite inconsistent with the idea that we had admitted any such principle as Sir H. Bergne suggests we did by our negotiations with China. I was at the time quite unaware that we had even informally discussed the matter with China; the negotiations were never mentioned in connexion with the discussion of the Campos case, and it is impossible for me to know of these things unless I am told of them.
There is one other consideration—entirely on the practical aspect of the affair—which it may be worth while just to mention.
What advantage shall we get by concluding such an arrangement with Japan under present circumstances? So far as I can see, the only result will be that Japan will be able to demand in extradition from Her Majesty's dominions a Japanese criminal fugitive from Japan. This will be the total result, unless, and until the extra-territorial jurisdiction now exercised by the various Great Powers in Japan have been surrendered. Moreover, even in the solitary case mentioned, the extradition will be subject to all the various safeguards specified in our Extradition Act, and I presume also that in all offences which are capital by the present law of Japan, we shall have to stipulate that the criminal must not be allowed the privilege of "Hari-Kari," a proceeding which according to our ideas constitutes a crime in itself, namely, the crime of Felo de Se.
I don't know how often such a unilateral Convention would be utilized, but I should imagine very seldom indeed. I cannot help thinking that it is for the admission of the principle that the Japanese are primarily contending; not for any practical benefit in the actual administration of criminal justice which they think is likely to result from its concession.
As far as I am aware, the only actual precedent for an extradition Convention of the kind now suggested is to be found in Article IV of the Treaty between Great Britain [Tonga], which was signed on the 29th November, 1879, and which was subsequently made subject to the restrictions contained in our Extradition Acts by a Protocol dated the 3rd July, 1882.
The Treaty is in many respects a very peculiar one, and I doubt whether this solitary Article embedded in its midst—the genesis of which I don't know—affords very satisfactory or firm ground for further and more extended arrangements with China, Japan, Turkey, or Persia.
I have confined myself entirely in these observations to adducing reasons contra to the present proposal; but I do not doubt that there are many reasons pro which Sir H. Bergne will be able to state, and which may possibly outweigh the objections.
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