Viscount Enomotto, who appeared to resent somewhat the excessive interference of the Privy Council with a draft to which he had already signified the assent of his own Department, readily agreed to restore the original text of Articles VI and XI, which he informed me the Privy Council had authorized him to do if he should think it necessary.
Having given way on these two points, his Excellency trusted no objection would be raised to the remaining emendations of the Privy Council, consisting of additions to the list of crimes and offences in Article II, of one or two purely verbal changes, and of a slight correction of the text of Article I, bringing it into agreement with the prevailing practice of surrendering fugitives, not to the "authorities" of the country claiming the surrender, but to the person, usually a police officer, designated to take the fugitive into custody, and convey him to the place where his crime or offence is to be judged.
After some further discussion, Viscount Enomotto again signified to me, through Mr. Kurino, Chief of the Political Section of the Japanese Foreign Office, his full acceptance of my emendations, and the draft herewith inclosed would have been forwarded to your Lordship's Department on the 9th August, as the form in which it had finally commended itself to the Japanese Government, but for the intervening change of Ministry, which brought to the front a set of Japanese statesmen determined to stretch to the utmost their own interpretation of the Treaties.
In the special matter of the arrest and surrender of fugitive offenders, Mr. Mutsu is an emphatic supporter of the doctrine that exterritoriality in Japan is limited to jurisdiction in respect of offences committed within the country. He and his colleagues hold that in no case can a fugitive from justice taking refuge in Japan from abroad be arrested and held on the warrant of the Court of his own nation established in Japan; that, in the absence of a Treaty of Extradition it is in the interest of Japan to arrest, on a Japanese warrant, and to hold for eventual surrender to the person designated to take charge of him, any such fugitive from justice whose rendition may be fairly claimed by the Diplomatic Representative of his own country; and that, in the case of an American demand for extradition, they are bound by the terms of the American Extradition Treaty of 1886 to insist on what they regard as their full right to arrest, and surrender for trial in America, any fugitive offender whatever, regardless of his nationality and the possible claims of other countries to exercise jurisdiction over him in Japan, against whom a prima facie case has been established in the opinion of the Japanese Ministry of Justice.
Holding strongly to this interpretation of their powers of jurisdiction, the Japanese Cabinet and Privy Council are dissatisfied with an arrangement which seems to shrink from going the lengths of the American Treaty, and in the Memorandum herewith inclosed in copy it is sought to induce Her Majesty's Government to negotiate a Treaty which shall indorse the Japanese contention that the place in which a crime or offence has been committed, and not the nationality of the fugitive from justice, should determine to what Power the fugitive should be surrendered.
The Memorandum may be paraphrased as follows:
"The number of foreigners subject to Japanese jurisdiction is increasing. It has quite recently been swollen by the assumption of jurisdiction over Portuguese subjects, and it is probable that, in future, such non-Treaty foreigners will seek occasionally to evade justice by flight, e.g., to Hongkong or some other British dependency.
"But the draft Rendition Arrangement leaves Japan without the means of obtaining the surrender of such fugitive offenders for trial in Japan.
"An ordinary Extradition Treaty would meet the case, and would redound to the advantage of both countries.
"Again, under the draft Arrangement, to take a specific case, a Chinese subject having defrauded a British firm in Hongkong, and taking refuge in Japan, would escape surrender and punishment, whereas a British subject who had defrauded a Chinese subject in Hongkong and escaped to Japan would be liable to surrender and conveyance to Hongkong for trial.
"This is an unfair discrimination against British subjects.
"But the real objection of Her Majesty's Government to a comprehensive Treaty is understood to arise out of their reluctance to admit the principle that Japan has the right to surrender a Treaty foreigner to any third Power. It is hoped, however, that Her Majesty's Government will see their way to conceding what Japan believes to be a right inherent in her sovereignty, and unaffected by the Treaties.
"There is no danger that British subjects will ever be surrendered by Japan to a third Power except on charges sanctioned by the existing Extradition Treaties between Great Britain and other nations.
"Her Majesty's Government may therefore recognize, in perfect safety, the principle for which Japan contends.
"If, however, their objections should prove insurmountable, the Japanese Government will not refuse, seeing the importance of a settlement, to continue the negotiation on the original basis."
It is this final concession which has made it necessary for me to go into the details of the negotiation with Viscount Enomotto, which may still have to be proceeded with from the point it had reached when that Minister left office.
I have strongly and repeatedly expressed to Mr. Mutsu my belief that Her Majesty's Government will be deterred by the fear of raising awkward complications with other Treaty Powers from concluding a Treaty with Japan on the desired basis, but Mr. Mutsu has insisted on making an attempt in that direction, and I can only place his wishes before your Lordship.
His Excellency informs me that Viscount Kawase is instructed to support his arguments in favour of a comprehensive Treaty, and to endeavour to secure Mr. Fraser's co-operation.
A copy of my reply to Mr. Mutsu is likewise inclosed herewith.
I have, &c. (Signed) M. DE BUNSEN.
Inclosure 1 in No. 1.
Draft Rendition Agreement, with Comments.
THE Undersigned having, in pursuance of instructions received from Her Majesty's Government, discussed with his Excellency the Minister for Foreign Affairs the conditions of an arrangement by exchange of notes for the mutual surrender by the Governments of Great Britain and Japan of fugitive offenders, being the subjects respectively of the two countries, has the honour to submit in writing the stipulations of the arrangement which, having been approved by the two Governments, shall regulate the question in future.
1. Any person, being a subject of Great Britain, who, being accused or convicted in the dominions or within the jurisdiction of Her Britannic Majesty of any of the crimes or offences specified in clause 2, shall be found within the territory of Japan, shall, under the circumstances and conditions hereinafter stipulated, be arrested and delivered up by the Japanese authorities for rendition to the place where the crime or offence is justiciable; and similarly any person, being a subject of Japan, who, being accused or convicted in the dominions or within the jurisdiction of His Imperial Majesty of any of the crimes or offences specified in clause 2, shall be found within the territory of Great Britain, or in any of the Colonies or possessions of Her Britannic Majesty, shall, under the circumstances and conditions hereinafter stipulated, be arrested and delivered up by the British authorities for rendition to the place where the crime or offence is justiciable.
[380]
Added at request of Japanese Foreign Office, to cover the ground of Article IX,
23
After Japanese authorities the words "to the British authorities" are omitted, because, according to the general practice and to the form of Japanese warrants of surrender, fugitive offenders are surrendered not to the authorities representing the fugitive's country, but to the person duly authorized to receive the fugitive—generally a police officer from the place in which the crime or offence was committed.
* Added to cover the ground of Article
After "British authorities" the words "to the Japanese authorities" are omitted for reasons given above.
IX.
23
"For rendition to the place," &c., substituted for "for rendition to Japan," to cover Article IX.
B
317
2
existing at the present time, and under which two British fugitive offenders, Campos and Woodin, had been duly delivered up to justice.
Viscount Enomotto, who appeared to resent somewhat the excessive interference of the Privy Council with a draft to which he had already signified the assent of his own Department, readily agreed to restore the original text of Articles VI and XI, which he informed me the Privy Council had authorized him to do if he should think it necessary.
Having given way on these two points, his Excellency trusted no objection would be raised to the remaining emendations of the Privy Council, consisting of additions to the list of crimes and offerices in Article II, of one or two purely verbal changes, and of a slight correction of the text of Article I, bringing it into agreement with the prevailing practice of surrendering fugitives, not to the "authorities" of the country claiming the surrender, but to the person, usually a police officer, designated to take the fugitive into custody, and convey him to the place where his crime or offence is to be judged.
After some further discussion, Viscount Enomotto again signified to me, through Mr. Kurino, Chief of the Political Section of the Japanese Foreign Office, his full acceptance of my emendations, and the draft herewith inclosed would have been forwarded to your Lordship's Department on the 9th August, as the form in which it had finally commended itself to the Japanese Government, but for the intervening change of Ministry, which brought to the front à set of Japanese statesmen determined to stretch to the utmost their own interpretation of the Treaties.
In the special matter of the arrest and surrender of fugitive offenders, Mr. Mutsu is an emphatic supporter of the doctrine that exterritoriality in Japan is limited to jurisdiction in respect of offences committed within the country. He and his colleagues hold that in no case can a fugitive from justice taking refuge in Japan from abroad be arrested and held on the warrant of the Court of his own nation established in Japan; that, in the absence of a Treaty of Extradition it is in the interest of Japan to arrest, on a Japanese warrant, and to hold for eventual surrender to the person designated to take charge of him, any such fugitive from justice whose rendition may be fairly claimed by the Diplomatic Representa- tive of his own country; and that, in the case of an American demand for extradition, they are bound by the terms of the American Extradition Treaty of 1886 to insist on what they regard as their full right to arrest, and surrender for trial in America, any fugitive offender whatever, regardless of his nationality and the possible claims of other countries to exercise jurisdiction over him in Japan, against whom a prima facie case has been established in the opinion of the Japanese Ministry of Justice.
Holding strongly to this interpretation of their powers of jurisdiction, the Japanese Cabinet and Privy Council are dissatisfied with an arrangement which seems to shrink from going the lengths of the American Treaty, and in the Memorandum horewith inclosed in copy it is sought to induce Her Majesty's Government to negotiate a Treaty which shall indorse the Japanese contention that the place in which a crime or offence has been committed, and not the nationality of the fugitive from justice, should determine to what Power the fugitive should be surrendered.
The Memorandum may be paraphrased as follows :→→→
"The number of foreigners subject to Japanese jurisdiction is increasing. It has quite recently been swollen by the assumption of jurisdiction over Portuguese subjects, and it is probable that, in future, such non-Treaty foreigners will seek occasionally to evade justice by flight, e.g., to Hongkong or some other British dependency.
"But the draft Rendition Arrangement leaves Japan without the means of obtaining the surrender of such fugitive offenders for trial in Japan.
"An ordinary Extradition Treaty would meet the case, and would redound to the advantage of both countries.
"Again, under the draft Arrangement, to take a specific case, a Chinese subject having defrauded a British firm in Hongkong, and taking refuge in Japan, would escape surrender and punishment, whereas a British subject who had defrauded a Chinese subject in Hongkong and escaped to Japan would be liable to surrender and conveyance to Hong- kong for trial.
"This is an unfair discrimination against British subjects.
<
'But the real objection of Her Majesty's Government to a comprehensive Treaty is understood to arise out of their reluctance to admit the principle that Japan has the right to surrender a Treaty foreigner to any third Power. It is hoped, however, that Her Majesty's Government will see their way to conceding what Japan believes to be a right inherent in ber sovereignty, and unaffected by the Treaties.
"There is no danger that British subjects will ever be surrendered by Japan to a third Power except on charges sanctioned by the existing Extradition Treaties between Great Britain and other nations,
"Her Majesty's Government may therefore recognize, in perfect safety, the principle for which Japan contends.
"If, however, their objections should prove insurmountable, the Japanese Govern- Went will not refuse, seeing the importance of a settlement, to continue the negotiation on the original basis.”
It is this final concession which has made It necessary for me to go into the details of the negotiation with Viscount Enomotto, which may still have to be proceeded with from the point it had reached when that Minister left office.
I have strongly and repeatedly expressed to Mr. Mutsu my belief that Her Majesty's Government will be deterred by the fear of raising awkward complications with other Treaty Powers from concluding a Treaty with Japan on the desired basis, but Mr. Mutsu has insisted on making an attempt in that direction, and I can only place his wishes before your Lordship.
His Excellency informs me that Viscount Kawase is instructed to support his arguments in favour of a comprehensive Treaty, and to endeavour to secure Mr. Fraser's co-operation.
A copy of my reply to Mr. Mutsu is likewise inclosed herewith.
I have, &c. (Signed) M. DE BUNSEN.
Inclosure 1 in No. 1.
Draft Rendition Agreement, with Comments.
THE Undersigned having, in pursuance of instructions received from Her Majesty's Government, discussed with his Excellency the Minister for Foreign Affairs the condi- tions of an arrangement by exchange of notes for the mutual surrender by the Governments of Great Britain and Japan of fugitive offenders, being the subjects respectively of the two countries, has the honour to submit in writing the stipulations of the arrangement which, having been approved by the two Governments, shall regulate the question in future.
1. Any person, being a subject of Great Britain, who, being accused or convicted in the dominions or within the jurisdiction of Her Britannic Majesty of any of the crimes or offences specified in clause 2, shall be found within the territory of Japan, shall, under the circumstances and conditions hereinafter stipulated, be arrested and de- livered up by the Japanese authorities for rendition to the place where the crime or offence is justiciable; and similarly any person, being a subject of Japan, who, being accused or convicted in the dominions or within the jurisdiction* of His Imperial Majesty of any of the crimes or offences specified in clause 2, shall be found within the territory of Great Britain, or in any of the Colonies or possessions of Her Britannic Majesty, shall, under the circumstances and conditions hereinafter stipulated, be arrested and delivered up by the British authorities for rendition to the place where the crime or offence is justiciable.
[380]
Added at request of Japanese Foreign Office, to cover the ground of Article IX,
3
23
After Japanese authorities the words "to the British authorities are omitted, because, according to the general practice and to the form of Japanese warrants of sur- render, fugitive offenders are surrendered not to the authorities representing the fugitive's country, but to the person duly authorized to receive the fugitive-generally a police officer from the place in which the crime or offence was committed.
* Added to cover the ground of Article
After "British authorities" the words "to the Japanese authorities are omitted for reasons given above.
IX.
23
"For rendition to the place," &c., substi- tuted for "for rendition to Japan," to cover Article IX.
B
317
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