6
7
319
Inclosure 2 in No. 1.
Memorandum.
THE constantly increasing number of foreigners in Japan who are subject to the exclusive jurisdiction of Japanese Courts, and the greater probability that in case of crimes, those foreigners will, because of alienage, seek asylums abroad, make it desirable, in the interest of the due administration of justice, that the proposed extraditional arrangement, which has for some time past been under discussion between the Department of Foreign Affairs and Her Britannic Majesty's Legation, should be given a wider application than has hitherto been contemplated.
The Imperial Government regret that it should be necessary, at the advanced stage at which this verbal note finds the negotiations, to seek for modifications of considerable moment, but the more important reasons which give rise to that necessity have actually come into existence since the preliminary negotiations were brought to a conclusion. The delay, however, which may be occasioned by thus reopening the question will, it is to be hoped, bring about a more complete, and consequently a more satisfactory, arrangement than has hitherto been contemplated.
The Imperial Government are avowed advocates of the principle of extradition in its broadest and most liberal sense. While they are consequently always prepared to discharge, in all proper cases, the debt which they acknowledge as due to justice in the matter of the rendition of criminals, they are naturally anxious, in turn, to secure the surrender of fugitive offenders escaping from Japan. But it must be acknowledged that they are more especially anxious to recover those criminals, who, being subject to their exclusive jurisdiction, are offenders against the laws of Japan. Nor, in this particular, do they find it possible to make any distinction between subjects and those foreigners who are not under the jurisdiction of their own national authorities.
The difficulty, however, of making jurisdiction, and not crimes, the line of demarcation, in the matter of extradition, between those alien offenders who are to be surrendered and those who are to be accorded asylum, at once suggests the alternative of giving the contemplated extraditional scheme the scope and form of an ordinary Extradition Treaty, and it is in this sense that the Imperial Government wish to amplify the presently proposed arrangement; more especially as they are unable to perceive any serious objection to such an amplification. It seems to them, on the contrary, that the change would inure to the positive advantage of both Powers, and certainly not less to Great Britain than Japan.
Under the depending project, the subjects of one Power within the dominions of the other would be liable to the process of extradition for offences committed against persons other than subjects of the demanding State, while the persons thus afforded a remedy for wrongs suffered, would, if guilty of offences against such subjects, be entitled to asylum.
The possibility of such an unjust and unnecessary discrimination against subjects in a direction in which subjects should enjoy at least an equal measure of protection and relief with aliens, affords a powerful if not a conclusive argument in support of the more comprehensive scheme.
It has, however, been intimated that the conclusion of an Extradition Treaty would create an inconvenient precedent, since it would be tantamount to an admission of the right of Japan to surrender British subjects to the pursuing justice of a third Power.
It is solely upon the assumption that Japan's ancient Treaties have neither deprived her of her rights nor relieved her of her duties in connection with extradition, that the Imperial Government have hitherto felt called upon to intervene. And even if it be admitted that the consequences which have been suggested would flow from the conclusion of a full and complete Extradition Treaty between Japan and Great Britain, the Imperial Government are still unwilling to believe that the reluctance of Her Britannic Majesty's Government is predicated upon that circumstance alone. Should such, however, prove to be the case, the Imperial Government are not without hope of being able to remove the apprehensions of the British Government, since they are well satisfied that those apprehensions spring from an anxious desire to promote, rather than to impede, the course of justice.
The existing laws of Japan regulating extradition offer a guarantee of fact against unjust or unusual rendition. The certainty that Japan would carefully adhere to well-recognized principles in any compact she might conclude on the subject of the mutual surrender of criminals also affords ample protection against extradition for sinister purposes. Finally, it is extremely unlikely that Japan would contract extraditional engagements with Powers other than those with which she has Conventional relations, with nearly all those Powers Great Britain has already concluded Extradition Treaties. The territorial distribution of British population, geographical situation, and means of communication make it very improbable that Japan would under any circumstances be called upon to surrender British fugitives from justice to more than three or four of those Treaty Powers; with each one of those Powers, with the possible exception of Hawaii, Great Britain has entered into Extradition Treaties, and in more than one of those compacts British subjects even are made liable to surrender by Great Britain. These circumstances united give every assurance that both in the matter of the demands for surrender, and in the subsequent trials, the rights and interests of British subjects will in every instance be fully safeguarded.
If, notwithstanding these important considerations, Her Britannic Majesty's Government still find it impossible to accede to the wishes of the Imperial Government respecting the conclusion of an Extradition Treaty, His Imperial Majesty's Government, perceiving as they do the urgent necessity of some arrangement on the subject, and above all not wishing by their insistence to endanger the final adjustment of the important question, will yield their preference in the matter. But they hope that Her Britannic Majesty's Government will experience no difficulty in consenting to the enlargement of the depending scheme so as to provide for the rendition to Japan of all fugitive offenders, excepting British subjects, found in Her Britannic Majesty's dominions who are accused or convicted of extradition crimes within the dominions of His Imperial Majesty.
The Imperial Government advance this proposition with all the more confidence of a successful issue since it has not escaped their notice that Her Britannic Majesty's Government have already, in several of their Extradition Treaties, consented, in the interests of justice, to depart from the principles of exact reciprocity.
Department of Foreign Affairs, Tókið,
M. le Ministre,
October 4, 1892,
Inclosure 3 in No. 1.
Mr. de Bunsen to Mr. Mutsu.
Tokió, October 7, 1892. I HAVE the honour to acknowledge receipt of the Memorandum from your Excellency's Department of the 4th instant informing me of the grounds on which the Imperial Government has been moved to take into further consideration the draft Rendition Arrangement which has met with the concurrence of your Excellency's predecessor in office, and to propose, in its place, the negotiation of a Treaty on a more comprehensive basis, unless Her Majesty's Government should entertain an insuperable objection to such a course, in which case your Excellency is good enough to intimate that the Imperial Government would waive their preference for the wider scheme,
I have lost no time in forwarding a copy of the Memorandum to Her Majesty's Principal Secretary of State for Foreign Affairs, and in placing his Lordship in possession of the general views of the Imperial Government on the subject, as verbally explained to me by your Excellency.
No. 2.
I take, &c. (Signed)
Minute on above Despatch.
M. DE BUNSEN.
AS the result of a consideration of this matter, the following points seem to require examination:-
1. Is it necessary to have any arrangement at all?
2. If it is, would not a regular Extradition Treaty be the safest form?
3. If So, I could prepare a draft.
4. In regard to the surrender of subjects of third States, it seems clear that we ought not to engage to surrender, say, a German, to Japanese justice, since that justice is not applicable to Germans; nor ought the Japanese to engage to surrender Germans to Great Britain.
6
7
319
Inclosure 2 in No. 1.
Memorandum.
THE constantly increasing number of foreigners in Japan who are subject to the exclusive jurisdiction of Japanese Courts, and the greater probability that in case of crimes, those foreigners will, because of alienage, seek asylums abroad, make it desirable, in the interest of the due administration of justice, that the proposed extraditional arrangement, which has for some time past been under discussion between the Department of Foreign Affairs and Her Britannic Majesty's Legation, should be given a wider appli- cation than has hitherto been contemplated.
The Imperial Government regret that it should be necessary, at the advanced stage at which this verbal note finds the negotiations, to seek for modifications of considerable moment, but the more important reasons which give rise to that necessity have actually come into existence since the preliminary negotiations were brought to a conclusion. The delay, however, which may be occasioned by thus reopening the question will, it is to be hoped, bring about a more complete, and consequently a more satisfactory, arrangement than has hitherto been contemplated.
The Imperial Government are avowed advocates of the principle of extradition in its broadest and most liberal sense. While they are consequently always prepared to discharge, in all proper cases, the debt which they acknowledge as due to justice in the matter of the rendition of criminals, they are naturally anxious, in turn, to secure the surrender of fugitive offenders escaping from Japan. But it must be acknowledged that they are more especially anxious to recover those criminals, who, being subject to their exclusive juris. diction, are offenders against the laws of Japan. Nor, in this particular, do they find it possible to make any distinction between subjects and those foreigners who are not under the jurisdiction of their own national authorities.
The difficulty, however, of making jurisdictton, and not crimes, the line of demarca- tion, in the matter of extradition, between those alien offenders who are to be surrendered and those who are to be accorded asylum, at once suggests the alternative of giving the contemplated extraditional scheme the scope and form of an ordinary Extradition Treaty, and it is in this sense that the Imperial Government wish to amplify the presently proposed arrangement; more especially as they are unable to perceive any serious objection to such an amplification. It seems to them, on the contrary, that the change would inure to the positive advantage of both Powers, and certainly not less to Great Britain than Japan.
Under the depending project, the subjects of one Power within the dominions of the other would be liable to the process of extradition for offences committed against persons other than subjects of the demanding State, while the persons thus afforded a remedy for wrongs suffered, would, if guilty of offences against such subjects, be entitled to asylum.
The possibility of such an unjust and unnecessary discrimination against subjects in a direction in which subjects should enjoy at least an equal measure of protection and relief with aliens, affords a powerful if not a conclusive argument in support of the more comprehensive scheme.
It has, however, been intimated that the conclusion of an Extradition Treaty would create an inconvenient precedent, since it would be tantamount to an admission of the right of Japan to surrender British subjects to the pursuing justice of a third Power.
It is solely upon the assumption that Japan's ancient Treaties have neither deprived her of her rights nor relieved her of her duties in connection with extradition, that the Imperial Government have hitherto felt called upon to intervene. And even if it be admitted that the consequences which have been suggested would flow from the conclusion of a full and complete Extradition Treaty between Japan and Great Britain, the Imperial Government are still unwilling to believe that the reluctance of Her Britannic Majesty's Government is predicated upon that circumstance alone. Should such, however, prove to be the case, the Imperial Government are not without hope of being able to remove the apprehensions of the British Government, since they are well satisfied that those apprehensions spring from an anxious desire to promote, rather than to impede, the course of justice.
The existing laws of Japan regulating extradition offer a gnarantee of fact against unjust or unusual rendition. The certainty that Japan would carefully adhere to well recognized principles in any compact she might conclude on the subject of the mutual surrender of criminals also affords ample protection against extradition for sinister
purposes. Finally, it is extremely unlikely that Japan would contract extraditional engagements with Powers other than those with which she has Conventional relations, with nearly all those Powers Great Britain has already concluded Extradition Treaties. The territorial distribution of British population, geographical situation, and means of communication make it very improbable that Japan would under any circumstances be called upon to surrender British fugitives from justice to more than three or four of those Treaty Powers; with each one of those Powers, with the possible exception of Hawaii, Great Britain has entered into Extradition Treatics, and in more than one of those compacts British subjects even are made liable to surrender by Great Britain. These circumstances united give every assurance that both in the matter of the demands for surrender, and in the subsequent trials, the rights and interests of British subjects will iu every instance be fully safeguarded.
If, notwithstanding these important considerations, Her Britannic Majesty's Govern- ment still find it impossible to accede to the wishes of the Imperial Government respecting the conclusion of an Extradition Treaty, His Imperial Majesty's Government, perceiving as they do the urgent necessity of some arrangement on the subject, and above all not wishing by their insistance to endanger the final adjustment of the important question, will yield their preference in the matter. But they hope that Her Britannic Majesty's Government will experience no difficulty in consenting to the enlargement of the depending scheme so as to provide for the rendition to Japan of all fugitive offenders, excepting British subjects, found in Her Britannic Majesty's dominions who are accused or convicted of extradition crimes within the dominions of His Imperial Majesty.
The Imperial Government advance this proposition with all the more confidence of a successful issue since it has not escaped their notice that Her Britannic Majesty's Govern- ment have already, in several of their Extradition Treaties, consented, in the interests of justice, to depart from the principles of exact reciprocity.
Department of Foreign Affairs, Tókið,
M. le Ministre,
October 4, 1892,
Inclosure 3 in No. 1.
Mr. de Bunsen to Mr. Mutsu.
Tokió, October 7, 1892. I HAVE the honour to acknowledge receipt of the Memorandum from your Excel- lency's Department of the 4th instant informing me of the grounds on which the Imperial Government has been moved to take into further consideration the draft Rendition Arrangement which has met with the concurrence of your Excellency's predecessor in office, and to propose, in its place, the negotiation of a Treaty on a more comprehensive basis, unless Her Majesty's Government should entertain an insuperable objection to such a course, in which case your Excellency is good enough to intimate that the Imperial Government would waive their preference for the wider scheme,
I have lost no time in forwarding a copy of the Memorandum to Her Majesty's Principal Secretary of State for Foreign Affairs, and in placing his Lordship in possession of the general views of the Imperial Government on the subject, as verbally explained to me by your Excellency.
No. 2.
I take, &c. (Signed)
Minute on above Despatch.
M. DE BUNSEN.
AS the result of a consideration of this matter, the following points seem to require examination:-
1. Is it necessary to have any arrangement at all?
2. If it is, would not a regular Extradition Treaty be the safest form?
3. If So, I could prepare a draft.
4. In regard to the surrender of subjects of third States, it seems clear that we ought
not to engage to surrender, say, a Gerinan, to Japanese justice, since that justice is not applicable to Germans; nor ought the Japanese to engage to surrender Germans to Great Britain.
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