ARTICLE XVII,
The present Treaty shall come into force ten days after its publication, in conformity with the forms prescribed by the laws of the High Contracting Parties. It may be terminated by either of the High Contracting Parties at any time on giving to the other six months' notice of its intention to do so.
The Treaty shall be ratified, and the ratifications shall be exchanged as soon as possible.
In witness whereof the respective Plenipotentiaries have signed the same, and have affixed thereto the seal of their arms.
No. 4.
Memorandum by Mr. Fraser.
IN the first place, as to "the considerations which seem to make the conclusion of a regular Extradition Treaty with Japan unobjectionable."
I had the honour to explain in an official despatch from Tôkiô in 1889 the difficulties I had met with in attempting to obey Her Majesty's Order in Council and carry out the provisions of the "Fugitive Offenders' Act," under the authority of the British Treaties with Japan, in the case of Campos, a fugitive from Hong Kong, in consequence of the adoption by the Japanese Government of an American reading of those Treaties, whereby they were construed to limit the Japanese cession of jurisdiction over British subjects in Japan in favour of the British Consular authority, to cases of offences committed within Japanese territory only. The jurisdiction thus claimed by the Japanese is of very slight extent. It serves only to cover the case of a fugitive from another country, and to exclude the actual faculty of extradition from the Consular attributes; whilst to the Consul himself the duty of pursuing, arresting, and delivering fugitives to justice, is extremely onerous and difficult—one, in fact, that it is materially impossible for him to undertake without a complete understanding with the native authorities—nor is there now any reason to object to sanctioning the exercise of so much jurisdiction as this over British subjects, on the part of Japan, on the score of barbarity. As all this is on record already, I need not, perhaps, rehearse it any further, nor allude either to the unfortunate necessity for the arrest of Campos by a British constable in the house of a native Japanese without the proprietor's leave, or to the case of Zoilo Nieves, the Spanish fugitive, whose detention in the British Consular gaol at Yokohama, by request of the Spanish Consul, caused that establishment to be watched by Japanese detectives and blockaded for months together.
At the time when this Campos case occurred, a negotiation was going on between Great Britain and Japan for a revision of Treaties, involving an ultimate abandonment of Consular jurisdiction in Japan, and therefore I was instructed to complete the task of concluding the new Treaty first, and then only to think about an Extradition Treaty as its corollary; but the Japanese Ministry immediately broke up, and Treaty revision was suspended. I made the best arrangement I could for the moment in regard to the arrest and surrender of fugitives without danger of collision; and some time afterwards a monstrous demand made on the part of Russia to Japan for the surrender of a British vessel, the "Arctic," and her crew, on a charge of scaling in Russian waters without licence, enabled me to propose to the Japanese Government the conclusion of a more definite compact upon this rather dangerous question. Her Majesty's Government sanctioned an exchange of notes for the purpose, but that of Japan desired a reciprocal arrangement which should include the surrender of Japanese fugitives from the British possessions to Japan. They desired, in fact, an arrangement almost too complicated for conclusion in the proposed form; and, finally, after another change of administration, have announced their preference for a regular Convention upon the model of that which they contracted with the United States of America in 1884.
Secondly, as to the Treaty itself, I do not think the Japanese are entitled to insist upon the use of their own forms in a reciprocal Agreement, though no doubt they will be disposed to do so. Nor do I see anything to object to in the list of crimes laid down in the proposed draft, as regards the special case of Japan. Neither can I at this moment suggest any addition to it.
Article III. The stipulation as to non-surrender of nationals is usual and proper. Yet one should, perhaps, guard against any idea that the Japanese Government can possibly demand the surrender of a British subject to be tried and punished by Japanese Courts so long as Consular jurisdiction in regard to offences committed in Japan—the only kind of offence for which such a surrender could be demanded—still exists. Excess of caution is a perfectly right thing, but it is best that we should have an entirely clear view of our own strength as well as of our points of weakness. I do not, of course, say this by way of objection to the stipulation, very much to the contrary, nor even to insist upon any opinion of my own, but merely in order to recommend the establishment of a very clear preliminary understanding upon all similar points.
Article IV. I quite agree that this provision is absolutely essential at present. Nor does it seem worth while to anticipate an objection to it on the side of the Japanese, as part of a reciprocal Convention, if its necessity and authority are carefully explained to them. Although they are more than sufficiently reckless of quarrels, they will yet hardly care to risk the embarrassment that must result, for instance, from a demand for the surrender of a German, or Frenchman, or Russian to the Hong Kong Government, so long as the States to which the accused might owe allegiance claimed exclusive jurisdiction over him.
That danger has existed in regard to America, it is true, for some years past, but the immediate vicinity of the British Colony would produce an indefinitely more acute pressure.
The stipulation that Japan shall not surrender a British subject to a third State without the consent of Great Britain is, I am afraid, hopeless; and the fact that it cannot be made reciprocal encourages me to recommend its being altogether abandoned. My own inquiries upon this point, made in connection with the project of an exchange of notes for the mutual delivery to justice of subjects of either party only, led to the conclusion that, although the Japanese Government would certainly defer to any objection that might be stated on the part of Great Britain to the surrender of a particular British subject to a third State, they could not be induced to give any formal assurance to that effect, and this for two reasons, lest they should compromise a right to jurisdiction which, however slight, they still valued, considering it to be inherent and not ceded, and lest they should contract an engagement contrary to their existing obligations.
Perhaps a little further consideration may show this stipulation to be less needful than it has appeared at first sight to be. And here, what has been already said in regard to Japan may be repeated more strongly still in regard to the suggestion of a possible Extradition Treaty between Japan and China, to the danger of British fugitives taking refuge in Japan after having offended against the Chinese Empire. There is no possibility of a demand on the part of China for the surrender of a British subject for an offence committed within the Chinese jurisdiction, since no British subject can be made answerable to China herself for an offence committed within that jurisdiction, nor any likelihood at all that the Japanese Government would at any time comply with such a demand if it should be made. In case of an offence committed in the interior of China by a foreigner who absconded, the Chinese authorities would demand his punishment either of the nearest Consul or of the Minister in Peking, and if the demand were unsuccessful the occurrence would be put down to the national account. The same thing may be said in regard to Corea. I do not think any Treaty providing Consular jurisdiction at all has ever been so imperfectly worded as to leave room for any doubt as to authority in respect of offences committed in the country admitting Consular Magistrates. If they were so we should have heard of it before this.
The other countries to be thought of in this connection are Russia, chiefly, and Spain in a secondary degree on account of the Philippine Islands; but their cases have been already, no doubt, fully considered by Her Majesty's Government.
In conclusion, it should be remembered that the Japanese demands for surrender are likely to be addressed much more often to the neighbouring British Colonies and to India than to Great Britain herself, and the Japanese are likely to feel more anxiety in regard to the Colonies than in regard to the more distant mother country.
HUGH FRASER.
Exmouth, November 28, 1892.
(Signed)
[380]
E
322
12
ARTICLE XVII,
The present Treaty shall come into force ten days after its publication, in conformity with the forms prescribed by the laws of the High Contracting Parties. It be terminated by either of the
may High Contracting Parties at any time on giving to the other six months' notice of its intention to do so.
The Treaty shall be ratified, and the ratifications shall be exchanged at possible.
as soon as
In witness whereof the respective Plenipotentiaries have signed the same, and have affixed thereto the seal of their arms.
No. 4.
Memorandum by Mr. Fraser.
IN the first place, as to "the considerations which seem to make the conclusion of a regular Extradition Treaty with Japan unobjectionable."
I had the honour to explain in an official despatch from Tôkiô in 1889 the difficulties I had met with in attempting to obey Her Majesty's Order in Council and carry out the provisions of the "Fugitive Offenders' Act," under the authority of the British Treaties with Japan, in the case of Campos, a fugitive from Hong Kong, in consequence of the adoption by the Japanese Government of an American reading of those Treaties, whereby they were construed to limit the Japanese cession of jurisdiction over British subjects in Japan in favour of the British Consular authority, to cases of offences committed within Japanese territory only. The jurisdiction thus claimed by the Japanese is of very slight extent. It serves only to cover the case of a fugitive from another country, and to exclude the actual faculty of extradition from the Consular attributes; whilst to the Consul himself the duty of pursuing, arresting, and delivering fugitives to justice, is extremely onerous and difficult-one, in fact, that it is materially impossible for him to undertake without a complete understanding with the native authorities--nor is there now any reason to object to sanctioning the exercise of so much jurisdiction as this over British subjects, on the part of Japan, on the score of barbarity. As all this is on record already, I need not, perhaps, rehearse it any further, nor allude either to the unfortunate necessity for the arrest of Campos by a British constable in the house of a native Japanese without the proprietor's leave, or to the case of Zoilo Nieves, the Spanish fugitive, whose detention in the British Consular gaol at Yokohama, by request of the Spanish Consul, caused that establishment to be watched by Japanese detectives and blockaded for months together.
At the time when this Campos case occurred, a negotiation was going on between Great Britain and Japan for a revision of Treaties, involving an ultimate abandonment of Consular jurisdiction in Japan, and therefore I was instructed to complete the task of concluding the new Treaty first, and then only to think about an Extradition Treaty as its corollary; but the Japanese Ministry immediately broke up, and Treaty revision was suspended. I made the best arrangement I could for the moment in regard to the arrest and surrender of fugitives without danger of collision; and some time afterwards a monstrous demand made on the part of Russia to Japan for the surrender of a British vessel, the "Arctic," and her crew, on a charge of scaling in Russian waters without licence, enabled me to propose to the Japanese Government the conclussion of a more definite compact upon this rather dangerous question. Her Majesty's Government sanctioned an exchange of notes for the purpose, but that of Japan desired a reciprocal arrangement which should include the surrender of Japanese fugitives from the British possessions to Japan. They desired, in fact, an arrangement almost too complicated for conclusion in the proposed form; and, finally, after another change of administration, have announced their preference for a regular Convention upon the model of that which they contracted with the United States of America in 1884.
Secondly, as to the Treaty itself, I do not think the Japanese are entitled to insist upon the use of their own forms in a reciprocal Agreement, though no doubt they will be disposed to do so. Nor do I see anything to object to in the list of crimes laid down in the proposed draft, as regards the special case of Japan. Neither can I at this moment suggest any addition to it.
Article III. The stipulation as to non-surrender of nationals is usual and proper. Yet one should, perhaps, guard against any idea that the Japanese Government can
13
possibly demand the surrender of a British subject to be tried and punished by Japanese Courts so long as Consular jurisdiction in regard to offences committed in Japan-the only kind of offence for which such a surrender could be demanded---stills exists. Excess of caution is a perfectly right thing, but it is best that we should have an entirely clear view of our own strength as well as of our points of weakness. I do not, of course, say this by way of objection to the stipulation, very much to the contrary, nor even to insist upon any opinion of my own, but merely in order to recommend the establishment of a very clear preliminary understanding upon all similar points.
Article IV. I quite agree that this provision is absolutely essential at present. Nor does it seem worth while to anticipate an objection to it on the side of the Japanese, as part of a reciprocal Convention, if its necessity and authority are carefully explained to them. Although they are more than sufficiently reckless of quarrels, they will yet hardly care to risk the embarrassment that must result, for instance, from a demand for the surrender of a German, or Frenchman, or Russian to the Hong Kong Government, so long as the States to which the accused might owe allegiance claimed exclusive jurisdiction over him.
That danger has existed in regard to America, it is true, for some years past, but the immediate vicinity of the British Colony would produce an indefinitely more acute pressure.
The stipulation that Japan shall not surrender a British subject to a third State without the consent of Great Britain is, I am afraid, hopeless; and the fact that it cannot be made reciprocal encourages me to recommend its being altogether abandoned. My own inquiries upon this point, made in connection with the project of an exchange of notes for the mutual delivery to justice of subjects of either party only, led to the conclusion that, although the Japanese Government would certainly defer to any objection that might be stated on the part of Great Britain to the surrender of a particular British subject to a third State, they could not be induced to give any formal assurance to that effect, and this for two reasons, lest they should compromise a right to jurisdiction which, however slight, they still valued, considering it to be inherent and not ceded, and lest they should contract an engagement contrary to their existing obligations.
Perhaps a little further consideration may show this stipulation to be less needful than it has appeared at first sight to be. And here, what has been already said in regard
to Japan may be repeated more strongly still in regard to the suggestion of a possible Extradition Treaty between Japan and China, to the danger of British fugitives taking refuge in Japan after having offended against the Chinese Empire. There is no possibility of a demand on the part of China for the surrender of a British subject for an offence committed within the Chinese jurisdiction, since no British subject can be made answer- able to China herself for an offence committed within that jurisdiction, nor any likelihood at all that the Japanese Government would at any time comply with such a demand if it shoud be made. In case of an offence committed in the interior of China by a foreigner who absconded, the Chinese authorities would demand his punishment either of the nearest Consul or of the Minister in Peking, and if the demand were unsuccessful the occurrence. would be put down to the national account. The same thing may be said in regard to Corea. I do not think any Treaty providing Consular jurisdiction at all has ever been so imperfectly worded as to leave room for any doubt as to authority in respect of offences committed in the country admitting Consular Magistrates. If they were so we should have heard of it before this.
The other countries to be thought of in this connection are Russia, chiefly, and Spain in a secondary degree on account of the Philippine Islands; but their cases have been already, no doubt, fully considered by Her Majesty's Government.
In conclusion, it should be remembered that the Japanese demands for surrender are likely to be addressed much more often to the neigbouring British Colonies and to India than to Great Britain herself, and the Japanese are likely to feel more anxiety in regard to the Colonies than in regard to the more distant mother country.
HUGH FRASER.
Exmouth, November 28, 1892.
(Signed)
[380]
E
322
No comments yet.
Private notes are available after approval.